[Editors’ note: At the one-year mark of the Biden administration, Just Security invited authors of the Good Governance Papers – originally published in October 2020 – to provide brief updates on their Papers, which explored actionable legislative and administrative proposals to promote non-partisan principles of good government, public integrity, and the rule of law. For 2022, authors were invited to evaluate the Biden administration and/or Congress and, where applicable, to provide additional recommendations. For more information, please read the introductions to the original series and the update series.]
This article discusses issues and recommendations originally outlined in Good Governance Paper No. 20: Repairing and Strengthening Norms of Nuclear Restraint.
In November 2020, in Good Governance Paper No. 20, I urged Congress to pass a statute to reduce the potential for the president to order reckless, unwarranted, or otherwise illegal use of nuclear weapons. The insurrection of Jan. 6, 2021, and the hours and days that followed laid bare the risks inherent in the status quo of nearly unchecked presidential power regarding the Bomb. Alongside January 6th’s crisis of democracy, a nuclear command and control crisis played out in a remarkable series of conversations involving the speaker of the House, the chairman of the Joint Chiefs of Staff, and other senior military officers.
More than a year after the insurrection, Congress has not acted to statutorily structure the nuclear launch decision-making process in a way that reduces the risk of a president ordering an atomic atrocity, while still allowing a rapid presidential decision in a true nuclear emergency. Congress should act before memories fade and the nation potentially again confronts the prospect of a president with nuclear launch codes who is willing to act against the law and best interests of the country for their own personal benefit.
The Nuclear Command Crisis of January 2021 – and Ghosts of Nixon
On Jan. 6, 2021, then-President Donald Trump inspired a massive crowd of far-right militias and other supporters to assault the Legislative Branch of the federal government and prevent it from certifying election results as required by the Constitution. Senator Mitch McConnell, then Senate Majority Leader and now Minority Leader, has accurately described the attack as “a violent insurrection for the purpose of trying to prevent the peaceful transfer of power after a legitimately certified election from one administration to the next.” As members of Congress and his own vice president were evacuated and blood was shed at the Capitol, the president was publicly silent for hours despite widespread pleas to call off the attack and deploy the National Guard. According to firsthand accounts, the commander-in-chief exulted as he watched his supporters on television violently attack the Capitol. Repeating the Big Lie of a stolen election that motivated the assault, Trump only reluctantly issued a half-hearted call late in the day for the “very special” assailants to “go home.”
The January 6th insurrection presented a very real threat to the nation’s nuclear command and control system. The rioters erected gallows for the vice president and hunted the halls of the Capitol for him and for the speaker of the House, forcing their just-in-time evacuation along with the Senate leadership. In this way, the insurrection placed in mortal peril the second, third, and fourth designated successors to the presidency under the Constitution and statute. Evacuated along with Vice President Mike Pence – mere feet from a violent mob that had overwhelmed police and entered the Capitol – was the vice president’s nuclear “football” containing nuclear launch codes and communication equipment.
Presidential succession was no idle question. Trump’s course of conduct raised imperative questions about his capacity to do the job of president. Both of the Constitution’s processes for removing a president – impeachment and removal by Congress, and removal by the cabinet under the 25th Amendment – were the subject of intense discussion among senior government officials that day and in those that followed. There were many calls for the president’s resignation, and multiple cabinet members resigned in protest. Had the January 6th attack been only slightly more violent and rapid – for example, if the Capitol Police and the militias as they fought had employed the guns they were carrying, or if the mob had overwhelmed the Capitol before the leadership’s last-minute evacuation – then the attack could foreseeably have resulted in the deaths or abduction of the top three presidential successors and loss of control of a nuclear “football.” These events may have been enough to prompt cabinet removal of the president on Jan. 6 or his snap congressional impeachment and removal. A traumatized nation could have awoken on Jan. 7 to a cabinet member as acting president and the nation’s most sensitive secrets – launch authorization codes and nuclear war plans inside the “football” – in the hands of a crazed mob. The insurrectionists would not have been able to conduct an unauthorized launch, but the risk of revelation of classified information central to nuclear deterrence and the blow to confidence in the nation’s ability to be responsible custodians of nuclear forces would have been staggering. Adversaries worldwide would surely have questioned the ability of a country and government thrown into chaos to make decisions of sufficient quality and timeliness to protect our nation, allies, and interests. An irresponsible politician and the violent sedition he inspired came terrifyingly close to producing this presidential succession, nuclear command and control, and overall national security catastrophe.
