“For by wise counsel thou shall make thy war….”-Proverbs, 24/6
Understanding the Present Moment
Incoming US President Joseph Biden faces both direct and indirect threats of North Korean nuclearization. During the rancorous and doctrinally-incoherent Trump presidency, these risks were allowed to expand uncontrollably. At this stage, they are already many-sided and grave. Ignored further, they could become more steeply unmanageable or even genuinely existential.
In essence, for Biden, the basic nuclear crisis with North Korea is arguably “Job One.” What exactly shall be required of his new administration? Most important, the American president will need to understand that national security and war preparedness is always a theory-based matter of “mind over mind.” It is never merely a straightforward question of “mind over matter.”
To begin, any now eleventh-hour elevation of US strategic thought would need to be based upon a far greater presidential appreciation of persistently-intersecting political and military complexities. These include multiple “synergies” that were so wittingly and irresponsibly overlooked by Donald J. Trump. Though the former president believed that he had somehow solved the North Korea nuclear problem by “falling in love” with Kim Jung Un (and, reciprocally, Kim with him), this purported “love” attachment was never more than a hideous parody.
How could it have been considered otherwise by serious thinkers and planners?
In all synergistic intersections, by definition, the “whole” of any particular outcome must be greater than the sum of its “parts.” In such challenging analytic matters, US policy-making must be kept suitably distant from distracting considerations founded upon shallow wishful thinking or unsupportable extravagant hope. To recall the ancient Greek historian Thucydides’ summary assessment of the Peloponnesian War: “Hope is by nature an expensive commodity, and those who are risking their all on one cast find out what it means only when they are already ruined….
How to Begin?
What “wise counsel” should now be offered? How should the Biden administration best proceed on all relevant and overlapping fronts? The ancient Greeks regarded war and war-planning as a daunting challenge of “mind over mind.” Effectively anticipating the later writings of Prussian strategist Carl von Clausewitz (On War, 1832), they typically based tactical and operational policies upon a coherent body of dialectical “conversations.” Here, it was already understood, the primary and preeminent battlefield would have to be carefully conceptualized before the onset of any actual troop movements or engagements.
Correspondingly, any foreseeable victory in such engagements would have to follow a mind-based articulation of strategic doctrine.
In all such matters, comprehensive theory is indispensable. Always, the world, like the myriad human bodies who comprise it, must be recognized as a system. Among the most serious specific implications of this explanatory metaphor, any more-or-less major conventional conflict in northeast Asia could heighten the prospect of destabilizing international conflicts elsewhere, whether immediately or incrementally.
These portentous prospects could include a regional nuclear war.
There is more. Such worrisome risks could sometime be enlarged by misguided American searches for a no-longer plausible or reasonable outcome. An example of such a mistaken search would be one that is directed toward some tangible form of “victory.”
There is good reason for such a warning. A non-traditional observation about “victory” is persuasive, at least in part, because the core meanings of victory and defeat have been changing incrementally and dramatically over time. These are no longer the same meanings as those once offered by Prussian military strategist Carl von Clausewitz’ classic On War (1832).
To clarify further, in most prospectively identifiable wars between nation-states, there no longer obtain any confirmable criteria of demarcation between victory and defeat. Even a so-called “victory” on some actual field of battle might not in any calculable way reduce palpable and significant security threats to the United States. More precisely, such grave threats, whether foreseen or unforeseen, could include various sub-state aggressions (terrorism) and/or certain widening attacks upon regional and/or non-regional US allies.
Always, the arena of world politics is a system.
In the matter at hand, once acknowledged as a distinct foreign-policy objective, any declared US search for “victory” over North Korea would exacerbate strategic risks without enhancing any commensurate or derivative gains. Such a declaration could create a corrosively lethal escalatory dynamic with Pyongyang, one from which Washington would no longer expect tangible military advantages. This expectedly injurious creation could take place in unanticipated increments, or instead, suddenly, as an unexpected “bolt-from-the-blue” enemy attack.
In the foreseeable worst case, this unwitting US forfeiture of “escalation dominance” would signify authentically irreversible American losses, including chaotic conditions that could create (a) tens or even hundreds of thousands of prompt fatalities; and (b) still larger numbers of latent cancer deaths.
It follows, inter alia, that a great deal of specificity must be examined and taken into account by incoming US President Joe Biden’s pertinent senior counselors. In a world where history and science could conceivably regain their proper pride of place, an American president could very usefully acknowledge that because nation-states no longer declare wars formally or generally enter into legally binding war-termination agreements , the application of traditional criteria of “war winning” to interstate conflicts would no longer make legal sense. Plausibly, too, in the vastly complicated matters already at hand for America’s new president, ascertainable benefits might not lie in variously traditional forms of military expertise.
Not at all.
Preemption and Anticipatory Self-Defense
Exactly how much applicable military experience could American generals have garnered in starting, managing or ending a nuclear war? How much might the new president and his senior commanders see only what they would want to see, including perhaps a gainful prospect of military preemption. Here they should have to recall the ancient but still relevant observation of Julius Caesar at Chapter 18 of Caesar’s Gallic War: “…men as a rule willingly believe what they want to believe….”
In these transitional nuclear times, any such selective perceptions could prove markedly injurious and irremediably mistaken. Though, at least in principle, an American president could still benefit from a preemption against an already nuclear North Korea in certain residual and extraordinary circumstances, it is incontestable that any US defensive first strike would have catastrophic outcomes. Regarding the myriad complexities of any still-impending two-power nuclear competition where (a) there would exist substantial asymmetries in relative military power position; but (b) the “weaker” (North Korean) side would still maintain a verifiable potential to inflict unacceptably damaging first-strikes or reprisals upon the “stronger” (American) side, abundant policy-making caution is more important than ever.
Ironically, at a time of rampant pandemic, a nuclear war – any nuclear war – would be a more conclusively terminal “disease.” The only reasonable “cure,” therefore, must lie in prevention.
Under Joseph Biden, the United States will need a refined posture that can account for the rationality and intentionality of enemy decision-makers in Pyongyang. The new president should approach the still-growing North Korean nuclear threat from a more conspicuously disciplined and conceptual perspective. This means, inter alia, factoring into any coherent US nuclear threat assessment (a) the expected rationality or irrationality of all principal decision-makers in Pyongyang; and (b) the foreseeable intentional or unintentional intra-crisis behaviors of these adversarial decision-makers.
