The Danger of Tampering with America’s Nuclear Command and Control System

America’s command and control system has operated in a way that has helped deter the use of nuclear weapons for more than seventy years.  However, over on Lawfare, Professors Richard Betts and Matt Waxman are now offering a proposal to change that system by what they describe as “introducing checks into the process for nuclear first-use.”  While I applaud their effort to improve the system, I counsel caution at tinkering with what has worked so well for so many decades.

Why? I’m concerned that the significant alterations to the system they propose, however well intended, might create misperceptions that could cause an adversary to miscalculate America’s ability to respond in a nuclear situation, and that could lead to catastrophe for our Nation and the free world.

No doubt Professors Betts and Waxman (both of whom I respect greatly) were inspired to offer their proposal by the recent controversies involving active and retired officers talking about refusing to obey an illegal order to launch nuclear weapons.  Ironically, there is nothing new about the military being obliged to refuse illegal orders.  In a post last March I discussed the nuances of that obligation in a related context (“Have Presidents ever given the military illegal orders?  Yes; the surprising list…and more about the law of military orders”), and I strongly urge you to read that essay in connection with this one.  Here I want to concentrate on the Betts/Waxman proposal.

Professors Betts and Waxman appear to be especially concerned about what they describe as “a potential decision to initiate use of nuclear weapons without good cause.”  Yet they also say the checks are “not just to limit the commander-in-chief’s power but also to ensure it.”

As someone who served repeated tours in nuclear operations’ commands – including a tour as the senior lawyer at U.S. Strategic Command – I respectfully disagree with their idea, and  I’ll explain why.

Professors Betts and Waxman state that their proposal:

“[R]equires in addition to authentication of the president’s order, certifications from the secretary of defense or designee that the order is valid (definitely from the commander in chief) as well as from the attorney general or designee that it is legal.  Criticism that this procedure could dangerously lengthen the authorization process would be misplaced, since the requirement would not apply under conditions of enemy attack.”

At the outset it’s important to understand, as former Secretary of Defense Ash Carter said very recently, that in his experience the nuclear command and control process is:

“[A] deliberative process that involves the secretary of defense — the principal adviser to the president on these matters — the chairman of the joint chiefs of staff and others in the chain of command, but also the secretary of state, the national security adviser, the director of national intelligence, the director of CIA – that’s the way it’s set up, and there’s a discussion, and an exploration of all the options….. There is a process, a consultative process, and that is the way things always work, that’s the way they’re set up to work.”.

However, the Betts/Waxman proposal goes much beyond that process by imposing explicit legal requirements for certifications.  In my opinion, the notion that Congress can mandate the interposition of controlling opinions by unelected Executive Branch officials into the President’s Commander-in-Chief power in the way Professors Betts and Waxman propose is extremely problematic from several perspectives, including a Constitutional one.

All the Attorney General or the Secretary of Defense would need to do to eviscerate the President’s authority would be to withhold a certification. The President (not the unelected civilians Matt and Richard want to give what would essentially be veto power over his Article II use of force decisions) is the Executive Branch official ultimately responsible for ensuring the common defense.

Let’s not forget that in the Prize Cases the Supreme Court said the President “does not initiate the war, but is bound to accept the challenge without waiting for any special legislative authority.”  In my view, a President needs the authority to quickly take action to “accept the challenge” that nuclear weapons can uniquely pose.  The fact is that the delivery systems for nuclear weapons can give an adversary the ability to translate ideological hostility into military action very rapidly, which leaves little time for the President to exercise his Constitutional responsibility to provide for the common defense.

The Betts/Waxman proposal attempts to circumvent that issue by saying that their requirements “would not apply under conditions of enemy attack” – but what does that mean?  Does the exception for “conditions of enemy attack” include the widely-accepted concept of anticipatory self-defense?  If so, the threshold question as to whether or not facts excepting the application of the Betts/Waxman qualify for anticipatory self-defense could itself trigger a dispute.  Dithering about the very applicability (or not) of the requirements Professors Betts and Waxman seek to impose could – notwithstanding their denials – “dangerously lengthen the authorization process.”

It’s not hard to understand why there can be disagreement as to whether anticipatory self-defense arises in a given circumstance.  In their December 2016 Report on the Legal And Policy Frameworks Guiding The United States’ Use of Military Force and Related National Security Operations, the Obama Administration did what I think was an excellent job in listing the factors which are considered in finding a lawful basis for anticipatory self-defense:

These factors include “the nature and immediacy of the threat; the probability of an attack; whether the anticipated attack is part of a concerted pattern of continuing armed activity; the likely scale of the attack and the injury, loss, or damage likely to result therefrom in the absence of mitigating action; and the likelihood that there will be other opportunities to undertake effective action in self-defense that may be expected to cause less serious collateral injury, loss, or damage.… Finally, as is now increasingly recognized by the international community, the traditional conception of what constitutes an “imminent” attack must be understood in light of the modern-day capabilities, techniques, and technological innovations….(Emphasis added).

