The OLC argues that the presidential order, issued without authorization by or consultation with Congress, was nevertheless lawful because the president “had reasonably determined that the use of force would be in the national interest and that the anticipated hostilities would not rise to the level of a war in the constitutional sense.”
.. Kaine describes as “ludicrous” the principle that presidents “can magically assert ‘national interest’ and redefine war to exclude missile attacks and thereby bypass Congress.”
The OLC’s capacious definition of actions in the “national interest” encompasses
- “protection of U.S. persons and property,”
- “assistance to allies,”
- “support for the United Nations,”
- “promoting regional stability,”
- prevention of a “humanitarian catastrophe,” and
- “deterrence of the use and proliferation of chemical weapons.”
.. Kim Jong Un committed himself only to a process — “to work toward” the goal of “complete denuclearization of the Korean Peninsula” — and processes can be interminable (e.g., the Middle East “peace process”). Furthermore, North Korea has espoused this goal for over three decades.
.. And that the achievement was related to the U.S. policy of “maximum pressure,” including the threat, made vivid by deployments of impressive U.S. military assets, of the use of force by the president, who, like many predecessors, feels free to act without involving Congress.
.. The threat of military force by an unconstrained president was underscored for Kim shortly before the Singapore meeting, when Sen. Lindsey Graham (R-S.C.), a confidant of this president, said of North Korea, “If they play Trump, we’re going to have a war.” He said “denuclearization” of North Korea is “non-negotiable,” and that a North Korean nuclear capability to strike America “ensures their demise”: “If [the president] has to pick between millions of people dying in America and millions of people dying over there, he’s going to pick millions of people dying over there.”
Note the senator’s clear premise: It is for the president to “pick” between war involving millions of deaths, and peace.
.. There can be “substantial” deployments (e.g., two years enforcing a no-fly zone, and 20,000 ground troops, in Bosnia) and engagements more violent than April’s Syria episode (e.g., the U.S.-led 2011 air campaign in Libya lasting more than a week and involving more than 600 missiles and precision-guided munitions) without “war in the constitutional sense.”