“Theory is a net,” quotes philosopher of science Karl Popper from the German poet Novalis in The Logic of Scientific Discovery (1959); “….only those who cast, can catch.” In such bewilderingly complex strategic matters, nothing can ever prove to be more practical than good theory. Always, in science, a broadly elucidating generality is the key to uncovering specific meanings. It follows that having at hand such comprehensive policy clarifications could help guide US President Joe Biden beyond any otherwise vague or uselessly impromptu appraisals.
Under no circumstances, this new president should be reminded, should such multi-sided crisis possibilities be assessed (whether implicitly or explicitly) as singular or ad hoc phenomena.
Intentional versus Unintentional Nuclear War
There is more. Going forward, capable American strategic analysts guiding the new president should enhance their pertinent nuclear investigations by carefully identifying the basic distinctions between (a) intentional or deliberate nuclear war, and (b) unintentional or inadvertent nuclear war. The derivative risks resulting from these at least four different types of possible nuclear conflict are apt to vary considerably. Accordingly, those American analysts who might remain too completely focused upon a deliberate nuclear war scenario could too-casually underestimate a more serious nuclear threat to the United States.
This means the increasingly plausible threat of an unintentional or inadvertent nuclear war.
An additional conceptual distinction must now be inserted into any US analytic scenario “mix.” This is the subtle but still important difference between an inadvertent nuclear war and an accidental nuclear war. To wit, any accidental nuclear war would have to be inadvertent; conversely, however, there could be identifiable forms of inadvertent nuclear war that would not be accidental. Most critical in this connection are various more-or-less significant errors in calculation committed by one or both sides – that is, reciprocal mistakes that could lead directly and inexorably to a nuclear conflict. Te most blatant example would concern assorted misjudgments of enemy intent or capacity that might somehow emerge during the course of any one particular crisis escalation.
Such dire misjudgments would likely stem from an expectedly mutual search for strategic advantage occurring during any particular competition in nuclear risk-taking. In expressly strategic parlance, this would suggest a substantially traditional military search for “escalation dominance” in extremis atomicum.
Rationality versus Irrationality
There would also need to be various related judgments concerning expectations of rationality and irrationality within each affected country’s decision-making structure. One potential source of an unintentional or inadvertent nuclear war could be a failed strategy of “pretended irrationality.” A foolishly-posturing American president who had too “successfully” convinced enemy counterparts of his own irrationality could spark an otherwise-avoidable enemy preemption.
“Played” in the other direction, an American president who had begun to take seriously Kim Jung Un’s own presumed unpredictability could sometime be frightened into striking first. In this alternate case, the United States would become the preempting party that might then claim legality for its allegedly defensive first-strike. In such inherently “dicey” circumstances, those US strategists charged with fashioning an optimal strategic posture would do well to recall Carl von Clausewitz’s oft-quoted warning in On War concerning “friction.” In essence, this “Clausewitzian” property represents the difference between “war on paper” and “war as it actually is.”
Always, it represents an unerringly vital difference, one never determinable by what former US President Trump had naively called “attitude.”
America’s incoming president, unlike his unreasoning predecessor, ought to be sufficiently well-grounded in science and logic. Though rarely acknowledged, however, no truly scientific or reliable probability estimations can ever be undertaken in regard to unprecedented situations. In science, authentic probability judgments must always be based upon the carefully calculated frequency of relevant past events.
Incontrovertibly, on matters regarding a nuclear war, there have been no such past events. By definition, such events would be unique or sui generis. The American bombings of Japan in August 1945 did not constitute a nuclear war. They were “only” examples of atomic weapons being used during a conventional war.
President Biden’s strategic advisors must take heed. This sort of “behind-the-news” analytic assessment is not reasonably controversial. Not only there has there never been a nuclear war, there have also never been the sorts of asymmetrical nuclear standoffs most apt to arise between Washington and Pyongyang.
Because there can never be any informed scientific assessments of probable war outcomes in this volatile Asian “theatre,” US President Joe Biden should approach any pertinent war scenarios very soberly, with recognizable humility (the ancient Greek philosophers would be warning here against “hubris”) and with considerable war-reluctance.
Recalling the “good old days, “which extend well into the twentieth-century, nation-states have generally had to defeat enemy armies before being able to wreak wished-for destruction upon an adversary’s cities and infrastructures. In those earlier days of more traditional doctrinal arrangements concerning war and peace, any individual country’s demonstrated capacity to “win” was necessarily and understandably prior to achieving any needed capacity to destroy. An appropriate and well-known example to US military thinkers at such venerable institutions as the US Army War College or West Point would be the case of Persia and Greece at the long-studied 480 BCE Battle of Thermopylae.
Today, unlike what seemingly took place at Thermopylae, a state enemy needn’t first be able to defeat American armies in order to inflict grievous harms on the United States. As an example, such an enemy could enlist selectively destructive proxy forces on its behalf, such as various bio-terrorist surrogates. What happens then to the prevailing “balance of power?”
For President Biden and his counselors, there is still some prospectively “good news.” Accordingly, the United States needn’t be able to win a particular conflict in order to credibly threaten a significant foe (deterrence) or to inflict upon such an enemy considerable retaliatory harms (punishment). What this “good news” means today is that the capacity to deter is not necessarily identical to the capacity to win. Reciprocally, for the new American president’s defense counselors, the principal war-planning or war-deterring lesson of any such ongoing transformations warrants further study.
What will matter here is not “personal attitude” (previous President Donald Trump’s self-described “ace in the hole”), but intellectual preparation.What matters most, going forward, will be a capacity to win bewilderingly complex struggles of “mind over mind,” not just ad hoc or visceral contests of “mind over matter.” In time, moreover, critical strategy lessons could apply beyond the specifically North Korean nuclear issue.
Points of Law
There are various relevant points of law to consider. Jurisprudencehas its own proper place in strategic calculations. Specifically, in terms of applicable law, winning and losing may no longer mean very much for successful strategic planning. The consequential devaluation of victory and defeat as operational goals should be increasingly obvious with regard to America’s now seemingly-latent wars on terror. More precisely, pertinent conflict issues will need to be examined within continuously transforming US military plans and objectives regarding Syria, Afghanistan, Iraq, China, Russia, Yemen and assorted other places.