These nightmares were narrowly avoided, but another terrible prospect loomed: what else might be attempted by a defeated president so desperate to retain power that he had already foreseeably inspired a mob to assault Congress?
As China’s leaders had apparently worried in the days before the election, would the defeated commander-in-chief now initiate a foreign military conflict to distract the American public and pose as their protector? Might Trump see a concocted foreign crisis prior to inauguration day, to include threatening or launching U.S. nuclear weapons, as a rationale for wild and illegal actions to delay his departure from office or overturn the election? Based on multiple accounts, we now know that ideas under discussion in the Oval Office during the presidential transition included invocation of the Insurrection Act, illegal seizure of voting machines and ballots by the military or other federal forces, and imposition of martial law.
Many recalled the last time a presidency so completely fell apart, and the nuclear element of that crisis. In the time leading up to his resignation, President Richard Nixon – depressed about the Watergate scandal and often mixing alcohol and drugs – reportedly told Secretary of State Henry Kissinger that “we’ve got to nuke Vietnam.” This inebriated instruction recalled a reported similar incident earlier in his presidency, regarding North Korea. Secretary of Defense James Schlesinger is said to have told military leaders not to execute any orders by the president, particularly nuclear orders, without first consulting him.
Whether or not these second-hand accounts are accurate, they are plausible in view of Nixon’s mental state and his aides’ concern. That plausibility raises legitimate and enormously worrisome questions about the vast authority the nuclear command and control system provides to one very human president. Half a century later, these questions were urgent again.
The Speaker’s Call, and the Chairman’s Response
On Jan. 8, 2021, House Speaker Nancy Pelosi called the chairman of the Joint Chiefs of Staff, General Mark Milley, to express concern that Trump might recklessly initiate a military conflict, including use of nuclear weapons. Attempting to reassure the speaker, the chairman emphasized that the military would follow a set of Executive Branch directives, a good number of which are classified. Milley said that these administrative rules would ensure a careful decision process and not allow an unnecessary, immoral, or unlawful nuclear strike.
The classified administrative directives – the Executive Branch’s secret law regarding nuclear decision-making – are built around presidential directives that can be modified or rescinded by the president at any time, in secret, and without waiting for notice to be provided to Congress, the Pentagon, the public, or anyone else.
Perhaps for that reason, the record suggests that Milley was reportedly not completely confident that existing classified administrative procedures would check Trump in the event the commander-in-chief attempted a reckless, unwarranted, or otherwise illegal use of force.
The JCS chairman reportedly followed Schlesinger’s precedent and instructed officers in the National Military Command Center not to transmit presidential orders before consulting him first. This came on the heels of Milley’s well-reported worry that Trump would manufacture a crisis — “a Reichstag [fire] moment” — to justify military orders or other wild actions that would enable his continuance in office. Milley reportedly coordinated with the full Joint Chiefs of Staff, making plans for sequential resignations if the defeated president were to ignore their advice and issue reckless or illegal orders. Milley’s public account in a written memorandum for the record about the Pelosi call and the events surrounding it (issued months later) is more circumspect, stating that “[a]t no time was I attempting to change or influence…or insert myself into the chain of command,” but that as JCS chairman he is in the nuclear “chain of communication.” As in the Nixon/Schlesinger case, the simple plausibility of Milley’s reported actions raises serious concerns about the nuclear command and control system.
