Michael KreponThe President’s Sole Authority for First Use

Note to readers: Because of its renewed relevance, I have updated a post that appeared in ACW under the heading “A Three Person Rule for Nuclear First Use” on April 17, 2017. A shorter version of this essay was published in the New York Times on April 13, 2017.

Quote of the week:

“Ours is a world of nuclear giants and ethical infants…  We have grasped the mystery of the atom and rejected the Sermon on the Mount.”
― General Omar N. Bradley

The President of the United States has unrestricted powers to use
nuclear weapons first if he or she deems this necessary. Concerns about the absence of checks and balances on the first use of nuclear weapons have spiked because of Donald Trump’s bellicose temperament and shallow understanding of nuclear flash points. They have been exacerbated by his erratic behavior and remarks while recovering from the COVID virus.

What to do? Some on Capitol Hill have introduced legislation that would prohibit the president from launching a nuclear first strike without a declaration of war by the Congress. In my view, this is the wrong remedy. Instead, I propose a three person rule for crossing the nuclear threshold first that can be enacted by executive order and reaffirmed by the Congress.

To require a declaration of war by the Congress before nuclear first use would be most unwise. Part of the problem lies in the history of tussles between the executive and legislative branches over war powers. No president in the modern era has accepted the absolute requirement of congressional consent on war-making powers. Declarations of war have been extremely rare – against Great Britain in 1812, Mexico in 1846, Spain in 1898, Germany and Austria-Hungary in 1917, and Japan, Germany, and their allies in 1941-2. None of the wars that have been fought in the past eight decades – large (Korea, Vietnam, Afghanistan, Iraq) or small – have been preceded by a declaration of war.

A more significant problem is one of time urgency. Any scenario in which an American President contemplates the first use of nuclear weapons against a nuclear-armed foe implies a situation or a sense that time is running out. The deeper the crisis, the more both sides will increase readiness to use nuclear weapons. These steps could be taken for deterrence purposes, but they would be hard or impossible to distinguish from readiness to use nuclear weapons first. (This scenario applies to the subcontinent as well as to the Korean Peninsula.)

Now overlay onto this scenario the pursuit of a declaration of war by the Congress. Rather than buying time against first use, the prospect of a vote on Capitol Hill could instead compress decision-making time in a crisis – if an adversary concludes that a congressional resolution is a prelude to military action.

In rare cases when the executive branch has sought support for war-making powers, Congress has seen fit to provide backing. A congressional vote ‘yea’ connotes toughness and steely resolve, while a ‘nay’ vote undercuts an administration and could embolden a bad actor. This is how the Congress authorized open ended war-making powers — but not a declaration of war — to the George W. Bush Administration after the attacks on 9/11.

For these and other reasons, a declaration of war prior to the first use of nuclear weapons by the United States does not pass the “do no harm” test. A far more realistic check on the first use of nuclear weapons by the United States can be found, oddly enough, in the case of a Soviet diesel submarine that was depth-charged to the surface during the most harrowing days of the Cuban missile crisis in 1962.

Back then, diesel submarines had limited capabilities to remain submerged and to “phone home.” So the captain, second captain and deputy political officer on the B-59, a Foxtrot-class submarine, observed a compact in the event that they were unable to receive instructions from Moscow authorizing the use of a nuclear-armed torpedo on board. They agreed that to fire the torpedo against a surface ship, their vote had to be unanimous; if not, they would hold their fire.

The United States Navy was unaware that Soviet submarines carried nuclear-armed torpedoes, just as the Pentagon and the American intelligence community, while planning pre-emptive strikes, were unaware that nuclear weapons had already been deployed on Cuban soil. The job of enforcing President John Kennedy’s naval quarantine of Cuba fell to the chief of naval operations, Adm. George Anderson. He, like the Air Force Chief, Gen. Curtis LeMay, wished to strike first, rather than seek a diplomatic settlement, which they perceived to be a riskier option.

Everyone knows that the Cuban missile crisis was a close call, but too few of us know just how close the two superpowers actually came to nuclear war. Only later, when American and Soviet veterans of the crisis met to swap reminiscences, did the world learn that on Oct. 27, 1962 — the same day that an American U-2 spy plane was shot down over Cuba — the three Soviet officers on board the B-59 cast the most important vote in the history of Western civilization.

While being depth-charged to the surface, the submarine’s captain and the political officer voted to fire their torpedo. The third officer, Second Captain Vasili A. Arkhipov, voted nyet.

