Nuclear weapons strategy in the United States is designed around “presidential first use,” an arrangement that enables one person, the president, to kill and maim many millions of people in a single afternoon. Is presidential first use legal? Is it constitutional? Is it just? This Public Books virtual roundtable, based on a November 4, 2017, conference held at Harvard University and cochaired by Elaine Scarry of Harvard and Jonathan King of MIT (video highlights available here), gathers international and constitutional scholars and politicians to examine the nature of presidential first use in the United States alongside parallel arrangements in the other eight nuclear states. The conference (which opened with Elaine’s Scarry’s introduction, available here) exposed the grave illegality of first use, the likelihood of its occurring, and the way citizens can step forward to dismantle it.
• Congressman Jim McGovern: Presidential First Use vs. Congress
• William J. Perry: Nuclear North Korea: 1999 and 2017
• Bruce G. Blair: Protocol for a US Nuclear Strike
• Rosa Brooks: Nuclear Weapons and the Deep State
• Kennette Benedict: Congress and the Citizenry
• John Burroughs: International Law and First Use of Nuclear Weapons
• Bruce Ackerman: Presidential Lawlessness
• Zia Mian: Nuclear Weapons Use in South Asia
• Hugh Gusterson: Democracy, Hypocrisy, First Use
• Sissela Bok: The Use and Misuse of the Language of Self-Defense
Presidential First Use vs. Congress
What are the constitutional limits on the president, if any, when it comes to using nuclear weapons? What kind of decision making comes into play when we think of the unthinkable: nuclear war? I say “unthinkable” because for over 70 years the idea around nuclear deterrence has been that we have these terribly destructive nuclear weapons in order to make sure that we do not use them. They used to call this MAD—“mutually assured destruction”—and it is mad. It is totally insane. But this idea remains the international framework for restraint.
The nuclear disarmament treaties of the last decades have been bilateral and multilateral. Such treaties have significantly decreased the number of weapons in the US and Russian arsenals; eliminated nuclear aboveground testing and nearly all belowground testing; prevented nearly all countries from acquiring or developing nuclear weapons; and restrained those nations that have nuclear weapons from acquiring new ones. These were no small accomplishments. Congress has enshrined most of these into US law, either by ratifying treaties or by authorizing and funding nonproliferation programs. I firmly believe that Congress would not have acted in these ways without a very engaged citizenry.
And now here we are today. Speaking for myself, I don’t believe that I’ve ever been so worried about a possible nuclear confrontation in my life. Nuclear weapon use can be triggered very quickly and then can escalate so rapidly that before we know it we’re in a nuclear war. The national command authority is very simple. The president makes the decision to use nuclear weapons and the secretary of defense executes the order. If that doesn’t scare the hell out of you right now, I don’t know what will. Once the decision is made and in the process of being carried out, our systems of checks and balances don’t apply. Congress couldn’t stop it. The Supreme Court couldn’t stop it. The way it’s set up, not even the secretary of defense in theory has the authority to stop it.
This is far from what the framers of the Constitution had in mind when they drafted and adopted the document as the foundation of all our laws and democratic institutions. The framers gave the power to declare war to Congress. That is why H.R. 669 and S. 200, the Restricting First Use of Nuclear Weapons Act, was introduced by Congressman Ted Lieu of California and Massachusetts Senator Ed Markey, in January 2017. This bill prohibits any and every president from using US armed forces to carry out a first-use nuclear strike unless Congress has declared war and authorized such a first strike. I’m proud to be the very first cosponsor of the House bill, H.R. 669, which currently has 77 cosponsors: not a bad beginning.
Once the decision to use nuclear weapons is made and in the process of being carried out, our systems of checks and balances don’t apply.
Requiring that Congress authorize a nuclear first strike shouldn’t be a Democrat or Republican issue. This is a commonsense issue. The bill clearly defines a first strike as meaning that the enemy has not launched a nuclear weapon against the United States or an ally of the United States. If another country launches a nuclear weapon at us, the President does have the right to proportionate self-defense under international law.
Some might argue that prohibiting the United States from striking first with a nuclear weapon ties the president’s hands and makes the country vulnerable to attack. However, former Secretary of Defense William Perry, a true champion of rational nuclear disarmament, has noted that in any imaginable scenario, the US military could rely on our conventional arsenal alone to deliver a first strike of devastating force. That conventional arsenal includes our B-2 bombers, our cruise missiles, our Tomahawks, our nonnuclear ICBMs, and a huge range of weaponry. We’ve seen the destructive capacity of those conventional first-strike weapons in Iraq and Afghanistan. Limiting a first strike involving nuclear force does not leave us weak or vulnerable.
Democrats were strongly pushing President Obama to adopt a no-first-strike policy when he was in office. This is not just about President Trump. We have been contemplating this policy for quite some time. But it will take many more cosponsors for this bill to have any chance of moving in the House or the Senate. It will take the Republican leadership of Congress being a lot more nervous about the possibility of the president actually launching a nuclear strike. Meanwhile we have the President backing away from hard-won international agreements to keep nuclear weapons out of the hands of the Iranians. We have him exchanging ever more heated taunts with nuclear-armed North Korea. This is why the Markey-Lieu bill is so absolutely necessary.
Congress needs to assert its Constitutional authority when it comes to war, and especially when it comes to the catastrophic possibility of nuclear war. I’m proud to have also joined with Senator Markey and Representative Conyers to introduce bipartisan, bicameral legislation to reaffirm Congress’s constitutional power over first strike on North Korea. H.R. 4140, the No Unconstitutional Strike against North Korea Act, was introduced last October with 60 co-sponsors. Two of them are Republicans. The bill restricts any funds from being used to launch a military strike against North Korea without prior approval from Congress. That’s any strike, not just a nuclear strike. Because war is war is war is war, and only Congress has the right to declare and authorize it.
I worry that President Trump actually believes that we have some kind of missile defense system able to knock all of North Korea’s nuclear weapons out of the sky if they were to launch a nuclear weapon. No such thing exists. We cannot guarantee the protection of ourselves and our allies.
These current crises, threatening and as frightening as they are, speak to the underlying and long-unresolved crisis of nuclear weapons themselves. President Obama began a program of so-called nuclear modernization, which would update, not just maintain, the current US nuclear arsenal, and replace older nuclear weapons with modern versions. President Trump has doubled down on that proposal to modernize and update our current nuclear weapons, and is proposing to create new nuclear weapons.
The Congressional Budget Office (CBO) came out with a report that estimated the cost of President Trump’s plans to maintain and replace the US nuclear arsenal over 30 years at $1.24 trillion. That is $200 billion more than the last estimate. When you factor in inflation the price tag soars to $1.7 trillion. These costs are simply unsustainable. They threaten the entire federal budget, including the rest of the military budget.
The CBO report also laid out several different options for improving our military force structure that are much more cost-effective. This is important, because the Pentagon sometimes likes to paint its proposals in very stark terms: either give us everything we ask for or we’re all gonna die. That’s a false choice, as the CBO report makes abundantly clear.
However, I fervently believe that the best choice the United States can make, and that the world can make, is to eliminate nuclear weapons altogether. I realize that this can’t be done in a day. I’m not a fool. But my fear right now is that there has been a shift in thinking among the nuclear powers—not just the United States and Russia but also France, the UK, and China, not to mention India, Pakistan, and North Korea—that nuclear arsenals must be protected, updated, and increased, all with an eye to the inevitable use of a nuclear strike against an enemy in the foreseeable future.
Nuclear war not only devastates the people where it falls. Over time, it would devastate the world as we know it.
While the nuclear powers are hunkering down, the rest of the world is moving toward a demand for total nuclear disarmament. Not too long ago that was at least a future goal of nuclear powers: careful, verifiable, incremental disarmament, while assuring that no other nation acquired nuclear weapons capabilities. I fear for the current moment. We have members of Congress who think using a nuke against North Korea or Iran is not just something we should think about; they believe it is something we should do.
I think it’s time to get moving again. It’s time once again to remind our friends, our neighbors, our coworkers that these are issues that affect every single American family, every single one of us. In a very busy world, where families are focused on picking up their kids from school, wondering how the economy is going to affect their jobs and their grocery bills, there is one more sure thing that we all need to remember: a nuclear war will kill us all. Quickly or slowly, it will kill all of us. Nuclear war not only devastates the people where it falls. Over time, it would devastate the world as we know it. That was once a commonly understood fact, but it’s been forgotten because so many other crises and hardships have moved to the forefront.
It is time to remind everyone, including every single member of Congress, what the reality is. It is time to rebuild this movement across ages, across regions, cities, towns, suburbs, and rural communities, across genders and races, because a nuclear war will devastate us all. It’s important to remember, though, how different the times are now than when the freeze movement was organized. We no longer have a Democratic Congress. We don’t even have a moderate Republican Congress. We have a very conservative Republican-controlled House and Senate that have never moved forward any legislation outside their own narrow agenda. And we have a very unstable, volatile, erratic White House.
In 1978 I was a college intern in the office of Senator George McGovern (no relation but one of my heroes). I had the privilege of attending a debate that he had with William F. Buckley Jr. at Yale University. The debate was entitled “Resolved: That the Strategic Arms Limitation Talks Are in the Interest of US National Security.” Senator McGovern concluded by referring to a 1963 debate on a limited nuclear test ban treaty. And here’s what he said that night at Yale:
Senator Everett Dirksen took the floor to close the debate. He said that he had just reread John Hersey’s Hiroshima, the description of what happened to that great city, the morning after. The scene of one family sitting charred around the breakfast table; out in the yard, bits and pieces of children’s clothing; the broken arm of a doll; toys and debris scattered over the landscape. And he said, “I thought about that scene, and I said that someday Everett Dirksen will be buried in Illinois, and when that happens, I don’t want them to put on my gravestone, ‘He knew about this, and he didn’t care.’”
