Amid growing anxiety that President Donald Trump’s heated rhetoric could trigger a war with North Korea, lawmakers on Tuesday debated for the first time in 40 years a US president’s authority to launch a nuclear strike.
“We are concerned that the president of the United States is so unstable, is so volatile, has a decision-making process that is so quixotic, that he might order a nuclear weapons strike that is wildly out of step with US national security interests,” said Sen. Chris Murphy, a Democrat from Connecticut. “So let’s just recognize the exceptional nature of this moment.”
The former commander of US Strategic Command, which oversees the Pentagon’s nuclear arsenal, told Congress that in his previous role he would have followed the president’s order to carry out a strike. But in a scenario where there is no imminent threat, top military officials can raise questions if they received an order they thought was illegal or hadn’t been sufficiently vetted, retired Air Force Gen. C. Robert Kehler said.
“The military does not blindly follow orders,” he told the committee. “That is true of nuclear orders as well. … If there is an illegal order presented to the military, the military is obligated to refuse to follow it.”
Even so, he conceded that determining an order was illegal “would be a very difficult process and a very difficult conversation.”
What would happen next also remained unclear.
Kehler said that if as STRATCOM chief he had received such an order and not been able to determine whether it was legal, "I would have said, 'I'm not ready to proceed.'”
“Then what happens?” asked Sen. Ron Johnson, a Wisconsin Republican.
“I don’t know,” Kehler admitted, to nervous chuckles in the chamber.
In recent months Trump has stepped up his aggressive threats, warning Pyongyang in August that it would be "met with fire and fury like the world has never seen" if it continued threatening the United States.
"We will have no choice but to totally destroy North Korea" if the US is forced to defend itself, he said in a speech to the United Nations in September.
Sen. Bob Corker, the chair of the foreign relations committee and one of Trump’s strongest Republican critics, last month accused the president of setting the US “on the path to World War III.” On Tuesday, he insisted the hearing was “not specific to anybody,” but Democrats on the committee did not pull punches.
“It boggles the rational mind,” said Sen. Ed Markey, a Democrat from Massachusetts. “I fear that in the age of Trump the cooler heads and strategic doctrine that we once relied upon as our last best hope against the unthinkable seem less reassuring than ever.”
They also raised concerns that the president’s use of Twitter, which often tips into personal insults, could escalate a nuclear conflict.
“Many Americans fear that the president's words could turn into nuclear reality,” Markey said. “I don’t think the assurances I’ve received today will be satisfying to the American people. I think they can still realize that Donald Trump can launch nuclear codes just as easily as he can use his Twitter account."
Some of the witnesses agreed.
"I would be very worried about a miscalculation based on continued use of his Twitter account with regard to North Korea," Brian McKeon, a former acting undersecretary of policy at the Pentagon, testified.
Other former national security officials testified that if there isn’t an imminent attack, it would be more difficult for the president to launch a nuclear attack out of the blue.
Peter Feaver, a former director for defense policy and arms control at the National Security Council during the George W. Bush administration, said in such a scenario there would be a lot of other people having an input.
“It wouldn’t be the president alone persuading a single military officer alone on the other side of the telephone,” he said. "There would be a large group of advisers and legal advisers weighing in on this.”
Just a few days after Trump’s inauguration, Markey and Rep. Ted Lieu introduced a bill to prohibit the president from launching a nuclear first strike without a declaration of war from Congress.
“The crucial issue of nuclear 'first use' is more urgent than ever now that President Donald Trump has the power to launch a nuclear war at a moment’s notice,” they stated in a press release.
On Tuesday, former officials cautioned that adding Congress to the equation would hamper the US response in a high-stress scenario without a lot of time.
“Taking away the president’s authority as commander in chief or diluting it in some respect by requiring him to go to another constitutional officer in a formal sense, I’m not sure that is a wise course,” McKeon said.
Adding the extra layer would lead to “conflicting signals [that] can result in loss of confidence, confusion or paralysis in the operating forces at a critical moment,” Kehler said.
The last time lawmakers debated the president’s nuclear authority was in March 1976, over the course of a four-day hearing, according to the committee. Gerald Ford was president.
The current protocols date back to the Cold War, and were meant to give the full authority to the president, not the military, to act as quickly as possible if faced by an attack from the Soviet Union. Faced with such a decision today, no one – including Defense Secretary James Mattis – would legally be able to prevent the president from carrying it out.
As former CIA director Michael Hayden put it, the current system “is designed for speed and decisiveness, it’s not designed to debate the decision.”
As commander-in-chief, Trump has the sole authority to order a nuclear strike from land-based missiles, nuclear submarines, and bombers.
If the US wanted to retaliate before its weapons or command and control system were attacked, “the president would have less than 10 minutes to absorb the information, review his options, and make his decision,” according to a 2016 Congressional Research Service report by nuclear arms expert Amy Woolf. There is no way to reverse the order once the president has identified himself to military officials at the Pentagon using unique codes, in the so-called nuclear football that travels with the president at all times, and transmitted the launch order to the Pentagon and STRATCOM.
But he is not legally obligated to consult with anyone. In this scenario, Mattis, national security adviser Lt. Gen. H.R. McMaster, and Secretary of State Rex Tillerson are not part of the chain of command.
Pressed by reporters on Monday, Mattis refused to comment on whether he would be excluded from the chain of command when it comes to launching a nuclear strike.
“I'm the president's principal adviser on the use of force,” he said. Asked whether he was comfortable with the system in its current form, he curtly answered, “Yes, I am.”
Tuesday’s hearing comes two weeks after Mattis himself was grilled by Congress about the president’s authority to launch a nuclear strike and resisted the suggestion that it’s time to update the system.
“I think that we have to keep trust, keep faith in the system that we have that has proven effective now for decades,” he said.