Three thoughts about the meaning of John Bolton

It's all on the foreign policy hawks now.

by Daniel W. Drezner

The hard-working staff here at Spoiler Alerts did not have a positive initial reaction to the news that President Trump would name John Bolton to replace H.R. McMaster as national security adviser.

One of the advantages of having a couple of days to mull over the news is to read the takes of other, really smart people on Bolton’s new job.

Now that I have digested the news, I have three thoughts:

1) Bolton will be the most powerful national security adviser Trump has had. There are conflicting accounts of how Bolton will run the National Security Council. The Washington Post’s Greg Jaffe reports that Bolton sees himself more in the Henry Kissinger imperialist mode of running the NSC. On the other hand, Axios’s Jonathan Swan suggests that Bolton will play a more restrained honest broker role: “Bolton has always admired the way Brent Scowcroft handled the interagency process during the Bush 41 Administration.”

As I’ll suggest below, this is a distinction without a difference. What really matters is that Bolton will have tremendous power over Trump’s foreign policy for three reasons. First, Trump does not know a lot about foreign policy. He’s a year into the job, and he hasn’t budged an inch down the learning curve. As Elizabeth Saunders has noted, unprepared presidents automatically give greater latitude to their subordinates.

Second, Bolton knows far more about the policymaking process than either Michael T. Flynn or McMaster. As someone who possesses genuine foreign affairs experience and has a reputation for being a bureaucratic street fighter, Bolton will be a better bureaucratic player than either of his predecessors.

Third, by the standards of the traditional NSC-State rivalry, the State Department is severely weakened. Foggy Bottom is hemorrhaging senior staff and in leadership limbo until Mike Pompeo is confirmed. Unless Bolton burns to the ground the staff he inherits (an admitted possibility) he has a serious home-field advantage.

2) It’s all on the hawks now. The idea that Bolton will act as an honest broker implies that there will be divergent points of view within the national security team. The White House turnover of the past month has homogenized its foreign policy perspectives, however. Gary Cohn is gone, and his replacement is a non-factor on foreign policy questions. Mike Pompeo is much more of a hawk than Rex Tillerson. Bolton is way more hawkish than McMaster. Jim Mattis is the most dovish member of this foreign policy team, and this is a guy who was sidelined by the Obama administration for being too hawkish on Iran.

For foreign policy hawks, this will be the best of times and the worst of times. It will be the best of times because they are running the entire foreign policy show now. There is no bureaucratic constraint, no countervailing faction, no informed president to block their moves. They have no more impediments. For decades, they have fantasized about the right ways to take out Iran, defang North Korea and checkmate China. Trump has given them the keys to the kingdom.

That’s the good news. The bad news is that none of these problems is easy. If the hawks worsen the situation, they will have no one to blame but themselves. Of course, they will blame their predecessors anyway, but you get my meaning.

3) Maybe, just maybe, Trump has found a way to signal resolve. To put it bluntly, Trump has developed a reputation for being a man of hollow words and feeble actions. This month, he blustered a ton about applying steel and aluminum tariffs widely, and then backed down and exempted an awful lot of countries with no evidence of any real concessions on their part. This past Friday, Trump threatened to veto the omnibus spending bill and shut down the government and then did no such thing. No one should take anything this White House says at face value.

If Trump’s words don’t matter, that’s a problem for his foreign policy. How can he communicate resolve on the global stage? One way is to hire new people with known brands, and the one thing Bolton has is a brand. It’s a somewhat toxic brand that renders him Senate-unconfirmable. It’s possible that he’ll run into security clearance issues. But while he’s around, he sends a clearer signal than Trump’s chicken-hawk rhetoric. As Matt Fay notes, “After this appointment, anyone who thought Donald Trump was the ‘dove’ in the 2016 election should have his or her pundit and/or analyst card revoked.”

I am under no illusions that Trump intended to do this as a way of signaling resolve. He does not possess that forethought. But that does not mean the signal hasn’t been sent. I am pessimistic that this will lead to better coercive bargaining in the near future. But at least we will all see whether this is true. Because — remember — it’s all on the hawks now.

