Reply
 
Thread Tools Display Modes
  #1  
Old 11-18-2017, 04:37 PM
griffin1977 griffin1977 is offline
Guest
 
Join Date: Feb 2006
Posts: 2,804
What would an "illegal nuclear strike order" be?

I know this has been discussed here in the past but this comment by the commander of U.S. Strategic Command confused me:

Quote:
"And if it's illegal, guess what's going to happen? I'm going to say, 'Mr. President, that's illegal.' And guess what he's going to do? He's going to say, 'What would be legal?’ ”
So when this has been discussed here and elsewhere, the general conclusion is that the president (as commander in chief) has ultimate decision making power when it comes to when and how to launch America's nuclear arsenal, regardless of whether congress has or has not declared war. So, given that, what would make such an order illegal?
  #2  
Old 11-18-2017, 04:58 PM
Colibri Colibri is online now
SD Curator of Critters
Moderator
 
Join Date: Oct 2000
Location: Panama
Posts: 37,535
Since I doubt this is an established matter of law, let's move this to Great Debates.

Colibri
General Questions Moderator
  #3  
Old 11-18-2017, 05:02 PM
griffin1977 griffin1977 is offline
Guest
 
Join Date: Feb 2006
Posts: 2,804
Quote:
Originally Posted by Colibri View Post
Since I doubt this is an established matter of law, let's move this to Great Debates.

Colibri
General Questions Moderator
Well the commander of U.S. Strategic Command seems to think he can give the POTUS an unambiguous legal answer. So I was hoping to keep in GD territory, or at least keep the discussion based on the legality of different orders, not the character of the current POTUS.
  #4  
Old 11-18-2017, 05:25 PM
kanicbird kanicbird is offline
Guest
 
Join Date: May 1999
Posts: 18,407
Someone impersonating the president giving such a order would certainly qualify as illegal (I hope).
  #5  
Old 11-18-2017, 05:28 PM
Snowboarder Bo Snowboarder Bo is online now
Member
 
Join Date: May 2005
Location: Las Vegas
Posts: 20,508
The composition of the order wouldn't be illegal because of the order, tho but because of the source; the OP wants to know what would make a nuclear strike that otherwise went thru the correct legal channels and procedures an illegal nuclear strike.
  #6  
Old 11-18-2017, 05:36 PM
LSLGuy LSLGuy is offline
Charter Member
 
Join Date: Sep 2003
Location: Southeast Florida USA
Posts: 20,755
US military members are required to obey lawful orders and to refuse to obey unlawful ones. that much at least is clear from the UCMJ, oaths of office and enlistment, etc.

Examples of an unlawful order at a low level are to execute those thieves or burn that village and kill all the inhabitants.

Under both US law and the various treaties forming "the laws of war" wanton destruction without provocation or military benefit is illegal.

The expectation and the practical reality is not that military members will be carefully evaluating the legalistic edge cases or consulting their attorneys before firing. But rather that they have an obligation to not commit flagrant unmistakable violations while claiming "I was just following orders" or even "I didn't stop to think, I just did." Nope. You have an affirmative duty to think before you commit violence. Every time.

With all that background ...

The President, any President, deciding to nuke, say, CNN HQ clearly and obviously fails that test. Getting away from nukes for a moment, the Posse Comitatis Act prohibits the deployment of Federal troops in the US for lots of purposes. The Constitution itself prohibits quartering troops in private homes. Any presidential order to do those things fails the test.

Going back to nukes, the US pre-emptively attacking some nation without major provocation or very clear warning of hostile intent comes real close and may be over the line. etc.

Where the generals will really earn their pay is the hypothetical murkier cases where cooler presidential heads might wait, but hostilities are unequivocally in progress.

The US has an uncomfortable relationship with the law of war as it relates to destroying civilian populations from the air or space. It's not per se illegal, but neither is it clearly legal. How much of a nexus to targets of immediate military value or eventual military utility are required before blowing up a city containing a military base, a munitions factory, or a truck factory?

It's pretty clear that in any hostilities with a minor power we have the raw numbers to counterattack dreadfully disproportionately. Again, how much is too much where a legal counterattack turns into an illegal reprisal attack?

The only things nukes add to the mix is the hair trigger immediacy and potential scale of the response. Which hair trigger made deterrent sense during the Cold war and may still make deterrent sense. But which may also be able to be achieved more smartly than with the President + "football" = Doomsday system dating from the Eisenhower era.

Last edited by LSLGuy; 11-18-2017 at 05:40 PM.
  #7  
Old 11-18-2017, 06:16 PM
HurricaneDitka HurricaneDitka is offline
Guest
 
Join Date: Aug 2012
Posts: 6,970
Quote:
Originally Posted by LSLGuy View Post
... But which may also be able to be achieved more smartly than with the President + "football" = Doomsday system dating from the Eisenhower era.
Your ideas are intriguing to me and I wish to subscribe to your newsletter. Got any ideas for this smarter system?

