The recent discussion of whether North Korean leader Kim Jong Un or President Donald Trump has the bigger “nuclear button” raises the question again of procedures, policies and circumstances surrounding the use of nuclear weapons. U.S. military officers who would be in a position to receive an order for a nuclear strike might particularly lose sleep over their role in such a scenario. A hypothetical example illustrates the gaps in U.S. law that complicate such decisions.
In this hypothetical, responsible U.S. military officers receive an order from the president to launch a nuclear attack on a foreign state that: 1) has been publicly hostile to the U.S. for over half a century; 2) is led by a dictator who has repeatedly made bellicose statements threatening to destroy the U.S.; 3) has an aggressive nuclear weapons program; 4) is believed to have at least a few operational nuclear weapons; 5) is conducting test launches of a missile that appears to be capable of reaching the United States; and 6) has not attacked the U.S.
Furthermore, in this example, the U.S. has no information that adversary is preparing to launch an armed attack, nuclear or conventional, on the U.S. or its allies. The Congress has not specifically authorized the President to use force against the foreign state.
Must the officers carry out that order?
It is common knowledge that military personnel are required to obey the lawful orders of their superiors, and those who know the order to be unlawful must refuse to obey it. But whether an order is lawful is a legal matter, and the belief of the military personnel regarding its legality or illegality is irrelevant except in very limited circumstances, such as whether the person giving the order occupies a certain position.
If an officer refuses to obey in the belief that the order is unlawful but is determined to be wrong in assessing the legality of the command, that officer can be court-martialed for failing to obey a lawful order, which can be a capital offense in wartime. Thus, a doubting officer has a very difficult choice and may have little time to consider the matter.
Effective military operations often require orders to be obeyed immediately, eliminating time for sophisticated legal analysis, so the 2016 edition of the Manual for Court-Martial provides military personnel a zone of safe harbor. Military personnel receiving orders that require the performance of a military duty or act may infer the order to be lawful–unless it is “patently illegal.”
A Shallow Safe Harbor
Without question, an order to fire a nuclear weapon at another country requires the performance of a military duty or act. Therefore, unless the president’s order is patently illegal, the receiving military officers may infer it to be lawful, again provided they do not know it to be unlawful. Of course, officers who know an order to be unlawful are not entitled to infer it to be lawful. Thus, the safe harbor is not particularly deep.
Therefore, would the president’s order to launch a nuclear strike on the foreign country be a blatantly illegal order?
The question of the order’s lawfulness requires an examination of at least three issues: Does the president have the authority to issue the order? If he does, would the order violate a statute or international obligation of the U.S.? And if not, would a nuclear strike on the foreign country in the hypothetical circumstance comply with the Law of War’s four basic principles regarding the use of force: military necessity, distinction, proportionality and humanity?
This article addresses the first issue — whether the president has the authority to issue the order.
One would think that, as the commander in chief of the armed forces, the president obviously has authority to give orders to the military. But it may not be so straightforward. While the Constitution names the president as the commander in chief, it gives Congress the exclusive power to declare war. Therefore, does the Constitution circumscribe the president’s authority as commander in chief to issue orders to the military by making him powerless to declare war?
The delegates to the Constitutional Convention were deliberate in choosing not to give the president the power to declare war. The delegates wanted it to make it difficult for the U.S. to get into a war and thought it unsafe to entrust the president with both the power to declare war and the power to make war. The delegates believed the president should be able to “repel and not to commence war.” They voted for the power to declare war to reside exclusively in the legislative branch. As one delegate phrased it, they favored “clogging rather than facilitating war.”
The Authority of a Local Grocer?
One might then believe that if the circumstances in the example would not justify the use of force in national self-defense–there is no attack to repel–the president would have no authority to order any military action against the foreign country that could reasonably be expected to commence a war. That is, it would seem the president had acted outside his constitutional powers.
Under that analysis, unless Congress had either declared war on the foreign country or, by statute, gave the president authority to order an attack on the foreign country, the president would have as much authority to issue that order as would the local grocer. The order would seem so obviously unlawful that it might be patently illegal.
