[Senate Hearing 115-439]
[From the U.S. Government Publishing Office]
S. Hrg. 115-439
AUTHORITY TO ORDER THE
USE OF NUCLEAR WEAPONS
=======================================================================
HEARING
BEFORE THE
COMMITTEE ON FOREIGN RELATIONS
UNITED STATES SENATE
ONE HUNDRED FIFTEENTH CONGRESS
FIRST SESSION
__________
NOVEMBER 14, 2017
__________
Printed for the use of the Committee on Foreign Relations
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34-311 PDF WASHINGTON : 2019
COMMITTEE ON FOREIGN RELATIONS
BOB CORKER, Tennessee, Chairman
JAMES E. RISCH, Idaho BENJAMIN L. CARDIN, Maryland
MARCO RUBIO, Florida ROBERT MENENDEZ, New Jersey
RON JOHNSON, Wisconsin JEANNE SHAHEEN, New Hampshire
JEFF FLAKE, Arizona CHRISTOPHER A. COONS, Delaware
CORY GARDNER, Colorado TOM UDALL, New Mexico
TODD, YOUNG, Indiana CHRISTOPHER MURPHY, Connecticut
JOHN BARRASSO, Wyoming TIM KAINE, Virginia
JOHNNY ISAKSON, Georgia EDWARD J. MARKEY, Massachusetts
ROB PORTMAN, Ohio JEFF MERKLEY, Oregon
RAND PAUL, Kentucky CORY A. BOOKER, New Jersey
Todd Womack, Staff Director
Jessica Lewis, Democratic Staff Director
John Dutton, Chief Clerk
(ii)
C O N T E N T S
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Page
Corker, Hon. Bob, U.S. Senator from Tennessee.................... 1
Cardin, Hon. Benjamin L., U.S. Senator from Maryland............. 2
Kehler, General C. Robert, U.S. Air Force, Retired, Former
Commander, United States Strategic Command, Alexandria, VA..... 4
Prepared statement........................................... 6
Feaver, Ph.D., Peter D., Professor of Political Science and
Public Policy, Duke University, Durham, NC..................... 8
Prepared statement........................................... 10
McKeon, Hon. Brian, Former Acting Under Secretary for Policy,
U.S. Department of Defense, Washington, DC..................... 13
Prepared statement........................................... 15
Additional Material Submitted for the Record
Responses to Additional Questions for the Record Submitted to
General C. Robert Kehler, USAF (Ret.) by Senator Cory A. Booker 42
Responses to Additional Questions for the Record Submitted to Dr.
Peter Feaver by Senator Cory A. Booker......................... 43
Responses to Additional Questions for the Record Submitted to
Hon. Brian P. McKeon by Senator John Barrasso.................. 44
Responses to Additional Questions for the Record Submitted to
Hon. Brian P. McKeon by Senator Cory A. Booker................. 44
Union of Concerned Scientists--Fact Sheet, ``Close Calls with
Nuclear Weapons'' (2015)....................................... 46
(iii)
AUTHORITY TO ORDER THE
USE OF NUCLEAR WEAPONS
----------
TUESDAY, NOVEMBER 14, 2017
U.S. Senate,
Committee on Foreign Relations,
Washington, DC.
The committee met, pursuant to notice, at 10:16 a.m., in
Room SD-419, Dirksen Senate Office Building, Hon. Bob Corker,
chairman of the committee, presiding.
Present: Senators Corker [presiding], Risch, Rubio,
Johnson, Gardner, Young, Barrasso, Flake, Cardin, Shaheen,
Coons, Udall, Murphy, Kaine, Markey, and Merkley.
OPENING STATEMENT OF HON. BOB CORKER,
U.S. SENATOR FROM TENNESSEE
The Chairman. The hearing itself will actually come to
order. We thank General Kehler, Dr. Feaver, and Mr. McKeon for
joining us today and for sitting through the business meeting
over the last 15 minutes.