Last edited by HurricaneDitka; 11-18-2017 at 06:17 PM.
  #8  
Old 11-18-2017, 06:42 PM
LSLGuy LSLGuy is offline
Charter Member
 
Join Date: Sep 2003
Location: Southeast Florida USA
Posts: 20,755
Merely that with much better and more reliable satellite recon and communications, we can disperse the "Holy Shit here comes the entire Russkie missile fleet" response to several command centers manned by professionals who follow a flowchart.

For any lesser attack that isn't obviously intended to take out all our ICBMs, we the country, are not in a hurry to respond. We can blow this shit out of whoever wherever either tomorrow or next week and have the same global political outcome. We don't need a launch decision in the next 5 minutes.

The whole risk of a President (or his bag carrier) doing something rash (or insane) was acceptable during the Cold War only because the President had to be able to outrace a decapitating strike aimed at him. We can cover for that with redundancy and therefore remove the need for the hair trigger.

If you think about it, it's rather a circular problem. By choosing to define that "the President is the only launch authority", you convert him into the ultimate high value target. At which point he must be set up with hair trigger launch capability.

If you remove that artificial designation of him as the ultimate high value target, you reduce the odds he gets targeted and you correspondingly reduce the need for the hair trigger.

Consider for a moment what happens when a President is assassinated or falls gravely ill. The country has systems in place to handle that, and they've all been used over the years and work. There is a need for continuity of control, but there isn't the insane urgency.

The loss of the President in a nuclear surprise attack is only a catastrophe to the NCA and our ability to retaliate if we set our systems up that way. So don't do that.

Last edited by LSLGuy; 11-18-2017 at 06:43 PM.
  #9  
Old 11-18-2017, 06:48 PM
ThisIsTheEnd ThisIsTheEnd is offline
Guest
 
Join Date: Oct 2016
Posts: 374
A little color without being specific.

https://www.cbsnews.com/news/u-s-str...er-from-trump/

"Hyten said he has been trained every year for decades in the law of armed conflict, which takes into account specific factors to determine legality -- necessity, distinction, proportionality, unnecessary suffering and more. Running through scenarios of how to react in the event of an illegal order is standard practice, he said."

LAW OF ARMED CONFLICT DESKBOOK:
http://www.loc.gov/rr/frd/Military_L...kbook-2015.pdf
  #10  
Old 11-18-2017, 07:50 PM
SamuelA SamuelA is offline
Guest
 
Join Date: Feb 2017
Posts: 1,600
So the most probable scenario I keep imagining is it's 4:30 am. Kim Jong Un Tweets a picture of himself holding his daughter's hands next to a life sized cutout of Trumps' hands. Trump tweets back that enough is enough, one more insult and he'll show North Korea the full "fire and fury" the United States is capable of. Kim Jong tweets back that Trump is all bluster and calls him a bad name.

Trump asks the marine standing outside his bedroom door for the bag. He digs around in his pants pockets in his laundry hamper and finds the credit card code card with his codes. There's a phone in the bag and a binder of strike options, he flips it open to North Korea's section and goes down the list of mega-tonnage options.

He then picks up that phone, calls Norad, and asks for the #2 special, delivered immediately. A multiple ICBM strike on Pyongyang and an ICBM allocated for every possible government command center Kim Jong is known to use.

So would this order be illegal or not? It's a request for the immediate incineration of several million civilians.
  #11  
Old 11-18-2017, 08:15 PM
LSLGuy LSLGuy is offline
Charter Member
 
Join Date: Sep 2003
Location: Southeast Florida USA
Posts: 20,755
Clearly blindingly obviously illegal. And therefore would not be followed. IMO.

Last edited by LSLGuy; 11-18-2017 at 08:15 PM.
  #12  
Old 11-18-2017, 11:29 PM
UltraVires UltraVires is offline
Guest
 
Join Date: Jul 2007
Location: Bridgeport, WV, US
Posts: 12,553
Quote:
Originally Posted by LSLGuy View Post
Clearly blindingly obviously illegal. And therefore would not be followed. IMO.
How is it "illegal"? It would certainly be unwise (to say the least), but the President is the commander in chief of the armed forces under the Constitution. How does a subordinate determine that his superior has issued an "illegal" order?

What if NK unleashes an artillery barrage on Seoul and the subordinate does not believe a nuclear strike is "proportional"? What if a soldier on the front line does not believe that occupying a town is "proportional"?

You seem very certain of your responses, but I do not see any cites. What if Trump simply orders a nuclear strike without giving a reason? Can the subordinate ask why and determine for himself if the launch would be legal?
  #13  
Old 11-19-2017, 12:21 AM
Senegoid Senegoid is offline
Guest
 
Join Date: Sep 2011
Location: Sunny California
Posts: 14,602
I see several separate questions being mangled all together here.

First, the OP's question: If the President is able, under the law, to order any nuke strike anywhere at anytime for any reason, then by definition, there can be no illegal nuke order? So what are the legal limits on the Prez and where in the law are those limits to be found?

A separate question is enforceability: Even if there are some cases where a Prez-ordered nuke strike is illegal, who will determine that, and what will anyone do about it anyway? Can anyone stop a Prez from ordering an illegal strike? (Or, can anyone stop such an order from being carried out?)

