Left to right: retired Brig. Gen. Rich Gross, Judge James Baker and Brian Egan, former legal adviser to the National Security Council
After months of provocative behavior from leaders of the United States and North Korea – including talk of a pre-emptive “bloody nose” strike and who has the bigger nuclear button – the ABA Standing Committee on Law and National Security hosted a luncheon featuring a discussion on “The Use of Force in North Korea: The Legal Process.”
Judge James Baker, committee chair and a former legal adviser to the National Security Council, moderated the discussion on Tuesday at the Army Navy Club in Washington, D.C. Panelists included Brian Egan, partner with Steptoe & Johnson and a former legal adviser to the National Security Council, and retired Brig. Gen. Rich Gross, former legal counsel to the Chairman of the Joint Chiefs of Staff.
Just prior to a North-South Korea summit that will set the tone for a proposed meeting between North Korean leader Kim Jong Un and President Donald Trump, the discussion touched on constitutional and international legal questions presented by any military options launched by the United States and what actions should be considered, including the potential use of nuclear weapons.
First, what is the legal process related to use of force by the United States against another nation?
Under the Constitution, decisions about sending American troops into battle are divided between Congress and the president, with Congress deciding whether to declare war and the president commanding troops. But presidents from both parties have expanded that authority since World War II, carrying out military operations without congressional approval.
The panelists spelled out the multi-layered review process for military operation proposals, and commented that politics play no role in discussions at this level. When the president decides to authorize the use of force, the order and any conditions placed on it must be confirmed, which means a Tweet about a “bloody nose strike” would not necessarily be acted upon. “What does that (order) mean?” Gross asked. “Does that mean a limited strike? The military needs that guidance.”
According to Egan, an important legal question is whether Congress has authorized use of force and against which target or targets – as certain actions trigger different legal parameters and considerations.
The use of combined or joint forces with other nations, as was the case in the Iraq war, can change the calculation. In the case of North Korea, would the United States consult with its allies on a legal basis for an attack, and what if the allies did not agree with U.S. objectives? Gross said there is extensive consultation with U.S. allies, particularly at the State Department level, and the views of allies or coalition partners don’t dictate our actions, but inform them.
“Often the discussions are very important in a political and policy sense, because if a critical partner in a military operation says, ‘we don’t think this is lawful, we’re not going to participate,’ then at the civilian-political level they have to step back and consider how that’s going to affect the (operation),” Gross said. He noted the large number of American troops stationed on the Korean peninsula and in other countries threatened by North Korea, such as Japan, and how that impacts U.S. decision-making. Egan agreed, noting that it would be very unusual for allies not to support U.S. actions to defend their sovereignty.
Baker then asked if the possible use of nuclear weapons changes the legal analysis of use of force? Gross agreed that “it certainly changes the stakes,” adding that if any presidential order is deemed unlawful, it’s the duty of military leaders to find legal ways to accomplish the objective. However, he said there also is a clear duty to disobey an unlawful order. The Secretary of Defense would be the one to tell the president, “we’re not going to do that,” and push back, Gross said.
“Mechanisms have been set up to avoid requiring civilians to take unlawful action,” Egan said, adding that when it comes to use of force, there are questions that are not cut and dried, lawful versus unlawful. He said it’s part of the job of lawyers to flag these issues and force the conversation.