Get Task & Purpose in your inbox
What You Should Know About Trump's Legal Authority To Order A Nuclear Strike
During the November 2017 Halifax International Security Forum, the Air Force Gen. John E. Hyten, commanding general of U.S. Strategic Command, responded to a question about a hypothetical order from President Donald Trump to launch a nuclear strike, saying: “I provide advice to the President. He’ll tell me what to do, and if it's illegal, guess what's going to happen? I'm gonna say, 'Mr. President, that's illegal.' Guess what he's going to do? He's going to say, 'What would be legal?' And we'll come up with options or a mix of capabilities to respond to whatever the situation is, and that's the way it works. It's not that complicated."
The response by Hyten, who as chief of the U.S. combatant command in charge of nuclear deterrence has some unique insights on the matter, touches on a number of fundamental questions regarding the the legality of the U.S. nuclear strategy, questions that have proven to be vexing policy issues for strategic leaders since nuclear weapons were first invented. And those questions became even more relevant a few weeks later, when Trump and Kim Jong Un engaged in a tense, taunting exchange over the “nuclear buttons” that was shorthand for the destructive power of their respective nuclear arsenals and their personal authority to employ them. The terrifying prospect of a nuclear exchange probably is more likely than at any point in the past 30 years.
The legality of ordering nuclear strikes boils down to two fundamental issues: the legal authority of the president to order a preemptive or offensive nuclear strike, and the legality of the use of nuclear weapons themselves. The answer to the former is surprisingly simple and the latter is remarkably complex — and although the relevance of a nuclear strike’s legality is a different question entirely (when the fate of the world hangs in the balance, questions of legality may pale in comparison to the potential consequences), the international legal system still shapes state behavior in advance of state action.
The legal authority to order the strike
Shockingly, Hyten apparently misunderstands the issue wholesale or misstated his understanding. He is correct that “it’s not that complicated” but for the wrong reason: It’s because the president has unreviewable, unquestionable authority to launch a strike on his own constitutional authority as the commander in chief.
Indeed, Trump really does enjoy a large nuclear “button.” It is not a literal button, but rather the “button” represents the amalgamation of an enormous set of nuclear capabilities, weapons, delivery systems, and authorities for employment. To that end, he enjoys unreviewable, unlimited Article II authority to employ all the arms — including nuclear arms — in the nation’s arsenal in self-defense, including anticipatory self-defense. There are no fail-safes built in, other than a military or secretarial refusal of the president’s presumptively lawful order to launch, based on 25th Amendment/Section 4-type concerns regarding the president’s mental stability (and therefore on the lawfulness of his order). There are no approvals or consultations required. The decision literally resides, constitutionally, in his sole discretion — a troubling prospect, to be sure, no matter who is in office.
Internal executive branch procedures offer an opportunity for “consultation” with the secretary of defense and the commander of U.S. Strategic Command, but the president has no legal requirement to conduct such consultations. For the purpose of determining whether the president has authority unilaterally take action against a national security threat, nuclear weapons are no different than conventional weapons: He can simply decline to consult and order the strike.
Similarly, there is no legislative constraint, though Congress has recently taken an interest in a statute that would purport to limit Trump’s authority. (Whether the courts would uphold such a statute in the face of an inevitable legal challenge, is an open question, but we view it as an unconstitutional usurpation of the president’s commander-in-chief power.)
Hyten’s description of the colloquy with the president is certainly a realistic possibility. If the president accepts the opportunity to consult, that is the general’s, and the secretary’s, opportunity to raise the issue of legality of the strike. But even with consultations, the orders of a superior, under military tradition and law, are presumptively lawful: The Manual for Courts-Martial, a virtual restatement of the military law binding on Hyten as a commander, notes an “order requiring the performance of a military duty or act may be inferred to be lawful and is disobeyed at the peril of the subordinate,” although “this inference does not apply to a patently illegal order, such as one that directs the commission of a crime” — including, it seems, a “war crime.” In other words, all orders are presumed lawful unless patently unlawful, including an order to commit a crime.
A military aide carries the nuclear football as he prepares to travel with U.S. President Donald Trump on Marine One at the White House, February 3, 2017.Olivier Douliery/Abaca/Sipa/Associated Press
The lawfulness of an order
So when is an order lawful? One instructive military appellate case notes a lawful order has three essential components: “(1) issuance by competent authority -- a person authorized by law to give such an order; (2) communication of words that express a specific mandate to do or not do a specific act; and (3) relationship of the mandate to a military duty.” In other words, all military orders — including an order to launch nuclear weapons — are presumed legal in the absence of manifest illegality.
Hyten’s commentary, if it reflects his true understanding of the dynamic, is troubling for two reasons. First, his comments presume there is time available for such a conversation: Assuming the ordered strike is a massive counter-barrage of nuclear weapons in response to a single nuclear weapon employed against a U.S. military or civilian target, the decision cycle would be compressed. It would take time to detect the nuclear weapon launch, assess and confirm it as a nuclear weapon launch, brief the president and his principal assistant the secretary of defense, receive the order, and execute the counterstrike — insufficient time for an extensive discussion about the legality of the order.
