US mil­i­tary lead­ers would re­ject il­le­gal or­der for nu­clear strike, sen­a­tors told

The Guardian Australia - - World News - Ju­lian Borger in Wash­ing­ton

US mil­i­tary com­man­ders would refuse to carry out a pres­i­den­tial or­der to carry out a nu­clear first strike that they thought was il­le­gal, sen­a­tors were told on Tues­day.

The as­sur­ances came at the first con­gres­sional hear­ings since 1976 on pres­i­den­tial au­thor­ity to or­der the use of the US nu­clear ar­se­nal, against a back­ground of mount­ing con­cern over North Korea’s nu­clear pro­gramme – and Don­ald Trump’s emo­tional sta­bil­ity.

Bob Corker, the Repub­li­can chair­man of the cham­ber’s for­eign re­la­tions com­mit­tee, has ex­pressed fears that the pres­i­dent was tak­ing the coun­try “on the path to world war III”. Separately CNN re­ported on Tues­day that a “Nato part­ner coun­try” had raised con­cerns about Trump’s com­mand of the US nu­clear launch sys­tem, un­der which the pres­i­dent alone can or­der a launch.

Open­ing the hear­ing, Corker – who has re­cently been en­gaged in bit­ter ex­changes with Trump over his fit­ness for of­fice – noted that “the pres­i­dent has the sole au­thor­ity to give that or­der, whether we are re­spond­ing to a nu­clear at­tack or not”.

“Once that or­der is given and ver­i­fied, there is no way to re­voke it,” the Ten­nessee sen­a­tor said. “To be clear, I would not sup­port changes that would re­duce our de­ter­rence of ad­ver­saries or re­as­sur­ance of our al­lies. But I would like to ex­plore, as our pre­de­ces­sors in the House did 41 years ago, the re­al­i­ties of this sys­tem.”

Chris Mur­phy, Demo­cratic sen­a­tor from Con­necti­cut, said: “We are con­cerned that the pres­i­dent of the United Sta­tus is so un­sta­ble, is so volatile, has a de­ci­sion-mak­ing process that is so quixotic, that he might or­der a nu­clear weapons strike that is wildly out of step with US na­tional se­cu­rity in­ter­ests.”

Re­tired Gen Robert Kehler, com­man­der of US Strate­gic Com­mand (StratCom) from 2011 to 2013, told the Se­nate com­mit­tee that he would have re­fused to have car­ried out a nu­clear first strike on pres­i­den­tial or­ders, if he be­lieved it did not meet the re­quire­ments of pro­por­tion­al­ity and ne­ces­sity un­der the law of armed con­flict.

“I would have said: I’m not ready to pro­ceed,” Kehler said.

“Then what hap­pens?” he was asked.

“I don’t know,” he replied. “For­tu­nately, these are all hy­po­thet­i­cal sce­nar­ios. There is the hu­man fac­tor in our sys­tem. There is a hu­man el­e­ment to this.

“It would be a very in­ter­est­ing con­sti­tu­tional sit­u­a­tion, I be­lieve. The mil­i­tary is ob­li­gated to fol­low le­gal or­ders but is not ob­li­gated to fol­low il­le­gal or­ders,” Kehler said, adding that he al­ways made sure he had le­gal ad­vis­ers at hand when he was at Strate­gic Com­mand.

“If there is an il­le­gal or­der pre­sented to the mil­i­tary, the mil­i­tary is ob­li­gated to refuse to fol­low it. The ques­tion is the process lead­ing to that de­ter­mi­na­tion and how you ar­rive at that. I would con­cede to you that would be a very dif­fi­cult process and a very dif­fi­cult con­ver­sa­tion.”

Ed Markey, a Demo­cratic sen­a­tor from Mas­sachusetts who is spon­sor­ing leg­is­la­tion that would limit the pres­i­dent’s au­thor­ity to launch a first nu­clear strike, said he was not re­as­sured by Kehler’s ar­gu­ments.

“I don’t have con­fi­dence that a mil­i­tary chain of com­mand would re­ject an or­der by the pres­i­dent to launch nu­clear weapons in a pre­ven-

tative nu­clear war sit­u­a­tion,” Markey told the Guardian af­ter Tues­day’s hear­ing.

“I think that would be ab­di­cat­ing the re­spon­si­bil­ity of the US Congress to a group of gen­er­als who in many in­stances would have been ap­pointed by the com­man­der-in-chief, Don­ald Trump. That’s a very thin reed on which to have the fate of the planet be­ing de­pen­dent.”

The pres­i­dent and his top of­fi­cials have said re­peat­edly that North Korea would not be al­lowed to threaten the US with nu­clear weapons, but as Py­ongyang has per­sisted with its nu­clear and mis­sile tests, it has been un­clear what the ad­min­is­tra­tion would do to stop the regime.

In Au­gust, the na­tional se­cu­rity ad­viser, HR McMaster, raised the prospect of a “pre­ven­ta­tive war”, but many ob­servers of the Korean stand­off said any con­flict was highly likely to quickly es­ca­late into a nu­clear ex­change.

Un­der the US con­sti­tu­tion, only Congress has the power to de­clare war, but the pres­i­dent, as com­man­der-in-chief of the armed forces, has the au­thor­ity to re­spond to an ac­tual or im­mi­nent threat. Much of the Se­nate com­mit­tee hear­ing was taken up by dis­cus­sion of what con­sti­tuted an im­mi­nent threat and who could make that de­ter­mi­na­tion.

Peter Feaver, a pol­i­tics pro­fes­sor at Duke Univer­sity and a spe­cial­ist on pres­i­den­tial war pow­ers, said: “I would say dis­tin­guish be­tween sce­nar­ios where the mil­i­tary wake up the pres­i­dent ver­sus sce­nar­ios where the pres­i­dents wake up the mil­i­tary.”

Feaver added: “In the con­text where the pres­i­dent is wak­ing up the mil­i­tary in an ex­treme funk, say­ing I’m an­gry and I want some­thing done, he would re­quire a lot of peo­ple co­op­er­at­ing with him to make the strike hap­pen. And they would be ask­ing the ques­tions that would slow down that process.”

Arms con­trol ex­perts how­ever, ex­pressed doubt that lawyers would al­ways be in­volved in the de­ci­sion.

“The sys­tem is de­signed en­tirely for speed, not de­lib­er­a­tion,” said Stephen Young, a se­nior an­a­lyst at the Union of Con­cerned Sci­en­tists.

“Cer­tainly in the case of re­spond­ing to an in­com­ing at­tack, the lawyers are not in­volved. It is not clear it would be any dif­fer­ent for a nu­clear first strike, de­spite Gen Kehler’s state­ments.”

Robert Kehler, right, ad­dresses the Se­nate for­eign re­la­tions com­mit­tee. Pho­to­graph: Pablo Martinez Mon­si­vais/AP

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