Lawfare

Can Anyone Stop Trump If He Decides to Start a Nuclear War?

If the president decides to let nukes fly, the law will be on his side.

WASHINGTON, DC - SEPTEMBER 09:  Republican presidential candidate Donald Trump addresses a rally against the Iran nuclear deal on the West Lawn of the U.S. Capitol September 9, 2015 in Washington, DC. Thousands of people gathered for the rally, organized by the Tea Party Patriots, which featured conservative pundits and politicians.  (Photo by Chip Somodevilla/Getty Images)
WASHINGTON, DC - SEPTEMBER 09: Republican presidential candidate Donald Trump addresses a rally against the Iran nuclear deal on the West Lawn of the U.S. Capitol September 9, 2015 in Washington, DC. Thousands of people gathered for the rally, organized by the Tea Party Patriots, which featured conservative pundits and politicians. (Photo by Chip Somodevilla/Getty Images)

President Donald Trump won a victory, at least a temporary one, in the simmering crisis on the Korean Peninsula recently when North Korean leader Kim Jong Un backed down on his threats to launch missiles into waters near Guam. The president tweeted that Kim “made a very wise and well reasoned decision. The alternative would have been both catastrophic and unacceptable!”

For many Americans, however, the North Korean climbdown was less significant than the alarming rhetoric from President Trump in response to North Korea’s missile development in the first place, rhetoric that all but explicitly threatened nuclear confrontation if the North Koreans continued making threats. We’ll leave it to others to debate whether Trump’s rhetoric was tactical or impulsive. The escalating war of words left many observers in the United States concerned not merely with North Korean nuclear weapons and missiles but also with difficult questions about Trump’s control over American nuclear arms.

“In a fit of pique, [if] he decides to do something about Kim Jong Un, there’s actually very little to stop him,” former Director of National Intelligence James Clapper said Wednesday after watching Trump’s speech in Phoenix the night before. “The whole system is built to ensure rapid response if necessary. So there’s very little in the way of controls over exercising a nuclear option, which is pretty damn scary.”

Indeed, it took the violence in Charlottesville, Virginia, to remove from the news cycle vexing questions about the wisdom of placing the world’s most powerful nuclear arsenal in the hands of a single individual — or, at least, of this single individual. How can a man who cannot responsibly manage a Twitter account hold the power to destroy the planet? How can a man who cannot convey a consistent message about anything convey a consistent message of nuclear deterrence to an unstable actor with nukes? How can a man as impulsive and vindictive as Trump have his finger, and solely his finger, on the proverbial nuclear button?

And unsurprisingly, since the North Korea flare-up began, there has been a flurry of talk about limiting the president’s authority over the nuclear arsenal. The talk raises a sticky set of questions: Is it actually possible to constrain the president’s power over nuclear launch? And if so, is it a good idea?

The larger North Korea problem — and much of the present crisis — is not President Trump’s fault. It is not Trump’s fault that Kim Jong Un is the murderous leader of a personality-cult state armed with nuclear weapons and a fast-developing missile program. It is not his fault that Kim menaces two allied nations — Japan and South Korea — and is in a position to kill millions of people in one of the world’s great metropolises with artillery only a few miles away. It is not Trump’s fault that Kim is now poised to be able to deliver nuclear weapons to American shores.

Indeed, any president would be facing the same crisis as Trump is today. It is the product of decades of policy since the Korean War that has failed to rein in the Kim dynasty. Presidents Bill Clinton and George W. Bush both pursued a North Korea strategy focused on preventing the Hermit Kingdom from acquiring a nuclear weapon. Both failed. Presidents Bush and Barack Obama both subsequently pursued a policy toward the country focused on denuclearization. Both failed. No one has yet offered a good strategy for what to do now. It’s a cliché to say that there are no good options with respect to North Korea — but it’s really true.

One aspect of the current crisis, however, is entirely Trump’s own doing — namely, his incendiary rhetoric in fueling a situation that needs firm, clear signaling to be managed effectively. Trump’s talk of “fire and fury” — along with his more general bombastic verbal flailing — has raised questions in a lot of people’s minds about the current president’s fitness to oversee the U.S. nuclear arsenal. President Richard Nixon famously articulated the “madman theory,” the notion that creating uncertainty as to the rationality of the nuclear actor offers strategic advantages. As Garrett Graf wrote recently:

That unilateral launch authority is so powerful, so unchecked, and so scary that, years before Watergate, Nixon had turned it into its own geopolitical strategy, the so-called Madman Theory, with which he threatened the Soviets and the Vietnamese that he might actually be crazy enough to nuke Hanoi—or Moscow—if they didn’t accede to his demands. The “mutually assured destruction” of the Cold War was predicated on the idea that the leaders of both superpowers were rational enough to avoid a war that would end with the destruction of both nations. The Madman Theory forced the world to consider a more frightening option: That the man in charge of the nukes might not be rational at all.

Trump himself has declared that he wants the United States to be less predictable. The trouble is that he has delivered on this convincingly not merely to the North Koreans but also to many of his own compatriots. Indeed, if you’re using public diplomacy and rhetoric as your means of communication, as Trump has been, it is probably not possible to convince only foreign adversaries that you’re on a hair trigger and might go off at any minute. The American public sees it all, too. And many people will respond nervously, as they have with Trump.