Prima facie, the U.S. can never meaningfully “win” any wars with Al Qaeda, Hezbollah, etc. This is because its leaders could never know for certain when a tangible victory had actually been achieved or loss incurred.
There is still more for the incoming American president to consider. Operationally, winning and losing are now fully extraneous to America’s indispensable collective interests, or, in those foreseeable cases where “victory” might still be expressed as a high-priority national objective, overwhelmingly harmful. In principle, and not without substantial irony, a narrowly static orientation to “winning” could sometime lead the United States toward huge and irreversible losses via critical American misjudgments regarding “escalation dominance.”Above all, under President Joe Biden, U.S. military posture should cease being shaped according to the starkly barren expectations of clamorous clichés, inexpert advice or irrelevant analogies.
This is not about “rallies.”
It must be about “wise counsel.”
Calculated US posture ought always be based upon the most expressly disciplined theses and antitheses of dialectical strategic thought, a proven pattern of analysis that goes back to Plato and his perpetually illustrative dialogues.
Finally, America’s new president and his military planners could look more usefully to the East. Long ago, famed Chinese strategist Sun-Tzu had reasoned simply and succinctly: “Subjugating the enemy’s army without fighting is the true pinnacle of excellence.” To meet current U.S. national security objectives vis-à-vis North Korea and other potential nuclear adversaries, this ancient Chinese military wisdom suggests that Washington now openly emphasize deterrence rather than victory. This is not a time to continue any buffoon-like presidential threats about the size of national “buttons.” President Trump, we may recall, once said of Kim Jung Un, “He also has a button, but my button is bigger than his button.”
This childlike assertion was hardly an enviable example of sophisticated strategic thought.
At the same time, any necessary discontinuance of strategic competition should remain connected to the most stringent requirements of conducting or maintaining control over plausible military escalations. If, going forward, these requirements were somehow minimized or disregarded, a resultant regional conflict could have decisive “spillover” implications for other nation-states and for other parts of the world. Once again, assorted elements of chaos notwithstanding, world politics and world military processes are always expressive of an underlying system.
This characterization is clarifying and elucidating. It must lie continuously at the core of absolutely any coherent US strategic doctrine.
Forging US Strategic Doctrine
Before these systemic connections can be adequately understood and assessed, the new US president must realize that the complicated logic of strategic nuclear calculations demands a discrete and capably nuanced genre of decision-making, one that calls for rigorous intellectual refinement in extremis atomicum. As an example, casually expecting an American president to convincingly leverage Chinese and Russian sanctions on behalf of the United States could miss at least two vital and intersecting points: (1) the regime in Pyongyang will never back down on its overall plan for nuclearization, however severe such sanctions might seemingly become; and (2) counting upon meaningful sanctions from Beijing or Moscow will become inherently problematic for President Biden.
This is because both China and Russia remain more worried about their traditional national enemy in Washington than about any possible future dangers arising from Pyongyang.
Remembering that North Korea is Already Nuclear
In world politics, as in law, truth is exculpatory. Like it or not, a nuclear North Korea is a fait accompli. Soon, President Biden should focus upon creating stable nuclear deterrence with North Korea (a) for the obvious benefit of the United States; (b) for the benefit of its directly vulnerable allies in South Korea and Japan; and (c) for the benefit of its indirectly vulnerable allies elsewhere, including Israel in the still-dissembling Middle East.
However inconspicuous, these important allies remain an integral component of the same organic world system; they can never be helpfully separated from expectedly palpable consequences of an American geopolitical posture.
“The existence of `system’ in the world is at once obvious to every observer of nature,” says the 20th century French Jesuit scholar, Pierre Teilhard de Chardin, “no matter whom….” Nowhere is this core interrelatedness more obvious or potentially consequential than in the continuing matter of a nuclear North Korea and US foreign policy decision-making. This consistently urgent threat will never subside or disappear on its own. It will be the new US president’s continuing role to understand all relevant American security obligations and their ensuing complications.
In accepting this grave responsibility, it would prove especially wise for the new US president to bear in mind the ancient Funeral Speech warning of Pericles. As recalled most famously by Thucydides: “What I fear more than the strategies of our enemies,” said the wise Athenian leader, “are our own mistakes.” Of course, in the best of all possible worlds, an American president could finally prepare to go beyond Realpoliitk and its endlessly belligerent nationalism – a perpetually futile dynamic that has never succeeded and is destined for continued failure – but the world is not yet ready for any such transformation.
If, however, that auspicious time should arrive sometime in the future, President Biden’s key task will be to focus upon the essential interrelatedness or “oneness” of all world politics. Just as each individual human being, the microcosm, is comprised of interlocking biological systems, world politics, the macrocosm, is made up of variously constituent national and sub-national systems. In both examples, microcosm and macrocosm, survival will require more reliable and generalized patterns of cooperation between systems.
“Just wars,” wrote Hugo Grotius, the acknowledged founder of modern international law, “arise from our love of the innocent.” Now, however, it is plain, and again by definition, that a nuclear war could never be “just,” and that certain earlier legal distinctions (e.g., just war vs. unjust war) must be continuously conformed to the ever-changing technologies of military destruction. The only sensible adaptation in this regard must be to acknowledge persisting connections between international law and natural law, and then to oppose any retrograde movements to undermine such vital acknowledgments.
In the final analysis, to successfully prevent a nuclear war in Asia or anywhere else, it will be necessary to resist mightily any world system declensions toward further belligerent nationalism.
Plainly and incontestably, the best use for American nuclear weapons in any ongoing US-North Korea negotiation must be as elements of dissuasion or persuasion, and not as actual weapons of war. In this regard, the key underlying principle goes back even before the advent of nuclear weapons. Remembering the ancient Chinese strategist Sun-Tzu in his On War (Chapter 3, “Planning Offensives”): “Subjugating the enemy’s army without fighting is the true pinnacle of excellence.”
A nuclear war with North Korea would resemble any other terminal pathology. The only reasonable hopes lie in disease prevention.
