Blog No. 140 North Korea: As the Drums of War Continue To Beat, Silence On Capitol Hill

On Monday, President Trump said that he would be willing to meet with North Korea’s Kim Jong Un “under the right circumstances,” adding the somewhat bizarre comment that he would be “honored” to do so. What he meant by that pronouncement was anyone’s guess and it may be assumed that considerable guessing is going on in Pyongyang as well as here on Capitol Hill and, very likely, within the Trump administration.  Possibly, intended as something of an olive branch, or twig, it may not have much effect in reducing the tensions reflected in recent statements.

Trump did not define the “right circumstances” but, speaking at the United Nations three days before, Secretary of State Tillerson had stated that “North Korea must take concrete steps to reduce the threat that its illegal weapons programs pose to the United States and our allies before we can even consider talks.” Tillerson also reiterated that the era of “strategic patience” is over and the United States was prepared to take military action against North Korea if economic pressures were not sufficient:

Diplomatic and financial levers of power will be backed up by a willingness to counteract North Korean aggression with military action if necessary. We much prefer a negotiated solution to this problem. But we are committed to defending ourselves and our allies against North Korean aggression.

Tillerson, however, did not indicate what specific event or circumstance would trigger military action. Trump himself, on a Face the Nation interview broadcast the day before, stated that he would be not happy if North Korea conducted a further nuclear test, and expressly declined to rule out a military response to such a test:

JOHN DICKERSON:  You say, “Not happy,” What does that mean?

PRESIDENT DONALD TRUMP: I would not be happy. If he does a nuclear test, I will not be happy. And I can tell you also, I don’t believe that the President of China, who is a very respected man, will be happy either.

JOHN DICKERSON: Not happy mean military action?

PRESIDENT DONALD TRUMP: I don’t know. I mean, we’ll see.

Two weeks before, on April 17, Press Secretary Sean Spicer had been asked about the President’s authority to take military action against North Korea and replied as follows:

Question: On North Korea, is the President prepared to act alone? Or does he feel that Congress should be somehow involved in the process if any decision that included the use of force is made?

Spicer: I think he’s going to utilize the powers under Article II of the Constitution. He—I think what you saw with—with respect to the action that he had with Syria, we did a—he made sure…that members of Congress were notified of his action in a very, very short amount of time. We’re going to continue to seek fair input on the policy overall and then make sure that they’re notified. We’ll do that.

Although there was relatively little reaction to Spicer’s comment in the media or on Capitol Hill, his reliance on Article II, and his misleading comparison to the Syrian airstrike, were quite troubling. Taken together they reflect a highly questionable view of Presidential authority and a dangerous one at that.

Article I of the Constitution places with Congress the responsibility for declaring war, while the authority of the President under Article II is that of the Commander in Chief. On occasion authority under Article II has been asserted by various Presidents to justify military action taken action without Congressional approval. The right to take such action has also been recognized–but limited–under the War Powers Resolution. The legal issues arising under Article II and the War Powers Resolution may be complex, and some past assertions of Presidential authority have been controversial, notably the air campaigns in Kosovo and Libya and, more recently, the very Syrian airstrike cited by Spicer. There is, however, no precedent that would support the President’s undertaking military action against North Korea without Congressional action short of the threat of an attack or imminent attack. Unlike any previous exercise of Article II authority, military action against North Korea could immediately precipitate what Trump had accurately described as a “major, major conflict.”

Blog No. 138 remarked on the lack of attention given to the issue of Congressional authorization in the media:

One subject that has received surprisingly little or no attention from the media is what authority from Congress the Trump administration must or should obtain before launching a preventive attack against North Korea, and whether Congress would provide such authority.  Even the Syrian attack was criticized by some in Congress for having been undertaken without Congressional authority, but given the limited nature of the raid, the criticism was muted. An attack on North Korea, however, would carry the potential for grave consequences and would be quite another matter. Donald Trump would detest giving up any element of surprise, but surely considerations both legal and political would seem to demand that Congress be brought on board before such a momentous step is taken.

