Are we at war with North Korea?

The North Koreans, citing presidential tweets, say that the two countries are at war, and North Korea may shoot down U.S. aircraft. The White House press secretary says we are not.

These comments raise a bunch of legal and historical issues. First, only Congress can "declare war." But lawmakers can also authorize major military operations without calling them "war." And presidents can attack and retaliate with relative impunity.

Second, in fact, the Korean conflict was suspended by an armistice, not a peace treaty. And that agreement has numerous provisions for monitoring the cessation of hostilities and no clear provision for resuming the fighting.

62. The Articles and Paragraphs of this Armistice Agreement shall remain in effect until expressly superseded either by mutually acceptable amendments and additions or by provision in an appropriate agreement for a peaceful settlement at a political level between both sides.

Third, it's worth recalling that the last time North Korea shot down an American military aircraft, killing 31, President Nixon chose not to respond.

The main point I want to make, however, is that historically the United States has always claimed that its wars were defensive, in response to attacks by others, and that Congress was merely declaring that a war exists because of those attacks. North Korea seems to be doing the same.

Here are  some excerpts from previous declarations of war:

1812: That war be and is hereby declared to exist between the United Kingdom of Great Britain and Ireland and the dependencies thereof, and the United States of America and their territories;

1846: Whereas, by the act of the Republic of Mexico, a state of war exists between that Government and the United States

1898: That war be, and the same is hereby, declared to exist, and has existed since the twenty-first day of April, A.D. 1898, including said day, between the United States of America and the Kingdom of Spain.

1917: That the state of war between the United States and the Imperial German Government, which has thus been thrust upon the United States, is hereby formally declared;

1941: That the state of war between the United States and the Imperial Government of Japan which has thus been thrust upon the United States is hereby formally declared;

Shakespeare and Trump

Is it possible that Donald Trump has read or seen Shakespeare's Henry IV, part 2? In it, the dying king advises Prince Hal to "busy giddy minds with foreign quarrels" and thus distract the people from their domestic complaints. Readers here may note that I titled this blog with that phrase, because I want to focus on the domestic factors affecting foreign policy.

While President Trump has numerous foreign quarrels and domestic complaints to deal with, he wants to turn attention away from all of them, and toward protesting athletes.  As we sw during the 2016 campaign, Trump is the Duke of Distraction, making new outrageous statements whenever the issues he should be confronting cause him problems.

As Jim Fallows documents, no other president responded to protests by mostly black athletes. It's a shame that Trump can't bring himself to be presidential.

the Iran game

It's clear that President Trump wants to scrap the Iran nuclear deal, formerly known as JCPOA. By mid-October, he is supposed to tell Congress whether or not Iran is complying with the agreement. Despite IAEA findings of technical compliance, Trump and many in his administration view the agreement as flawed and Iranian behavior outside the nuclear provisions as unacceptable.

So what will he do? There's a good analysis of the options in a new CRS report. 
Rather than claiming violations which other countries will not agree with, I believe he will take the easier path that still preserves his options down the road. Instead of certifying anything, compliance or noncompliance, Trump may just refuse to send any report to Congress. That would allow Congress to vote to re-impose sanctions lifted as part of the deal.

In fact, Congress could easily do that, because the law negotiated with the Obama administration allows prompt floor action in both House and Senate, no amendments, and time-limited debate. Opponents in the Senate can't filibuster or force a supermajority vote. This approach shares responsibility for such a major decision. [I personally believe continued adherence to JCPOA is in our security interest, but I bet the White House takes this path.]

hole of government

The President is not just commander in chief of the armed forces; he is also the chief executive of the rest of the federal government. That whole of government has been enormously busy helping the people and communities hurt by hurricane Harvey. FEMA is there,of course, but also people from EPA and Energy and Health and Human Services and Interior and Transportation and the FCC. The Post had a rundown of the many federal agencies already on the job.

These are not lazy bureaucrats. They are public servants, many sleeping in their offices so they can work longer hours.

And how does President Donald Trump treat these dedicated employees? With a pay cut! Trump announced that, instead of the 1.9% pay hike current law provides for federal civilian workers in the coming fiscal year, he is using his authority to reduce that figure to 1.4%.  Of course, he will allow the full 2.1% boost for the military, but not for the civilians. Does he not know, or just not care?