Nuclear War Beginning When a Sleepy Head of State is Too Foggy to Think

A President may get warned of a nuclear attack already flying immediately upon being awakened from a deep slumber. At that instant, the President would almost certainly still be groggy and impaired in decision-making for several minutes. Those minutes will be crucial to making the right decision. There’ll be a decision, but will it be right? Will it be what the President would have decided at a mental peak?

That’s bad enough, but it can get complicated, too. The President can face an ambiguous situation and have to sort it out in under 60 seconds. What if Saudi Arabia accidentally fired a nuclear ICBM we didn’t know existed at Montréal and the King calls Canada and us to apologize for the mistake? Do we believe the King? What if we think one thing and Canada’s government thinks the opposite? It takes time for Canada and the U.S. to talk to each other; how much time would that leave for a unified response if either defensive or offensive?

Imagine a President who had a few drinks the night before and is sleeping it off, even if the hangover is mild, when the call comes in. Or the call comes in after only a couple of hours of sleep, not a full restful night of sleep.

Is a candidate disqualified from office because of that physical reality? Is a President impeachable for failure to plan to be ready quickly enough in the face of a threat that is well known and rapidly existential, impeachable even before such a threat factually materializes as clear and present?

Publicly, it is said that an attack gives us up to thirty-three minutes to respond. The response would likely be mainly a counterattack or in a hotline call in either direction, but it would likely include initiation of civil defense and notification of allies of what we’re doing so they can coordinate and protect themselves. For civil defense, half an hour is probably as much as we’ll have for the most vital first steps.

If an enemy can select its timing, and often it can, it likely will try to attack when we’re most vulnerable and least able to respond intelligently. If only one strategy were feasible, we wouldn’t need a President to do anything except be symbolic. However, at least three are available: nothing (because the President considers the alarm fake news, and there have been false alarms), negotiation, and/or counterattack; and maybe more are available. A strategy of defense without offense, e.g., destroying whatever’s coming at us, would probably fail against a mass of fast large missiles on uncertain trajectories already flying. Talking works best when nothing is already on the way, but once a launch has occurred and if recall or inflight destruction by the launch authority is impossible (and it probably is), and assuming the warning is quickly believed to warrant making an enemy pay, counterattack, defense by offense, is the most likely response. Since a counterattack is scalable by degrees, that may give the President the most choices.

So, the President has to narrow down and pick the best strategy from several in the first minute or so and select the scale of intensity, a scale sufficient for success but not for illegal overkill, chosen even while the President is mentally impaired. The President can go outside of the advice given and respond in any way law allows, and it allows a lot. While the quality of the notice and of the advice is critical, the President’s decision may be essentially irrevocable and the final responsibility would all still be on the President’s shoulders.

But becoming alert is not instantaneous. One study says it’ll take half an hour just to be reliable in doing a simple task.1 A dream may influence the wakeful state.2 Half an hour for the flattening of several whole cities may be even more insidious than we thought, if an average person has a full grasp of what’s going on only when the metropolitan areas have already collapsed and most of the people in them are dead.3 It will help if, in advance, the President and the Vice-President do difficult war exercises and plan how they’d like to respond to a variety of realistic situations, but, even if both are excellent at the exercises and planning, that’s not a complete answer, because, while drills are valuable, the real world tends to throw unexpected problems.

No one else in the government responsible for the government’s response is in quite this situation. Everyone who’s vital has a backup. Granted the President has a backup, the Vice-President, but the President is so much more important and visible than the Vice-President that the President almost has to be dead before the Vice-President can be the prime decision-maker. The Secretaries of State and Defense have backups but the President will likely require the Secretaries themselves to be personally at hand, advising the White House and making secondary decisions.

This is a political issue and a legal issue. The political issue is in the confidence that the general public has in the President to protect us, and it is decided in elections at four-year intervals, largely on the basis of a candidate’s judgment on various issues, usually with a few issues at the top of a voter’s list and a few at the top of the national electorate’s list. National security is always at or near the top but that’s as a much broader issue than the procedure behind a launch order. Modern campaigns hardly even address the issue of grogginess on wake-up, and only modern campaigns count, because the half-hour nuclear-war-start scenario is entirely modern. One recent candidate’s campaign addressed having the requisite knowledge and judgment for a 3 a.m. call, but, to my knowledge, not rapid awakening. The public assumes this is a military matter, and I doubt the military would sit idly by while the President downs five cups of steaming coffee (and caffeine may not be a good idea if it adds to anxiety) and tries to remember what day it is.

