Commentary“A government of laws, and not of men.”
John Adams (1775)
What if US President Donald J. Trump gives the order to launch nuclear weapons? If the order appeared incoherent or irrational to designated commanders, would these military officers still follow it without question, on decisional “autopilot”? Or would they correctly acknowledge that chain-of-command obligations must always be contingent on national and international law?
As a university professor specializing in strategic and jurisprudential matters for more than fifty years, I first thought about nuclear command decision-making as a global (not US-specific) problem. While working on an early “nuclear book” in the mid-1970s, I reached out to retired General Maxwell D. Taylor. On March 14, 1976, in response to my query regarding presidential debilities and unlawful orders, the former Chairman of the US Joint Chiefs of Staff offered clarifying answers.
Most noteworthy in his handwritten letter was the warning about presidential irrationality. In his closing paragraph, Taylor cautioned that considerations of irrationality would best be dealt with during the election process. Prima facie, any potentially irrational presidential candidate who managed to get elected could pose an unprecedented and prospectively “apocalyptic” problem.
What does all this have to do with current US presidential disfigurements of pertinent law? What is the legal “verdict” on questions of “superior orders” involving nuclear launch commands? Though the legality of a presidential order to fire American nuclear weapons would depend (inter alia) on whether it concerned a “nuclear first use,” there is nothing in national or international law that would make such an order illegal per se. This is the case unless science-based arguments could authoritatively declare any use of nuclear weapons would be “indiscriminate,” “militarily unnecessary” and/or “disproportionate.” By definition, such arguments would reference core requirements of International Humanitarian Law (the Law of Armed Conflict) that are an integral part of the US Uniform Code of Military Justice.
There are further details. Codified protections against unauthorized firings are already built into any presidential order concerning nuclear weapons. These protections include multiple and substantial redundancies. Still, virtually all such mutually-reinforcing safeguards—including “psychological reliability” assessments—could become operative only at lower (sub-presidential) nuclear command levels. These safeguards do not apply to the Commander-in-Chief, that is, to the elected President of the United States or to any cabinet-level official in the assigned chain of command.
Variously derivative inferences and implications should be noted. In both law and practice, there exist no readily-decipherable grounds to determine the legality of a presidential order to use nuclear weapons. In practice, the codified military obligation to disobey an unlawful order would be shrouded in uncertainties.
While certain senior personnel in the chain of command could at some point choose to invoke “Nuremberg Rules” (i.e., the universal obligation to disobey an unlawful order), any such time-urgent invocation would “reasonably” be rejected. In this connection, it needs to be remembered that all these “Rules” have been incorporated into America’s UCMJ.
Ironically, the Trump administration’s bewildering campaign against refusal of unlawful orders (a campaign being waged against such American military heroes as former astronaut and Senator Mark Kelly) could eventually precipitate a “limited” or full-blown nuclear war. To wit, if US President Donald Trump were ever to order an American nuclear attack ex nihilo, i.e., as a “bolt-from-the-blue,” only chain-of-command willingness to reject unlawful orders could prevent an atomic holocaust.
There is more. If an American president operating within a determinable chaos of his own making should issue an irrational or seemingly irrational nuclear command, the only way for the Secretary of Defense, the Chairman of the Joint Chiefs, the National Security Adviser and several possible others to obstruct this illegal order would be untested and problematic. Under the best imaginable circumstances, informal safeguards might manage to work for a time, but accepting a “best case scenario” on such dense existential issues could never be sensible. It follows that Americans ought promptly to inquire about more reliable institutional impediments to a potentially debilitated and insistently law-violating US president.
On such unique or “sui generis” matters, the US would be navigating in uncharted waters. When President Kennedy engaged in personal nuclear brinkmanship with the Soviet Union’s Nikita Khrushchev in October 1962, he allegedly calculated the odds of a nuclear war as “between one out of three and even.” This seemingly precise calculation, corroborated both by JFK biographer Theodore Sorensen and by my own later private conversations with former JCS Chair Admiral Arleigh Burke (my acquaintance, colleague and roommate at the Naval Academy’s Foreign Affairs Conference of 1977) suggests that President Kennedy was either genuinely irrational in imposing his Cuban “quarantine” or “merely” acting out untested principles of “pretended irrationality.” In any event, JFK had operated with the assistance of markedly serious and capable strategic advisors. He would never have correlated complex strategic nuclear planning with high testosterone levels or transformed the Department of Defense into the “Department of War.”
