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From The Memory Hole

Biden in 2007: President has ‘no constitutional authority’ to bomb Iran without congressional approval

“I will make it my business to impeach him... that's a fact!"

Almost immediately after the Biden administration launched its bombing campaign in Yemen on Thursday, the President began receiving condemnation from a bipartisan coalition of Congress members, many of whom point to the constitutional limits to the executive branch’s ability to wage war.

“The President needs to come to Congress before launching a strike against the Houthis in Yemen and involving us in another middle east conflict,” said Ro Khanna, a member of the House Armed Services Committee and fellow Democrat. “That is Article I of the Constitution. I will stand up for that regardless of whether a Democrat or Republican is in the White House.”

Similar comments have been made by numerous other members of Congress, including Mark Pocan (D-WI), Val Hoyle (D-OR), Pramila Jayapal (D-WA), Anna Paulina Luna (R-FL), Mike Lee (R-UT), and Thomas Massie (R-KY), and others.

But there’s one more person who lends additional weight to the argument: Joe Biden himself, in 2007.

In December of that year, Biden—who was at the time a presidential candidate and longtime U.S. Senator from Delaware—repeatedly said that he would move to impeach President George W. Bush if he were to bomb Iran without congressional approval, citing both his own self-described expertise and a “group of constitutional scholars” with whom he consulted on the matter.

Watch:

In November of 2007, Biden said this at a townhall meeting in Portsmouth, New Hampshire:

Q: I have a great fear that say you’re elected as the nominee of the party. Next August sometime during the summer, Dick Cheney and George are going to bomb Iran.

BIDEN: Legitimate concern.

Q: What can you do about it?

BIDEN: I am not one, who if you’ve observed me for some time, I am not one who’s engaged in excessive populist rhetoric. I’m not one that pits the rich against the poor. I’m not one who’s gone out there and made false threats against presidents about, and god love him he’s a great guy, I’m not Dennis Kucinich saying impeach everybody now.

But let me tell you, I have written an extensive legal memorandum with the help of a group of legal scholars who are sort of a stable of people, the best-known constitutional scholars in America, because for 17 years I was chairman of the Judiciary Committee.

I asked them to put together [for] me a draft, which I’m now literally riding between towns editing, that I want to make clear and submit to the United States Senate pointing out the president has no authority to unilaterally attack Iran. And I want to make it clear, I want it on the record, and I want to make it clear, if he does, as chairman of the foreign relations committee and former chair of the judiciary committee, I will move to impeach him.

On December 4, 2007, he was asked about those comments by host Chris Matthews on MSNBC’s Hardball:

MATTHEWS: I want to ask you about something you’ve been involved with. You said that if the president of the United States had launched an attack on Iran without congressional approval, that would have been an impeachable offense.

BIDEN: Absolutely.

MATTHEWS: Do you want to review that comment you made? Well, how do you stand on that now?

BIDEN: Yes, I do. I want to stand by that comment I made. The reason I made the comment was as a warning. I don’t say those things lightly, Chris. You’ve known me for a long time. I was chairman of the Judiciary Committee for 17 years, or its ranking member. I teach separation of powers and constitutional law. This is something I know.

So I got together and brought a group of constitutional scholars together to write a piece that I’m going to deliver to the whole United States Senate, pointing out the president has no constitutional authority to take this nation to war against a country of 70 million people, unless we’re attacked or unless there is proof that we are about to be attacked.

And if he does, I would move to impeach him. The House obviously has to do that, but I would lead an effort to impeach him.

The reason for my doing that and I don’t say it lightly. I don’t say it lightly. I say it because they should understand that what they were threatening, what they were saying, what was adding up to be what looked like to the rest of the world what we were about to do would be the most disastrous thing that could be done at this moment in our history that I can think of.

Speaking at an event in Davenport, Iowa ten days later, on December 14, 2007, Biden said:

I don’t use words lightly. And some of you may have been either pleased or upset that the news came out that the President of the United States was lying to us about the intelligence information on Iran.

Some of you may have seen me on Stephanopoulos or Meet the Press and the shows I’ve been on on a weekly basis.

I wanna make it clear to you– I’ve drafted, with the help of– for 17 years I was the chairman of the Judiciary Committee or the ranking member.

And ladies and gentlemen, I drafted an outline of what I think the constitutional limits have on the President in over the war clause. I went to five leading scholars, constitutional scholars, and they drafted a treatise for me, and it’s being distributed to every senator.

And I want to make it clear and I made it clear to the president, if he takes this nation to war in Iran, without congressional approval — I will make it my business to IMPEACH him And that’s a fact! That is a fact!

As noted by The Intercept’s Prem Thakker, Biden made similar comments in 2020, during the Trump administration:

Biden’s Hardball quote was flagged by Bruce Fein and Sam Husseini in a press release earlier today.

Fein, a noted lawyer specializing in constitutional and international law, said of Biden’s decision to bomb Yemen:

The Declare War Clause is dispositive — only Congress can authorize the offensive use of the military. The President may respond to sudden attacks on the United States that have already broken the peace. Biden was not reacting to an attack on the United States in bombing Yemen. He was defending naval traffic in the Red Sea for which he needed a declaration of war against Yemen or the Houthis to conduct his bombing raids. What Biden has done is indistinguishable from what the UK, France, and Israel did in 1956 in attacking Egypt over nationalizing the Suez Canal. President Eisenhower rejected the use of force, and the UK, France, and Israel backed down tacitly acknowledging their illegal acts of aggression against Egypt

The Constitution’s Declare War Clause is supreme over the War Powers Resolution. The latter ambiguously suggests the President can initiate and fight a war for 60 days unless Congress by statute calls a halt. To the extent the WPR purports to authorize 60-day presidential wars, to that extent it is unconstitutional.”

“Biden can be hoisted on his own petard,” added Fein, citing the Hardball interview. “[He] should be impeached and removed from office by his own yardstick.”

As far as international law, Fein says, “The Rome Statute of the International Criminal Court defines the crime of aggression, which easily covers Biden’s attack on Yemen”—specifically citing the following (p. 9):

Article 8 bis3
Crime of aggression

1. For the purpose of this Statute, “crime of aggression” means the planning, preparation, initiation or execution, by a person in a position effectively to exercise control over or to direct the political or military action of a State, of an act of aggression which, by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations.

2. For the purpose of paragraph 1, “act of aggression” means the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations. Any of the following acts, regardless of a declaration of war, shall, in accordance with United Nations General Assembly resolution 3314 (XXIX) of 14 December 1974, qualify as an act of aggression:

(a) The invasion or attack by the armed forces of a State of the territory of another State, or any military occupation, however temporary, resulting from such invasion or attack, or any annexation by the use of force of the territory of another State or part thereof;

(b) Bombardment by the armed forces of a State against the territory of another State or the use of any weapons by a State against the territory of another State;

(c) The blockade of the ports or coasts of a State by the armed forces of another State;

(d) An attack by the armed forces of a State on the land, sea or air forces, or marine and air fleets of another State.”


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