The Corner

National Security & Defense

We Have Enough Checks on the President’s Power to Order a Nuclear Strike

Earlier this week, the Senate Foreign Relations Committee held a highly unusual hearing. For the first time in decades it considered whether it’s necessary to alter or restrict the president’s power to order a nuclear strike. Democratic senator Christopher Murphy claimed the hearing was necessary because President Trump is “unstable” and “volatile.” Republicans were more measured, but concerns about potential confrontation with North Korea are more than enough reason to at least carefully think through current processes.

As it is, the president possesses the exclusive legal authority to order a nuclear attack. No general can decide to use our most deadly weapons, even if the forces under his command face complete destruction and only a nuclear strike can save his troops. A general facing a crumbling front and an imminent military disaster has only conventional weapons at his command.

At the same time, the president doesn’t have to consult with Congress before using our nation’s ultimate weapons. It’s one reason why the American commander-in-chief is rightly described as the most powerful man in the world.

But it’s not unchecked power. Every American president is subjected to important constitutional and military restraints. The most important constitutional safeguard against the kind of man who’d launch a truly rogue strike — initiate genocidal war on impulse — is the 25th Amendment. A man so unhinged is incapable of serving as president, and the Constitution provides for his emergency removal if the vice president and a “majority of the principal officers of the executive departments” determine that the president is “unable to discharge the powers and duties of his office.”

Moreover, a proper reading of the Constitution also limits the president’s authority to initiate any kind of war, including nuclear war. The Constitution reserves the power to declare war to Congress. The commander-in-chief, by contrast, is responsible for waging war.

When our constitutional system is functioning, the only time the president should be able to act without Congress is when he’s responding immediately to an actual or imminent attack on the United States, on Americans abroad, or to an attack on American allies when we’re under a Senate-ratified defense obligation. Even then, he should turn to Congress as soon as possible to ratify his defensive response and authorize offensive military action.

As we know, however, a number of American presidents have disagreed with this constitutional formulation and have taken it upon themselves to wage war without congressional approval. And they’ve done so without facing any constitutional consequence. In other words, one of our constitutional safeguards has already failed — at least in the face of lower-stakes conflicts.

Thus, we have to consider a nightmare scenario. What if a president snaps — acting before his cabinet can remove him — and orders an indefensible, rogue nuclear strike? The answer is simple. The military wouldn’t comply. It’s officers are bound by law to refuse lawless commands, and the modern American military has profound cultural and moral restraints against the kind of world-changing mass murder that would result from a rogue strike. It won’t happen.

In fact, it’s doubtful that it would happen even in the face of more defensible temptations to launch a first strike. Our nation has suffered conventional military disasters (for example, deep in North Korea during the first year of the Korean War) without resorting to nuclear weapons, and it’s hard to imagine a single general recommending a nuclear strike in the absence of actual or imminent opposition use of weapons of mass destruction. Our military is built to fight and win wars through the use of conventional weapons . . . and conventional weapons alone.

Of course one can always imagine a different, dystopian future where our current safeguards would be inadequate. But as much as I’ve critiqued Trump on other grounds, I have no fear that he’ll attempt a rogue strike. In fact, his actual military policies since assuming office have been quite moderate, and his military operations have not just been successful, they’ve been conducted squarely in compliance with the laws of armed conflict.

Moreover, there are good reasons for putting the nuclear authority in the hands of the commander-in-chief. In many likely nuclear launch scenarios, decisions will have to be made with extreme speed. In case of a defensive strike, the decision may have to be made in the few minutes while opposing nuclear weapons are in the air — or in the moments before an imminent opposing nuclear launch. In such situations, decision-by-committee could lead to catastrophic delays and cost millions of lives.

Finally, let’s not forget that the system has worked, and in worked through decades of hair-trigger nuclear alerts and times of far worse international tension. This American system is not broken. There’s no harm in evaluating the current system, and the committee was right to hold a hearing. But after further consideration, nothing should change.


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