 Indirect vulnerabilities would be those derivative threats somehow made manifest in other countries or other country relations. Under certain imaginable circumstances, America’s indirect and/or direct vulnerabilities could become existential.
 “The masses have followed the magicians again and again…Socrates and Plato were the first to take up the struggle against them in clear awareness of what was at stake.” (See: Karl Jaspers, Reason and Anti-Reason in our Time; 1952).
 This acceleration was due in part to US President Donald J. Trump’s singular focus on personal public relations. In this regard, analysts and scholars may usefully consult not just their daily newspapers, but also Sophocles, Antigone, Speech of Creon, King of Thebes: “I hold despicable and always have….anyone who puts his own popularity before his country.”
 This principle was axiomatic among the ancient Greeks and Macedonians. See. F.E. Adcock, The Greek and Macedonian Art of War (1957).
Pertinent synergies could clarify or elucidate the world political system’s current state of hyper-disorder (a view that would reflect what the physicists prefer to call “entropic” conditions), and could be conceptually dependent upon each national decision-makers subjective metaphysics of time. For an early article by this author dealing with interesting linkages between such a subjective chronology and national decision-making (linkages that could shed additional light on still-growing risks of a US-North Korea nuclear war), see: Louis René Beres, “Time, Consciousness and Decision-Making in Theories of International Relations,” The Journal of Value Inquiry, Vol. VIII, No.3., Fall 1974, pp. 175-186.
 “We fell in love,” said US President Donald J. Trump at his Singapore summit in June 2018.
The Trump White House consistently sought to persuade Americans by way of very deliberate simplifications and falsifications. See, on the plausible consequences of any such deceptive measures, Ludwig Wittgenstein’s core observation in On Certainty: “Remember that one is sometimes convinced of the correctness of a view by its simplicity or symmetry….”
 See, by this author, Louis René Beres, at Harvard National Security Journal, Harvard Law School: https://harvardnsj.org/2015/06/core-synergies-in-israels-strategic-planning-when-the-adversarial-whole-is-greater-than-the-sum-of-its-parts/ See also, by Professor Beres, at Modern War Institute, West Point: https://mwi.usma.edu/threat-convergence-adversarial-whole-greater-sum-parts/
 For early accounts by this author of certain potentially synergistic nuclear war effects, see: Louis René Beres, Apocalypse: Nuclear Catastrophe in World Politics (Chicago: University of Chicago Press, 1980); Louis René Beres, Mimicking Sisyphus: America’s Countervailing Nuclear Strategy (Lexington, Mass., Lexington Books, 1983); Louis René Beres, Reason and Realpolitik: U.S. Foreign Policy and World Order (Lexington, Mass., Lexington Books, 1984); and Louis René Beres, Security or Armageddon: Israel’s Nuclear Strategy (Lexington, Mass., Lexington Books, 1986). Most recently, by Professor Beres, see: Surviving Amid Chaos: Israel’s Nuclear Strategy (New York, Rowman & Littlefield, 2016; 2nd ed. 2018). https://paw.princeton.edu/new-books/surviving-amid-chaos-israel%E2%80%99s-nuclear-strategy
 Drawn from aptly famous statement of Athenians to the Melians (a colony of Sparta) from “The Debate on the Fate of Melos” (416 BCE).
 Elements of such essential doctrine could sometimes be counter-intuitive. For example, from the standpoint of stable nuclear deterrence, the likelihood of any actual nuclear conflict between states (inter alia) could be inversely related to the plausibly expected magnitude of catastrophic harms. Nonetheless, this is only an “informal presumption” because we are here considering a unique or unprecedented event, one that is sui generis for purposes of determining any true mathematical probabilities.
 In the words of French Jesuit philosopher Pierre Teilhard de Chardin’s The Phenomenon of Man (1955): “The existence of `system’ in the world is at once obvious to every observer of nature, no matter whom…”
 In his seminal writings, strategic theorist Herman Kahn introduced a further distinction between a surprise attack that is more-or-less unexpected, and a surprise attack that arrives entirely “out of the blue.” The former, he counseled, “…is likely to take place during a period of tension that is not so intense that the offender is essentially prepared for nuclear war….” A total surprise attack, however, would be one without any immediately recognizable tension or warning signal. This particular subset of a surprise attack scenario could be difficult to operationalize for tangible national security policy benefit. See: Herman Kahn, Thinking About the Unthinkable in the 1980s (Simon & Schuster, 1984).
 See by this author, at one of his earliest books: Louis René Beres, Apocalypse: Nuclear Catastrophe in World Politics (The University of Chicago Press, 1980).
 Under authoritative international law, which is generally part of US law, the question of whether or not a “state of war” exists between states is now ordinarily ambiguous. Traditionally, it was held that a formal declaration of war was necessary before any true state of war could be said to exist. Hugo Grotius divided wars into declared wars, which were legal, and undeclared wars, which were not. (See Hugo Grotius, The Law of War and Peace, Bk. III, Chs. III, IV, and XI.) By the start of the twentieth century, the position that war can obtain only after a conclusive declaration of war by one of the parties was codified by Hague Convention III. This treaty stipulated, inter alia, that hostilities must never commence without a “previous and explicit warning” in the form of a declaration of war or an ultimatum. (See Hague Convention III Relative to the Opening of Hostilities, 1907, 3 NRGT, 3 series, 437, article 1.) Currently, formal declarations of war could be tantamount to admissions of international criminality because of the express criminalization of aggression by authoritative international law. It could, therefore, represent a clear jurisprudential absurdity to tie any true state of war to prior declarations of belligerency. It follows, further, that a state of war may exist without any formal declarations, but only if there should exist an actual armed conflict between two or more states, and/or at least one of these affected states considers itself “at war.”
