Gen­eral: Il­le­gal order can be re­fused

Se­nate panel ques­tions re­tired nuke com­man­der, ex­perts about launch rules

Arkansas Democrat-Gazette - - NATIONAL - ROBERT BURNS AND RICHARD LARD­NER THE AS­SO­CI­ATED PRESS More in­for­ma­tion on the Web Trump’s ap­point­ments, or­ders, more arkansason­line.com/pres­i­dent­trump

WASH­ING­TON — A re­tired Air Force gen­eral told the Se­nate on Tues­day that an order from Pres­i­dent Don­ald Trump or any of his suc­ces­sors to launch nu­clear weapons can be re­fused by the top of­fi­cer at U.S. Strate­gic Com­mand if that order is de­ter­mined to be il­le­gal.

Dur­ing tes­ti­mony be­fore the For­eign Re­la­tions Com­mit­tee, re­tired Gen. Robert Kehler said the U.S. armed forces are ob­li­gated to fol­low le­gal or­ders, not il­le­gal ones. Kehler, who served as the head of Strate­gic Com­mand from Jan­uary 2011 to Novem­ber 2013, said the le­gal prin­ci­ples of mil­i­tary ne­ces­sity, distinc­tion and pro­por­tion­al­ity also ap­ply to de­ci­sions about nu­clear weapons use. The com­mand would con­trol nu­clear forces in a war.

Sen. Ben Cardin of Mary­land, the com­mit­tee’s top-rank­ing Demo­crat, asked Kehler if that means Strate­gic Com­mand can deny the pres­i­dent’s order if it fails the test of pro­por­tion­al­ity and le­gal­ity.

“Yes,” Kehler re­sponded, adding such a sit­u­a­tion would lead to a “very dif­fi­cult con­ver­sa­tion.” It might prompt a pres­i­dent to put a new gen­eral in charge to carry out his order, said Brian McKeon, a for­mer act­ing un­der­sec­re­tary of de­fense for pol­icy dur­ing Pres­i­dent Barack Obama’s ad­min­is­tra­tion, who tes­ti­fied along­side Kehler.

Bruce Blair, a for­mer nu­clear mis­sile launch of­fi­cer and a co-founder of Global Zero, an in­ter­na­tional move­ment for the elim­i­na­tion of nu­clear weapons, said that even if a fourstar com­man­der of nu­clear forces be­lieved a pres­i­den­tial launch order to be il­le­gal, he could not stop it be­cause the order si­mul­ta­ne­ously goes to him and to launch crews in the

field. The com­man­der could try to over­ride the order by send­ing a launch ter­mi­na­tion order, Blair said.

“But it would be too late,” he said.

The hear­ing comes as the threat of nu­clear at­tack from North Korea re­mains a se­ri­ous con­cern and Trump’s crit­ics ques­tion his tem­per­a­ment. Trump’s taunt­ing tweets aimed at Pyongyang have sparked con­cerns pri­mar­ily among con­gres­sional Democrats that he may be in­cit­ing a war with North Korea.

“Let me pull back the cover for a minute from this hear­ing,” said Sen. Chris Mur­phy, D-Conn., who has been highly crit­i­cal of Trump. “We are con­cerned that the pres­i­dent of the United States is so un­sta­ble, is so volatile, has a de­ci­sion-mak­ing process that is quixotic, that he might order a nu­clear weapons strike that is wildly out of step with U.S. na­tional se­cu­rity in­ter­ests.”

But if a pres­i­dent’s order to fire nu­clear weapons, even pre-emp­tively, is de­ter­mined to be sound and le­gal, there’s no one who can stop him.

Not Congress. Not his sec­re­tary of de­fense. And by de­sign, not the mil­i­tary of­fi­cers who would be duty-bound to ex­e­cute the order.

As then-Vice Pres­i­dent Dick Cheney ex­plained in De­cem­ber 2008, the pres­i­dent “could launch a kind of dev­as­tat­ing at­tack the world’s never seen. He doesn’t have to check with any­body. He doesn’t have to call the Congress. He doesn’t have to check with the courts.”

And the world has changed even more in the decade since, with North Korea pos­ing a big­ger and more im­me­di­ate nu­clear threat than had seemed pos­si­ble. The na­ture of the U.S. po­lit­i­cal world has changed, too, and Trump’s op­po­nents — even within his own party — ques­tion whether he has too much power over nu­clear weapons.

Some as­pects of pres­i­den­tial nu­clear war-mak­ing pow­ers are se­cret and there­fore not well un­der­stood by the pub­lic. The sys­tem is built for fast de­ci­sion-mak­ing, not de­bate. That’s be­cause speed is seen as es­sen­tial in a cri­sis with a nu­clear peer like Rus­sia. Un­like North Korea, Rus­sia has enough nu­clear weapons to de­stroy the U.S. in min­utes.

Rus­sia’s long-range mis­siles could reach the U.S. in about 30 min­utes. Sub­ma­rine-launched mis­siles fired from nearer to U.S. shores might ar­rive in half that time. Given that some of the U.S. re­sponse time would be taken up by ad­min­is­tra­tive steps, the pres­i­dent would have less than 10 min­utes to ab­sorb the in­for­ma­tion, re­view his op­tions and make his de­ci­sion, ac­cord­ing to a De­cem­ber 2016 re­port by nu­clear arms spe­cial­ist Amy Woolf of the Con­gres­sional Re­search Ser­vice.

A pres­i­dent who de­cided to launch a nu­clear at­tack — ei­ther in re­tal­i­a­tion for a nu­clear strike or in an­tic­i­pa­tion of one — would first hold an emer­gency con­fer­ence with the de­fense sec­re­tary, the Joint Chiefs of Staff chair­man and other ad­vis­ers. The com­man­der of U.S. Strate­gic Com­mand, now Air Force Gen. John Hyten, would brief the pres­i­dent on strike op­tions, and the pres­i­dent would make his de­ci­sion.

The pres­i­dent would com­mu­ni­cate his de­ci­sion and trans­mit his au­tho­riza­tion through a de­vice called the nu­clear foot­ball, a suit­case car­ried by a mil­i­tary aide. It’s equipped with com­mu­ni­ca­tion tools and a book with pre­pared war plans.

If the pres­i­dent de­cided to order a strike, he would iden­tify him­self to mil­i­tary of­fi­cials at the Pen­tagon with codes unique to him. These codes are recorded on a card known as the bis­cuit that is car­ried by the pres­i­dent at all times. He would then trans­mit the launch order to the Pen­tagon and Strate­gic Com­mand.

Blair said there is no way to re­v­erse the pres­i­dent’s order. And there would be no re­call­ing mis­siles once launched.

AP/PABLO MARTINEZ MONSIVAIS

Re­tired Air Force Gen. Robert Kehler, the for­mer com­man­der of the U.S. Strate­gic Com­mand, tes­ti­fies Tues­day at a Se­nate For­eign Re­la­tions Com­mit­tee hear­ing in Wash­ing­ton.

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