We need to show that we care. We need to build this movement. Time is of the essence.
Nuclear North Korea: 1999 and 2017
In 1998, North Korea launched a long-range missile. The test happened to be unsuccessful, but the fact that they were testing caused great concern that they were cheating on the 1994 Agreed Framework, by which they agreed to shut down their nuclear program at Yongbyon. We believed that they must still have some nuclear developments underway, because an ICBM doesn’t make much sense unless it’s carrying a nuclear weapon. The test led people in Congress to believe that we had to pull out of the Agreed Framework. In that turmoil, President Clinton asked me if I would temporarily come back into government and serve as his special representative on dealing with North Korea.
I foolishly accepted the assignment. The first thing I did was brief Congress about my new assignment and my goal to stop any nuclear developments that might be still underway in North Korea, as well as their development of long-range missiles. Not all the members were thrilled, but they seemed to accept it. I then asked the Japanese prime minister and the South Korean president to appoint an equivalent person to work with me so that this would be a tripartite process rather than an American process. The three of us spent the next several months working and then released a report that laid out a diplomatic path for approaching North Korea.
The single most important statement in that report was that we must “deal with North Korea as it is, not as we might wish it to be.” I believe that statement is as true today as it was when the report came out, in 1999. I then requested a meeting with the North Korean leaders and they granted it. They allowed me to fly an Air Force plane directly into Pyongyang, which is so unusual that, as we flew into North Korea, I was looking down wondering whether the air defense people on the ground had gotten the word that it was all right for this US Air Force plane to fly in there. After a very interesting four days in Pyongyang, we ended with a comprehensive verbal agreement about what North Koreans would not do; what the US would do to provide additional security assurances to North Korea; and what Japan and South Korea would offer in the way of economic incentives.
Nuclear weapons are useful to the current North Korean regime, but only if they do not use them.
This was followed by a series of actions in North Korea, some of which were quite encouraging, including allowing North Korean athletes to march with South Korean athletes in the Olympics—a symbolic gesture, but a very nice one. Kim Jong-il sent his top military aide, vice marshal Jo Myong-rok, back to the United States to see if we could come to a formal agreement. He asked me if he could stop at Stanford on the way so that I could show him around Silicon Valley, which I did. I arranged to take him to companies where the CEOs happened to be Korean Americans so that they could speak to him in his own language.
Jo’s meeting in Washington was successful. He met with both the secretary of state and the president and we reached a final agreement. The signing was nominally set for a month or two in the future, whenever Clinton and Kim Jong-il could get their schedules worked out. The meeting happened in October of 2000. The next month, a new US administration was elected. Initially, the Bush administration said they would continue the effort, but in fact two months later President Bush cut off all discussions with North Korea. For two years there were no discussions at all, and the whole process collapsed.
The Bush Administration believed that they could get a better agreement. By 2017 that had resulted in North Korea having 20 to 30 nuclear weapons, a few of them thermonuclear, and a couple of hundred ballistic missiles, most of them capable of reaching South Korea and some of them capable of reaching Japan. And North Korea was developing missiles capable of reaching the United States.
The purpose of these nuclear weapons in my considered judgment is to deter the United States from making a military attack on North Korea. They want to sustain their regime and, more broadly, the Kim dynasty. Each of the three leaders of North Korea has essentially been an emperor with absolute power, including the power to summarily execute someone if they decide to do so. North Korean leaders have absolute power over international decisions.
The current North Korean regime in my judgment is ruthless, including to their own people, and reckless. But I do not believe they are suicidal. I do not believe they are crazy. They’re seeking to stay in power, and therefore, in my judgment, they will use the nuclear weapons only in response to an attack. Nuclear weapons are useful to them, but only if they do not use them. Once they use them, the leaders understand that they will die and their country will be devastated.
I therefore think that the US fear of an unprovoked attack by North Korea is groundless. But still, it’s a very dangerous situation. North Korea will use nuclear weapons if attacked, and there certainly has been ample talk in the United States of making a preemptive attack on them. North Korea may even use nuclear weapons if they believe they’re about to be attacked.
Consider the consequences. North Korea has Seoul and Tokyo and other cities within range of their nuclear weapons. If they attack those cities, they will destroy them. Millions of people will die. This is not hyperbole. Putting on my technical hat as former secretary of defense and former under secretary of defense for research and engineering, I can confidently say that we could avenge such an action, but we cannot defend against it. We do not have a defense capable of protecting against a missile attack on Tokyo and Seoul.
Our policy should be to ensure that this does not happen. How do we do that? We have to get serious about diplomacy. I’m convinced that there is a diplomatic path available to us. The path to Pyongyang is through Beijing. We should start our diplomacy with China so that the US and China can agree on the dangers and how to deal with them. We also need to address China’s concern about having American troops along the Yellow River, which is one of the big factors holding them back from taking meaningful action.
Protocol for a U.S. Nuclear Strike
The current US protocol for deciding whether to launch a nuclear strike—developed in the early 1960s, with the advent of intercontinental ballistic missiles—has two main functions and virtues: first, it concentrates the power and authority over the use of nuclear weapons in the presidency, at the highest level of the executive branch of the US government, thus keeping it out of the hands of the military and others. Second, it enables the president to respond rapidly and decisively to a nuclear attack by an enemy whose missiles may fly from one side of the planet to the other in 30 minutes; or whose missiles launched from submarines in the oceans may fly to targets in the United States in 15 minutes. It’s critical to have a protocol that allows the president to consider the use of nuclear weapons and, if necessary, to order their use, and to have the process of implementation begin in a very, very short period of time.
The protocol’s virtues also produce its disadvantages. By virtue of the speed and concentration of authority in this protocol, the president has an opportunity to effectively railroad the nuclear commanders and forces into executing even a very large nuclear strike first—preemptively or preventively. That could lead to a misguided decision based on an impulsive psychology or on other factors that lead to a very bad call.
The other downside to this protocol, which we used to talk about a lot more than we do today, is that the protocol itself, rooted as it is in speed and concentrated authority, can railroad the president into authorizing, in a hasty way, the use of nuclear weapons based on indications, possibly false, of an attack underway (a strategy known as “launch on warning”). In other words, we might believe we are retaliating when in fact we’re launching first.
During the Cold War, to my knowledge, a false alarm never led to notification of the president at the beginning of the protocol that I’m about to describe. The false alarms were caught before that happened. Ironically, today, with the proliferation of ballistic missiles over the last decade (there’s been a huge surge in ballistic missile proliferation, and in their testing) you find that recent missile launches—from China, from Iran, from North Korea—have led on multiple occasions to sufficient ambiguity that the presidents have actually been notified about the ongoing event.
If we are under attack, the president is going to have to consider his options in about six minutes.
Here are the key features of the current protocol. It begins with an early-warning function: the effort to detect a possible attack against North America and to notify the president and others to begin a process of deliberation. Every single day, the early-warning staffs out in Colorado and Omaha pick up events that require a second look to determine whether we’re under attack. Events they might review include a Japanese satellite launch into space, a North Korean missile test, a US missile test out of California, a wildfire in the southwest US. Most of these are usually dismissed quickly. Once or twice a month, something happens that requires a really close second look. And once in a blue moon, something happens and all hell breaks loose, as in the case of a false alarm concerning a missile launch.
If these staffs receive any indication that we may be under attack, they have three minutes from the time the first sensor data arrives until they have to provide a preliminary assessment as to whether North America is under attack. If the assessment is of medium or high confidence that there is a threat, they initiate a process that will bring the president and his top advisors into an emergency conference no matter what time of day or night.
Imagine that the president has decided to initiate a conference with his top advisors to consider the first use of nuclear weapons. The United States does not have a no-first-use policy. Furthermore, under the current review of our nuclear policy, undertaken primarily by the Pentagon, there is an emerging thesis that we should move further away from no first use and consider use of nuclear weapons in a wider variety of contingencies. We are on the verge of modifying our assurance to non-nuclear-weapons countries that we would not use nuclear weapons against them, in contradiction to the position adopted by the Obama administration.
The emergency meeting of the president and his top advisors will typically include statutory members of the National Security Council: the secretary of defense; the secretary of state; the national security advisor; the chairman of the Joint Chiefs, who participates at the discretion and the invitation of the secretary of defense; and a number of key military command centers and personnel, the most important of whom is the commander of strategic forces based in Omaha, Nebraska, who commands all our strategic nuclear weapons.
Time and circumstances permitting, the commander will brief the president on his nuclear options and their consequences. It will not be a long briefing. He’s going to have to boil this down into very, very brief sound-bites for the president: here are your options and here are the consequences. The commander will then ask the president a couple questions, such as whether he wants to withhold attacks on a particular location, such as a populous city. That briefing, if we are under attack, will be as short as 30 seconds. Of course, if the president is considering the first use of nuclear weapons, the timeline is not nearly as short and that conversation can last for quite a long period.
