Can Trump Press the “Nuclear Button” Any Time He Wants To

Given the President’s threats to respond to North Korea’s Chairman, Kim Jong-un, with “fire and fury” that would “destroy” North Korea; given the President’s unpredictability and volatility; and given the President’s position as commander-in-chief; the question arises: Is there any way to prevent the President from impulsively ordering a nuclear strike on North Korea?

Although it’s a bit more complicated, the short answer is No.

The President has complete authority to order such an attack at any time for any reason, and he requires approval from no one else.

James Clapper, the former Director of National Intelligence, said,

[If] in a fit of pique, [Trump] decides to do something about Kim Jong-un, there’s actually very little to stop him.  The whole system is built to ensure rapid response if necessary. So there’s very little in the way of controls over exercising a nuclear option, which is pretty damn scary.

How did that happen?

The presidential power to unilaterally “push the button” became policy in the 1950s during the Eisenhower Administration, shortly after the Soviet Union developed nuclear capacity.  The purpose of this authority was actually to decrease the likelihood of nuclear confrontation by preventing field commanders from “freelancing” with nuclear weapons. 

Policy makers at the time, however, believed that the possibility of an imminent or actual nuclear attack required the capacity to respond immediately, perhaps within minutes.  In such a case there would be no time for two or more people to come to agreement.  Accordingly, they vested the President with absolute authority to launch.  In addition, this capacity for immediate response was a necessary element of the “mutually-assured-destruction” policy that was the cornerstone of nuclear strategy during the Cold War. 

Policy makers, of course, can be forgiven for their expectation that any future President would be informed, competent and have their impulses under control and—except in the case of imminent or actual attack—would consult with their cabinet and military before launching nuclear weapons. 


It turns out, however, that there is no “nuclear button.” 

The “Nuclear Button” is really a highly complex system of communication and codes, established to insure that any order to launch a nuclear attack is actually coming from the President, and hasn’t been schemed or invented by someone else. 

(You can find an excellent description of that system here.)

Once the President has ordered the attack, there is no legal way to countermand the order.  The process does have to go through the Secretary of Defense.  By law, however, the only role for the Secretary is to determine that the order actually comes from the President.  The Secretary has no authority to evaluate the appropriateness of the order, only to execute it by passing the order to the military combatant commander, who then sets the attack into action.

What if the Secretary decided not to follow the President’s command?  His only option would be to resign or be fired.  The Secretary of Defense—like all other cabinet officers—serves at the pleasure of the President who can fire them immediately and appoint someone who will follow the order. 

Richard Nixon’s "Saturday Night Massacre" is the most famous example of a President firing a recalcitrant cabinet member.  After receiving Nixon’s order to fire the independent special prosecutor investigating the Watergate scandal, Attorney General Elliot Richardson refused, so Nixon fired him.  At that point, Deputy Attorney General William Ruckelshaus automatically became acting Attorney General, but he also refused Nixon’s order.  It was only after US Solicitor General Robert Bork, the-next in line to become acting head of the Justice Department, complied with Nixon’s order that it was carried out.

Similarly, the combatant commander could refuse to pass on the order, but he, too, would be by-passed (and then would be subject to military court martial and probable heavy punishment.)

The Secretary of Defense could, therefore, theoretically stall the process (perhaps by hours), hopefully giving presidential advisors time to convince the President to retract the order.  But there is no legal means to stop the President from firing as many acting Secretaries of Defense as necessary to find one who will execute his order.  

For practical purposes, then, the President can—completely on his own—order a nuclear strike, “which is pretty damn scary.”

ADDENDUM:
There was an editorial Nov 25 in the Washington Post that suggested that there are more constraints

on the President's use of nuclear weapons than I suggested above.  The editorial is well worth reading.  The main details that I did not have in my original post are:

1. In the previous post I said that the President needed complete authority to press the nuclear button because he would need to be able to respond within minutes to any threat.  The Post editorial pointed out unlike the Cold War when the Soviet Union and the United States could hit each other within thirty minutes, and a "hair-trigger" alert seemed necessary.  North Korea would not be tempted to a “sneak attack” on the US because it wouldn’t be able to destroy all our launch sites , for, unlike the Soviet Union, they could not destroy our retaliatory capacity In the unlikely event that North Korea did launch a nuclear weapon toward us (which we wouldn't be able to stop, anyway), we would lose at most one city while North Korea would undoubtedly be obliterated in response.  The Cold War scenario gave the President no time to consult with anyone, so the circumstances called for absolute authority seemed necessary.  The current situation with North Korea gives us plenty of time for a reasoned response.  So, it seems to me, it would be reasonable for Congress to legislate a mandatory consultation before ordering the strike.  But there is no such law today.

