“The president has almost 100 percent control over the launch of nuclear weapons in any circumstance and under any condition he so chooses,” [Macolm] Nance [a counterterrorism and intelligence consultant] told me in Philadelphia last week. “He needs to consult no one and can, if mad with power, personal vendetta or feeling national rage, launch an attack that the Constitution and his staffers cannot control.”Part of Trump's appeal, according to those who still support him, is that he "tells it like it is." He's not a politician. He isn't shackled by the bonds of "political correctness." And it's true: Trump's transparency is indeed a good thing because with him we know what we're getting: a petulant, vindictive, adolescent tyrant. We don't have to wonder if he will increase the threat of nuclear armageddon: he has promised us that he will.
If Trump wins, there are only two possibilities: he will either have to walk back just about everything he ever said during the election, or he will destroy the U.S. and quite possibly start World War 3. If the latter happens, it will not be Trump's fault. He was straight with us. If Trump wins and continues to behave in the way that he consistently has during this entire campaign, that will not be on him, it will be on everyone who voted for him, and everyone who supported him. It will be on everyone who endorsed him. It will be on you, John McCain and Paul Ryan and Chris Christie. And if you vote for Trump this November, it will be on you.
Your grandchildren will not forgive you.
> "The president has almost 100 percent control over the launch of nuclear weapons in any circumstance and under any condition he so chooses"
ReplyDeleteThis can't be right as it stands, because of the two-man rule; for the President's order to launch nuclear weapons to be lawful, it needs to be confirmed by a second person, chosen from a fairly short list of people (the first on the list, I believe, is the Secretary of Defense). Not only that, but the people lower in the chain of command (the next level would be the Joint Chiefs of Staff) would have to be convinced that the order was lawful before they would execute it. Granted, this protection is not perfect; but it's there.
Do you have a source for this? Because according to Wikipedia, the two-man rule only applies low down in the chain of command.
ReplyDeletehttps://en.wikipedia.org/wiki/Two-man_rule
There's also this rather chilling quote:
"Major Harold Hering was discharged from the Air Force for asking the question, "How can I know that an order I receive to launch my missiles came from a sane President?"
https://en.wikipedia.org/wiki/Harold_Hering
Worth reading.
> Do you have a source for this?
ReplyDeleteSee, for example:
https://www.buzzfeed.com/mikehayes/dont-worry-president-trump-wont-actually-have-his-finger-on?utm_term=.tmRde6bW2#.dl93gOX9B
https://www.quora.com/If-the-US-President-at-the-spur-of-the-moment-decided-to-launch-a-nuclear-missile-as-a-first-strike-attack-could-anyone-stop-him#!n=12
https://www.quora.com/Does-the-President-of-the-United-States-have-the-authority-to-launch-a-nuclear-attack-without-proper-justification
But I already knew this anyway, from my own service in the military.
> according to Wikipedia, the two-man rule only applies low down in the chain of command.
You should know that Wikipedia is not always to be trusted. :-) Besides which, Wikipedia itself says differently on this page:
https://en.wikipedia.org/wiki/Nuclear_football
See in particular the "Operation" section.
To be clear, I am not saying I'm in favor of Trump being President. I'm simply saying that we should base our discussion on the actual state of affairs, not journalistic hype. I'm particularly disappointed (though unfortunately not surprised) that the Washington Post would print this without fact checking.
> "Major Harold Hering was discharged from the Air Force for asking the question, "How can I know that an order I receive to launch my missiles came from a sane President?"
ReplyDeleteThis is worth a separate comment. It is quite true that someone well down in the chain of command, someone who would actually be launching a nuclear weapon, won't have any direct knowledge of the rationale (or lack thereof) for the President (and SecDef) issuing the order. All they will know is whether or not the order is genuine, that is, whether it came to them through the means and with the cryptographic verifications that a valid order should have. That's unavoidable in a distributed system, which our nuclear weapons system has to be in order to provide any deterrent at all.
The only "sanity check" of the ultimate rationale for the order is at the level of the President/SecDef, and at the next level down, the people who are receiving the direct launch order from the President/SecDef and have to decide whether it is lawful. Those people are *supposed* to ask Major Hering's question: is the rationale sane? Major Hering got fired not because the question itself is verboten, but because it's not a question someone at his level could usefully ask. If anyone at any level in the chain of command can simply decide not to obey a launch order, even though it has all the right verifications, because they don't know if the rationale is sane, then we have no deterrent at all. I don't think that's a tenable position as long as anyone in the world has nuclear weapons.
> You should know that Wikipedia is not always to be trusted. :-)
ReplyDeleteYes, of course. (Neither is Quora, BTW.) It was just a data point.
