“The man who laughs has simply not yet heard the horrible news.”
Berthold Brecht
An Existential Task
Until the end of his presidency – and even after his open complicity in subverting the United States Constitution on January 6, 2021 – Donald J. Trump held effectively unchecked nuclear command authority. Now, after multiple criminal indictments, this former president seeks a return to the White House. His candidacy has a distinctly real chance of success.
Credo quia absurdum, warned the ancient political philosopher Tertullian. “I believe because it is absurd.”
In explanation, details will matter. These details, both legal and political, would be determinative. For Americans, there can be no more serious or perplexing issues than presidential nuclear command authority and existential risk management.
But the facts are plain. Never in its history did this “nation of laws” countenance a leader who so eagerly embraced the “high crimes” of “seditious conspiracy.”[1] Now, with a previously repressed candor, “We the people” should finally inquire: “What does this criminal embrace mean for The Republic, especially in such conspicuously fragile times of global nuclear instability”?[2] Significantly, with the July 2023 film release of “Oppenheimer,” and the ongoing Iran-mentored war in Gaza, normally esoteric obligations of nuclear war avoidance have been brought up front and center.
There is more. Various subsidiary questions should now be considered. “In what specific nuclear policy directions should Americans now position themselves?” Looking ahead to more-or-less inevitable US nuclear crises with North Korea, China, Russia, and prospectively Iran,[3] Trump-era derelictions could hasten irremediable harm to the United States. For the moment, interested Americans remain most visibly absorbed in Russia’s criminal war against Ukraine, but this egregious “crime against peace” could sometimes be worsened by various parallel crises involving North Korea and/or China.
It will take a very capable American president to deal with several ongoing Russian-created crises. In March 2023, Moscow halted all information exchanges with Washington that had been part of the New START treaty. Vladimir Putin suspended this last-remaining nuclear arms treaty because the US and its NATO allies openly declared their support for Ukraine against Russian military aggression. Simultaneously, Putin declared his plan to deploy tactical nuclear weapons in Belarus. This more open reliance upon theatre nuclear forces stemmed from Russia’s starkly different doctrinal view of operational nuclear war thresholds.[4]
Whatever eventually happens in Ukraine and Belarus – and this could include a reciprocal American/NATO deployment of tactical nuclear weapons in Poland – the always-unpredictable world of geopolitics will remain mired in a “state of nature.”[5] Inter alia, to survive within this bitterly corrosive state, the United States will require a president who can meet the inherently steep expectations of nuclear command authority. Together with appropriate advisors, this president should be capable of very intricate kinds of dialectical reasoning,[6] and, if necessary, to display such capacities in extremis.
What about US nuclear war command authority?
An Intellectual Imperative
How could the former president’s witting indifference to nuclear doctrine and nuclear strategy have passed muster with We the People? It was, after all, the reductio ad absurdum of Donald Trump’s-unambitious “intellectual life.”[7] Today, North Korea is expanding and accelerating its nuclear-related missile tests and applicable infrastructures. It seems that Pyongyang’s nuclear program was not deeply impacted by Trump’s clumsy declarations of “love” for North Korea’s supreme leader.
If America’s battered citizens have learned anything from the history of modern world politics – from the “balance of power”[8] that was put into place after the Peace of Westphalia in 1648 – it is that any continuously unregulated system of competitive anarchy and “escalation dominance” leads to war and civilizational breakdown.[9] Though President Trump proudly favored “attitude” over “preparation,”[10] far more serious analytic thought deserves pride of place in the United States. A persistently unwinding “state of nature,” a global condition built upon intermittent aggression,[11] rancor, and belligerent nationalism,[12] has never succeeded. Even more ominously, this Hobbesian “state of war” displays no tangible signs of enhanced durability.[13]
Understanding Decisional Hazards
Serious questions continue to mount. What specific nuclear hazards now present themselves to the United States? To begin, it should finally be recognized that an inappropriate or irrational nuclear command decision by an American president is neither science fiction nor apocalyptic delusion. It is integral to the credible “texts” of history, logic, science, and mathematics.
Such a command decision is certainly conceivable. Though nothing conclusive can ever be said about the precise mathematical probability of any such fearful scenario,[14] there remain ample reasons for concern. After Trump (and possibly before Trump II), these reasons are evident and unambiguous.
