Two misguided ideas that imperil America’s nuclear deterrence

As the Supreme Court tells us, “no governmental interest is more compelling than the security of the nation.”  Unfortunately, two prominent civilians – William Perry and Ambassador Thomas Graham – have each proposed separate changes to America’s nuclear deterrence policy that could put the security of not just our country, but also the world, in existential peril. 

As someone who served three different tours in units involved with the U.S.’ nuclear deterrent – including service as the senior lawyer at U.S. Strategic Command allow me to explain why I believe their proposals are so dangerous.

Of course, there is nothing wrong with re-evaluating nuclear deterrence policies, but where nuclear weapons are concerned, extreme caution is imperative before making any changes. 

We can’t forget that the processes both men want to change are an intrinsic part of an approach that has avoided the use of these uniquely devastating weapons for more than 76 years.  In my view, there is real merit in giving much consideration to the axiom ‘if it ain’t broke, don’t fix it.’

Let’s unpack their proposals so we can understand why they are so faulty.

William Perry’s proposal

The first proposal is from William Perry who served as the secretary of defense almost 25 years ago.  He wants to do something I think is extremely dangerous, that is, to tamper with America’s nuclear command and control system – a system that, in the end, has never failed us. 

Writing in the Wall Street Journal on Monday, Perry advocates an end to the President’s unilateral authority to order the use of nuclear weapons in self-defense, even in extremis.  Instead, Perry wants to substitute a policy calling for deliberation (of an undetermined length) as well as a tête-à-tête of some sort with “Congressional leaders” before using the weapons in any circumstances.  Here’s Perry’s way of thinking:

No president should have the sole authority to start a nuclear war.  The Constitution gives war-making responsibility to Congress, and launching a nuclear strike is certainly starting a war.

Perry says the decision “requires” both “serious deliberation” and “appropriate consultation.”  For sure, a President will certainly give the decision as much serious deliberation as he or she can under the circumstances, and would likely want to consult with others.  But Perry doesn’t have his Constitutional law quite right if he believes it actually “requires” consultation with anyone, or mandates a specific form of “deliberation.”

     The law

In the Civil War-era Prize Cases, the Supreme Court evaluated President Lincoln’s independent authority to use force.  The Court said the President is not only authorized but bound to resist force by force.  He does not initiate the war, but is bound to accept the challenge without waiting for any special legislative authority.”

Thus, Perry’s call for a policy “that allows for deliberation, including consultation with leaders in Congress” could not, in my view, be Constitutionally-mandated given that the President is “bound to accept the challenge” of a belligerent’s nuclear hostilities, particularly when they pose an imminent threat to the Nation’s very existence.

Furthermore, just last week the Congressional Research Service pointed out that: “The U.S. President has sole authority to authorize the use of U.S. nuclear weaponsThis authority is inherent in his constitutional role as Commander in Chief.”  (Emphasis added.)  Of course, the President can voluntarily choose to consult with whoever he or she wants, but neither the Congress nor the courts can require it.

The realities of nuclear weapons 

Legality is not the only problem.  As I say, while ideally every President should want to consult with all kinds of people before using nuclear weapons, the reality is the ‘enemy gets a vote’ and in a nuclear crisis, minutes can determine the fate of millions so it’s hardly unimaginable that a nuclear weapons’ use decision would have to made very rapidly and without consultation much beyond the military officers responsible for executing the President’s orders. 

Yet Perry dismisses out of hand the urgency that nuclear threats can present.  He does concede that a President may have “only minutes to decide” whether to act in a nuclear crisis (Graham puts the number at as little as six minutes). 

He nevertheless rather cavalierly asserts that the U.S. “can ride out” an attack before responding – even if the delay causes the nation’s intercontinental ballistic missile (ICBM) force to be destroyed because he believes we have “more than enough submarine missiles to respond with devastating force to any attack.”

There are so many things wrong with Perry’s proposal it is hard to know where to begin.  In the first place, the reason America maintains a nuclear triad is the risk of the emergence of a disruptive technology that may eviscerate one or more legs of the triad. 

In the case of submarines, there is considerable scientific effort being put into the tracking and detection of nuclear-capable submarines (SSBNs) so their survivability cannot be guaranteed, especially as we look to the years ahead.  

Moreover, why would an adversary not also attack the submarine and air legs of the triad?  As General John Hyten – the former commander of U.S. Strategic Command – explained, the loss of the ICBM force “would diminish U.S. offensive capability considerably.”  He added that without the ICBMs:

“You’re down to a number of platforms you could take out with 20 strategic weapons that could be nuclear and non-nuclear to get after the entire thing because of the way we have the alert posture on the bomber force, the way we have our submarines deployed.

