13 February 2022
“Reporter: I have wanted to ask you about this Nord Stream project that you have long opposed. You didn’t mention it just now by name, nor did chancellor Scholz. Did you receive assurances from chancellor Scholz today, that Germany will in fact pull the plug on this project, if Russia invades Ukraine…
President Biden: If Russia invades that means tanks and troops crossing the border of Ukraine again, there will be no longer a Nord Stream 2, wee will bring an end to it.
Reporter: but, how will you do that exactly, since the project and control of the project is within Germany’s control.
President Biden: We will, I promise you we will be able to do that.”
Briget Jennen & Jenny Leonard, “Biden Sees Halt to Nord Stream 2 If Russia Invades Ukraine”, Bloomberg, 7 February 2022.
“‘Tragical, comical, historical, pastoral’- the literature on how presidents conduct U.S. foreign policy within the executive branch flows on copiously”
William Bundy, “The National Security Process”, 7(3) International Security, pp.94-109 (1982-83).
The American National Security Adviser is a governmental position forming part of the National Security Council established by the National Security Act of 1947. Other participants in this body are the Vice President, The Secretary of Defence, Secretary of State and the Director of the Central Intelligence Agency.
Shifting political dynamics have shaped the nature of the National Security Adviser’s influence over the President’s decisions relating to foreign policy, armed operations, and national security in the unique American sense of the word.[1] The President is the military’s commander in chief as well as the person who orders CIA’s activities, including covert and overt paramilitary operations. Biden’s quote at the beginning of this essay is extremely problematic as it reveals an intent to engage in an armed activity that could constitute a serious violation of international law punishable in appropriate foreign jurisdictions.[2] Both international unauthorized American intervention in a distant and unrelated possible armed conflict as well as the character of the action discussed would constitute serious violations of international law.
Immediate responsibility for such an illegal operation would be incurred by the individuals who carried it out and their respective commanders, up to the top of the chain of command, either at the military or the CIA.
The President who will have most probably ordered this action will be criminally responsible for ordering a war crime. He will also be included in the group who engaged in consultations towards formulating the decision the take this measure, all being equally jointly responsible for intending to commit a grave international crime. Secretary of Defense Lloyd Austen, National Security Adviser Jake Sullivan, and U.S. Secretary of State Antony Blinken, and CIA Director William Burns are captured in this group.
Since we don’t know whether such operation would be reported to or considered by the Senate Select Committee on Intelligence established in the American political climate of 1976, we can only analyze based on reasonable indications who in the National Security Council would advocate for a clear gross violation of international law.
Secretary of Defense Lloyd Austin has recently expressed caution regarding military bombarding schemes by issuing a special directive on the need to adhere to the law of armed conflict which protects civilians and civilian objects during armed conflict, presuming the engagement in such a conflict has been deemed legal under international law. Austen’s directive has been issued pursuant to revelations about the U.S. military’s failure to abide by applicable international norms.[3] It states that:
DoD has built a strong foundation of compliance with the law of armed conflict. We strive diligently to minimize the harm that armed conflict visits upon civilian populations, but we can and will improve upon our efforts to protect civilians. We will revisit the ways in which we assess incidents that may have resulted in civilian harm, acknowledge the harm to civilians that resulted from such incidents, and incorporate lessons learned into the planning and execution of future combat operations and into our tactics, techniques, and procedures.[4]
Given the declared approach by Austen, and his public statements allowing space for diplomacy as well as not considering the conflict with Russia inevitable, [5] it is unlikely, even if not impossible, that he would openly advise the President in a National Security Council meeting to take a military action against a civilian objective, let alone declare it in a public statement. A career diplomat, the Director of the CIA William Burns is not the primary suspect of advance such a combative approach, although given CIA’s notorious history in American foreign relations, he should not be excluded from the list of advocates for the perpetration of a reprehensible international crime.
That leaves National Security Adviser Jake Sullivan and Foreign Secretary of State Antony Blinken. Both served as Biden’s National Security Advisers when Biden occupied the Vice Presidency.[6] Sullivan in 2013 – 2014 and Blinken in 2009 – 2013. Biden is considered an extreme hawk on foreign policy issues, who not only facilitated the 2003 invasion of Iraq in Congress, but also wholeheartedly supported its execution.[7] His advisers are more likely than not to reflect his image, opinions, and dangerous approach to foreign affairs.
