Can US Attack North Korea and Claim 'Self Defense'? Congress Cannot Stop Trump from Launching a Nuclear First-strike
August 11, 2017
Jason Ditz / AntiWar.com & Dan Lamothe / The Washington Post
The Congressional Research Service states the president "does not need the concurrence of either his military advisors or the US Congress to order the launch of nuclear weapons" [and] "neither the military nor Congress can overrule these orders." Under the War Powers Act, the president need not seek congressional approval until 60 days after the start of a war. Attempts to stop a nuclear attack order until Congress declares war is unlikely to pass with Republicans controlling both chambers of Congress.
Can US Attack North Korea and Claim 'Self Defense'?
Officials Are Already Trying to Build Legal Justification
Jason Ditz / AntiWar.com
(August 10, 2017) -- In the course of trying to structure the narrative around soaring tensions with North Korea, the Trump Administration has made major efforts to play up North Korea as an imminent threat, and the possibility that North Korea might attack as a realistic possibility.
And yet, realistically, most analysts agree that if a war does happen, it would be the US attacking North Korea, and not the other way around. This grim possibility necessarily comes with a question: can the US, having attacked North Korea and started a calamitous war, claim it was done in "self defense"?
Obviously they can, and would, try to do so. Some officials are already try to build a legal case that North Korea is a special case and that US military action would be justified, which only adds to concerns that a US attack might be forthcoming.
Making such a claim credible, however, is another matter. Throughout the past half a year of rhetoric, the US has been threatening North Korea far more than North Korea has been threatening the US. A third party observer would have little choice but to conclude that, while plainly both sides share blame for the worsening tensions, the US has broadly been the instigator of this row.
It would be a case of dramatic revisionism for the Trump Administration to even claim otherwise. The administration has been very open about the idea that their consistent threats to North Korea are trying to force a policy change, and attacking North Korea based purely on their retaliatory capabilities, despite being the exact nature of the threats, wouldn't meet legal standards.
Some legal experts are warning that since North Korea is not an imminent threat, that is to say there is no reason to believe North Korea is about to attack the US, there exists no legal justification for preemptive action at all. Even if there were, the experts note it would need to be proportional, which doesn't exactly fit with US officials threatening the "destruction" of not only North Korea, but its population.
Pushes for diplomacy have fallen on deaf ears, with Trump Administration officials insisting North Korea only understands threats and violence. Yet putting that theory into practice with a military attack almost certainly positions the US as aggressor, and risks major diplomatic fallout, on top of the calamitous death toll of the conflict itself.
Mattis Threatens End of North Korea,
'Destruction Of Its People'
Demands North Korea Immediately 'Stop Isolating Itself'
Jason Ditz / AntiWar.com
(August 9, 2017) -- Continuing months of war rhetoric, Defense Secretary James Mattis today warned North Korea risks a course of action that "would lead to the end of its regime and the destruction of its people." He insisted North Korea needs to immediately "stand down."
This comes in the context of President Trump yesterday threatening "fire and fury unlike the world has ever seen" against North Korea for its behavior. Trump followed that up today insisting America's nuclear weapons are better than ever, and that they are the "most powerful nation in the world" and always will be no matter what.
Mattis, for his part, accused North Korea of being to blame for everything, demanding that the state "stop isolating itself," as US officials continue to impose new sanctions and threaten a massive war against them.
North Korean officials have downplayed the situation, though their state media has suggested they are developing a plan that would involving attacking the US island of Guam, and raising the possibility of a "preemptive strike" on the US if they believe an attack is imminent.
The US, of course, has constantly threatened their own preemptive strikes against North Korea for years now, and those threats have only grown. This inevitably raises concerns that one side or the other is going to blink first and jump headlong into a calamitous war.
If Trump Wants a Nuclear Attack against North Korea,
His Military Advisers Have Few Other Options
Dan Lamothe / The Washington Post
(August 10, 2017) -- The dueling threats issued by President Trump and the North Korean military have prompted questions about US procedures to launch a preemptive nuclear attack. The answer is stark: If the president wants to strike, his senior military advisers have few options but to carry it out or resign.
The arrangement has existed for decades, but is salient after Trump warned Tuesday that future threats by North Korea will be "met with fire and fury and frankly power, the likes of which this world has never seen before."
