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2. As a legal matter, the St Patricks Day Boba Shamrocks shirt in contrast I will get this North Atlantic Treaty allows states to calibrate their response to an armed attack. Article V of the treaty provides in pertinent part that: The Parties agree that an armed attack against one or more of them in Europe or North America shall be considered an attack against them all and consequently they agree that, if such an armed attack occurs, each of them, in exercise of the right of individual or collective self-defence recognised by Article 51 of the Charter of the United Nations, will assist the Party or Parties so attacked by taking forthwith, individually and in concert with the other Parties, such action as it deems necessary, including the use of armed force, to restore and maintain the security of the North Atlantic area. (emphasis added) This provision creates some useful flexibility for parties to manage escalation risk in the context of a potentially very dangerous situation – the facts at hand will matter as the alliance, and its members, determine what actions are necessary in any particular situation (as Acting Legal Adviser Visek also emphasized in the HFAC hearing). With respect to a major attack, in practice the alliance has tended to signal that such uses of force will be met in kind. For purposes of the present crisis, President Biden has stated that the United States will “defend every inch of NATO territory with the full force of American power.” 3. Although executive branch lawyers have over the past several decades found that the president has some unilateral authority to use force to advance sufficiently important national interests, they have also taken the view that such actions may not by their “anticipated nature, scope and duration” amount to “war in the constitutional sense” and thus impinge on Congress’s authority under Article I. In assessing the “nature, scope, and duration” of anticipated military action, the risk of escalation is a particularly important factor.

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Administration witnesses repeatedly cited this constraint on the St Patricks Day Boba Shamrocks shirt in contrast I will get this President’s war powers during the recent HFAC hearing and noted the relevance of escalatory risk in taking military action with respect to the Ukraine conflict, including the anticipated response from Russia. Acting Legal Adviser Visek stated that “if the assessment [by the executive branch] is that it would be escalatory to war, then absolutely, we would need to come to the Congress” for authorization. This caution seems consistent with past executive branch practice: if “war in the constitutional sense” means anything, it must mean war with Russia. Yet, it should be noted that the mere request by the President to Congress for a use of force authorization could be viewed as provocative by Russia and itself be escalatory. All of this said, as a practical matter, the President is not likely to feel legally inhibited from taking those steps he deems necessary to defend U.S. forces stationed in a NATO member state should they come under direct attack, even without congressional approval. There are many variations on this hypothetical, and whether self-defense exigencies present a compelling legal justification for the use of force without prior congressional authorization would depend on facts and circumstances that fortunately have not yet developed. Thus far, President Biden and his administration have made clear that they understand the risks of escalating to this point, and are clearly working to avoid a nightmare scenario.

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