united-states constitutional-law us-constitution military laws-of-war
Can President Trump shoot off the nukes whenever he wants to, even for no reason?
<p>According to a recent editorial in Scientific American(March 1,2017 "Take the Nukes off a Short Fuse"), the president of the United States can order missiles to be shot off without anyone else concurring. Also, are military personnel legally bound to obey this? Maybe a soldier could legally disobey such an order on the grounds that it was an illegal order or that it "shocked the conscience?"</p>

<p>The <a href="https://www.law.cornell.edu/wex/commander_in_chief_powers" rel="noreferrer">Commander-in-chief powers</a> are quite broad. The <a href="https://www.law.cornell.edu/uscode/text/50/chapter-33" rel="noreferrer">War Powers Resolution</a> limits his ability to engage unilaterally in military action, by requiring him to report to Congress within 48 hours, and if Congress disapproves, troops must be removed after 60 days. However, this law pertains to armed forces, and would not apply to remotely-launched missiles. Additionally, it is unknown if the resolution is unconstitutional (presidents say it is). No law at all requires POTUS to obtain permission from someone else, in order to engage in a military action.</p>

<p><a href="https://www.loc.gov/rr/frd/Military_Law/pdf/MCM-2012.pdf" rel="noreferrer">Article 90 of the UCMJ</a> states that it is a punishable offense to "willfully  disobeys  a  lawful  command  of  his  superior  commissioned  officer". The manual also states that </p>

<blockquote>
  <p>An  order  requir­ing the performance of a military duty or act may be
  inferred  to  be  lawful  and  it  is  disobeyed  at  the  peril   of 
  the  subordinate.  This  inference  does  not  apply  to   a  patently
  illegal  order,  such  as  one  that  directs  the   commission  of  a
  crime.</p>
</blockquote>

<p>Murder of a civilian is an example. It also says</p>

<blockquote>
  <p>The  lawful­ness  of  an  order  is  a  question  of  law  to  be 
  deter­mined  by  the  military  judge.</p>
</blockquote>

<p>"Shocking the conscience" is not a grounds allowing disobedience. One can only conjecture how a military judge would evaluate the lawfulness of a presidential order, when there is not a shred of legal evidence that such an order is in fact illegal: I conjecture that the order would be found to be lawful.</p>

<p>Marjorie Cohn, Professor Emerita at Thomas Jefferson School of Law, wrote an article on <a href="https://www.huffingtonpost.com/entry/the-duty-to-disobey-a-nuclear-launch-order_us_5a1c2141e4b0250a107c0130" rel="nofollow noreferrer">The Duty To Disobey A Nuclear Launch Order</a>, and concluded:</p>

<blockquote>
  <p>An order to use nuclear weapons ― except possibly in an extreme
  circumstance of self-defense when the survival of the nation is at
  stake ― would be an unlawful order.
  Military necessity is also a well-established law of war. It allows “those measures not forbidden by international law which are indispensable for securing the complete submission of the enemy,” according to the Lieber Code. It is never necessary to use a nuclear weapon, except in certain hypothetical cases of self-defense if the survival of the US were at stake.</p>
</blockquote>

<p>Finally, there is the principle of unnecessary suffering. “It is prohibited to employ weapons, projectiles and material and methods of warfare of a nature to cause superfluous injury or unnecessary suffering,” according to Article 35.2 of the Additional Protocol I to the Geneva Conventions. A nuclear attack on North Korea would kill and maim untold numbers of people.</p>

<p>Of note:</p>

<blockquote>
  <p>On Nov. 19, Air Force General John Hyten, commander of the U.S.
  Strategic Command, declared he would refuse to follow an illegal
  presidential order to launch a nuclear attack. “If you execute an
  unlawful order, you will go to jail,” the general explained at the
  Halifax International Security Forum in Nova Scotia. “You could go to
  jail for the rest of your life.”</p>
  
  <p>Gen. Hyten is correct. For those in the military, there is a legal
  duty to obey a lawful order but also a legal duty to disobey an
  unlawful order. An order to use nuclear weapons ― except possibly in
  an extreme circumstance of self-defense when the survival of the
  nation is at stake ― would be an unlawful order.
  ....both the Nuremberg Principles and the Army Field Manual create a duty to disobey unlawful orders.
  ...The president can only use military force in self-defense or to forestall an imminent attack. There must exist “a necessity of self-defense, instant, overwhelming, leaving no choice of means, and no moment for deliberation,” under the well-established Caroline Case. A president has no lawful authority to order a first-strike nuclear attack.
  ...The president can only use military force in self-defense or to forestall an imminent attack. There must exist “a necessity of self-defense, instant, overwhelming, leaving no choice of means, and no moment for deliberation,” under the well-established Caroline Case. A president has no lawful authority to order a first-strike nuclear attack.
  Military necessity is also a well-established law of war. It allows “those measures not forbidden by international law which are indispensable for securing the complete submission of the enemy,” according to the Lieber Code. It is never necessary to use a nuclear weapon, except in certain hypothetical cases of self-defense if the survival of the US were at stake.</p>
</blockquote>

<p>Finally, there is the principle of unnecessary suffering. “It is prohibited to employ weapons, projectiles and material and methods of warfare of a nature to cause superfluous injury or unnecessary suffering,” according to Article 35.2 of the Additional Protocol I to the Geneva Conventions. A nuclear attack on North Korea would kill and maim untold numbers of people.</p>

<p>If the president ordered a nuclear strike, Gen. Hyten said he would offer legal and strategic advice, but he would not violate the laws of war simply on the president’s say-so.
Additional information surrounding this conclusion is detailed in the referenced article.</p>