If we are under attack, the president is going to have to consider his options in about six minutes, given how this protocol tends to work. If we’re not under attack, he can deliberate longer. Then he makes a decision: What option am I going to pursue? Am I going to decide to attack North Korea, for example? (With the current preprogrammed attack plan, I estimate we would have 80 nuclear aim points in North Korea.)
Let’s say the president chooses an option. It will be conveyed instantly to the war room at the Pentagon, which probably initiated the presidential conference in the first place. The people in the Pentagon war room are listening in on the conversation and are beginning, as they hear the president moving toward a decision to use nuclear weapons, to prepare a launch order.
Note that the secretary of defense does not confirm the president’s decision, nor does he or she have a right to veto it, nor does anyone else have the authority to override the decision. This is what Elaine Scarry has identified as, in effect, a “thermonuclear monarchy,” which gives the US president almost carte blanche command over the nuclear forces.
When the president conveys his decision to the war room, they ask him to authenticate his identity using a special code. It’s referred to colloquially as “the biscuit,” otherwise known more officially as the “gold code.” If that code matches, the war room at the Pentagon, or an alternate, will format a launch order that will be transmitted down the chain of command to the executing commanders of the submarines, land-based rockets, and bombers.
That launch order is roughly half the length of a tweet. It contains all the information necessary for the crews down the chain of command to launch their forces: the time to fire, the chosen war plan, an unlock code that the crews need to physically unlock their weapons prior to the launch, and special authentication codes that the crews check with the codes in their safes to satisfy themselves that these orders came from the president (those codes are not in the possession of the president, but of the military).
That takes two minutes: 10 seconds to authenticate, then a minute or two to format and transmit the order. And in two more minutes, from the receipt of that order down the chain of command, missiles could be leaving their silos; it takes only about one minute for a Minuteman crew in the plains states of the Midwest to carry out their launch checklist. This was my job in the 1970s and at the time, it took me one minute. We delayed a little bit, for classified reasons, but that’s how long it took then and that’s how long it takes today.
The protocol itself, rooted as it is in speed and concentrated authority, could railroad the president into authorizing the use of nuclear weapons based on indications, possibly false, of an attack underway.
After the crews enter the war plan it goes out to all the missiles, which are preprogrammed with what wartime targets to strike. In peacetime, they are aimed at the ocean, but changing their targets to Moscow or any other targets is as easy as changing the channel on your TV set.
Today, within a minute or two there can be up to 400 high-yield strategic weapons launched out of their silos to their targets, wherever those targets may be. Submarines take about 10 minutes longer because it takes them longer to target their missiles, position the submarine, and get to the proper depth. But even submarines on alert in the Pacific and Atlantic Oceans would within 15 minutes be launching missiles out of their tubes, then firing them one at a time every 15 seconds.
Lastly, the bombers would take 8 to 10 hours to reach their launch points if they were already on alert. They are not normally, today, in peacetime, on alert. They don’t even have bombs on board, so in a crisis they would have to be placed on full alert, with bombs and cruise missiles loaded, before they were usable.
To sum up: the president wakes up, gives an order through a system so streamlined that there’s almost no gatekeeping, and, within five minutes, 400 bombs leave on missiles launched out of the Midwest. About 10 minutes later, another 400 leave on missiles launched out of submarines. That’s 800 nuclear weapons—roughly the equivalent of, in round numbers, 15,000 Hiroshima bombs.
Reform of current US launch protocol is long overdue. Layering on new safeguards that strengthen checks and balances on presidential launch authority is necessary to reduce the risk of nuclear first use. Safeguards include the Markey-Lieu Bill, which would prohibit the president from employing nuclear weapons first unless Congress has declared war and provided specific authorization for their use; the Betts/Waxman solution, which would add the secretary of defense and attorney general to the chain of command to certify that a presidential launch order is authentic and legal; and adoption of a no-first-use policy, which would draw a red line that, if crossed, makes the president accountable and even impeachable.
Regarding a second strike, the United States should eliminate launch on warning and move toward a true retaliatory posture, requiring protection of the president and his successors and providing a large increase in warning and decision time.
Nuclear Weapons and the Deep State:
Can Bureaucracy Constrain Nuclear Weapons?
I’m naturally inclined toward apocalyptic thinking, so I find it all too easy to imagine scenarios involving catastrophic nuclear conflict. Mistake, misunderstanding, unintended escalatory spirals, culminating in mass death and environmental disaster: it’s still a fearful and quite real possibility. In January 2018, escalating tensions between the US and North Korea led the Bulletin of the Atomic Scientists to move the hands of the symbolic nuclear “Doomsday Clock” forward by 30 seconds, to 11:58 p.m.: two minutes to midnight.
That same month, in Hawaii and Japan, false alarms about incoming ballistic missiles led to brief public panics, and the US Centers for Disease Control and Prevention sponsored a workshop on “public health responses to a nuclear detonation.” If you’re a normal human being, you should be feeling thoroughly rattled—and perhaps inclined to browse through listings of hardened underground bunkers for sale in your region.
But I live in the city of Alexandria, Virginia, right outside of Washington, DC. For those of you who don’t know the DC region’s geography, this means I live in that strange land—part geographical reality, part state of mind—known as “Inside the Beltway.” Outside the Beltway, jittery school children are ducking and covering. Inside the Beltway, bureaucratic familiarity, the exigencies of politics, and the incentive structures of the defense industry combine to create a looking-glass world in which the potential horrors of nuclear conflict are rationalized away.
Inside the Beltway, it’s routine to hear “experts,” who should surely know better, speak with cavalier dismissiveness about existential threats to human civilization. Inside the Beltway, at think tanks, in government buildings, and in the offices of defense contractors, talk of nuclear catastrophe is brushed aside as so much wacky paranoia—the sort of ridiculous fearmongering indulged in by people who are neither responsible nor knowledgeable.
“The world has had nuclear weapons for more than 70 years, and we haven’t had a nuclear apocalypse yet,” say the Inside the Beltway Experts. “Ipso facto, this shows that we have successfully learned how to manage nuclear threats.” In fact, this shows only that we haven’t blown ourselves up yet. In the grand sweep of human history, 70 years is the blink of an eye. And as President Donald Trump—the man with the biggest button—is in the process of demonstrating, nuclear peace can’t be taken for granted.
Law is a slender reed to lean on in the search for constraints on presidential nuclear powers.
Trump’s bellicose (and sometimes baffling) pronouncements about nuclear weapons and possible conflict with North Korea have raised anew a question that has rarely been posed since the end of the Cold War: Are there any legal constraints governing presidential decisions on the use of nuclear weapons? Should there be legal constraints? And, whether or not there are meaningful legal constraints, are there any practical constraints—bureaucratic, political, or cultural—on the presidential nuclear power?
In my view, there are no clear or firm US legal constraints against a presidential “first use” of nuclear weapons. True, the Constitution grants Congress, not the president, the power to declare war; true, the 1973 War Powers Resolution sought to reaffirm Congress’s war-making prerogatives. It’s not hard to make a strong argument, based on text and on history, that the president needs to receive congressional authorization before launching an offensive nuclear strike.
But inside the Beltway, there are thousands of clever lawyers, many sitting inside the White House, the Justice Department, the Pentagon, and the State Department, whose job it is to find legal arguments that justify executive power. Those arguments are not hard to find, for a clever lawyer. The president is the executive and the commander in chief! The president may need to make a decision in a time frame that precludes congressional consultation! Launching a few nuclear weapons is not the same thing as starting a “war”! The War Powers Resolution applies only to sending US military personnel into overseas combat, not to launching unmanned missiles overseas!
At the end of the day, the clever lawyers generally prevail. As a practical matter, then, there is no US legal bar to a presidential first use of nuclear weapons.
If you doubt this, consider the cautionary tale of executive power under President Barack Obama and his 2011 decision to intervene militarily in Libya. The War Powers Resolution seemed designed to prevent a president from doing precisely this sort of thing without notifying Congress or seeking congressional authorization.1 But the Obama administration took the position that military action in Libya didn’t count as “hostilities,” since the US was relying mainly on air strikes from unmanned drones and had no ground combat troops in Libya.
The administration therefore opted not to provide formal War Powers Resolution notification to Congress—much less seek congressional authorization. On both sides of the aisle, members of Congress complained: President Obama was ignoring what appeared to be the plain meaning of the War Powers Resolution. But nothing changed. The US military intervention in Libya continued. Obama wasn’t impeached.
International law is even more ambiguous on nuclear weapons, and even less likely to serve as a meaningful constraint than US domestic law. True, international legal rules prohibit aggressive uses of force and require that military force be necessary and proportionate and make appropriate distinctions between civilian and military targets, but in practice these terms become troublingly slippery. In 1996, for instance, the International Court of Justice issued an advisory opinion on nuclear weapons, coming to the unsatisfying conclusion that the use of nuclear weapons would “generally be contrary to the rules of international law. … However, … the Court cannot conclude definitively whether the use of nuclear weapons would be lawful or unlawful in an extreme circumstance …” In other words: don’t ask us!
Law is thus a slender reed to lean on in the search for constraints on presidential nuclear powers. This is, of course, a shame and a terrible failure; the purpose of law—of the rule of law—is, most fundamentally, to regulate violence and place constraints on power. What’s more, placing decisions about the use of nuclear weapons in the hands of a single individual is, as Elaine Scarry argues in her book Thermonuclear Monarchy, profoundly undemocratic: how can we claim to have a democracy when we give one individual the power, in effect, to obliterate the whole earth? Prior to the nuclear age, who could have even imagined such awesome destructive power in the hands of one man?