There is more. In world politics, nothing ever happens ex nihilo. Americans should therefore inquire: “Might another unsteady, lawless, or deluded US president become subject to lethal forms of personal dissemblance and/or psychological debility?” Leaving aside the former president’s breathtaking venality as a person,[15] there can be no credible assurances of being able to avoid another such dissembling leadership. “Individuum est ineffable,” declares the poet Goethe, “The individual cannot be grasped.”
Our worrisome national declension has certain identifiable beginnings. From 2016 to 2020, a grievously flawed American president served with inefficient and insufficient nuclear command constraints. This bold assertion is by no means mysterious or controversial. Any US presidential order to use nuclear weapons carries an inherent expectation of witting or even visceral compliance. While key figures along the operational chain of command could sometime choose to disobey such an extraordinary order, any implicit disobedience would be deemed unlawful on its face. On September 16, 2021, authoritative testimony by the US Chairman of the Joint Chiefs of Staff, General Mark Miley, indicated just how substantially law-violating Trump’s final days had become.[16]
Derivatively generic questions ought now also to arise: “Should any future US president ever be granted extraordinary decisional authority over uncountable lives, a nuclear war-related grant that could never have been foreseen by the Founding Fathers?”[17] “Could such a lopsided allocation of nuclear decision authority faithfully represent what was originally intended by the American Constitution’s “separation of powers?” “Can anyone reasonably believe that such unhindered existential power could ever have been favored by the “Fathers”? “What about more general constraints of our wider global civilization?”[18]
At a minimum, citizens and analysts can extrapolate from Articles I and II of the Constitution that the Founders displayed primary and palpable concern about expanding Presidential power long before nuclear weapons. Such codified concern predates any science-based imaginations of apocalyptic possibility.[19] Today, in order to progress prudentially and sequentially on these issues, Americans should sincerely inquire: “What next?”
A Nuclear Scholar’s Intellectual Odyssey
It’s a question long pondered by the present writer. For me, it has represented a personal but analytic question. As an academic scholar and policy-centered nuclear strategist, I have remained involved with these core security issues (Israeli and American) for over fifty years. Some highlights of this half-century involvement may help clarify relevant elements of US nuclear military policy.
On 14 March 1976, in direct response to my query concerning the United States nuclear weapons launching authority, I received a letter from General (USA/ret.) Maxwell Taylor, a former Chairman of the US Joint Chiefs of Staff. The principal focus of this hand-written letter (attached hereto) concerned ascertainable nuclear risks of presidential irrationality.[20] Most noteworthy, in this communication, was the straightforward warning contained in General Taylor’s closing paragraph.
Ideally, Taylor cautioned wisely, presidential irrationality – an inherently grave problem – should be dealt with during an election process and not in the bewildering throes of any ongoing decisional crisis. At that point, the general understood, that it could already be too late. Hence, he concluded: “…. the best protection (against presidential irrationality) is not to elect one…”
By extrapolation, regarding America’s ongoing presidential nuclear security problem, our most compelling and still-observable lesson is not to elect “another Trump.” We must also inquire, with a more decidedly narrow but un-deflected focus: “What are actual US governing safeguards regarding the nuclear security issue?” Always, we could be more-or-less reassured, that there are redundant structural protections built into any presidential order to use nuclear weapons. These protections ought never to be disregarded.
Nonetheless, virtually all these sensible and reinforcing safeguards stop working “at the water’s edge.” They could become operative only at lower or sub-presidential nuclear command levels. Expressly and unambiguously, these safeguards do not apply to the American Commander-in-Chief.
So what should be done about the always prospective problem of presidential nuclear command authority?
Seemingly, there exist no permissible legal grounds to disobey a presidential order regarding the use of nuclear weapons. In principle, perhaps, certain senior individuals in the designated military chain of command could still choose to invoke authoritative “Nuremberg Obligations,”[21] but any such last-minute invocation would almost certainly yield to more recognizable and easily manipulated considerations of U.S. domestic law.[22]
Looking for Secure Nuclear Policy Directions
After the unprecedented Trump derangements, plausible and reasonable scenarios of nuclear war should be systematically postulated and expertly examined. For the moment, at least, if an incumbent American president operating within a chaos of his own making should issue an irrational or seemingly irrational nuclear command, the only way for the Secretary of Defense, the Chairman of the Joint Chiefs, the National Security Adviser and several possible others to obstruct this wrongful order would be “illegal” ipso facto. Under the best of circumstances, informal correctives might manage to work for a short time, but any too blithe acceptance of a “best case scenario” could hardly make realistic sense.