A number of members on both sides of the aisle on and off
the committee have raised questions about the executive's
authorities with respect to war-making, the use of nuclear
weapons, and, from a diplomatic perspective, entering into and
terminating agreements with other countries. As I have
mentioned publicly, this is one in a series of hearings where
our committee will examine all of these issues. But today, it
is my hope that we will remain focused on the topic at hand,
the authority and the process for the use of nuclear weapons.
The Congressional Research Service tells us this is the
first time that the Foreign Relations Committee of the Senate
or House has met on this topic since 1976, 41 years ago.
Making the decision to go to war of any sort is a heavy
responsibility for our Nation's elected leaders, and the
decision to use nuclear weapons is the most consequential of
all. The Atomic Energy Act of 1946 and the subsequent practices
recognize that the use of nuclear weapons must be subject to
political control. This is why no general or admiral or Defense
Secretary has the authority to order the use of nuclear
weapons. Only the President, the elected political leader of
the United States, has this authority.
The nuclear arms race between the United States and the
Soviet Union during the Cold War dramatically elevated the risk
of nuclear conflict. As the Soviets developed massive numbers
of nuclear weapons and the systems to deliver them to the
United States, we planned for the unthinkable: How to get our
missiles in the air within those few minutes before their
warheads could hit us and possibly destroy our ability to
respond.
In that kind of scenario, there is no time for debate.
Having such forces at the ready has been successful in
deterring such an attack. And for that, we are grateful.
But this process means the President has the sole authority
to give that order, whether we are responding to a nuclear
attack or not. Once that order is given and verified, there is
no way to revoke it.
To be clear, I would not support changes that would reduce
our deterrence of adversaries or reassurance of our allies, but
I would like to explore, as our predecessors in the House did
41 years ago, the realities of this system.
I want to thank all of our distinguished witnesses and the
members of this committee for the seriousness with which they
approach this topic before us today, and hope that, together,
we can have a productive and enlightening discussion about this
sober issue.
With that, I would like to turn to my friend and our
distinguished ranking member, Senator Cardin.
STATEMENT OF HON. BENJAMIN L. CARDIN,
U.S. SENATOR FROM MARYLAND
Senator Cardin. Mr. Chairman, thank you so much. I almost
always, in a perfunctory way, thank you for holding hearings,
but in this case, I really do believe this is a critically
important discussion to have not just with ourselves in the
United States Senate but with the American people.
I must tell you, I am always amazed as to what subjects
come up at town hall meetings that I hold throughout Maryland.
Most of the subjects deal with the local economic or domestic
issues. We do not normally get a lot of foreign policy
questions at town hall meetings. But of late, I have been
getting more and more questions about, ``Can the President
really order a nuclear attack without any controls?'' That
question is asked more and more by the American people.
Of course, it is fueled by comments made by President Trump
in regard to North Korea. Quoting the President in his August
interview, ``North Korea best not make any more threats to the
United States. They will be met with fire and fury like the
world has never seen,'' or the President's comments, ``We will
have no choice but to totally destroy North Korea.''
Now, many interpret that to mean that the President is
actively considering the use of nuclear weapons in order to
deal with the threat of North Korea. That is frightening.
And as the chairman pointed out, based on my understanding
of the nuclear command and control protocols, there are no
checks--no checks--on the President's authority. The system as
it is set up today provides the President with the sole and
ultimate authority to use nuclear weapons.
And that was developed because of the realities of the
security of our country. The nuclear command-and-control system
we have in place is the result of three factors.
The first was the particular threat and challenge of the
Cold War. For decades, the United States faced a nuclear-armed
adversary in the Soviet Union with a large and capable nuclear
force. The United States settled on a strategy of mutually
assured destruction, which placed distinctive demands on our
nuclear warfighting command-and-control system.
The second and related factor is the law of physics. An
ICBM launch from Russia to the United States would have about a
30-minute flight time. There was not time to convene a special
session of Congress or to have the type of consultations that
would infringe upon our ability to have actually a deterrent.
This means the President and his team have an incredibly short
window to identify, assess, communicate, decide, and, if
necessary, launch a nuclear force. There was no time for
Cabinet meetings and no time for consultation.
