Mattis, Tillerson: No authority for military action in North Korea outside ‘imminent threat’

President Trump does not have authority to use military force in North Korea outside of an imminent threat, Defense Secretary James Mattis and Secretary of State Rex Tillerson told lawmakers Monday.

But they declined to define what they consider an imminent threat to be.

Mattis and Tillerson were testifying before the Senate Foreign Relations Committee on the issue of authorization for the use of military force (AUMF).

Committee ranking member Sen. Ben Cardin (D-Md.) asked the pair if they agree there is no congressional authorization for the use of force in North Korea.

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“I understand the president’s authorities under Article II. There’s an imminent threat against the United States, he has certain powers. But as far as congressional authorization, there is no authorization. Is that correct?” Cardin asked.

Tillerson replied: “That’s my understanding, yes.”

“I believe the president has Article II, you know, authority only,” Mattis added.

Later in the hearing, Sen. Chris Murphy (D-Conn.) pressed them further on whether they believe the president needs congressional authorization to strike North Korea.

“I think it would depend again on all circumstances. It’s a fact-based decision,” Tillerson said. “It is a question of the threat, the imminent threat, the nature of the threat as to whether the president would then exercise his authorities without the need for congressional authorizations.”

Mattis added he could see a scenario in which there is not enough time to notify Congress before striking.

“I believe under Article II, he has a responsibility to protect the country and if there was not time, I could imagine him not consulting or consulting as he’s doing something along the lines of for example of what we did at Shayrat air field in Syria where we struck that and Congress was notified immediately,” Mattis said. “In this case of North Korea, it would be a direct imminent or actual attack on the United States I think Article II would apply.”

But asked by Murphy whether possessing a nuclear weapon would be considered an imminent threat, Tillerson and Mattis said that was too hypothetical.

“I’m always reluctant to get into too many hypotheticals because the possession could be sitting in an underground, not-ready-to-be-used condition or the possession could be sitting upright on the tail about to be launched,” Tillerson said. “So again, I think it would have to be fact based and given consideration as to the circumstances around an imminent threat.”

Mattis added that he agrees. 

“I think this is an area where a number of facts would have to bear on the problem in order to give you a complete answer,” Mattis said.