 In law, such a defensive first-strike, if permissible, would be termed “anticipatory self-defense.” The precise origins of such defense liein customary international law, in The Caroline, a case that concerned the unsuccessful rebellion of 1837 in Upper Canada against British rule. Following this case, the serious threat of armed attack has generally justified certain militarily defensive actions. In an exchange of diplomatic notes between the governments of the United States and Great Britain, then U.S. Secretary of State Daniel Webster outlined a framework for self-defense that did not require an antecedent attack. Here, the jurisprudential framework permitted a military response to a threat so long as the danger posed was “instant, overwhelming, leaving no choice of means, and no moment for deliberation.” See: Beth M. Polebaum, “National Self-defense in International Law: An Emerging Standard for a Nuclear Age,” 59 N.Y.U.L. Rev. 187, 190-91 (1984)(noting that the Caroline case had transformed the right of self-defense from an excuse for armed intervention into a legal doctrine). Still earlier, see: Hugo Grotius, Of the Causes of War, and First of Self-Defense, and Defense of Our Property, reprinted in 2 Classics of International Law, 168-75 (Carnegie Endowment Trust, 1925)(1625); and Emmerich de Vattel, The Right of Self-Protection and the Effects of the Sovereignty and Independence of Nations, reprinted in 3 Classics of International Law, 130 (Carnegie Endowment Trust, 1916)(1758). Also, Samuel Pufendorf, The Two Books on the Duty of Man and Citizen According to Natural Law, 32 (Frank Gardner Moore., tr., 1927 (1682).
 “In a dark time,” says the Poet Theodore Roethke, “the eye begins to see.”
 From the standpoint of international law, it is necessary to distinguish preemptive attacks from “preventive ones.” Preemption is a military strategy of striking first in the expectation that the only foreseeable alternative is to be struck first oneself. A preemptive attack is launched by a state that believes enemy forces are about to attack. A preventive attack is launched not out of any genuine concern about “imminent” hostilities, but rather for fear of a longer-term deterioration in a pertinent military balance. In a preemptive attack, the length of time by which the enemy’s action is anticipated is presumptively very short; in a preventive strike, the anticipated interval is considerably longer. A related problem here for the United States is not only the practical difficulty of accurately determining “imminence,” but also that delaying a defensive strike until appropriately ascertained urgencies can be acknowledged could itself prove “fatal” (existential).
 Customary international law, which must be the jurisprudential justification for any permissible defensive first strike or preemption, is an authoritative source of world legal norms identified at Art. 38 of the UN’s Statute of the International Court of Justice. International law, an integral part of the legal system of all states in world politics, assumes a general obligation to supply benefits to one another, and to avoid war wherever possible. This core assumption of jurisprudential solidarity is known formally as a “peremptory” or jus cogens expectation, that is, one that is not subject to any reasonable question. It can be found, inter alia, in Justinian, Corpus Juris Civilis, Hugo Grotius, The Law of War and Peace (1625) and Emmerich de Vattel, The Law of Nations or Principles of Natural Law (1758).
 See Popper’s classic, The Logic of Scientific Discovery (1959).
 In assessing the risks and benefits of such a search, analysts would have to pay close attention to the specific scenarios of a “limited nuclear war.”
 During his dissembling presidency, too little attention had been directed toward Donald J. Trump’s open loathing of science and intellect, and to his corresponding unwillingness to read, anything. Ironically, the Founding Fathers of the United States were intellectuals. As explained by American historian Richard Hofstadter: “The Founding Fathers were sages, scientists, men of broad cultivation, many of them apt in classical learning, who used their wide reading in history, politics and law to solve the exigent problems of their time.” See Hofstadter’s Anti-Intellectualism in American Life (New York: Alfred A. Knopf, 1964), p. 145. A conclusion ought to surface: How far we Americans have fallen.
 This capacity is contingent upon the expected rationality of the adversarial state. Irrational adversaries would likely; not be suitably deterred by the same threats directed at presumptively rational foes. On pertinent errors of correct deterrence reasoning (here regarding Iran in particular) see: Louis René Beres and General John T. Chain, “Could Israel Safely Deter a Nuclear Iran?” The Atlantic, August 2012; and Professor Louis René Beres and General John T. Chain, “Israel and Iran at the Eleventh Hour,” Oxford University Press (OUP Blog). February 23, 2012. General Chain (USAF/ret.) served as Commander-in-Chief, U.S. Strategic Air Command (CINCSAC).
 When meeting in Singapore with Kim Jung Un on June 11, 2018, Trump dismissed all usual presidential leadership obligations to study and prepare. Instead, he emphasized, again and again, offhandedly: “I don’t think I have to prepare very much. It’s all about attitude.”
 The seventeenth-century French philosopher Blaise Pascal remarks prophetically in Pensées: “All our dignity consists in thought….It is upon this that we must depend…Let us labor then to think well: this is the foundation of morality.” Similar reasoning characterizes the writings of Baruch Spinoza, Pascal’s 17th-century contemporary. In Book II of his Ethics Spinoza considers the human mind, or the intellectual attributes, and – drawing further upon René Descartes – strives to define an essential theory of learning and knowledge.
 For the United States, international law remains a part of this nation’s core domestic law. In the words used by the U.S. Supreme Court in The Paquete Habana, “International law is part of our law, and must be ascertained by the courts of justice of appropriate jurisdiction, as often as questions of right depending upon it are duly presented for their determination. For this purpose, where there is no treaty, and no controlling executive or legislative act or judicial decision, resort must be had to the customs and usages of civilized nations.” See The Paquete Habana, 175 U.S. 677, 678-79 (1900). See also: The Lola, 175 U.S. 677 (1900); Tel-Oren v. Libyan Arab Republic, 726 F. 2d 774, 781, 788 (D.C. Cir. 1984)(per curiam)(Edwards, J. concurring)(dismissing the action, but making several references to domestic jurisdiction over extraterritorial offenses), cert. denied, 470 U.S. 1003 (1985)(“concept of extraordinary judicial jurisdiction over acts in violation of significant international standards…embodied in the principle of `universal violations of international law.'”)
 Whether it is described in the Old Testament or any other major sources of ancient Western thought, chaos can be viewed as something positive, even as a source of human betterment. Here, chaos is taken as that which prepares the world for all things, both sacred and profane. As its conspicuous etymology reveals, chaos further represents the yawning gulf or gap wherein nothing is as yet, but where all civilizational opportunity must inevitably originate. Appropriately, the classical German poet Friedrich Hölderlin observed: “There is a desert sacred and chaotic which stands at the roots of the things and which prepares all things.” Even in the pagan ancient world, the Greeks thought of such a desert as logos, which should indicate to us today that it was never presumed to be starkly random or without evident merit.