National security advisers and other consultants to the American President may often invoke their personal beliefs and policies urging a militarized solution to international problems. During Obama’s presidential tenure Samantha Power excelled in pushing for a military intervention in international difficulties prompting the president to tell her frustratingly “You get on my nerves” and “We’ve all read your book, Samantha”.[8]
As current and former national security advisers to a President who prefers to project power, rather than resolve potential international tensions diplomatically, both Sullivan and Blinken follow in the footsteps of their interlocutor and ultimate instructor who has developed a sharp contrast between aging and wisdom. Notwithstanding the shifting stature of the national security adviser throughout the years, and the lack of any specific legislating regulating the specific role, he remains the closest official to the President shaping his foreign policy priorities and rhetoric.[9]
Sullivan believes that in every international crisis, the United States should be places in a position of strength, a notion proclaimed by U.S. Secretary of State Dean Acheson (1949 – 1953) and remains valid to this day, according to his contemporary follower.[10]Sullivan has been the most outspoken official of the current administration about the conduct of Russia and the anticipated consequences to its potential actions in relation to Ukraine.[11] His repeated alarming appearances have disregarded the facts that this issue is far away from the United States, no imminent military threat or otherwise has been levelled against Sullivan’s country, and America’s NATO allies are seeking to resolve the discussed tensions diplomatically,[12] or simply differ with the American bullying approach to international relations.[13]
Any investigation into a potential American illegal involvement in the Russia – Ukraine dispute should start with Biden’s statement opening this essay and his closest adviser on foreign policy national security adviser Jake Sullivan. Failing to capture the essence of America’s behavior in this crisis is simply to succumb to the dull repetition of the mainstream American press which parrots Sullivan’s clichés ignoring the severe ramifications that international law could generate.
Jake Sullivan, Biden's National Security Adviser
[1] Discussing American foreign policy always entails an exercise in burdening moral relativism. While it is an accepted norm in the American political and cultural arena that the constant objective of American undeclared foreign policy is to instigate internal and international conflicts (chaos; destruction; “hell”), engage in egregious behaviour against civilians in and outside of armed conflicts (explosions; “damage”; “shock”), and blame others for the destructive outcomes, it seems irrelevant for many academic and cultural elites to explore the central role of the United States in conscious and global disrespect for international law.
[2] The nature of the American political culture and its legal system and tradition leaves little to know prospect for adjudicating these issues in a domestic legal setting.
[3] Eric Schmitt et al, “Austin Orders U.S. Military to Step Up Efforts to Prevent Civilian Harm”, New York Times, 27 January 2022.
[4] U.S. Secretary of Defence, Memorandum for Secretaries of the Military Departments, 27 January 2022.
[5] Tony Bertuca, “Austin says ‘conflict is not inevitable ’between Russia and Ukraine”, Inside Defense, 28 January 2022.
[6] Given the increased tensions between Biden and Vice President Harris, I doubt she would have any leverage over his decision on foreign policy issues, either in support or as an opposition to his policies.
[7] Mark Weisbrot, “Joe Biden championed Iraq the war. Will that come back to haunt him now?” The Guardian, 18 February 2020.
[8] Dexter Filkins, “The Moral Logic of Humanitarian Intervention”, The New Yorker, 9 September 2019.
[9] Ivo Daalder & I. M. Destler, “‘In the Shadow of the Oval Office”, Foreign Affairs, January / February 2009. See also Shannon Mohan, “Memorandum for Mr. Bundy’: Henry Kissinger as Consultant to the Kennedy National Security Council”, 71(2) The Historian, pp.234-257 (2009); Kevin Mulchay, “The Secretary of State and the National Security Adviser: Foreign Policy Making in the Carter and Reagan Administrations”, 16(2) Presidential Studies Quarterly, pp.280-299 (1986); Arthus Cyr, “How Important is National Security Structure to National Security?”, 146(2) World Affairs, pp.127-147 (1983); William Bundy, “The National Security Process”, 7(3) International Security, pp.94-109 (1982-83); Gordon Hoxie, “The National Security Council”, 12(1) Presidential Studies Quarterly, pp.108-113 (1982); Barbara Keys, “Henry Kissinger: The Emotional Statesman”, 35(4) Diplomatic History, pp.587 – 609 (2011); Council on Foreign Relations, U.S. National Security as Seen by Three former National Security Advisers, 29 January 2022.
[10] Jake Sullivan remarks at the Council on Foreign Relations, 17 December 2021.
[11] On 11 January 2022 Sullivan failed to confirm whether he believed Russia’s statements that it does not intend to invade Ukraine. Since at least 6 February 2022 Sullivan has been publicly claiming that Russia’s invasion could take place at any time. See “National Security Adviser Jake Sullivan on Russia – Ukraine Tensions”, NBC, 11 January 2022; “Jake Sullivan: Russian Invasion of Ukraine Could Happen Any Time”, NBC, 6 February 2022; “Russia invasion of Ukraine could begin during Olympics: White House”, NBC, 11 February 2022.
[12] AFP, “US silent on whether Macron’s Russia visit helped ease Ukraine crisis”, France24, 11 February 2022.
[13] Aljazeera, “Biden: US and Germany working in ‘lockstep’ on Ukraine crisis”, Al-Jazeera, 7 February 2022.
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