The Cold War may be long behind us, but such a scenario
based upon the need to deter a massive Soviet nuclear attack
with little or no warning time remains the driving force behind
the current command-and-control architecture even today.
The final factor behind the U.S. nuclear command-and-
control system rests with the fact that nuclear weapons, ever
since their development, have also always been considered
unique, not like any other military weapon. Starting under
President Truman, the point was made crystal clear that the
White House was in charge of the atomic bomb and its uses, not
the military.
Nuclear bombs were not a military weapon whose use would be
controlled by the Armed Forces but a strategic weapon under the
strict control of civilian and elected officials. The President
as both our highest elected civilian official and Commander in
Chief under the Constitution played a unique role with this
unique weapon. The President and only the President assumed the
sole and unchecked power to launch nuclear attacks.
As President Truman said, ``You have got to understand that
this isn't a military weapon. It is used to wipe out women and
children and unarmed people, and not for military uses. So we
have got to treat this differently from rifles and cannon and
ordinary things like that.''
Nuclear weapons remain unique, but today, we face a
different question than the one we faced during the Cold War.
Given today's challenges, we need to revisit this question on
whether a single individual should have the sole and unchecked
authority to launch a nuclear attack under all circumstances,
including the right to use it as a first strike.
The most likely attack we face is not a massive surprise
nuclear attack by Russia or China but a nuclear conflict that
springs from an escalating conflict with the smaller nuclear
forces, such as North Korea. In this sort of circumstance,
where the United States would not face the same sort of ``use
them or lose them'' pressure we faced during the Cold War, it
may be possible and certainly wise for the President to take
the time to consult Congress before the profound and historic
decision to use nuclear weapons is made.
I would like to be able to tell my constituents and the
American people we have a system in place that prevents an
impulsive and irrational decision to use nuclear weapons.
Unfortunately, I cannot make that assurance today.
I look forward to hearing from our three very distinguished
witnesses.
I just would like to acknowledge Mr. McKeon's presence here
as a former counsel to this committee under Senator Biden. It
is nice to have him back before our committee.
The Chairman. Thank you so much.
Our first witness today is General Bob Kehler, commander of
the United States Strategic Command from 2011 to 2013. Thank
you for being back with us today, and thank you for your
service to our country.
Our second witness is Dr. Peter Feaver, professor of
political science at Duke University. Thank you so much for
being here today.
Our third witness is Brian McKeon, the Acting Under
Secretary of Defense for Policy during the Obama administration
and once a staff member, as was mentioned, on this committee.
Thank you for coming back.
All of you are very familiar. If you can summarize your
comments in about 5 minutes, we would appreciate that. Any
written materials you have, without objection, will be entered
into the record. And if you could just begin and proceed in the
order introduced, we would appreciate it.
STATEMENT OF GENERAL C. ROBERT KEHLER, U.S. AIR FORCE, RETIRED,
FORMER COMMANDER, UNITED STATES STRATEGIC COMMAND, ALEXANDRIA,
VIRGINIA
General Kehler. Thank you and good morning, Mr. Chairman.
Good morning, Senator Cardin, distinguished members of the
committee.
It is my honor to appear today to discuss nuclear decision-
making. I am also really pleased to appear with these two
outstanding panelists and colleagues to my right.
Command and control is a critically important component of
our nuclear deterrent, and I applaud you for taking the time to
understand it better.
At the outset, I must say that the views I express this
morning are mine. I no longer represent the department or
Strategic Command or the U.S. Air Force. I will try to bring
the perspective of almost 4 decades of military service in
senior military command to my remarks today, and much of that
was in nuclear-related duty.
Let me also add that some of the Nation's most closely
guarded secrets are associated with nuclear weapons, with the
plans associated with them, and with the processes as well. So
there are limits on what I can say, even if some aspects of
this matter are discussed openly by others.
In the interest of time, I would like to make just three
brief opening remarks.
