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The Legal Case for Striking North Korea First

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The Winter Olympics’ closing ceremonies also concluded North Korea’s propaganda effort to divert attention from its nuclear-weapons and ballistic-missile programs. And although President Trump announced more economic sanctions against Pyongyang last
The Winter Olympics’ closing ceremonies also concluded North Korea’s propaganda effort to divert attention from its nuclear-weapons and ballistic-missile programs. And although President Trump announced more economic sanctions against Pyongyang last week, he also bluntly presaged “Phase Two” of U. S. action against the Kim regime, which “may be a very rough thing.”
CIA Director Mike Pompeo said in January that Pyongyang was within “a handful of months” of being able to deliver nuclear warheads to the U. S. How long must America wait before it acts to eliminate that threat?
Pre-emption opponents argue that action is not justified because Pyongyang does not constitute an “imminent threat.” They are wrong. The threat is imminent, and the case against pre-emption rests on the misinterpretation of a standard that derives from prenuclear, pre-ballistic-missile times. Given the gaps in U. S. intelligence about North Korea, we should not wait until the very last minute. That would risk striking after the North has deliverable nuclear weapons, a much more dangerous situation.
In assessing the timing of pre-emptive attacks, the classic formulation is Daniel Webster’s test of “necessity.” British forces in 1837 invaded U. S. territory to destroy the steamboat Caroline, which Canadian rebels had used to transport weapons into Ontario.
Webster asserted that Britain failed to show that “the necessity of self-defense was instant, overwhelming, leaving no choice of means, and no moment of deliberation.” Pre-emption opponents would argue that Britain should have waited until the Caroline reached Canada before attacking.
Would an American strike today against North Korea’s nuclear-weapons program violate Webster’s necessity test? Clearly not.

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