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.”
John Yoo: President Can Wage War Without Congressional Declaration
There have only been five congressional declarations of war in the history of the United States, with the War of 1812 being the only one that was initiated by Congress. The other four—the Mexican War, the Spanish-American War, World War I, and World War II—were declared after it was requested by the president in response to an attack. Every war since World War II has been conducted without a formal declaration, though with alternate congressional consent—like the Gulf of Tonkin Resolution in Vietnam, or the Authorization for Use of Military Force in Iraq.
.. Critics of Fein’s strict constitutional view, like Yoo, believe that Article II, Section 2 invests the president with the power to wage war as commander-in-chief of the military. Yoo believes that the framers, far from equivocal during ratification, deliberately created the tension between the executive and legislative branches on the issue of war and did not restrict the president’s ability to initiate hostilities without a formal declaration. That declaration merely provides the legal framework for the war, Yoo said, dictating and establishing terms with the enemy, among other conditions. And Congress has the authority to test the president by withholding the funding for it.
.. “The main check is the executive and legislative branch conflict,” Yoo said, and “the power of the purse.” “I don’t know if the president has the power or resources to run a long-term war without Congress,” he added.
.. blamed Congress for “cowardice” in hiding behind the president on issues of war.
.. “I’m not accusing the executive branch of usurpation; the legislative branch just throws [their power] away,” he said.
.. Even Yoo admits that Congress has been funding an “offensive” not “defensive” military that allows the executive to wage hostilities all over the globe without formal declaration or even its own direct authorization. “Congress gives money, builds assets, with no restrictions,” he told TAC after the debate. “If you do it this way you are not politically responsible.”
North Korea Calls Trump’s Comments a ‘Declaration of War’
North Korea’s foreign minister escalated tensions with the United States on Monday, saying that President Trump’s threatening comments about the country and its leadership were “a declaration of war” and that North Korea had the right to shoot down American warplanes, even if they are not in North Korean air space.
“The whole world should clearly remember it was the U.S. who first declared war on our country,” the foreign minister, Ri Yong-ho, told reporters as he was leaving the United Nations after a week of General Assembly meetings in New York.
“Since the United States declared war on our country, we will have every right to make countermeasures, including the right to shoot down United States strategic bombers even when they are not inside the airspace border of our country.”
.. North Korea had already deemed Mr. Trump’s threat at the United Nations — to “totally destroy” North Korea if the United States were forced to defend itself or its allies — a declaration of war.
.. The North Korean leader, Kim Jong-un, said last week: “Now that Trump has denied the existence of and insulted me and my country in front of the eyes of the world and made the most ferocious declaration of a war in history that he would destroy the D.P.R.K. [Democratic People’s Republic of Korea], we will consider with seriousness exercising of a corresponding, highest level of hard-line countermeasure in history.”
The Pentagon said on Saturday that the Air Force had sent B-1B bombers and F-15C fighters over waters north of the Demilitarized Zone that separates the two Koreas, in response to what it called the North Korean government’s “reckless behavior.”
It was the farthest north “any U.S. fighter or bomber aircraft have flown off North Korea’s coast in the 21st century,” Dana W. White, the Defense Department’s chief spokeswoman, said in a statement.
Donald Trump Gets Rare Bipartisan Backing for Syria Strike
WASHINGTON—For the first time since his inauguration, Donald Trump is being treated like a conventional president.
.. “In the short run, this will clearly benefit him politically,” said Karl Rove, the top political aide to President George W. Bush. “It will cause people to look at him differently, and it will cause our adversaries to see us differently.”
.. Democrats who have stridently opposed Mr. Trump’s agenda praised the airstrikes.
Senate Minority Leader Chuck Schumer of New York called it “the right thing to do.” Sen. Dianne Feinstein of California called the military response “a limited, and I think an important strike, and it accomplished its purpose and sent a message.”
.. Large numbers of Republicans have reversed their position on congressional approval for Syrian airstrikes since then-President Barack Obama weighed attacking the country in 2013.At the time, Republicans such as then-House Speaker John Boehner insisted Mr. Obama lay out a fuller plan for action in Syria before launching airstrikes after the Assad regime carried out a suspected chemical attack in Damascus. Scores of Republicans said they would oppose an authorization for the use of military force. No vote was taken... Utah Sen. Orrin Hatch also praised Mr. Trump’s action, though in 2013 he said he had “strong reservations” about authorizing force against Syria.
.. Mr. Rove said Mr. Trump would lose any newfound political goodwill if he didn’t articulate his foreign-policy philosophy “within days.”
.. “He told us he would be the president of America, not ‘the world,’ ” Ann Coulter wrote on Twitter.
.. Sen. Rand Paul (R., Ky.) said the airstrikes are “illegal, and they’re unconstitutional.” Rep. Barbara Lee (D., Calif.), the lone member of Congress to vote against the post-9/11 authorization to use force against Afghanistan, said the airstrikes represent “a dangerous military escalation into the Syrian civil war and are without legal justification.”
.. “It makes people question: If a photo of an incident that has occurred in another nation causes the president to drop 50 or more cruise missiles, is that a real well thought-out strategy, or is this an emotional reaction?”