My, how the constitutional worm turns. With chatter increasing that the Trump administration has taken under serious consideration a “bloody nose” strategy for North Korea, eighteen Senate Democrats have issued a warning to Trump. Not only is it a bad idea, a letter transmitted today to the White House declares, but Trump doesn’t have the authority to launch military attacks anyway:
A group of Democratic senators is warning President Trump that he lacks the “legal authority” to carry out a preemptive strike on North Korea, amid questions over whether the White House is considering a risky “bloody nose” attack.
In a letter to be sent to Trump on Monday, the 18 senators said they are “deeply concerned about the potential consequences of a preemptive military strike on North Korea and the risks of miscalculation and retaliation.” They emphasized that it is an “enormous gamble” to believe that such an action, even if it were modest in scope, would not provoke an escalation from dictator Kim Jong Un.
“Moreover, without congressional authority, a preventative or preemptive U.S. military strike would lack either a constitutional basis or legal authority,” the senators wrote in the letter organized by Sen. Martin Heinrich (D-N.M.), a member of the Senate Armed Services Committee.
What brought this up? Last week, somewhat lost in the shuffle of the State of the Union address, the nominee for US Ambassador to South Korea withdrew from consideration, reportedly not entirely of his own volition. The White House had gotten an “agrément” from Seoul for the nomination of Victor Cha months ago, but the Washington Post reported that differences on US strategy for North Korea — specifically over the “bloody nose” idea — moved Trump to dump Cha.
Cha immediately declared his opposition to a pre-emptive strike as a means to avoid war:
Cha had privately expressed concerns to National Security Council officials over their consideration of a limited strike on the North aimed at sending a message without sparking a wider war — a risky concept known as a “bloody nose” strategy. In an op-ed in The Washington Post shortly after the news broke, Cha made public his view that such a strike would be a huge risk to American troops and civilians living in South Korea and Japan.
“To be clear: The president would be putting at risk an American population the size of a medium-size U.S. city — Pittsburgh, say, or Cincinnati — on the assumption that a crazy and undeterrable dictator will be rationally cowed by a demonstration of U.S. kinetic power,” Cha wrote.
We have two questions at hand. One is whether a “bloody nose” strategy would work. It’s not entirely clear that the Kim regime is “crazy” in a rational/irrational sense. Their pursuit of nuclear weapons in defiance of even their patrons in Beijing is not irrational, at least not when stripped of its emotional underpinnings. The only dictator to agree to dismantle a nuclear program to improve relations with the US was Libya’s Moammar Qaddafi, who a few years later found himself impaled to death by his own people after the US bombed his military and collapsed the last cohesive government in the Mediterranean state. Go figure that the Kims might not see a hand of friendship as a reason to disarm, and might actually see the US as the less rational state.
Still, there’s no reason to assume that North Korea would know that a strike would be a “bloody nose” rather than all-out war. This is an intensely paranoid, total-war-based society that has lived for decades on a mutual trip-switch policy to avoid open conflict. The safe choice from their perspective would be to assume any strike to be the opening of full hostilities and go full tilt across the 38th Parallel with everything they have left, including missiles, artillery, tanks, and troops, launching a few missiles at America and its allies along the way. A first strike that left any capabilities untouched would see them immediately deployed in combat unless we got lucky and decapitated the political and military leadership in the first punch. Even that wouldn’t help; it would bring China into the war at that point, as they would not allow the US to set up a client state on its border.
The other question is that of authority. This is even less clear in law and in precedent. Only Congress can declare war, but the War Powers Act allows for a temporary deployment of combat forces by a president in the face of a “clear and present danger” to national security. In the case of North Korea, though, we never did declare war there, nor was a settlement reached to permanently end hostilities. That might leave the issue open for a president to take action.
But even if there is a War Powers Act/constitutional conflict, the Libya precedent is going to make it tough for the Senate Democrats to object. None of them appear to have objected when Barack Obama decided to conduct an unprovoked military attack on Qaddafi and his government, assuming the authority to do so under Samantha Power’s “responsibility to protect” the oppressed Libyan people. The people in North Korea are far more oppressed; it’s the world’s last remaining Stalinist prison state. And in this case, the technical status between our nations is not peace, to say the least, which was not the case with Libya when Obama declared all-but-war on Qaddafi and Libya.
The best answer to the “bloody nose” strategy is Libya in all instances. If Obama had that authority, then Trump has the authority to pursue a first strike. But it’s extremely likely to be a very bad idea, only the outcome in this instance could be a regional war rather than a failed state in a strategic area of the West. If pointing this out was Cha’s only issue, perhaps the White House should reconsider his nomination and get him in place as soon as possible.