A hard place for John Kerry

Terry Jeffrey
Posted: Sep 17, 2003 12:00 AM

Democratic Sen. John Kerry of Massachusetts is between a rock and a hard place.

On one side is the flinty fact he voted for war in Iraq. On the other is the adamantine stand former Vermont Gov. Howard Dean took against the war -- a stand Dean has used to separate Kerry from the liberal base of the Democratic Party.

If Kerry can't wiggle out of this spot, his presidential chances will be crushed.

Debating at Morgan State in Baltimore, Kerry tried to blame his vote for the war on a character flaw in President Bush. Either Bush misled the country into war, Kerry argued, or he allowed himself to be dragged into it by uncritically accepting bad advice.

"The reason I can't tell you to a certainty whether the president misled us is because I don't have any clue what he really knew about it, or whether he was just reading what was put in front of him," said Kerry. ". . . And there are serious suspicions about the level to which this president really was involved in asking the questions that he should have."

The sweet irony: It is precisely because Bush rejected bad advice that Kerry's in this jam.

The White House counsel's office told the president last August he didn't need a vote in Congress to launch a war. "In disclosing this week that Alberto R. Gonzales, the White House counsel, had told the president that he has the authority he needs to wage a war against Iraq," reported The New York Times, "the White House reopened a debate that has periodically vexed policymakers: Can a president launch a war without explicit congressional approval?"

But Bush brushed aside his lawyers. "At the appropriate time," the president said last Sept. 4, "this administration will go to the Congress to seek approval necessary to deal with the threat."

In October, Congress authorized war. Twenty-nine Democratic senators, including Kerry, voted for the authorization.

Had Bush not sought it, he, not Kerry, might face disaster today. America, not the Democratic Party, would be bitterly divided. Left-wing presidential candidates wouldn't be pointing at their rivals' war votes, they would be pointing with their rivals at the war Bush started without a vote.

Yet, Bush was right constitutionally as well as politically to seek authorization. As Louis Fisher notes in "Presidential War Power," the draft constitution presented at Philadelphia in 1787 gave Congress the power to "make war." Charles Pinckney of South Carolina objected, according to the convention notes, because he believed the House would be "too slow." James Madison of Virginia and Elbridge Gerry of Massachusetts responded by moving "to insert 'declare,' striking out 'make' war; leaving to the Executive the power to repel sudden attacks." This is what the states ratified.

Gerry told the convention "he never expected to hear in a republic a motion to empower the Executive alone to declare war."

President Washington, who had presided at Philadelphia, understood the war power well. When Creek Indians began scalping settlers in Georgia in 1793, he did not order U.S. troops to attack. "The Constitution," said Washington, "vests the power of declaring war with Congress, therefore no offensive expedition of importance can be undertaken until after they have deliberated upon the subject and authorized such a measure."

Madison described the war-powers clause in a letter to Thomas Jefferson. "The Constitution supposes, what the History of all Govts demonstrates, that the Ex. is the branch of power most interested in war, & most prone to it," said Madison. "It has accordingly with studied care, vested the question of war in the Legisl."

Until Harry Truman sent troops into Korea without authorization, all presidents respected Madison's original intent. Republicans in 1950 were enraged at Truman's breach. Sen. Robert Taft of Ohio, "Mr. Republican," called it "a complete usurpation by the president of authority to use the armed forces of this country."

In seeking congressional authorization for war, Bush stood with Washington, Madison and Taft, not the over-reaching Truman. Because he did, Candidate Kerry is in a hard place today, and our troops in Iraq retain the support they need to win the decisive victory that still eludes us in Truman's Korea.