I fear that my initial reaction will be proved correct. But I hope that I am wrong.

Legal Experts Question Whether Trump’s Syria Strike Was Constitutional

By Alex Emmons


It has become normal over the past 15 years for the morning news to report that the president has bombed an obscure terror group in a far-flung region of the world. These attacks take place without any public debate or a vote in Congress — despite the fact  that the Constitution gives Congress alone the power “to declare war.”

President Bush and President Obama argued, with little pushback, that they could target a wide array of terror groups, thanks to the resolution Congress passed in the wake of 9/11 that allows the president to use “necessary and appropriate force” against those who “planned, authorized, committed, or aided” the al Qaeda terror attacks.

The 2001 resolution has since been used to justify bombing seven countries, deploying troops from Cuba to the Philippines, and conducting wars against groups with loose or nonexistent ties to al Qaeda.

But almost all experts agree that it cannot be utilized as the legal basis for Trump’s Thursday-night cruise missile attack on Syria. While Assad is a butcher and brutal dictator, he has no connection to the 9/11 attacks, and in fact his forces are fighting al Qaeda’s largest affiliate in Syria.

Jack Goldsmith, a Harvard Law School professor and head of the Justice Department’s Office of Legal Counsel during the Bush administration, sardonically tweeted that whatever the legal basis for the strikes is, it “exceeds all prior precedents under domestic and international law.”

Goldsmith perspective was the same in 2013 when the Obama administration was considering bombing Syria’s government for similar reasons. The available legal justifications, Goldsmith wrote, were so extreme that they would provide “no limit at all on the president’s ability to use significant military force unilaterally.” (Obama eventually sought congressional approval, while simultaneously insisting that he didn’t really need it.)

Louis Fisher, a scholar in residence at the Constitution Project, reacted similarly to Trump’s strike, saying that “President Trump has no constitutional authority to unilaterally commit the nation to war against Syria.”

Hina Shamsi, a top national security lawyer for the ACLU, tweeted that Trump’s strike has “no legit[imate] domestic or international law basis.” Fionnuala Ni Aolain, a professor of human rights law at the University of Minnesota Law School, wrote that the attack was “a slide into self-justificatory unilateralism by the United States [that] should not be celebrated nor validated.”

One dissenter among these legal voices is Harold Koh, a Yale Law School professor and former Obama administration lawyer. In 2011, after Congress voted not to authorize Obama’s intervention in Libya, Koh wrote a memo attempting to make the case that the U.S. bombing campaign was nonetheless congruent with the War Powers Resolution, a 1973 congressional attempt “to fulfill the intent of the framers” by keeping the power of introducing the armed forces “in hostilities” in the hands of the legislative branch.

Koh creatively argued that U.S. actions didn’t rise to the level of “hostilities,” largely because Obama was only bombing the country, and the Libyan military was unable to shoot down U.S. planes.
In a later paper for the Houston Law Review, Koh wrote that under his own criteria, he “would guess that few humanitarian crises will rise to the level of sustained ‘hostilities,’” and hence would not need congressional approval.

The White House and the Pentagon have yet to attempt to make a formal case that the strikes were legal. At Mar-a-Lago, Trump told reporters that “it is in the vital national security interest of the Untied States to prevent and deter the spread and use of deadly chemical weapons.” A Pentagon press release echoed his comments, saying “the use of chemical weapons against innocent people will not be tolerated.”

In the past, the U.S. has made self-defense a justification for its strikes. But both statements suggest the aim of the strike was to punish Assad, not to defend the United States.

Moreover, the Trump administration is indicating they may launch further attacks against Assad without waiting for congressional approval. At a UN Security Council meeting Wednesday, American Ambassador Nikki Haley said the U.S. is “prepared to do more” in Syria. Secretary of State Rex Tillerson said Thursday that “steps are underway” to form a coalition of nations that would look to remove Assad from power.

The administration also appears to be ignoring all issues of international law. Days before the strike, UN Ambassador Nikki Haley touted the fact the U.S. would not seek Security Council approval. “When the United Nations consistently fails in its duty to act collectively,” she told the council on Wednesday, “there are times in the life of states that we are compelled to take our own action.”