2.  Under international and domestic law any weapons use “must comply” with requirements of the Law of Armed Conflict: “military necessity, avoidance of unnecessary suffering, proportionality and discrimination or distinction.” A nuclear first-strike would be against that law.  Furthermore, recently retired US general Robert Kehler, until 2013 head of the US Strategic Command testified to Congress if the commanding general determines the order is illegal they can and should countermand the order.  But, as I pointed out in my original post, the President could just fire one general after another until he found one willing to carry out his order.

Addendum to previous post on "Fake News"

President Trump today intensified his attacks on the free press with threats to cancel NBC's license.  In his first tweet he wrote,

With all of the Fake News coming out of NBC and the Networks, at what point is it appropriate to challenge their License? Bad for country!

A little while later, he tweeted that it's

frankly disgusting the way the press is able to write whatever they want to write, and people should look into it.

Substantial First Amendment issues aside, Trump's threats are, in practice, mostly empty.  There is no single license for a national broadcasting company that could be revoked; most licenses are held by local stations and it's rare for them to be revoked and certainly not for political reasons.  Further, each station would have to be challenged individually in it's local area by a local person who filed a petition with the Federal Trade Commission. 

But these tweets are not meant to be a prelude to presidential action; they are simply meant to demean the free press, remind his base who the enemy is, and continue his war on the freedom of the press.

"Fake News" and the Dismissal of the Press

A free press is essential to democracy, for it enables citizens to make informed decisions based on the free flow of information and ideas.  Among other things, it uncovers the secrets and lies that subvert our understanding and it interprets the confusing onslaught of information that threatens to overwhelm us. 

Donald Trump’s persistent claim that the mainstream media are filled with “fake news” endangers democracy.  His war on the media, of course, should not be viewed in isolation.  It’s part of a broader strategy that includes rejecting scientific facts, dismissing government studies (even from his own Administration), and attacking well-researched reports from legitimate organizations.  These can discredit and disempower any independent voice trying, however imperfectly, to provide us important truths and hold politicians to account.  The President's charges are rarely accompanied by any supporting evidence.

Indiscriminate accusations of “fake news”

The President labels different types of news reports “fake news,” for example, reports he disagrees with, accounts he believes are biased, or news items based on anonymous sources.  Even these charges, when repeated ad infinitum, are objectionable.  But when he dismisses verifiable facts as “fake news,” the danger to democracy ratchets up several degrees.  One can have legitimate differences of opinion about whether the media are fair to the President or consistently and inappropriately negative.  But the size of the crowd at his inauguration compared to Obama’s inauguration is documented fact and can’t legitimately be challenged as “fake news.” As Daniel Patrick Moynihan said, “Everyone is entitled to his own opinion, but not to his own facts.”

First Amendment guarantee: a free press

Among other freedoms, The First Amendment guarantees a free press, unencumbered by government intervention.  Censorship of the media obstructs the press’s vital role in uncovering and reporting corruption, unconstitutional government action, and other illegitimate activity.  Without a free press, we would not have known about:

• the realities and deceptions of the Vietnam War,
• Watergate and its cover-up,
• the Reagan Administration’s illegal support of the Contras war against Nicaragua, or
• the false intelligence about Saddam Hussein’s weapons of mass destruction used as a pretext for the Iraq war. 

But what if the free press is not trusted?

If Trump’s attacks on “fake news” had no significant impact on the population, they might not be so important.  A recent Gallup poll, however, showed that only 32% of Americans trust the media to “report the news fully, accurately and fairly.” Among Republicans, trust in the media is down to a shocking 14%.  When only a small minority of American trusts the basic institution of the press, where does the majority find its sources of “truth” beyond their own eyes, their preconceived ideas and beliefs, or the widespread propaganda so easily available?

Two caveats are in order:

1. The attack on the free press has been a political reality for many years, especially from the right but also from the left.  American trust in the press has been below 50% since 2004.  Donald Trump obviously bears no responsibility for most of the American decline in trust, although the further decline from August 2016 to August 2017 from 32% to 14% among Republicans is noteworthy.  What is new, however, are the persistent and intense attacks on reports of factual reliability from the person occupying the highest office in the land.
2. There is no question that the mainstream media occasionally makes serious mistakes, including getting their facts wrong.  But the mainstream press corrects itself quickly.  With very limited exceptions, the press keeps itself honest.  Persistent reporting of provably “fake news” is rare.

But could the free press be sidelined into irrelevance?

