Earlier today I talked to freshman Sen. Mike Lee, R-Utah, about the constitutionality of the strikes on Libya. A lightly edited transcript – I edited my own “uhs” more than his – is below.
SLATE: Has the conduct of the Libya NFZ, so far, passed constitutional muster?
LEE: No, it hasn’t. I’m not happy with the way the president handled it. I think declaring a no fly zone over foreign soil is tantamount to an act of war. The bombardment of Qaddafi’s compound that occurred with that certainly amounted to an act of war. For the president to not come to congress and ask for anything, much less for a declaration of war, I found perplexing. It’s particularly perplexing when you consider statements he’s said before, that the president doesn’t have power under the Constitution to declare war without going to Congress.
SLATE: You mean what he said in 2007 when the discussion was about possibly bombing Iranian nuclear facilities.
LEE: Right. I don’t see how this situation is different than that situation. He did go to the U.N. security council, so that tends to disprove the notion that this arose so suddenly and so spontaneously that there was no time to consult Congress.
SLATE: The argument as I understand it is that Obama was opposed, in 2007, to an action taken without going to the U.N. – this time he headed to the U.N., which means it’s not a unilateral decision.
LEE: That helps me to understand what it is that he’s thinking, but it doesn’t excuse the matter. It’s a separate question – whether or not action could be justified without going to the security council, or whether it’s the right thing to do – that’s a separate question from the constitutional issue.
SLATE: Well, looking at the Iran example – would the president have had to go to Congress if he was launching missiles at discreet sites, to disable their nuclear facilities? Are there circumstances in which he doesn’t have to come to Congress?
LEE: I’m not sure exactly how thin this has to be sliced. We have to acknowledge fact that the president is commander in chief. On some level, you can distinguish a military strike on target determined to be an enemy of United States – a discreet strike that doesn’t involve commitment. But at some point between when you send one cruise missile to knock out one facility, when you’ve got a flotilla of warships launching missiles, at some point that enters into the area where it’s an act of war. Now, when we talk about constitutionality here, we’re on somewhat different footing than we are in some other areas. Unlike some areas where we have the Supreme Court to resolve disputes, this is an area where courts are never involved. There’s a little more of what you might call subjectivity in all analysis. What i’m elaborating on here is based on my own reading of the Constitution, my own logic and common sense. And one of the reasons we put power to declare war in the hands of Congress, when you commit U.S. personnel, our armed men and women, to conflict, that has a lot of impact in every single state of the Union. It ought to be vetted.
SLATE: Are you satisfied by the president’s rationale for doing this in the letter he sent to Congress? I mean, that letter was sent in compliance with the War Powers Resolution, and the justification he gave was that this was serving a humanitarian purpose.
LEE: No, both on policy grounds and constitutional grounds. I’m not convinced that complying with War Powers Resolution necessarily means that the president is complying with the Constitution. I also think as a matter of policy he ought to go to Congress. It could have a significant impact on country. The fact that it’s for a humanitarian effort doesn’t change the analysis for me. Look, we’ve got dictators who are not kind to their people all over the world. If every time there’s a humanitarian reason for military action potentially amounting to act of war, if that means president can act first – that’s not how this works.
SLATE: The Huffington Post pointed out earlier today that Joe Biden was ready to start a discussion of impeachment if Bush attacked Iran. What do you make of that response to a military action without consulting Congress? What do you plan to do when you get back to the Senate?
LEE: It’s too soon to speculate. The situation is changing so rapidly – some people are saying it might be matter of days – but if this is going to be something that takes more than a few days, we’ll see. I don’t know whether Mr. Biden was speaking in hyperbole when he made that comment, I don’t remember what tone of voice he was using. It doesn’t strike me as something that should happen here. I don’t see this resulting in serious calls for impeachment, particularly if those who are saying it could be over in a matter of days are. That doesn’t mean people aren’t really upset.
SLATE: So you wouldn’t discuss impeachment. What steps are you willing to take, if this is unconstitutional?
LEE: If this is over and done with in a matter of days, it not going to result in much action. If this drags on there will be calls for withholding funding.
SLATE: You’d call for that?
LEE: I’m no calling for it right now because we don’t know what we’re dealing with. That’s part of the problem. We never were told what the objective was, never told when the job would be done.