Granted, nuclear weapons are not the only weapons with profoundly antidemocratic effects. In their recent book, Forged Through Fire, political scientists John Ferejohn and Frances McCall Rosenbluth trace the historical connections between the evolution of democracy, the expansion of the suffrage, and the granting of political rights to large numbers of people, on the one hand, and the existence of manpower-intensive forms of warfare, on the other. When elites need to field mass armies in order to protect themselves from external threat, they are forced to grant rights and some degree of political power to the masses as a means of motivating them to fight.
By contrast, the ascendance of forms of warfare that are not manpower-intensive—unmanned drones and cyber weapons as much as nuclear weapons—tends to correlate with contractions of democracy. When political leaders believe they can deter or respond to external threats without the need to raise and sustain mass armies, they have little motivation to make decisions in a democratic manner.
There are, then, few meaningful legal constraints on presidential nuclear powers, much as we may wish it were otherwise. Are there, however, some practical constraints on a presidential first use of nuclear weapons, constraints that arise out of bureaucratic practice or political necessity?
Even a small-scale, “precise” use of tactical nuclear weapons runs a very high risk of deliberate or inadvertent escalation.
In the pragmatic realm, there are some constraints, though they are far from sufficient. Remember: the presidential nuclear power is not a magic wand; it works only insofar as we have created an elaborate institutional and physical infrastructure designed to make it work. That is to say: if the President wants to launch one or more nuclear strikes, he needs to have the right missiles in the right launch locations with the right targets programmed into them. Missiles are built and maintained and programmed by human beings.
The presidential nuclear power is, in this sense, more like the power to order from a menu than the power to instantly produce any cuisine. Historically, the US nuclear arsenal has been designed and maintained to focus on particular threats: Russia, North Korea, Iran, and so forth. Specific target sets associated with these potential adversaries are preprogrammed.
If a US president wants to launch a preemptive nuclear strike against North Korea, it is a safe bet to assume that the military knows exactly which missiles to fire at which targets, and it is unlikely that anyone in the (short) chain of command would question a presidential order to strike.
If a US president suddenly decided to launch nuclear weapons against Canada, it would be quite a different story: strike packages and targets would need to hastily be put together, creating the time and space for advisors close to the president to say, “Mr. President, this is not a good idea, let’s talk about this.” Would we suddenly find officers and advisors willing to say, “Wait a minute, Mr. President, I can’t seem to work the lock on the nuclear football, we’d better call the secretary of defense and get him over here to discuss this”? I think we would.
This is perhaps not terribly consoling. But we should not imagine that building in a more extensive and consultative decision-making process would guarantee wiser decisions. Legislatively or through embedded bureaucratic practice, we could create a system in which the president needs the concurrence of, say, the secretary of defense and the attorney general before launching a preemptive nuclear strike.
But homogenous groups, particularly in a hierarchical setting where people are habituated to abiding by the decision of the commander in chief, will not necessarily put meaningful brakes on a presidential decision. “Groupthink” led us to the 2003 Iraq War, a catastrophically foolish venture to which hundreds of intelligent “experts” gave their wholehearted support. Even those with serious reservations tend to go along to get along. We are social animals; that’s what we do. Especially inside the Beltway.
My final point brings me back to where I began: particularly when dealing with the Inside the Beltway crowd, those of us who care deeply about reining in presidential nuclear powers need to draw careful distinctions, and be mindful of the language we use. Those opposed to nuclear weapons have a natural tendency to speak in terms of extremes: we talk about nuclear winters and climate catastrophe, about cataclysmic global conflicts with high-yield nuclear devices capable of destroying the planet earth.
The language of catastrophe is easily brushed aside by Beltway insiders. In the halls of the Pentagon and the White House, such scenarios just generate dismissive chuckles: “That’s not what we’re talking about,” the “experts” will say. “Nobody would be crazy enough to start an unlimited global nuclear war. Remember, not all nuclear weapons are the same. When we talk about nuclear strikes, we’re talking about designing small, tactical, tailored nuclear weapons. We could control their use; we could ensure that only military targets would be affected; we would only use these low-yield, tactical nuclear weapons in very special circumstances, such as to destroy hardened underground bunkers that we couldn’t get at through conventional weapons.”
There is, in other words, nothing to worry about, say the Beltway insiders: we can manage and control this fearsome nuclear power. This is foolish. Even a small-scale, “precise” use of tactical nuclear weapons runs a very high risk of deliberate or inadvertent escalation, as well as a high risk of normalizing the use of nuclear weapons, thus opening the door to wider use.
Those concerned about nuclear weapons use need to confront this false logic head on: to spell out the ways in which “control” over nuclear conflict is inherently illusory.
Those inside the Beltway have lived with the threat of nuclear weapons for so long that it has stopped seeming like a real threat. The insiders are like those crocodile or grizzly bear tamers who become so habituated to the proximity of a dangerous predator that they convince themselves the danger isn’t real—the bear won’t attack them! Until the bear, being a bear, does attack them.
Inside the Beltway, we are so used to living in the shadow of nuclear apocalypse that it has stopped frightening us. But we should never forget that we are living with a dangerous predator—only in this case, the predator is us.
Congress and the Citizenry
Citizens have always been at the forefront of reducing the risks of nuclear weapons. In the 1980s, the US nuclear freeze movement and the Committee on Nuclear Disarmament in Europe arguably helped to end the Cold War and subsequently reduce US and Soviet arsenals by 80 percent. Before that, in the 1950s, a citizens’ movement aimed to stop atmospheric nuclear testing. Doctors had found strontium 90 from radioactive fallout in babies’ teeth and in mothers’ breast milk. Citizens, outraged that weapons testing programs could harm them directly, came out on the streets to protest, resulting in the 1963 Limited Test Ban Treaty.
Even before the first test of an atomic bomb, near the end of World War II, a movement of citizen scientists was born at the University of Chicago in 1945. The scientists who helped build the atomic bomb understood that these weapons could incinerate masses of people and cause untold damage. Led by James Franck, they wrote a report to the government arguing that these indiscriminate weapons should not be used on civilians, and that before dropping them, they should first be tested in a demonstration to show the Japanese leadership how terrible they were. These scientists also established the Bulletin of the Atomic Scientists, to publish information about nuclear weapons so that citizens could understand the dangerous consequences of this new form of energy.
Most recently we’ve seen another private group of citizens, nongovernmental organizations allied as the International Campaign to Abolish Nuclear Weapons, organize the world to devise a new treaty that would ban nuclear weapons under the auspices of the United Nations. For their efforts, the Campaign received the 2017 Nobel Peace Prize.
Citizens have had enormous success in reducing the risks from nuclear weapons, but until very recently, with the introduction of the Lieu-Markey bill to prohibit presidential first use of nuclear weapons, it has been difficult to see how Congress has actually attempted to check the executive power to build and potentially use nuclear weapons.
Without congressional deliberation and citizen participation in the gravest decisions of life and death, democracy is greatly diminished.
What has prevented Congress in the past from acting on clear citizen preferences for nuclear weapons reduction? Experts offer two reasons why congressional members have been kept from having a say in nuclear weapons policy.
The first is speed. Experts suggest that in order to retaliate against a surprise attack or even to deter a surprise attack, leaders need to act very quickly, and that the executive and the military are the only entities able to do that. Congress is a deliberative body set up to take many views into account, and, the argument goes, a legislature cannot possibly respond quickly to a dire emergency.
The second is secrecy. Since the development of the bomb, the expert community and the military have tried to prevent enemies from learning about our plans. The irony is that our enemies quickly managed to get that information. In reality, secrecy has never been maintained. The Russians tested their first nuclear weapon in 1949 and their first thermonuclear weapon in 1955. The knowledge was there, and there wasn’t much being kept from them.
On the other hand, secrecy has prevented citizens and their representatives from gaining the knowledge we need about nuclear weapons capabilities and costs; about war plans; and about mistakes and accidents. This secrecy further empowers the executive branch. Citizens and their representatives are kept in the dark, our enemies know a lot, and the executive enlarges its power.
The result of all of this is that the people have no voice in the most significant decision the United States president can make: whether to destroy another society with weapons of mass destruction and in turn risk us being destroyed ourselves. Elaine Scarry brilliantly and rightly calls this a “thermonuclear monarchy”; Garry Wills refers to it as “Bomb Power.”2 Robert Dahl, a political scientist from Yale, in his 1985 book Controlling Nuclear Weapons, argued that these policies treat citizens as children who, lacking expertise and knowledge, have no right to participate in how nuclear weapons are developed and deployed.3 He suggests that this turns the people into wards of the state who can exercise only the rights assigned to them by the “guardians of the arsenal.”4
Without congressional deliberation and citizen participation in the gravest decisions of life and death, democracy is greatly diminished. Indeed, can we even call ourselves a democracy at all when our rights to life and liberty are so abridged? If citizens and our elected representatives cannot make decisions about the most fundamental and consequential issues of war and peace, life and death, then we are disempowered and delegitimized.
What are the remedies? We can begin by reducing the speed at which these decisions are made. There is no longer any need, if there ever was, for the kind of speed that people argued was required during the Cold War, when we were worried about a surprise attack from the Soviet Union. We should take weapons off of high-alert status. Former nuclear missile launch officer Bruce Blair and former Secretary of Defense William Perry have also said that we need to reduce launch readiness. This would allow more people to participate in the decision about what to do in the face of an attack.