Obviously, these factors can involve complex fact assessments about which reasonable people can differ.  How would conflicting judgments be resolved in a crisis if not by the Commander-in-Chief?

Do we really want the Attorney General to have the power to countermand the President’s assessment of the facts, and then use his own idiosyncratically-derived set of facts to base a legal conclusion?  What if the President, the secretary of defense, and the military all agree that the Attorney General is wrong about the facts?   The Betts/Waxman proposal doesn’t address let alone resolve such a not-unimaginable scenario.

An anticipatory self-defense issue could also be extremely time-sensitive.  Consider that the Obama anticipatory self-defense doctrine (rightly) includes an estimation of the “likelihood that there will be other opportunities to undertake effective action in self-defense” (or to put it another way, the ‘window of opportunity’) as a factor in determining if the necessary imminence exists.  Couldn’t reasonable minds differ as to that, and as to how much weight to give it?  Again, should a single, unelected actor be able to jeopardize the nation’s security because his or her legal opinion is underpinned by a subjective factual assessment that they may be less qualified to make than defense civilians or military officials or even the President?

If Professors Betts and Waxman exclude anticipatory self-defense cases from their process, couldn’t there still be arguments that a particular situation did not meet the exclusion criteria, and that their multiple-certification requirements regime nevertheless had to be applied as a matter of the law as they propose?  How would that dispute be resolved in a crisis where the ‘window of opportunity’ to foreclose an enemy attack could close in literally minutes?

Professors Betts and Waxman also fear the nuclear authentication procedure could be compromised, and insist that their proposal is a remedy. I believe that there are already secure and redundant features to the existing command and control capabilities.  In any event, their solution is to triple an enemy’s opportunity to corrupt the process by requiring not just the President’s authorization, but two other certifications.  Under the Betts/Waxman proposal the absence of any one of the certifications would bring America’s ability to act in self-defense to a grinding halt.

There are practical issues as well.  If, as Professors Betts and Waxman suggest, “malign cyber hackers” might manage to “somehow to penetrate the command system,” how would we know if it really was the Attorney General who was declaring a course of action illegal?  How would we be sure his certification (or non-certification) wasn’t compromised in some way?  And similar issues arise with respect to the Secretary of Defense under the Betts/Waxman scheme.

They also seem to suggest that their proposed requirements would come into play only when, in their opinion, the President wanted to launch an attack “without good cause.”  They argue that their approach would avoid a situation where “officers might refuse to comply, either doubting the order’s authenticity or resisting it on moral or other grounds.”  (Again, I believe the procedures in place would not give cause to military officers to doubt Presidential authentication and, in any event, tripling the number of authentications as the Betts/Waxman proposal requires would only exacerbate the problem.)

Moreover, the notion that officers could lawfully disobey an order on “moral or other grounds” misapprehends military law.  Specifically, the Manual for Courts-Martial provides that “the dictates of a person’s conscience, religion, or personal philosophy cannot justify or excuse the disobedience of an otherwise lawful order.”  (The Manual, by the way, is not a Trump invention; it is an Executive Order prescribed by law, and this particular provision has been in it for as long as I can remember).

It is, of course, absolutely true that the military must not obey an unlawful order.  That irrefutable principle is not unique to this or any other administration.  That said, the Manual implicitly recognizes the military’s responsibilities to be, as the Supreme Court put it, constantly prepared to “fight or be ready to fight wars should the occasion arise.”  Consequently, it’s entirely foreseeable that the exigencies of military situations may not present much – or even any – opportunity to question orders.  Accordingly, the Manual puts the obligation this way:

An order requiring the performance of a military duty or act may be inferred to be lawful and it is disobeyed at the peril of the subordinate.  This inference does not apply to a patently illegal order, such as one that directs the commission of a crime. (Emphasis added.)

This issue of “patently” illegal orders was discussed by the all-civilian Court of Military Appeals in the case of Lt. William Calley, the infamous commander in the Vietnam era My Lai massacre.  The court cited with approval this quote from Colonel William Winthrop (1831-1899), who the Supreme Court called the “The Blackstone of Military Law”:

But for the inferior to assume to determine the question of the lawfulness of an order given him by a superior would of itself, as a general rule, amount to insubordination, and such an assumption carried into practice would subvert military discipline.  Where the order is apparently regular and lawful on its face, he is not to go behind it to satisfy himself that his superior has proceeded with authority, but is to obey it according to its terms, the only exceptions recognized to the rule of obedience being cases of orders so manifestly beyond the legal power or discretion of the commander as to admit of no rational doubt of their unlawfulness . . . (Emphasis added.). 

The court in Calley’s concluded that even if he received an order to kill innocent women and children, such an order would be palpably illegal.  It found that “[w]hether Lieutenant Calley was the most ignorant person in the United States Army in Vietnam, or the most intelligent, he must be presumed to know that he could not kill the people involved here.”

