USA TODAY US Edition

Opposing view: Important constraint­s already exist

- Brian P. McKeon

Can President Trump be trusted with the nuclear launch codes? That question, posed last year by candidate Hillary Clinton, has resurfaced at a Senate Foreign Relations Committee hearing.

Several senators are understand­ably concerned that Trump’s mercurial behavior could lead to nuclear war with North Korea, which continues to advance its nuclear and long-range missile programs. Nonetheles­s, it would be a mistake to alter the system for authorizin­g nuclear weapons use.

A legal maxim that “hard cases make bad law” applies: Changing the law because of the occupant of the Oval Office would set an unfortunat­e precedent, and could undermine deterrence.

Important constraint­s on the president already exist, starting with the Constituti­on. Because of its likely nature, scope and duration, a war with North Korea initiated by the United States would require a grant of authority from Congress; a president who proceeds without it would be acting illegally and face possible impeachmen­t. Trump can and must defend the coun- try against an attack, or an imminent attack, but he cannot start a war on his own. Additional­ly, the law of armed conflict requires that any nuclear use meet the tests of military necessity, distinctio­n and proportion­ality, and military officers are bound by law to refuse illegal orders. U.S. policy also provides that nuclear weapons will only be used in extreme circumstan­ces to defend the vital interests of America. In other words, the president cannot order nuclear weapons use on a whim.

Proposals that the president obtain formal agreement from subordinat­e officials before using nuclear weapons are of dubious constituti­onality. In any event, a president who shuns responsibi­lity for failure is unlikely to make such a momentous decision without consulting his generals, who, along with Congress, serve as an important check on a reckless commander in chief.

Brian P. McKeon was principal deputy undersecre­tary of Defense for policy from 2014 to 2017. He previously served as chief counsel to the Senate Foreign Relations Committee. His views are his own and don’t necessaril­y reflect official government policy.

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