On Removing Presidential First Use
The United States’ president can, without congressional permission or expert consultation, order the firing of nuclear weapons at any time and – so long as the nuclear football (a briefcase containing the nuclear codes and firing command) is present – from anywhere. The entire process, from the president opening the football to nuclear tipped missiles raining down from the sky, can take only five minutes.
It was, therefore, alarming when allegations surfaced that former Secretary of Defense James Mattis attempted to insert himself into the nuclear chain of command to pre-empt a nuclear first strike ordered by the president. If true, it is a startling revelation of insubordination to the president’s unilateral control over nuclear weapons. However, concern over the president’s unrestricted use of nuclear weapons is not new. Alarm over Richard Nixon’s nuclear posturing prompted Former Secretary of Defense James Schlesinger to try to pre-empt the president in the event of nuclear launch orders. Both instances highlight the unusual nature of nuclear weapons: that a single person, with no checks or balances, has sole authority over their use. To otherwise make alliances or war, the president is remarkably constrained. As the ability to command the launch of a nuclear weapon is the ability to make war, it follows that the president’s ability to do so should similarly be constrained. This can be done either by a congressionally declared no first use (NFU) policy or by instituting a tiered activation structure of congressional and military leaders who are required to approve a nuclear strike.
Deterring an attack, conventional or nuclear, is the central purpose of the nuclear arsenal. The United States currently maintains a nuclear first use policy allowing it to use nuclear weapons regardless of whether another state has also used them. An adversary’s knowledge of a U.S. nuclear arsenal unconstrained by bureaucratic decision-making should force restraint under the assumption that even a conventional attack could provoke a U.S. nuclear response.
Those who advocate against first use would tell us there is no credible situation under which the United States could conceivably use nuclear weapons first — the present-day consequences are too great. Yet the Mattis situation shows otherwise. If a president would, as Donald Trump reportedly considered with North Korea, push the proverbial nuclear button over a mere war of words, risking war and the lives of millions, then the president should either be relieved of that power or forced to seek confirmation to use it.
An NFU policy would delegitimize the use of nuclear brinksmanship by future presidents, and pre-empt the need for insubordination, relieving future Mattises and Schlesingers of their conviction to stop a nuclear war. It would also deny future presidents the latitude to respond to non-nuclear events such as “major cyber attacks” and “non-nuclear attacks against command-and-control systems”, two potential and vague category responses outlined in initial drafts of the 2018 Nuclear Posture Review (NPR) and not explicitly excluded from the final draft. These are notably ambiguous events that may not have an immediately clear or even state-based antagonist, creating an emergency ripe for nuclear misjudgment.
An NFU policy only restricts the president from being the first to use a nuclear weapon. The president would still maintain an unrestricted capacity to respond to a nuclear attack. It remains to each administration to determine just how unrestricted that capacity is; for example, does it extend to attacks on the United States’ allies or Members of the Non-Proliferation of Nuclear Weapons Treaty (NPT), as under the Obama administration?
There should be exceptions, however. During a congressionally declared act of war, the president could have NFU waived by a senate vote in consultation with the Joint Chiefs of Staff, the president’s highest ranking advisory body outside of his or her administration. This tiered activation structure could be used under extreme and existential circumstances during wartime. It would require a unanimous sign-off from the Joint Chiefs before heading to the Senate where a two-thirds vote would be required. Any senate vote would be an emergency session, requiring immediate attendance from members. One drawback is the potential for the president to urge his or her Secretary of Defense to fire those Joint Chiefs who vetoed a nuclear strike, thus undermining the process. However, any replacement must be senate-approved and any nuclear strike must be approved by all Joint Chiefs, thus providing a check to this possible abuse of power.
An NFU policy recognizes the inherent dangers in allowing a single person to have control over the most destructive force on earth. It prevents the president from using the threat of nuclear war to extort other nations, unintentionally begin an arms race, or worse – careen the world into one giant mushroom cloud. It also preserves the president’s ability to respond to any nuclear attack without restraint and, while constrained, preserves war time use as well. The United States should reverse its first use policy, legitimizing its push for global security and reducing the chances of nuclear war.