CommentaryOn January 8, 2021, Speaker of the House Nancy Pelosi (D-CA) took the extraordinary step of publicly revealing she had talked with Chairman of the Joint Chiefs of Staff, Gen. Mark A. Milley, about “available precautions for preventing an unstable President from initiating military hostilities or accessing the launch codes and ordering a nuclear strike.” Milley reportedly issued a statement saying he “answered [Speaker Pelosi’s] questions regarding the process of nuclear command authority.” Four days later, The House of Representatives voted 223-205 to formally call on Vice President Mike Pence to use the 25th Amendment to strip President Trump of his powers after he incited a mob that attacked the Capitol. With the Vice President’s refusal, impeachment proceedings went forward in the House on January 13, 2021, with a vote of 232-197, to impeach President Trump for “incitement of insurrection” in only the fourth presidential impeachment in US history, and the first time a President has been impeached twice.
Without being removed from office, in the absence of a Senate trial, could a leader described as “increasingly isolated, sullen and vengeful” be a dangerous decision-maker with the world’s deadliest arsenal, and what is US policy and law with respect to the limits on such authority?
According to the Truman Library, no known written record exists in which Harry Truman explicitly ordered the use of atomic weapons against Japan [except a] handwritten order, addressed to Secretary of War Henry Stimson, in which Truman authorized the release of a public statement about the use of the bomb. The Department of Energy’s History and Heritage archives note that how and when it should be used had been the subject of high-level debate for months and that President Truman actually delegated the employment of atomic weapons to the military. Historian Alex Wellerstein has written that “after the bombings of Hiroshima and Nagasaki…Truman changed tack. He suddenly seems to realize that this is something that he doesn’t want to delegate to the military”
Truman’s successor, President Dwight D. Eisenhower, spoke with great calm and forethought about the decision to use nuclear weapons. In 1955, he told a New York Times reporter: “Yes, of course, they would be used. In any combat where these things can be used on strictly military targets and for strictly military purposes, I see no reason why they shouldn’t be used just exactly as you would use a bullet or anything else.” Contemporaneously, Secretary of State Foster Dulles had “outlined a pattern of using new atomic devices for pinpoint military retaliation anywhere in the world.”
Eric Schlosser wrote in The New Yorker that “[w]ith great reluctance, Eisenhower agreed to let American officers use their nuclear weapons, in an emergency, if there were no time or no means to contact the President.” Conceivably, such a policy covered situations like the death of the President in an attack or a communications breakdown.
Wellerstein further noted when President John F. Kennedy took office in 1961 the–extant controls changed but “[t]here are a lot of details we still don’t know because they’re classified.” What is known, and what abides through the present, are three concepts: the permissive action link (PAL), the Single Integrated Operating Plan (SIOP) and successor plans, and the so-called nuclear “football.”
The US DoD defines PAL as: “[a] device included in or attached to a nuclear weapon system to preclude arming and/or launching until the insertion of a prescribed discrete code or combination. It may include equipment and cabling external to the weapon or weapon system to activate components within the weapon or weapon system.”
In 1960, the Joint Strategic Target Planning Staff (JSTPS) created SIOP-62, in effect on April 15, 1961, giving the President of the United States a range of targeting options, and described launch procedures and target sets, consistent with then Secretary of Defense Robert McNamara’s philosophy that “…one cannot fashion a credible deterrent out of an incredible action.” It is reported that Kennedy wanted the SIOP to make nuclear war “more flexible.” The highly classified SIOP continued to be updated through 2003, when it was renamed OPLAN (Operations Plan) 8022, then CONPLAN (contingency plan) 8022, and since July 2012, the US nuclear war plan has been OPLAN 8010-12, Strategic Deterrence and Force Employment.
Perhaps the most curious and iconic of the three Kennedy-era nuclear launch innovations is the nuclear “football,” or Presidential Emergency Satchel, which first came into use in the aftermath of the Cuban Missile Crisis, when Kennedy recognized shortfalls in communications and verification of presidential instructions to implement war plans involving nuclear weapons. The resultant briefcase(s) contained, for the President’s use: the Black Book of retaliatory options, a book listing classified site locations, a manila folder giving a description of procedures for the Emergency Broadcast System, and a three-by-five inch card with authentication codes [which the president usually carries separately from the football].” According to Secretary McNamara, a nuclear war plan at the time was code-named “Dropkick”—a sequence that naturally would require a “football”—hence the briefcase’s nickname. To be used in conjunction with these items would be the Gold Codes, or the launch codes for nuclear weapons and secure communications equipment.
