In their new book, “Peril,” Bob Woodward and Robert Costa reveal that after President Donald Trump’s electoral defeat in 2020, Gen. Mark Milley, chairman of the Joint Chiefs of Staff, assured his Chinese counterpart that the United States would not strike China. In addition, they report that General Milley told his senior officers that, if they received orders from the lame duck president to launch a nuclear attack, they were to “do the process” of consulting with him first.
Under current law, the president has sole authority to order a nuclear launch for any reason. Normal launch protocol includes a brief period for the president to consult the secretaries of Defense and State, the Joint Chiefs of Staff chairman and other senior officials, but he may not have time to do this, and is not required to follow whatever advice they give him.
Sen, Marco Rubio, a Florida Republican and senior member on the foreign relations and intelligence committees, has urged President Biden to fire General Milley for “interfering with the procedures by which the civilian commander-in-chief can order a nuclear strike.” And former President Trump has accused the general of treason. This week, hearings touching on the issue were held before the Senate and House Armed Services committees. On Wednesday, General Milley said that, by law, he is not in the nuclear chain of command, but as a matter of policy, he is in the chain of communication.
General Milley is not the first senior official to put his own career on the line to ensure that a decision that could kill or injure 90 million people in a few hours gets the careful review it deserves. For example, during the Nixon Administration, Defense Secretary James Schlesinger worried about an impulsive nuclear attack, so he directed that all orders go through him.
Such willingness to break protocol throws into stark relief an underlying contradiction in presidential powers. The power to declare war belongs to Congress, but the president is commander-in-chief, with the full military power at his disposal, putting him above even the highest military officer. The Founders would certainly not have wanted a lame duck president to be able to launch a conventional war, much less a nuclear war, driven by personal political motives, as the Chinese likely feared from Mr. Trump.
Thermonuclear weapons on long-range ballistic missiles pose security problems that the Founders could not have fathomed. If the U.S. early warning system detected incoming nuclear missiles, the president might have 15 to 30 minutes before vulnerable land-based missiles, nuclear command and control facilities, and leadership targets were destroyed. This explains why the current launch protocol is designed for speed, not for inclusive decision-making.
But, General Milley addressed a different type of scenario, one in which the president decides to use nuclear weapons first, without evidence that the United States is already under attack. Surely, the Founders would have wanted Congress involved in a decision to start that type of nuclear war.
Legislation to address this issue sits in the House and Senate’s Foreign Relations committees. The Restricting First Use of Nuclear Weapons Act of 2021, sponsored by Sen. Edward J. Markey of Massachusetts and Rep. Ted Lieu of California (both Democrats), would prevent any president from launching a nuclear strike first, without a declaration of war from Congress, but would still permit the president to launch on his own authority in response to a nuclear attack.
This proposal elicits support from a large bipartisan majority of Americans. In a survey conducted by the University of Maryland’s Program for Public Consultation and its Center for International and Security Studies, more than two thirds of voters favor reigning in the president’s discretion over launching nuclear weapons, by requiring that Congress first be consulted and issue a declaration of war before the United States uses nuclear weapons first. Majorities of Democrats (74%), independents (73%) and Republicans (59%) favored this limitation of the president’s power.
Before coming to their conclusion, respondents received a briefing on the policy reviewed by experts on both sides of the issue and heard arguments for and against the legislation. On the pro side: Launching a nuclear weapon first is effectively going to war, and the Constitution intends for such war powers to reside with Congress. And the con: Removing this presidential power could make the U.S. look vulnerable and thus weaken our nuclear deterrence. Both arguments were found at least somewhat convincing by majorities, but the first argument prevailed when respondents made their final recommendation.
The Markey-Lieu proposal in front of Congress is not to eliminate the option of first use of nuclear weapons, but to clarify that the president does not have the power to do so without congressional approval. Were it to pass, the type of troubling chain of command issue the Senate and House Armed Services committees are interested in would likely be ameliorated. It could also reduce the anxieties and potential preemptive and escalatory actions of an adversary who might be unsure what to expect from America’s commander-in-chief.
Nancy W. Gallagher (email@example.com) is a research professor at the University of Maryland’s School of Public Policy, the director of the Center for International and Security Studies at Maryland and the former director of the Clinton administration’s Comprehensive Test Ban Treaty Ratification Task Force. Steven Kull (firstname.lastname@example.org) serves as director of the Program for Public Consultation at the University of Maryland and is founder and president of Voice of the People.