First, as this committee knows well, the U.S. now faces
more complex security problems and greater uncertainty than it
did during the Cold War. Nuclear weapons are not gone from
world affairs, and it does not look to me like they are going
to be gone from world affairs anytime soon. Russia and China
are modernizing their forces as the basis of strategies
designed to expand their positions at our expense and the
expense of our allies.
Russia frequently makes explicit nuclear threats to include
the threat of nuclear first use. China will soon deploy
ballistic missile submarines, opening a new chapter in their
nuclear history. North Korea threatens our regional allies and
forward-based forces, and is pursuing the capability to
threaten the U.S. directly. North Korea has also threatened
nuclear first use. Iran, of course, remains a country of
interest.
Other strategic threats like long-range conventional
weapons, cyber weapons, and threats against critical space
assets have emerged and can arrive at our doorstep quickly. But
nuclear weapons remain important in the strategies of our
potential adversaries.
The second point, while the U.S. nuclear force is far
smaller, postured less aggressively, and occupies a less
prominent place in our defense strategy than it did during the
Cold War, nuclear deterrence remains crucial to our defense and
to strategic stability. There is an old saying that I have used
many times over the years, that deterrence exists when an
adversary believes they cannot achieve their objectives, will
suffer unacceptable consequences if they try, or both.
U.S. nuclear weapons prevent the coercive or actual use of
these weapons against us and our allies, which is their primary
purpose, constrain the scope and scale of conflict, compel
adversaries to ponder the consequences of their actions before
they act, and obviate the need for additional allies to acquire
their own. No other weapon can replace the deterrent value of
nuclear weapons. And the ability to command and control our
nuclear forces under all conditions of crisis and conflict
remains central to the credibility of the deterrent.
Third, U.S. nuclear forces operate under strict civilian
control. Only the President of the United States can order the
employment of U.S. nuclear weapons. And the President's ability
to exercise that authority and direction is ensured by people,
processes, and capabilities that comprise the nuclear command-
and-control system.
This is a system controlled by human beings. Nothing
happens automatically. That system is designed to do two very
important things. First, it is designed to enable the
authorized use of nuclear weapons while preventing the
unauthorized use or the accidental use or the inadvertent use
of them; and two, to do so in the face of a wide variety of
scenarios, including a nuclear attack.
The challenge of the Cold War, which is a short-notice,
massive attack, while less likely today, I would agree, still
exists. A colleague and mentor of mine has always said that
when you are looking at an adversary, you have to look at
capability and intent. The Russians may not have the intent of
attacking us today with a short-notice, massive attack, but
they retain the capability to do so. And so long as they do, we
have to deter that capability.
The nuclear decision process includes assessment, review,
and consultation between the President and key civilian and
military leaders followed by transmission and implementation of
any presidential decision by the forces themselves. All
activity surrounding nuclear weapons are characterized by
layers of safeguards, tests, and reviews.
Finally, I think it is important to remember that the
United States military does not blindly follow orders. A
presidential order to employ U.S. nuclear weapons must be
legal. The basic legal principles of military necessity,
distinction, and proportionality apply to nuclear weapons just
as they do to every other weapon.
It was my job and the job of other senior leaders like the
Secretary of Defense and the chairman and the other combatant
commanders to make sure these principles were applied to
nuclear orders.
As I close, I want to urge caution as you consider these
matters. Changes or conflicting signals can have profound
implications for deterrence, for extended deterrence, and for
the confidence of the men and the women in the nuclear forces.
Again, Mr. Chairman, thank you for inviting me. I
appreciate being here today, and I look forward to your
questions.
[General Kehler's prepared statement follows:]
Prepared Statement of General C. Robert Kehler, USAF (Ret.)
Chairman Corker, Ranking Member Cardin, and distinguished members
of the committee, I am pleased to join you today to offer my
perspective on the authority to order the use of U.S. nuclear weapons.
The views I express today are mine and do not represent the Department
of Defense, United States Strategic Command, or the United States Air
Force.
As I begin I want to thank the committee for helping to bring
attention to these very important matters related to the credibility
and effectiveness of the U.S. nuclear deterrent.
