By Jessica Sleight, September 21, 2021
The Oval Office, in a White House photo. The Minuteman III ballistic missile photos are of course added for effect.
According to Bob Woodward and Robert Costa’s new book Peril, in the aftermath of the January 6 insurrection, the Chairman of the Joint Chiefs of Staff Gen. Mark A. Milley, fearing what a president he deemed unstable might do, told military officers he was to be included in the nuclear launch process. If true, Milley took an extraordinary step that undermines the long held civilian-military division of nuclear responsibility. That’s a big deal.
But conversations on whether or not he should be removed, and arguments over whether or not he is in the nuclear chain of command, distract from the critical point: The US nuclear process is long overdue for change. The problem is not with any one person or individual action, it’s with the entire system.
How the nuclear process works. Civilian control over nuclear use goes back to the first atomic president, Harry Truman. After the bombings of Hiroshima and Nagasaki, Truman—realizing the massive destructiveness of nuclear weapons makes them more than another tool of war—issued an order that nuclear weapons were not to be used “without express authority from the President.” But it wasn’t until President John F. Kennedy took office that the procedures and protocols for the modern-day nuclear launch process took shape.
The late Bruce Blair, a former nuclear missile launch officer and nuclear command and control expert, laid out the launch process in great detail—from the president through the Pentagon War Room to the missile launch officers—highlighting that it was designed for speed and efficiency, not deliberation. In the current system, the Chair of the Joint Chiefs does not have any formal role in the nuclear launch process once the president has made a decision. Senior officials should be consulted, but it’s not required. As former Defense Secretary William Perry and Tom Collina wrote, “within minutes [the president] can unleash hundreds of atomic bombs, or just one. He does not need a second opinion.”
One “check” does exist. Military officials are required to refuse an illegal order—a military official’s oath is to the Constitution, not the president—but it’s not something that will likely make a difference in practice. For one, presidential orders carry the presumption of legality, and the launch options contained in the nuclear briefcase—the satchel that follows the president and contains the information and equipment needed to order a nuclear launch—are vetted to ensure they follow US interpretation of the Law of Armed Conflict. And if senior officials do feel empowered to refuse an order they deem illegal, that assumes (a) they are part of a deliberation, (b) the president doesn’t bypass or dismiss them, and (c) they don’t then work to find an alternative “legal” nuclear launch order.
Further down the chain of command, the order to use nuclear weapons becomes nearly impossible to refuse on the basis of legality. Concerns are presumed to be worked out before the order is given. Nuclear missile launch crews located in underground silos spread across the West and great plains practice the launch procedures until they are routine. Because of the way nuclear missiles are postured, any delay in the launch process could mean the destruction of US missiles by an incoming adversarial strike.
Theoretically, the legal check could work better in times of relative peace. If today the president ordered a nuclear attack on the United Kingdom, for instance, its clear illegality would make that order highly unlikely to be followed. But in the fog of tension or conflict with a non-allied country, if the president starts the nuclear launch process, who will be available for consultation? What if a nuclear launch order isn’t clearly illegal, but it is an extremely misguided call—one with disastrous global consequences? What if a nuclear launch order is deemed illegal by, say, the Chair of the Joint Chiefs, but not other high-ranking military officers? Can a refusal become a violation of military code to obey legal orders if officials disagree?
The Trump dilemma is not limited to Trump. In 2017, the Senate Foreign Relations Committee, concerned about President Donald Trump, convened a hearing on the nuclear launch process. The witnesses did their best to provide assurances that the requirement for the military to refuse an unlawful order was a sufficient check on presidential authority. When asked what would happen should the head of Strategic Command (which oversees US nuclear-armed forces) deem a nuclear launch order illegal, former Head of Strategic Command Gen. (ret.) Robert Kehler responded “You’d be in a very interesting constitutional situation.” Brian McKeon, a senior defense policy advisor, went on to say the president would ask his secretary of defense to execute the order. If there was still resistance “you either get a new secretary of defense or get a new commander.”