Such acceptance could never represent a smart or durable path to US nuclear security.
Post Covid, there are new concerns. Under the conceivably worst of possible strategic circumstances – conditions which could never simply be wished away by fiat – certain designated and authoritative decision-makers would be laid low by “biological” or disease-based adversaries. What then?
At a minimum, US strategic analysts ought to inquire promptly about more suitably predictable and promising institutional safeguards. These structural barriers could better shield Americans from a prospectively debilitated or otherwise compromised US president. “The worst,” says Friedrich Durrenmatt instructively, “does sometimes happen.”
The Swiss playwright’s assertion is unassailable.
There is more. The US is already navigating in “uncharted waters.” While President John F. Kennedy did engage in personal nuclear brinkmanship with the Soviet Union back in October 1962, he had calculated the odds of a consequent nuclear war as “between one out of three and even.” This crazily precise calculation, corroborated by JFK biographer Theodore Sorensen and by my private conversations with former JCS Chair Admiral Arleigh Burke (my lecture colleague and roommate at the Naval Academy’s Foreign Affairs Conference of 1977) suggests that President Kennedy was either (1) technically irrational in imposing his Cuban “quarantine;” or (2) wittingly acting out untested principles of “pretended irrationality.”
In markedly stark contrast to America’s barely-survived “Trump Moment,” JFK was operating with tangibly serious and intellectually capable advisors. He did not choose Adlai Stevenson to represent the United States at the United Nations because he was “glamorous” (an absurd standard of selection openly favored by former US President Donald J. Trump). Stevenson was chosen because he was intellectually gifted, educationally prepared, and diplomatically skilled.
In all likelihood, the most urgent threat of a mistaken or irrational U.S. presidential order to use nuclear weapons would flow not from any “bolt-from-the-blue” nuclear attack[23] – whether Russian, North Korean, Chinese or American (the last scenario assuredly expressed as a permissible preemption[24]) – but from sequentially uncontrollable processes of escalation. In 1962, Soviet premier Nikita Khrushchev “blinked” early on in the “game,” thereby preventing any irrecoverable nuclear harm. Going forward, Americans ought never to minimize or discount potentially unstable nuclear decision-making consequences.
“Escalation Dominance” and Nuclear War
An American president should always be made to understand the grave risks of being locked into any stubborn or refractory escalatory dynamic with an adversarial country. In such cases, the only available decisional options would be a presumptively abject American capitulation or some presently unpredictable form of nuclear warfighting. Though any US president could sometimes be well advised to seek “escalation dominance”[25] in selected crisis circumstances/negotiations, he/she would still need to avoid any catastrophic miscalculations. This overriding need would not even factor in any potentially intersecting problems of hacking intrusion, nuclear accident, or intellectual limitation/impairment.[26]
For the immediate future, imperatives concerning miscalculation avoidance could apply most directly to various plausible one-upmanship narratives involving North Korea’s Kim Jung Un.[27] In such narratives, much would depend upon more-or-less foreseeable “synergies” between Washington and Pyongyang and on difficult-to-control penetrations of cyber-conflict or cyber-war. Americans might sometime even have to acknowledge the bewildering interference of cyber-mercenaries, unprincipled/non-ideological third parties working only for personal or corporate compensation.
Whether Americans like it or not, and at one time or another, nuclear strategy is a challenging “game” that a US President will have to “play.” This will not be a contest for intellectual “amateurs” or for leaders lacking in requisite “will.”[28] To best ensure that a too-easily-distracted president’s strategic moves would remain determinedly rational, thoughtful, and cumulatively cost-effective, it would first be necessary to enhance the formal decisional authority of his/her most senior military-defense subordinates.
As an indispensable and expressly welcome corollary, any such enhancement would be at the calculable expense of pertinent presidential authority.