21st Century Security Environment
The United States now faces far more complex security problems and
greater uncertainty than it did during the Cold War. Threats to our
security are diverse, can arrive at our doorsteps quickly, and can
range from small arms in the hands of extremists to nuclear weapons in
the hands of hostile foreign leaders. Yesterday's regional battlefield
is becoming tomorrow's global battle-space where conflicts may begin in
cyberspace and quickly extend to space.most likely before traditional
air, land, and sea forces are engaged. Violent extremists continue to
threaten us, and we must remain vigilant to prevent the intersection of
violent extremism with weapons of mass destruction.
Russia's and North Korea's explicit nuclear threats (to include the
threat of nuclear first-use) remind us that nuclear weapons are not
gone, and it appears they will not be eliminated from world affairs
anytime soon. Russia and China are modernizing their nuclear forces as
the basis of strategies designed to expand their positions at our
expense and that of our allies. In addition, North Korea's nuclear
capabilities now threaten our regional allies and eventually could
threaten us directly. India and Pakistan threaten nuclear use in their
disputes, and Iran will remain a country of interest as time passes.
Despite significant differences from the Cold War, the ultimate
paradox of the nuclear age is still with us--to prevent the use of
nuclear weapons, the U.S. must remain prepared to use them.
Deterrence and U.S. Nuclear Weapons
While the end of the Cold War allowed the U.S. to diminish the role
and prominence of nuclear weapons in our defense planning and to
dramatically reduce both the number of deployed weapons and the overall
size of the stockpile, nuclear deterrence remains ``crucial to our
nation's defense and to strategic stability''. Although no longer
needed to deter a conventional attack from the massed armored
formations of the now extinct Soviet Union and Warsaw Pact, nuclear
weapons continue to prevent both the coercive and actual use of these
weapons against the U.S. and its allies (their primary purpose),
constrain the scope and scale of conflict, compel adversary leaders to
consider the implications of their actions before they act, and (via
extended deterrence) obviate the need for additional allies and
partners to acquire their own. Nuclear weapons are only one of many
important instruments that must be orchestrated for maximum deterrent
credibility and effect in the 21st Century; however, today no other
weapon can replace their deterrent value.
To remain a credible deterrent tool, the U.S. nuclear force must
present any would-be attacker with little confidence of success and the
certainty of an assured response against his highest value targets.
Therefore, the U.S. must continue to take the necessary steps to field
a modern nuclear force that presents an adversary with insurmountable
attack and defensive problems, demonstrates resolve and commitment to
allied security guarantees, provides the president with a range of
options to deal with crisis or conflict, and serves as an effective
hedge against technical failures or geopolitical uncertainty. Central
to this force is an upgraded nuclear command, control, and
communications (NC3) system that ensures the president always remains
linked to his critical advisors and the nuclear forces for positive
control.
Nuclear Command and Control (NC2)
US nuclear forces operate under strict civilian control. Only the
President of the United States can authorize the use of U.S. nuclear
weapons, and the President's ability to exercise that authority and
direction is ensured by the people, procedures, facilities, equipment,
and communications capabilities that comprise the Nuclear Command and
Control System (NCCS). The NCCS has been designed with resilience,
redundancy, and survivability to ensure that an adversary cannot hope
to neutralize our deterrent by successfully attacking any of its
elements and thereby ``disconnecting'' the President and other civilian
and military leaders from one another or from the nuclear forces--even
in the most stressing scenarios. These features enhance deterrence and
contribute to crisis stability.
NCCS capabilities and procedures are designed to enable the
authorized use of nuclear weapons while also preventing their
unauthorized, accidental, or inadvertent use. Operations and activities
involving U.S. nuclear weapons are surrounded by layers of safeguards.
While many of the specifics are highly classified, general methods
range from personnel screening and monitoring to codes and use
controls. In addition, sensors and communications links that contribute
to nuclear decision making are specially certified, and tests and
exercises are frequently held to validate the performance of both
systems and people. Before I retired in late 2013, we had also begun to
evaluate networks and systems for potential or actual cyber intrusions.