Or, will that all be decided after-the-fact in some court somewhere, as in so many other cases of day-to-day law. So a million people may have died, and a million more who didn't die may be horrendously disabled and mutilated for the rest of there lives. But they'll get justice! So after the fact it will all be okay.

ETA: Finally, what body of law are we talking about? The Prez may have near-absolute power to order a strike under U.S. law, but that doesn't mean he has that power under one or another body of international law. So he could be perfectly legal under U.S. law but could still be tried and convicted (perhaps in absentia) at The Hague or other international court.
__________________
=========================================

Last edited by Senegoid; 11-19-2017 at 12:23 AM.
  #14  
Old 11-19-2017, 01:12 AM
DrDeth DrDeth is offline
Charter Member
 
Join Date: Mar 2001
Location: San Jose
Posts: 34,100
Well, if NK nukes anyone, pretty much we could nuke back, even if it is 100-1. But we'd have to make sure we didnt hit China, that China and Russia knew where our missiles were headed, and the fallout didnt kill any Chinese or Russians quickly.
__________________
I am not a real Doctor
  #15  
Old 11-19-2017, 01:21 AM
Tripler Tripler is online now
Charter Member
 
Join Date: May 2000
Location: JSOTF SDMB, OL-LANL
Posts: 6,991
If I may, being a Veteran, and someone directly involved with producing such things that would provide the POTUS' mushroom cloud. . .

What would be the implications of the Congress passing laws to keep the President from using nuclear weapons in a random strike? I'll state, for the example case, "The POTUS shall consult the NSA, except in the case of clear, direct, present danger as indicated by early warning systems. . . yadda yadda yadda."

Could Congress pass such a law? Would Congress pass such a law?

If so, how would it hold up?

Tripler
I am curious.
  #16  
Old 11-19-2017, 09:05 AM
up_the_junction up_the_junction is online now
Guest
 
Join Date: Mar 2015
Location: South London
Posts: 4,356
I don't know anything about US law but if launching a nuclear attack doesn't qualify as an act of war, I'm Django Reinhardt.

So what does a president need before committing an 'act of war'? Approval from Congress, yes?

You can argue all day long about whether the initial engagement was 'war' or terrorism or whatever, or in the same proportion as the proposed response, argue this, that and everything else but that's what you want - old fashioned delaying tactics.
__________________
None are more hopelessly enslaved than those who believes themselves free Goethe
  #17  
Old 11-19-2017, 09:52 AM
SamuelA SamuelA is offline
Guest
 
Join Date: Feb 2017
Posts: 1,600
Quote:
Originally Posted by Tripler View Post
If I may, being a Veteran, and someone directly involved with producing such things that would provide the POTUS' mushroom cloud. . .

What would be the implications of the Congress passing laws to keep the President from using nuclear weapons in a random strike? I'll state, for the example case, "The POTUS shall consult the NSA, except in the case of clear, direct, present danger as indicated by early warning systems. . . yadda yadda yadda."

Could Congress pass such a law? Would Congress pass such a law?

If so, how would it hold up?

Tripler
I am curious.
Tripler, whoever is on the other end of the phone in the football is a military officer who will

(a) have direct access to the data feeds, better access than they have in the white house
(b) have to agree that this is the president, or no strike will be launched

The football itself does not have everything needed, at a minimum someone has to confirm that codes are legitimate, and the terminals that can confirm a presidential launch code are obviously very limited in the world.

That officer would be presumably empowered by this law to say no, I disagree, there's no incoming volley so we're not firing an outgoing one.
  #18  
Old 11-19-2017, 10:39 AM
Tripler Tripler is online now
Charter Member
 
Join Date: May 2000
Location: JSOTF SDMB, OL-LANL
Posts: 6,991
Quote:
Originally Posted by SamuelA View Post
Tripler, whoever is on the other end of the phone in the football is a military officer who will . . .
That whoosh you heard was one of my W88/Mk 5s sailing over your head. You completely missed the point.

In retrospect however, if the Congress did enact such a set of laws they'd be rendered moot because the POTUS (despite the War Powers Resolution of '73) can initiate military action immediately, basically putting us in a de facto state of war.

I'm curious on what checks and balances Congress could put on the POTUS to limit such things, especially in the case of a nuclear release. I'm not talking about one officer taking it upon himself to declare it an 'illegal order' or simply feigning that it's not the President in order to deflect the orders. The system is what it is. What could Congress do to change it?

Tripler
A legislative solution, maybe?
  #19  
Old 11-19-2017, 10:53 AM
Czarcasm Czarcasm is offline
Charter Member
Charter Member
 
Join Date: Apr 1999
Location: Beervania
Posts: 53,318
1. I would hope that any proposed solution would be something that would stop the action, and not punish the Pres after the fact.
2. I am having a bit of trouble imagining the conversation in the OP going as smoothly as that.
  #20  
Old 11-19-2017, 11:00 AM
asahi asahi is offline
Guest
 
Join Date: Aug 2015
Posts: 4,519
The media took a relatively ordinary interaction and blew it out of proportion. As LSL pretty much already said, the commander is simply stating what is probably already fairly-well established, which is that a president, contrary to popular opinion, can't just wake up one morning and order his commanders to nuke California or Mexico. Any launch order has to be consistent with legal acts of war, both with regard to the USMCJ and applicable international laws (Geneva, etc).
  #21  
Old 11-19-2017, 11:14 AM
Czarcasm Czarcasm is offline
Charter Member
Charter Member
 
Join Date: Apr 1999
Location: Beervania
Posts: 53,318
"He wouldn't/couldn't do that-it just doesn't work that way" stopped being funny on Inauguration Day.
  #22  
Old 11-19-2017, 11:29 AM
SamuelA SamuelA is offline
Guest
 
Join Date: Feb 2017
Posts: 1,600
Quote:
Originally Posted by Tripler View Post
That whoosh you heard was one of my W88/Mk 5s sailing over your head. You completely missed the point.