I've read all your links, and I'm afraid that doesn't give me much comfort. For starters, the SoD will almost certainly be a Trump lackey. And second, I'm sure even Trump is not stupid enough to just wake up one morning and say, "Hey, let's nuke Tehran today!" He'll cook up some Gulf-of-Tonkin-style excuse that will make the order seem plausible. Or maybe he won't even do that. Maybe he'll just sit idly by while Putin invades Estonia or something like that. Who the hell knows? The only thing we can know for sure is that we cannot count on cooler heads to prevail. There are no cooler heads on Trump's team. They've all been fired.
> The only thing we can know for sure is that we cannot count on cooler heads to prevail. There are no cooler heads on Trump's team. They've all been fired.
ReplyDeleteI don't disagree; I would simply point out that this is a different (and much better) argument for not letting Trump become President than the one advanced by the Washington Post article you originally linked to in this post. It's a better argument because it takes into account the actual system as it exists, and points out a key characteristic required for that system to work, one which we can't count on in a Trump presidency.
> Major Hering got fired not because the question itself is verboten, but because it's not a question someone at his level could usefully ask.
ReplyDeleteIf asking a useless question were grounds to discharge someone from the military we'd have no soldiers left.
*OF COURSE* he got fired because it is forbidden to ask the question. And the reason it is forbidden to ask the question is that it doesn't have a good answer. The military understandably does not want this to become widely known. But with the prospect of a genuinely deranged individual being elected president, it starts to matter.
"the answer is that launch would indeed be possible: to this day, the nuclear fail-safe protocols for executing commands are entirely concerned with the president's identity, not his sanity."
> to this day, the nuclear fail-safe protocols for executing commands are entirely concerned with the president's identity, not his sanity.
ReplyDeleteMy point is that, for levels lower down than the ones in direct contact with National Command Authority, it *has* to be this way for us to have a nuclear deterrent at all. There is no way to cryptographically verify sanity over an ELF connection to a nuclear submarine at an unknown location. The only place there *can* be a sanity check at all is at the NCA level and the level in direct contact with NCA. And even if the sanity checks there are as comprehensive as you could wish, there's no way to transmit them to the rest of the chain of command; all you can transmit is authenticity. So nobody in Major Hering's position is *ever* going to know for sure that the orders were issued by a sane President; that's just not possible in a distributed system.
> with the prospect of a genuinely deranged individual being elected president, it starts to matter.
ReplyDeleteOnly in the sense that it provides, as I've already agreed, a good argument for *not* electing the deranged individual. But if your backup plan is to somehow change the nuclear launch procedures to somehow transmit verification of the President's sanity to every level of the chain of command, I don't think that's a feasible plan.
No, I'm not advocating changing the process. But I do think that people need to face the fact that we really do rely on the basic sanity of the POTUS and his (or her!) staff to keep us from nuclear armageddon. I understand there is frustration with the status quo, but if we give in to the temptation to respond to that frustration by electing the likes of Trump, then Very Bad Things really can happen.
ReplyDelete> I do think that people need to face the fact that we really do rely on the basic sanity of the POTUS and his (or her!) staff to keep us from nuclear armageddon.
ReplyDeleteYes, definitely.
I'm not so convinced about the so-called "two-man" rule in any case. Nowhere does it say that the Secretary of Defense (or any alternate second man) has any authority to independently judge the wisdom of launching the nuclear weapons. There is no question about whether they also wish to so launch. The only question seems to be whether the actual legitimate President is actually giving the order, as it seems. It's a verification step, not a sanity check. I see no sanity check at all.
ReplyDeleteNotice that, even in your first comment Peter, you say that the Joint Chiefs "would have to be convinced that the order is lawful". That's the key, isn't it? Not that the order is wise, or wouldn't lead to armageddon. That isn't the criteria. The criteria is whether it is lawful.
And I think that the law basically seems to suggest that it would be lawful. If North Korea started shelling the South (as they did on some islands a year or two ago), and President Trump order a retaliatory nuclear strike ... on what basis would that order from the Commander in Chief not be lawful? Just because he's hot-headed and short-tempered, just because he's "a petulant, vindictive, adolescent tyrant", doesn't make a nuclear launch order not be lawful.
> Nowhere does it say that the Secretary of Defense (or any alternate second man) has any authority to independently judge the wisdom of launching the nuclear weapons.
ReplyDeleteMy understanding, from what I saw/heard while I was in the military, is that the second man (SecDef or alternate) is in fact supposed to independently judge whether launching the weapons is justified. However, I don't know if any publicly available sources would either confirm or refute that. We would probably have to look at the actual DoD directives, which AFAIK are not publicly available.
> Not that the order is wise, or wouldn't lead to armageddon. That isn't the criteria. The criteria is whether it is lawful.
