Despite assurances, only Trump stands between peace, nuclear war

As Senator Bob Corker (R-Tenn.) warned recently, “we could be heading towards World War III with the kinds of comments” Trump has been making about North Korea, which he famously threatened to “totally destroy,” unleashing “fire and fury like the world has never seen.”

Incendiary comments like these from the man entrusted with America’s nuclear codes have consequences.  They are giving serious pause to Congressional and military leaders, some of whom think the President’s power to order nuclear attacks needs checking.

{mosads}On November 14, Corker convened a hearing of the Senate Foreign Relations Committee on limits of presidential authority to use nuclear weapons. Nobody disputed that only Congress can declare war, and would have to authorize any war against North Korea. Meanwhile, Representative John Conyers (D-Mich.), Senator Ed Markey (D-Mass.) and Senator Chris Murphy (D-Conn.) have also sponsored bills that would strengthen Congress’s role. The bills would bar spending on military action against North Korea not authorized by Congress, unless North Korea suddenly attacked (Conyers/Markey) or posed an imminent threat (Murphy).

Authorizing a nuclear strike is a grayer area. One of those testifying at the hearing was General (ret’d) Robert Kehler, former Commander of Strategic Command. He apparently surprised some senators by pointing out that if a presidential order to use nuclear weapons is illegal, military commanders have a duty to refuse it.

So what makes a nuclear strike legal vs. illegal?

It is Pentagon policy that nuclear attacks must meet requirements of the international law of armed conflict, Kehler said.  A nuclear attack must be “necessary,” meaning that conventional weapons could not accomplish the job, and cannot be directed against civilians or civilian infrastructure. “Collateral” injury, death and property damage must be proportional to the expected military benefit.  If a presidential order for a nuclear strike doesn’t meet those tests, theoretically at least, it would be refused.

It’s good the Pentagon accepts these requirements, but they aren’t as restrictive as they sound. When the military advantage gained by an attack is very large, for example if the target is enemy nuclear forces, extensive collateral harm could arguably be justified as “proportional.”

What’s missing from Pentagon policy is an affirmation that the prohibition against indiscriminate attacks applies to nuclear as well as other weapons. The essentials of that prohibition were stated in 2007 by the Joint Chiefs of Staff:  “Attackers are required to only use those means and methods of attack that are discriminate in effect and can be controlled.”  

But use of nuclear weapons which is “discriminate in effect” and “controlled” may be an impossibility. Studies show that even a limited nuclear attack, like using a single 200-kiloton weapon against an air base, would involve considerable collateral damage and humanitarian effects.

That was a key consideration in the 1996 advisory opinion by the International Court of Justice, which declared use or threat of use of nuclear weapons generally illegal under international law. Given the “unique characteristics of nuclear weapons,” the Court found, their use “seems scarcely reconcilable” with the prohibition of use of “weapons that are incapable of distinguishing between civilian and military targets”.

This summer a new Treaty on the Prohibition of Nuclear Weapons was adopted at the United Nations. It states use of nuclear weapons would be “abhorrent to the principles of humanity and the dictates of public conscience.” Those criteria are found in the Geneva Conventions.

For these and other reasons, there is wide agreement that using nuclear weapons is at least generally contrary to international law. The United States isn’t legally bound by the ICJ opinion or the new UN treaty, which it has stated it will not join, but it is bound by the global legal norms they express.

Very disturbingly, this week’s Senate committee hearing revealed that despite the momentous consequences at stake, there are no ironclad, reliable limits on the president’s power to order use of nuclear weapons. If a nuclear attack on the United States or its allies appeared imminent, commanders would likely defer to the president’s order. If he wanted to initiate a nuclear war, there probably would be an intensive process of consultation in the executive branch. In the end, though, the decision would be the president’s alone.  

Some in Congress want to change that through legislation. Senator Markey said in the hearing that we cannot rely on civilian and military officials to delay or block the president from starting a nuclear war. Markey and Representative Ted Lieu (D-Calif.) have proposed a bill requiring Congressional approval for use of nuclear weapons (unless the United States or its allies are under nuclear attack). Another bill just tabled by Representative Adam Smith (D-Wash.) would simply declare that the policy of the United States is not to use nuclear weapons first.

Whether and how presidential authority to order nuclear strikes can be limited is a live, high-stakes question. We don’t yet know the answer, but as tensions with North Korea escalate, and “World War III” seems less and less like hyperbole, it’s getting more urgent to find out.

John Burroughs is Executive Director of the New York City-based Lawyers Committee on Nuclear Policy.