We should also reduce secrecy. If we’re going to make decisions about nuclear weapons, we need to have information about them. In April 2015, the US State Department finally declared the numbers of weapons in our arsenals. In May 2016, the Defense Department did the same thing. Thanks to experts in the scientific community, since 1987 the Bulletin of the Atomic Scientists has published estimates of nuclear weapons in a feature called the Nuclear Notebook. The Notebook’s current coauthors, Hans Kristensen and Robert S. Norris, of the Federation of American Scientists, and their predecessors should be given a Nobel Prize for making these estimates available; the estimates are the only reason that the public knows roughly how many weapons the US, Russia, China, North Korea, the United Kingdom, France, Israel, India, and Pakistan have.
We can also reduce secrecy by requiring that congressional members and outside experts participate in the nuclear posture review—a process to determine what role nuclear weapons should play in US security strategy—that the executive branch and the military conduct from time to time. If citizens are to participate in decision-making, then we have a right to know about these war plans.
It is high time that an observer group be established to oversee the U.S. nuclear posture review.
A move toward congressional participation is suggested in a September 2017 Washington Post article by former Senator Sam Nunn and former Secretary of Energy Ernest Moniz. They argue that the chairs and the ranking minority members of key committees in both houses should review and oversee relations between US and Russia. They are modeling this proposed new body on an earlier Senate Arms Control Observer Group, established in 1985 by Senators Robert Byrd and Bob Dole, a Democrat and a Republican.
That group met with the secretary of state and with arms control negotiators in Geneva when the US was dealing with the Soviet Union. The group also had opportunities to meet unofficially and informally with the Soviet delegation. The experience provided congressional members with much more information and a sense of what was at stake in those negotiations. It improved their ability to talk to their Senate colleagues about the treaties being discussed and about other foreign policy matters. It is high time that an observer group be established to oversee the US nuclear posture review.
Finally, we must return to Congress the authority to declare war. The proposed legislation to limit the president’s first use of nuclear weapons is a necessary first step. But to move to what I would call nuclear democracy will take more than simply limiting the president’s ability to launch nuclear weapons first.
I began by citing the long history of successful citizen opposition to nuclear testing, proliferation, and secrecy. I want to end with a quote from Garry Wills that alerts us to the long arc of bomb power and thermonuclear monarchy. He writes:
The whole history of America since World War II caused an inertial rolling of power toward the executive branch. The monopoly on use of nuclear weaponry, the cult of the Commander in Chief, the worldwide web of military bases to maintain nuclear alert and supremacy, the secret intelligence agencies, the whole National Security State, the classification and clearance systems, the expansion of state secrets, the withholding of evidence and information, the permanent emergency that has melded World War II with the Cold War, and the Cold War with the war on terror—all these make a vast and intricate structure that may not yield to efforts at dismantling it. Sixty-eight straight years of war emergency powers (1941–2009) have made the abnormal normal, and constitutional diminishment the settled order.5
Wills describes a complex national security system that denies democratic accountability and will require heroic efforts to dismantle. But citizens and their representatives are awakening to its dangers and consequences. It is time to take advantage of that awareness to move toward nuclear democracy.
International Law and First Use of Nuclear Weapons
International law is part of the law of the land in the United States under the Constitution and decisions of the Supreme Court. The Department of Defense acknowledges that military operations must comply with the international law of armed conflict. The question of how international law applies to first use of nuclear weapons is therefore highly pertinent.
The use of force of any kind is permitted under the United Nations Charter—a treaty to which the United States is a party—in only two circumstances: when directed or authorized by the UN Security Council or in the exercise of individual or collective self-defense in response to an armed attack. It is worth stressing that Security Council resolutions regarding the North Korean situation contain no hint of an authorization of use of force. On the contrary, they emphasize the primacy of diplomacy backed by sanctions.
Since the George W. Bush administration, the United States has also had a doctrine permitting preemptive attacks in self-defense against serious threats, particularly threats related to weapons of mass destruction. This is essentially a doctrine permitting preventive war, although its proponents tend to avoid that term. Under Article 51 of the UN Charter and international law, the extent to which preemptive attacks are permitted is controversial. At the most, globally the majority opinion is that they are legal when in response to the early stages of an armed attack by the enemy. Anything beyond that is in my view an illegal preventive war.
Security Council resolutions regarding the North Korean situation contain no hint of an authorization of use of force.
Is the first use of nuclear weapons legal under international law? I begin my analysis with broad requirements of necessity and proportionality, applying particularly to the initiation of war but also throughout its conduct. Those requirements are inherent in a rational and lawful approach to war, an approach that seeks to avoid conflict and, when it occurs, to limit its extent and to make possible the restoration of peace.
The requirement of necessity in a sense speaks for itself. Military action must involve the application of the least amount of force required for purposes of self-defense. If a less destructive option is available for responding to an attack, it must be chosen. This has obvious implications for the choice between nuclear weapons and conventional weapons.
Under the requirement of proportionality, the force employed in responding to an attack must not be excessive in relation to the scale of that attack. It must also be rationally related to the purposes of self-defense. When it comes to nuclear weapons, it is especially important that the risk of escalation is part of the proportionality calculus, as the International Court of Justice held in its 1996 Advisory Opinion. The implications are clear for first use of nuclear weapons against a nuclear-armed enemy.
Next, consider legal requirements applicable to particular military operations. A 2013 Report on Nuclear Employment Strategy submitted to Congress by the secretary of defense stated: “The new guidance makes clear that all plans must also be consistent with the fundamental principles of the Law of Armed Conflict. Accordingly, plans will, for example, apply the principles of distinction and proportionality and seek to minimize collateral damage to civilian populations and civilian objects. The United States will not intentionally target civilian populations or civilian objects.”
It is certainly to the good that the United States accepts that under the principle of distinction, civilians and civilian infrastructure may not be attacked. But what is missing is an acceptance of the prohibition of indiscriminate attacks. The essentials of that prohibition are well stated in a 2007 Joint Chiefs of Staff publication: “Attackers are required to only use those means and methods of attack that are discriminate in effect and can be controlled.” (my emphasis).
The omission of the prohibition of indiscriminate attacks in the above-cited 2013 guidance probably reflects the fact that it is extremely difficult, if not impossible, for nuclear weapons to be used in a way that is “discriminate in effect” and “controlled.” That consideration played a key role in the International Court of Justice’s 1996 Advisory Opinion, which stated that under the fundamental principle of distinction, states must “never use weapons that are incapable of distinguishing between civilian and military targets.” The Court found that “in view of the unique characteristics of nuclear weapons,” their use “seems scarcely reconcilable with respect” for that requirement.
In addition to distinction, the 2013 Defense Department guidance also accepts the requirement of proportionality. This should be understood as the requirement of proportionality in attack, as distinguished from the general requirement of proportionality in the exercise of self-defense I discussed earlier. The requirement of proportionality in attack essentially requires that the collateral injury and damage caused by an attack not be disproportionate to the expected military advantage.
Because it involves a balancing of costs and benefits, the requirement of proportionality in attack as such may not be understood to rule out all possible uses of nuclear weapons. Imagine a situation in which an enemy is believed to be on the verge of launching nuclear forces and it is believed that only a preemptive nuclear attack can prevent or limit such a launch.
It is extremely difficult, if not impossible, for nuclear weapons to be used in a way that is “discriminate in effect” and “controlled.”
This scenario first of all demonstrates why nuclear-armed states must avoid going to war. From a legal standpoint, it remains the case that even if a proportionality calculus is believed to justify use of nuclear weapons, it is unlawful under the prohibition of indiscriminate attacks.
Let me mention other rules significant in this context. They are included in the preamble to the Treaty on the Prohibition of Nuclear Weapons, adopted at a UN Conference in July 2017. The preamble states that the parties base themselves on “rules of international humanitarian law,” which is at the core of the law of armed conflict. In addition to the ones I have discussed, these include the rules on “precautions in attack, the prohibition on the use of weapons of a nature to cause superfluous injury or unnecessary suffering, and the rules for the protection of the natural environment.” The preamble also reaffirms that “any use of nuclear weapons would also be abhorrent to the principles of humanity and the dictates of public conscience.” Those are factors with legal value in international law. The International Campaign to Abolish Nuclear Weapons, which is very good at advocacy, has emphasized “principles of humanity” in explaining the prohibition of use.
The nuclear-weapons-prohibition treaty will enter into legal force when 50 states have ratified it, probably in the next year or two. It will gain increasing authority as a statement of international law binding all states, including nonparties, as its number of parties grows over the years.
In conclusion, the first use of nuclear weapons is at least generally contrary to international law. I say “at least generally” to acknowledge that skeptics love to trot out marginal scenarios where use arguably could be justified, as against a rogue nuclear-armed submarine. First use is also irrational—regardless of the particularities of a given situation—because it would open the door to further uses in other situations and promote proliferation.
The rules I have discussed here also apply to second use of nuclear weapons. It is sometimes asserted that second use would be justified under the doctrine of reprisals. But what that doctrine permits is more restrictive than is generally understood.
The most far-reaching conclusion, which I endorse, is that use of nuclear weapons should never be contemplated in a conflict situation. A more conservative conclusion, in line with existing US doctrine, is that there should be an extremely high threshold for even considering use of nuclear weapons, including with respect to the option of second use. Further, in determining such matters as targets and lethality requirements, minimization of civilian casualties should be an overriding factor, for example by selecting targets in nonurban areas in any second use scenario.
