By George Will
Saturday, December 09, 2017
The first use of nuclear weapons occurred August 6, 1945.
The second occurred three days later. That there has not been a third is testimony
to the skill and sobriety of twelve presidents and many other people, here and
abroad. Today, however, North Korea’s nuclear bellicosity coincides with the
incontinent tweeting, rhetorical taunts, and other evidence of the frivolity
and instability of the 13th president of the nuclear era. His almost daily
descents from the previous day’s unprecedentedly bad behavior are prompting
urgent thinking about the constitutional allocation of war responsibilities,
and especially about authority to use U.S. nuclear weapons.
Last month, for the first time in 41 years, a
congressional hearing examined the Atomic Energy Act of 1946, which gives
presidents sole authority. There was serious discussion of whether a particular
presidential order for their use might not be “legal” — necessary,
proportionate. But even if, in a crisis, time permits consulting lawyers,
compliant ones will be found: President Obama’s argued that the thousands of
air strikes that killed thousands and demolished Libya’s regime did not constitute
“hostilities.”
The exigencies of crisis management in an age of ICBMs
require speed of consultations, if any, and of decisions. And the credibility
of deterrence requires that adversaries know that presidents can act in
minutes. Furthermore, the authority to employ nuclear weapons is, as was said
at the congressional hearing, “intertwined” with the authority “to take the
country to war.” So, as a practical matter, President Trump can unleash on
North Korea “fire and fury” without seeking the consent of, or even consulting,
Congress. This, even if North Korea neither has attacked nor seems about to
attack America. A long train of precedents tends to legitimate — although not
justify — practices, and this nation has engaged in many wars since it last
declared war, on June 5, 1942 (when, to satisfy wartime legalities, it did so
against Hungary, Bulgaria, and Romania). Over many decades, Congress has become
— has largely made itself — a bystander regarding war.
Senator Lindsey Graham (R., S.C.) says, “If we have to go
to war to stop this, we will.” By “this” does he mean North Korea’s possession
of nuclear weapons, which it has had for eleven years? Or ICBMs, which it is
rapidly developing? If so, Graham must think war is coming, because there is no
reason to think that North Korea’s regime will relinquish weapons it deems
essential to its single priority: survival. As Vladimir Putin says, North Korea
would rather “eat grass.” U.S. actions have taught this regime the utility,
indeed the indispensability, of such weapons. Would America have invaded Saddam
Hussein’s Iraq if he had possessed them? Would America have participated in
destroying Libya’s regime in 2011 if, soon after Saddam’s overthrow, Moammar
Qaddafi had not agreed to abandon his nuclear-weapons program?
North Korea, says Trump, is a “situation we will handle”
— “we will take care of it.” Does “we” denote deliberative and collaborative
action by the legislative and executive branches? Or is “we” the royal plural
from the man whose general approach to governance is, “I alone can fix it”?
Trump’s foreign-policy thinking (“In the old days, when you won a war, you won
a war. You kept the country”; we should “bomb the sh** out of [ISIS]“) is short
on nuance but of Metternichian subtlety compared to his thoughts on nuclear matters:
“I think, for me, nuclear is just the power, the devastation is very important
to me.”
A U.S. war of choice against North Korea would not be a
preemptive war launched to forestall an imminent attack. Rather, it would be a
preventive war supposedly justified by the fact that, given sophisticated
weapons and delivery systems, imminence might be impossible to detect. The long
war on the primitivism of terrorists has encouraged such thinking. A leaked
2011 memo from the Obama administration’s Justice Department argued that using
force to prevent an “imminent” threat “does not
require . . . clear evidence that a specific attack . . . will take place in
the immediate future.” So, regarding al-Qaeda, the memo said that because the
government might not know of all plots and thus “cannot be confident that none
is about to occur,” any leader of al-Qaeda or “associated forces” can be
lawfully targeted at any time, without specific knowledge of planned attacks.
It would be interesting to hear the president distinguish
a preventive war against North Korea from a war of aggression. The first two
counts in the indictments at the 1946 Nuremberg trials concerned waging
“aggressive war.”
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