We trust that whomever we elect as the President or Vice-President will pick up the emergency phone anytime and give the right order. Few people question that politically on the procedure, although more should.

One legal issue is subconstitutional. The second atomic bomb (besides testing) was reportedly detonated by the military under its general authority to continue waging World War II without an order from the President (who was Truman) explicitly authorizing or requiring that an atomic bomb be used for the purpose. President Truman had given the order for the first bomb, he was guiding the war in general at the time of the use of the second bomb, and he was proud of the use of both in the context. He nonetheless subsequently ordered that use of future atomic bombs be exclusively Presidentially ordered, but the use of the second bomb not having been specifically ordered by him is a precedent by which a President could delegate the authority to launch a nuclear war in advance of a ground for use. The President, being our head of state, remains responsible for the nation’s relationship to all international war and other breaches of other nations’ sovereignty; delegation offers no excuse. But delegating remains possible under law, international and domestic. If domestic law forbids the delegating, it can be amended. Delegating offers one solution to the quandary of an underconscious President making a wrong decision. Whether the general public would accept the legitimacy of such a decision is a political question, not a legal one, so, legally, the solution (delegating) is available.

The higher legal issue is Constitutional, for a ground for impeachment. One scholar wrote that a President moving to London for a long period because the shopping is good, even if that President fields phone calls on United States government matters, would be mainly a failure to perform the job of the Presidency and on that basis the President could be impeached.4 An inability to preserve national existence for a reason either familiar to the President or of which the President should have known, that being grogginess, which means not being functionally in communication when needed, would be at least as serious as being long out of the nation without good reason but still in communication.

While Constitutional originalists can argue that the document says nothing about mere failure to perform absent a crime,5 originalism is not the prevailing tool for interpreting the Constitution, which is a living document subject to the application of modern conditions, which is why the existence of the Air Force would not be found to be unconstitutional because unmentioned in the Constitution even though the Constitution does specify the Army’s and the Navy’s existences, military aviation being mostly modern.

How to interpret and apply the Constitution has been built up in a body of judicial precedents from the Supreme Court and inferior courts. The Constitution’s Equal Protection Clause requires that people similarly situated be similarly treated, so the precedents cannot be ignored and the precedents often rely on current circumstances. Modern conditions matter to the application of the Constitution today.

The modern condition here is the realistic chance of a surprise, deliberate, and existential devastation taking only half an hour even when we are watching out for it. The Constitution has to be understood in light of that possibility. The Supreme Court would not require that only those expectations known in can be applied, especially with respect to the preservation of national security and the execution of war led by the Executive Branch. The Constitution does not become, over time, a suicide pact. Thus, the Constitution lets the nation preserve itself against all enemies and all kinds of weapons, even the newest weapons that used to be impossible to build and unlikely even to be imagined. The Constitution already forbids treason and it would be hard to argue that the Constitution allows much neglect. Presidentially leading in modern war is thus a Constitutional duty.

Thus, an unwillingness to do one’s best, or nearly so, to try to protect the U.S. through war might be a ground for impeachment. If it is, it would be ground for impeachment even without a threat or a war, if the inability is evident at a time when the possibility of war exists. War has been continuously a possibility since the colonies that eventuated into the U.S. were founded and will likely remain a possibility for generations to come, likely for centuries to come. This is not about treason; treason is deliberate. This is about unintentionally fouling up, but so badly that the nation ceases to exist. If we are threatened, the President must at least try to protect us.

Trying to protect does not require that the President personally have the skills of a five-star officer, of an E-1 enlistee, or of a civilian Secretary of Defense, since the President can delegate to all of them and to others. It does require that the President have the skills of a head of state necessary for war or other breach of foreign sovereignty including oversight of persons to whom authority is delegated. If someone gets elected to be President without having those skills, that person must develop those skills before the inauguration. A Vice-President must have the same skills, albeit in reserve in case the Vice-President becomes the acting President; because the latter status may come on a moment’s notice, the person elected as Vice-President must develop those skills before the inauguration.