As I understand it, part of "lawful", at least at that level, is supposed to be whether it's justified or not--or at least whether there are some kind of circumstances involved that make the use of nuclear weapons seem like an option that must be considered. The Constitution and the law say the President is the Commander-in-Chief, but that in itself doesn't mean he gets to do whatever he wants. The Constitution also gives Congress the sole right to declare war, so at the very least it seems like the President would need some kind of authorization from Congress, or at least some kind of acknowledgment that a state of war exists. If no such thing had happened, and the President, with the SecDef, suddenly called up the Joint Chiefs and told them to launch, they would, IMO, be perfectly right to question the lawfulness of such an order.
However, I agree with you that "lawful" is not the same as "wise"; there's plenty of room for a launch order to be lawful but still be a very bad idea, and the capability of the process to catch and prevent that is limited.
> If North Korea started shelling the South (as they did on some islands a year or two ago), and President Trump order a retaliatory nuclear strike ... on what basis would that order from the Commander in Chief not be lawful?
If Congress declares war on North Korea, then I agree it would be a lawful order. But if the President just decides to do it with no declaration at all from Congress, and no other information available, that to me would be questionable.
Of course Congress has been pretty lame about asserting its role in the process in recent conflicts, but that just means Congress is lame. It doesn't mean they're not supposed to have a role.
Peter, thanks for your additional thoughts. I actually agree with you, that even if "the law" only asks the Sec of Def to judge whether the order is "lawful", as a practical matter the actual man in that position will surely spend a little thought on the future fate of humanity.
ReplyDeleteA perhaps related example, even for a "low-level" operative, is that of the Soviet Stanislav Petrov. Starting a nuclear war is a big step, and people in that chain of command generally have a pretty good idea that they ought to be really, really sure before they take that step. Petrov could have just "followed orders", and he was later criticized for his independent judgment. And a US Sec of Def would be as well. But surely they at least consider the thought (and maybe try to talk the President out of it), before simply following orders.
As to the requirement for Congress to declare war ... this gives me less comfort than you (or the law) suggest. In the last few decades, the US has engaged in numerous major military actions, without ever declaring war. The US (Congress) did declare war against Germany and Japan in WWII. Since then, I wonder whether you can guess whether the President committed troops to deadly military action, with or without a declaration of war, in: Korea, Vietnam, the Balkans, Gulf War 1 & 2, Somalia, Afghanistan, Pakistan, Libya, etc.
It appears to me that "declaring war" is no longer much of a barrier to military action. Perhaps a nuclear strike would be a step too far ... but the precedents aren't encouraging. How about just one tactical nuke, to take out a dam, maybe somewhere far from major population centers? Does that really require a declaration of war? Are you sure that existing military officials would decide the same as you on this matter? I don't have much confidence...
> It appears to me that "declaring war" is no longer much of a barrier to military action.
ReplyDeleteThis is a contentious area; some of the issues are discussed briefly in the Wikipedia article on the War Powers Act:
https://en.wikipedia.org/wiki/War_Powers_Resolution
As I said before, I think Congress has been far too lame about asserting its role in the process during the last few Presidential administrations.
> How about just one tactical nuke, to take out a dam, maybe somewhere far from major population centers? Does that really require a declaration of war?
Unless the situation is such that the use of a nuke can be viewed as purely defensive--the US is being attacked directly and there isn't time to get Congressional approval before responding--then yes, I think it does require *some* authorization by Congress.
> Are you sure that existing military officials would decide the same as you on this matter?
I'm not sure I know enough about the current crop of military officials to say. The ones that were in charge back when I was in the military (which was more than two decades ago now) would have been, if anything, *more* likely to question a launch order that came out of the blue and wasn't obviously a defensive strike that needed to be launched right away. But I think the incentives facing military leaders in the US have changed since then, and not always for the better.
> "Unless the situation is such that the use of a nuke can be viewed as purely defensive--the US is being attacked directly"
ReplyDeleteI would love it if your bright line were the effective barrier ... but don't we have lots of evidence already that your words are not even close to describing the situation (that needs a Declaration of War)? Libya? Kosovo?
On at least 125 occasions, the President has acted without prior express military authorization from Congress.
Perhaps you think the War Powers Resolution changed things, but even in 2011 Obama attacked Libya "without Congressional permission". He later claimed that he "had constitutional authority to authorize the strikes, which would be limited in scope and duration, and necessary to prevent a humanitarian disaster in Libya." I don't recall you carving out any such exception to the need to Declare War, and it clearly wasn't a case of it being your lone exception: "purely defensive--the US is being attacked directly".
I think (unfortunately) you really underestimate the ability of people to rationalize the actions they want to take anyway. If a President Trump wanted to launch a nuke, my opinion is that there is enough wiggle room in these hundreds of historical examples, that a plausible justification would be created to cause it to happen without requiring a Congressional Declaration of War. I just don't share your confidence that the legal structure is an effective barrier.
