Senate Foreign Relations Committee Hearing on Nuclear Weapons Authority

The Senate Foreign Relations Committee hearing was called due to increased fears that President Donald Trump possessed unchecked authority to use nuclear weapons. The hearing probed questions about both nuclear checks and balances and the obstacles to possible reform. Kehler in particular emphasized that the head of US Strategic Command would be required to accept that any proposed nuclear use was in compliance with the law of war. Feaver emphasized that changing the complex system could have unintended side-effects.

Ben Cardin (00:44:51): I’m sorry to interrupt you but there. So is discussion taking place at the national security council level with legal advisers with military advisors. And the advice is that under the guidelines on proportionality and necessity that this is not appropriate for a use of a nuclear first-strike. Is there action that can be taken by those advisors if the president overrules that decision and says “no, we are going with a nuclear attack”?

Robert Kehler (00:45:22): Other than to state their view about the legality of the move. The president retains constitutional authority to order some military action.

The military…you would be in a very interesting constitutional situation I believe because, again, the military is obligated to follow legal orders, but is not obligated to follow illegal orders. […]

Ben Cardin (00:46:08): So, let me just drill down on this. If you believed that this did not meet the legal test of proportionality, even if ordered by the president of the United States to use a nuclear first-strike. You believe that under…because of legalities you retain that decision to disobey the commander-in-chief?

Robert Kehler (00:46:30): Yes. If there is an illegal order presented to the military, the military is obligated to refuse to follow it. Now the question is just the one you described. Is the process leading to that determination and how you arrive at that? And I would concede to you that would be a very…um… that would be a very difficult process and a very difficult conversation. But in the scenario that you are painting here I would also argue that there’s time for that. There’s time for that kind of deliberate conversation on these matters.