There are salient particulars. At a minimum, the Secretary of Defense, Chairman of the Joint Chiefs of Staff, the National Security Advisor, and one or two others in appropriate nuclear command positions would need to prepare comprehensively and competently in advance. These figures would need to prepare to assume more broadly collaborative and secure judgments in extremis.[29]
Responsibilities of “The People”
Such proposed widening of nuclear authority could never be “guaranteed.” In the end, following General Maxwell Taylor’s letter to me of 14 March 1976 (attached), the best protection is still “not to elect” a president who is discernibly unfit for national leadership responsibility. Beyond any reasonable doubt (an evidentiary judicial standard that also fits well in this partially extra-judicial context), we are discussing an incomparable leadership responsibility. “The safety of the people,” intoned Cicero long before the nuclear age, “is the highest law.”[30]
There is something else. From the standpoint of correctly defining all relevant dangers, it is important to bear in mind that “irrational” does not necessarily mean “crazy” or “mad.” More specifically, prospectively fateful expressions of US presidential irrationality could take different and variously subtle forms.[31] These forms, which could remain indecipherable or latent for a long time, would include (a) a disorderly or inconsistent value system; (b) computational errors in calculation; (c) an incapacity to communicate correctly or efficiently; (d) random or haphazard influences in the making or transmittal of strategic decisions; and (e) internal dissonance generated by some structure of collective decision-making (i.e., assemblies of authoritative individuals who lack identical value systems and/or whose organizational arrangements impact their willing capacity to act as unitary national decision maker).
From the singularly critical standpoint of US nuclear weapon control issues (problematic issues[32] likely to be worsened by any continuous American strategic postures of “First Use” and/or “Launch on Warning,”), legitimate reasons to worry about future American presidencies do not hinge on expectations of “craziness.” Rather, looking over the above list of five representative decisional traits, there is already good reason not for worry per se (which by itself could never represent a rational or purposeful US reaction), but for suitably non-partisan objectivity and more consistently calculable prudence. To be sure, it won’t be easy to make tangible progress along this front, and it won’t necessarily succeed longer-term by electing a different president.[33] But for the United States, there are no recognizably sensible alternatives.
For the indefinite future, US national security and US survival will require the prompt and law-based restraint of any patently flawed American president. It follows further that the security benefits of such needed restraints would confer security benefits on the world as a whole. In principle, at least, the full importance of any such corollary or “spillover” benefit could prove substantial.
The United States must take heed. If Americans should ever decide to abide another blatantly law-violating[34] and science-averse president, perhaps even a Trump-return in 2024, they could be risking nothing less than national survival. Accordingly, there can be no more urgent task than to clarify and refine America’s nuclear command authority.[35] To fail in this indispensable task[36] could never represent a tolerable policy outcome.
Berthold Brecht would have understood. Though many might still “laugh” at the idea of an irrational or incompetent American president in charge of US nuclear weapons, these doubters would elicit a succinct. prompt and persuasive response from the playwright. They would be instructed as follows: We “simply have not yet heard the horrible news.”
Louis René Beres, Ph.D. Princeton (1971), is Emeritus Professor of International Law at Purdue. The Chair of “Project Daniel” for Israeli PM Arik Sharon (nuclear decision-making regarding Iran, 2003-2004), he is the author of many major books and articles dealing with nuclear strategy and nuclear war. His twelfth book, Surviving Amid Chaos: Israel’s Nuclear Strategy, was published by Rowman & Littlefield in 2016 (2nd. ed., 2018) http://www.israeldefense.co.il/en/content/surviving-amid-chaos-israels-nuclear-strategy 2nd edition, 2018. In December 2016, a widely circulated monograph with special postscript by retired USA General Barry McCaffrey was published at Tel Aviv University, Israel: https://sectech.tau.ac.il/sites/sectech.tau.ac.il/files/PalmBeachBook.pdf Professor Beres has published on U.S. nuclear command authority issues together with General (USAF/ret.) John T. Chain (a former Commander-in-Chief, U.S. Strategic Air Command) and Admiral (USN/ret.) Leon “Bud” Edney (a former NATO Supreme Allied Commander). He has been a contributor to The New York Times; Israel Defense; US News & World Report; Bulletin of the Atomic Scientists; Yale Global Online (Yale University); World Politics (Princeton); The Atlantic; The Hill; Oxford University Press; The Jerusalem Post; The Strategy Bridge; Global-e (University of California, Santa Barbara); BESA Perspectives (Israel); Modern Diplomacy; International Journal of Intelligence and Counterintelligence; Parameters: Journal of the U.S. Army War College; Special Warfare (Pentagon); Modern War Institute (West Point); The War Room (Pentagon); International Security (Harvard University); Daily Princetonian; The Brown Journal of World Affairs; JURIST; Harvard National Security Journal (Harvard Law School) and Horasis (Zürich).