In retrospect however, if the Congress did enact such a set of laws they'd be rendered moot because the POTUS (despite the War Powers Resolution of '73) can initiate military action immediately, basically putting us in a de facto state of war.

I'm curious on what checks and balances Congress could put on the POTUS to limit such things, especially in the case of a nuclear release. I'm not talking about one officer taking it upon himself to declare it an 'illegal order' or simply feigning that it's not the President in order to deflect the orders. The system is what it is. What could Congress do to change it?
Contrary to your assumptions, the actual power the President has to order a nuclear strike is not from the Constitution, but a law passed by Congress. The Atomic Energy Act of 1946. Here's a lengthy discussion on the background behind it.

So yes, a legislative solution is possible. 'All' Congress has to do is Amend that act to specify the exact requirements for the use of nuclear weapons to be no first use without the consent of Congress.
  #23  
Old 11-19-2017, 12:41 PM
John Mace John Mace is online now
Guest
 
Join Date: Dec 2002
Location: South Bay
Posts: 81,226
Aside from issues of nuking a site in the US, wouldn't any foreign action carry the possibility that the prez is privy to information not available even to a guy like the one quoted in the OP?

Last edited by John Mace; 11-19-2017 at 12:42 PM.
  #24  
Old 11-19-2017, 12:53 PM
Muffin Muffin is offline
Guest
 
Join Date: Nov 2000
Location: Great White North
Posts: 19,945
Quote:
Originally Posted by Tripler View Post
In retrospect however, if the Congress did enact such a set of laws they'd be rendered moot because the POTUS (despite the War Powers Resolution of '73) can initiate military action immediately, basically putting us in a de facto state of war.

I'm curious on what checks and balances Congress could put on the POTUS to limit such things, especially in the case of a nuclear release. I'm not talking about one officer taking it upon himself to declare it an 'illegal order' or simply feigning that it's not the President in order to deflect the orders. The system is what it is. What could Congress do to change it?

Tripler
A legislative solution, maybe?
The system works well when the POTUS is stable. The present president is demonstrativley not stable, which puts you and the world at great risk. The congressional solutions are either to impeach and convict under your federal consititution's article 2 section 4, or to to replace section 4 of your federal constitution's section 25th amendment.
  #25  
Old 11-19-2017, 01:48 PM
bump bump is offline
Guest
 
Join Date: Jun 2000
Location: Dallas, TX
Posts: 15,124
Quote:
Originally Posted by asahi View Post
The media took a relatively ordinary interaction and blew it out of proportion. As LSL pretty much already said, the commander is simply stating what is probably already fairly-well established, which is that a president, contrary to popular opinion, can't just wake up one morning and order his commanders to nuke California or Mexico. Any launch order has to be consistent with legal acts of war, both with regard to the USMCJ and applicable international laws (Geneva, etc).
Exactly. And what I think that particular general is trying to say is that if the President unilaterally decided to escalate to nuclear out of a fit of pique or irritation at some snarky comment from N. Korea, that would probably count as unlawful, based on the lack of proportionality, threat, etc....
  #26  
Old 11-19-2017, 01:51 PM
Siam Sam Siam Sam is online now
Elephant Whisperer
 
Join Date: Nov 2006
Location: Honolulu, Hawaii
Posts: 38,423
An illegal nuclear strike would be Traitor Trump waking up one day, seeing more proof of his perfidy splashed throughout the news and to distract the public, order a nuclear strike on Pyongyang, particularly if Kim had just called him out as a wanker again the day before.
__________________
Carpe diem! But first, coffee.
  #27  
Old 11-19-2017, 01:56 PM
eschereal eschereal is online now
Guest
 
Join Date: Aug 2012
Location: Frogstar World B
Posts: 11,897
Is there such a thing as DEFCON, and would it have an effect on responsiveness? I mean, if the person on the other side of the football looks up and sees a that the alert level might not justify the launch, would he be likely to get a secondary confirmation?
  #28  
Old 11-19-2017, 08:26 PM
manson1972 manson1972 is offline
Member
 
Join Date: Jan 2004
Posts: 5,237
Quote:
Originally Posted by SamuelA View Post
So the most probable scenario I keep imagining is it's 4:30 am. Kim Jong Un Tweets a picture of himself holding his daughter's hands next to a life sized cutout of Trumps' hands. Trump tweets back that enough is enough, one more insult and he'll show North Korea the full "fire and fury" the United States is capable of. Kim Jong tweets back that Trump is all bluster and calls him a bad name.

