Targeted Killing

Senator Kerry’s Incoherent Testimony on War Powers

By Jack Goldsmith
Thursday, January 24, 2013, 7:21 PM

In transition from long-time legislator to senior Executive branch official, and asked to reconcile positions that are impossible to reconcile, Senator Kerry in his confirmation testimony took a nuanced and not always coherent position today on the relationship between presidential war authority, congressional authorization, and U.N. authorization.  In the exchange below with Senator Paul, Senator Kerry supports the War Powers Resolution and says he believes in “congressional authority to go to war,” but also claims he is not an “absolutist” on congressional authority and believes that the President can use unilateral military force when he thinks it is necessary to save lives.  As an example, Senator Kerry says that Kosovo was an appropriate use of presidential authority even though it went “against the will of the Congress,” but then – in a now-typical elevation of U.N. authorization over congressional authorization – adds that “a U.N. resolution is a necessary ingredient to provide the legal basis for military action in an emergency” even though Kosovo lacked such a resolution.  Here is the exchange:

PAUL:  Senator Kerry, thanks for coming today and for your testimony.  I agree with Candidate Barack Obama who said in 2007 that "the president doesn't have the power under the Constitution to unilaterally authorize a military attack." I'd like to know if you agree with Candidate Barack Obama or if you agree with President Barack Obama, who took us to war in Libya without congressional authority unilaterally?

KERRY:  Well, Senator Paul, one of the things this committee has spent a lot of time on is the War Powers Act, which I support. And I believe in congressional authority to go to war. I've argued that on occasion with respect to some things here, but there are occasions which I have supported where a president of the United States has to make a decision immediately and implement that decision, execute on it immediately.  I supported Ronald Reagan when he sent troops into Grenada. I supported George H. W. Bush when he sent troops into Panama. I supported President Clinton when, against the will of the Congress, he did what was needed to be done in Kosovo and Bosnia and so forth.  And in this particular instance, I think the president behaved in that tradition.

PAUL:  I would argue, though, that the Constitution really has no exceptions for when you're having a tough time or when people disagree with you that you just go ahead and do it. In the early 1970s, you know, after Vietnam, you were quite critical of the bombing in Cambodia because I think you felt that it wasn't authorized by Congress. Has your opinion changed about the bombing in Cambodia? How is Cambodia different than Libya?

KERRY:  Nor did my opinion change or has it ever altered about the war in Vietnam itself, where I don't believe -- and I argued then.

PAUL:  Is Cambodia different than Libya?

KERRY:  Well, Cambodia -- yeah, it is, because it was an extension of the war that was being prosecuted without the involvement of Congress after a number of years.  That's very different.

PAUL:  Length of time, but similar circumstances -- a bombing campaign unauthorized by Congress. See, the Constitution really doesn't give this kind of latitude to sometimes go to war and sometimes not go to war. I thought Barack Obama was very explicit, and it's what I liked about him, frankly. People think, "Oh, you know, Rand Paul certainly didn't like anything about Barack Obama." I did like his forthrightness when he ran for office and said, "No president should unilaterally go to war; the Constitution doesn't allow it."

KERRY:  Well, I respect that.  Look, you can be absolutist and apply it to every circumstance. The problem is it just doesn't work in some instances. When 10,000 people are about to be wiped out by a brutal dictator and you need to make a quick judgment about engagement, you certainly can't rely on a Congress that has proven itself unwilling to move after weeks and months sometimes.

PAUL:  Do you think a U.N. resolution sufficient to go to war?

KERRY:  No. No. I think a U.N. resolution -- when you say sufficient to go to war, I think a U.N. resolution is a necessary ingredient to provide the legal basis for military action in an emergency. It is not by any means sufficient to require the United States to do something, because we obey our Constitution and our interests and our rights.