What We Learned From Congress's Latest Review of the President's Ability to Use Nukes
There are few limits on the command and chief's nuclear authority, but that might still be the least worst option.
With the threat of a nuclear conflict at its highest point in decades, Americans and their representatives in government have become increasingly concerned about what checks and balances there are on the President of the United States' ability to use the most deadly weapons in the United States’ arsenal. In a public hearing, U.S. Senators have unfortunately found that it’s as difficult as ever to present a credible deterrent threat and impose meaningful restrictions on the Commander in Chief's sole authority to approve a potentially world-ending strike.
On Nov. 14, 2017, the U.S. Senate Foreign Relations Committee spent more than two hours discussing the matter with retired U.S. Air Force General C. Robert Kehler, who formerly headed up U.S. Strategic Command, former Acting Under Secretary of Defense for Policy Brian McKeon, and Duke University Professor of Political Science and Public Policy Dr. Peter D. Feaver. The last time legislators took up the issue in public was in 1976, when what was then the House Committee on International Relations specifically explored the legal underpinnings of a nuclear first strike. Senator Bob Corker, a Tennessee Republic and chairman of the Senate Foreign Relations Committee said that this would be the first in a series of such gatherings that would fully explore the president’s authorities with respect to armed conflict and entering and withdrawing from international agreements.
“Only the president, the elected political leader of the United States, has this authority” to order a nuclear strike, Corker stated in his opening remarks. The senator later insisted that the hearing was “not specific to anybody” and that a general review of the authorities and protocols was “long overdue.”
Below is a video of the hearing in its entirety.
But it is impossible to separate the debate over the use of nuclear weapons from President Donald Trump and his many public threats, particularly those directed at North Korea. Trump has repeated alluded to the possibility of employing them against the reclusive country and its leader Kim Jong-un.
“North Korea best not make any more threats to the United States,” Trump said in August 2017 in what are now particularly infamous remarks. “He [Kim] has been very threatening beyond a normal state, and as I said, they will be met with fire and fury and, frankly, power, the likes of which this world has never seen before.”
Then, when speaking to the United Nations General Assembly in September 2017, Trump said Kim, who he called "rocket man," was on a "suicide mission." "The United States has great strength and patience, but if it is forced to defend itself or its allies, we will have no choice but to totally destroy North Korea," Trump said to audible gasps from the assembled world leaders and diplomats.
Most recently, during a state visit to South Korea earlier in November 2017, Trump continued to issue rhetorical challenges to the North Korean regime. In a speech before the South Korean National Assembly, the country's parliament, he described the North as a "hell that no person deserves."
"Today, I hope I speak not only for our countries, but for all civilized nations, when I say to the North: Do not underestimate us, and do not try us," Trump declared. "Every step you take down this dark path increases the peril you face."
Since January 2017, the North Koreans have responded in kind with their own threats, including suggesting they might be planning an unprecedented atmospheric thermonuclear weapon test. In July 2017, the Hermit Kingdom successfully test fired its first intercontinental ballistic missile (ICBM). Two months later they set off their first hydrogen bomb.
“Let me pull back the cover for a minute from this hearing,” Senator Chris Murphy, a Connecticut Democrat, said during the November 2017 hearing. “We are concerned that the president of the United States is so unstable, is so volatile, has a decision-making process that is quixotic, that he might order a nuclear weapons strike that is wildly out of step with U.S. national security interests.”
In October 2017, Corker himself said that Trump could be setting the United States "on the path to World War III." "He concerns me," the Senator continued. "He would have to concern anyone who cares about our nation."
At present, the United States maintains what it calls the "nuclear triad" – bombers capable of carrying nuclear bombs and missiles, land-based ICBMs, and submarines packed with nuclear armed ballistic missiles – to deter other countries from launching their own such strike. The basic principle of this posture is that no opponent would have any reasonable chance of knocking out America’s nuclear arsenal in a first strike and escaping an apocalyptic retaliatory attack.
The U.S. military is in the process of a routine nuclear posture review that could lead to changes in this doctrine. Despite earlier comments to the contrary, Secretary of Defense James Mattis has said that he believes the final decision will be to retain all three legs of the triad, though.
