Nuclear strikes: Command versus consultation

The authority to launch a nuclear attack rests with the president and the president alone.

By law, the president gives the order to the defense secretary, who then gives it to the head of the U.S. Strategic Command.

The protocol was established in the early 1960s, at a time when the advance notice of an incoming nuclear attack had shrunk to just a few minutes, recalled nuclear policy expert Bruce Blair in a 2017 interview. To ensure that a nuclear counter-launch could be mustered on such short notice, authority was concentrated within a small number of officials, and it involved civilians, rather than just the military, because at the time, there was greater concern about military brass going rogue than the president.

As a result, the chairman of the Joint Chiefs is not part of that chain.

However, the chairman is expected to be part of the process leading up to the decision to launch a nuclear strike. The Defense Department’s Nuclear Matters Handbook says that in a crisis, there is a full discussion of the odds of success, as well as the legal, diplomatic and strategic implications of a strike.

“The President bases this decision on many factors and will consider the advice and recommendations of senior advisors, to include the Secretary of Defense, the Chairman of the Joint Chiefs of Staff, and the combatant commanders,” the handbook says.

In practice, Milley would have a role, but it’s not a legal requirement.

“The chairman of the Joint Chiefs of Staff is the statutory military adviser to the president, but that does not mean the president has to consult him,” said Lindsay Cohn, Naval War College professor of national security affairs. “There is nothing to stop the president or the Secretary of Defense from simply communicating the order directly to the STRATCOM commander, who would then have to make his own determination about the legality of the order.”

But law alone wouldn’t necessarily dictate what happens. By convention, orders flow through the chairman, said James Joyner, Marine Corps University professor.

“The orders to the combatant commanders are typically conveyed via the chairman as a matter of process,” Joyner said. “The chairman has zero authority to countermand the president. And there’s no legal requirement for orders to go through the chairman. But as a matter of practice, they ordinarily do.”

The difference between ordering a launch in an immediate crisis — such as a clear threat of nuclear attack by an enemy — and in response to a problem that unfolds over time is key, said Peter Feaver, an expert on civil-military relations and a political science professor at Duke University.

“An order that followed normal protocols would come via Milley and, if it didn’t come via Milley, that should raise red flags, and they should investigate further rather than react without thinking,” Feaver said.

There was also nothing blocking Milley from calling a meeting of senior officers.

“There are no guidelines, rules or conventions around what the chairman can talk about with the various commanders,” Cohn said. “He does not have military or operational authority over them, so anything he says to them would be in the way of advice, instruction, communication or coordination. Whether the discussion is inappropriate or not would, I think, depends entirely on what was said.”

Finally, there is the question of whether conducting a nuclear attack would be legal. Nuclear policy expert John Pike at globalsecurity.org said the Uniform Code of Military Justice requires officers to disobey unlawful orders.

“It is certainly reasonable for officers to discuss what might constitute such an unlawful order,” Pike said. “Starting a global thermonuclear war under current circumstances would violate UCMJ requirements that the use of force must be proportionate in the service of military necessity, and would probably constitute a crime against peace and a crime against humanity.”

In recent years, Congress has considered inserting more officials into the decision-making process for a nuclear launch, to lessen the chance of a president’s ill-considered launch. One proposal would have the defense secretary and the attorney general in the chain of command. The attorney general would certify that the order does not violate the rules of war — that it’s proportional, that it’s not indiscriminate, and that no other alternative would be sufficient to eliminate the threat.

No such legislation has been enacted.

Calling China

The appropriateness of Milley’s call to China’s Li depends on what was said and who was in the loop.

According to the Washington Post, “Peril” quotes Milley easing Li’s concerns.

“General Li, I want to assure you that the American government is stable and everything is going to be okay,” Milley told him Jan. 8, according to the Post. “We are not going to attack or conduct any kinetic operations against you.”

By itself, such calls fall within established practice, said historian Richard Kohn at the University of North Carolina.

“I know of no written rules for such contacts other than common sense, traditional practices,” Kohn said.

And he listed them.

“Probity, cautiousness, carefulness and avoiding any compromise of American secrets, classified information, or any violations of American policy or orders from the president or secretary of defense.”

Joyner, of the Marine Corps University, said the appropriateness of Milley’s call hinges on what he said.

“If Milley simply reassured his counterpart, in a room full of other officials that was very much on the record, that the U.S. had no intention of starting a war with China, it’s not only acceptable but sound,” Joyner said.

But, Joyner added, if it turned out that Milley said he would refuse to obey an order from Trump to launch attacks, that would be “highly inappropriate.”