Kerry Stands by His Iraq War Vote
And Stands, With Bush, Against Constitutional Principles

By MICHAEL C. DORF
Wednesday, Aug. 18, 2004

Responding to a challenge from President Bush, last week Senator Kerry stated that even if he had known then what he knows now, he still would have voted to authorize the use of force against Iraq in October 2002.

Bush and his supporters have pointed to Kerry's statement as evidence that the Senator is trying to have it both ways: How can he criticize the President's performance as Commander-in-Chief, if he also stands by the decision to go to war?

Kerry has a good response to the charge of straddling. He says he has consistently criticized the manner in which the President has conducted the war, rather than the Congressional decision to authorize force in the first place. Although Bush derides this distinction as "nuance," it is hardly a matter of hairsplitting. The President and his supporters insult the intelligence of American voters by suggesting that the distinction between means and ends is necessarily bogus.

Although Kerry's criticism of Bush's conduct of the war is fully consistent with his support for removing Saddam Hussein from power, Kerry's response to Bush's question is problematic in a different respect. What possible justification would there have been for authorizing force against Iraq had it been known, as we know now, that Iraq had no significant weapons of mass destruction and no significant ties to al Qaeda?

As I shall explain below, Kerry's reason for standing by his vote is principled and consistent. The problem is that the principle it consistently upholds is one of sweeping Presidential power--a principle that he and Bush both endorse, and that the Constitution rejects.

Stated Reasons for War: WMDs, Terror Ties and Human Rights

In the leadup to the U.S.-led invasion of Iraq, President Bush offered three primary justifications for going to war:

First, Bush claimed that Saddam Hussein was on the verge of possessing and using weapons of mass destruction (or "WMDs").

Second, Bush claimed that Saddam was supporting terrorists, including Al Qaeda.

Third, Bush pointed to Saddam's record as a vicious tyrant who had abused the human rights of his own citizens--a record, Bush said, that warranted intervention on humanitarian grounds.

Each of these justifications for war was questionable in March 2003. They are even weaker today.

The First Justification for the War: Alleged Weapons of Mass Destruction

U.S.-led forces in Iraq have failed to find weapons of mass destruction, and the reason appears to be that in fact, there were none. Scientists who formerly worked on Iraq's biological, chemical and nuclear weapons programs now say that these programs were largely discontinued, and the weapons stockpiles destroyed, after the first Gulf War.

Exactly why the pre-war intelligence estimates of Saddam's WMD capabilities were so far off is a matter of debate. Some blame the Central Intelligence Agency for faulty methods, while others blame the Bush Administration for puffing self-serving claims by Iraqi exiles like Ahmed Chalabi--exiles whose assertions should have received closer scrutiny.

Perhaps the strongest pre-war support for the theory that Iraq possessed WMDs derived from Saddam Hussein's own behavior. Saddam repeatedly obstructed U.N. weapons inspectors in a game of cat and mouse that led many observers to assume that he must therefore have had something to hide. (So why did he do it, if he didn't have something to hide? The best explanations I have heard are that Saddam was trying to scare his own people and/or that he was, and is, simply irrational.)

Thus, before the war one might have thought that Saddam either possessed WMDs or that there was a substantial probability that he did. In either event, given his past willingness to use chemical weapons against the Kurds and the Iranians, prudent planners may have thought that he posed too great a danger to be allowed to remain in power. As President Bush put the point in November 2002, in light of the risk, "we cannot wait for the final proof--the smoking gun--that could come in the form of a mushroom cloud."

Accordingly, although the failure to find WMDs is embarrassing, it does not discredit the initial decision of someone who thought, based on what was known before the war, that force was justified. After all, any decision based on an assessment of risk can be the right decision even if the risk does not materialize. Policymakers--even Presidents--are asked to be prudent, but not psychic.

But that's a far cry from saying--as both Bush and Kerry now have--that they would have supported going to war even if they knew then what we know now, namely that Saddam did not possess WMDs or even an active WMD program. They must therefore think the war was justified on other grounds.

The Second Justification for the War: Alleged Terror Ties

President Bush and his supporters also justified the war by pointing to Iraq's support for terrorism. Yet the Administration's repeated invocations of the attacks of September 11, 2001 were misleading at best. Al Qaeda is a fundamentalist Islamist terrorist movement, which disdained secular regimes like Saddam's Baath Party. A connection between the two was highly implausible, and there was scant evidence of one.

The best that could be said for the terrorism argument before the war was that Saddam Hussein is an opportunist. Even if there was no evidence of active cooperation with Al Qaeda, one could have imagined that at some point, Saddam might decide to deliver a dangerous weapon to Al Qaeda or another terrorist organization in an alliance of convenience. Better to take him out before he had the chance to harm us, the Administration argued.

To the extent that this argument for preemptive action had force before the war, that force has been dissipated by subsequent events. The failure to find WMDs indicates that Saddam didn't have the dangerous weapons to deliver to the terrorists.

Thus the terrorism argument "succeeds" only in an ironic sense. As a result of the U.S. invasion, numerous foreign fighters--including known terrorists--have entered Iraq to attack U.S. forces and Iraqi civilians. So Iraq is now a hotbed of terrorism, but that is a result of the war, not a justification for it.

Had they known before the war what we now know, it is hard to understand how President Bush and Senator Kerry could possibly have thought the action justified on the ground that it would reduce the terrorist threat. Indeed, it's hard to imagine how, if they knew what we know now, they could not have been convinced that the war would actually worsen that threat--by sapping resources from real anti-terror initiatives, domestic and foreign; alienating other nations; and aiding terrorist recruitment by confirming the widely held view of the U.S. as an imperial power.

