Late last month, 31 members of Congress sent a letter to President Biden urging him to change long-standing policy that gives the president sole authority to order the use of nuclear weapons — by limiting his own authority.
In a somewhat amusing turn of events, Fox News gadfly Sean Hannity told his viewers that the letter "must be totally humiliating for Joe Biden" because according to Hannity, it apparently reflects concerns about Biden’s “cognitive ability” since the Democrats “didn't propose this even when Donald Trump was president."
Mr. Hannity is wrong on both counts. In early 2017, Sen. Ed Markey (D-Mass.) and Rep. Ted Liu (D-Calif.) introduced legislation requiring Congress to declare war and explicitly authorize the first use of nuclear weapons before the president could issue a nuclear attack order.
And it was Mr. Trump’s reckless threats to use nuclear weapons against North Korea that reinvigorated concerns about this policy. While the impetus for this arrangement was to ensure that nuclear weapons remain under civilian control by requiring the military to get the president’s explicit approval for their use, it also allows the president to order a nuclear attack for any reason and at any time, without consulting with anyone, and without getting the agreement of other policymakers.
Even worse, the president’s judgement may be impaired, leaving them mentally unfit to issue such an order. The letter to Biden makes explicit reference to Presidents Nixon and Trump, who “exhibited behavior that caused other officials to express concern about …[their]…judgment.” During the Watergate scandal, President Nixon was drinking heavily and many advisers considered him unstable. And there were serious concerns about President Trump’s state of mind during the final weeks of his presidency, especially after the attack on the Capitol that he himself encouraged.
There is one check in this system: The military would be obligated to carry out the president’s attack order only if it was legal under the Law of Armed Conflict, which is a significant constraint. The Pentagon takes this law seriously: its 1,200-page Law of War Manual includes detailed discussions of the legality of a wide range of scenarios (the discussion of nuclear options is not public) and it employs some 2,000 military lawyers who advise commanders at all levels about the legality of plans and operations, and are even deployed in the field to weigh in on real-time operations.
Part of the problem is a second U.S. policy that allows the use of nuclear weapons not just in response to a nuclear attack — but also first in response to non-nuclear hostilities. Over the decades the United States has narrowed the circumstances under which it would consider using nuclear weapons first and reduced its list of potential targets, but it retains the option of using nuclear weapons first against three nuclear-armed nations — Russia, China, and North Korea. Such an attack would practically guarantee a nuclear counterattack in the case of Russia or China.
By adopting a no-first-use policy, the United States would enhance its security — but it would also eliminate the concern about a reckless president ordering the use of nuclear weapons.
But whatever the circumstances, any use of nuclear weapons — whether first or in response to a nuclear attack — would be devastating and have severe repercussions. Giving any one person the authority to order their use is inherently risky and completely unnecessary. There are several ways to include other people in the loop whose assent would be required for the military to carry out a nuclear attack.
I along with two colleagues, have proposed a scheme that takes advantage of the Federal Emergency Management Agency, which the government uses to continuously track the location of officials in the presidential line of succession and to maintain the ability to quickly and securely communicate with them. If the president dies or is incapacitated, presidential authority would seamlessly devolve to the next person in line. This capability allows the Pentagon’s War Room — which would issue the launch order to bomber and missile crews — to be confident that any order is coming from the current president. (To facilitate this transition, like the president, the vice president is accompanied at all times by an aide carrying a “nuclear football” with the information needed to approve the Pentagon’s request to use nuclear weapons.)
The FEMA system could be used to track any other officials and would allow the War Room to quickly and securely communicate with them to get their assent to or veto of a launch order.
However, there are compelling reasons to designate the next two people in the presidential line of succession for this important role. Normally these would be the vice president and speaker of the House. (The next four are the president pro tempore of the Senate, secretary of state, secretary of treasury, and secretary of defense.)
These people have the political legitimacy to take part in a decision to use nuclear weapons since they would become the commander-in-chief and assume the authority to order a nuclear attack if the officials above them were no longer in power.
These people would also provide some degree of democratic input: The top three officials in the line are elected and two are members of Congress. Unless several top officials died or were incapacitated, at least one congressional leader would need to agree with an order to use nuclear weapons. Moreover, these officials cannot be fired and replaced by the president, as cabinet secretaries could.
This veto option would be an important complement to the 25th Amendment, which can be used to remove the president from office if the vice president and a majority of the Cabinet believe he or she is physically or mentally “unable to discharge the powers and duties of his office.” Yet implementing the amendment would take time, during which the president would retain the authority to order a nuclear attack.
Because these two other officials could be reached as quickly as could the president, another benefit of our scheme is that it could be used even if the United States had been attacked with nuclear weapons and the military wanted to respond quickly. Other proposals — such as the Markey-Liu bill — would only apply to the first use of nuclear weapons.
No one wants to limit their own authority, but by requiring the Pentagon to get the agreement of two other officials before it would carry out any nuclear launch order he issued, President Biden would help set a norm for future presidents. Similarly, the military and policymakers prefer to “keep all the options on the table.” But the United States and the world would be safer if President Biden took some options off the table by adopting a policy that the United States would not use nuclear weapons first. As President Biden said in 2016, when he was vice-president, “it is hard to envision a plausible scenario in which the first use of nuclear weapons by the United States would be necessary or make sense.”
By making these two policy changes, President Biden would also demonstrate to the rest of the world that he is committed to reducing the U.S. reliance on nuclear weapons and the risk of nuclear use.