In the Calley case it was easy to determine that the supposed order was patently illegal, but in rapidly developing situations where even momentary hesitation can mean death and defeat, the inference of legality is essential.  And the Supreme Court seems to recognize this.  In the landmark 1974 case of Parker v. Levy, the Court cited with approval the 1890 case of In Re: Grimly for the proposition that:

An army is not a deliberative body. It is the executive arm. Its law is that of obedience. No question can be left open as to the right to command in the officer or the duty of obedience in the soldier.

Similarly, in the 1983 case of Chappell v. Wallace the Supreme Court noted:

The inescapable demands of military discipline and obedience to orders cannot be taught on battlefields; the habit of immediate compliance with military procedures and orders must be virtually reflex, with no time for debate or reflection. (Emphasis added.)

So, sure, a military commander must refuse to obey an order if he or she really believes it is unlawful (as opposed to just unwise), but even a certification by the Attorney General of “lawfulness” would not change the basic responsibility to disobey orders a military commander actually knew to be illegal.

At the same time a conclusion by an official subordinate to the Commander-in-Chief that, for example, there was merely an absence of “good cause” for the president’s order, would not mean the order was, ipso facto, illegal.  The absence of “good cause” does not, in my view anyway, automatically equate to illegality, let alone patent illegality.

Why?  Consider Professor Peter Feaver’s observation in Armed Servants: Agency, Oversight, and Civil-Military Relations, his classic study of civil-military relations:

In a democracy, civilians have the right to be wrong.  Civilian political leaders have the right to ask for things in the national security realm that are ultimately not conducive to good national security.  The military should advise against such policies, but the military should not prevent those policies from being implements.  (Emphasis added).

Feaver has arguably retreated a bit on that proposition, but I don’t think any democracy should want its military disobeying a lawful order simply because they think it is, as Peter puts it, “unwise policy.”  Back in 2010 when a Marine officer wrote an article suggesting that there were times when the military ought to defy lawful orders, Professor Dick Kohn, the dean of historians of American civil-military relations responded.  Calling the article a “mush of assertions and opinions,” Kohn characterized it as “an attack on military professionalism that would unhinge the armed forces of the United States.”  Among Kohn’s many critiques were some very practical observations:

How would an officer know all the considerations involved, and by what authority or tradition is it legitimate to violate the will of the people’s elected or appointed officials?  Against what standard would even the most senior officer judge?  Whose morality, whose definition of what’s good for the country, a service, or subordinates?

In any event, Professors Betts’ and Waxman’s proposal also invites this troubling scenario: what does the military do if the Attorney General and the Secretary of Defense tell the armed forces that a President’s countermanding order to ‘stand down’ is unlawful because there was “no good cause” for it?  And that because of the purported unlawfulness of the President’s ‘stand down’ order the Attorney General and the Secretary of Defense demand the military proceed with a nuclear strike?  Is this the sort of dilemma we want those in uniform to face?

So what are the options?  If Professors Betts and Waxman are positing a scenario where a president is genuinely mentally unfit, the 25th Amendment (or impeachment) is the only Constitutional option.  It really is that simple.

Again, I congratulate Professors Betts and Waxman for thinking about ways to improve nuclear command and control, but I am concerned that their proposal has unintended and profoundly negative potential for American security.  America’s robust and secure command and control system for nuclear forces has been an effective pillar of our security for many decades, and – importantly – no adversary has chosen to challenge it.

Make no mistake about it, if an enemy thinks our nuclear command and control system has been bureaucratized into something unable to react with the necessary swiftness, he may believe he has an opportunity to strike – and the potential for such a tragic miscalculation could quickly materialize at the worst possible moment.  Writing in the American Thinker this week, Rick Moran was critical of the way one of the generals discussed the issue.  Moran says:

If [a President] were to order a launch on Switzerland or some other nation not threatening the US, it is barely fathomable that the general would have a point.  But that’s not even a remotely realistic scenario.  All the general succeeded in doing was to dangerously place doubts in the minds of adversaries like Kim Jong-un who might entertain the fantasy that he could get away with launching a nuclear missile at the US or our allies. (Emphasis added.)

There is no doubt in my mind that the general did not intend to generate the controversy he did simply by discussing the military’s bedrock principle of obedience only to lawful orders.  Part of the problem is that the discussion can be complex and nuanced, and not fully relatable in sound bites.  Another part is the hyper-partisan world in which we live.

Regardless, while we always need to look for ways to do things better, we also need to be very careful about changing a command and control system critical to our national survival that has proven to be so effective that no adversary has dared to challenge it.  We must avoid doing anything that would remotely suggest to any opponent that he has any chance of success against our nuclear deterrent.

As we like to say on Lawfire, get the facts, consider the law, and decide for yourself!