What are the implications for presidential first use? I support the approach of requiring congressional approval, both for engaging in war generally and for first use of nuclear weapons. I suggest that the requirement of complying with international law be written into the legislation.
In an ongoing conflict, where there may be pressures for quick decisions, as in a preemption situation, involvement of the entire Congress may be viewed as impractical. So additional approaches should be considered: for example, a body including the president, some officials, and some members of Congress that would make decisions when speed is deemed necessary. Provision should be explicitly made for the involvement of lawyers charged with upholding compliance with international law.
The Case for Fundamental Reform
We need to construct a credible legal institution within the executive branch to constrain the president’s unilateral war-making powers and insist that he gain the consent of Congress before making any use of nuclear weapons. This is required both by the Constitution and by the War Powers Act of 1973. Up through the 1970s, the Office of Legal Counsel (OLC), in the Justice Department, served this crucial function as legal guardian. Its elite staff of 30 civil service lawyers were charged with writing opinions on contested issues of law within the executive branch. A special statute specifically made these opinions binding on the military. This law remains on the books, but the OLC no longer credibly operates as the executive branch’s legal conscience.
Until the Nixon Administration, the OLC generally had only one political appointee, the assistant attorney general, who was in charge of the office. The hard work of opinion writing was executed by those 30 civil service lawyers, who had a deep understanding of the legal traditions established by generations of executive branch practice. Nowadays, career lawyers are very much in the minority, and high-powered political appointees often take the lead in opinion writing. While executive branch traditions continue to play a role, many OLC opinions now look more like advocate’s briefs for the sitting president than balanced assessments of applicable statutes and doctrines.
Worse yet, even these partisan opinions no longer play the authoritative role once accorded to the OLC. Instead, the Office of White House Counsel now calls the shots on issues high on the president’s agenda. This rival team of high-powered lawyers did not even exist until 1969, when John Dean was appointed counsel to the president. Before that moment, the White House counsel was a position reserved for one of the president’s trusted political advisors. The counsel’s legal tasks were so minimal that he did not need a legal staff to help him out.
Dean was only 31 years old when he took up the position of White House counsel. Since he was far too young to assume the counsel’s traditional function as senior advisor, he hired four staff lawyers to take the legal side of the job seriously. This experiment had an inauspicious beginning, since Dean and his staff played a critical role in the Watergate cover-up. But over the next decades, the White House counsel’s office escaped from its scandalous beginnings, and is now slightly larger than the OLC. Moreover, its 35 or 40 positions are swept clean with every administration, in favor of a whole new set of high-powered lawyers, whose principal qualification is their long-standing support of the sitting president and his policies.
The Office of Legal Counsel no longer credibly operates as the executive branch’s legal conscience.
Given the constant turnover, the White House counsel’s office has no institutional memory, and many of the appointees don’t have much personal experience with any number of crucial areas that raise fundamental legal issues. For example, Robert Bauer was the White House counsel at the time of the war against Libya. He had been a lawyer for the Democratic National Committee and a personal lawyer to President Obama. He knew very little about national security law. Yet he intervened decisively on the question of whether the president was required to gain Congressional approval for his bombing campaign against Libya in 2011.
Obama refused to do so, fearing that Congress would say no. But the War Powers Act of 1973 was designed with precisely such a case in mind. It provides that if the president fails to gain Congressional authorization within 60 days of initiating hostilities, he must cease all military operations within the next 30 days. As the 90th day approached, the Office of Legal Counsel began preparing an opinion that took the statute seriously and advised the president that he should stop bombing.
In response, Bauer told the OLC to stop work on its opinion, and began to search the executive branch for another legal office that would write a legal-looking opinion that came out with the opposite answer. His quest led him Harold Koh, the State Department’s legal adviser, who obliged with a highly creative “interpretation” of the statute that allowed the president to keep on bombing past the 60–30 day deadline.
The “Bauer-Koh” moment marked the total disintegration of the OLC’s function as legal guardian. From then on, the OLC was on notice that if it did not give the president what he wanted, his White House counsel would suppress publication of their opinions and find a different executive branch lawyer to back the president up.
The rule of law suffered yet another body blow, in 2014, when President Obama embarked on a sustained campaign against the Islamic State, on September 10. This time around, the administration issued no opinion at all within the 60–30 day period that even purported to justify its escalating war against ISIS. It merely asserted that the Congressional authorizations for the use of force against Al Qaeda in 2001 and Saddam Hussein in 2002 should be expansively interpreted to authorize Obama’s war against ISIS in 2014.
I represent Captain Nathan Smith, who has served as an intelligence officer in the command headquarters in the ISIS war, in a lawsuit. That suit charges that Obama’s bare assertions of authority, recently reasserted by the Trump Administration, cannot survive serious legal scrutiny, and that the ongoing military campaign against ISIS is illegal under the War Powers Act. Smith vs. Trump is presently under consideration by the Court of Appeals for the DC Circuit, and may well go to the Supreme Court for final resolution. A victory in this case would be a large step forward in vindicating Congress’s constitutional authority as the ultimate arbiter on the question of war and peace.
Nevertheless, even a favorable Supreme Court decision won’t be enough to stop Trump or future presidents from waging unilateral wars during the long years that future Captain Smiths will need to convince future justices to intervene decisively in the name of the rule of law. America needs a powerful legal guardian within the executive branch to take the plain language of the War Powers Act seriously, and tell the president, in published opinions, that he must stop his unilateral military campaigns at the 90-day limit, or else breach his constitutional obligation to “take care that the laws be faithfully executed.”6 Such a pronouncement could well trigger the inauguration of impeachment proceedings, and only a particularly foolhardy or self-righteous president would choose to treat the guardian’s words with impunity.
Nuclear Weapons Use in South Asia
My topic is nuclear weapons in South Asia. The United States was the first nation to build nuclear weapons, and the US first use of nuclear weapons was itself their first ever use. The United States was not under imminent threat of attack when they used nuclear weapons on Japan. The US explained the atomic bomb to the world as a weapon of awesome power that was harnessing the power of the sun and as the future of warfare. No wonder others wanted it. If the United States could use this weapon and claim that it turned the tide of war, then they wanted it too. This lesson took root in South Asia and today both India and Pakistan have nuclear weapons.
The image above was taken by an astronaut. The bright yellow line snaking up the middle is the border between India on the right and Pakistan on the left. The bright shiny spot way at bottom left is the city of Karachi, population roughly 20 million. Imagine the distance from that city of 20 million people to the border with India (it is at most a few hundred miles).7 It would take a missile three hundred seconds to fly from an Indian military base to a target in Pakistan and vice versa. By the time Pakistan or India knows that the missile is coming, the better part of a hundred seconds is already gone. That leaves you two hundred seconds to figure out what’s happening. Is it real? What do we do? Who decides? Two hundred seconds. You can almost hold your breath for that long. Almost.
The Indians and the Pakistanis have tried to put in place systems to manage decision-making about nuclear weapons, but those systems are completely removed from reality. On paper, they have very proper procedures about who will be the members of the committee that will decide whether to launch a nuclear attack. Those committees are chaired by prime ministers or their designated appointees; they include cabinet ministers and generals who are supposed to decide collectively. But could you gather them together or even on the phone in two hundred seconds in the middle of the night in a crisis situation?
In the Pakistani case, the fantasy of having a prime minister chair the committee that will decide about the use of nuclear weapons beggars belief. In any committee where the prime minister of Pakistan and the chief of the army sit at the same table, it will not be the prime minister who gets to decide. Pakistan has had three periods of military dictatorship, and those periods of military dictatorship saw the beginnings of nuclear program in the 1950s and 1960s, the achievement of a rudimentary nuclear weapons capability in the early 1980s, and the establishment of a large nuclear arsenal with an array of missiles in the early 2000s. The Pakistan army is used to being in charge of everything that matters when it comes to warfare, and prime ministers know to get out of the way.
Until the United States changes how it thinks about nuclear weapons, it’s very hard to imagine any other weapon state rethinking its position on nuclear weapons.
The Pakistani plan for the use of nuclear weapons is the first use of nuclear weapons as a deliberate strategy. Their nuclear strategy is that if they are in a war with India, they will turn a conventional war into a nuclear war as soon as they fear they are losing the conventional war. And Pakistani decision-makers expect to lose, unless there is international intervention, because the Indians have more soldiers and more tanks. The Indian response to this has been that if Pakistan uses nuclear weapons against their soldiers anywhere, including on the Indian side of the border, then they will launch massive retaliation. The Indian position is not that they will use nuclear weapons first, but that if those weapons are used against them, the Indian response will not be proportionate. If you attack our soldiers, then we destroy your cities.
I recently debated a retired Indian vice admiral who had been in charge of India’s nuclear weapons and asked him about the following scenario. Suppose that Pakistan uses a nuclear weapon against some Indian soldiers and tanks in the desert because Pakistan thinks they are going to lose the battle here. Is India going to massively retaliate against Pakistani cities? Is India going to kill millions upon millions of civilians because Pakistan kills some soldiers and destroys some tanks? (Nuclear weapons, by the way, are not very good at destroying tanks.) He said, yes, we will destroy Pakistani cities because that is the only way to deter.