Witnesses at that hearing also warned against making rash changes in reaction to one president’s perceived instability. But the concerns about Trump at the end of his term as president were very real to Milley. In a call with House Speaker Nancy Pelosi, Milley agreed with her assessment that the president was “unstable,” the election having taken a toll. Worried about what that meant for US national security, specifically the country’s fraught relationship with China, and constrained by constitutional barriers on the separation of powers, Milley decided to take action that was, in the view of many experts, technically illegal.
In addition to assuring his Chinese counterpart Gen. Li that the US was “100 percent steady” and would not attack China, Milley called a meeting of senior officers and made sure each one understood that he was to be involved in any nuclear launch order coming from the president. He was caught between a rock and hard place—maintaining a clear chain of command is pivotal to the stability of the nuclear launch process but ensuring an irrational president doesn’t start a nuclear war is essential. While Milley’s actions are laudable, the system in place to order a nuclear strike also made them at least arguably unconstitutional.
As much as the Trump presidency brought attention to the nuclear launch process, who is in office is not the issue. Literature on the US president’s “sole authority” to launch a nuclear attack often pins the danger in maintaining the current process on the possibility of electing an irrational, volatile leader. Having a level-headed, reasonable commander-in-chief certainly helps mitigate the risk of nuclear weapons use. But the way US nuclear forces are postured creates time constraints and immense pressure on any president to order a nuclear strike on warning of an incoming enemy attack before it reaches US missile silos—even though history is replete with false warnings of such an attack. The responsibility for such a decision is too much to place on any one individual.
While nuclear weapons exist, it is the responsibility of leaders in the United States and other nuclear-armed countries to ensure that every possible step is taken to reduce the risk of nuclear use, including restraints on presidential power. One step the United States should take is to commit to never using nuclear weapons first in a conflict. A legally-binding no-first-use commitment—through congressional legislation or a multilateral treaty—would make a nuclear first-strike order illegal, drawing a clear line for US military officers. To strengthen the credibility of such a commitment, and relieve pressure on the president, the United States should take all nuclear weapons off alert.
The United States should also end the president’s sole authority to order the use of nuclear weapons. Experts and members of Congress have proffered a number of options for expanding the number of officials who must agree for nuclear weapons to be used. Richard Betts and Matthew Waxman suggest adding the Secretary of Defense and Attorney General to the process—the former to verify the order comes from the president, the latter to verify the order is legal. Sen. Edward Markey and Rep. Ted Lieu introduced a bill requiring a declaration of war by Congress that explicitly authorizes the use of nuclear weapons. Others have suggested sharing authority with a select group in Congress, consulting allies when possible, and strengthening the system for verifying an order is lawful.
In the end, no meaningful action came from the 2017 Senate hearing, the nuclear launch system stayed the same, and, three years later, Milley reportedly took the extraordinary step of inserting himself into a presidential decision. Revelation. Surprise/Concern/Outrage. Discussion. No Change. Repeat. It’s a cycle with which the United States is familiar, and one it is imperative to break.
Nuclear risk-reduction advocates often point out how much luck plays a role in preventing nuclear weapons use. It was luck that Milley was in the position and made the decision to step in, whether or not you agree with his actions. Just as much as the problem isn’t about one person, the solution cannot rest on the hope of one person stepping up. Both Biden and Congress should determine the best option for revising the system and implement steps to end presidential sole authority over the use of nuclear weapons as soon as possible. Refusing any changes to the current nuclear launch system unnecessarily sustains the unacceptably high risk of nuclear war and keeps the US in a dangerous cycle, hoping we’re around to rehash the conversation and witness politicians get it right the next time.
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The claim here that the president retains "sole authority" to order a nuclear attack is not true. According to Daniel Ellsberg's The Doomsday Machine: Confessions of a Nuclear War Planner (2017, Bloomsbury, ISBN 978-1608196708), this has not been true for almost 50 years: Eisenhower secretly delegated nuclear attack authority to military base commanders, and no president since has revised or cancelled those nuclear attack delegations. Further, he believes that every country with nuclear weapons [9 currently] almost certainly has likewise delegated broadly the authority to respond to an apparent nuclear attack to area commanders.