Trump, National Command Authority and Lawful Orders

The Commander of U.S. Strategic Command, General John Hyten, recently explained at a public event that the U.S. military is trained to obey all legal orders passed down the chain of command and to disobey illegal ones, even if the President himself directs the illegal act. His statement of fact, which calls to mind the oath that all enlistees and officers solemnly swear, including to “obey the orders of the President of the United States and the orders of the officers appointed over me, according to regulations and the Uniform Code of Military Justice ... ” promptly set off a media-generated controversy.

Here’s the dialogue in question.

(Moderator)  The other day I watched your predecessor, Robert Kehler, speak in the Senate Foreign Relations Committee about this incredible responsibility that you now have in that conversation with the President before nuclear things, and he said, you know, he implied he could push back.   Have you thought about that conversation you might have with the President in this sort of scenario?

But what people forget is this is a military mission and a military function.  And since the day I joined the service 36 years ago, every year I get trained in the Law of Armed Conflict.  And the Law of Armed Conflict has certain principles-- necessity, distinction, proportionality, unnecessary suffering, all those things are defined.  You know for 20 years, it was the William Calley, Mi Lai thing that we were trained on because if you execute an unlawful order you will go to jail.  You could go to jail for the rest of your life.

It applies to nuclear weapons, it applies to small arms, it applies to small unit tactics, it applies to everything, and we apply it as we go through it. It’s not that difficult.

And the way the process works; if you want to get into the details later I’ll go into the details later. The way the process works is it’s simple: I provide advice to the President, he’ll tell me what to do and if it’s illegal, guess what’s going to happen?   (Moderator: You say no)  I’m going to say, “Mr. President that’s illegal.” And guess what he’s going to do?  He’s going to say what would be legal? And we’ll come up with options of a mix of capabilities to respond to whatever the situation is and that’s the way it works. It’s not that complicated.

Many interpreted this to mean that the General, presumably like many in the media, recognize Trump is “unstable,” prompting General Hyten to think through how he would thwart a tantrum-driven order to order a first nuclear strike against Pyongyang. Articles reporting this exchange provided “context” including President Trump’s well-known “fire and fury” warning towards North Korea if it continues to threaten the United States. However, that was not what the General was responding to. He was answering a specific question involving how he would carry out a presidential order involving a category of weapons within his command. (Which made me wonder… do the folks worrying about the President’s power to direct the launch of nuclear weapons fully appreciate that President Trump, in addition to nuclear weapons, has at his disposal the largest, most powerful military with massive conventional destructive capabilities and is currently overseeing U.S. military campaigns against Islamist militants, and, despite scant recognition from most of the commentariat, doing so in a sound, responsible way that is achieving rather remarkable success? Not to mention the periodic wargaming exercises in the Pacific theater during this tense time with North Korea and its neighbors.)

General Hyten even made clear that he would advise the President on how to accomplish the ends the President deems appropriate and then carry out what the President orders once the President orders a legal course of action. What would constitute an illegal nuclear directive? Well, that is another more complicated discussion that involves issues raised in this document, which General Hyten referenced. 

But it is safe to say that President Trump, like every other President, retains the sole authority to order the delivery of nuclear weapons. However, it would take the cooperation of many people in the military—and a certain kind of people—Americans. Americans who are trained to follow the law, because unlike North Korean generals who are no more than yes-men for an inhumane dictator, American generals are still subject to the rule of law.

By way of example, General Hyten alluded to the infamous “My Lai Massacre” in which Lt. William Calley was charged and convicted of premeditated murder of Vietnamese civilians in 1968.

The event in which General Hyten’s delivered his remarks came on the heels of a hearing held by Senate Foreign Relations Committee on the topic of the President’s authority to direct the launch of nuclear weapons. Senator Rubio’s soliloquy was on point. He warned that the subject of the hearing was one the Senators “should tread lightly on” because allies who depend on U.S. nuclear assurances are watching, as are U.S. adversaries. He went on to observe, “I don't think there's any debate about imminent attack or under attack. I think we all – I would agree; I think we would all agree that President of United States has to have the capability to quickly respond if we are under attack or potential imminent attack … I think this whole debate is about first use.” Bingo. The Senators hostile to President Trump centered the questions on whether or not the President of the United States has the authority to direct the launch of nuclear weapons before an enemy does.

This question is not a new one. Arms control advocacy groups, anti-nuke ideologues, and even several Democratic U.S. Senators pushed the Obama Administration to consider ruling out the possibility that the United States would ever launch a nuclear weapon before an enemy launched one, by adopting a “no first use policy.”

The United States has long maintained a policy of “strategic ambiguity” no matter who is in the White House. This means that the United States does not say whether the President will only direct the delivery of nuclear weapons in response to a nuclear attack. This keeps our enemies guessing and has the effect of dissuading them from calculating that they can get away with attacks on the United States or our allies as long as they are not nuclear attacks. To be clearer, should the United States declare a policy of “no first use” it could have the unintended effect of making aggression against the United States or our allies more likely, not less. Thankfully, cooler heads prevailed. Despite the push from many in President Obama’s ideological corner, Defense Secretary Ash Carter publicly ruled out a policy change regarding “strategic ambiguity.”

The Trump Administration will release the next Nuclear Posture Review sometime in the coming months, which will lay out its views on the U.S. nuclear posture. No doubt the administration is taking in the advice from senior military leaders, and strategic ambiguity will remain U.S. policy.

That means President Trump will explicitly retain the right, as commander-in-chief, to order the delivery of nuclear weapons even in a situation in which nuclear weapons have not been delivered to the United States or its allies. Doing so is not necessarily illegal. 

And, as General Hyten expressed he, along with those in his command, will carry out military actions directed by the President of the United States to provide protection of the American people and our allies and to maintain a credible deterrent so that Kim in North Korea and Putin in Russia and Xi in China and anyone else contemplating aggression, knows that aggression against the United States and its allies is not worth the cost.

The generals, least of all General Hyten, are not winking and nodding to the American people about their willingness to “protect the world from President Trump.” That remains the stuff of fantasy for those who would have preferred an alternative outcome to the election.

Rebeccah Heinrichs, a senior fellow at the Hudson Institute, is an expert in nuclear deterrence and missile defense. You can follow Rebeccah on Twitter at @RLHeinrichs