Where did this insanity come from? It began when the United States was trying to recruit allies in the Cold War.8 Indian leaders said no. The US then asked Pakistan’s leaders to become allies, and they agreed, in exchange for guns and funds. The US sent both. In the 1950s, the US expected the next war to be against the Soviet Union and to go nuclear. The US military sent a Nuclear Warfare Team to Pakistani military training academies to teach them how to fight a nuclear war.9 American military planning in the 1950s for the fighting of the next war envisaged the early use of tactical nuclear weapons against Soviet forces, because of the belief that the Soviets would overwhelm the US in any conventional war.
Little has changed. Now, instead of relying on American nuclear weapons, the Pakistanis have built their own and plan to use them based on the lessons that the Americans taught them so long ago.10 The Pakistani military will control decision-making on the use of nuclear weapons in South Asia. Because India has overwhelming conventional force, its stated policy is against first use of nuclear weapons. The Indian military by and large doesn’t particularly like this idea. They want to be able to go first.11 But Indian politicians have held the line against first use, at least so far.
Until the United States changes how it thinks about nuclear weapons, it’s very hard to imagine any other nuclear-weapons state rethinking its position on their use.12 If you are an anti-nuclear activist talking to leaders in Pakistan or in India they will tell you, look, if the Americans think they need nuclear weapons, surely we do; if the Americans think that they need to use nuclear weapons first, then surely we should be able to do so too. The future of nuclear decision-making in all the other nuclear-weapons states hinges on how the United States begins to think about changing its policy.
There is now a new international treaty open for signature to prohibit nuclear weapons and the threat of their use. The world believes by and large that the use of nuclear weapons is not acceptable (122 countries out of the 192 members of the United Nations supported the new treaty). The debate about the use of nuclear weapons needs to begin with the understanding that the threat and use of nuclear weapons would be a crime against humanity and a crime in international law.13 Any policymaker willing to make the decision to use nuclear weapons or threaten their use should be considered an international war criminal.
Democracy, Hypocrisy, First Use
I’m an anthropologist. In my view, what holds the arms race in place and keeps it going is what Elaine Scarry has called a “mental architecture.” That mental architecture makes it seem natural and normal to many that tens of thousands of nuclear weapons exist on hair-trigger alert. How did that mental architecture arise?
For over 30 years now, I’ve been in dialogue with nuclear-weapon scientists at both the Lawrence Livermore National Lab and the Los Alamos National Lab. If you’re an anthropologist, you always try to be sympathetic to the people you study, to explain to others how their worldview makes sense. Many of these scientists have become friends whom I like and respect. But my writing about these scientists, and about American nuclear culture more generally, also asks how beliefs that seem to me mythical and profoundly mistaken became for weapons professionals and for the broader American public what the French social theorist Roland Barthes calls “falsely obvious.”14
Two of these myths are widely subscribed to by both liberals and conservatives. The two myths purport to explain why some countries can be trusted with nuclear weapons and some can never be, and lead many to believe that nuclear weapons protect a liberal democratic international order. They also lead many to take it for granted that the president of the United States can condemn North Korea for testing a missile the very same week that the US tests a ballistic missile, and no one says, “Wait a minute, isn’t that hypocritical? Isn’t there a double standard there?”
The first myth is that the US is a democracy in the fullest sense of the word, and that nuclear weapons protect this democracy. When I say to my students, “You know the US is not really a democracy, right?” they say “You’re crazy, Professor.” They won’t even argue about it, because to them it’s obvious the US is a democracy.
What is a democracy? The Oxford English Dictionary definition is it’s “government by the people; that form of government in which the sovereign power resides in the people as a whole and is exercised either directly by them as in small republics of antiquity or by officers elected by them.”
Britain, France, and the United States all made the decision to acquire nuclear weapons with absolutely no democratic debate.
The US Constitution states that “Congress shall have power to declare war, grant letters of marque and reprisal, and make rules concerning captures on land or water.” The OED definition and the US Constitution make clear that in a democracy, one autocratic figure should not have sole authority to declare war. But in reality, as President Nixon famously told a group of congressmen, “I can go in my office and pick up a telephone, and in 25 minutes, millions of people will be dead.”15 A president of the United States made that boast—there is nothing less democratic. As Elaine Scarry says, “A momentous shift in the nature of government, the home population’s power of and responsibility for self-defense, has been lifted away from them and condensed into the head of government.”16
The second myth is that the US is a modern country with the maturity and rationality to possess nuclear weapons, unlike developing countries, and unlike countries in the Global South. I call this way of looking at the world nuclear orientalism.17 It characterizes countries in Asia, Africa, Latin America as too infantile, too immature, and too irresponsible to be trusted with nuclear weapons.
Nuclear orientalists—that is to say, most of us—see developing countries as lacking the democratic self-control required of nuclear powers. They present developing countries as seeking nuclear weapons for vanity or to gain attention and not for legitimate reasons of self-defense. And they believe that fanatics are more likely to control nuclear weapons in developing countries, especially Muslim countries, than in developed ones.
The frame of nuclear orientalism takes it for granted that Muslim leaders could destroy the world in a fit of fanaticism. Here are some examples, deliberately chosen from both the left and the right. At the Livermore Lab, where I did my fieldwork, I was given a pamphlet that stated, “Smaller nations with deep-seated grievances against each other may lack the restraint that was exercised by the US and the USSR.” Here is Kenneth Adelman, who was an official in the Reagan Administration: “The real danger comes from some miserable Third World country which decides to use these weapons either out of desperation or incivility.”18
These comments take it as given that Third World countries are not like us. In that same spirit here is a very recent example from Forbes magazine: “Nuclear weapons are one of those sovereign rights that should not be granted to autocratic leaders. Because of this adherence to core values, global public opinion trusts Western democracies to have nuclear weapons and to use them in a defensive manner.” By contrast, the author of the Forbes article points out that “North Korea’s sovereignty inheres in just one man.” But remember Richard Nixon’s boast that he could exercise a similarly autocratic sovereignty.
Many of these discussions assume that public opinion has a greater force in the West than in developing countries. For example, Bill Potter, a liberal arms control analyst at the James Martin Center for Nonproliferation Studies, has written, “Adverse domestic opinion may also serve as a constraint on the acquisition of nuclear weapons by some nations. Japan, West Germany, Sweden, and Canada are examples of democracies where public opposition could have a decided effect on nuclear weapons decisions. … The fear of adverse public opinion, on the other hand, might be expected to be marginal for many developing nations without a strong democratic tradition.”19
What I find fascinating about an expert on nuclear weapons and nuclear history writing this is that Britain, France, and the United States all made the decision to acquire nuclear weapons with absolutely no democratic debate. There was no debate in the public sphere, nor in those countries’ legislatures. These decisions were not subject to democratic decision making, yet even highly informed people continue to take it, falsely, as obvious that they were and are.
And consider US media coverage of India’s and Pakistan’s nuclear tests in 1998. Michael Krepon, the liberal cofounder of the Stimson Center, said that India’s tests “weren’t done for security purposes,” despite the fact that India has a nuclear-armed China on its border. Instead, he said, India tested nuclear weapons “for reasons of domestic politics and national pride. … We have street demonstrations to protest nuclear weapons. They have them to celebrate them.”20 In other words, the US is serious, India is frivolous.
More recently, the New York Times opined, using language usually reserved for children: “Maybe North Korea is just jealous of all the attention that Iran has been getting as a result of Tehran’s recent nuclear bad behavior and craves a spotlight of its own.” Nor is the New York Times alone in this view: “Whenever the North Koreans act up, one has to assume in part at least that they are trying to get the world’s attention.” That’s from Robert Einhorn, who was special advisor on nonproliferation and arms control to the secretary of state from 2009 to 2013.21 Cartoons often make these assumptions even more visceral; many portray Kim Jong-un as a child who wants attention and can’t be trusted with nuclear weapons.
If we want to move toward a better, safer world, we have to start to realize that Americans have no monopoly on maturity and rationality.
Today, our mental architecture is being destabilized because the US has a president who disturbingly resembles the most cartoonish versions of Kim Jong-un; Trump also seems like a child who wants attention and can’t be trusted. The dichotomy between a responsible, mature, rational, democratic United States and autocratic, impulsive, childish, irresponsible North Korea, Pakistan, Iran, or India is breaking down. Since President Trump won the election, students in my classes have begun to say things that they would not have said before. They are starting to ask, “He couldn’t just use the weapons on his own, right? There must be some way of constraining him?” I have to tell them that, in theory at least, he can use the weapons on his own.
Students who used to reject out of hand my arguments about nuclear orientalism are now giving them a second look in the era of Trump, who made comments like this one in a speech to the United Nations: “The United States has great strength and patience but if it is forced to defend itself or its allies we will have no choice but to totally destroy North Korea. Rocket Man is on a suicide mission for himself.” This is an open boast from the president of the United States that he is considering committing genocide.
If we want to move toward a better, safer world, we have to start to realize that Americans have no monopoly on maturity and rationality. We should look in the mirror of Donald Trump and ask ourselves what it says about the United States that it was capable of electing such a human being as president. We should question our own smugness about how safe nuclear weapons are in our leader’s hands. Given that any country can end up with an irrational, autocratic leader at some point, the only world safe from nuclear war is a world where nuclear weapons have been abolished.