Dr. Louis René Beres was born in Zürich, Switzerland at the end of World War II.
References
[1] Concerning such egregious crimes, “seditious conspiracy” is codified at 18 US Code, Section 2384, and discussed by Harvard Law Professor (Emeritus) Laurence Tribe at The Harvard Gazette, October 7, 2021.
[2] The Devil in George Bernard Shaw’s Man and Superman observes correctly that “Man’s heart is in his weapons….in the arts of death he outdoes Nature herself…. when he goes out to slay, he carries a marvel of mechanisms that lets loose at the touch of his finger all the hidden molecular energies….”
[3] For an analysis of deterring not-yet-nuclear adversaries in the case of Israel, see article co-authored by Professor Louis René Beres and (former Israeli Ambassador) Zalman Shoval at the Modern War Institute, West Point (Pentagon): https://mwi.usma.edu/creating-seamless-strategic-deterrent-israel-case-study/ Though not apt to represent a US nuclear crisis per se, any future hostilities between India and Pakistan could suddenly or incrementally draw in the United States. This is especially the case if China and/or Russia were discernibly involved.
[4] See, by this writer, at The War Room (Pentagon): Louis René Beres, https://warroom.armywarcollege.edu/articles/friction/
[5] Thomas Hobbes, the 17th- century English philosopher, argues that the “state of nations” is the only true “state of nature,” that is, the only such “state” that actually exists in the world. In Chapter XIII of Leviathan (“Of the Natural Condition of Mankind, as concerning their Felicity, and Misery”), Hobbes says famously: “But though there had never been any time, wherein particular men were in a condition of war, one against the other, yet in all times, kings and persons of sovereign authority, because of their independence, are in continual jealousies, and in the state and posture of gladiators; having their weapons pointing, and their eyes fixed on one another; that is their forts, garrisons, and guns upon the frontiers of their kingdoms, and continual spies upon their neighbors, which is a posture of war.”
[6] Dialectical thinking originated in Fifth Century BCE Athens, as Zeno, author of the Paradoxes, had been acknowledged by Aristotle as its inventor. In the middle dialogues of Plato, dialectic emerges as the supreme form of philosophic/analytic method. The dialectician, says Plato, is the “special one” who knows how to ask and then answer vital questions. From the standpoint of necessary refinements in US nuclear command authority, this knowledge ought never be taken for granted.
[7] “Intellect rots the brain” shrieked Joseph Goebbels at a Nuremberg Germany rally in 1935. “I love the poorly educated” echoed American presidential candidate Donald Trump at a 2016 rally in the United States. Perhaps to authenticate his flaunted anti-intellectualism, Trump went on to propose household bleach as a Covid-19 treatment; urge the use of nuclear weapons against hurricanes; and praise American revolutionary armies in the 18th century for “gaining control of all national airports.”
[8] Since the 1648 Peace of Westphalia, the idea of a law-based balance of power – an idea of which the nuclear-age balance of terror represents a current variant – has never been more than a facile metaphor. Treaty language notwithstanding, this idea has never had anything to do with ascertaining or maintaining any “true and just equilibrium.” As any such balance must be a matter of individual subjective perceptions, adversarial states can never be sufficiently confident that strategic circumstances of the moment are legally “balanced” in their favor. As each side must fear perpetually that it will be “left behind,” the corresponding search for balance can only produce ever-widening patterns of disequilibrium. History, of course, confirms such logic.