The Third Justification for the War: Human Rights

That brings us to the third justification for the Iraq war--human rights issues. There is no doubt that Saddam Hussein was among the world's worst abusers of human rights. But the Bush Administration's invocation of this fact as a basis for war was always at best opportunistic.

How do we know that? For one thing, Saddam's worst abuses occurred in the 1980s, when he was considered a U.S. ally by members of the current Administration. And then-Governor Bush campaigned for the White House in 2000 decrying the use of the U.S. armed forces for humanitarian missions during the Clinton Administration.

Did Bush and his advisers have a change of heart so that they now support humanitarian interventions? Hardly. If abuses of human rights were indeed the basis for attacking Iraq, why hasn't the Administration taken swift action in the Sudan? There is right now an active campaign of ethnic cleansing by Arab militia or "Janjaweed" directed at the black African inhabitants of the Darfur region of that country. Great suffering is occurring; human rights abuses are rife. This campaign exceeds in scale anything that Saddam Hussein was attempting at the time of the U.S.-led invasion of Iraq.

To his credit, Senator Kerry has spoken out more forcefully than the President has regarding the need for action in the Sudan. But he has also repeatedly described himself as a "realist" with respect to international relations.

Kerry believes that the U.S. armed forces should generally only be used to protect vital American interests. He may allow for occasional exceptions to that principle in order to avert catastrophes of the sort now occurring in the Sudan. But he has not argued, nor could he, that Iraq falls under such an exception.

Indeed, with respect to Iraq, Kerry has actually criticized Bush for departing from the realism each professes as his creed.

A Plausible Reason for Going to War: Material Breach

Although it did not receive as much attention in the pre-war period as the arguments relating to WMDs, terrorism and human rights, there was one remaining plausible justification for war: By obstructing weapons inspectors, repeatedly entering the "no-fly" zones, and cheating on the oil-for-food program, Saddam appeared to be in breach of the U.N. resolutions that ended the first Gulf War. If so, then force would have been justified.

The difficulty with this argument, as I explained in a column on the eve of the war, is that the relevant U.N. resolutions made clear that the Security Council itself, not any individual member state, was to be the arbiter of whether a breach had occurred. Thus, if the Bush Administration wanted to rely on Saddam's failure to abide by U.N. resolutions, it needed a new U.N. resolution authorizing force. No such resolution was forthcoming.

This argument, then, does not avail Bush: He did not wait for the crucial resolution he needed. But it may work better for Kerry--who did not choose to jump the gun. Whereas the Bush Administration has been willing to rely on unilateral means or ad hoc coalitions, Kerry has repeatedly stated his strong belief in working with and through international organizations such as the U.N. So Kerry may be suggesting that, knowing what he knows now, if he had been President, he would have authorized force against Iraq only if force had also been authorized by the U.N.

After all, the October 2002 resolution for which Kerry, as a Senator, in fact voted, authorized force to defend the U.S. and "to enforce all United Nations Security Council resolutions regarding Iraq." Kerry might have reasonably thought at the time that those resolutions would themselves be reasserted by the Security Council.

It's not Kerry's fault, the argument would go, that Bush went ahead without Security Council approval. And Kerry has not said that, as President, he would have done the same. On the contrary, he has strongly implied that he would not have done so.

Threatening War to Coerce Compliance

And yet that is not exactly what Kerry said. In response to Bush's challenge, Kerry said "I believe it's the right authority for a president to have." What does that mean?

Kerry appears to have been referring to an argument that economic sanctions and ordinary diplomacy with respect to Saddam had run their course. In this view, the only way to coerce Iraqi compliance with U.N. resolutions was to make a credible threat of war. And the only way to do that was for Congress to give the president the authority to go to war: thus, in Kerry's argot, it--the authority to go to war--is the right authority for a president to have.

Accordingly, Kerry espouses a perfectly coherent position when he says that he voted to authorize war even as he wished to avert war. And despite President Bush's criticism, there is nothing especially "nuanced" about this view, which amounts to saying that threats are most effective when backed by the potential use of force.

The Imperial Presidency

But if the Bush Administration is wrong to criticize Kerry's position as equivocal, Kerry's view is nonetheless problematic for an entirely different reason: It fails to honor the spirit of the Constitution, which grants the power to declare war to Congress, not the President.

It's important to recall not just the content of Congress's resolution, but its timing. Congress voted to authorize force against Iraq before the Security Council deemed it necessary and months in advance of the moment when U.S. forces would even be in position to be deployed.

Congress thus tried to let itself off the hook. Congressmen and Senators could tell themselves, as Senator Kerry apparently did, that they were not voting for war, but only for the threat of war to aid diplomacy. That meant that Congress effectively delegated the decision to go to war to the President.

Yet, Article I of the Constitution does not permit Congress to delegate its war-declaring power to the President. Taking that power seriously should mean that Congress only declares war (or its equivalent) when all members voting for war actually intend to take the nation to war. Otherwise, the only elected official who will really pass on the wisdom of war is the President.

Whether that President is named Bush or Kerry is not really the point. The framers of the Constitution expected the Presidency to be filled by able statesmen like George Washington, the young nation's greatest war hero. They nonetheless vested the power to declare war in Congress, because it is the branch of government most closely tied to the People.

The framers expected that members of Congress would only vote to sacrifice the lives of their constituents if that was really their intent. If allowed to work as designed, this constitutional allocation of power prevents the nation from waging unnecessary wars.

Senator Kerry says that he regrets having trusted President Bush not to rush headlong and unilaterally into war. The question remains why he did not trust in the Constitution.


Michael C. Dorf is the Michael I. Sovern Professor of Law at Columbia University in New York City. His book Constitutional Law Stories tells the stories behind fifteen leading constitutional cases.

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