It's been a busy month; aside from "regular work" sorts of duties (teaching, grading, writing, e-mailing, programming, book reviews, grant proposals, oh my!), I've been sucked into various discussions relating to presidential command and control after my last post, which got me a solicitation to write an op-ed for the Washington Post on presidential authority to launch nuclear weapons. I haven't really gotten around to screening all the comments to my blog post, and Post piece has 1,200 comments that I'm just not going to bother trying to wade into. I thought though that I would post a few quick responses here to common comments I've gotten on both pieces.
Both pieces are about the history and policy of presidential authorization to use nuclear weapons. In a nutshell, in the United States the President and only the President is the ultimate source of authority on the use of nukes. This is entirely uncontroversial, and the articles describe the history behind the situation.
The trickier questions come up when you ask, can anyone stop nuclear weapons from being used if the president wants to use them? Everything I've been able to find suggests that the answer is no, but there are ambiguities that various people interpret differently. For example, there are two separate questions hidden in that first one: can anyone legally stop the president, and can anyone practically stop the president? I will get into these below.
The most curious response that I've heard, both in person and second-hand, are people who have heard what I've said about this, and say, "that can't be true, that would be a dumb/crazy way to set things up." This is often a purely emotional response, not one based on any research or specialized knowledge — a pure belief that the US would have a "smarter" system in place. I find it interesting because it is a curious way to just reject the whole topic, some sort of mental defense mechanism. Again, everything I've found suggests that this is how the system is set up, and in both the blog post and the Post article I've tried to outline the history of how it got to be this way, which I think makes it more understandable, even if it's still (arguably) not a great idea.
And, of course, because it featured the name "Trump," a somewhat hyperbolic headline (which I didn't write, but don't really hate — it elides some caveats and ambiguities, but it's a headline, not the article), and is in the Washington Post, there were a lot of people who wondered whether this was just a partisan attack. And amusingly had a number of people accuse me of being a Post employee, which I am decidedly not. My writing has also been sometimes referred to as "hysterical," which is an interesting form of projection; to my eye, anyway, it is intentionally pretty sober, but I suppose we see what we expect to see, to some degree.
It's true that I think this issue is particularly acute with regards to Mr. Trump; if nuclear war powers are vested in the person of the executive, then the personality of the executive is thus extremely important. And I think even his supporters would agree that he has a reactive, volatile, unpredictable personality. He broadcasts his thin-skinnedness to the world on a daily basis. And a president who complains on a weekly basis on his portrayal on Saturday Night Live is, let's be straight, thin-skinned. To be offended by comedic parody is beneath the station of the job, something that any American president had better get beyond.
But frankly I would be just as happy to have been talking about this in a Clinton administration, and would have been happy to talk about it during the Obama administration. The issue, and my position, still stands: I think that vesting such power in one human being, any human being, is asking a lot. And this has nothing to do with how reliable they seem at election-time: we have historical instances of presidents who had health problems (Wilson), were heavy users of painkillers (Kennedy) or alcohol (Nixon), or who were later discovered to be in the early stages of mental decline (Reagan). There is no reason to suspect that the president you elect one year will continue to be that person two or three years later, or that they will be totally reasonable at all times. And I don't think anyone of any political party in the USA would go out on a limb to suggest that the US electorate will always elect someone whose can bear all that responsibility. So this doesn't have to be, and shouldn't be, a partisan issue, even if Trump in particular is getting a lot of people to start talking about it again.
One of the responses I've heard is that no further "checks" on presidential nuclear command authority are needed because any president who wanted to use nuclear weapons unilaterally, against the judgment of their advisors, would be agreed-upon as "insane" and thus could be removed from office under Section 4 of the Twenty-Fifth Amendment of the US Constitution. This is, I think, not adequate.
For one thing, the procedures are understandably complex and require a lot of people to participate — it is appropriately difficult for a president to be declared "unable to discharge the powers and duties of his office," because if it were easy, that would be an easy way to dispose of an unpopular president. So it is not the sort of thing that can be made to go into immediate effect with quick turn-around, which really does not help us much in the nuclear situation, I don't think.