Schlesinger-ing Analyzed: Constitutional Law, Congressional Silence, and the Nuclear Command and Control System
Nixon reportedly forgot about his drunken nuclear strike instructions, and Trump never attempted to issue them. We therefore do not know whether Milley’s reported Schlesinger-ing to reinforce untested administrative procedures would have thwarted a commander-in-chief intent on an unjustified nuclear launch.
Expansive presidential power to use nuclear weapons is a reality for reasons of constitutional law and congressional silence, together with technology and norms dating to the Cold War.
Although the Justice Department has made clear that a war that does not respond to an initiated or imminent adversary attack would require a congressional war declaration or statutory authorization, under the longstanding “repel attacks” doctrine the president has considerable latitude under Article II of the Constitution to initiate use of military force to defend against imminent threats. Courts are deferential about use of force and the president’s military judgments. Congress has not defined imminence in statute, nor statutorily structured the decision-making process for nuclear forces as Congress has done for highly classified covert action and foreign intelligence surveillance. And it would all but surely take Congress longer to convene to consider authorizing or prohibiting nuclear use – much less for a suit to be properly brought and reach the Supreme Court – than it could for a fast-moving president to reach for the nuclear “football.”
The launch codes in the “football” and its communication gear are the commander-in-chief’s link to the nuclear weapons that the U.S. military has maintained launch-ready since the Cold War. The United States’ nuclear launch system was shaped by the four-decade standoff with the Soviet Union, when the nation’s nuclear forces were first deployed on 24/7 alert. The nuclear command and control system (NCCS) was designed around the idea that maintaining nuclear deterrence requires presidential ability to launch nuclear weapons fast enough to prevent a surprise Soviet first strike from succeeding in disarming and decapitating the U.S. government before a U.S. retaliatory strike can be launched.
Although U.S. nuclear strikes are not automated – the president would need the help of other humans to transmit orders and launch warheads – the president-centric NCCS requires no formal “second vote.” Milley and other Pentagon officials expect that any nuclear order would follow a secure conference call including top Executive Branch officials, during which intelligence on the threat, U.S. force posture, an array of strike alternatives, and their legality would be carefully considered. But there has never been such a real conference. There are no constitutional or statutory requirements that one take place, nor that the secretary of defense, the chairman of the Joint Chiefs of Staff, lawyers, or anyone else be consulted at any point. The president could at any time try to go around them – to say that he is waiving the administrative procedures cited by Milley, request the “football” from his military aide, select a nuclear strike option from the menu, and transmit it to the National Military Command Center at the Pentagon or to the U.S. Strategic Command. Presidential orders are presumed legal, and under military law soldiers may only disobey plainly illegal orders. As I have written, a reasonable question is whether a presidential launch order might fall into a worrisome grey zone: ambiguously legal, potentially illegal if carefully analyzed, but in a moment of presidentially-manufactured urgency perhaps not “clearly illegal” or “manifestly unlawful.”
JCS Chairman Milley and other top civilian and military officials have said that they will proceed with only legal orders. In that context, Schlesinger-ing can be understood functionally as an effort to ensure that presidential orders are routed to the secretary of defense and/or chairman of the Joint Chiefs before they go to the field. Once received by land-based missile or submarine crews, encoded orders are authenticated and executed immediately, without review of the intelligence and legal considerations informing the president’s decision. Missiles in flight cannot be recalled. Schlesinger and Milley evidently wanted to ensure opportunities at the very least for them to know about a launch order and assess for themselves the threat intelligence and legality. That would in theory allow a chance for them to dissuade the president, convince the president to modify the order to make it legal, or delay the order’s dissemination by refusing to transmit it and if necessary be fired or resign. Delay and/or heads rolling at the top of the Pentagon’s leadership would hopefully, in turn, provide time and notice for other actors with influence on the president to swing into action.