The U.S. Air Force and Navy are also in the midst of a multi-billion dollar effort to modernize their nuclear capabilities, which includes programs to develop and procure new B-21 stealth bombers, nuclear capable cruise missiles, ICBMs, and ballistic missile submarines. Earlier in November 2017, the Congressional Budget Office calculated it would cost more than $1.2 trillion to both improve and maintain America's nuclear triad over the next three decades. Even with that hefty price tag, the Air Force has said it isn't happy with how fast the work is coming along and is looking to congress for help in speeding up the process.
"My sense is that we’re in a good place right now in terms of how we’re working with industry going forward," U.S. Air Force Chief of Staff David Goldfein told Defense One in an interview. "The question I’ll continue to have is: How do I move it left. How do we get this capability earlier. Because if you can actually get it faster, you can get it cheaper sometimes."
Many of the exact authorities and procedures for actually using those weapons are understandably classified. However, in order for the deterrent to be credible, some key details have to be public so as to communicate the risks to any adversary.
Perhaps most importantly, the United States does not have a policy of “no first use,” reserving the right to employ its nuclear arsenal in response to an equally threatening or destructive conventional attack. According to the U.S. military’s official nuclear war plan, the president can send the order “in the event of a hostile act or intent.”
We obtained this document through the Freedom of Information Act and though heavily redacted, it offered many important details about how the United States would go about authorizing and launching a nuclear strike. You can find our full analysis here.
“There is nothing in this [OPLAN] that indicates a constraint on potential nuclear use, except that strikes have to comply with the Law of Armed Conflict, etc,” Hans Kristensen, head of the Federation of American Scientists’ Nuclear Information Project, told The War Zone in April after review the documents.
“The implication is nuclear use only in extreme conditions,” Dr. William Burr, in charge of the nuclear history documentation project at the National Security Archive at The George Washington University, also explained to us at the time. “I would say that in such a circumstance, the decision would be left to the president and his advisers. One size would not fit all so to speak.”
The assumption has long been that giving the president full decision making powers regarding the use of nuclear weapons is essential in making sure the order goes out, if necessary. Ballistic missiles fly so fast that the commander in chief could have 30 minutes or less to make a decision after the U.S. military detected a launch and determined whether or not it was threatening.
The fear has been that imposing a requirement to consult congress or hold an official legislative vote could easily prevent American nuclear forces from responding in time. Even giving another senior official or officials, such as the Vice President or Secretary of Defense, a formal say in whether or not to launch the strike could slow down the process to a dangerous degree.
Robust plans to maintain a so-called “continuity of government” in a crisis, something we at The War Zone have previously explored in depth, means that even if something happen to the president or other senior officials, this sole authority is always in the hands of a single individual. A mechanism known as the National Command Authority (NCA) does require the Secretary of Defense to confirm the order, but does not allow them to actively veto it. As such, the president can continue to fire and designate individuals to perform that function until someone approves the strike. The longer officials might attempt to dissuade the command in chief, the less time they would have to react to any incoming threats, though.
And with these procedures in place, specialized command centers and flying command posts such as Air Force One and the E-4B Nightwatch aircraft assure that whoever is in the role of commander in chief, they are always in contact with America's nuclear forces. Above all else, the U.S. has developed and built trillions worth of communications and other command and control infrastructure over the last 70 years to support the president or a designated representative's ability to rapidly order a decisive nuclear strike before they themselves are destroyed. Other nuclear powers have created similar measures for the same reasons.
The established protocol essentially accepts the lack of any real check and balance beyond the president asking for and accepting the counsel their closest advisers as necessary for the United States to offer a realistic threat of massive retaliation. At the same time, though, American military commanders are supposed to have the inherent right to refuse any orders they feel are unlawful. As already noted, the official U.S. military nuclear attack plan makes it clear that the strikes have to be in accordance with the Law of Armed Conflict, which requires any military action to be proportional to the hostile threat and to take all reasonable steps to avoid civilian casualties.
During the hearing, retired General Kehler said that had he received the order to launch a nuclear strike, but believed it to be lacking in legal justification, that he would have consulted his own advisers as to how to proceed. But since the United States is the only country to have ever used the weapons in anger and has only done so twice, there is no precedent whatsoever for how this might play out in an actual crisis.
“Then what happens?” Senator Ron Johnson, a Wisconsin Republican asked Kehler to try and clarify the hypothetical chain of events and understand if the retired officer was truly implying he might have actually disobeyed the command.
“I don't know,” Kehler said to nervous laughter from the assembled Senators.