 Postulating the emergence of “Cold War II” means expecting the world system to become once again bipolar. For early writings, by this author, on the global security implications of such an expanding bipolarity, see: Louis René Beres, “Bipolarity, Multipolarity, and the Reliability of Alliance Commitments,” Western Political Quarterly, Vol. 25, No.4., December 1972, pp. 702-710; Louis René Beres, “Bipolarity, Multipolarity, and the Tragedy of the Commons,” Western Political Quarterly, Vol. 26, No.4., December 1973, pp, 649-658; and Louis René Beres, “Guerillas, Terrorists, and Polarity: New Structural Models of World Politics,” Western Political Quarterly, Vol. 27, No.4., December 1974, pp. 624-636.
 Though US “good offices” under Trump played a decisive role in creating new Israeli ties to UAE, Bahrain, Sudan and Morocco, these ties will do little to alleviate the most fundamental and underlying strains of discord in the region. See also latest book by this author, Louis René Beres, Surviving Amid Chaos: Israel’s Nuclear Strategy (Rowman & Littlefield, 2016; 2nd ed., 2018). http://www.israeldefense.co.il/en/content/surviving-amid-chaos-israels-nuclear-strategy
 International law remains a “vigilante” or “Westphalian” system. See: Treaty of Peace of Munster, Oct. 1648, 1 Consol. T.S. 271; and Treaty of Peace of Osnabruck, Oct. 1648, 1., Consol. T.S. 119, Together, these two treaties comprise the Peace of Westphalia. Nonetheless, in international law, there are always certain core obligations that each state owes to other nations. See, accordingly, by Louis René Beres: https://yaleglobal.yale.edu/content/jurist-us-abandons-legal-obligations-syria; and
 More plausibly, especially after malignant years of corrosive Trump neglect and disharmony, the world resonates with the succinct warning offered by Hermann Hesse in Steppenwolf (1927): “This world, as it is now, wants to perish….” Or quite similarly, in the fearful metaphors of Pierre Teilhard de Chardin’s The Phenomenon of Man: “A rocket rising in the wake of time’s arrow, that only bursts to be extinguished; an eddy rising on the bosom of a descending current – such then must be our picture of the world.”
 As we may learn from ancient Greek Stoic philosopher Epictetus, “”You are a citizen of the universe.” A broader idea of such “oneness” followed the death of Alexander in 322 BCE; with it came a coinciding doctrine of “universality.” By the Middle Ages, this political and social doctrine had fused with the notion of a Respublica Christiana, a worldwide Christian commonwealth, and Thomas, John of Salisbury and Dante were looking at Europe as a single and unified Christian community. Below the level of God and his heavenly host, all the realm of humanity was to be considered as one. This is because all the world had been created for the same single and incontestable purpose; that is, to provide background for the necessary drama of human salvation. Only in its relationship to the universe itself was the world correctly considered as a part rather than a whole. Said Dante in De Monarchia: “The whole human race is a whole with reference to certain parts, and, with reference to another whole, it is a part. For it is a whole with reference to particular kingdoms and nations, as we have shown; and it is a part with reference to the whole universe, which is evident without argument.” Today, of course, the idea of human oneness discussed here can be justified and explained in more secular terms of analytic understanding.
 See Hugo Grotius, The Law of War and Peace 70 (William Whewell, tr.), London: John W. Parker, 1853(1625).
Roads and Rails for the U.S.
For those who expect the newly announced $2 trillion Biden infrastructure program to be a goodbye to potholes and hello to smooth-as-glass expressways, a disappointment is in store. The largest expenditure by far ($400 billion) is on home/community care, impacting the elderly or disabled. The $115 billion apportioned to roads and bridges is #4 on the list.
The American Society of Civil Engineers (ASCE) keeps tabs on our infrastructure and their latest report (2020) gave it an overall grade of C-. Although bridges worsened, this is a modest improvement on the previous report (2017) when the overall grade was D+. If $115 billion in spending sounds adequate, one has to remember it costs $27 billion annually for upkeep.
Astounding it might be the backlog in spending for roads and bridges runs at $12 billion annually. Go back 20 years and we have a quarter trillion shortfall. Add all the other areas of infrastructure and the ASCE comes up with a $5 trillion total. It is the gap between what we have been spending and what we need to. Also one has to bear in mind that neglect worsens condition and increases repair costs.
One notable example of maintenance is the Forth rail bridge in Scotland. A crisscross of beams forming three superstructures linked together, it was a sensation when opened in 1890 and now is a UN World Heritage Site. Spanning 1.5 miles, its upkeep requires a regular coat of paint. And that it gets. Rumor has it that when the unobtrusive painters reach the end of their task, it is time to start painting again the end where they began — a permanent job to be sure though new paints might have diminished such prospects.
Biden also proposes $80 billion for railways. Anyone who has travelled or lived in Europe knows the stark contrast between railroads there and in the U.S. European high-speed rail networks are growing from the established TGV in France to the new Spanish trains. Run by RENFE, the national railway, Alta Velocidad Española (AVE) trains run at speeds up to 310 km/h (193 mph) — a speed that amounts to a convenient overnight trip between Los Angeles and Chicago.
The hugely expensive new tracks needed can be considered a long-term investment in our children’s future. But it will take courage to contest the well-heeled lobbies of the airplane manufacturers, the airlines and big oil.
If Spain can have high-speed rail and if China already has some 24,000 miles of such track, surely the US too can opt for a system that is convenient for its lack of airport hassle and the hour wasted each way in the journey to or from the city center. Rail travel not only avoids both but is significantly less polluting.
Particularly bad, airplane pollution high above (26 to 43 thousand feet) results in greater ozone formation in the troposphere. In fact airplanes are the principal human cause of ozone formation.
Imagine a comfortable train with space to walk around, a dining car serving freshly cooked food, a lounge car and other conveniences, including a bed for overnight travel; all for a significantly less environmental cost. When we begin to ask why we in the US do not have the public services taken for granted in other developed countries, perhaps then the politicians might take note.
Congress and the Biden administration should end FBI immunity overseas
The FBI notably has an extended international presence running 63 offices in select countries overseas. The offices are called “legats” and are situated at the US Embassy in the host country. One of the major reasons for FBI’s international presence is fighting international terrorism.