I’m not particularly concerned that the mainstream press will capitulate to the President; in fact, it's been relentless in its continued investigative reporting of the Trump administration.  (There’s so much reporting of every presidential mistake that, in my opinion, the media can fairly be accused of some bias.*)

But I am concerned that the President can sideline the press with his charges of “fake news.” When such a large percentage of Americans don’t trust the media to be accurate or fair, freedom of the press no longer protects our institutions.  Under those conditions, access to the realities exposed and interpreted by the press is blocked almost as effectively as through censorship.  For practical purposes, the institution of the press is no longer able to fulfill its primary responsibility as truth-teller.

Potentially worse, how many supporters agree with Trump’s efforts to “open up our libel laws”?  How many believe that violence against journalists could do the country some good?**  Where does that lead us?

A Darkness Over the Country?

A free press is essential to democracy, but if enough people mistrust the very institution of the press, it’s essentially no longer a source of truth.  “Democracy,” the Washington Post reminds us, “dies in darkness.”

An Addendum to this post is published here

* There were several reports and pictures of the President throwing out packages of paper towels to a crowd (like t-shirts at a ball game).  His actions showed a stunning insensitivity to the plight of those devastated by the hurricane, but is the media space devoted to these persistent pictures and articles worth more than using that same news space to report on the wreckage of Puerto Rico itself? 

** Catherine Rampell, Washington Post, July 17, 2017; https://www.washingtonpost.com/opinions/the-practical-reason-to-be-alarmed-by-republican-cries-of-fake-news/2017/07/17/f55cf662-6b2d-11e7-9c15-177740635e83_story.html

Voter Fraud

I’ve previously written about Donald Trump’s charges—both as a candidate and once elected—of a rigged 2016 national election.  These ongoing accusations and their intensity have been unique in the history of presidential elections; as I have argued in earlier posts, they have been a significant danger to our democracy.

A related, but significantly narrower, issue is voter fraud.  A rigged election is defined as a top-down and intentional attempt to manipulate the results of the election.  Voter fraud differs from a rigged election in that it requires the individual voter to cast a fraudulent vote, either voting more than once, or voting without being registered. Voter fraud would not be an important issue were it not for the facts that

a. Half the American public believes there is widespread voter fraud,
b. Lawmakers in many states are using accusations of voter fraud to pass laws that suppress the rights of legitimate voters.  Most of those who will not be allowed to vote are among groups that traditionally vote Democrat (eg, African-American, immigrant, and/or poor).
c. President Trump has appointed a “voter integrity commission” chaired by Kansas Secretary of State Kris Kobach, who has already revealed his bias by publicly questioning the legitimacy of the 2016 presidential election without offering any evidence.

As supposed evidence for massive voter fraud, Kobach and others are presenting statistics that seem to justify their suspicions and the need for voter-suppression laws.  But these statistics must be interpreted carefully since they refer to inaccurate registration lists, not voter fraud.

According to the reliable Pew Research Center these lists “are plagued with inefficiencies and errors.”

Approximately 24 million—one of every eight—voter registrations in the United States are no longer valid or are significantly inaccurate. [Of these,]
More than 1.8 million deceased individuals are listed as voters.
Approximately 2.75 million people have registrations in more than one state.

While those figures would seem to give some credence to the accusations of voter fraud, in fact they only demonstrate how lousy voter-registration lists are. They say nothing about voter fraud.  The Brennan Study for Justice referenced fifty-four studies of voter fraud and found that

“The consensus from credible research and investigation is that the rate of illegal voting is extremely rare, and the incidence of certain types of fraud – such as impersonating another voter – is virtually nonexistent.”

As the author of one of those studies wrote, it’s more likely an American “will be struck by lightning than that he (sic) will impersonate another voter at the polls.”

The problem is that many states are using the lousy registration figures to enact laws that suppress legal voters from voting.  A careful study compares states with strict voter-ID laws to states with less strict or no voter-ID laws.  It found that the laws do not significantly suppress the white vote.  But they do suppress the minority votes by 13.2% among (legal) Hispanics, 11.5% among Asians, and 5.1% among African Americans.

Since minority voters overwhelmingly support Democrats, the laws suppressing voters are extraordinarily effective for the Republican Party.

There is simply no comparison between the number affected by voter suppression and the numbers of fraudulent votes.  Voter-suppression laws suppress millions of voters and change the results of elections; those same laws have essentially no effect on (non-existent) voter fraud.

Trump, of course, is not directly responsible for voter-suppression laws; Republicans have been pushing them for years.  But like his claims of rigged elections, his actions and repeated claims have convinced millions and given new legitimacy and power to the Republican Party’s years-long effort to suppress the Democratic vote more and further undermined faith in American elections and in American democracy.