No, the President Cannot (Lawfully) Strike North Korea Without Congressional Approval (plus a few words on the U.N. Charter question)
// 8/10/17 //
A CNN story on Wednesday asks: "Can the President launch a military strike on his own [on North Korea]?"--i.e., without further congressional authorization? The piece addresses (at least) two distinct variations on this question: Whether the President has the legal authority to act "unilaterally," and whether Congress has the practical ability to stop him if he decides he does have such authority.
As to the latter question, Jeremy Herb writes that "in reality [Congress] has little ability to stop the President if he's determined to strike North Korea." I agree with that assessment, but only in the sense that, at least for now, there are plainly not two-thirds majorities in both houses to enact a law limiting, conditioning or prohibiting the President from using force against Korea. (On the other hand, I disagree with Jen Daskal, who's quoted in the story saying that such statutory restrictions would be unprecedented--indeed, I spent the better part of a long article canvassing just such examples, many of them in recent decades.)
But the important question is the first one, which is also addressed in a recent post by my former OLC colleague Zach Price: If, as expected, Congress does not enact any further authorizing or prohibitory legislation, would it be lawful under the U.S. Constitution for Trump to use force, including nuclear weapons, as a "first strike" against North Korea, in an effort to degrade that nation's nuclear capabilities, absent evidence that Korea has already decided to strike the United States and is going to do so with no time for legislative deliberation?
Herb writes that in the absence of a new statutory ban, "the Trump administration would have authority to act for at least 60 days as it if determines the US is under threat, according to national security and legal analysts."
Well, no, it wouldn't. The only analysts Herb cites who even suggest any such presidential prerogative are two former congressional aides, Roger Zakheim ("Both in terms of constitutional law and in practice, for the President to take military action there's a lot of precedent if the perceived act of belligerence puts the national security of the United States at risk") and Mieke Eoyang ("In this situation, the President's powers are at its zenith."). Steve Vladeck is more equivocal (invoking a "gray area"); and Alaska Republican Senator Dan Sullivan, to his credit, told Herb that congressional approval is required.
I'm with Senator Sullivan, as reflected in my quotation in the CNN piece.
To be sure, a couple of Presidents--Harry Truman and George W. Bush (or Bush's OLC, anyway)--have asserted a much broader presidential authority to, in effect, take the United States into full-scale war. And Truman, of course, did so--in Korea. As I explain in three earlier posts, however, that is not the dominant or well-established view, even of other modern Presidents; it does not reflect modern practice apart from Korea (and possibly Kosovo and President Trump's recent strikes in Syria); and, for what it's worth, I think it must be wrong. In those posts, I stress that a unilateral use of force is especially unconstitutional if the President's action puts the United States in breach of its treaty obligations--and a strike here would almost certainly violate Article 2(4) of the U.N. Charter (on which more below). But even if one think that the Charter would permit the strike, or disagrees with me about whether the President can unilaterally breach the Charter, I think most (but not all) scholars, Executive and congressional lawyers, and Presidents, would insist that congressional authorization is necessary in order to use force, as here, in a manner that threatens to lead to the sort of conflagration we can expect in this case--which would surely be, in the words of former OLC head Walter Dellinger, "'war' in the constitutional sense." No one individual, let alone the one presently in the West Wing, should be afforded the unilateral power to so radically transform the world.
Moreover, there's really no good reason for Congress not to deliberate upon the matter and to make its views known about a question of this magnitude and consequence. If not this, what? If not now, when?
I don't have time today to elaborate on the constitutional question here, but my earlier posts will give you a flavor of my views, which correspond, for the most part, to those of the Clinton and Obama Administrations in which I worked.
Finally, a few thoughts on the question of whether such a "first strike" by the U.S. would violate the Charter. Most of what you need to know, at least for starters, you can find in this Q&A by Rick Gladstone at the Times, and in this piece by Alex Potcovaru at Lawfare. I'll add only a few corrections or qualifications to what's there:
-- The Caroline incident did not involve a first strike by the British, and therefore (contra Gladstone) it's not the "origin of legality for a pre-attack strike": The rebels had already used force against Canada and had demonstrated a capability and design of doing so again.
-- It is "important" for the Trump Administration not to violate the Charter not only because (as Gladstone writes)"the United States is expected to act in accordance with international law, vital to its credibility and basic relationships with other countries," and not only (as Potcovaru writes) because "a state that consistently acts in ways deemed illegitimate may experience damage to its global relationships or censure under international law," but also because the Constitution requires it: The Charter is a treaty to which the United States is a party and therefore is the "supreme law of the land."
-- A first strike can only be permissible, at a minimum, where it is necessary to foreclose or deter the other nation from attacking, where it is reasonable to believe it will, in fact, serve that purpose, and, as Gladstone stresses (quoting Michael Schmitt), it must be tailored ("proportional") to that objective--it can't be more severe than what is necessary to achieve that end.
-- Most of the historical examples Potcovaru cites are not especially good precedents, and some aren't analogous at all to the sort of strike contemplated here. For example, the 1998 al Shifa attack, whatever its legality or wisdom, was not a first strike but instead a response to the bombings of U.S. embassies in Kenya and Tanzania. And, as Potcovaru notes, the Bush Administration in the end did not rely upon a self-defense theory for the 2003 invasion of Iraq: It claimed that the U.N. Security Council had authorized it. Israel did not acknowledge any attack on Syria in 2007, let alone suggest that it was justifiable under the Charter. As Potvacaru notes, however, the 1981 Israeli strike on the Osirik reactor--the closest analogy to what we're discussing here--was uniformly condemned as unlawful by the entire international community, including the United States. That's the closest precedent.
-- Potvacaru writes that "some nations, such as the U.S., have supported an understanding of [permissible "preventive" first use as] self-defense," "even without specific evidence of the opponent’s capacity or intent to attack." It is true that the George W. Bush Administration suggested such an aggressive view of "preventive" self-defense. But the Obama Administration was careful not to endorse any such (incorrect) understanding, as I discuss in detail in Part 3 of this post.