It is no surprise that the Obama administration believes that they do not need congressional approval to use the military. We seen and discussed this when the Libyan attacks commenced. This time under questioning from Sen. Sessions at a Senate Armed Services Committee hearing March 7, Defense Secretary Leon Panetta stated that “international permission,” rather than Congressional approval, provides a ‘legal basis’ for military action by the United States.
Sen. Jeff Sessions: Do you think that you can act without Congress to initiate a no-fly zone in Syria, without Congressional approval?
Defense Secretary Leon Panetta : Again, our goal would be to seek international permission and we would come to the Congress and inform you and determine how best to approach this. Whether or not we would want to get permission from the Congress, I think those are issues we would have to discuss as we decide what to do here.
Sen. Jeff Sessions: Well, I’m almost breathless about that. Because what I heard you say is, “we are going to seek international approval, and then we will come and tell the Congress what we might do, and we ‘might’ seek Congressional approval.”
Panetta then goes on to explicitly state that the President has the authority to “act in the defense of the nation” without Congressional approval and that a NATO resolution would be all the legal justification the administration needs in order to wage yet another foreign war.
The War Powers Act prohibits the US President from engaging in war unless the Congress authorizes:
1. A declaration of war,
2. Specific statutory authorization, or
3. A national emergency created by attack upon the United States, its territories or possessions, or its armed forces.
This makes it illegal for the US President to wage a foreign war of aggression without Congressional authorization.
Article 1 Section 8 of the US Constitution remands the power to declare war specifically to the Congress. This power is distinct from raising and funding an army, which is also a separate declared power of Congress. The US Constitution and the War Powers Act make it clear that President may not initiate an undeclared war without the consent of Congress.
Republican Congressman Walter Jones has introduced a resolution in the House of Representatives which reads:
Expressing the sense of Congress that the use of offensive military force by a President without prior and clear authorization of an Act of Congress constitutes an impeachable high crime and misdemeanor under article II, section 4 of the Constitution.
Whereas the cornerstone of the Republic is honoring Congress’s exclusive power to declare war under article I, section 8, clause 11 of the Constitution: Now, therefore, be it Resolved by the House of Representatives (the Senate concurring), That it is the sense of Congress that, except in response to an actual or imminent attack against the territory of the United States, the use of offensive military force by a President without prior and clear authorization of an Act of Congress violates Congress’s exclusive power to declare war under article I, section 8, clause 11 of the Constitution and therefore constitutes an impeachable high crime and misdemeanor under article II, section 4 of the Constitution.
Remember a year ago we reported that in a letter to the Speaker of the House of Representatives and the President pro tempore of the Senate dated March 21, 2011, President Obama cited the authority of United Nations Security Council Resolution 1973 and his "constitutional authority to conduct U.S. foreign relations and as Commander in Chief and Chief Executive."
However, as a candidate the president held a different view. The Boston Globe interviewed then-Senator Obama in 2007 on the use of unilateral military action:
Question: In what circumstances, if any, would the president have constitutional authority to bomb Iran without seeking a use-of-force authorization from Congress? (Specifically, what about the strategic bombing of suspected nuclear sites -- a situation that does not involve stopping an IMMINENT threat?)
Obama: “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.
“As Commander-in-Chief, the President does have a duty to protect and defend the United States. In instances of self-defense, the President would be within his constitutional authority to act before advising Congress or seeking its consent. History has shown us time and again, however, that military action is most successful when it is authorized and supported by the Legislative branch. It is always preferable to have the informed consent of Congress prior to any military action.”
Rep. Burton of Indiana said regarding the calls for strikes in Syria and Panetta’s admission that congress and the constitution are subservient to the UN, “I would respectfully remind Senator McCain and the President that they do not have the power to unilaterally start a war. The authority to initiate war is vested by the Constitution exclusively in Congress. The War Powers Act was enacted into law over a Presidential veto--not an easy thing to accomplish--to fulfill the intent of the Framers of the Constitution of the United States in requiring that the President has to seek the consent of Congress before the introduction of the United States Armed Forces into hostile action.
“Section 2(c) of the War Powers Act provides that no attempt by the President to introduce the United States Armed Forces into hostile action may be made under the War Powers Act unless, number one, there is a declaration of war; number two, a specific authorization; or, number three, a national emergency created by attack upon the United States, its territories or possession, or its Armed Forces.
“The Constitution and the War Powers Act are not a list of suggestions; they are the law of the land, the law the President of the United States and every Member of Congress swears to protect and defend. Contrary to Defense Secretary Panetta's assertion before the Senate Armed Services Committee the other day, international permission does not trump congressional permission”