Nuclear weapons quandary
Gen. Mark Milley, chairman of the Joint Chiefs of Staff, reportedly was concerned that former President Trump was so psychologically troubled that he might misuse nuclear weapons after losing re-election.
The Washington Post reports that, according to a new book by Bob Woodward and Robert Costa, Milley "summoned senior officers to review the procedures for launching nuclear weapons, saying the president alone could give the order - but, crucially, that he, Milley, also had to be involved."
If true, the general's statement was, as the late Secretary of State Dean Acheson once said, "clearer than truth." The president, as commander in chief, can order the Secretary of Defense to direct a combatant command, such as U.S. Strategic Command, to use nuclear weapons. The chairman of the Joint Chiefs is the principal military adviser to the president, the seniormost uniformed member of the armed services, and a statutory adviser to the National Security Council. But while the chairman can transmit communications from the president and defense secretary to combatant commanders, he does not command any combatant forces.
Of course, any president should seek the Joint Chiefs' military advice about using nuclear weapons, and communications rehearsals for potential nuclear crises anticipate such discussions. But if the chairman of the Joint Chiefs were, for example, killed in an enemy attack or otherwise incommunicado, there is no legal reason that a presidential launch order could not proceed without his involvement. What Woodward and Costa imply is that Milley suggested that nuclear weapons could not be launched without his permission, and legally speaking, this is not true.
That said, the chairman's predicament presents serious questions for our country.
U.S. military officers swear to support, defend and bear true faith and allegiance to the Constitution, which under Article II vests the president with executive authority, makes him commander in chief of the U.S. armed forces, and gives him the power to appoint senior officers with the Senate's advice and consent. The president can be removed if he is impeached by a majority of the House and convicted by two-thirds of the Senate of treason, bribery or "other high crimes and misdemeanors," or, under the 25th Amendment, if the vice president and a majority of, essentially, the Cabinet notify Congress that the president is "unable to discharge the powers and duties of his office." If the president contests the vice president's assertion of his inability, Congress resolves the issue, with a two-thirds majority of each chamber needed to depose the president.
Officers can disobey orders that they believe to be immoral or unwise, but in so doing, they risk being removed and punished; they ought to be prepared to resign over matters of principle. Officers must disobey illegal orders; in fact, they have an affirmative obligation to do so, and to report to appropriate authorities that an illegal order was given.
There is no legal provision for an officer to disobey a lawful order, frustrate its execution, and remain in the chain of command. That is not to say that this has never been done. Famously, Defense Secretary James Schlesinger, albeit a civilian, was prepared to disobey and frustrate the execution of any nuclear launch order given by an alcoholimpaired President Nixon during the depths of Watergate. Less well known are Army officers who deliberately disobeyed President Buchanan's unwise orders to allow the Confederacy to seize certain federal arms and munitions in the South between Abraham Lincoln's election and inauguration.
Schlesinger and those Union officers acted illegally - but morally - and are viewed well by history. If Woodward and Costa are correct in suggesting that Milley sought to thwart an ill-advised nuclear launch order from what he believed to be a psychologically impaired president, the same may be said of him, since there could be no greater good than preventing an unnecessary war that would kill millions of innocent people.
A better path would have been for the chairman to demand that his civilian superiors, Vice President Mike Pence and Acting Secretary of Defense Christopher Miller, convene the Cabinet (to which they, but not he, belong) to discuss invoking the 25th Amendment. Perhaps Milley did so - and the Senate Armed Services Committee should ask him when he testifies later this month.