Secondly, while the "insane president" idea often dominates the discussion here, that is an extreme and not entirely likely case. I am much more worried about the "president with bad ideas" approach, possibly a "president with bad ideas supported by a few advisors" approach. There are many nuclear-use scenarios that do not involve an attempted preemptive attack against Russia, for example. Not all will be "obviously insane." And even a president who advocated first-use would not necessarily be "unable to discharge the powers and duties of his office" according to the people who need to agree to such a statement. This is a cumbersome, high-stakes approach; if the only way to stop a president from doing dumb things with nuclear weapons is to kick them out of office on the basis of them being medically unfit, that is a very difficult bar to climb to. (And we can add impeachment under the same objection — that is not a fast nor straightforward process, nor is it any kind of obvious deterrent to the kind of president who might consider using nuclear weapons in the first place.)
Another objection I've gotten is the "maybe there are checks that you just don't know about, because they're classified." Fair enough, and I acknowledged this in my writings. Much about the procedures involved are classified, and there are good reasons for that. If an enemy knew exactly how the system worked, they could potentially plot to exploit loopholes in it. But I have two main responses on this.
First, if complete knowledge in the nuclear realm was necessary to talk about nuclear policy, then literally nobody could or would talk about it. Which means democratic deliberation would be impossible. So those of us without clearances can, and should, talk about what we do and don't know, openly on both fronts. I try to make very explicit where my knowledge begins and ends. I would be completely thrilled if these discussions led to official clarifications — I think these issues are worth it, and if my understanding is wrong, that would be great.
Second, it strikes me as an act of tremendous optimism to assume that things in the US government are more rationally run than all signs indicate they appear to be. The study of nuclear history is not a study of unerring rationality, of clear procedures, or of systems set up to guarantee wise decision-making. It is easy to document that our command and control systems have been optimized towards three ends: 1. preventing anyone but the president from using nuclear weapons in an unauthorized fashion, 2. reliability of response to threats and attack, and 3. immense speed in translating orders to action. None of that suggests we should assume there are elaborate checks and balances in the system. My view: unless positive evidence exists that a government system is sufficiently rational, to assume it is sufficiently rational requires tremendous faith in government.
Lastly, to get at the strongest of the responses: the president is the only person who can order nuclear weapons to be used, but doesn't the execution of that order require assent from other people to actually get translated into action? In other words, if the president has to transmit the order to the Secretary of Defense (as some, but not all, descriptions of the process say has to occur), and the Secretary of Defense then has to transmit it to the military, and the military has to transmit it into operational orders for soldiers... aren't there many places in that chain where someone can say, "hey, this is a terrible idea!" and not transmit the order further?
In thinking about this, I think we have to make a distinction between a legal and a practical hinderance. A legal hindrance would be the possibility of someone being able to say, legally and constitutionally, "I refuse to follow this order," and that would stop the chain of command. This is mentioned in the 1970s literature on presidential authority as a form of "veto" power. It is not at all clear that this is legally allowable in the area of nuclear weapons — it is, to be sure, an ambiguous issue of constitutional, military, and international law. I have seen people assert that the use of nuclear weapons would be unquestionably a war crime, and so any officer who was given such an order would recognize it as an illegal order, and thus refuse to obey it. I don't think the US government, or the US military, sees (American) use of nuclear weapons as a war crime (a topic for another post, perhaps), and whether you and I do or not matters not at all.
And from a practical standpoint, we know the system is set up so that the people at the very bottom, the people "turning the keys" and actually launching the missiles, are trained to not question (or even deeply contemplate) the orders that reach them. They are trained, rather explicitly, that if the order comes in, their job is to execute it — not quite like robots, but close-enough to that. The speed and reliability of the system requires these people to do so, and they are not in a position to inquire about the "big picture" behind the order (and would not presume to be qualified to evaluate that). So if we take that for granted, we might ask ourselves, at what level in the hierarchy would people be asking about that? One can imagine a lot of different possibilities, ranging from a continuum of second-guessing that was fairly evenly gradated towards the "top," or one that was really "band-limited" to the absolute top (e.g., once the order gets made by the president, it is followed through on without questioning).
