There should be a factual answer to this, but I keep finding conflicting answers, so here goes.
Can the President of the United States, under current law and current constitutional interpretation, legally launch a preemptive nuclear strike against another sovereign nation without consulting with, or even notifying either Congress, members of his Cabinet, or any other human being? Obviously he needs to get the launch codes and let the head of the armed forces know.
Regardless of where a president should ever do this, or would do this, the question is whether they have the authority to do it, and if they don’t, what would the president legally have to do to order such an attack?
Please let’s not go into the politics of doing this, and let’s assume the president is deemed sane and is doing it based on his real fear of an imminent preemptive nuclear attack being launched against the US.
But only to verify that the order was authentic and actually from the president, not to second guess whether they should be launched. What would happen if the SecDef said “no this isn’t the president”, simply because he thought POTUS was nuts, I don’t know.
The President of the United States has plenary authority over the deployment and use of nuclear weapons and has, with a few notable exceptions, since the Eisenhower Administration. A Cabinet secretary (typically the Secretary of Defense), undersecretary, or another executive branch employee whose appointment was confirmed by the Senate has to verify the order as coming frim the President who is of sound mind and not under duress, but this is not approval of or concurrence with the order. The President does not have to notify or confer with Congress, the National Security Council, or the Joint Chiefs of Staff; he and the SecDef can give instructuins to Unit d States Strategic Command (USSTRATCOM) directly.
As a practical matter, a launch order given out of the blue without prior notice or discussion with the NSC and at least notification to Congress and USSTRATCOM of an intent to go to war, and not as a reaponse to an apparent attack as part of the OPLAN would be questioned despite verification. One hopes that calmer heads would prevail to prevent an unplanned and unprovoked “preemptive” attack. But by law, it is within the purview of the Office of the President to do exactly that.
And it was shortly after that when James Schlessinger, Nixon’s Secretary of Defense, directed the armed forces to verify any order to use nuclear weapons through his or Sec. of State Henry Kissinger’s office.
But that’s a procedural issue rather than a legal one. Legally, the power lies with the President alone, and has ever since Harry Truman made the ultimate decision to use the Bomb.
Looking at it another way, if the President says DON’T use nuclear weapons, there’s no one under him who can overrule the decision.
If the Secretary of Defense said, “The order comes from the President, but I do not believe he is of sound mind and judgment,” the order would not be validated, and USSTRATCOM would give a collective sigh of relief.
Couldn’t the President bypass the SecDef and go to another cabinet member? I’m thinking of the scenario in Clancy’s “The Sum Of All Fears.”
Or does it stop at the SecDef’s refusal.
Except that the president could then fire the SoD and ask the Undersecretary of Defense to verify the order is from the President. And if the Undersecretary refused, lather rinse and repeat until someone goes along with the president… so there is really no way to stop him other than by invoking the 25th Amendment prior to the order being given.
There is no precident and no governing law on the topic of accepting a validated order after receiving a previously invalid order. Technically, USSTRATCOM has to act on a valid launch order. In practice, in the absence of a prevailing and imminent threat, I would like to think that command officers at USSTRATCOM would delay at least long enough to assure that the person validating the order was not under duress. But legally, they have no authority to countermand or interfere with a validated launch order, and Maj. Harold Hering was denied promotion and eventually driven out of the Air Force just for asking how a nuclear launch order could be authenticated as coming from a sane president.
As recently as the GWB administration, Dick Cheney opined that thr President has unchallengable authority to initiate a launch at any time. The only practical challenge is that an unprovoked attack amounts to an act of war, which requires Congressional approval. But the power to strike at foreign enemies and deploy troops and weapons by executive fiat has ben so well established and the lack of any statute law limiting presidential authority with respect to nuclear weapons that I doubt a solid case could be made for resisting even a seemingly unjustified unilateral nuclear attack any more than the White House chef could refuse an executive order for meatloaf to be served at a state dinner.
While that might (I hope) happen. There is no formal regulation that would make the SecDef’s opinion of the president’s sanity important. I suspect the UCMJ provisions regarding orders from a commanding officer you believe is insane (if there are such things) would be more relevant. From the NY Times article quoted above:
While that is true (there is, in fact, essentially no specific restriction on presidential authority to issue a launch order at any time without a requirement for justification), if the Secretary of Defense or another Cabinet member were to declare the President to be irrational or operating without good information, it would at least offer a rationale for delaying a launch order. And nobody at USSTRATCOM will want to answer to why they executed a launch order from a stark raving madman. But I would be the first to say that it is incredibly poor policy to rely on subjective interpretation for thr command and control of nuclear weapons.
I imagine that *who *the current POTUS is makes a big difference.
If President George H.W. Bush, for instance - former CIA director, former Navy pilot, former VP, decades in government - gave the order for a nuclear strike during his administration, I think it might be quite quickly followed down the chain.
If Trump orders a nuclear strike, I’d think that the *majority *of people in the elements of that nuclear-strike chain would rebel against it.
I’m not sure why you think that. Soldiers are taught to obey orders, almost without exception. To think that anyone ‘down the line’ might hesitate to follow through on a direct order from their superior seems to me like wishful thinking.
Indeed, in the case against of missileers, they are trained specifically to follow protocol and not second-guess validated orders. We could hope that senior military leadership would at least question the provenance of an apparently unjustified and unprovoked launch order, but doing so would be going against both training and legal authority. Expecting career officers to “rebel” against authority is not a good system of checks and balances; it is asking for people to take a moral stand against everything they have been trained to do for their entire professional life in an environment where dissention and nonconformity are career-limiting attitudes.
There is an amazing amount of confusion, even among people who should know better, regarding the difference between a declaration of war and an act of war. Congress does the first one; the President does the second one. Furthermore, the two are independent; it is entirely possible to have either one without the other.
My thought is that the President can’t legally launch a pre-emptive nuclear attack. The President only has authority to launch an attack if he has Congressional approval or if he is responding to an attack made against the United States. So my reading is that if the President ordered a pre-emptive strike against Wadiya, the members of the armed forces should reject those orders as illegal.
At least, that’s how I read the law. I don’t know what procedures military personnel for determining a law is unlawful.
Something I never see brought up is ICBMs or SLBM’s are all on pre-set targets and (at least from what I see commonly stated) require 24 hours to be reprogrammed. So the President could presumably launch missiles at Russia, China, and probably North Korea but say he wants to nuke ISIL and I highly doubt we have any ICBM’s programmed at those targets.
Instead what you’d get is a bomber or cruise missile to deliver the nuclear payload and those require far more steps to both launch and guide in than an ICBM thus giving more opportunities to delay or recall if necessary.