It’s possible, of course, that the entire spectacle was an act. But for present purposes let’s assume that it wasn’t and that the concerns about Trump’s fitness to command the nuclear arsenal are reasonable ones. What, if anything, can be done with this nervousness without denuding the presidency of the vital capacity to protect the country? The answer, rather scarily, is that probably not all that much can be done.

Presidential sole command of the nuclear forces did not develop to make the nuclear trigger more sensitive. To the contrary, it developed — driven largely by Dwight Eisenhower in the 1950s — because of the desire not to have field commanders freelance with nuclear weapons. The idea was that because these were not ordinary weapons, the decision to use them was no mere tactical decision to be left to fighting officers. Particularly as it could mean the end of the world, it was something that only a president should be able to order.

This centralization of power over a particular class of weapons took place in the context of a larger, more controversial migration of power to the president: the drift from Congress to the executive of the power to initiate uses of force to begin with. These two migrations of power, whatever one thinks of them, dovetailed with one another. That is, with the power to go to war migrating laterally between the branches, and the power to use a particular class of weapons migrating vertically within the executive branch, the postwar American presidency suddenly found itself with the ability to escalate a war of words into a nuclear holocaust with essentially no check.

Here, it’s worth considering an arresting comment made a few years ago on a panel at American University by Brad Berenson, who served in the White House Counsel’s office under Bush. The presidency is an office, he said, of terrifying power — power that includes the authority to order a preemptive nuclear strike on Tehran. The only thing, Berenson said, scarier than a president who has such power in his sole command is a president who does not have that power.

At least in some circumstances, Berenson is clearly right. Consider, for example, the circumstances in which a foreign country has actually launched nuclear weapons against the United States, and there are only minutes before an American city is destroyed. While there is an argument that submarine-based weapons ensure a U.S. retaliatory capability and there is thus no need any longer for an instant response, it is certainly unconstitutional to deprive the commander in chief of the power to respond to an ongoing military operation against the United States. Under these circumstances, where there is no time to go to Congress for approval, there simply has to be some degree of unreviewable presidential power to launch — just as there is unreviewable power to order the military to repel a foreign surprise attack of any other kind.

Now consider circumstances just short of that — where the adversary’s missiles are not yet in the air but their launch is genuinely imminent. Under both domestic constitutional law and international law, a preemptive response is lawful under such circumstances. So to put restrictions on the president’s launch authority in this type of situation would, again, bureaucratize the nation’s defense under time-sensitive crisis conditions. If it did so effectively, it could gravely undermine American deterrence by sending a message to adversaries that the U.S. nuclear capacity is tied up with red tape — at least until someone launches a nuclear strike against the country.

But there’s also reason to doubt that it would do so effectively. To whom, after all, could Congress give the power to stymie the president on a launch to whom the president could not issue an order and remove that person if he or she does not comply? Imagine if the Saturday Night Massacre took place not over the firing of a special prosecutor but over a nuclear launch order and you begin to see how difficult it would be to limit at least time-sensitive presidential launch orders.

This aspect, at least, of the president’s power over the nuclear arsenal is almost certainly irremediable by Congress — that is, it inheres in the nature of the presidential office. A case in point is the recent bill proposed by Sen. Ed Markey (D-Mass.) and Rep. Ted Lieu (D-Calif.) that would forbid the president from using the U.S. military to “conduct a first-use nuclear strike unless such strike is conducted pursuant to a declaration of war by Congress that expressly authorizes such strike.” Even if Trump had real-time satellite imagery of North Korea arming an intercontinental ballistic missile with a nuclear warhead for launch toward California, this bill would prevent nuclear preemption in the absence of congressional action. Imagine dealing with the Cuban missile crisis under such a law.

It’s easier to imagine restrictions in circumstances where conditions of imminent strike are not present. That is, Congress probably could pass a law preventing the president from, say, on his own ordering an unprovoked nuclear strike against Great Britain — or North Korea — because he felt like it in the absence of an imminent threat. But such a strike is already unlawful; under international law, it’s a resort to force not in self-defense. And under domestic constitutional law, it’s a nondefensive use of force without authorization from Congress. True, there is currently no procedural check on a president who wants to do it, and one could add one. But a president willing to behave unlawfully and order the strike in the first instance is probably willing to ride roughshod over the procedural check as well.

The more realistic check here is the possibility that military officers might refuse to carry out the unlawful order, a possibility that already exists under current law and that Sarah Grant and Jack Goldsmith have explored in detail on Lawfare. The other check, unfortunately the main one, is presidential sanity — a condition not obviously in play right now.

The point is that it’s not entirely clear what protections additional legal restrictions would add. Moreover, distinguishing between conditions of imminence and conditions short of imminence is tricky; the executive branch has interpreted the concept of imminence sufficiently expansively that it’s reasonable to expect that regulation of any plausible use of nuclear weapons would either impinge on the space the executive branch regards as its sole domain or would merely redundantly stand for the proposition that the president may not do that which he may not do.

In the end, presidential sole authority over nuclear weapons is probably still what it ever was: the worst possible option except all the others. Trump is forcing people to think about whether there may be a better way to design controls over the U.S. nuclear arsenal — and if not, what fail-safes there might be for an unlawful launch order. But as with North Korea itself, there are no good answers to these questions. The only way to make the presidency resistant to madmen is not to elect madmen to the office.

Photo credit: CHIP SOMODEVILLA/Getty Images

Susan Hennessey is managing editor of Lawfare.

Benjamin Wittes is editor in chief of Lawfare.

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