It occurs to me that maybe you think that all military action short of nukes can be under the control of the President, but using nukes crosses some kind of line that requires a prior Declaration of War. That would be nice too, and I agree with the moral stance that using nukes is an entirely different category of military activity than conventional warfare.
ReplyDeleteBut I don't see any legal justification for putting a line there. All the words are things like "use of force" and "military engagement". I don't see a separate legal category of Presidential powers that explicitly restricts the use of nukes.
So it seems that there are really two steps: (1) can the President commit the US military to an active battlefield, without prior approval by Congress [history suggests, definitely yes]. And (2), once the US is involved in military engagement, does something stop the US President from choosing to escalate the conflict with nukes?
I'm not aware of any requirement for prior Congressional approval to order a nuclear strike. And the justification for escalation, once you're already engaged in a military conflict, seems laughingly easy to construct.
Apparently, we're not the only ones considering this scenario. "Donald Trump Asked an Adviser Three Times Why the U.S. Can’t Use Its Nukes."
ReplyDelete> It occurs to me that maybe you think that all military action short of nukes can be under the control of the President, but using nukes crosses some kind of line that requires a prior Declaration of War.
ReplyDeleteI don't actually think that (I think the requirements for military action should be far more stringent, as I've already described), but I think this might be a fair description of the current thinking that is actually driving US government policy. You are correct that that current thinking is *not* what I have been describing in my previous posts; to me, that simply shows that the US government's policy is based on what you call rationalization instead of on any reasonable reading of the actual Constitution and law involved.
> I don't see any legal justification for putting a line there.
There isn't--but then again, I don't think there's a valid legal justification for many of the non-nuclear uses of US military force that have happened in the past. Those uses have happened because my opinion of what is legally justified carries no weight; what carries weight is the legal opinions of lawyers in the Justice Department who write briefs like the one from which you quoted (about the 125 uses of force without prior Congressional authorization), and ultimately the opinions of the courts, if anyone were ever to bring a challenge (which I think is highly unlikely). There's no realistic possibility of changing these policies by voting either, because Presidents of both parties have basically executed the same policy for quite some time now.
The reason I think there has been a line drawn about the use of nuclear weapons in US policy, even though its legal basis is, to say the least, questionable, is that nuclear weapons are internationally categorized as "weapons of mass destruction" (along with chemical and biological weapons), and there are international treaties governing the use of WMD. That provides the bright line. (This categorization is also reflected, AFAIK, in US law.)
Ah! WMDs and international treaties. I hadn't thought of that aspect. Yes, that does indeed suggest some legal barrier even within the US. Good thinking.
ReplyDelete(I also agree with you about what "should" be the requirement for military action, but I was only discussing what appear to be the historical operating frameworks, not necessarily even what the law seems to say, and certainly not what the law "should" say. But then, I'm a non-interventionist libertarian, so of course I'd be in favor of things that make military adventures more difficult.)
War By Any Other Name
ReplyDelete@ Don
>It appears to me that "declaring war" is no longer much of a barrier to military action.
Congress doesn't need to publish a document starting with "Declaration of War" to authorize a war. They pass bills that, in effect, are equivalent.
First of all, whether "declaring war" is necessary to "authorize a war", is clearly a matter of opinion. Even your linked article agrees on that. It argues a particular conclusion, but that isn't a settled matter, agreed to by broad consensus. I happen to disagree with your (and that author's) interpretation -- as do many other people.
ReplyDeleteSecondly, even if you were right, that there are other ways for Congress to "authorize war" without necessarily "declaring" it, you don't seem to have put much thought into all the historical examples of US Presidents ordering the US military into armed and deadly conflict, without prior authorization from Congress. The Constitution clearly says that the Congress is reserved the right to "declare war". I wonder what your theory is, on the restriction that clause adds to the separation of powers. What, exactly, do you believe that the President cannot do, because the Constitution contains that specific declaration of war clause?
I suspect you will struggle to find a clear, coherent interpretation of the phrase, that isn't obviously contradicted by actual US history. (And if your point is that the sentence is meaningless has has zero effect, that's an absurd position as well.)
I think the War Powers act strikes a fairly good balance. A democracy's involvement in war must require a vote of Congress or Parliament.
ReplyDeleteAlthough the War Powers act has been ineffective! It perhaps could be improved. For the War Powers act to be effective, Senators and Representatives must have greater loyalty to the Legislative Branch than to their party; this has been sorely lacking for decades. Hence Clinton, Obama, and Clinton violated the War Powers act without sanction. In the end, it is a political fight, which can only be judged by voters after-the-fact.