In short, “riding out” an enemy’s first strike in order to confab with some “Congressional leaders” may make it possible for an adversary to think it can ‘finish off’ the U.S. with relative ease.  Adding just twenty weapons to its initial assault could make sense to an enemy who believes the U.S. will “ride out” the attack before attempting to respond.  In a real way, Perry’s proposal could pave the way for the enemy, not U.S. leaders, to – de facto – essentially decide the Nation’s fate.

An alternative would for the President and Congressional leaders to take part in a regular series of exercises involving various scenarios where nuclear weapons use might be considered.  The President would have the time to get a sense of Congress’ views, and engage in a dialogue with the leadership in advance of any crisis.  However, both the President and Congress would have to commit personally to such a process, something I frankly think is unlikely.

Should Americans be asked to “ride out” strikes by “hundreds, if not thousands, of nuclear weapons”?

So what would it mean to “ride out” an enemy strike that would destroy the ICBM force in the hopes of finding “leaders in Congress” with whom to consult?  General Hyten says that the ICBM leg of the triad is “the most difficult to fully target because in order to target 400 silos across five states in the middle of America an adversary has to commit hundreds, if not thousands, of nuclear weapons in order to try to take that leg out.”

Furthermore, contrary to what Perry seems to think, the ability of America to respond to a nuclear attack involves more than just the survival of the launch platforms, it also depends upon a complex command and control architecture that involves as many as 160 individual systemsThough designed to survive a “bolt out of the blue” attack, there is no certainty that it can.

In fact, while Perry may think leaders can “ride out” an attack involving “hundreds, if not thousands, of nuclear weapons,” the reality is that the President and “leaders in Congress” may not survive such an attack (not to mention millions of Americans). 

In such a case, the launch decision may fall to a successor not as well schooled in the international political situation as well as the intricacies of nuclear warfighting as a serving President would likely be.  Moreover, there may well be no “leaders in Congress” or no Congress at all with which to consult as Perry seems to think is essential.  His idea simply makes no sense.

Ambassador Graham’s proposal

The second misguided idea was argued last week by Ambassador Thomas Graham Jr., a former diplomat with arms control experience, but one who left office in 1997.  He wants the Biden administration to abandon the current posture of “calculated ambiguity” as to when the U.S. might determine the use of nuclear weapons was imperative.  In its place he wants a formal declaration “that [the U.S.] will not ever use nuclear weapons first in a conflict or at any other time.”

          Anticipatory self-defense

Doing so would markedly undermine nuclear deterrence.  Among other things, the U.S. (along with the majority of countries) has long embraced the concept of anticipatory self-defense that is derived from international law.  In essence, Graham’s proposal gives up this right.

Anticipatory self-defense makes it permissible for countries to launch a defensive attack to derail an enemy strike that has not yet occurred, but is imminent.  This means the U.S. does not take the position that the law requires it to first suffer a nuclear holocaust before attempting to respond in self-defense.  

It isn’t hard to foresee circumstances where the U.S. might need, however reluctantly, to resort to a first use of nuclear weapons.  For example, imagine if information came to light that a hostile power not only intended to attack the U.S. with nuclear weapons, but also that it had begun an operation to do so by positioning its military forces, fueling its bombers, sending submarines to sea, initiating launch procedures, and so forth. 

The U.S. may only have an extremely limited “window of opportunity” to destroy the enemy’s capability, or to mitigate the effects of such an attack by eliminating at least some of the belligerent’s nuclear weaponry before it impacts U.S. soil. 

I don’t think many Americans want to simply await the impact of these devastating weapons before acting in self-defense in a way that might save if not all of the U.S., much of it. 

Technology has wrought changes that could require “first use”

Graham tries to support his idea mainly by relying on decades-old incidents (that he characterizes as ‘near misses’ but which, tellingly, did not actually result in any nuclear disasters).  He apparently thinks that “today nothing is different” despite the passage of so many years.

He’s plainly wrong: science and technology have dramatically advanced.  On one hand, that has helped to reduce the chance of error in nuclear threat assessments, on the other hand, it has – sadly – created new kinds of weapons of mass destruction and other circumstances that could necessitate the “first use” of nuclear weapons to counter.

Want some examples?  As I discuss elsewhere:

Imagine that the only way to halt the genocidal depredations of an enemy leader is to neutralize him in his command post tunneled deep into a mountain. In its 2005 study, Effects of Nuclear Earth-Penetrator and Other Weapons, the National Research Council of the National Academies concluded:

Many of the more important strategic hard and deeply buried targets (HDBTs) are beyond the reach of conventional explosive penetrating weapons and can be held at risk of destruction only with nuclear weapons.

Nuclear weapons may also be the only practical means of achieving the high temperatures needed to assure the timely destruction of a virulent and lethal pathogen that an enemy might develop.

