President Donald Trump’s appointment of John Bolton as National Security Adviser effective April 9, 2018, should provoke a statute requiring Senate confirmation. Congressman Bill Foster, Illinois Democrat, has introduced a bill to that effect.
Among other things amplified anon, Mr. Bolton has long advocated wars of aggression against North Korea and Iran indistinguishable from Nazi crimes against peace prosecuted by U.S. Chief Prosecutor Robert Jackson at Nuremberg.
Excepting the president, the National Security Adviser has come to wield more power than any other Executive Branch officer. Henry Kissinger exercised vastly more authority over foreign policy as National Security Adviser to President Richard Nixon than did Secretary of State William Rogers, who was confirmed by the Senate. Secretary Rogers was clueless about Mr. Kissinger’s secret overtures to the People’s Republic of China and Chairman Mao Zedong. President Jimmy Carter’s National Security Adviser, Zbigniew Brzezinski, was similarly more powerful than Senate-confirmed Secretary of State Cy Vance.
Other officers of the United States requiring confirmation underscore the jarring National Security Adviser anomaly. They include the Secretary of Defense, Director of National Intelligence, Director, Inspector General, and General Counsel of the Central Intelligence Agency, Director of the Defense Intelligence Agency, and, the Administrator of the National Nuclear Security Administration.
The Appointments Clause of the U.S. Constitution militates against the National Security Adviser aberration. It makes Senate confirmation of “officers of the United States” the norm. Congress may by statute create exceptions for “inferior officers.” But it has not done so for the adviser—even assuming the office qualifies as “inferior.”
The National Security Act of 1947, as amended, created a National Security Council to advise the President. Its statutory Cabinet members are confirmed by the Senate. Others, including the National Security Adviser, are appointed by the president alone. The NSC professional staff cannot exceed 200. In 1977, President Carter elevated the National Security Adviser to Cabinet-level status, but President Reagan revoked the elevation.
The position of National Security Adviser was by presidential decree in 1953. When Congress delegated that authority to the president, it did not imagine the vast power that the National Security Adviser would come to exercise. It never made a conscious decision to exception the office from Senate confirmation — the constitutional norm. Proponents of continuing the exception thus have the burden of persuasion, which they have not discharged.
Alexander Hamilton elaborated the Senate confirmation purpose in Federalist 76:
“[T]he necessity of their concurrence would have a powerful, though in general, a silent operation. It would be an excellent check upon a spirit of favoritism in the President, and would tend greatly to prevent the appointment of unfit characters from State prejudice, from family connection, from personal attachment or from a view to popularity…”
President Donald Trump’s debacle in appointing retired Lt. General Michael Flynn as National Security Adviser might have been avoided if Senate confirmation had been required. He soon pleaded guilty to lying to the FBI about conversations with the Russian ambassador; and was fired. He also had been an unregistered foreign agent for Turkey in violation of the Foreign Agents Registration Act.
Requiring Senate confirmation of Mr. Bolton‘s appointment seems especially compelling. Multiple areas deserve scrutiny in addition to his advocacy of crimes of aggression: falsely claiming Saddam Hussein possessed WMD and Fidel Castro was developing biological weapons; unmasking the names of Americans whose conversations had been intercepted by the National Security Agency under the Foreign Intelligence Surveillance Act (FISA); urging capital punishment for Edward Snowden, whose disclosures provoked Congress to reform FISA; and, advocating everything short of active hostilities against China over its de facto “Monroe Doctrine” in the South China Sea.
In 2005, the Republican Senate denied Mr. Bolton confirmation as United Nations ambassador because of credible evidence that he had chronically asked the intelligence community to “cook the books” to advance a neocon agenda and derided subordinates. He fully endorses former Secretary of State Dean Acheson’s arrogant sermonizing that, “[I]n the final analysis, the United States was the locomotive at the head of mankind and the rest of the world was the caboose.”
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