Monday, June 13, 2011
(CNSNews.com) – CIA Director Leon Panetta, who President Barack Obama has nominated to be secretary of Defense, told the Senate Armed Services Committee on Thursday that he believes the president can unilaterally use military force, without congressional authorization to “protect our national interests.”
Panetta’s claim of broad unilateral presidential power to initiate U.S. military action absent an attack or imminent threat to the United States came in response to a question from Sen. John McCain—who said he agreed with Panetta.
The U.S. is now involved militarily in Libya even though Congress has never authorized that involvement.
“Does it worry you if the Congress begins to tell the commander in chief as to exactly … what the president can or cannot do in any conflict?” asked McCain.
“Senator, I believe very strongly that the president has the constitutional power as commander in chief to take steps that he believes are necessary to protect this country and protect our national interests,” said Panetta. “And obviously, I think it’s important for presidents to consult, to have the advice of Congress. But in the end, I believe he has the constitutional power to do what he has to do to protect this country.”
Article 1, Section 8 of the U.S. Constitution says Congress “shall have Power … to declare War, grant letters of Marque and Reprisal, and make rules concerning Captures on Land and Water.” At the constitutional convention in 1787, James Madison of Virginia and Elbridge Gerry of Massachusetts proposed that the word “declare” war be inserted in place of “make” war in this passage so that it would leave the president the limited power to “repel sudden attacks.” Madison’s proposal was adopted.
Madison notes from the Constitutional Convention clearly indicate that the drafters of the Constitution meant to deny the president the power to initiate military action by the United States except when necessary for self-defense. “The Executive should be able to repel and not to commence war.”
President Barack Obama expressed this same interpretation when he was a presidential candidate. On Dec. 20, 2008, he told the Boston Globe: “The president does not have power under the Constitution to unilaterally authorize a military attack in a situation that does not involve stopping an actual or imminent threat to the nation.”
However, with the ongoing Libyan operation, President Obama has maintained that he does not need explicit congressional authorization because he has sufficient authority as commander-in-chief to attack Libya, even though he admits that Libya did not attack the United States nor did it pose any direct military threat.
Instead, Obama contends that the civil war currently underway there threatens regional stability and thus endanger U.S. national interests in the region. Obama also contends that his administration has sufficiently consulted with Congress by briefing key members on the details of the operation, arguing that in doing so he has secured congressional consent for the attacks.
Sen. Jim Webb (D-Va.) told Panetta that while there was no question about the president’s authority to defend the country in case of an attack or to fulfill treaty obligations, a “unilateral” military decision such as Obama’s attacks on Libya “needs to be subject to the review and direction of the Congress.”
Panetta said it was “very important” for the president to consult with Congress after he takes military action, saying that “hopefully” Congress will agree that military action is necessary.
“[O]nce those [military] decisions are made, in order for those decisions to be sustained, that it’s very important to work with the Congress and seek the best advice and counsel of the Congress and hopefully get the Congress’ support for those actions,” said Panetta.
Critics of American involvement in the NATO-led attacks on Libya have argued that Obama lacks the constitutional authority to commit U.S. forces there, claiming that while the president is commander and chief, he must first seek congressional authorization before deploying any military forces, except in the case of an attack on the United States.