Additionally, current U.S. policy explicitly permits the use of nuclear weapons “in extreme circumstances” including “significant non-nuclear strategic attacks”:

The United States would only consider the employment of nuclear weapons in extreme circumstances to defend the vital interests of the United States, its allies, and partners.  Extreme circumstances could include significant non-nuclear strategic attacks.  Significant non-nuclear strategic attacks include, but are not limited to, attacks on the U.S., allied, or partner civilian population or infrastructure, and attacks on U.S. or allied nuclear forces, their command and control, or warning and attack assessment capabilities.

Thus, if an adversary was using a DNA-based bioweapon designed to kill only those in a specific ethnic group (e.g., Black people), the U.S. reserves the right to employ nuclear weapons against it, even if the enemy possessed no nuclear weapons.  Any belligerent contemplating such a horrifying act needs to know the lethal consequences the U.S. may choose to impose.

Additionally, we now know that cyber technology has the potential to be a weapon of mass destruction that could require the “first use” of nuclear weapons to counter.  This is why the U.S. reserves the right to employ them in response to a catastrophic cyber-attack (or calamitous strike involving non-nuclear electromagnetic pulse weapons).

It isn’t hard to understand why U.S. leaders would want such potential attackers to know that the U.S. is prepared to incinerate them with nuclear weapons, even in a “first” use situation.  Here’s what I wrote last year:

Journalist Ted Koppel, the author of the 2015 book, Lights Out: A Cyberattack, A Nation Unprepared, Surviving The Aftermath, warns that a massive cyber attack on the nation’s electrical grid could have catastrophic results.  Koppel says such a cyber-attack “would not initially claim as many lives a nuclear attack, but the impact would be ruinous.”  Koppel foresees:

Maintaining public order will come down to manpower and become more difficult with each passing day, especially in urban areas where law enforcement will be overwhelmed.

There would be a huge hunger/thirst crisis; people would die from starvation, social breakdown, or disease. There will be a major loss of life.  Only one in 10 would survive a year into a nationwide blackout. (Emphasis added.)

Also in 2015, former director of the CIA James Woolsley was asked by a Congressional committee about the number of casualties that would result if the electrical grid was brought down for an extended period of time.  Woolsey responded (emphasis added):

“It’s briefly dealt with in the commission report of [2008].  There are essentially two estimates on how many people would die from hunger, from starvation, from lack of water, and from social disruption.  One estimate is that within a year or so, two-thirds of the United States population would die.

The other estimate is that within a year or so, 90% of the U.S. population would die.  We’re talking about total devastation.  We’re not talking about just a regular catastrophe.”

The central problem of “no first use”

No conscientious President ought to forego the deterrence value that America’s “calculated ambiguity” as to nuclear weapons’ use provides.  Among other things, given the unpredictability of future events, it makes no sense for the U.S. to handcuff itself today, when tomorrow’s circumstances may require consideration of every possible alternative to counter some cataclysmic action an enemy might want to use.

Moreover, the central problem of an American “no first use” policy is obvious: it could incentivize a nuclear-armed adversary to attempt a first strike to eradicate the U.S.’ capability to respond, not to mention end America as a military power and, indeed, its existence as a democratic polity.  This is the essence of an “existential threat” to the American way of life.

Concluding thoughts

These proposals to strikingly degrade the U.S.’s strategic deterrence posture are not only wrong-headed, but significantly out-of-touch with how important Americans view nuclear deterrence.  A recent poll found that91% of voters agree that nuclear deterrence capability is critical to our national safety and security and that it should be one of the highest priorities of the Department of Defense.”

To reiterate, while we always need to be ready to re-evaluate deterrence policies, we need to extraordinarily cautious about changing polices that have proven to be so effective that no adversary has dared to challenge the U.S. with a weapon of mass destruction.  We must avoid doing anything that would remotely suggest to any opponents that they have any chance of success given our nuclear deterrent.

Unfortunately, both Graham’s and Perry’s proposals would make America dangerously vulnerable, and deserve to be soundly rejected.  In a perfect world there would be no nuclear weapons or, for that matter, any need for them. 

But our world is not perfect and, absent an incontrovertable reason to change, the U.S. needs to continue with policies that have been so successful in making the use of nuclear weapons – or other weapons of mass destruction – unthinkable to our most dangerous adversaries.

Update:  DefenseNews has an interesting article found here about the “no first use” debate going on in Washington.  It has this quote from Sen. Angus King (“a Maine independent who caucuses with Democrats”) “who has come out publicly against any change to a declaratory policy”:

“I don’t support it myself. To me the whole idea of deterrence is to make our adversaries nervous,” King, who chairs the Senate’s strategic forces subcommittee, told Defense News. “I’m also concerned our allies will feel it’s an abdication of the nuclear umbrella [of protection the U.S. provides non-nuclear armed allies], and then they’ll feel they have to develop their own nuclear capacity ― which I feel would be very problematic.”

Well said Senator!

Still, remember what we like to say on Lawfire®: gather the facts, examine the law, evaluate the arguments – and then decide for yourself!


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