December 03, 2017

Taking Away Trump’s (Launch) Keys

A bill before Congress would restrict the President’s ability to launch a preemptive nuclear strike.

by Chris Thomas

US Nuclear Test “Castle Bravo”

Earlier this year Sen Ed Markey (D-MA) and Rep Ted Lieu (D-CA 33) introduced bills in their respective chambers as S. 200 and H.R. 669. Entitled the Restricting First Use of Nuclear Weapons Act of 2017, these bills do pretty much what their titles suggest — they “[prohibit] the President from using the Armed Forces to conduct a first-use nuclear strike unless such strike is conducted pursuant to a congressional declaration of war.”

Or, in other words, they prevent the President from using nuclear weapons unless Congress says he can or unless nuclear weapons have already been launched against the United States or its allies.

Why is this bill being considered?

President Trump has been extraordinarily cavalier about the US nuclear arsenal. Over the course of the last 70 years the use of nuclear weapons has become powerfully taboo. With vast stockpiles on hair-trigger alert, great nations have brought the world to the brink of annihilation with them. As a result, joking about the use of nuclear weapons or even mispronouncing the word “nuclear” has taken on an element of scandal and is often thought to represent a lack of seriousness on the part of a candidate or leader.

Trump reportedly asks why US can't use nukes: MSNBC

Trump’s willingness to discard these norms has lead some in Congress to speculate that he might seek to use American nuclear weapons without adequate consideration for the implications of first use. Were Trump to use nuclear weapons on North Korea, for example, the result would be the incineration of countless thousands and a weakening of the “nuclear taboo,” making it more likely that other nuclear powers might use their weapons on non-nuclear states, increasing the pressure on those states to develop their own nuclear deterrent.

Can Congress Do That?

Yes. Though you wouldn’t think so. Back in the 18th century, the Founding Fathers assumed that Congress could restrain Presidential military power by only raising armies when the Legislature saw a need to do so. Since the dawn of the atomic age, however, the need for constant, hair-trigger readiness has taken the teeth out of that check. The armed forces have to be ready to go at a moment’s notice and the Constitution clearly says they report to the President.

But that is not the only ace up Congress’ sleeve. Officers and enlisted in the US military are under an obligation to refuse to obey illegal orders. And again, as far back as the 18th century, Congress has used its authority to set standards for what it is permissible for the President to order. In Little v Barreme the Supreme Court ruled unanimously that naval officers could be personally answerable for their actions, even under orders from the President, when their orders conflicted with the rules set by Congress.

So, Congress Can Do That.

Maybe? Congress clearly has the ability to set the rules of engagement for the military but it has no real way to enforce those rules. Even the Barreme case was a civil one; Captain Little faced no criminal charges for his actions.

Perhaps more significant is that the Pentagon has spent the last 60 years preparing for a nuclear apocalypse and nearly all of that preparation has focused upon making absolutely sure that the President can order, and the military will execute, a nuclear strike. The distinction between “I have some reservations about ending the world” and “I’m not entirely sure this order is legal” is a pretty fine one where the US nuclear deterrent is concerned. Odds are extremely good that if the military gets a launch order from the President, they’ll follow it.

So it doesn’t matter?

It matters. While nuclear weapons are pretty apocalyptic and President Trump has been showing himself, at least on Twitter, to be more than a little bit unstable, he is not suicidal. If Trump decides to break out the nuclear codes he won’t be going after Russia or China but may be targeting North Korea or some region of the Middle East that has angered him recently. In either case, Trump will give the order expecting to survive the consequences of it.

And if that order is in direct violation of a Congressional statute, he could face impeachment for it. It is a sad state of affairs when Congressmen and Senators think the President is more concerned about the possibility of impeachment than the extermination of millions of people but here we are.

So it matters.

It’s a long-shot. Even if Congress passes the law, the President would have to sign it or the Congress would need to pass it with a two-thirds majority to override a veto. Neither of those things seem terribly likely.

Tell Congress what you think!

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