A faux “gotcha” moment

There’s little doubt that Rudy Giuliani had an excellent debate yesterday. Moreover, although Mitt Romney did well too, it’s pretty clear that he had a bad moment when, in his answer to the question of whether he would need authorization from Congress to take military action against Iran’s nuclear facilities, he focused on consulting with lawyers. Finally, we all understand the urge of a candidate’s operatives to want to convert a less than well-stated answer into a “gotcha” moment.
Nonetheless, the Giuliani campaign is over-the-top in claiming (in one of its many emails about the debate) that Romney’s references to lawyers constitute a “lawyers’ test for national security.” Even worse is the suggestion that Romney’s answer is akin to that of John Kerry, “another Massachusetts politician,” who proposed a “global test” for use of force by the U.S.
Here is exchange in question:

MATTHEWS: Governor Romney, that raises the question, if you were president of the United States, would you need to go to Congress to get authorization to take military action against Iran’s nuclear facilities?
ROMNEY: You sit down with your attorneys and tell you want you have to do, but obviously the president of the United States has to do what’s in the best interest of the United States to protect us against a potential threat. The president did that as he was planning on moving into Iraq and received the authorization of Congress…
MATTHEWS: Did he need it?
ROMNEY: You know, we’re going to let the lawyers sort out what he needed to do and what he didn’t need to do. But, certainly, what you want to do is to have the agreement of all the people — leadership of our government as well as our friends around the world where those circumstances are available. But the key thing here is to make sure we don’t have to use military action against Iran. That’s what you hope to be able to do and that’s why we’re going to put a lot tougher sanctions on Iran — economic sanctions, credit sanctions.
We’re also going to have to get serious about treating Ahmadinejad like the rogue and buffoon that he is. And it was outrageous for the United Nations to invite him to come to this country. It was outrageous for Columbia to invite him to speak at their university. This is a person denied the Holocaust, a person who has spoken about genocide, is seeking the means to carry it out.
And it is unacceptable to this country to allow that individual to have he control of launching a nuclear weapon. And so we will take the action necessary to keep that from happening. And I think each person on the stage, certainly in my case, I would make sure that we would take the action necessary to keep Iran from having a nuclear weapon.

Let’s try to evaluate this objectively. First, no candidate has been more forceful or specific than Romney in insisting that a nuclear Iran is unacceptable. Romney was perhaps the first announced candidate to stress this position, doing so in a January 2007 speech to a gathering in Herziliya, Israel. I haven’t seen a better statement on the subject since, though Giuliani has been excellent on the issue too.
Second, as is clear from the exchange quoted above, Romney gave his answer about consulting lawyers in the context of questions about a president’s legal obligation (if any) to obtain congressional authorization. In this context it was natural, though probably not very savvy, for Romney to talk about lawyers. Debaters points aside, I would expect a president contemplating military action against a foreign country to seek the opinion of administration lawyers on legal questions regarding the proper role of Congress under the Constitution in the matter.
Third, Romney made it clear that, bottom line, he “would make sure that we would take the action necessary to keep Iran from having a nuclear weapon.” So Romney’s answer cannot be construed as imposing either a “lawyers’ test,” much less a “global test” with respect to this issue.
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