There is wide agreement that the threat of an imminent launch of a ballistic missile with a nuclear warhead, would justify a preemptive strike without Congressional approval. Many, however, will argue that it is too dangerous to wait for such a climactic moment and that a preemptive strike without congressional authorization may be necessary at a much earlier point, perhaps on the occasion of a further nuclear test or missile test. But there are not only legal obstacles to such a strike, but grave pragmatic and moral problems to consider. A preemptive strike might erase a threat to the safety of the continental United States, but it would not destroy the military capability of North Korea and its ability to inflict devastating injury on South Korea, and the American troops stationed there.

Nicholas Kristof provided a gripping account of such a scenario in a New York Times column, “The North Korea-Trump Nightmare.” Kristof noted that North Korea “has the world’s fourth- largest army (soldiers are drafted for up to 12 years) with 21,000 artillery pieces, many of them aimed at Seoul. It also has thousands of tons of chemical weapons, and missiles that can reach Tokyo.” One can hardy imagine that, if a preemptive attack precipitated a frontal attack on South Korea, the United States could stand aside and let the parties fight it out.   And the fight would indeed be a “major, major conflict.” Kristof cited an estimate by Gen. Gary Luck, a former commander of American forces in South Korea, that “a new Korean war could cause one million casualties and $1 trillion in damage.”

Yet Kristof did not mention the question of Congressional authorization, and the rest of the media as well have generally continued to ignore the issue. One notable exception was a January 20, Newsweek essay by Jennifer Daskal, “Does Trump Need Congressional Authority to Attack North Korea?” Daskal concluded that such authority is indeed required.  After pointing out the important differences between the Syrian air strike and an attack on North Korea, she observed:

[T]here is a reason that the Founding Fathers gave Congress the war-declaring powers and the executive branch the war-making power. They recognized that the extraordinary decision to engage in offensive uses of force in other nations—and potentially engage the nation in an extended war—is precisely the kind of decision that requires not just consultation but approval by more than just a single man (or woman).

A similar conclusion was reached by John Nichols in the Nation on April 28: “Trump Has Zero Authority to Order Military Action Against North Korea.”  Nichols cited comments by Jerrold Nadler, a senior member of the House Judiciary Committee:

“The President should remember that, in the absence of an imminent threat of a North Korean attack on the United States or on US forces, he has zero legal authority to order military action without prior Congressional authorization.”  Any such order would clearly and unequivocally be illegal and unconstitutional.”

Nadler is an outspoken liberal and a partisan Democrat, but on this point his words seem apt.  They should at the very least prompt thorough consideration of the issue.

Nevertheless, there seems to be little appetite on Capitol Hill for pressing the issue. On April 26, President Trump took the unusual step of providing closed briefings to the entire Congress. Members of the House were briefed on Capitol Hill, but Senators were brought to the White House rather dramatically in buses. Despite the showmanship, for which Trump is well known, it is not clear that the briefings served any substantive purpose. A New York Times report of the meeting was headlined “Trump administration talks tough on North Korea but frustrated lawmakers want details” and included the following:

Rep. Eliot L. Engel (N.Y.), the top Democrat on the House Foreign Affairs Committee, emphasized, however, that there was no talk from the administration about a preemptive strike on North Korea.

Among the options the administration is considering are additional economic sanctions on the North and attempts to further isolate the Kim regime in the international community. The Pentagon also is developing military options, officials said, after having already directed the USS Car Vinson aircraft carrier strike group toward the peninsula in a show of force that has drawn rebukes from Pyongyang.

Some may find it reassuring that there was no talk of a preemptive strike at the briefings, and that may indeed have convinced legislators that it would be premature to take up the nettlesome issue of a Congressional authorization. On the other hand, the situation is highly volatile and the administration has by no means ruled out a preemptive strike. If the administration should conclude that such a strike is warranted, it might well make the decision and act on it with little advance notice, just as it did in the case of the Syrian airstrike. As Jennifer Daskal wrote, “I don’t hold out an enormous amount of hope that this administration will go to Congress without Congress first demanding it.” A Congress that is alert to its Constitutional responsibilities would not be content to sit back and wait to see what happens.