What would an "illegal nuclear strike order" be?

Great Debates
41

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".

42

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

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.

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.

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.

44

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

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.

46

Only those ratified by the Senate, note.

47

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

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

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

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.

51

So if North Korea releases propaganda videos showing them mounting what looks like an H-bomb onto a missile, and show’s Kim Jong studying a map U.S. with red circles around Los Angelos, Guam, and San Diego, and satellite photos show the actual missile being assembled, is this enough?

Combined with an aformentioned tweet of Kim Jong making fun of Trump?

Because this is very, very, very close to what has actually happened.

To eliminate the threat, the U.S. would realistically have to unleash an ICBM volley or 2 by submarine, at point blank range basically to keep the missile flight times down. So absolutely no warning, with ICBMs targeted at every site suspected to have nuclear arms, at every government headquarters, at various major outposts along the DMZ.

Basically, the deaths of several million North Koreans in response to a possible (maybe 1%) chance of the deaths of a million+ Americans.

In the civilian world, if you’re holding a 0.38 revolver and a SWAT team has surrounded you, where every officer has a helmet + body armor and is standing a good distance away, and you don’t have the gun raised but are talking about it - the threat you pose is really pretty small. You’d have to get a very low probability shot directly into one of the officer’s faces, and you’re 100% sure to die if you do it. Yet we pretty much are ok with - even expect - the officers to turn you into chunky sausage in a hail of bullets if you don’t put down the gun immediately.

52

Without meaning to threadshit - surely, in most nuclear-launch scenarios (especially if launching against an enemy capable of sizable retaliation in kind, such as Russia) - whatever legal implications or consequences there may be, are utterly trivial compared to the nuclear launch itself?
It sounds akin to people debating over whether or not shooting down one of the hijacked 9/11 airliners en route to Washington, D.C. would have been legal or illegal. (Not the best analogy, but I can’t come up with a better one - the idea being that the extreme stakes in the crisis situation would overrule legal considerations.)

Suppose Trump orders an illegal nuclear launch, and millions are killed, and Trump is jailed - isn’t Trump being jailed utterly inconsequential? I can’t imagine that “legal vs. illegal” will play any consideration whatsoever in the Situation Room - the only debate will be, “Is this nuke launch a wise idea or not?”

In that situation, if nuking is the wise thing to do, then who cares if it’s legal or illegal - if it’s NOT the wise thing to do, who cares if it is legal or illegal?

53

Well following this reasoning, it is perfectly reasonable - even almost morally the only valid path - for everyone in that Situation room - the Sec Defense, all the secret service agents, everybody - to say “fuck our oaths, the real threat to America is right here”. What if Trump is trying to call in a nuclear strike on Russia? He’s literally calling for the certain death of half of every American man, woman, and child alive at this instant.

If you’re a secret service agent, and you don’t immediately execute the President if he does this, I’d say that you’re a traitor to America in the absolute sense. (as in, some ephemeral “spirit of the law”, not whatever the documents say)

54

Of course he would say that. It is instilled in every military member to not obey an illegal order. Notice he did not, however, give an example of what form such an illegal order would take.

55

I don’t think that Secret Service would have to shoot a president - merely Tasering or even just ignoring him would do - but yes, I do think that when the stakes are as high as nuclear warfare, it would be totally reasonable, expected, even, for people to say, “Fuck our oaths and job descriptions, we need to do what we decide is best.”

What would be unreasonable would be to carry out orders leading to the deaths of many millions, in the name of “just doing one’s job description.” (*If *that nuke launch were, in fact, an unnecessary or bad idea.)

56

And this would have the effect of making our nuclear responses dependent on what a Secret Service agent thought was an unnecessary or bad idea.

57

Maybe, but then again, if everyone down the chain of command always dutifully followed the nuke launch orders, then it would “have the effect of making our nuclear responses dependent on what a president thought was an unnecessary or bad idea.” So it’s still much the same problem; one person decides the fate of millions of lives.
At a certain point, when the stakes are high enough, the law, Constitution, and UCMJ simply become nothing more than mere pieces of paper - or, IMHO, *ought *to.

(Edited for clarification: I’m sure many people would not consider them to just be pieces of paper in that situation, but I think they ought to be seen as just that, mere documents whose power pale in comparison to millions getting killed in an ill-advised nuke war)

58

Yeah. The President. Not a random Secret Service guy.

59

So you are that random secret service guy. You know for a fact, having seen the President’s private actions, that your judgement dwarfs his. Still want to end the world on his say-so? Maybe just stand there at your post while he kills you, your whole extended family, everyone you ever knew, and turns the USA into a radioactive wasteland?

60

Not really. But if I see Russia invading Europe, and the President ALSO wanting to launch nuclear weapons in order to stop them, knowing that Russia will retaliate, do I similarly stop the President from authorizing nuclear weapons?

Any authorization of nuclear weapons makes it quite likely that my family will die in a nuclear blast. So, any Secret Service agent should stop any authorization of any nuclear weapons, right?

NK has leveled Seoul with a snuck in nuclear weapon. The President wants to launch nuclear weapons at NK. My family is sight-seeing in Pyongyang. Should I stop the President because I don’t want my family to be vaporized?

If we didn’t want the authorizer of nuclear weapons to be THIS President, then we should have done more to prevent his election.