The FBI legat personnel at the US embassies are fully accredited diplomats enjoying full diplomatic immunity but that poses several questions that are worth asking, such as: how is it possible for law enforcement to be diplomats and is that a good idea, legally speaking?
Police work should not enjoy diplomatic immunity because that opens the door to abuse. Does the FBI’s immunity overseas mean that the FBI attaches can do no wrong in the host country? How do we tackle potential rights infringements and instances of abuse of power by the FBI towards locals in the host country? The DOJ Inspector General and the State Department Inspector General would not accept complaints by foreigners directed at the FBI, so what recourse then could a local citizen have vis-a-vis the FBI legat if local courts are not an option and the Inspector Generals would not look into those cases?
This presents a real legal lacuna and a glitch in US diplomatic immunity that should not exist and should be addressed by Congress and the new Biden administration.
While FBI offices overseas conduct some far from controversial activities, such as training and educational exchanges with local law enforcement, which generally no one would object to, the real question as usual is about surveillance: who calls the shots and who assumes responsibility for potentially abusive surveillance of locals that may infringe upon their rights. It’s an issue that most people in countries with FBI presence around the world are not aware of. The FBI could be running “counter-terrorism” surveillance on you in your own country instead of the local police. And that’s not nothing.
When we hear “cooperation in the area of counter-terrorism”, as recent decades show, there is a great likelihood that the US government is abusing powers and rights, without batting an eyelash. That exposes local citizens around the world to unlawful surveillance without legal recourse. Most people are not even aware that the FBI holds local offices. Why would the FBI be operating instead of the local law enforcement on another country’s territory? That’s not a good look on the whole for the US government.
The legal lacuna is by design. This brings us to the nuts and bolts of the FBI legats’ diplomatic immunity.
Diplomatic immunity is governed by the Vienna Convention on Diplomatic Relations of 1961, under Chapter III on privileges and immunities. The US is also a state party to the Convention, along with most states around the world. While there could be some variations and disagreements on bilateral basis (including on weather for example one state could be hosted and represented through the embassy of another state in a third state), on the whole there is a universal consensus that the Vienna Convention sets the rules establishing diplomatic immunities and privileges.
Under the Vienna Convention, only top diplomats are given the highest degree of immunity from the law. This means they cannot be handcuffed, arrested, detained, or prosecuted by law enforcement officials of the country in which they’re stationed. Diplomatic immunities and privileges also include things like diplomatic “bags” (with very peculiar cases of what that could entail) and notably, protection and diplomatic immunity for the family of diplomats.
It is a universal consensus that not everyone who works at an Embassy has or should have diplomatic immunity. Immunity is saved for diplomats whose role has to be protected from the local jurisdiction of the country for a reason. Not all embassy staff should enjoy diplomatic immunity. Granting law enforcement such as the FBI full legal immunity for their actions is bad news.
Only the top officials at an embassy are diplomats with an actual full immunity — and that’s for a reason.
It makes sense why a diplomat negotiating an agreement should not be subjected to local courts’ jurisdiction. But the same doesn’t go for a law enforcement official who acts as a law enforcement official by, for example, requesting unlawful surveillance on a local citizen, in his law enforcement capacity, while thinking of himself as a diplomat and being recognized as such by the law.
Law enforcement personnel are not diplomats. Dealing with extraterritorial jurisdiction cases or international cases is not the same thing as the need for diplomatic immunity. If that was the case, everyone at the export division at the Department if Commerce would have diplomatic immunity for protection from foreign courts, just in case. Some inherent risk in dealing with international cases does not merit diplomatic immunity – otherwise, this would lead to absurdities such as any government official of any country being granted diplomatic immunity for anything internationally related.
The bar for diplomatic immunity is very high and that’s by design based on an international consensus resting upon international law. Simply dealing with international cases does not make a policeman at a foreign embassy a diplomat. If that was the case every policeman investigating an international case would have to become a diplomat, just in case, for protection from the jurisdiction of the involved country in order to avoid legal push-back. That’s clearly unnecessary and legally illogical. Being a staff member at an embassy in a foreign country does not in and of itself necessitate diplomatic immunity, as many embassy staff do not enjoy diplomatic protection. It is neither legally justified nor necessary for the FBI abroad to enjoy diplomatic immunity; this could only open up the function to potential abuse. The FBI’s arbitrary surveillance on locals can have a very real potential for violating the rights of local people. This is a difference in comparison to actual diplomats. Diplomats do not investigate or run surveillance on locals; they can’t threaten or abuse the rights of local citizens directly, the way that law enforcement can. Lack of legal recourse is a really bad look for the Biden administration and for the US government.
The rationale for diplomatic immunity is that it should not be permitted to arrest top diplomats, who by definition have to be good at representing their own country’s interests in relation to the host state, for being too good at their job once the host state is unhappy with a push back, for example. The Ambassador should not be exposed to or threatened by the risk of an arrest and trial for being in contradiction with the interests of the host state under some local law on treason, for example, because Ambassadors could be running against the interests of the host state, by definition. And that’s contained within the rules of diplomatic relations. It’s contained in the nature of diplomatic work that such contradictions may arise, as each side represents their own country’s interests. Diplomats should not be punished for doing their job. The same doesn’t apply to the FBI legats. Issuing surveillance on local citizens is not the same as representing the US in negotiations. The FBI legats’ functions don’t merit diplomatic immunity and their actions have to be open to challenge in the host country’s jurisdiction.
The FBI immunity legal lacunae is in some ways reminiscent of similar historic parallels, such as the George W. Bush executive order that US military contractors in Iraq would enjoy full legal immunity from Iraqi courts’ jurisdiction, when they shouldn’t have. At the time, Iraq was a war-torn country without a functioning government, legal system or police forces. But the same principle of unreasonable legal immunity that runs counter international laws is seen even today, across European Union countries hosting legally immune FBI attaches.
Congress and the Biden administration should end FBI immunity overseas. It can be argued that for any local rights infringements, it is the local law enforcement cooperating with the US Embassy that should be held accountable – but that would ignore that the actual request for unlawful surveillance on locals could be coming from the FBI at the Embassy. The crime has to be tackled at the source of request.
