[OPINION] Can Congress stop a president waging nuclear war?
From the beginnings of the 2016 general election through the presidential debates and on to his “fire and fury” comments on North Korea this summer, the prospect of a president as impulsive as Donald Trump in command of nuclear weapons has worried experts in both parties and career military and government officials. Last week’s North Korean test of a missile that might be able to reach the entire US mainland with a nuclear warhead - and Trump’s initial response that “we will take care of it” - can hardly be expected to diminish the anxiety.
The simmering concern had already reached a medium boil last week when the Senate Foreign Relations Committee heard testimony on the president’s authority to order a nuclear attack. The Senate hearing came at the behest of committee chairman Bob Corker, a Republican from Tennessee who, since announcing he would not run for reelection next year, has publicly fretted that Trump’s intemperate tweets and other public pronouncements risk putting the United States “on the path to World War III.” A Democratic member of the committee, Senator Chris Murphy of Connecticut, echoed those concerns during the hearing, saying, “the president of the United States is so unstable, is so volatile, has a decision-making process that is so quixotic, that he might order a nuclear weapons strike that is wildly out of step with US national security interests.”
But as the Senate hearing and subsequent commentary made clear, concern about Trump’s authority to launch an unwarranted first-strike nuclear attack is one thing; circumscribing that authority is quite another. The president holds the constitutional position of commander in chief and is obligated to protect the United States from foreign threats. The Constitution does grant to Congress the power to declare war, but it is unclear whether a law that significantly constrained the president’s nuclear command authority - particularly when the United States or its allies are under attack or in imminent danger of attack - would be constitutional. Also, as former National Security Council staffer and Duke political science professor Peter Feaver noted in his Senate testimony, legislation that attempts to alter the nuclear chain of command could have unintended and dangerous consequences, perhaps leading adversaries and allies to question the United States’ ability to respond quickly during a crisis.
There are ways out of this constitutional and legislative dilemma, at least as regards a first nuclear strike by US forces. The difficulty is that they require the participation of Trump himself.
In recent months, a bill proposed by Senator Ed Markey of Massachusetts and Representative Ted Lieu of California - the Restricting First Use of Nuclear Weapons Act of 2017 - has gained support from experts and activists concerned by Trump’s control of US nuclear weapon use. The bill would prohibit the president from conducting “a first-use nuclear strike unless such strike is conducted pursuant to a congressional declaration of war expressly authorising such strike.” But the Lieu-Markey bill - in my opinion an admirable effort to create a check against wanton nuclear war-making - is sponsored by two liberal Democrats and has approximately zero chance of passing the current Republican-controlled Congress.
If effective congressional action is unlikely in the short term, what might work to reassure government officials of both parties and the citizens they represent? The answer is that the president could take executive action that circumscribes his own authority to launch a nuclear first strike.
There is nothing to stop US presidents from reining in their own nuclear command authority. When the United States is not under (or at imminent threat of) nuclear attack, the nuclear command and control system already contains some restraints on presidential authority, including military commanders trained to make sure that a nuclear launch order is legal. As Feaver told me in an interview that followed his Senate testimony, the president could order additional controls on nuclear decision making. “I don’t think that you could impose over a determinately hostile executive branch a legislative fix that actually would work,” he said. “But [Congress] could cooperate with the executive branch on legislative fixes, and better yet, it could, through oversight and review, make recommendations that the executive branch would adopt on its own, recognizing that they’re worth doing.”
Just as the Obama administration laid out strict guidelines for authorising drone attacks on terrorist targets, Feaver said, the Trump administration could adopt a policy that, for example, required certain cabinet members to determine whether a president’s first-strike nuclear order is legal and complies with US treaty obligations before it can be acted on.
An executive order formally requiring that, for example, the secretaries of defense and state sign off on any presidential order of a first nuclear strike before it is sent to military commanders would go a great way toward assuaging concerns about presidential impulsiveness - particularly at a time when the North Korea confrontation looms large in the public consciousness. Such a “three-key” reform could therefore be of enormous political benefit to Trump, reassuring both domestic audiences and allied countries that he will not explode early some morning and, after an angry tweet or two, order up an attack on Pyongyang that triggers doomsday.
To have credibility, any such reforms would need to be closely vetted by congressional and military experts. They would have to ensure that while the presidential power to initiate first-strike attacks could be curbed, presidents could still respond immediately and effectively when the United States is under attack, or an attack is clearly impending. In matters pertaining to the continued existence of humanity, details matter.
Because they would be enacted by executive order, the reforms of course would not necessarily outlive the Trump administration; a future president could undo them by fiat.
But if they were wisely crafted, procedural safeguards against a president’s unilateral misuse of his authority to order a first nuclear strike would likely be welcomed by people in America and around the world, and those safeguards might serve as a powerful precedent. Beyond the political benefits these reforms would provide Trump today, they could serve as a long-term legacy for a president who so far has struggled to get major legislation passed.
Trump’s personality and leadership style make it highly unlikely that he’ll agree to limit his own powers. But if he doesn’t want to make such a move, it’s time to start thinking about how to persuade his successor to think differently about control of the nuclear button.
John Mecklin is the editor in chief of the Bulletin of the Atomic Scientists. Follow him on Twitter: @meckdevil