This is laughably, comically incorrect on every count.
The problem is the limited time to react.
Nixon fired Special Prosecutor Archibald Cox. The Attorney General and Deputy AG refused and resigned in protest. The third guy (Bork) carried out the order. Nixon suffered a political cost for firing Cox. The resignations made a difference. History remembers that night as the Saturday Night Massacre.
An order to bomb Tehran City or Beijing is different. Someone in the military has to decide immediately if that order should be carried out. You don’t have the luxury of resigning and letting your Deputy or his deputy risk all out war. Tens of millions of lives could be lost.
Trump’s instability makes me question whether any President should have unconditional control of our nuclear arsenal.
“If the president does it, it’s not insane.”
If a soldier receives a manifestly unjust order, such as unprovoked bombing of a civilian center, isn’t he or she supposed to refuse to carry it out?
“Sometimes killing is necessary, but to kill on a whim! The order is unreasonable; I must refuse.”
~Kurogane, Ran (1981)
The military has a duty not to follow unlawful orders. If the commander-in-chief either gives an unlawful order, or is incapacitated, then the military has to consider those factors.
This raises two points: should the nuclear launch procedure be updated, and should the procedure to assess the president for health or mental fitness to serve as president be updated. I’d say “yes” to both.
On what basis would an order to launch a nuclear strike be “unlawful”? My understanding is that the President has the legal power to do so, unless that power is removed from him via impeachment or 25th-Amendment action.
If the President were to order a strike of another kind on a foreign power, are there circumstances where that might be considered unlawful?
It is also my understanding that we have a standing policy to use WMD only in circumstances where WMD have been or will be used against us. Absent that threat, would using WMD be considered unlawful? Maybe this should be an entirely different thread. I think it’s a debate worth having.
I think it’s relevant in this thread. And the President is not legally constrained by a “policy” - usually the consequences of breaching a strong policy would be political but in the context of launching an unprovoked nuclear strike, the consequences of a policy breach are not really a deterrent.
What I would imagine in this hypothetical (in which a strike is clearly unwarranted) is that there would be a very strong argument made against the strike by the military brass followed by a potential refusal/mutiny to carry out or convey the order. If the generals were really principled, they might even attack the president to stop him, knowing they’d end up arrested or dead soon after. Even the more crazy of the top military tend to have a line they won’t cross; otherwise they wouldn’t have made it that far in the first place.
Yes. There is a great deal of attention paid to the idea of lawful and unlawful orders. And they’re more or less in proportion as to the person’s rank- Milley and other high ranking generals are concerned with the legality of what the President, the Secretary of Defense and the Secretaries of the services are telling them to do, while a private is likely only concerned as far as his sergeant/petty officer and the officer over them are telling him to do. A private isn’t going to be worried about the legality of pulling the trigger against another country’s military, if his superiors are telling him they’re the enemy. That isn’t his responsibility. He is responsible for not shooting prisoners, or not shooting through doors, etc…
FWIW, there is a nonfiction book, Trident, about the US Navy’s fleet of ballistic missile subs. In one chapter, one of the sub commanders specifically states that if he received orders to launch his nukes during wartime when launch would be plausible, such as WW3, he’d launch without question, but if he received an order to launch in total peacetime that didn’t make sense, he’d verify and re-verify all the way up to the President himself and say “I won’t launch unless you convince me that this launch is necessary.”
18 U.S.C. 2441
Whoever, whether inside or outside the United States, commits a war crime, in any of the circumstances described in subsection (b), shall be fined under this title or imprisoned for life or any term of years, or both, and if death results to the victim, shall also be subject to the penalty of death.
The circumstances referred to in subsection (a) are that the person committing such war crime or the victim of such war crime is a member of the Armed Forces of the United States or a national of the United States (as defined in section 101 of the Immigration and Nationality Act).
(c) Definition.—As used in this section the term “war crime” means any conduct—
- defined as a grave breach in any of the international conventions signed at Geneva 12 August 1949, or any protocol to such convention to which the United States is a party;
- prohibited by Article 23, 25, 27, or 28 of the Annex to the Hague Convention IV, Respecting the Laws and Customs of War on Land, signed 18 October 1907;
Annex to the Hague Convention IV, Respecting the Laws and Customs of War on Land
Article 23, section (e)
In addition to the prohibitions provided by special Conventions, it is especially forbidden […] (e) To employ arms, projectiles, or material calculated to cause unnecessary suffering;
The attack or bombardment, by whatever means, of towns, villages, dwellings, or buildings which are undefended is prohibited.