Trump asks the marine standing outside his bedroom door for the bag. He digs around in his pants pockets in his laundry hamper and finds the credit card code card with his codes. There's a phone in the bag and a binder of strike options, he flips it open to North Korea's section and goes down the list of mega-tonnage options.

He then picks up that phone, calls Norad, and asks for the #2 special, delivered immediately. A multiple ICBM strike on Pyongyang and an ICBM allocated for every possible government command center Kim Jong is known to use.

So would this order be illegal or not? It's a request for the immediate incineration of several million civilians.
This is a legal order. The guys in the silos and submarines and bomber wings would follow the pre-approved operations plans.

That's why we don't elect people to President who may not have the country's best interest in mind.
  #29  
Old 11-19-2017, 08:50 PM
E-DUB E-DUB is offline
Guest
 
Join Date: Mar 2013
Posts: 3,157
Quote:
Originally Posted by kanicbird View Post
Someone impersonating the president giving such a order would certainly qualify as illegal (I hope).

How about someone just impersonating a President?
  #30  
Old 11-19-2017, 09:08 PM
tomndebb tomndebb is offline
Mod Rocker
Moderator
 
Join Date: Mar 1999
Location: N E Ohio
Posts: 40,428
Quote:
Originally Posted by manson1972 View Post
That's why we don't elect people to President who may not have the country's best interest in mind.
Bwahahahaha.





Who's WE Kemosabe?
  #31  
Old 11-19-2017, 09:11 PM
manson1972 manson1972 is offline
Member
 
Join Date: Jan 2004
Posts: 5,237
Quote:
Originally Posted by tomndebb View Post
Bwahahahaha
Not sure what the sarcasm tag is
  #32  
Old 11-19-2017, 09:49 PM
LSLGuy LSLGuy is offline
Charter Member
 
Join Date: Sep 2003
Location: Southeast Florida USA
Posts: 20,755
Quote:
Originally Posted by manson1972 View Post
This is a legal order. The guys in the silos and submarines and bomber wings would follow the pre-approved operations plans.
...
The folks with keys will launch when told. The people who can determine the legality of the order, and pass it along or not, are the high ranking folks up at the NCA level and in the national command centers.

Those are two very different sets of folks with very different responsibilities and access to very different data.

Quote:
Originally Posted by manson1972 View Post
...
That's why we don't elect people to President who may not have the country's best interest in mind.
At least prior to 2016 we didn't.

It is precisely because we have the President we do that suddenly concerns about illegal orders are to the fore.

Last edited by LSLGuy; 11-19-2017 at 09:50 PM.
  #33  
Old 11-19-2017, 09:52 PM
XT XT is offline
Agnatheist
Charter Member
 
Join Date: Apr 2003
Location: The Great South West
Posts: 32,512
According to this:

Quote:
Authorization of a nuclear or strategic attack[edit]
Only the President can direct the use of nuclear weapons by U.S. armed forces, including the Single Integrated Operational Plan (SIOP). While the President does have unilateral authority as commander-in-chief to order that nuclear weapons be used for any reason at any time, the actual procedures and technical systems in place for authorizing the execution of a launch order requires a secondary confirmation under a two-man rule, as the President's order is subject to secondary confirmation by the Secretary of Defense. If the Secretary of Defense does not concur, then the President may in his sole discretion fire the Secretary. The Secretary of Defense has legal authority to approve the order, but cannot veto it.
It really was a GQ answer, though a lot of other stuff was brought up. The President doesn't need congressional approval, as other posters have asserted. Under the two man rule, he just needs the Sec Def (or whoever is next in the chain) to agree then it's nukes away.

People...this is why it's crucial we elect sane and rational folks to be President. It's freaking scary that Trump has this power, but have it he does. Hopefully Mattis will be the check on anything really insane that Trump might attempt.
__________________
-XT

That's what happens when you let rednecks play with anti-matter!
  #34  
Old 11-19-2017, 10:39 PM
SamuelA SamuelA is offline
Guest
 
Join Date: Feb 2017
Posts: 1,600
So if the President is trying to actually do this - fire nukes over a tweet or is acting even more incoherent than usual and asking to end the world - who in the White House can actually have him taken out of power for mental incompetence? Does it take a majority of the cabinet to agree to do this? Specific members?
  #35  
Old 11-19-2017, 11:01 PM
DPRK DPRK is offline
Guest
 
Join Date: May 2016
Posts: 906
http://boards.straightdope.com/sdmb/...d.php?t=667980

Quote:
Originally Posted by Stranger On A Train
Kissinger once claimed that Nixon was tearing around on a drunken rampage and he had to instruct the Joint Chiefs not to accept any orders from him. Of course, Kissinger also likes to spin outrageous stories for his own entertainment. But it wouldn't have been totally out of character for Dick to have a profane discussion about nuking China, "but of course we wouldn't do that."
  #36  
Old 11-20-2017, 12:06 AM
Beckdawrek Beckdawrek is online now
Guest
 
Join Date: Aug 2017
Location: So.Ark ?
Posts: 2,142
I keep thinking of the inability of the Air force to scramble up any fighter jets on 9/11. And the lie about WMB before 'W' bombed Iraq. I am not sure I trust any of them. Let alone the POTUS, we are doomed, I tell you!
Btw, nice work there LSLguy!
  #37  
Old 11-20-2017, 09:23 AM
manson1972 manson1972 is offline
Member
 
Join Date: Jan 2004
Posts: 5,237
Quote:
Originally Posted by LSLGuy View Post
The folks with keys will launch when told. The people who can determine the legality of the order, and pass it along or not, are the high ranking folks up at the NCA level and in the national command centers.

