• Alex de Ramon

No Checks, No Balances

On Tuesday, Congress held its first hearing in decades on the President’s essentially unlimited ability to declare nuclear war. This system was designed during a very different historical context: during the Cold War, any use of nuclear weapons would have been an instance of mutually assured destruction between the superpowers, and the government believed that there would only be around thirty minutes to respond to a Soviet attack before impact.

While having a unilateral authority to attack has always been frightening, the design of the system made sense. But today, a nuclear attack would almost certainly occur against North Korea (or possibly Iran in the future): states that have not yet fully developed nuclear weapons and could not destroy the US in retaliation as the USSR could have done. Although North Korea (about to be attacked) could result in mass casualties in Seoul with conventional weapons, it would not be able to respond proportionately to the US.

I believe that the system merits revision no matter which president is in office. And while Trump himself is not to blame for the North Korean crisis, his “incendiary rhetoric” has inflamed tensions and dramatically raised the possibility of a miscalculation. Obviously, his Twitter use has been concerning in a situation that requires “firm, clear signaling to be managed effectively”. Just some examples of Tweets follow, quoted directly from @realdonaldtrump:

  • Nov 8: “NoKo has interpreted America’s past restraint as weakness. This would be a fatal miscalculation…DO NOT TRY US”

  • Oct 7: “Presidents and their administrations have been talking to North Korea for 25 years…Sorry, but only one thing will work!”

  • Oct 1: “I told Rex Tillerson, our wonderful Secretary of State, that he is wasting his time trying to negotiate with Little Rocket Man / Save your energy Rex, we’ll do what has to be done!”

  • September 23: “Just heard Foreign Minister of North Korea speak at UN. If he echoes thoughts of Little Rocket Man, they won’t be around much longer!”

These tweets all clearly refer to an attack on North Korea, which would likely be nuclear in nature. While North Korea backed down from threats to fire missiles towards Guam in August, the situation is tenser than it ever has been. During the hearing on Tuesday, Brian McKeon, a former Pentagon official, agreed that Trump’s Twitter use makes a miscalculation much more likely.

In short, Americans should ask themselves if any one person should have the ever-present, and essentially unlimited, ability to order the deaths of millions.

Trump aside, the current system results in essentially unlimited authority in one man to launch a nuclear attack. I agree with Senator Ed Markey’s (D-MA) comment that “no one human being should ever have that much power.” Although I realistically do not think any President would be unstable or reckless enough to launch a random or unwarranted nuclear attack, the fact is that the system offers quite literally no checks against this situation if it were to occur. I am reminded of Harvard professor Roger Fisher’s suggestion that the nuclear codes should be implanted next to the heart of a presidential aide, with the President needing to stab and kill the aide with his own hands to be able to launch a nuclear attack. The Pentagon’s reaction was that “Having to kill someone would distort the President’s judgement. He might never push the button.”

The only semi-realistic check mentioned in the hearing is that military officers would refuse to follow illegal orders. General Kehler, former head of US Strategic Command, explained that an ordered launch that seemed excessive or disproportionate, or unnecessary (as the opposing country was not preparing an imminent attack) would be likely illegal, and military officers are required to reject illegal orders. However, if a military officer were to refuse this order, Kehler conceded that what happened next would be completely unprecedented and a “very interesting constitutional situation.”

Having to rely on possible conflict between the military and the commander-in-chief is not a comforting thought. If a president is determined enough to order a nuclear launch, would he stop if an officer refused? The president would have the authority to fire the officer. Would multiple officers refuse? What would happen then? Any Cabinet member or Pentagon official works on behalf of the president and they have no constitutional or institutional authority to reject his orders.

Some Senators at the hearing suggested that Congress should be consulted before a nuclear launch is ordered. I don’t think this proposed change is very realistic: it does not make sense to institute this reform in contexts where a nuclear weapon is on its way to the homeland, whether the attack has already been made or it is imminent. Congress works slowly and is often out of session and even out of town. Currently, an attack (or preparation for attack) that the military detects only requires the president’s approval. How could they ask for the approval of 535 Congressional members? Even if the President was the one asking the military for a launch, requiring a Congressional check would increase the likelihood that public knowledge of the requested launch would spread quickly. In today’s age of instantaneous communication, perhaps North Korea would hear about an attack faster if Congressional approval was needed.

I believe that any nuclear weapons system has its flaws, no matter who has the authority to order strikes. But the decision should be formally and in writing left to more than one individual. The president and the vice president, or perhaps the president and the secretary of defense, should be required to both approve any launch of the system simultaneously. I do not see any reason this reform should be rejected: it would not significantly add to the response time and it would ultimately go a long way to prevent the possibility that miscalculations could result in a mass loss of life, or that an irrational or aggressive leader could abuse the system. Simply requiring the approval of one more individual would also retain the executive branch’s ability to protect the country. In short, Americans should ask themselves if any one person should have the ever-present, and essentially unlimited, ability to order the deaths of millions. The answer should be no.

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