[9] On the plausible consequences of a nuclear war by this author, excluding any now pertinent synergies with disease pandemic, see: Louis René Beres, Apocalypse: Nuclear Catastrophe in World Politics (Chicago: University of Chicago Press, 1980); Louis René Beres, Mimicking Sisyphus: America’s Countervailing Nuclear Strategy (Lexington, Mass., Lexington Books, 1983); Louis René Beres, Reason and Realpolitik: U.S. Foreign Policy and World Order (Lexington, Mass., Lexington Books, 1984); Louis René Beres, Security or Armageddon: Israel’s Nuclear Strategy (Lexington, Mass., Lexington Books, 1986); and Louis René Beres, Surviving Amid Chaos: Israel’s Nuclear Strategy (Rowman & Littlefield, 2016; 2nd ed., 2018).
[10] This intellectually barren sentiment was first made explicit by Mr. Trump immediately prior to his June 12, 2018 Singapore Summit with Kim Jung Un.
[11] On aggression as a specific crime under international law, see RESOLUTION ON THE DEFINITION OF AGGRESSION, Dec. 14, 1974, U.N.G.A. Res. 3314 (XXIX), 29 U.N. GAOR, Supp. (No. 31) 142, U.N. Doc. A/9631, 1975, reprinted in 13 I.L.M. 710, 1974; and CHARTER OF THE UNITED NATIONS, Art. 51. Done at San Francisco, June 26, 1945. Entered into force for the United States, Oct. 24, 1945, 59 Stat. 1031, T.S. No. 993, Bevans 1153, 1976, Y.B.U.N. 1043.
[12] United States law, as it was founded upon the learned jurisprudence of Sir William Blackstone, acknowledges, inter alia, a ubiquitous obligation of all states to help one another. More precisely, according to Blackstone, each state is expected “to aid and enforce the law of nations, as part of the common law, by inflicting an adequate punishment upon offenses against that universal law….” See: 2 William Blackstone, Commentaries on the Laws of England, Book 4, “Of Public Wrongs.” Lest anyone ask about the significance of Blackstone for current US national security decision-making, one need only remind that the Commentaries were an original and core foundation of the laws of American law. To be sure, this plain fact remained altogether unknown to former US President Donald Trump and his less than learned counselors. Trump’s force-based policies of “America First” (illustrative of the fallacy known as argumentum ad bacculum) represented the diametric opposite of what Blackstone would have expected.
[13] We may consider here the timeless insight of French Jesuit philosopher Pierre Teilhard de Chardin in The Phenomenon of Man (1959): “The egocentric ideal of a future reserved for those who have managed to attain egoistically the extremity of `everyone-for-himself’ is false and against nature.” Originally published in French as Le Phénomene Humain (1955), Paris.
[14] This is because (1) any statement of authentic probability must be based upon the determinable frequency of pertinent past events and in this present case (2) there are no pertinent past events.
[15] Comparing two US presidents from the standpoint of total personal corruption, Watergate figure John Dean succinctly concluded: “Trump is like Richard Nixon on stilts and steroids.” Similarly, Carl Bernstein, in evident understatement, called Trump a “pathological liar.” See: https://www.mediamatters.org/donald-trump/carl-bernstein-trump-pathological-liar-and-sham-businessman
[16] See by this writer, Louis René Beres: https://moderndiplomacy.eu/2021/08/13/looking-back-at-the-trump-presidency-an-informed-retrospective/
[17] The Founding Fathers of the United States were generally intellectuals. As explained by American historian Richard Hofstadter: “The Founding Fathers were sages, scientists, men of broad cultivation, many of them apt in classical learning, who used their wide reading in history, politics and law to solve the exigent problems of their time.” See Hofstadter’s Anti-Intellectualism in American Life (New York: Alfred A. Knopf, 1964), p. 145.
[18] Dostoyevsky asks the most pertinent question: “What is it in us that is mellowed by civilization? All it does, I’d say, is to develop in man a capacity to feel a greater variety of sensations. And nothing, absolutely nothing else. And through this development, man will yet learn how to enjoy bloodshed. Why, it has already happened…Civilization has made man, if not always more bloodthirsty, at least more viciously, more horribly bloodthirsty.” See: Fyodor Dostoyevsky, Notes from Underground 108 (Andrew R. MacAndrew, trans., New American Library, 1961) (1862).
[19] One of this author’s earliest books was (Louis René Beres) Apocalypse: Nuclear Catastrophe in World Politics (The University of Chicago Press, 1980).