An individual commander’s decision might not even matter. Bruce Blair, a co-founder of Global Zero, which advocates for the complete elimination of nuclear weapons around the world, and a former U.S. Air Force missile launcher offer, told the Associated Press that the orders would go to officials like Kehler and the crews in missile silos, aboard submarines, or flying bombers simultaneously.
If U.S. military officer felt that the order was illegal, they would have to try and countermand the launch procedures already in progress. By then, “it would be too late,” Blair said.
During the hearing former Acting Under Secretary of Defense for Policy McKeon challenged the notion that any president could simply decide to launch a nuclear strike absent a clear and imminent danger. "Article II does not give him carte blanche to take the country to war,” he said, referring to the part of the U.S. Constitution that establishes the Executive Branch of government and outlines its main authorities.
All three witnesses said they shared the view that without some clear instance of hostile intent for another country, the president would have to seek congressional approval for a nuclear attack. However, as we have noted, this stipulation does not appear to be formalized based unclassified portions of the Pentagon's own nuclear operations plans. In addition, there is already a separate ongoing debate about just what sorts of military action the Executive Branch can and cannot order without Congress formally declaring war – almost certainly something that Senator Corker intends to address in a future hearing.
And this of course isn’t the first time there have been concerns about whether the present system gives the president too much latitude. After North Korea shot down an American spy plane over international waters in 1969, the U.S. military dutifully drafted a set of possible responses for then President Richard Nixon, which included a limited nuclear strike. It is very possible that delays in communicating the details to the White House let tempers cool and prevented a potentially devastating exchange.
"No problem is presently more paramount than that of curbing the terror of nuclear weapons, particularly when one considers that their use could result in the devastation of modern civilization," Clement Zablocki, a Wisconsin Democrat and then Chairman of House Committee on International Relations, said in 1976. "Such was the concern that prompted various members of congress to introduce legislator which would renounce the first use-first strike of those weapons as part of U.S. strategic policy."
As we noted, the United States did not and still has not adopted such a policy in spite of repeated pressure to do so. In the 2010 nuclear posture review, the U.S. government did adopt language stating that it would not use or threaten to use nuclear weapons against non-nuclear nations that have signed the international Non-Proliferation Treaty (NPT) and are in compliance with their obligations under that agreement. In 2003, North Korea withdrew from the NPT, which it had never been in full compliance with despite having first acceded to the deal in 1985, becoming the first and only country to do so to date.
But there have long been concerns about Trump’s particular grasp of the implications of using nuclear weapons and his understanding of the triad in general. In August 2016, MSNBC’s Joe Scarborough claimed that the then Republican presidential candidate had repeated questioned why the United States even had deadly arsenal if the president couldn’t really use it.
Combined with Trump’s clear misunderstanding of the efficacy of the U.S. military’s missile defense shield, concerns have only continued to grow about whether he might initiate a nuclear attack believing it to be somehow consequence free for the United States. Even if that were true, the impact on our allies is still likely to be immeasurable.
At the November 2017 hearing, Senators also raised the question about whether publicly debating the president’s authority might itself undermine America’s deterrent credibility. "Every single word that's been uttered here this morning in this hearing is going to be analyzed in Pyongyang, and they are going to look very carefully at how we, the American people, view this," Senator James Risch, a Republican from Idaho, noted.
This is undoubtedly true. It has long been clear that the North Koreans are inclined to take official U.S. government pronouncements, including Trump’s off-the-cuff remarks, very seriously. They, in turn, have stressed that the United States should do the same.
Any potential adversary is likely to be on the lookout for any public changes to America's nuclear doctrine in order to analyze them for vulnerabilities. The U.S. government would have to weight any significant reforms to the highest echelons of the U.S. military's command and control structure against the knowledge that hostile powers would immediately look to exploit weaknesses in the new procedures.
What, if anything, will come of the hearing is unclear though. The discussion seemed to mainly underscore the difficulties in balancing the ability of the president to wield a realistic nuclear threat with policies that would limit them from deciding to use that power on a whim.
“I do not see a legislative solution today,” Senator Corker told reporters afterwards. “That doesn’t mean that over the course of the next several months one might develop.”
The U.S. government, its foreign allies, and opponents such as North Korea are certain to be watching how this debate evolves. More than four decades ago, though, American lawmakers decided that the present system was the least worst option to control the country’s nuclear arsenal.
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