Constitutional Hypocrisy and the Nord Stream 2 Explosion
This article was originally published on February 14, 2023 by Newsweek. It was co-authored with John Yoo, who is the Emanuel Heller Professor of Law at the University of California at Berkeley.
Last September, the Nord Stream 1 and 2 pipelines exploded beneath the North Sea. The pipelines were designed to transport natural gas from Russia to Germany (Nord Stream 2 had not yet become operational, at the time of the explosion). Many suspected that Russia was responsible for the act of sabotage. Now, the veteran investigative reporter Seymour Hersh has claimed that a U.S. Navy team of divers based in Florida carried out the operation.
The White House labeled Hersh’s report “utterly false and complete fiction.” But if Hersh’s claims are true, the operation was an act of war against two nations—one of them a NATO ally. President Joe Biden would have done this without congressional authorization—indeed, without so much as consulting any members of Congress. For military actions far less consequential than this, Biden used to attack his Republican predecessors as “monarchists.”
The U.S. has long opposed the Nord Stream 2 pipeline. Before Russia’s invasion of Ukraine, President Biden threatened that “[i]f Russia invades…there will no longer be a Nord Stream 2. We will bring an end to it.” Earlier, Undersecretary of State Victoria Nuland (who has worked hand in glove with the Biden family on Ukraine matters since 2014) stated that “[i]f Russia invades Ukraine, one way or another Nord Stream 2 will not move forward.”
After the explosion, the Biden administration expressed satisfaction. Nuland said, “the administration is very gratified to know that Nord Stream 2 is now…a hunk of metal at the bottom of the sea.” Secretary of State Blinken stated that the pipelines’ destruction provided a “tremendous strategic opportunity for the years to come.”
It is hard to believe that the U.S. would attack a civilian pipeline designed for peaceful uses by a NATO ally. But subsequent investigations have not incriminated Russia, who many initially assumed to be the culprit. A German government investigation has failed to find evidence of Russian culpability; Sweden found that the detonations constituted “serious sabotage,” but did not accuse Russia.
Now, Hersh has entered the fray. Hersh, a Pulitzer Prize winner, claims that intelligence and military sources report the U.S. sabotaged the pipelines. Hersh has a long history of digging for U.S. military and national security secrets. Sometimes, his stories have been borne out; other times, they have not. But as Senator Mike Lee (R-UT) has said, Hersh’s recent claims cannot be ruled out. We do not yet know the truth.
Suppose Hersh’s claims are true. Then consider the holier-than-thou attitude on presidential war powers that Biden long advocated throughout his career.
Throughout his decades-long U.S. Senate career, Biden built a reputation by attacking Reagan/Bush-era foreign policies for violating the Constitution. Biden persistently argued that the small-scale interventions undertaken by the Reagan and Bush administrations in Lebanon, Grenada, Nicaragua, and Panama without congressional declarations of war illegally intruded upon Congress’s constitutional authority.
Biden went so far as to author a law journal article in 1988, wherein he argued that presidents could not wage war without congressional pre-approval. He labeled as “monarchist” the view, promoted by Presidents Ronald Reagan and George H.W. Bush, that the president has “virtually unlimited authority to deploy and use the armed forces in pursuit of what he regards as the national interest.” He contrasted this with his prescribed “joint decision model,” which requires congressional approval except in cases where the president defends the U.S. and its citizens from an imminent threat or attack.
Under then-Senator Biden’s approach, most recent wars would be unconstitutional. In 1989, Biden accused the Bush administration of illegally intervening in Panama. The president “does not have the authority now to go in for whatever reason and start a war, or to use force to go in and remove a particular person,” Biden said on the Senate floor. During the 1990-91 debates over the Persian Gulf War, Biden demanded that “the president…seek a declaration of war or other statutory authorization if significant hostilities break out.” He claimed that driving Saddam Hussein out of Kuwait was “a question which the Congress, and only the Congress, can answer,” even as he voted against the 1991 congressional authorization for use of military force (AUMF). He maintained that position throughout the early 2000s, and even threatened in 2007 to launch impeachment proceedings if President George W. Bush launched a preemptive attack on Iran. “The president has no authority to unilaterally attack Iran,” Biden said at the time. “If he does, as chairman of the Foreign Relations Committee and former chair of the Judiciary Committee, I will move to impeach him.”
But Biden suddenly recanted, once he settled into the executive branch. As Obama’s vice president, Biden supported that administration’s exercises of executive war power: its reliance upon the 2001 Afghanistan and 2002 Iraq AUMFs to justify a worldwide drone war, or its efforts to overthrow the Gaddafi regime in Libya in 2011 or enter the Syrian civil war in 2013. By the time he ran for president (again) himself, Biden had switched positions completely. He declared in 2019 that “the Constitution vests the president…with the power to direct limited U.S. military operations abroad without prior congressional approval when those operations serve important U.S. interests and are of a limited nature, scope, and duration.” Under his logic, the U.S. could drop a nuclear weapon on a non-nuclear country—say, Iran—without rising to the level of a formal, congressionally declared war.
As constitutional lawyers and former Justice Department officials, we do not share Biden’s views. We believe that the Constitution gives the president the unilateral authority to deploy our armed forces abroad to conduct military operations. We have argued that the Constitution’s vesting of the power to “declare war” in Congress does not require that the legislature affirmatively pre-approve most uses of force. Congress’s primary sources of control over executive war-making include its plenary authority over the raising and funding of the military, combined with its power of the purse to defund any conflict—as it did, most notably, in Vietnam. We therefore would not personally have constitutional objections with a covert attack such as the one Hersh alleges took place on the Nord Stream pipelines.
But Biden built a long senatorial career out of attacking presidents for taking necessary prophylactic measures to protect the nation’s security. Now, his hypocrisy is complete—and it could not be on an issue of greater importance.
Even if Biden followed his own current rhetoric, an attack on the Nord Stream pipelines would still demand congressional approval. The Russian invasion of Ukraine did not, and does not, pose an imminent threat to the United States. Destroying a civilian pipeline serving German consumers and industry would normally constitute an act of war. The fact that Russia is currently armed with thousands of nuclear weapons and is engaged in a brutal war in Ukraine belies any claim that the use of force at issue is “of a limited nature, scope, and duration.”
For decades, Biden maintained that only Congress could authorize an attack such as the one on Nord Stream 2. He savaged Republican presidents for allegedly violating the Constitution for acting as Hersh now alleges he acted. But if Hersh has got it right, Biden has discarded those constitutional principles. It should leave Americans wondering what other “principles” Biden would readily sell out.