The Use and Misuse of the Language of Self-Defense
Is the first use of nuclear weapons just? Is it morally right? This question applies not only to presidential first use but to first use by any state or non-state actor. Here is an ancient motto that has recently taken on an ominous new meaning: Fiat iustitia, pereat mundus (“Let justice be done, though the world perish”). Sometimes this motto is phrased as Fiat iustitia, ruat caelum (“Let justice be done, though the heavens fall”). Both versions urge that you should do what is right no matter how horrendous the consequence might be.
In the 16th century the Holy Roman Emperor Ferdinand I chose that first motto and used it as his armies fought the invading forces of the Ottomans led by Suleiman the Magnificent. Ferocious as those battles were, however, Ferdinand could never have imagined that the world would in fact perish as a result of his fighting what he thought was a just war.
Since Hiroshima and Nagasaki, the metaphors of the world perishing or the heavens falling have taken on far more literal meanings. When we think about justice and war, three main views prevail. One is the so-called realist view that war is hell, that justice is not an issue in war and never has been. The second is the pacifist view that wars are never just. The third is Just War Theory, which argues that there can be morally acceptable wars if they are waged for justifiable purposes such as national self-defense, but only if going to war is the last resort, and if war never explicitly targets noncombatants or uses inhumane weapons. Nuclear war cannot meet any of the conditions for a just war, because it would obliterate the distinctions between self-defense and aggression, combatants and noncombatants, and more or less inhumane weapons.
Michael Walzer, in his book Just and Unjust Wars, put it this way: “Nuclear weapons explode the theory of just war.” Any use of nuclear weapons is unjust because it endangers vast numbers of civilians and employs the most inhumane of weapons. Any first use of such weapons is precisely not launched as a last resort. Can we say the same, however, about policies that merely warn of or threaten the resort to nuclear weapons?
Just as wagers of wars past once took for granted that God was on their side, so self-defense and national security are invoked today even for aggressive ventures far beyond national borders.
Proponents of first use argue that there should be no moral constraints on what a nation can do or threaten in self-defense and that threatening to use nuclear weapons is quite different from actually doing so; in their view, such threats are a form of deterrence. Ordinary moral constraints should allow for limited exceptions as a last resort when self-defense is at issue. Invoking self-defense as justification for going to war rests on a longstanding analogy between nations defending themselves and individuals doing so by means of violence as a last resort if need be.
But we need look no further back than to the wars in Vietnam and Iraq to see misuses of that language of self-defense. Those misuses led the United States and other nations to violate the most basic moral constraints regarding engaging in war as a last resort and in a way that spares civilians and prohibits inhumane weapons.
Just as wagers of wars past once took for granted that God was on their side, so self-defense and national security are invoked today even for aggressive ventures far beyond national borders. Such actions are hardly analogous to what an individual might rightfully do as a last resort when faced with direct assault. Indeed, the ferocity of today’s weapons and the genuine threat those weapons pose to national survival now lead governments often to argue that every action they take to reinforce their own power or to diminish that of their enemies contributes to self-defense.
During the 1980s, when the world lived with a balance of terror, the North Atlantic Treaty Organization (NATO) insisted on retaining a policy of first use. The member nations argued that nuclear deterrence by itself might not suffice if Soviet conventional forces moved into Europe. NATO’s only way to guard against such a move would be to rely on the threat of first use of nuclear weapons. At the same time, there was growing unrest in Europe, caused by the fear that the great powers intended Europe to be the theater where they would clash. Peace movements were mobilizing, calls were made for more complete test bans, for nuclear-free zones, for the elimination of the use of cruel weapons and cruel methods of warfare, and for the rejection of first-use policies.
In 1982 McGeorge Bundy, George Kennan, Robert McNamara, and Gerard Smith published an influential article that urged that the time had come for NATO to reconsider the policy of first use. “We think a policy of no-first-use, especially if shared with the Soviet Union, would bring new hope to everyone in every country whose life is shadowed by the hideous possibility of a third great twentieth-century conflict in Europe—conventional or nuclear.” Thirty-five years later, the fear of a third great conflict to which they referred as a hideous possibility has returned.
Kofi Annan, secretary general of the United Nations from 1997 to 2005, recently recalled his feeling of great relief at the collapse of the Berlin Wall in 1989, the sudden sense that, “with the end of the Cold War, the UN could do what it was set up to do, without one country vetoing the other”; world leaders would realize that “cross-border cooperation was the only way to solve crises.” Yet now, Annan said, “we seem to be back to where we were in ’89.” He added that men in high places “don’t always seem to understand the risks we are all in,” and warned: “All that we need is one miscalculation … and all bets are off.”
That same sense of urgency and high risk was expressed by the Norwegian Nobel Committee when awarding the 2017 Nobel Peace Prize to the International Campaign to Abolish Nuclear Weapons (ICAN). The Nobel Committee’s citation explained that “we live in a world where the risk of nuclear weapons being used is greater than it has been for a long time.” The number of states with nuclear weapons has increased and so has the intense distrust among nuclear adversaries. There is greater risk than ever that nuclear weapons might be launched accidentally, in error, or utterly irrationally. Just as the popular movement in Europe contributed to public debate and to bringing about change during the 1980s, so ICAN is today joining with environmental and other kinds of groups to achieve a treaty-based prohibition of nuclear weapons.
By drawing attention to the catastrophic consequences for the peoples of the world of any use of nuclear weapons, these groups aim to raise awareness of what genuine concern for collective self-defense calls for on the part of the peoples around the world. This is a use of the language of self-defense that we need to support: the collective self-defense of all the people who might be the victims of horrendous nuclear catastrophe. As President Reagan and General Secretary Gorbachev jointly declared in 1985: “A nuclear war cannot be won and must never be fought.”
This article was commissioned by Sharon Marcus.
- Specifically, the War Powers Resolution provides that “in the absence of a [congressional] declaration of war, in any case in which United States Armed Forces are introduced into hostilities or into situations where imminent involvement in hostilities is clearly indicated by the circumstances, [or] into the territory, airspace or waters of a foreign nation, while equipped for combat. … the President shall submit within 48 hours to the Speaker of the House of Representatives and to the President pro tempore of the Senate a report” setting forth the justification for the action. If Congress does not authorize the continuation of the military action within 90 days, the War Powers Resolution states that “the president shall terminate” the use of the armed forces. ↩
- Elaine Scarry, Thermonuclear Monarchy: Choosing Between Democracy and Doom (Norton, 2014); Garry Wills, Bomb Power: The Modern Presidency and the National Security State (Penguin, 2010). ↩
- Robert Dahl, Controlling Nuclear Weapons: Democracy Versus Guardianship (Syracuse University Press, 1985), pp. 33–51. ↩
- The phrase belongs to Janne Nolan, who recognizes Dahl’s insight and deftly builds upon it. See her Guardians of the Arsenal: The Politics of Nuclear Strategy (Basic, 1989). ↩
- Wills, Bomb Power, pp. 237–8. ↩
- For more on the design of a credible legal guardian, take a look at chapter six of my book The Decline and Fall of the American Republic (2010). ↩
- Pakistan’s capital city, Islamabad, and India’s capital city, New Delhi, are only a few hundred miles from military sites in the other country. ↩
- Robert J. McMahon, The Cold War on the Periphery: The United States, India, and Pakistan (Columbia University Press, 1994). ↩
- “Fevered with Dreams of the Future: The Coming of the Atomic Age to Pakistan,” in South Asia Cultures of the Bomb, edited by Itty Abraham (Indiana University Press, 2009). ↩
- General Khalid Kidwai, the former head of Pakistan’s nuclear forces, envisages the use of tactical nuclear weapons early in a conflict because of fear of overwhelming Indian conventional forces—just as the US, facing larger Soviet conventional forces, imagined responding starting in 1950s. See “A Conversation with Gen. Khalid Kidwai” (event transcript), Carnegie Endowment for International Peace, March 23, 2015. ↩
- Lt. Gen. B. S. Nagal (retd.), “Nuclear No First Use Policy: A Time for Appraisal,” Force (December 2014), and “Checks and Balances,” Force (June 2014). ↩
- George Perkovich and James Actin, eds., Abolishing Nuclear Weapons: A Debate (Carnegie Endowment for International Peace, 2009). ↩
- On November 24, 1961, the United Nations General Assembly declared that “any state using nuclear and thermo-nuclear weapons is to be considered as violating the Charter of the United Nations, as acting contrary to the laws of humanity and as committing a crime against mankind and civilization.” ↩
- Roland Barthes, Mythologies, translated from the French by Annette Lavers (1957; Hill and Wang, 1972), p. 11. ↩
- Quoted in Garrett M. Graff, “The Madman and the Bomb,” Politico, August 11, 2017. ↩
- Elaine Scarry, “The Floor of the World,” Bulletin of the Atomic Scientists, vol. 70, no. 2 (2014), p. 22. ↩
- Hugh Gusterson, “Nuclear Weapons and the Other in the Western Imagination,” Cultural Anthropology, vol. 14, no. 1 (1999), pp. 113ff. ↩
- Kenneth Adelman, address to San Francisco Commonwealth Club, KQED Radio, June 9, 1988. ↩
- William Potter, Nuclear Power and Non-Proliferation: An Inter-Disciplinary Perspective (Oelgeschlager, Gunn and Hain, 1982), p. 143. ↩
- Michael Krepon, interview by Jim Lehrer, The NewsHour with Jim Lehrer, PBS, May 29, 1998. ↩
- Quoted in Helene Cooper and Michael R. Gordon, “North Koreans Said to Be Near a Missile Test,” New York Times, June 19, 2006. ↩