In the latest sign of his fascination with using nuclear weapons, former U.S. President Donald Trump told a crowd in January that one of the reasons he needed immunity was so that he couldn’t be indicted for using nuclear weapons on a city, like former President Harry Truman did to Hiroshima and Nagasaki.
In the latest sign of his fascination with using nuclear weapons, former U.S. President Donald Trump told a crowd in January that one of the reasons he needed immunity was so that he couldn’t be indicted for using nuclear weapons on a city, like former President Harry Truman did to Hiroshima and Nagasaki.
As Trump consolidates the Republican Party nomination, it is past time to ensure that no president can authorize an unnecessary or illegal nuclear attack.
It’s important to remember how worried top U.S. officials were three years ago. As Trump was attempting to overturn the election results, then-House Speaker Nancy Pelosi asked Joint Chiefs of Staff Chairman Gen. Mark Milley about whether he could prevent “an unstable president” from using nuclear weapons. For his part, Milley reportedly gathered senior officers to remind them not to act on orders unless he was involved, telling them, “no matter what you are told, you do the procedure. You do the process. And I’m part of that procedure.”
In fact, neither Pelosi nor Milley had any lawful authority to prevent a determined Trump from using nuclear weapons. The sole restriction on the president’s authority to order a nuclear attack is that members of the armed forces are obligated to refuse to carry out an order that violates the law of war. Among other things, officers must decline to conduct a nuclear strike that is not necessary to defeat an enemy as quickly and efficiently as possible or that would cause damage to civilians that is indiscriminate, inhumane, or disproportionate to the military objective.
In 2017, as Trump was improvising nuclear threats to North Korea, the commander of U.S. Strategic Command (Stratcom) made headlines by saying that he would not carry out an illegal launch order. Instead, Gen. John Hyten said he would inform a president that an order was illegal and then come up with “capabilities to respond to whatever the situation is, and that’s the way it works. It’s not that complicated.”
But it is complicated. The expected procedure is that a president considering nuclear use would convene a “decision conference” with senior advisors to consider options that are laid out in the football, a briefcase that follows the president everywhere. However, there is no logistical or legal requirement that a president convene a decision conference, engage with it in good faith, or take its advice seriously. In fact, the football can send a decision directly to the National Military Command Center (NMCC), which then generates an order and transmits it to U.S. forces.
One of Hyten’s predecessors, Gen. C. Robert Kehler, admitted to the Senate in 2017, “I do not know exactly” what would have happened if he had refused to carry out an illegal nuclear order. What if the president tried to circumvent that official? In practice, a coalition of officers or civilian officials could probably short-circuit the command and control process to obstruct an egregious order, but the system should not depend on insubordination.
It is also not clear how specific officials would interpret their obligations under the law of armed conflict. Who has standing to object to an order? What would they consider to be a legitimate military objective? Would they be able to evaluate nonnuclear options to determine that a nuclear weapon was the lowest effective level of force, as required? Exactly how would they calculate what number of incidental civilian deaths are proportionate to the military objective?
These questions can only have subjective answers and require more information than is available to single official. Existing practices to evaluate nuclear options may not be a good guide in a crisis. It is not sufficient for Stratcom to certify an option as legal in advance, because it may not be legal in the context that a president delivers it. Furthermore, precedent that derives from Hiroshima and Cold War plans to target civilians should not guide decisions today.
Before the election, President Joe Biden should put in place a defined, effective, rigorous, and legal procedure for preventing any president from issuing an illegal nuclear launch order.
He can start by establishing a structure for the decision conference. If a president accesses the football, the NMCC should automatically convene a conference among a specified set of principals, including the secretaries of state and defense, the chairman, the Stratcom commander, and the relevant regional combatant commander who can advise on conditions in an ongoing conflict. Each of these principals should be accompanied by their primary legal counsel, who is prepared to assess the legality of a nuclear order.
When the president transmits a decision to use nuclear weapons, each principal should submit a decision to certify or not to certify that the order complies with U.S. obligations under the law of armed conflict. If the attending principals certify the legality of a presidential order, it can then become a valid order and is transmitted to the NMCC. Just as the NMCC authenticates an order as being from a president, it should also require certification of legality before it transmits that order to launch crews.
Biden should think carefully about the rules of certification. No president should be able to rush or circumvent the process. Principals should have sufficient time to assess the operation, and certification should ideally be unanimous. In cases where an immediate launch is necessary, the legality should be plain, and principals should be able to certify the order immediately.
The president should also issue guidance to calibrate how government attorneys assess the legality of nuclear options, including what qualifies as a legitimate military objective that could justify nuclear use, how they should weigh incidental loss of life against military advantage, and how they determine when nuclear use can adequately discriminate between civilian and military objects. Over time, this kind of guidance could have an important effect on the options presented to a president.
As a first step, Biden should declare that the United States would use nuclear weapons only in extreme circumstances when there is no viable nonnuclear alternative for accomplishing vital military objectives. This would not only encourage planners to prioritize more credible conventional options, but also rule out the use of nuclear weapons to coerce or terrify enemies. The president could also state that the U.S. bombings of Hiroshima and Nagasaki would violate the law of armed conflict today and will never happen again.
Currently, the Defense Department’s law of war manual contains all of three sentences on the legality of nuclear operations. These presidential statements and guidance would help future officials interpret concepts such as necessity and discrimination and provide them with grounds to object to an unnecessary, unprovoked, or cruel launch order. Once in place, they would be difficult for an irresponsible president to walk back.
Lastly, the United States can add a step to the decision conference procedure where the president is prompted to consult with the leader of an allied country that would be directly affected by nuclear use, if at all possible. Biden already made this commitment to South Korea last year. Extending the idea to other allies can not only better inform the leaders of both countries, but could also help to build stronger, more literate, and more credible alliances.
The current procedure for authorizing nuclear use both fails to inform a responsible president and could fail to constrain an irresponsible one from ordering or even carrying out an unnecessary nuclear attack. Before he leaves office, Biden should confine this system to the past and establish one that is more rigorous and more effective. At the presidential inauguration in January 2025, either way, he’ll be glad he did.
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