I know this has been discussed here in the past but this comment by the commander of U.S. Strategic Command confused me:
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?
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.
Someone impersonating the president giving such a order would certainly qualify as illegal (I hope).
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.
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.
Your ideas are intriguing to me and I wish to subscribe to your newsletter. Got any ideas for this smarter system?
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.
A little color without being specific.
“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:
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.
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?
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. :rolleyes:
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.
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.
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.
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.
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.
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?
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).