How formal does a presidential order have to be to be an order?

Factual Questions
1

Let’s say Biden, as Commander-in-Chief, is sitting in the White House situation room watching some stuff in Ukraine unfold on the TV screen and mumbles out of the corner of his mouth, “Bomb the (Russian) bastards.”

It’s probably not likely at all that the USAF would start airstrikes on Russian forces just based off of a mumbling, but if Biden then got a lot more formal, “Mr. Joint Chiefs of Staff, I want B-2 airstrikes on that Russian convoy near Kharkiv within 24 hours” then I assume the ball would get rolling, pronto.

But what if, then, a few hours later, while emerging from the lavatory, Biden then mumbles again, “Okay, hold on, hold on, let’s think about that a bit more” as the bombers are already lifting off the runway?

You get a sense of what I’m asking; just how formal do presidential orders have to be to be issued, and canceled? Is it literally nothing but the words from Biden’s mouth?

Also, what prevents a rogue US military commander from calling his subordinates down the line and lying, “President Biden orders you to (do this or that)” if the orders are never written down on paper?

2

I really don’t think that the US military is staffed by robots. I reckon that whoever heard whatever was said would verify and clarify the situation, and ask Biden if he’s remembering the ramifications. There would be sufficient back-and-forth to figure out if Biden was actually giving an order or not.

3

There was a “documentary” about this called Dr. Strangelove

4

King Henry II and Thomas Becket both had reason to rue less than formal orders. I would suspect that sets enough precedent for most players to be a bit more careful.

Moreover, in the modern world, military actions require rather more planning than a simple “bomb the bastards.” If there was a serious military situation potentially involving US force, the full playbook would need creating. Perhaps there would be a known single plan ready for actioning. Even then the formal order to action it would be pretty carefully orchestrated.

5

This was a very real question during the Trump presidency when it came to tweets. For example, the president said that the Navy “will NOT be taking away Warfighter and Navy SEAL Eddie Gallagher’s Trident Pin”. But,

“I need a formal order to act,” Navy Secretary Richard Spencer said Saturday. Of Trump’s tweets, “I don’t interpret them as a formal order.”

It seems that in every case where a tweet sounded like an order, others in the administration considered it not to be an order.

https://abcnews.go.com/International/wireStory/secretary-navy-trumps-tweet-formal-order-67257130

I’ve heard former secretary of defense Mark Esper say in an interview he sometimes had to ask for clarification if certain things were presidential orders or not.

So I would say the lines are not entirely clear. There isn’t a specific “Form 83QM” the president needs to fill out to make it a presidential order, but random mutterings aren’t going to be executed on if they seem weird or absurd. The line is somewhere in between and the administration can exercise a degree of discretion in deciding whether to regard a given statement as an order.

6

I don’t think the answer to this is codified. I think it more depends on the degree to which the president’s subordinates feel that they need their ass covered if they carry out anything that sounds like it might be an order.

“You just started a nuclear war, you idiot.”
“But the president said, ‘We begin bombing in five minutes’”
“That was a joke, son.”

7

This is true. Obviously not all orders need to be written, but something that’s likely to escalate an international conflict is going to be well documented.

There was some news coverage of how the decisions for airstrikes were made during OIF/OEF, especially under Obama. In short, lawyers were in the room making a legal justification for each one. It’s unlikely that a combatant commander is going to “bomb the bastards” without a thumbs up from their own counsel (yes, every level has their own lawyers, pretty much down to the unit).

It’s also worth understanding that this isn’t how military operations are typically conducted. A combatant commander is given a military objective, and then various tools to accomplish that objective. Famously, Truman didn’t actually order the nuclear strikes on Japan, but rather he authorized the use of nuclear weapons and then it was up to someone like the PACAF commander to determine when and how to use those weapons to accomplish the military objectives they’d been given. So, in practice, the USAFE commander would have some objective, like “stop the Russian advances towards Kyiv,” and it’d be up to them whether to use A-10s, B-2s, etc, when to actually engage, or whether or not to engage at all (there may be some alternate means of stopping the advance). Bombing a convoy with B-2s is a tactic, and POTUS isn’t going to make tactical decisions.

If you look at something like Trump’s missile strikes against the airfield in Syria, which was a political decision with very little military value, and you have to assume that the AFCENT commander had that documented out the wazoo just to cover his own ass.