I suspect that even the military is not 100% sure of the answer to that question, but I suspect that the situation is much more like the latter than the former. Primarily because, again, the US military culture, especially regarding nuclear weapons, is about deference to the authority of the Commander in Chief. Once you get beyond a certain "circle" of people who are close to the president, like the Secretary of Defense, I would be very surprised if the people in the nuclear system in particular would buck the order. The system and its culture was built during the cold war, focused on rapid translation between order and execution. Until I see evidence that suggests it has radically transformed itself since then, I am going to assume it acts in that way still. And again, everything I have seen suggests that this is still the case. As former CIA and NSA head Michael Hayden put it before the election: "It's scenario dependent, but the system is designed for speed and decisiveness. It's not designed to debate the decision."
OK, but in practice, couldn't the Secretary of Defense just refuse to act? Here it really becomes necessary to know how the system is set up, and I just don't think enough information is out there to be definitive. From what I understand, the main role of the Secretary of Defense is to authenticate the order — to say, "yes, the president made this order." Are there ways to get around that requirement, or around a stubborn Secretary of Defense? A practical one would be to just fire him on the spot, in which case the requirement for authentication moves down a notch in the Department of Defense succession rank. It could go onward and onward down the line, I suppose. But more practically, I have heard it suggested (from people who study such things) that there are protocols by which the president could bypass the Secretary of Defense altogether and communicate directly with the National Military Command Center to communicate such an order. I am still looking into what we can say about such things with conviction, but it would not surprise me if there were contingencies in place that allowed a president a more direct means of sending such orders, as part of the goal of making the system especially resilient in times of crisis (when appropriate representatives from the Department of Defense may not be available).
There is a famous anecdote about Secretary of Defense James Schlesinger requesting that all nuclear commands from Nixon in the final days of the administration be routed through him. It is not clear that it is true, and may be exaggerated greatly, but it is often cited as a means that a Secretary of Defense could override presidential authority. Even if it were true, it is ad hoc, probably illegal, and a pretty thin "check" to rest one's hopes upon. And I would suggest that about any assertion that "practical" constraints exist in the form of individuals refusing to follow orders — they're highly optimistic. Especially since there is a lot of options other than a raving president shouting "nuke them all!," which would be pretty easy to disobey. There are many more scenarios that do not involve obvious insanity, but could still be terrible ideas.
In my Post piece, I discussed possible resolutions. None could be completely satisfying; the nuclear age is defined by that lack of total certainty about outcomes. But there have been proposals about requiring positive assent from more people than just the president for any kind of first-use of nuclear weapons. I discuss the Federation of American Scientists' proposal in my Post piece, and the fact that you could use that as a template for thinking about other kinds of proposals. I am not wed to the idea of getting Congressional approval, for example. Frankly I'd be happier if there were a legal requirement that would codify the Secretary of Defense's veto power, for example. One can productively debate various options (and I'm still thinking about these questions), and their legality (it is a tricky question), but I still think it would be a valuable thing to give people at the highest levels something non-ad hoc to fall back upon if they wanted to actively refuse to obey such an order. The common objection I've heard to such an idea is, "maybe we don't need it, there might be hidden checks in place," which is not much of an objection (relying on optimism in the system).
Congressmen Ted Lieu (D-CA) and Senator Ed Markey (D-MA) introduced a bill last September that would require a Congressional declaration of war before first-use of nuclear weapons would be allowed. I don't think that's necessarily the right approach (Congress has not issued a declaration of war since World War II, so this is effectively just a prohibition on first-strike capability, which will lead the military, defense establishment, and most security scholars I know to definitively oppose the idea), but I hope that this might serve as a place to revisit and discuss these issues formally in a legislative setting. I am not convinced I have the perfect policy solution, but for me an idealized law would have provisions that allowed for first-use in emergency circumstances, with at least one other human being (preferably more, though not an impractical number) having to actively agree with the order (and having veto power over it). I think this is a rather modest suggestion. It would not completely rule out first-strike possibilities — nothing would, save lack of nuclear capability altogether, and that's a separate can of worms — but it would allow the American people, military, and political establishment to know that no single human being would be shouldering that responsibility alone.