This is one of the exact reasons for the presumption of legality of orders: If orders are presumptively valid, they can be instantly executed in circumstances in which prompt obedience can be the difference between life and death, success and failure. In the absence of manifest illegality — for example, a deliberate, unprompted, offensive targeting of a purely civilian target with no military necessity — there is no authority to delay the execution.
Second, Hyten presumes the authority to determine whether a particular ordered use of nuclear weapons is lawful or unlawful. “Mr. President, that’s illegal” presumes Hyten would have a better idea of the lawfulness or unlawfulness of the use of a nuclear weapon in a particular manner. This is a curious proposition, in that it implies Hyten’s military lawyers in Nebraska are more well-versed on international law than all the lawyers advising Trump at the White House Counsel’s office, the Department of Justice Office of Legal Counsel, the National Security Council staff, and the general counsels at the departments of State and Defense. Moreover, and more importantly, unless the president’s order were manifestly unlawful, it is inappropriate for the general to even raise the issue. His duty is to presume lawfulness unless patently unlawful, and execute the order.
North Korea launches the Hwasong-15 ICBM on November 28, 2017KCNA/Associated Press
The lawfulness of nuclear weapons in general
The issue of whether a nuclear weapon can ever be lawfully employed is potentially undeterminable. There are no treaties directly on point regarding the lawfulness of the use of nuclear weapons, and no international legal regime clearly prohibits their use, so long as they are employed consistently with the law of armed conflict, as with any other weapon or capability.
Moreover, no court has ever definitely decided the question, though the International Court of Justice gave the most helpful guidance available in a 1996 advisory opinion requested by the UN General Assembly: While the unique and horrific destructiveness of nuclear weapons is “scarcely reconcilable with respect for [the law of armed conflict requirements of distinction and humanity],” the ICJ wrote, they remain a legitimate last-ditch tool of survival for modern governments despite the difficulties in determining factors like necessity and proportionality that govern the use of conventional weapons.
Finally, the precedent on point is minute: Two uses of nuclear weapons in all of history. There simply have not been many opportunities to examine the issue of the legality of the use of these awful, destructive purveyors of death, leaving most of the work in this field to academic commentary.
In short, the president enjoys ample, personal authority as commander-in-chief under domestic U.S. law to employ nuclear weapons. As the North Korean crisis continues to intensify, it is less than reassuring to encounter the legal realities regarding the use of nuclear weapons; yet, we must confront them as we trust our political leaders to manage the situation responsibly.
James W. Weirick is a retired Marine lieutenant colonel and Judge Advocate. He is a graduate of the University of Southern California and Seton Hall University School of Law. Follow James W. Weirick on Twitter @JamesWWeirick.
Rob "Butch" Bracknell is a retired Marine lawyer and member of the Truman National Security Project Defense Council.
Retired Army Master Sgt. Mark Allen has died 10 years after he was shot in the head while searching for deserter Pvt. Bowe Bergdahl in Afghanistan.
Allen died on Saturday at the age of 46, according to funeral information posted online.
For U.S. service members who have fought alongside the Kurds, President Donald Trump's decision to approve repositioning U.S. forces in Syria ahead of Turkey's invasion is a naked betrayal of valued allies.
"I am ashamed for the first time in my career," one unnamed special operator told Fox News Jennifer Griffin.
In a Twitter thread that went viral, Griffin wrote the soldier told her the Kurds were continuing to support the United States by guarding tens of thousands of ISIS prisoners even though Turkey had nullified an arrangement under which U.S. and Turkish troops were conducting joint patrols in northeastern Syria to allow the Kurdish People's Protection Units, or YPG, to withdraw.
"The Kurds are sticking by us," the soldier told Griffin. "No other partner I have ever dealt with would stand by us."
Defense Secretary Mark Esper said Sunday he and the Pentagon will comply with House Democrats' impeachment inquiry subpoena, but it'll be on their own schedule.
"We will do everything we can to cooperate with the Congress," Esper said on CBS' "Face the Nation." "Just in the last week or two, my general counsel sent out a note — as we typically do in these situations — to ensure documents are retained."
Most of the U.S. troops in Syria are being moved out of the country as Turkish forces and their Arab allies push further into Kurdish territory than originally expected, Task & Purpose has learned.
Roughly 1,000 U.S. troops are withdrawing from Syria, leaving a residual force of between 100 and 150 service members at the Al Tanf garrison, a U.S. official said.
"I spoke with the president last night after discussions with the rest of the national security team and he directed that we begin a deliberate withdrawal of forces from northern Syria," Defense Secretary Mark Esper said on Sunday's edition of CBS News' "Face the Nation."'
More than 700 women and children affiliated with ISIS escape Kurdish prison camp after Turkish shelling
BEIRUT/ISTANBUL (Reuters) - Women affiliated with Islamic State and their children fled en masse from a camp where they were being held in northern Syria on Sunday after shelling by Turkish forces in a five-day-old offensive, the region's Kurdish-led administration said.
Turkey's cross-border attack in northern Syria against Kurdish forces widened to target the town of Suluk which was hit by Ankara's Syrian rebel allies. There were conflicting accounts on the outcome of the fighting.
Turkey is facing threats of possible sanctions from the United States unless it calls off the incursion. Two of its NATO allies, Germany and France, have said they are halting weapons exports to Turkey. The Arab League has denounced the operation.