Several weeks before President Donald Trump announced that John Bolton would soon become his new national security adviser, Bolton wrote a peculiar op-ed for the Wall Street Journal titled, “The Legal Case for Striking North Korea First.”
What made Bolton’s column odd was not his belligerence — he’s always been the embodiment of America’s violent id in human/mustache form — but rather his invocation of “international law.” According to Bolton, it is now legal for the U.S. to attack North Korea.
It is generally accepted that states may engage in preemptive war if they face a so-called imminent threat, under a classic formulation articulated by former U.S. Secretary of State Daniel Webster in 1837. Webster wrote that a pre-emptive attack is valid only if the “necessity of self-defense” is “instant, overwhelming, leaving no choice of means, and no moment of deliberation.” This is a high threshold, which makes sense given that Webster was not supporting a pre-emptive war by the U.S., but arguing that it was bogus for British soldiers to claim they had been engaging in legitimate self-defense when they entered U.S. territory from Canada.
But Bolton has spent his entire career expressing his deep contempt for the entire concept of international law. For Bolton, it’s a meaningless “theological exercise” utilized by “the academic Left” to prevent the U.S. from defending itself. (He does allow that international customs may have their place in establishing “navigation protocols” for “seafaring states.”)
Moreover, Bolton obviously doesn’t mean what he says in his op-ed. The “threat” part of the imminent threat to the U.S., he writes, would be North Korea possessing the capacity to strike America with nuclear weapons via intercontinental ballistic missiles. The “imminent” part is that they may have soon have this capacity. So it’s fine for us to obliterate North Korea right now.
In other words, Bolton is not arguing that North Korea is in fact about to attack us. Rather, he contends that it is legal for a country to attack another if the second country may soon possess the ability to attack the former with nuclear weapons. But this would obviously mean that it’s legitimate for Kim Jong Un to attack the nuclear-armed U.S., particularly after Trump threatened to “totally destroy” North Korea at the United Nations in September. Indeed, by Bolton’s standard, it would also be okay for any country on earth to immediately nuke the U.S.
So, if Bolton’s rhetoric is not aimed at the U.N., who is it aimed at?
The likely answer is: Congress — plus Bolton’s potential rivals within the executive branch.
To understand this, we must look back at American history in general, and the history of Bolton’s faction of the far right in particular.
Article I, Section 8 of the Constitution states that “Congress shall have Power … To declare War.”
James Madison, the Constitution’s main architect, explained that the U.S. must maintain “a rigid adherence” to “the fundamental doctrine of the Constitution, that the power to declare war including the power of judging of the causes of war is fully and exclusively vested in the legislature.”
Why? Because, said Madison, the history of human beings shows conclusively that “the executive is the department of power most distinguished by its propensity to war: hence it is the practice of all states, in proportion as they are free, to disarm this propensity of its influence.”
Abraham Lincoln later endorsed this perspective, writing that if Americans “allow the President to invade a neighboring nation, whenever he shall deem it necessary to repel an invasion,” this means also allowing the president to do so “whenever he may choose to say he deems it necessary for such purpose” – which therefore permits the executive “to make war at pleasure.” For Lincoln, it was obvious why America’s Founding Fathers had designed the Constitution to prevent this: “Kings had always been involving and impoverishing their people in wars. … No one man should hold the power of bringing this oppression upon us.”
The Constitution did, to some degree, bind presidents for 150 years. The War of 1812, the Mexican-American War, the Spanish-American War, World War I, and World War II were all formally declared by Congress.
But after World War II, the executive branch staged a breakout. President Harry Truman called the Korean War, which began in 1950, a “police action,” and sent hundreds of thousands of U.S. troops to Korea without any kind of formal approval from Congress. During this police action, the U.S. used more bombs than it had in the Pacific theater during all of World War II, and killed perhaps one-fifth of the population of North Korea.
Then came the Vietnam War, the main phase of which did in fact begin with approval from Congress. While legislators did not pass a declaration of war, precisely, the 1964 Gulf of Tonkin Resolution did authorize President Lyndon Johnson to “take all necessary measures to repel any armed attack against the forces of the United States and to prevent further aggression.”
That changed in 1971, when Congress repealed the resolution, but President Richard Nixon argued that he had the Constitutional power to continue to prosecute the war anyway.
This led to the passage of the War Powers Act in 1973, which established clear timetables on the presidential use of force. According to the act, the clock starts running when “military forces are engaged, or there exists an imminent threat that such forces will become engaged, in hostilities.” Starting then, the president must report to Congress the rationale for the use of the military within 48 hours. If Congress does not authorize the hostilities within the next 60 days, the president must terminate the military’s involvement within another 30 days.
