President Trump, North Korea and Nuclear War

Increasingly, Donald Trump is showing palpable signs of debility. Most worrisome, in this sobering display, is the president’s conspicuously proud disregard for science, history, diplomacy, intelligence, and jurisprudence. Less easily documented, perhaps, but still worth noting, is Mr. Trump’s blithely disjointed and generally incoherent approach to affairs of state.

In just one hyperbolic talk dealing with North Korea on August 11, he managed to repeatedly thank Russian President Putin for helping to save US federal dollars (by his expulsion of many American diplomats) and also to announce a possible use of US military force against Venezuela. Venezuela?

In candor, these intellectual and emotional debilities are seriously concerning, especially when they are: (1) frequently intersecting and mutually reinforcing; (2) considered together with this President’s persistently willing subservience to his more experienced Russian counterpart; and (3) assessed within the relevant statutory and Constitutional parameters of US nuclear command authority.

In principle, at least, such alarming personal traits are not distinctive to President Donald Trump. At a more expressly generic level, they represent certain continuously complex matters about which I have been lecturing and publishing for almost half a century. If I might now be allowed to share some closely related insights, they might help us better understand just how irremediably perilous the Trump presidency could rapidly become.

In essence, the cumulative security risks we face as a nation are potentially immediate and prospectively existential. Most obvious, in this regard, is the stubbornly bewildering problem of North Korea. Here, the president’s indiscriminate confusion of belligerent rhetoric with actual power can only lead us further away from indispensable national security. To be sure, even as quixotic an adversary as Kim Jung Un can tell the critical difference between meaningful military capacity and utterly shallow bombast.

Again, it is high time for candor. We live at a moment when certain “minuscule” escalatory misjudgments in Washington or Pyongyang could sometimes create staggering and irreversible harms. Mr. Trump must finally understand that world politics are not analogous to commercial real estate and that authentic national security is not generally subject to linguistic contrivance or artful deal making.

More urgently than any other specific hazard, the President must make himself suitably informed about all pertinent nuclear conflict matters. Correspondingly, both the Congress and the citizenry must keep a much closer watch on Mr. Trump’s discernible willingness to take nuclear war seriously. In this connection, he will likely need to be reminded that no scientifically accurate estimates of nuclear war probability are logically possible. This is because true probabilities must always be based upon a determinable frequency of past events and because there has never been a nuclear war event. Never.

The American atomic bombings of Hiroshima and Nagasaki in August 1945 “don’t count” as nuclear war examples. It follows that in any upcoming nuclear crisis situations, a casually dismissive presidential stance on expected outcomes could produce unexpected and intolerable results. Quickly.

I have been studying nuclear warfare issues for a long time. After four years at Princeton in the late 1960s, long an intellectual center of American nuclear strategic thought, I first began to think about adding a modest personal contribution to the growing literature of first-generation nuclear thinkers. Accordingly, by the late 1970s, I was busily preparing an original manuscript on U.S. nuclear strategy, and on certain corollary risks of nuclear war. At that time, moreover, I was already specifically interested in questions of presidential authority to order the use of American nuclear weapons.

Among other things, I learned that reliable safeguards had been carefully built into all American nuclear command/control decisions, but also that these reassuring safeguards would not apply at the presidential level. To a young scholar, this ironic disjunction didn’t make any obvious sense, especially in a world where national leadership irrationality was assuredly not without precedent. For needed clarifications, I then reached out to retired General Maxwell D. Taylor, a distinguished former Chairman of the Joint Chiefs of Staff. In rapid response to my query, General Taylor sent me a detailed handwritten reply. Dated 14 March 1976, the General’s informed letter concluded presciently: “As to those dangers arising from an irrational American president, the only protection is not to elect one.”

Until now, I had never really given any extended thought to this disturbingly truthful but authoritative response. Instead, I had assumed that somehow “the system” would always operate precisely according to plan. Today, with the discordant presidency of Donald Trump coinciding with a North Korean nuclear standoff, General Taylor’s 1976 warning must take on greater and more compelling meaning. Now, however reluctantly, we must realistically assume that if President Trump were ever to exhibit profound emotional instability, irrationality, or patently delusional behavior, he could nonetheless order the use of American nuclear weapons, and do so without any calculable expectations of any official “disobedience.”