Lacking tried-and-true decision process norms regarding nuclear weapons, and in view of the president’s constitutional authority and potential that s/he could try to vitiate or go around procedures grounded only in Executive Branch administrative directives, today we simply do not know for certain how the nuclear use decision process would unfold in reality. We can speculate and we can hope, but we cannot know whether the classified directives cited by Milley or his reported additional Schlesinger-ing would stop a president intent on an unwarranted or otherwise illegal nuclear strike.
Congress Can and Should Insist on “Good Process” Nuclear Decision Norms
As I have explained in the Journal of National Security Law and Policy, the nation faces three potential nuclear nightmares at the intersection of the president and the Bomb. The first is a suddenly initiated or temporally imminent adversary nuclear attack. In this situation – and most importantly to deter adversary attack – the law and technology of the system need to provide the president the ability to launch nuclear weapons before adversary warheads destroy U.S. nuclear forces on the ground and/or decapitate the U.S. government. The second and third nuclear nightmares are what Pelosi, Milley, and the other Joint Chiefs feared a year ago. One is a “precipitous president” – a commander-in-chief who bypasses advisors and intelligence to impulsively order nuclear use where there is an ambiguous foreign threat, but the necessity and legality of nuclear use are highly questionable. The third nuclear nightmare is a “rogue president” who calls for a nuclear strike – for atomic mass murder – out of the blue, without any factual predicate or legal justification. Both the second and third nuclear nightmares call for statutory guardrails on presidential decision latitude that do not yet exist.
It has been conventional wisdom for decades that Congress cannot do anything about potential precipitous or rogue presidents. That unexamined assumption stems from a necessity for rapid presidential decision dating to the Cold War, from an Executive Branch legal culture that takes a strong view of presidential authority, and from Congress’s long silence on nuclear use.
But, as I made clear in my article, the conventional wisdom is wrong. In Good Governance Paper No. 20, I wrote:
Just because Congress has not written [a statute on nuclear use decision-process] to date does not mean it cannot do so, and indeed there is a strong originalist and doctrinal case for the constitutionality of [such a statute]. The Framers’ vision was one of shared power by Congress and the President. Article I of the Constitution gives Congress the power to create and structure the armed forces, write “Rules” for their “Government and Regulation,” declare war, write such laws as are necessary and proper to bring into effect the powers of the government, and to control all spending – including a default of elimination of the army unless every elected Congress funds it….The second half of the republic’s history has seen increasingly frequent articulation of an executive power view that Congress can place virtually no limits on the President’s uses of the forces Congress provides, but this viewpoint is not well supported by the originalist evidence or our constitutional history.
Indeed, “the case for the constitutionality of a statute regarding nuclear decision-making has grown stronger in recent decades.” That is thanks to Supreme Court wartime affirmation of a line of precedents dating to the Founding Era in which the Court has upheld Congress’s constitutional powers over those of the commander-in-chief, compelling recent scholarship that has added to the weight of the Founding Era originalist evidence and constitutional history favoring Congress’s legislative powers, changes in the international security environment that make the most likely nuclear use scenarios look more like carefully planned counterterrorism raids than rapid escalation to potentially world-ending superpower nuclear war, and “by decades of thick practice precedent (constitutional ‘gloss’) around national security legislative frameworks that provide statutory guardrails to prevent abuse of presidential power, ensure accountability to the elected representatives of the people, and promote good process (specifically, the covert action statute and Foreign Intelligence Surveillance Act (FISA)).”
Therefore,
Congress can and should write a decision process statute for nuclear weapons…[one that] would preserve rapid presidential decision in the face of initiated or truly imminent adversary nuclear (or WMD) attack, while also building norms that would reduce the risk of an unwarranted or impulsive launch where the nation does not truly face an imminent threat. The latter can be accomplished through well-established congressional powers of legislating use-of-force criteria, assigning roles, defining terms, creating reporting requirements, and establishing other accountability mechanisms that foster “good process” expectations. Without intruding in any formal way on the president’s constitutional powers, the statute would exercise Congress’ constitutional powers to reduce the risk that a rogue or precipitous president could order an atomic atrocity.