This was clearly a step back from the intent of the Constitution, which does not authorize the executive branch to start wars on its own — even if they are only three months long. Nevertheless, it was one of the few significant assertions of congressional power in living memory and was passed despite Nixon’s veto.
Presidents Ronald Reagan, George H.W. Bush, and Bill Clinton then merrily started small wars with little congressional opposition (although some members of the House of Representatives unsuccessfully sued Clinton for violating the restrictions of the War Powers Act in his bombing of Kosovo). Bush did seek and receive approval from Congress for a large-scale conflict, the 1991 Gulf War.
Then came the presidency of George W. Bush. His vice president, Dick Cheney, was a leader of the hardest faction of the American hard right, and brought with him people like Bolton, who became Bush’s undersecretary of state for arms control.
This wing of the GOP had long hated the idea that the Constitution means what it says about war, and saw 9/11 as a golden opportunity to set things right.
Bolton wrote in his 2007 memoir that the War Powers Act was an “overreaction.” As secretary of defense in 1990, Cheney had claimed that the elder Bush could go to war in Iraq without congressional action, and even believed the president could do so if Congress had expressly voted against giving him authority. Post-9/11, the Cheneyites adamantly argued that, if needed, the younger Bush could attack a country like Iraq solely on his own authority as president, without asking the legislative branch for permission.
Their legal case relied partly on a childish attempt at linguistic chicanery.
It’s long been universally accepted that presidents can in fact act without Congress in the face of a genuine imminent threat to the U.S.; it could hardly be otherwise in an age of nuclear weapons. When running for president in 2007, Barack Obama stated that the executive branch may “unilaterally authorize a military attack” to stop an “imminent threat to the nation.” Joe Biden, then also campaigning for the presidency, said the same thing: that the president may use force on his or her own authority in response to “the imminent threat of attack.”
The Bush administration therefore set about radically expanding the definition of the word “imminent.” Every few years presidential administrations issue something called a “National Security Strategy,” which is just what it sounds like. Bush’s 2002 National Security Strategy included a section titled “Prevent Our Enemies from Threatening Us, Our Allies, and Our Friends with Weapons of Mass Destruction.” It included this passage:
For centuries, international law recognized that nations need not suffer an attack before they can lawfully take action to defend themselves against forces that present an imminent danger of attack. Legal scholars and international jurists often conditioned the legitimacy of preemption on the existence of an imminent threat — most often a visible mobilization of armies, navies, and air forces preparing to attack.
We must adapt the concept of imminent threat to the capabilities and objectives of today’s adversaries. …
The United States has long maintained the option of preemptive actions to counter a sufficient threat to our national security. The greater the threat, the greater is the risk of inaction — and the more compelling the case for taking anticipatory action to defend ourselves, even if uncertainty remains as to the time and place of the enemy’s attack.
This was essentially an announcement that the president of the United States could start any war at any time. (Other countries’ leaders aren’t allowed to do this, however: The 2002 NSS piously emphasized that nations should not “use preemption as a pretext for aggression.”)
In the end, Bush did decide to seek congressional approval to invade Iraq, and received it in October 2002.
But as Bolton’s Wall Street Journal op-ed demonstrates, he still feels exactly the same today. In language strikingly reminiscent of the 2002 NSS, Bolton claims, “Necessity in the nuclear and ballistic-missile age is simply different than in the age of steam. What was once remote is now, as a practical matter, near; what was previously time-consuming to deliver can now arrive in minutes.”
By classifying North Korea as an imminent threat — as of right now — Bolton was not concerned with the U.N. and namby-pamby international law. Rather, he was announcing that Trump has no need get any authorization from Congress to start a war. Indeed, even Congress’s few weak attempts to rein Trump in on North Korea generally give the president explicit power to use force in the face of an “imminent threat.”
Moreover, Bolton is a wily enough operator that he surely understands the usefulness of this stance as a negotiating position, should he encounter opposition within the Trump administration.
For decades, presidents have generally relied on the legal opinions of the Office of Legal Counsel at the Justice Department, which is sometimes called the executive branch’s supreme court. What would happen if the OLC told Trump that he could not legally attack North Korea?
Thanks to Obama, we already know the answer. In 2011, the OLC informed him that U.S. involvement in the war on Libya had to be terminated. But Obama ignored the OLC, and the White House simply searched for other executive branch lawyers who’d give him a piece of paper telling him what he was doing was perfectly legal.
If Bolton wants war with North Korea and Trump encounters similar resistance from the OLC, Bolton will surely be prepared to find a lawyer somewhere to make precisely the argument Bolton did in his column.
Congress and all of us need to start keeping an extremely close eye on the language used by Bolton and the Trump administration. Their words are potentially the difference between life and death for millions. And as Lincoln said, a position like Bolton’s “destroys” the constitutional framework of the Founding Fathers, “and places our President where kings have always stood.”