In short, legally, it appears that the Constitution supports impeachment for an unwillingness to do enough that one can to take charge at the most crucial moment in our nation’s history. But there is a counterargument on the law, and that legal argument begins in politics.

Impeachment is also a political act that is not about arcane technicalities. Since the electorate lends little attention to this issue, with or without discussing impeachment, when we do care about this we tend to elect generals into the Presidency, and that’s to widen the role for military perspectives in the White House. Even then, we tend to do so after a war rather than before, the prime instances being Presidents Washington, Grant, and Eisenhower. When our nation elected the other 93 percent of our Presidents, military security was less important. If the issue is not very important to the electorate, it’s not a very important part of the job of being President. Underperformance on lower-priority issues does not offend most voters, even most voters who favored the President’s main opponent.

How voters judge the situation influences how Congress responds to voters. Congress is responsible for any decision to impeach and for any conviction of an impeached President. Therefore, it’s harder to support subperformance specifically due to this issue as legally impeachable, and it’s much harder to support the impeachment as politically sustainable.

In ordinary criminal cases against ordinary defendants, if jury nullification is almost certain the most that prosecutors can usually do is bluff the defendants. With ordinary civil complaints that are likely to get no more than nominal damages, almost no one brings a case to court. Throwing a snowball may be premeditated trespass, conversion of someone else’s property, and assault on a minor, but usually there’s no lawsuit.

In short, we’re stuck with the limitations. Perhaps a military officer stationed in the White House can enter the President’s bedroom, bathroom, or other locus when an alert is ringing the President’s phone; the officer need not know the content but should be cleared to know it and would try to ensure the President’s wakefulness, but whether that usually would speed up the time to high-quality decision-making is unclear. Thus, the only practical way out may be for the top staff of the White House on duty at the moment and the Departments of Defense and State to make most of the decisions, conditioning them only on the President’s go-ahead that would likely be vague. Given Presidential political responsibility, this may not work well, but maybe no system will usually work well.

So, the nation needs a system that we can reasonably hope will work well even when the President is bumbling. Of the most important choices for Presidential action at that moment, inaction due to a Presidential judgment that the alarm is false if others below disagree could cause military and diplomatic chaos that must be planned for, and the most difficult to implement may not be a counterattack, for which many people would be knowledgeable, skillful, coordinated, positioned, and alert, but a negotiation by telephone by the groggy President personally talking with an on-the-ball adversary, on the ball since the adversary chose the time of attack and likely planned for the hotline call and may already have begun it and is waiting. That’s a recipe for something to go immediately and horribly wrong. The Secretaries of State and Defense and the President's national security adviser couldn’t be on hand 24 hours a day every day the way that lower-level aides could, since lower-level aides likely serve in rotation, while the top key people have to work mainly when the President does and thus can hardly rotate. The Secretaries and the adviser will have the same sleep inertia problem a President has and they will all have it at the same time. The President's most important people, even though on duty, may have to be skipped, so that next-level-down people may have to deal directly with the President and judge the Presidxent's soundness of judgment at the moment.

It’s not impossible to try to fashion a solution. How good it would be depends. The military, at the point where it may receive a Presidential nuclear launch order, should have a specialized attorney present and informed of the order and of any intelligence that was, or was supposed to be, given to the President in the half-hour or so before the order. The lawyer should be specialized in the law of war and should be provided with rapid online access to legal research tools. The lawyer should judge the lawfulness of the order before the order can proceed down the chain of command, or simultaneously if the lawyer’s decision can reach a given lower level of command in time to void the order. The lawyer should only transmit a launch-or-no-launch decision and not provide reasoning; but the lawyer should file the reasoning. The lawyer should presume lawfulness but that will not always be dispositive; the lawyer needs full discretion not to so presume.

Other nuclear nations, some of them, may have systems that involve several people in initiating a launch. That's interesting to think about, but we have not put any such system into law.

More likely, people a couple of levels down and only on duty when they’re alert and briefed will be more afraid of the national security threat of not acting than of being criticized for acting unlawfully, and it may not be unlawful. If a threatened nation gets saved, pretty much all else will be forgiven. In effect, there’s no legal violation if the law is not enforced.