The Congressional Research Service notes that Presidents have sole authority to authorize U.S. nuclear weapons use, inherent in their constitutional role as Commander in Chief. A President can seek counsel from their military advisors; the protocol calls for a meeting with their military advisers, who might “adjust his orders to meet the laws of armed conflict,” but those advisors are then required to transmit and implement the orders authorizing nuclear use.
The CRS quoted former Strategic Command (STRATCOM) Commander General Robert Kehler’s observations that members of the military are bound by the Uniform Code of Military Justice “to follow orders provided they are legal and have come from competent authority.” Questions about the legality of the order…are more likely to lead to consultations and changes in the President’s order than to a refusal by the military to execute the order.
In 2017, Senate Foreign Relations Committee heard a testimony on the President’s authority to order a nuclear attack, based on Committee Chairman Bob Corker’s publicly expressed concerns that President Trump’s intemperate tweets and other public pronouncements risk putting the United States “on the path to World War III.”
Former Secretary of Defense William Perry described the present predicament to journalist Jonathan Granoff:
Trump still has ‘sole authority’ to launch, and the military have no authority to stop him, unless they have reason to believe the order is illegal. That is cold comfort, because it is unlikely that the military would question whether a valid order from the president is ‘legal.’ However, in the present circumstances, questioning would certainly be in order.
The CRS reflected that legislation limiting presidential power over nuclear weapons implicates the historic debate over the separation of war powers between the legislative and executive branches as the “most difficult area of the Constitution.” Towards that end, H.R.669 – Restricting First Use of Nuclear Weapons Act of 2017, as proposed, “prohibits 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 expressly authorizing such strike.” However, the President would still wield sole authority for retaliatory strikes, i.e., those made in response to a nuclear attack, and the bill has lingered in committee for three years.
The circumstances of 2021 appear to be 1974 repeating itself. President Nixon purportedly made Congressmen apprehensive during a meeting, musing that “I can go in my office and pick up a telephone, and in 25 minutes, millions of people will be dead.” Senator Alan Cranston phoned the-Secretary of Defense James Schlesinger, warning about “the need for keeping a berserk president from plunging us into a holocaust.” Schlesinger recalled years later that in the final days of the Nixon presidency he had issued an unprecedented set of orders: If the President gave any nuclear launch order, military commanders should check with either him or Secretary of State Henry Kissinger before executing them.”
Fast forward to the present-day, as aforementioned, former Secretary of Defense William Perry described the US’ current predicament to journalist Jonathan Granoff:
“Trump still has ‘sole authority’ to launch, and the military have no authority to stop him, unless they have reason to believe the order is illegal. That is cold comfort, because it is unlikely that the military would question whether a valid order from the president is ‘legal.’ However, in the present circumstances, questioning would certainly be in order.”
If Trump refrains from using his sole authority over nuclear weapons in the dwindling days of his administration, what happens to the ‘nuclear football’ – and Trump’s ability to launch a nuclear strike – if Trump skips Biden’s inauguration?
There are believed to be several “nuclear footballs”, said Stephen Schwartz, a non-resident senior fellow at the Bulletin of the Atomic Scientists, so “[i]f Trump blows off the inauguration, then presumably he will have an aide with the ‘football’ with him until noon and an aide with another ‘football’ will be at the Capitol ready to start following Biden around after he is sworn in.” If it comes to that, it is speculated that Biden’s designated military aide will carry the football, while Mr Trump’s ability to use his would cease.
Kevin Govern is a Professor of Law at Ave Maria School of Law, and Executive Board Member at the University of Pennsylvania Law School’s Center for Ethics and the Rule of Law. He began his legal career as a US Army Judge Advocate, serving 20 years at every echelon during peacetime and war in worldwide assignments involving every legal discipline. He has also served as an Assistant Professor of Law at the United States Military Academy and has taught at California University of Pennsylvania and John Jay College of Criminal Justice.
Suggested citation:Kevin Govern, The Gold Code Standard Revisited: The Danger Of Sole Presidential Authority Over Nuclear Weapons , JURIST – Academic Commentary, January 19, 2021, https://www.jurist.org/commentary/2021/01/kevin-govern-presidential-power-nuclear-weapons/.
This article was prepared for publication by Khushali Mahajan, a JURIST staff editor. Please direct any questions or comments to her at commentary@jurist.org