Those are two very different sets of folks with very different responsibilities and access to very different data
If it comes from the President authorizing the use of nuclear weapons against a foreign country, it's legal.

Quote:
It is precisely because we have the President we do that suddenly concerns about illegal orders are to the fore.
Yep. Kind of scary. And the reason I didn't vote for him.
  #38  
Old 11-20-2017, 09:50 AM
LSLGuy LSLGuy is offline
Charter Member
 
Join Date: Sep 2003
Location: Southeast Florida USA
Posts: 20,755
Quote:
Originally Posted by manson1972 View Post
If it comes from the President authorizing the use of nuclear weapons against a foreign country, it's legal.
...
You keep insisting this. It's not that simple. The US is signatory to various treaties on the conduct of warfare. Which have the force of US law.

Post #9 contains a link to a small 250 page summary of DoD thinking on the legalities of war. After you've digested that info, please come back.
  #39  
Old 11-20-2017, 10:13 AM
Morgenstern Morgenstern is online now
Guest
 
Join Date: Jun 2007
Location: Southern California
Posts: 9,848
I like to think that there will be a Denzel Washington in the conn of every sub such as there was in Crimson Tide. Especially when there is the slightest change the president is the least bit unstable. Didn't feel that way until 2017, but I certainly do now.
__________________
Remember, pillage before burning.

Last edited by Morgenstern; 11-20-2017 at 10:13 AM.
  #40  
Old 11-20-2017, 10:24 AM
Chronos Chronos is online now
Charter Member
Moderator
 
Join Date: Jan 2000
Location: The Land of Cleves
Posts: 73,162
Quote:
Quoth Senegoid:

A separate question is enforceability: Even if there are some cases where a Prez-ordered nuke strike is illegal, who will determine that, and what will anyone do about it anyway? Can anyone stop a Prez from ordering an illegal strike? (Or, can anyone stop such an order from being carried out?)
Plenty of people can stop such an order from being carried out; specifically, all of the people who actually would be carrying it out. The President doesn't have a literal launch button in The Football: He has a phone. With that phone, he would call someone high up in the military. Who would in turn call up people on the next level of the chain of command, all the way through until you eventually get to the ordinary servicemembers in the silos, submarines, and airplanes who actually do have launch buttons. Any one of those people, at any level of the chain of command, can simply refuse their orders, legally or not.

Would they? That's a different question, and one to which we don't actually know the answer. We know what they've been trained to do, and we know what they've said they would do, but until it actually happens, we don't know what they actually would do.
  #41  
Old 11-20-2017, 10:32 AM
XT XT is offline
Agnatheist
Charter Member
 
Join Date: Apr 2003
Location: The Great South West
Posts: 32,512
Quote:
Originally Posted by SamuelA View Post
So if the President is trying to actually do this - fire nukes over a tweet or is acting even more incoherent than usual and asking to end the world - who in the White House can actually have him taken out of power for mental incompetence? Does it take a majority of the cabinet to agree to do this? Specific members?
Well, IIRC the VP and cabinet can use the 25th (section 4) to assert that the president is “unable to discharge the powers and duties of his office". Trouble is, the president can submit a memo saying, yes, s/he is able to discharge the duties. At that point, IIRC, it goes to the Congress to decide.

But this wouldn't work if you were trying to stop a presidential nuclear strike I don't think. It's a process that would take days or even weeks, and in the meantime, I think the president would be able to do the deed. It seems the only check on the president is if the Sec Def vetos the strike...and then the president can fire the Sec Def and bring in someone else, but again, that could take some time so at least it would stop it from happening long enough for maybe the VP and cabinet to start the process of demonstrating that the president is “unable to discharge the powers and duties of his office".
__________________
-XT

That's what happens when you let rednecks play with anti-matter!
  #42  
Old 11-20-2017, 11:07 AM
SamuelA SamuelA is offline
Guest
 
Join Date: Feb 2017
Posts: 1,600
Quote:
Originally Posted by XT View Post
Well, IIRC the VP and cabinet can use the 25th (section 4) to assert that the president is “unable to discharge the powers and duties of his office". Trouble is, the president can submit a memo saying, yes, s/he is able to discharge the duties. At that point, IIRC, it goes to the Congress to decide.

