Time to Restrict the President’s Power to Wage Nuclear War

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Under Article I of the Constitution, only Congress can declare war. Yet during America’s numerous wars since World War II, presidents have never sought such authorization. The major reason? Nuclear weapons. There was widespread agreement that the president needed maximum flexibility to respond to a Soviet attack and that involving Congress would cause undue delays in a moment of crisis. As a result, the president has had essentially unchecked power to wage war, including launching a nuclear strike.

However, strategic planners understood the risks of enabling a single officer in a silo in North Dakota, perhaps under the most stressful conditions imaginable, to initiate a nuclear strike. The nuclear command-and-control system therefore entailed a “two key” system requiring simultaneous actions by two officers to activate a launch.

The time is long overdue to introduce comparable checks at the highest levels of the executive branch. The strategic circumstances faced by the United States today are altogether different from those during the Cold War. Despite heightened tensions triggered by Russian revanchism in Ukraine and elsewhere in Central and Eastern Europe, the real risk of nuclear war emanates from a rogue actor, and North Korea heads the list. Almost casual presidential invocations of fire and fury have rendered circumstances far more dangerous.

The United States should in no way diminish its ability to respond to a nuclear or conventional attack by North Korea against United States territory or the territory of an ally. However, we should put in place a system of constraints to ensure that a preventive or pre-emptive nuclear strike by the United States must be evaluated through a careful, deliberative process.

Congress should therefore amend the War Powers Act to cover the possibility of preventive or pre-emptive nuclear strikes. This would ensure that the president could not simply provide the codes to his military aide carrying the nuclear “football” and launch such an attack on his own authority.

Legislation should provide for a small group of officials, possibly including the vice president, the secretary of defense, the chairman of the Joint Chiefs of Staff and the four leaders of the House and Senate, to give unanimous consent to any such nuclear strike. It would ensure that multiple sets of eyes, equipped with stable emotions and sound brains, would be able to prevent such a nuclear strike undertaken without appropriate deliberation.

This proposal would raise difficult constitutional questions. All presidential administrations have deemed the War Powers Act to be unconstitutional. Giving officers appointed by the president and subject to his direction formal veto power over military decisions could be problematic and precedent setting. If so, confining the veto power to the congressional leadership might be a preferable alternative.

Even during the Cold War, there was great risk in ceding to one person the ability to kill millions in a flash. There is no good reason to enable an American president to retain absolute authority in circumstances completely unlike those faced during the Cold War.

Assurances that nuclear weapons remain an option of absolute last resort, to be considered only after the concurrence of leaders from the executive branch and from the Congress, would also calm the nerves of United States allies deeply troubled by loose talk about the resort to nuclear weapons.

This is not to suggest that President Trump nurses some secret desire to launch a nuclear attack. However, the United States needs to act very prudently in dealing with an isolated and uniquely adversarial state. For its part, Congress has the power to prevent hair-trigger responses or impulsive actions that could lead to nuclear war.

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