When I reached out to the US Embassy in Bulgaria they did not respond to a request to clarify the justification for the FBI diplomatic immunity in EU countries.
To prevent abuse, Congress and the Biden Administration should remove the diplomatic immunity of the FBI serving overseas.
Competition and cooperation between China and the United States and the eighth priority
In mid-March U.S. President Biden held his first press conference since taking office. Speaking about Sino-U.S. relations, Biden said: “I will prevent China from surpassing the United States of America during my term of office”. At the same time, he also stressed that he would not seek to confront China, but to keep up fierce competition between the two countries.
Focusing on competition between major powers is one of the important changes in U.S. foreign policy in recent years. As the strengths of China and the United States draw closer together, the United States increasingly feels that its own ‘hegemony’ is threatened. During Trump’s tenure, the United States has caused a trade war, a technology war, and even a complete disagreement with China in an attempt to curb China’s development momentum and erode Chinese positions.
The expansion of the competitive field and the escalation of the competitive situation have become the hallmarks of Sino-U.S. relations during this period. Although Biden’s policy line has made substantial changes to ‘Trumpism’, it still has much of its predecessor’s legacy with regard to its policy towards China.
The first foreign policy speech made by U.S. Secretary of State Tony Blinken listed China Challenge as the eighth priority, preceded by:
1) ending the COVID-19 pandemic;
2) overcoming the economic crisis, reviving the economy at home and abroad, as well as and building a more stable and inclusive global economy;
3) renewing democracy;
4) reforming immigration and creating a humane and effective immigration system;
5) rebuilding alliances, revitalising U.S. ties with allies and partners with the system that the military calls force multiplier;
6) tackling climate change and leading a green energy revolution;
7) securing U.S. leadership in technology; and
8) confronting China and managing the greatest geopolitical test of the 21st century, i.e. relations with China, which is the only country with economic, diplomatic, military and technological power to seriously challenge the international system and equilibria.
The eighth medium-term guideline for the national security strategy sees China as an important competitor. These guidelines clearly show that competition still sets the tone in the way President Biden’s Administration’s manages relations with China, as was the case in the previous four-year period.
At a press conference on March 26, 2021, Chinese Foreign Ministry spokesperson Hua Chunying said the above statements were not surprising. It is clear that China and the United States are competing on different interest levels.
The key factor, however, is to compete fairly and justly and to improve oneself. The appeal to the other side is moderation and restraint, not life or death, or a zero-sum game. These words are along the same lines as Foreign Minister Wang Yi’s statement when he spoke about Sino-U.S. relations at a session of the National Congress of People’s Representatives of the People’s Republic of China (the Chinese Parliament). It is not only a response to the U.S. strategy of competition with China, but it also provides a model for the future way in which superpowers should proceed together.
The reality of Sino-U.S. competition is unavoidable, but competition can be divided into benign and vicious. The former is a winning model for “improving oneself and understanding the needs of the other side”.
Since Deng Xiaping’s reforms and opening up to international trade, China has begun its own reconstruction. It has continuously widened the scope for benign competition and has changed its mindset by actively embracing the world’s different political parties and participating in international competition. It has also inspired enthusiasm for innovation and creativity and made progress in various fields.
At the same time, development has also provided ample opportunities for countries around the world and injected growth momentum into the global economy: this is a typical example of China’s good interaction and common development with all countries around the globe.
Conversely, fierce competition means breaking rules and systems and even breaking the demarcation line to prevent or contain the opponent, and this is usually followed by fierce conflicts.
The two World Wars of the last century were extreme examples of violent competition between great powers: the first as a clash between capitalist imperialisms in search of new markets; the second as a result of mistakes made in the peace treaties that ended the Great War, plundering the losers and causing misery, resentment and chauvinistic desires.
In today’s world, competition without respect for the other side has not disappeared from the scene of history. Trump Administration’s frantic anti-China activity over the last four years has not only failed to make the United States ‘great again’, but has caused a linear decline in its national competitiveness, at least according to the World Competitiveness Yearbook 2020 published by the Lausanne-based International Institute for Management Development, which sees the United States dropping from third to tenth place. Besides the fact that its international image has seriously plummeted and Sino-U.S. relations have hit the lowest ebb since the establishment of diplomatic relations. It can clearly be seen that fierce competition will only restrain its promoters and ultimately harm the others, themselves and the international community.
In December 2020 General Mark Alexander Milley, Chairman of the Joint Chiefs of Staff (a body that brings together the Chiefs of Staff of each branch of the U.S. military and the Head of the National Guard Bureau), said in an interview that ‘great powers must compete. This is the essence of the world’.
There is no problem with this statement: it is not wrong, but it is important to maintain a state of competition and contact between major powers, precisely to ensure that it does not turn into conflicts or wars that are fatal to mankind and the planet as a whole.
The gist of the speech shows that some U.S. elites also believe that China and the United States should adhere to the principle of ‘fighting without breaking each other’. The importance and the overall and strategic nature of Sino-U.S. relations determine that no one can afford the zero-sum game, which is a lose-lose as opposed to a win-win game – hence we need to ensure that competition between the two countries stays on the right track.
Competition between China and the United States can only be fair and based on rules and laws. This is the basic rule of international relations, in accordance with the Charter of the United Nations as its point of reference.
Regardless of the common interests of China, the United States or peoples in the world, both countries should make this system promote healthy and fair competition, thus turning it into the greatest value of sharing and cooperation.
China’s goal has never been to surpass the United States, but to advance steadily and become better and no longer a prey to imperialism and colonialism as it has been the case since the 19th century, when Great Britain waged the two Opium Wars (1839-1842 – 1856-1860) to have not only the opportunity, but also the right to export drugs to the Middle Empire – hence Great Britain was the first pusher empowered and authorized by the force of its weapons.
Although – by its own good fortune -the United States has never been England, it should not always be thinking of surpassing the others or fearing being overtaken by the others, but should particularly focus on Secretary of State Blinken’s first seven priorities and raise its expectations.
China should show its traditional political wisdom and manage Sino-U.S. relations in accordance with the principles of non-conflict, non-confrontation, mutual respect and win-win cooperation, so that Sino-U.S. relations can develop in a healthy and stable way for the good of the whole planet.
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