But this wouldn't work if you were trying to stop a presidential nuclear strike I don't think. It's a process that would take days or even weeks, and in the meantime, I think the president would be able to do the deed. It seems the only check on the president is if the Sec Def vetos the strike...and then the president can fire the Sec Def and bring in someone else, but again, that could take some time so at least it would stop it from happening long enough for maybe the VP and cabinet to start the process of demonstrating that the president is “unable to discharge the powers and duties of his office".
The thing is, in reality, the Sec Defense is a real general, not a little boy in an orange wig. If he says "men, get the doctor and secure that briefcase. Also, get me the Vice President!", who are they going to listen to? The incompetent buffoon in an orange wig who they are nominally supposed to be guarding or a legitimate leader?

I'm hopeful that the actual secret service and marines in the white house will realize that it's really, really, really bad idea to blindly obey orders from the President to fire the sec defense and not stand in the way of an open football of nuclear strike options.

Of course, if this were a movie plot, it would be mixed. Some of the troops in the white house are actual marines, not secret service agents, and they'd probably listen to Mattis over Trump. If this were a movie, Mattis would pull his own gun - an ivory handled 0.45, of course. And there would be a Mexican standoff.
  #43  
Old 11-20-2017, 11:18 AM
XT XT is offline
Agnatheist
Charter Member
 
Join Date: Apr 2003
Location: The Great South West
Posts: 32,512
Quote:
Originally Posted by SamuelA View Post
The thing is, in reality, the Sec Defense is a real general, not a little boy in an orange wig. If he says "men, get the doctor and secure that briefcase. Also, get me the Vice President!", who are they going to listen to? The incompetent buffoon in an orange wig who they are nominally supposed to be guarding or a legitimate leader?
He doesn't have the authority to do any of this, and basically, anyone listening to him would be the equivalent to a coup. Now, that might happen anyway, but I doubt the secret service is going to play along like.

The VP and cabinet are the only ones who could legally do what you are talking about. All the Sec Def can do is veto the strike. Legally.

Quote:
I'm hopeful that the actual secret service and marines in the white house will realize that it's really, really, really bad idea to blindly obey orders from the President to fire the sec defense and not stand in the way of an open football of nuclear strike options.
His are the lawful orders to give, whether you like them or not. I'm not hopeful of this, as it would mean that they could decide, down the road, that they don't like what the next president is ordering and decide to ensure that doesn't happen. It's a slippery slope...and one we need not tread, IMHO. First, the Sec Def can veto the strike and the VP and cabinet can invoke section 4. That's going to put a huge monkey wrench into the works and at least delay things and send this to Congress.

Really, though, we, the people, need to think more carefully about who we send into that job. This sort of thing is what can happen if we don't do that since the president DOES have the authority to launch nuclear weapons without congressional approval or oversight.

Quote:
Of course, if this were a movie plot, it would be mixed. Some of the troops in the white house are actual marines, not secret service agents, and they'd probably listen to Mattis over Trump. If this were a movie, Mattis would pull his own gun - an ivory handled 0.45, of course. And there would be a Mexican standoff.
That's fine for a movie, but real life isn't quite like that. Basically, what you are proposing here is that the Sec Def throw a coup and take on powers he doesn't have. I get that people are nervous about Trump (so am I), but this is a slippery slope we shouldn't encourage.
__________________
-XT

That's what happens when you let rednecks play with anti-matter!
  #44  
Old 11-20-2017, 11:56 AM
AK84 AK84 is online now
Guest
 
Join Date: Apr 2008
Posts: 14,037
Yeah. Effective deterrence relies on an adversary being certain that retaliation will come forthwith. Not "after rounds of litigation, all the way up to the Supreme Court".

I recall reading in a book about SAC, how they drilled hard to remove seconds from the launch time. Just how fast a response is needed in nuclear war is not something many appreciate,
  #45  
Old 11-20-2017, 12:59 PM
LSLGuy LSLGuy is offline
Charter Member
 
Join Date: Sep 2003
Location: Southeast Florida USA
Posts: 20,755
As I said upthread, for an incoming all-out flood of ICBM then yes, you do need to be able to react very quickly. From the initial low-confidence warning of a possible attack to losing much of your land-based forces is the matter of just a few minutes. That scenario truly is "Use it or lose it. Right now."

For substantially every other scenario there's no rush at all.

Which is why I was advocating for delegating the former response (plus any ABM defensive efforts) to "the system" and leaving the latter to the slower moving political and legal realm. Rather than to the possibly fickle whim of the CinC.

Last edited by LSLGuy; 11-20-2017 at 12:59 PM.
  #46  
Old 11-20-2017, 01:02 PM
DrDeth DrDeth is offline
Charter Member
 
Join Date: Mar 2001
Location: San Jose
Posts: 34,100
Quote:
Originally Posted by LSLGuy View Post
You keep insisting this. It's not that simple. The US is signatory to various treaties on the conduct of warfare. Which have the force of US law.
.
Only those ratified by the Senate, note.
__________________
I am not a real Doctor
  #47  
Old 11-20-2017, 01:10 PM
manson1972 manson1972 is offline
Member
 
Join Date: Jan 2004
Posts: 5,237
Quote:
Originally Posted by LSLGuy View Post
You keep insisting this. It's not that simple. The US is signatory to various treaties on the conduct of warfare. Which have the force of US law.

Post #9 contains a link to a small 250 page summary of DoD thinking on the legalities of war. After you've digested that info, please come back.
Ok, I'm back.

