Blog No. 175. John Bolton and The Prospect of War Crimes

The appointment of John Bolton as National Security Adviser drew cries of alarm and dismay from many quarters—though not from the flock of bovine Republicans on Capitol Hill. Indeed, many Republicans, including Senators Lindsey Graham, Orrin Hatch and Marco Rubio, hailed the appointment. On the other hand, concerns over Bolton were not limited to Democrats or others on the left. General Michael Hayden, a former CIA Director and Director of NSA, observed that “John Bolton, being national security adviser, will push the president and the nation on a more dangerous course when it comes to key international security issues. He’s a hawk on North Korea. He’s going to urge the president to rip off the [Iran] uranium nuclear deal. We will not be able to control where they end up.” And when that happens, Hayden said, it will push the United States “away from diplomacy, away from international consensus and more in the direction of kinetic options where the only thing left on the table that you have to play is the armed forces of the United States.”

Conservative icon George Will put it far more pointedly in a March 23 column:

Because John Bolton is five things President Trump is not — intelligent, educated, principled, articulate and experienced — and because of Bolton’s West Wing proximity to a president responsive to the most recent thought he has heard emanating from cable television or an employee, Bolton will soon be the second-most dangerous American. On April 9, he will be the first national security adviser who, upon taking up residence down the hall from the Oval Office, will be suggesting that the United States should seriously consider embarking on war crimes.

Wills’s reference to war crimes related to Bolton’s advocacy of military action against North Korea and Iran, and Will pointed out that “The first two charges against the major Nazi war criminals in the 1945-1946 Nuremberg trials concerned waging aggressive war.” Will further observed that both North Korea and Iran “have odious regimes, but neither can credibly be said to be threatening an imminent attack against the United States.”

In the case of Iran, the immediate question will be whether to terminate the Iran nuclear agreement, as Bolton urged in a January op-ed in the Wall Street Journal, “Beyond the Iran Nuclear Deal,” and as Trump has already indicated that he is inclined to do. Secretary of Defense James Mattis has testified that maintaining the agreement is in the interest of theUnited States, but his view may not prevail. If it does not,  the agreement is terminated and Iran resumes its nuclear program, the question then becomes “What now?” In his January 2018 piece, Bolton  urged only the re-imposition of sanctions, but if that proved insufficient, it seems clear that he would go further. A 2015 op-ed in the New York Times by Bolton, written three months before the Iran agreement was concluded, was titled “To Stop Iran’s Bomb, Bomb Iran.” In it, Bolton wrote: “The inescapable conclusion is that Iran will not negotiate away its nuclear program. Nor will sanctions block its building a broad and deep weapons infrastructure…An attack need not destroy all of Iran’s nuclear infrastructure, but by breaking key links in the nuclear-fuel cycle, it could set back its program by three to five years. The United States could do a thorough job of destruction…”

Our vexing problems with North Korea may present an even greater potential for the kind of preemptive military action that Bolton finds attractive. In a February op-ed in the Wall Street Journal, written a month before Trump startled the world by accepting an invitation to meet with Kim Jong Un, Bolton attempted to make “The Legal Case for Striking North Korea First.” Bolton’s piece should be read in its entirety, but its essence is captured in the following excerpt:

Pre-emption opponents argue that action is not justified because Pyongyang does not constitute an “imminent threat.” They are wrong. The threat is imminent, and the case against pre-emption rests on the misinterpretation of a standard that derives from prenuclear, pre-ballistic-missile times. Given the gaps in U.S. intelligence about North Korea, we should not wait until the very last minute. That would risk striking after the North has deliverable nuclear weapons, a much more dangerous situation.

Bolton’s legal argument is, on its face, unpersuasive. It appears to assume, without even pausing to argue the point, that if North Korea obtained deliverable nuclear weapons, use against the United States would follow. That is possible, but unlikely.  Kim Jong Un is a nasty piece of work, but there is no evidence that he is irrational. North Korea already has nuclear weapons deliverable against South Korea and Japan. But Kim knows that use of such weapons, and certainly any attempt to use them against the United States, would produce the full measure of “fire and fury” of which Trump has spoken, a result that would extinguish not only his regime but much of his country. To be sure, North Korea armed with nuclear weapons deliverable against the United States is an unattractive prospect and avoiding it is worthy of every bit of economic and diplomatic pressure at our command.  It is not, however, the same as a threat of imminent attack.

The case that Bolton attempted to make was framed in terms of international law, but a similar analysis would apply to the question of whether President Trump would have the authority to make a preemptive strike against North Korea without authorization from Congress. Although the Constitution clearly reserves to Congress the right and responsibility to declare war (or decline to declare war), neither Trump nor Congress has been disposed to pay much attention to that Congressional prerogative. Although bills have been introduced that would constrain unilateral action by the President, there appears little likelihood that they will receive a hearing, let alone be passed.

By addressing a preemptive strike solely as a legal issue, Bolton escaped the need to discuss the question of whether, as a matter of policy, such a strike would make sense. While the tenor of his argument left little doubt as to how he would answer that question, he was spared the burden of assessing the practical and moral consequences of a military strike. Many military experts have opined that there is no plausible military option to “take out” North Korea’s dispersed missile and nuclear programs. Specifically, they argue that there is no easy way for us to destroy the North’s 8,000 artillery pieces and rocket launchers which hold  Japan and South Korea hostage. Chairman of the Joint Chiefs Joseph Dunford offered the opinion last July that war with the North would entail the “loss of life unlike any we have experienced since World War II.”  Secretary of Defense Mattis has described a war with North Korea as “catastrophic.”

Bolton has not disclosed his view of those grim assessments, but even one who disagrees with them should surely not ignore or disregard them. Nor should the weighing of them be left solely to a President whose judgments in virtually every instance appear to be colored by emotion and resentment.  Bolton, as National Security Adviser, should attempt to temper those judgments and make a fair presentation of competing analyses, including those with which he may personally disagree. Whether Bolton is equipped to do so is, to say the least, open to question.

It is possible that the prospect of a military conflict with North Korea has been mitigated by the prospective meeting between Kim and Trump, but that remains very much to be seen. Little preparation has been done and it is far from clear what the United States will hope for or insist on at the meeting. Bolton, along with Mike Pompeo, the CIA Director and Secretary of State nominee, will presumably share in preparing the President, and how they do so may have a definitive impact on the outcome. Pompeo is far more hawkish than his predecessor at State, Tillerson, who often joined with Secretary Mattis to exert a restraining influence. Bolton’s skepticism of diplomacy with North Korea is well known. Not long before his appointment, Bolton expressed the view that the negotiation should be promptly terminated unless Kim comes forth with specific details of a program of denuclearization. Bolton did not address what concessions or incentives the United States should be prepared to offer in return. If Trump goes to the meeting with unrealistic expectations and demands, and, worst of all, is offended when they are not met, the Bolton “option” for military action – and its horrendous consequences – may not be far off.