In this interesting exchange from John Kerry’s confirmation hearings for the position of Secretary of State, Republican Senator Rand Paul presses Kerry on the contradiction between his longstanding view that President Richard Nixon’s bombing of Cambodia during the Vietnam War was unconstitutional because it lacked congressional authorization, and his defense of President Obama’s 2011 bombing of Libya, which also lacked congressional approval. Kerry first became nationally famous as an opponent of the Cambodia bombings and the Vietnam War generally in the early 1970s.
Kerry’s efforts to distinguish the two cases are far from successful. He claims that the Libya intervention was legal because of the need for swift, decisive action. But of course Nixon could and did make the same argument. Paul correctly points out that the Constitution gives the power to declare war exclusively to Congress and does not create any exceptions for cases where presidents believe that they need to act quickly. Moreover, as Allahpundit points out, the president actually had plenty of time to seek and gain congressional approval before he started the bombing, as he spent weeks mobilizing support from the United Nations, our European allies, and others.
If anything, there is a much stronger case for the constitutionality of the Cambodia bombing than for the Libya intervention. The Cambodia bombing was brought on by the fact that North Vietnamese and Viet Cong troops were using the country as a staging area for their operations in the Vietnam War, which Congress had authorized in the 1964 Tonkin Gulf Resolution. If enemy forces in the course of a war authorized by Congress use a neutral country’s territory, the president has the authority to order strikes against them without seeking further congressional authorization. If, for example, German forces had operated from Spanish or Swiss territory during World War II, FDR could have legally ordered air strikes against them without additional congressional action. Similarly, almost everyone agrees that President Obama had legal authority to order strikes against Osama Bin Laden and other Al Qaeda members in Pakistan, even though Congress never specifically authorized incursions into that country, which like Cambodia in 1970, is at peace with the United States. I am very far from being a fan of Nixon. But when it comes to Cambodia, he had a pretty good legal argument.
By contrast, there were no hostile forces using Libyan territory to attack the United States when Obama ordered his air strikes in 2011. If, as I believe, this was a military action large enough to qualify as a war, it required congressional authorization.
UPDATE: I recognize that it’s easy to find similar self-contradiction by Republican politicians, including those who claimed that the War Powers Act is unconstitutional, only to later attack Obama for violating it in the case of Libya. But that doesn’t justify Kerry’s position.
UPDATE #2: Rand Paul also correctly pointed out that Obama’s defense of the Libya intervention contradicted his 2007 statement that “[t]he President does not have power under the Constitution to unilaterally authorize a military attack in a situation that does not involve stopping an actual or imminent threat to the nation.” Like Paul, I think candidate Obama was closer to the truth in 2007 than President Obama in 2011.