This cautionary tale teaches many lessons. What a president knows, or thinks he or she knows, in a severe crisis can be less important than what he or she doesn’t know. Hasty decision making can have catastrophic consequences, while diplomacy can be a far safer course than pre-emptive strikes.

Having just one “decider” when it comes to first use is unsound and unwise because that decision maker can have faulty information and poor judgment. The choice to use nuclear weapons in war for the first time since 1945 is too consequential to rest on the shoulders and mind of just one person. A three-person consensus rule for the first use of nuclear weapons worked on the B-59. It can work for the United States as well.

Who should the president be obliged to consult and receive approval from before making this profound choice? These individuals must be quickly accessible. They should be civilians who have the confidence of both the President and the Congress — meaning that they should be subject to Senate confirmation.

The most obvious choices would be the Secretaries of State and Defense. The president should, of course, also consult with the Vice President and the National Security Adviser, as well as with Congressional leaders, but formalities matter on a judgment of this magnitude. A three person rule for nuclear first use ought to be codified in an executive order and Public Law.

Requiring the consent of the Secretaries of State and Defense for the first use of nuclear weapons could increase the odds against the rashest action that could ever be taken by an American president.

Comments

  1. Jonah Speaks (History)

    Do you favor first use of nuclear weapons under some limited set of circumstances? If so, what are those conditions? If not, would it be better simply to prohibit the first use of nuclear weapons?

    Procedurally, if no Senate-approved Secretary of Defense or Secretary of State are available, would unapproved persons take their place? Could these simply be two people whom the President appoints on the spot?

    • Michael Krepon (History)

      Thanks for asking, Jonah.

      I cannot foresee any instances where first use by the US would provide any useful purpose, since first use kills nuclear deterrence and makes second use highly probable. And second use invites uncontrolled escalation in most scenarios.

      A prohibition on first use would have to be multilateral, which means that the US, Russia, GB, France, Pakistan and North Korea would need to endorse it. These endorsements would need to be followed by steps that provide confidence that the pledges given are real and not rhetorical. (We have one historical case — the Soviet Union — where a pledge of no first use was bogus.) That would require significant changes in force posture. If one state, say the US, makes an unconditional pledge and backs it up, while other states don’t, then the knock off-effects would not be helpful or stabilizing.

      I argue in my forthcoming book that the most useful thing we can do is to extend the three-quarter-century of no first use one day and one crisis at a time. Let’s aim for a century. And let’s back up this record with changes in declaratory policy embracing the “weapons of last resort” and “sole purpose” formulations.

      Campaigns against first use are still absolutely necessary and helpful, as they raise the political bar. Prohibitions in legal compacts, such as the Ban Treaty, are also helpful for norm strengthening. Because the Ban Treaty has no powers of conversion, I propose less-than-visionary methods to achieve a visionary objective.

      We can all envision different permutations on the three-person rule. For example, the three people could be the President, the Speaker of the House, and the Majority Leader of the Senate. But whatever permutation we choose, the President could disregard it in extremis. Or defeat its object and purpose by preemptively using conventional strikes against nuclear forces, prompting nuclear exchanges. No Public Law or executive order is self-enforcing. There s still value in my suggested approach, or some variation of it. One reason is because it provides standing for those who are responsible for implementing a first use order to inquire whether it was lawfully given. More important reasons are offered in the post.

      Best wishes,
      Michael

  2. oliver (History)

    Dear Mr. Krepon,

    How would you classify the decision by Stanislaw Petrov?
    Wasn’t it equally historic and saved western civilization?

    Cheers, Oliver

    • Michael Krepon (History)

      Thanks for your comment, Oliver.

      For me, Petrov ranks way up there, not quite as high as Arkhipov, but way up there. (Non-wonks: Petrov was the guy who peered into his radar screen and saw what appeared to be a ballistic missile attack during a deep, dark period of the Cold War. It was 1983, a year of living dangerously. US Euro-missile deployments. Soviet walkout from negotiations. Shoot down of a Korean airliner, mistaken for a US spy plane that had earlier appeared on Soviet screens. And a deeply paranoid Soviet leadership that believed that Ronald Reagan was preparing to launch a nuclear war. Petrov chose not to follow standard procedures and raise the alarm up the chain, assuming his screen did not reflect reality.)

      The decisions by Petrov and Arkhipov reflect a key reason for the track record of non-battlefield use that barely appears in the strategic literature about deterrence. I’m referring to our common regard for humanity, regardless of nationality and where people are in the chain of command, or outside the chain of command. We need human beings in the “system” who understand at the cellular level that first use can mean uncontrolled use and the death of civilizations. No extra increment of deterrence is more important than this factor.

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