If a President Launches a Nuclear War For Trivial or No International Reason

By Nick Levinson

In the last couple of weeks of Donald Trump’s Presidency, concerns have arisen about his acting unpredictably and in excess of how other outgoing Presidents have acted in their last couple of weeks each, with several White House staff members and Cabinet secretaries resigning without waiting a few more weeks till the end of the President’s term. At least one concern has been whether he might start or escalate a war so as to give us a major conflagration, including through nuclear hostilities, as a fait accompli. He holds unreviewable power to order a nuclear attack; or so it is said.

In one sense, it is unreviewable. The military is supposed to carry out its orders from above without question. Members at all ranks are meticulously trained to do so. Failure to obey is ground for punishment by court-martial and other sanctions. The responsibilities of the nation and of its head of state and the speed with which war can change and devastate requires a preference for execution before question.

However, if the President launches a major nuclear war against any nation by ordering the military to strike, the next few levels of people below the President as Commander-in-Chief must judge its lawfulness and carry out the order only if lawful. Being politically unwise or militarily highly risky are not lawful reasons for refusal of the order, but being unlawful is.

Scale is an issue of law. If the President’s reason for the launch is that the target nation had a one-cent debt to the U.S. that was due yesterday and it has failed to pay, that is an offense and a punishment of the nation is allowed but it is not enough of an offense to justify such a large-scale response.

The Secretary of Defense, civilian leaders under the Secretary, and military officers would be required by law to refuse that order.

The same is true if the President claimed we were under major attack and retaliation is required, if the military is not aware of any such attack, especially if the only way the President could know of that attack is through the military. The military might choose not to believe the President’s claim and therefore conclude that the President’s order is unlawful.

If the outgoing President doesn't like it, what’s he going to do? Sue? Refer for a court-martial? Would the President have noticed how long that takes? The next President can end the referral with pen strokes.

In the waning days of the Trump Presidency, we may be safe from his bad judgment at that level, after all.