At this point, a core question should come immediately to mind. What should be done by the National Command Authority (Secretary of Defense, Chairman of the Joint Chiefs of Staff, National Security Advisor, and presumptively several others) if it should ever decide to oppose a determinably inappropriate presidential order to launch American nuclear weapons? Could the National Command Authority reliably “save the day” by acting in an impromptu or creatively ad hoc fashion? Or should there already be in a place aptly credible and effective statutory measures to (1) meaningfully assess the ordering president’s reason and judgment; and (2) promptly countermand the wrongful order?

In law, Article 1 (Congressional) war-declaring expectations of the Constitution notwithstanding, any presidential order to use nuclear weapons, whether issued by an apparently irrational president, or by an otherwise incapacitated one, should be obeyed. To do otherwise in such dire circumstances would be prima facie illegal; that is, impermissible on its face. Additionally, President Trump could order the first use of American nuclear weapons even if this country were not under a specifically nuclear attack.

Here, too, a further strategic and legal distinction must be made between first use and first strike. There exists an elementary but vitally important difference, significantly one that candidate Donald Trump had completely failed to understand during his 2016 campaign debates. This core difference has to do with distinguishing essential self-defense from aggression. Aggression is a codified crime under international law. It is, therefore, reciprocally prohibited by US law.

Where should American nuclear policy go from here? To begin, a coherent and comprehensive answer will need to be prepared for the following genuinely basic question: If faced with any presidential order to use nuclear weapons, and not offered sufficiently appropriate corroborative evidence of any actually impending existential threat, would the National Command Authority be: (1) willing to disobey?, and (2) capable of enforcing such seemingly well-founded expressions of disobedience?

In such unprecedented nuclear crisis circumstances, all authoritative decisions could have to be made in a compressively time-urgent matter of minutes. Needless to say, such chronological constraints could quickly become overriding.

The only time to prepare for such incontestably vital national security questions is now. This is the case whether or not President Donald Trump should incrementally prove himself to be a more-or-less stable and capable crisis decision-maker. Though we might all draw a huge sigh of relief when the current North Korean nuclear crisis subsides, there will inevitably arise other similar or even more portentous atomic emergencies. To then respond purposefully, as needed, this country will require more than a purely stream-of-consciousness or seat-of-the-pants prescription from the White House. Much more.

There is one last but still important point. Whether it is in reference to a proposed military intervention in Venezuela, or to a considered military action against North Korea, the American president is bound not only by US law but also by international law. The latter, which is discoverable, inter alia, in various customary norms as well as in bilateral and multilateral treaties, is always an integral part of American law. Such “incorporation” is most prominently expressed in Article 6 of the US Constitution (the “Supremacy Clause”) and also at various major US Supreme Court decisions.

Looking ahead, Donald Trump’s policies for dealing with North Korean nuclear threats must always be consistent with American military requirements and with US jurisprudential obligations. Striking the necessary and optimal balance between both coincident imperatives will inevitably confront this president with intellectual and ethical challenges of the highest order. For the moment, at least, it does not appear likely that he will be able to meet such bewildering and overlapping challenges. Not at all.

If there is to be any residual hope for effectively meeting these complex expectations, it will have to lie in substantially greater presidential familiarity with both American and North Korean military capabilities. Following ancient Chinese strategist Sun/Tzu in The Art of War: “One who knows the enemy and knows himself will not be endangered in a hundred engagements.” In the precipitous nuclear age, this sage advice has become more demanding and also more valuable than ever before. Should it be overlooked or disregarded in Washington, President Donald Trump could suddenly find himself committing an irrevocable and potentially catastrophic miscalculation.

This risk would be especially high during foreseeable circumstances of competitive risk-taking with Kim Jung Un, that is, in deliberative moments when each side is desperately seeking “escalation dominance.”

Reprinted with author’s permission from Jurist

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