The analysis of constitutional authorities can be complex, however, especially when the legislative and executive branches disagree and the judicial branch has not weighed in. That is the case with the nation’s war powers. Congress overrode President Richard Nixon’s veto to enact the War Powers Resolution, which represents the legislative branch’s interpretation of the Constitution’s division of war powers. The War Powers Resolution provides that the president may exercise the constitutional powers “as Commander-in-Chief to introduce United States Armed Forces into hostilities, or into situations where imminent involvement in hostilities is clearly indicated by the circumstances, . . . only pursuant to 1) a declaration of war, 2) specific statutory authorization, or 3) a national emergency created by attack upon the United States, its territories or possessions, or its armed forces.”
Congress’s interpretation seems based on the founders’ intent. The executive branch, however, has consistently viewed the section of the resolution that reflects Congress’s interpretation as unconstitutionally narrow.
The executive branch’s interpretation of the Constitution’s split in war powers is reflected in a series of opinions from the Department of Justice’s Office of Legal Counsel. Those opinions conclude that the president’s constitutional authorities empower him to introduce U.S. armed forces into hostilities without congressional authorization in more situations than those listed in WPR. Rescue missions and operations to protect U.S. citizens and property are only two of the executive branch’s examples.
Long History of Military Action Without Congressional Authority
In addition, the opinions refer to a long history of the president directing military action without prior congressional authority and contend that this history of practice is more reflective of the Constitution’s meaning than the available notes of the debates during the Constitutional Convention. The opinions acknowledge only that the Constitution may require the president to obtain “prior congressional authorization” to order military operations when the “anticipated nature, scope and duration of” those operations would constitute a “war” in the constitutional sense.
War in the constitutional sense, the executive contends, “generally requires prolonged and substantial military engagements, typically involving exposure of U.S. military personnel to significant risk over a substantial period.” These requirements appear developed from wars fought with conventional weapons and would not define a war involving the use of nuclear arms.
A military officer looking to the judicial branch for clarity regarding the president’s war authority vis-à-vis the Congress’s authority will find little. Instead, the officer will be left only with some general concepts. For example, the officer will learn that the president’s exercise of constitutional power falls into three categories:
- First, when the president acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right, plus all that Congress can delegate.
- Second, in the absence of either a congressional grant or denial of authority, there is a zone of twilight in which the president and Congress may have concurrent authority, and where congressional inertia, indifference or acquiescence may invite the exercise of executive
- Finally, when the president takes measures incompatible with the expressed or implied will of Congress, he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter. To succeed in this third category, the president’s asserted power must be both exclusive and conclusive on the issue,” according to the decision in Zivotofsky v. Kerry.
In the hypothetical, the president is not relying on an express or implied authorization of Congress to give the order to strike the foreign state. The officers receiving the order might reason that the Congress cannot be said to be indifferent or to have acquiesced in the strike, because the WPR remains the law. The officer would then conclude that the president can rely only on his commander-in-chief powers–minus Congress’s power to declare war—to give the order. That application of the general guidance provided in Zivotofsky v. Kerry simply takes the officer back to where he or she began. The officer has nothing from the courts to help him or her determine whether the President has the constitutional power to order a nuclear attack on a country for a purpose other than self-defense.
Given the current state of the law, it is unlikely any military officer is going to refuse to obey the president’s order to launch a nuclear missile based on a concern the President lacks the constitutional authority to order the strike in the hypothetical’s circumstances. After all, without a definitive interpretation from the courts, can any officer truly know whether ordering a nuclear strike in the circumstances given falls within or outside the president’s commander-in-chief powers?
If the answer is no, then where are we? The devastating power of nuclear weapons and the speed at which a U.S. launch of nuclear weapons could result in a total nuclear make it both more important than ever—and less likely than ever—that the American military and American people will know definitively whether the Constitution’s deliberate division of our nation’s war powers limits when the president can unilaterally order the use of nuclear weapons. It is less likely than ever will because only the courts can give a definitive answer, but by the time there is a case or controversy for the courts to hear, the courts, along with many of us, will have been reduced to radioactive ashes
Robert Eatinger was an attorney for the CIA for 24 years, including service as CIA’s Acting General Counsel from October 2013 to March 2014, and Senior Deputy General Counsel. Prior to that, he served as CIA’s Deputy General Counsel for Operations from September 2009 to June 2013. Eatinger also served on active and reserve duty in the United States Navy, Judge Advocate General’s Corps, and retired in 2013 as a Captain with 30 years of service.
He’s the founding Principal of SpyLaw Consulting, LLC, a consulting service, and of Robert J. Eatinger, Jr., PLLC, a legal practice limited to national security and intelligence law.
Editor’s Note: Last three paragraphs updated 23 January 2017 by editor.