It is that simple.

In reference to your cool link, I like this passage:

"The U.S.considers the first two restrictions customary international law, but follows a more expansive view of the third, to permit weapons such as cluster munitions and nuclear arms"

and this:

"The United States objects to this article as overbroad (for example, it might categorically rule out napalm or nuclear strikes), and does not consider it to be customary international law"
  #48  
Old 11-20-2017, 01:17 PM
manson1972 manson1972 is offline
Member
 
Join Date: Jan 2004
Posts: 5,237
Quote:
Originally Posted by XT View Post
It seems the only check on the president is if the Sec Def vetos the strike
So, does the SecDef have to confirm the order? Or can the SecDef only veto the order, or both?

What if the SecDef is dead?
  #49  
Old 11-20-2017, 01:30 PM
Chronos Chronos is online now
Charter Member
Moderator
 
Join Date: Jan 2000
Location: The Land of Cleves
Posts: 73,162
Quote:
Quoth SamuelA:

If this were a movie, Mattis would pull his own gun - an ivory handled 0.45, of course. And there would be a Mexican standoff.
In real life, there's no situation where Mattis would go into a Mexican standoff. In fact, it's very rare in real life for anyone to go into a Mexican standoff. If it's worth starting the standoff, it's worth finishing it: You don't have two people aiming guns and demanding the other put it down; you have one person making demands and the other just shooting him.

I suspect that this is what would actually happen, if Trump were to order a completely irrational nuclear attack (one on Mexico, for instance, or a target within the US): The Secretary of Defense would shoot him, ask for confirmation of the order from President Pence, and then resign his post and turn himself in to the authorities. Of course, there's a lot of gray area between a completely irrational attack like that one and a more conventional response like "North Korea just nuked Seoul", and it's very difficult to say where the line would be drawn for various responses.
  #50  
Old 11-20-2017, 01:33 PM
Ravenman Ravenman is offline
Charter Member
 
Join Date: Jan 2003
Location: Washington, DC
Posts: 21,976
First of all, I completely agree with the minority of posters in this thread who have written things to the effect that the Commander of Strategic Command answered the question in the same way that every other military leader would have, or should have. According to a news report I listened to this morning, General Hyten was directly asked a question to the effect of, "Would you obey an illegal order to launch nuclear weapons?" (I was listening to the radio, so I'm not sure how the question was precisely phrased.) The answer, of course, is No.

It is clear to me that the Constitution invests in the President quite expansive authority to protect the country against harm, so far as the harm is actual and occuring/imminent, as opposed to speculative.

So if a President wanted to launch a nuclear strike on a country that he reasonably believes has launched an attack on us, or appears to be on the verge of doing so, I would conclude that the President most likely has very wide discretion to do so. This is based not only on the Constitution, but also the laws of armed conflict that allow anticipatory self-defense.

But if the President wanted to launch a nuclear strike on a country for which there's no reason to believe has, or is imminently planning to, attacked the US, then the laws of armed conflict do not afford protection for what's known as a "preventative war." (That can be generally defined as, we think someday a country may be a bigger threat to us, so we're going to attack now while they are still weak.)

Further, neither the Constitution nor the War Powers Resolution give the President the power to launch a war because he feels like it. The power to declare war is reserved to Congress. We can reasonably believe that the power to launch an unprovoked war is a matter entirely within the domain of the decision of Congress whether to do so or not; as there's no valid argument that the President must take action immediately to forestall a grave threat to our country.

By this logic, if the President decided to order a nuclear attack on North Korea, he would probably have the benefit of doubt on his side... unless military leaders were convinced that North Korea was not doing anything at that moment that made them believe that North Korea was planning an imminent strike on the United States. Absent a reasonable belief on an imminent threat, carrying out an order to launch a nuclear attack on a country that is not related to self defense is quite simply carrying out an order to murder millions of people. But if the evidence was ambiguous as to whether North Korea was preparing for an attack on the United States, the President would probably get the benefit of the doubt.

And to go one step further, if the President were to order a nuclear strike against France, where there is clearly no reason for such an attack, it is unambiguous that such a nuclear attack by the US would be a violation of the laws of war. The scenarios under which the United States could legally carry out an attack on an ally are bizarre to the extreme.
Reply

Bookmarks

Thread Tools
Display Modes

Posting Rules
You may not post new threads
You may not post replies
You may not post attachments
You may not edit your posts

BB code is On
Smilies are On
[IMG] code is Off
HTML code is Off

Forum Jump


All times are GMT -5. The time now is 11:49 AM.

Powered by vBulletin® Version 3.8.7
Copyright ©2000 - 2017, vBulletin Solutions, Inc.

Send questions for Cecil Adams to: cecil@chicagoreader.com

Send comments about this website to: webmaster@straightdope.com

Terms of Use / Privacy Policy

Advertise on the Straight Dope!
(Your direct line to thousands of the smartest, hippest people on the planet, plus a few total dipsticks.)

Publishers - interested in subscribing to the Straight Dope?
Write to: sdsubscriptions@chicagoreader.com.

Copyright © 2017 Sun-Times Media, LLC.

 
Copyright © 2017