In sieges and bombardments all necessary steps must be taken to spare, as far as possible, buildings dedicated to religion, art, science, or charitable purposes, historic monuments, hospitals, and places where the sick and wounded are collected, provided they are not being used at the time for military purposes.
It is the duty of the besieged to indicate the presence of such buildings or places by distinctive and visible signs, which shall be notified to the enemy beforehand.
Note that the atomic bombs at Hiroshima and Nagasaki are considered blatant violations of the Hague Conventions (see Ryuichi Shimoda, et al v. The State 下田(隆一)事件 [Japanese case, 1963] ), but Japan explicitly waived her claims against the Allied Powers in Article 19(a) of the Treaty of San Francisco (1951).
Treaty of San Francisco, Article 19(a)
Japan waives all claims of Japan and its nationals against the Allied Powers and their nationals arising out of the war or out of actions taken because of the existence of a state of war, and waives all claims arising from the presence, operations or actions of forces or authorities of any of the Allied Powers in Japanese territory prior to the coming into force of the present Treaty.
Many people are shocked to learn that there is really no constraint upon presidential authority to direct the release and use of nuclear weapons.:
The President does not need the concurrence of either his military advisors or the U.S. Congress to order the launch of nuclear weapons. In addition, neither the military nor Congress can overrule these orders. As former STRATCOM Commander General Robert Kehler has noted, members of the military are bound by the Uniform Code of Military Justice “to follow orders provided they are legal and have come from competent authority.” But questions about the legality of the order—whether it is consistent with the requirements, under the laws of armed conflict (LOAC), for necessity, proportionality, and distinction—are more likely to lead to consultations and changes in the President’s order than to a refusal by the military to execute the order.
Whether orders to launch an unprovoked attack on another sovereign nation or agent are “legal” is another question; arguably, Congress has long abrogated its exclusive Constitutional authority to declare war by repeatedly authorizing and/or allowing the executive to direct the military to engage in military action including the invasion and use of military force without consultation or (often) even notification. One would assume that senior military officials would question the legality of orders to attack a nation using nuclear weapons without evidence of threat or provocation, but then the United States has and continues to conduct secret wars around the globe where no one is held accountable for damage or civilian deaths.
Note that Presidential nuclear orders have to be confirmed by an executive who has been confirmed by the Senate (typically the Secretary of Defense but could be any Cabinet member or head of agency requiring Senate confirmation), but despite the oft-mischaracterization of this as being an application of the “two-man rule”, all the SecDef or other cabinet member is doing is confirming that the order is coming from the President and not under duress or obvious mental impairment and makes no judgement as to the legality or moral legitimacy of the order.
Nope. Although the application of a “No First Use” policy has been discussed since the end of the Cold War, the supposed deterrence value a “Launch on Warning” posture (that is, the United States may launch nuclear weapons in response to a perceived threat even before it is confirmed or strikes have occurred on US soil or territories) has led strategic planners to reject “No First Use” out of hand.
I’ve never read the book but that seems unlikely to say the least. The function of the Fleet Ballistic Missile forces is to provide a response to threat even if the land-based forces of the nuclear triad (e.g. the ICBM and strategic bomber fleets) are disabled. The point of nuclear deterrence is that the US can go from peace to “wartime” in a moment and the response needs to be as sudden. Whether that is a sensible position is another discussion but a ballistic missile submarine commander who stated that he would not follow a confirmed launch order just because he considers it to be “peacetime” would be quickly removed from command. There are extensive measured taken to make sure that any launch order is validated, but once it is confirmed the sub commander has no legal authority to refuse the order.
Not really. Being in Afghanistan for a couple of decades, on the other hand…
Right, hence my citation of the war crimes statute. Even if the President personally operates the machinery that launches the warhead, the President is necessarily a national of the United States and therefore subject to the war crimes statute.
I don’t think there is any use of nuclear weapons in wartime that wouldn’t rationally be considered a “war crime”; even the use of so-called ‘tactical’ nuclear weapons is going to almost certainly affect civilian populations and render habitable or arable land unusable, which is what made discussions by the George W. Bush administration about using “nuclear bunker busters” both risible and terrifying (ridiculous that it was even being discussed at the presidential level like a satirical Kubrick film, and terrifying that the kind of people discussing it were not prone to restraint and self-reflection that people outside of said Kubrick film generally are.)