Read my article in the Journal of National Security Law and Policy and Good Governance Paper No. 20 for detailed descriptions of the Nuclear Forces Control Act I that recommend, and a full draft bill.
Recent Legislative Proposals and the Nuclear Forces Control Act
In the year since the January 6th insurrection and its nuclear command and control crisis, legislation has been introduced in the House and Senate that would bar use of nuclear weapons without a declaration of war unless the U.S. has been attacked with nuclear weapons. There are good arguments pro and con about these bills. They would reduce the precipitous and rogue president risks. But they do not allow the president to shoot first if an adversary nuclear launch appeared legitimately imminent (and therefore would plainly impinge on presidential authority to take preemptive military action to defend the country before Congress has time to meet). Whether or not Congress sends the president such no-first-use legislation (which looks unlikely), Congress can and should enact the decision process statute I recommend.
The statute I have drafted, the Nuclear Forces Control Act, would essentially put the force of public law behind “good process” expectations regarding nuclear decision-making, rather than leaving them entirely to Executive Branch secret law and other administrative directives vulnerable to presidential waiver. As I wrote in Good Governance Paper No. 20,
the statute codifies the nuclear use doctrine of the Obama and Trump Administrations: nuclear weapons can be employed only in “extreme circumstances” to defend “vital interests.” Today, an unhinged President could waive this policy at will. Also, nuclear weapons may be used only where some other legal authority exists for their use [this statute does not itself authorize nuclear use], use is necessary and legal under the law of armed conflict, and then only in two circumstances: (i) where an adversary nuclear attack is imminent, or (ii) where an adversary attack is not imminent and options and implications have been fully evaluated and nuclear use is the only way to deal with a gathering threat.
In short, the statute would put statutory authority behind expectations that any nuclear use where adversary missiles are not in the air would get at least as much careful, secure deliberation – including legal review – as the raft of presidentially-authorized high-stakes raids that have killed Usama bin Laden and other top terrorist leaders. For everyone in the nuclear command and control system, ambiguity about how the process is supposed to work and concern that the president could circumvent rules and advisors would be reduced. That would obviate the need for the Schlesinger-ing reported during the Nixon and Trump administrations.
Importantly, the draft statute does not reduce one bit the president’s ability to respond to a sudden threat, nor intrude on the core powers of the commander-in-chief recognized by courts and the majority of scholars. It does not displace the president from that role, give launch authority to anyone else, nor require a formal “second vote” from other officials or any congressional leader or committee.
Instead, the statute leverages Congress’s expansive legislative powers over Executive Branch personnel – the president’s subordinates in the nuclear command and control system. The draft law signals clearly to subordinates that they cannot participate in violation of the statute, must securely report to Congress whenever nuclear use is imminent, and need to be ready to push back or quit if the president is trying to evade “good process” where time for careful review exists. Again, Good Governance Paper No. 20:
The statute borrows from the Posse Comitatus Act and FISA criminal penalties for participation in the statute’s violation. If Congress were concerned about pardon-dangling, it could include a FISA-like civil penalty, too. [The statute also creates reporting requirements for] the Director of National Intelligence, Secretary of Defense, Chairman of the Joint Chiefs of Staff, and Commander of the U.S. Strategic Command – the four subordinates who would know the threat situation the best, and three of whom could transmit a launch order – notify congressional leaders anytime that in their own, independent assessment adversary nuclear attack is imminent. If the President is reaching for the button but an official with the best intelligence cannot in good conscience so report, it creates a process point for that official (and other policymakers and lawmakers) to realize that the President is on the wrong path and they need to push back – dissuade the President, resist bureaucratically in some way, or quit and sound the alarm.
Ultimately, the statute that I recommend would foster an additional kind of nuclear deterrence, or at least dissuasion: putting every president on notice from day one that an impulsive, unwarranted, or illegal launch is plainly barred by statute, and would likely not be assisted – and rather probably resisted – by the subordinates the president would need to carry it out.