Pyongyang responded by saying it is considering a preemptive missile strike against Guam, and Trump doubled down on his remarks Thursday by refusing to take a US preemptive strike off the table and suggesting his comments might not have been tough enough.
"I don't talk about it," Trump said of a potential preemptive strike. "We'll see what happens."
Administration officials, including Defense Secretary Jim Mattis and Secretary of State Rex Tillerson, have sought to ease the tension, while at the time same time warning North Korea that if it carries out an attack, it will be met with a crushing response. But they also have underscored that it is Trump's prerogative to use whatever rhetoric he believes is appropriate as commander in chief.
"I was not elected. The American people elected the president," Mattis told reporters traveling with him Wednesday to the West Coast. "The rhetoric is up to the president."
The "fire and fury" controversy has renewed questions among critics about whether Trump has the appropriate temperament to control the US nuclear arsenal. It also follows a Defense Intelligence Agency assessment, first reported Tuesday, that North Korea has successfully produced a miniaturized nuclear warhead that can fit inside its missiles.
During his campaign, Trump promised that he would "do everything in my power never to be in a position where we will have to use nuclear power." But he also repeatedly declined to say whether he would use nuclear weapons first in a conflict. On Thursday, he said he would like to "de-nuke the world," but that until other countries get rid of their nuclear weapons, "we will be the most powerful nuclear nation in the world, by far."
A December 2016 assessment by the Congressional Research Service stated that the president "does not need the concurrence of either his military advisors or the US Congress to order the launch of nuclear weapons." Additionally, the assessment said, "neither the military nor Congress can overrule these orders."
The reason is simple: The system is set up for the United States to launch an attack within minutes, so that if the United States is under a nuclear attack, it can respond almost instantly, said Bruce Blair, a former nuclear watch officer.
Trump would presumably meet with Mattis, White House Chief of Staff John F. Kelly, Joint Chiefs of Staff Chairman Gen. Joseph F. Dunford Jr. and Army Lt. Gen. H.R. McMaster, the White House national security adviser, before launching a preemptive attack, but it would "really be uncharted territory" if they sought to stall or slow down an order from the president, Blair said.
Under the existing War Powers Act of 1973, the president also is not required to seek congressional approval for any military action until 60 days after the start of a war. Two lawmakers, Rep. Ted Lieu (D-Calif.) and Sen. Edward J. Markey (D-Mass.), sought to stop the president from launching a first-strike nuclear attack until Congress declares war, but the effort hasn't gone anywhere and is unlikely to with Republicans controlling both chambers of Congress.
Jeffrey Lewis, an expert on nuclear matters at the Middlebury Institute of International Studies, said that he has mixed feelings about the legislation proposed, but "it would be better than what we have now." Trump, he said, is a "walking, one-man campaign for ending nuclear deterrence," the long-held US policy in which the country maintains a robust nuclear arsenal to dissuade other countries from launching a nuclear attack.
But Lewis argued it also would be irresponsible to give any president control of nuclear weapons, but then create a system under which they cannot be used. It would be better, Lewis said, to maintain a small number of nuclear weapons to be used only if attacked.
Steven F. Hayward, a conservative policy scholar, said that if Trump's senior military advisers stood united against carrying out a preemptive nuclear strike, the "real remedy would be resignation." Hypothetically, doing so might trigger impeachment proceedings, Hayward said, but it isn't clear whether it would be quick enough to stop the president from launching an attack.
"It could happen," Hayward said. "It would be pretty dramatic and it would be very unclear what would happen, but it could happen. We're really in uncharted waters here."
Bruce Ackerman, a professor of law and political science at Yale University, said that the principle of civilian control of the military also looms large -- "even when the civilian in control is as unpredictable and belligerent as President Trump." Latin American nations have modeled their constitutions along American lines, and their experiences suggest that terrible consequences follow when generals defy their presidents, even under compelling circumstances.
"Worse yet, once the principle is violated, it becomes a precedent for future generals to take the law into their own hands," Ackerman said. "We cannot allow this dynamic to take hold here. If Trump's team can't convince him, they should obey the orders of their commander in chief."
Dan Lamothe covers national security for The Washington Post and anchors its military blog, Checkpoint.
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