8

Dr. Strangelove was based on Two Hours to Doom, a 1958 UK novel written by Peter George under the name of Peter Bryant, and released in the US under the title of Red Alert. Fail-Safe, by Eugene Burdick and Harvey Wheeler, came out in 1962 with such a similar plot that Kubrick and George launched a copyright infringement suit because of the movie quickly made from it. Seven Days in May, another huge bestseller in 1962 by Fletcher Knebel and Charles W. Bailey II, featured an attempted coup by the Joint Chiefs of Staff. It got made into a movie in 1964. That meant it followed the Thirteen Days, the crisis in Cuba that made every military commander a possible starter of WWIII.

The point is that everyone in or watching Washington was scared to death of who had the power to push the button way back then. If you think our mods are strict, imagine the time and care and orders that flooded Washington putting firm boots on the neck of anyone with power, including the President and the Generals.

The President is always accompanied by the famed Nuclear Football, whose purpose is to ensure to the limits of sanity that everyone involved is making a deliberate choice, following the proper procedures, adhering to the law, and going down the chain of command, with possible checks along the line.

Before the order can be processed by the military, the president must be positively identified using a special code issued on a plastic card, nicknamed the “biscuit”. The United States has a two-man rule in place at nuclear launch facilities, and while only the president can order the release of nuclear weapons, the order must be verified by the secretary of defense to be an authentic order given by the president (there is a hierarchy of succession in the event the president is killed in an attack). This verification process is only to ensure that the order came from the actual president; the secretary of defense has no veto power and must comply with the president’s order. Once all the codes have been verified, the president “may direct the use of nuclear weapons through an execute order via the Chairman of the Joint Chiefs of Staff to the combatant commanders, and, ultimately, to the forces in the field exercising direct control of the weapons.” These orders are given and then re-verified for authenticity.

It has been argued that the president has almost sole authority to initiate a nuclear attack because the Secretary of Defense is required to verify the order, but cannot veto it. However, the president’s authority as Commander-in-Chief is not unlimited; US law dictates that the attack must be lawful and that military officers are required to refuse to execute unlawful orders, such as those that violate the Laws of Armed Conflict. Therefore, the Chairman of the Joint Chiefs of Staff and other servicemembers in the chain of command must refuse to issue the execute the order if such an order is unlawful. Several military officials, including General John Hyten, have testified to the US Congress that they would refuse to carry out an unlawful order for a nuclear strike. Yet if the Chairman of the Joint Chiefs of Staff were to refuse to issue the execute order as directed by the president, the president could reassign or fire the Chairman and appoint a replacement, including waiving the required credentials if all other qualified officers refused the appointment or if the president determined that it was in the national interest. In addition, off-the-shelf strike packages are pre-vetted by lawyers to confirm that they are legal and, thus, such a strike would be presumed to be a lawful order. Furthermore, military servicemembers have been reprimanded in the past for questioning US protocols for nuclear strike authority, notably Major Harold Hering, who was discharged from the Air Force in late 1973 for asking the question “How can I know that an order I receive to launch my missiles came from a sane president?”

Nobody knows whether even all these precautions make the system foolproof. The only certainly is that the President can’t simply mumble something and start a war.

9

Didn’t Trump fire some staffers by tweet?

10

Can’t any boss do that? (Non-union, non-civil service, non-protected environment for the nitpickers.)

11

I can’t see how. There’s a lot that has to going in to firing someone: Payroll needs to be notified to stop paying the employee. Security needs to be notified to collect their keys or deactivate their ID badge or whatever. IT needs to be notified to disable their accounts. Recruiting needs to be notified to start the search for their replacement. There may be details that need to be worked out with severance packages and the like. There’s probably paperwork that’s needed for the IRS, and for unemployment insurance. You probably want to run it by legal, to make sure the ex-employee can’t sue. And of course, you need to inform the employee themself. What if any of those people don’t read Twitter? What if they do, but aren’t sure if the order really came from the boss, as opposed to someone with a similar handle, or someone who hacked their account? Any company (at least, any competent one) will have standard policies and procedures in place to handle all these details, and a tweet doesn’t hit any of them.

12

That’s all separate from the firing decision, though. Basically, how does HR know to begin the termination process? Normally they’d get a message via the chain of command, but what if they just check the CEO’s Twitter feed every morning and start terminating everyone who they “fired” via tweet.