[20] Recalling philosopher Karl Jaspers: “The rational is not thinkable without its other, the non-rational, and it never appears in reality without it.” (See Reason and Anti-Reason in our Time, 1952).
[21] See Principles of International Law Recognized in the Charter of the Nuremberg Tribunal and in the Judgment of the Tribunal; 2 August 1950.
[22] As the Constitution represents the properly conspicuous bedrock of US domestic law, and because that document stipulates that only Congress can declare war, designated military chain of command decision-makers could argue credibly that their considered interference with Presidential nuclear commands would actually be domestic law-enforcing rather than law-violating. In a controversy involving General Mark Miley (a controversy centering on the general’s alleged circumvention of presidential war-making authority), the Joint Chiefs Chair could have made this reasonable point about correct behavior more explicit.
[23] Nuclear strategic theorist Herman Kahn once introduced a subtle distinction between a surprise attack that is more-or-less unexpected and one that arrives “out of the blue.” The former, he counseled, “…is likely to take place during a period of tension that is not so intense that the offender is essentially prepared for nuclear war….” A total surprise attack, however, would be one without any immediately recognizable tension or warning signal. This particular subset of a surprise attack scenario could be difficult to operationalize for tangible national security policy benefit. See: Herman Kahn, Thinking About the Unthinkable in the 1980s (Simon & Schuster, 1984).
[24] In law, this is known as “anticipatory self-defense.” The potentially lawful option is found not in conventional international law (art. 51 of the UN Charter supports only post-attack expressions of individual or collective self-defense), but in customary international law. The most precise origins of anticipatory self-defense in such customary law lie in the Caroline, a case that concerned the unsuccessful rebellion of 1837 in Upper Canada against British rule. Following this case, the serious threat of armed attack has generally justified certain militarily defensive actions. In an exchange of diplomatic notes between the governments of the United States and Great Britain, then U.S. Secretary of State Daniel Webster outlined a framework for self-defense that did not require an antecedent attack. Here, the jurisprudential framework permitted a military response to a threat so long as the danger posed was “instant, overwhelming, leaving no choice of means, and no moment for deliberation.” See: Beth M. Polebaum, “National Self-defense in International Law: An Emerging Standard for a Nuclear Age,” 59 N.Y.U.L. Rev. 187, 190-91 (1984) (noting that the Caroline case had transformed the right of self-defense from an excuse for armed intervention into a legal doctrine). Still earlier, see: Hugo Grotius, Of the Causes of War, and First of Self-Defense, and Defense of Our Property, reprinted in 2 Classics of International Law, 168-75 (Carnegie Endowment Trust, 1925) (1625); and Emmerich de Vattel, The Right of Self-Protection and the Effects of the Sovereignty and Independence of Nations, reprinted in 3 Classics of International Law, 130 (Carnegie Endowment Trust, 1916) (1758). Also, Samuel Pufendorf, The Two Books on the Duty of Man and Citizen According to Natural Law, 32 (Frank Gardner Moore., tr., 1927 (1682).
[25] On “escalation dominance,” see article by Professor Louis René Beres at The War Room, US Army War College, Pentagon: https://warroom.armywarcollege.edu/articles/nuclear-decision-making-and-nuclear-war-an-urgent-american-problem/
[26] Anticipating 20th century Spanish thinker Jose Ortega y’Gasset (cited above), the seventeenth-century French philosopher Blaise Pascal remarks prophetically in Pensées: “All our dignity consists in thought…It is upon this that we must depend…Let us labor then to think well: this is the foundation of morality.” Similar reasoning characterizes the writings of Baruch Spinoza, Pascal’s 17th-century contemporary. In Book II of his Ethics Spinoza considers the human mind, or the intellectual attributes, and – drawing further upon René Descartes – strives to define an essential theory of learning and knowledge.