But the United States has committed numerous “war crimes” in the past seventy-five years, and the number of prosecutions for them have been so few and culpability reduced to often a single individual of junior rank or status (when anyone was prosecuted at all) that the threat of a president or senior official being prosecuted under war crimes statutes is of negligible concern or cause for restraint.
Perhaps, but for those with the need to know who find the order manifestly unjust the war crimes statute gives them cover to refuse.
You may want to check up more on how the U.S. military works, the Joint Chiefs have a limited role in operations like the Afghan withdrawal, they are not even in the military chain of command, do not issue orders to the combatant commands, do not plan the operations of the combatant commands etc.
We have fired military officers for fuck ups, the person who would normally be fired in this scenario would likely be General Kenneth McKenzie as an example. As a matter of policy firing random members of the Joint Chiefs for operational decisions they were not involved in would rank as a “stupid, bad” policy idea.
You’re speaking inaccurately here. We had a thread about strategic bombings awhile back that covered this–actually a thread dealing with the Israel/Gaza conflict but the legality of strategic bombing was discussed [ Israel vs Gaza 2021… wtf? - Politics & Elections - Straight Dope Message Board], but the two atomic bombings would fall under the same aegis. Bombardment and the laws of war, during WWII, were operating under the Hague Conventions of 1907 concerning the bombardment of occupied towns by Land and by Sea. Specifically: Laws of War: Laws and Customs of War on Land (Hague IV); 18 October 1907 and Laws of War: Bombardment by Naval Forces in Time of War (Hague IX); 18 October 1907. While it has been an opinion by some internationalists that these laws forbid things like strategic bombing, that has never been sustained by any legal action, nor does it meet the plain reading of those actual treaties.
The reality is aerial bombardment was ill-covered by existing laws of war. While deliberate targeting of civilians by any means was well covered by existing laws of war, under those same laws incidental killing of even extremely large numbers of civilians, could still be perfectly legal if you could ascertain a valid military target. Both Japanese cities contained valid military targets. Additionally, Geneva Protocal I, which was signed in 1977 (but not by the United States), attempted to fill some of the gaps on aerial bombardment. That protocol actually specified that if a belligerent intermeshes their civilian and military infrastructure, then the military infrastructure can still be targeted by other belligerents. The ensuing and guaranteed civilian deaths then actually get ascribed to the defending belligerent for blame, because it was a violation of the laws of war to commingle their civilian and military infrastructure.
Japan did this as a matter of routine in response to strategic bombing. It broke lots of factories up into small shops that would operate in small wood frame buildings all throughout Japanese cities. This was cited as a specific justification for firebombing of Japanese cities.
This is a common thing said, quite stupidly, by people who do not know what war crimes are, and who confuse them for “things that make me cry.”
Now as for Milley–he didn’t leak classified information, technically did not violate the chain of command, he likely has a formal liaison job with this Chinese general, meaning it is appropriate and acceptable for him to speak with that general on policy matters. He’s covered so far. But some of the specific things he says, if reported correctly, likely qualify as him “going into business for himself” in terms of foreign policy. It doesn’t quite break the concept of civilian control of the military, but it violates the spirit and intent of positions on the Joint Chiefs of Staff, which is to serve in high level advisory capacity to the President and other special policy assignments as necessary. It would be akin to a Deputy Secretary of State meeting a high-ranking diplomat of a foreign country, and going specifically against the policy dictates of the current administration. Not a crime, but not proper. Certainly, justifies a sacking. But it’s also a matter of diplomatic policy, so it would be up to the President to exercise his discretion on the matter. It appears thus far Biden has decided it isn’t a firing offense.
I read a goodly amount of military history, and that tells me it would be foolish to have such faith, regarding suicidal, or near-suicidal, orders at any level of military leadership.
Most likely, Milley was doing what recently terminated (Trump’s word) Secretary of Defense Mark Esper wanted him to do. This conceivably gives Milley a little cover, although there was no confirmed sec def at the time.
Biden would now be in his rights to relieve Milley. And he can rightly decide to keep him.
Since near-suicidal orders are indeed sometimes carried out, no single person should have nuclear launch authority.
I cited a case which explicitly held that the atomic bombing of Hiroshima and Nagasaki violated the Hague Conventions; although, I would not argue that particular case could be construed so broadly as to declare all strategic bombing in violation of the Hague Conventions.