13

I recall this actually happening with Trump. He had ordered an airstrike and then, as the planes were in the air on the way to their targets he changed his mind, and ordered the strike cancelled. The planes turned areound and came back to base, and that was that.

I’m on my phone so I’ll try to find a cite when I’m on my laptop.

ETA:

14

Aren’t you assuming that the boss notifies nobody else? All this has to be done if the firing is in person.

15

Very unlikely that the orders wouldn’t be written on paper.

Most military orders are actually transmitted in written form to the actual frontline commands. It used to be mainly teletypes (like the Washington-Moscow hotline), then telecopier (fax), now mostly secure email over Milnet ( military version of the Internet).

16

Specifically, Gen. Leslie Groves, commander of the Manhattan project, chaired a committee that selected several cities as potential targets for the first two bombs. On July 25, 1945, with Truman’s approval, Chief of Staff Gen. Thomas Hardy issued the order (written by Groves) to Gen. Carl Spaatz, who had assumed command of U. S. Army Strategic Air Forces In the Pacific after VE Day. Here’s the order.

But, as @steronz notes, Truman did not explicitly authorize the dates, times, and targets, as later presidents would be required to do, nor did the early nuclear weapons have the Permissive Action Links that prevented unauthorized use without the president’s permission. Those would not be developed and implemented until the 1960s.

17

My point is, I’m pretty sure there were cases with Trump where he didn’t notify anyone at all, by any means other than the tweet.

18

In general, there is no Constitutional requirement for the form or process for (US) Presidential decrees. Formal directives (Executive Orders) are documented on White House letterhead and in the modern era assigned a number, where they carry the force of law within the purview of executive authority. Executive Orders are captured as formal documents with some of them being controlled or classified information, and are captured in archives. The President can also make Proclamations which are more of a declaration of intent that does not carry any force of law. The President, of course, is the direct boss of his Cabinet, chief advisors including the Joint Chiefs of Staff, the heads of the various Armed Services, and Directors of independent agencies like NASA and the CIA, all of whom serve at the pleasure of the President. It is an codified tradition that the people in these roles have a blanket resignation that the President can request at any time so there is no legal contest of justification for termination, but certain Presidents have seemingly enjoyed the drama of making a point of publicly dismissing a secretary or advisor rather than asking their resignation.

The President also gives many informal verbal orders, although these are generally delegated to his Chief of Staff, Cabinet members, and various other staff who may translate it into formal orders. Such orders are captured either in audio recording or in memorandum and external correspondence. The transmission of orders via social media platform is obviously a new innovation and it isn’t clear that there are really formal procedures in place for validating and verifying these directives, especially those that are sent out to a broad public audience, nor what requirements can be legally levied on the platform owner to maintain official archives. It would be interesting for someone to make a legal challenge to the validity of such orders though to my knowledge no one has yet done so, or at least not to the extent to make it to a federal district court.

In the case of an order to launch strategic nuclear weapons (for which the President holds exclusive authority) there is a formal process for verifying both the intent and validity of the order, which includes confirmation by one of his Cabinet secretaries or undersecretaries (generally assumed to the the Secretary of Defense but it can be anyone confirmed by the Senate) that the order is actually from the President who is in sound mind, as well as the specific OPLAN launch options and authentication of a code from a one-time use pad selected by the President, communicated through a special encrypted communications system colloquially referred to as the “Nuclear Football” to the National Military Command Center (NMCC), nominally at the Pentagon but there are multiple backup sites. If the order is not part of the OPLAN and has detailed instructions to attack some specific target then there would have to be some additional coordination, presumably by encrypted phone or video link. Once that order is hypothetically given it sets off a chain of events that has the Deputy Director for Operations (DDO) or Assistant Deputy Director of Operations (ADDO) at the NMCC or alternative site verifying the authenticity and specificity of the order, and then conveying the appropriate orders to the Operations and Emergency Actions sections to send alert and launch orders to the appropriate Air Force wings and/or Naval squadrons to execute attack orders.

All of this is designed to occur within minutes of the President initiating the order with essentially no review or opportunity for reflection beyond the authentication process. So, the President just babbling out an order to “Attack Parris with the entire Minuteman fleet!” to a minor functionary isn’t going to happen because the order has to go through the authentication process, but once it does there is nothing procedurally or legally to prevent that order from being executed as directed.

This should scare you.

Stranger

19

Similar questions arose in regard to what constitutes a presidential pardon, and even more recently about the formality of declassifying information.