[27] See, by this writer, Louis René Beres: https://www.jurist.org/commentary/2021/04/louis-beres-north-korea-deterrence-denuclearization/
[28] The modern philosophic origins of “will” are discoverable in the writings of Arthur Schopenhauer, especially The World as Will and Idea (1818). For his own inspiration, Schopenhauer drew freely upon Johann Wolfgang von Goethe. Later, Friedrich Nietzsche drew just as freely and perhaps more importantly upon Schopenhauer. Goethe was also a core intellectual source for Spanish existentialist Jose Ortega y’Gasset, author of the singularly prophetic twentieth-century work, The Revolt of the Masses (Le Rebelion de las Masas;1930). See, accordingly, Ortega’s very grand essay, “In Search of Goethe from Within” (1932), written for Die Neue Rundschau of Berlin on the centenary of Goethe’s death (Goethe died in 1832), It is reprinted in Ortega’s illuminating anthology, The Dehumanization of Art (1948) and is available from Princeton University Press (1968).
[29] This assumes, of course, that these “chain-of-command” presidential subordinates will prove equal to their extraordinary responsibilities.
[30] On America’s “Higher Law,” see, by this writer, Louis René Beres: https://www.jurist.org/commentary/2017/07/Beres-president-trump-impeachment1/
[31] In authoritative studies of world politics, rationality and irrationality have now taken on very precise meanings. In this regard, a state is presumed to be rational to the extent that its leadership always values national survival more highly than any other conceivable preference or combination of preferences. Conversely, an irrational state is one that would not always display such a markedly specific preference ordering. On expressly pragmatic or operational grounds, ascertaining whether a particular state adversary such as Iran would be rational or irrational could become a problematic and even daunting task.
[32] The overarching issue here is inadvertent or accidental nuclear war. While an accidental nuclear war would also be inadvertent, there are forms of inadvertent nuclear war that would not necessarily be caused by mechanical, electrical or computer accident. These forms of unintentional nuclear conflict would be the unexpected result of misjudgment or miscalculation, whether created as a singular error by one or both sides to a particular (two-party) nuclear crisis escalation or by certain unforeseen “synergies” arising between any such singular miscalculations.
[33] Observed Sigmund Freud, in a lesser-known work on Woodrow Wilson: “Fools, visionaries, sufferers from delusions, neurotics and lunatics have played great roles at all times in the history of mankind, and not merely when the accident of birth had bequeathed them sovereignty. Usually, they have wreaked havoc.”
[34] In this context, law refers to both international and domestic law. These normative regulations are interpenetrating and mutually reinforcing. Recalling words used by the U.S. Supreme Court in The Paquete Habana, “International law is part of our law, and must be ascertained by the courts of justice of appropriate jurisdiction, as often as questions of right depending upon it are duly presented for their determination. For this purpose, where there is no treaty, and no controlling executive or legislative act or judicial decision, resort must be had to the customs and usages of civilized nations.” See The Paquete Habana, 175 U.S. 677, 678-79 (1900). See also: The Lola, 175 U.S. 677 (1900); Tel-Oren v. Libyan Arab Republic, 726 F. 2d 774, 781, 788 (D.C. Cir. 1984) (per curiam) (Edwards, J. concurring) (dismissing the action, but making several references to domestic jurisdiction over extraterritorial offenses), cert. denied, 470 U.S. 1003 (1985) (“concept of extraordinary judicial jurisdiction over acts in violation of significant international standards…embodied in the principle of `universal violations of international law.'”).
[35] At the same time, to act in proper conformance with pertinent international law (which is a part of US domestic or municipal law), any US president must continuously bear in mind the following: States are obliged to judge every use of force twice; once with regard to the underlying right to wage war (jus ad bellum) and once with regard to the means used in actually conducting a war (jus in bello). Following the Kellogg-Briand Pact of 1928 and the United Nations Charter (1945) there can be no plausible right to wage an aggressive war. However, the long-standing customary right of post-attack self-defense remains codified at Article 51 of the UN Charter. Similarly, subject to conformance, inter alia, with jus in bello criteria, certain instances of humanitarian intervention and collective security operations may also be consistent with jus ad bellum. The law of war, the rules of jus in bello, comprise: (1) laws on weapons; (2) laws on warfare; and (3) humanitarian rules. Codified primarily at The Hague and Geneva Conventions, these rules attempt to bring discrimination, proportionality and military necessity into belligerent calculations.
[36] “The devil must lie in the details” in any such task, and the most plausible details must concern a cautiously thoughtful expansion of authoritative US nuclear decision-makers.