What strategic circumstances should be looked at closely? The most perilous threat of a US presidential order to use nuclear weapons would flow not from any “bolt-from-the-blue” nuclear attack – whether Russian, North Korean or Chinese – but from a unique and uncontrollable process of escalation. In 1962, when Nikita Khrushchev “blinked” early on in the “game,” it was the Soviet premier who prevented mutually-irrecoverable nuclear harms.
At this juncture, the plausibly greatest nuclear threat would issue from the American White House. More precisely, certain escalatory initiatives undertaken by US President Trump could express markedly incoherent and destabilizing decision-making processes. Especially worrisome would be the largely-unexamined consequences of Trump’s recently-revised nuclear strategy, a posture that emphasizes potential use of shorter-range (tactical) nuclear weapons. On its face, this strategy will lower the operational threshold or “firebreak” for American nuclear weapons use, an outcome that could be rendered more likely by AI (Artificial Intelligence) assisted hacking or AI-controlled safeguards “gone rogue.”
There is even more. Americans should meaningfully understand the risks of being locked into an escalatory dynamic from which there could be no options apart from abject capitulation or nuclear war. Though an American president might sometime be well advised to seek “escalation dominance” in crisis negotiations, he would simultaneously need to avoid catastrophic miscalculations. For the moment, prima facie, there is little cause for optimism about meeting this obligation.
Like it or not, nuclear strategy is a “game” that Donald Trump will likely have to play before he leaves office. But his necessary gamesmanship will need to be based on much more than any seat-of-the-pants judgments about “attitude.” It will have to be buttressed by carefully-refined intellectual underpinnings.
To best ensure that President Trump’s strategic moves would be rational, thoughtful and cumulatively cost-effective in extremis, it could be rational to formally enhance the decisional authority of his relevant military subordinates. At the same time, on the basis of what is already known about these individuals, it is reasonable to expect that the Secretary of Defense, Chairman of the Joint Chiefs of Staff, National Security Adviser and one or two others involved in nuclear decision-making could themselves become a worrisome part of America’s nuclear command problem.
For the most part, current arguments about disobeying unlawful orders are not expressly related to issues of nuclear command authority. Nonetheless, the obligation to disobey unlawful orders is rooted in national and international law and could impact nuclear or pre-nuclear crises. Earlier in the 20th century, assorted legal writers already rejected the plea of “superior orders” as a defense against charges of war crimes. Ironically, the German Code of Military Law operative during World War II declared that every soldier must execute all orders undeterred by fear of legal consequences, but that this obligation would not excuse him in cases where he knew the order to be illegal.
This continuously-valid view was upheld by a landmark 1921 decision of the German Supreme Court in Leipzig. Accordingly, any subordinate who obeyed the order of a superior officer was liable to punishment if it had been known to him that the order contravened international law. Later, the defense of “superior orders” was rejected at the Einsatzgruppen Trial conducted by an American military tribunal. Said the tribunal: “The obedience of a soldier is not the obedience of an automaton. A soldier is a reasoning agent. It is a fallacy of widespread consumption that a soldier is required to do everything his superior officers order him to do. The subordinate is bound only to obey the lawful orders of his superior.” Yet today, US President Trump, his Vice President and the leaders of his party in the Congress argue vigorously against codified and customary US law and call certain lawfully-reasoned military judgments “seditious.”
It’s time for summation. Any US presidential order to launch nuclear weapons could represent the ultimate test of law-commanded disobedience. Exactly how such a scenario would play out must lie beyond any science-based prediction. Still, to ignore this scenario’s unprecedented significance could risk the most significant failure of American legal obligations. Beyond any reasonable doubt, it would reject John Adams’ prescient and enduring call (1775) for “A government of laws, and not of men.”
LOUIS RENÉ BERES (Ph.D., Princeton, 1971) lectures and publishes widely on war, terrorism, and nuclear security matters. Born in Zürich at the end of World War II, he is the author of twelve major books on international relations and international law. Dr. Beres is a frequent contributor to law and strategy journals and is Emeritus Professor of International Law at Purdue University. He is a seven-times contributor to the Oxford Annual Yearbook on International Law and Jurisprudence (Oxford University Press).