Other factors contribute to the prevention of unauthorized,
inadvertent, or accidental use. ``Today's triad of nuclear forces is
far smaller and postured much less aggressively than its Cold War
ancestor.'' Not only are the long-range bombers and supporting aerial
tankers no longer loaded and poised to take off with nuclear weapons
(unless ordered back into a nuclear alert configuration), but ballistic
missiles are aimed at open areas of the ocean. Also, while the
possibility of a massive surprise nuclear attack still exists (and must
be deterred), decision time is longer in many other potential nuclear
scenarios that may prove more likely in today's global security
environment.
As I mentioned earlier, the decision to employ nuclear weapons is a
political decision requiring an explicit order from the President. The
process includes ``assessment, review, and consultation (via) secure
phone and video conferencing to enable the President to consult with
his senior advisors, including the Secretary of Defense and other
military commanders.'' Once a decision is reached, the order is
prepared and transmitted to the forces using ``procedures.equipment,
and communications that ensure the President's nuclear control orders
are received and properly implemented.''
The law of war governs the use of U.S. nuclear weapons. Nuclear
options and orders are no different in this regard than any other
weapon. Here, U.S. policy as articulated in the 2010 Nuclear Posture
Review (NPR) provided important context regarding the consideration of
U.S. nuclear use (i.e., extreme circumstances when vital national
interests are at stake). The 2010 NPR also restated the ``negative
security guarantee'' (i.e., the U.S. will not consider using nuclear
weapons against any non-nuclear weapons state that is party to the
Nuclear Nonproliferation Treaty and in compliance with their
nonproliferation obligations). In addition, the legal principles of
military necessity, distinction, and proportionality also apply to
nuclear plans, operations, and decisions. Legal advisors are deeply
involved with commanders at all steps of the deliberate and crisis
action processes to offer perspective on how force is to be used as
well as the decision to use force.
The decision to use nuclear weapons is not an all or nothing
decision. Over the years, successive Presidents have directed the
military to prepare a range of options designed to provide flexibility
and to improve the likelihood of controlling escalation if deterrence
fails. Options are clearly defined in scope and duration and the
President retains the ability to terminate nuclear operations when
necessary.
Military members are bound by the Uniform Code of Military Justice
(UCMJ) to follow orders provided they are legal and come from
appropriate command authority. They are equally bound to question (and
ultimately refuse) illegal orders or those that do not come from
appropriate authority. As the commander of U.S. Strategic Command, I
shared the responsibility with the Secretary of Defense, Chairman of
the Joint Chiefs of Staff, and other senior military and civilian
leaders to address and resolve any concerns and potential legal issues
on behalf of the men and women in the nuclear operating forces during
the decision process. It was our duty to pose the hard questions, if
any, before proceeding with our military advice. Nuclear crew members
must have complete confidence that the highest legal standards have
been enforced from target selection to an employment command by the
President.
Conclusion
Mr. Chairman, I applaud your and the committee's interest in these
matters. However, I urge Congress to carefully consider the potential
impacts to deterrence and extended deterrence that any potential
changes to nuclear command and control might have. I also urge you to
consider that conflicting signals can result in loss of confidence,
confusion, or paralysis in the operating forces at a critical moment.
Some of the lapses in discipline and performance we saw in the nuclear
forces several years ago were attributed to conflicting signals
regarding the importance of and support for the nuclear deterrence
mission.
Clarity and commitment regarding nuclear weapons, their continued
foundational role in U.S. and allied defense strategy, and confidence
in our nuclear command and control processes are as important now as
they ever were during the Cold War. Deterrence credibility and national
security demand it.
Again, thank you for inviting me to offer my perspectives on this
important topic.
The Chairman. Thank you very much.
Dr. Feaver?
STATEMENT OF PETER D. FEAVER, PH.D., PROFESSOR OF POLITICAL
SCIENCE AND PUBLIC POLICY, DUKE UNIVERSITY, DURHAM, NORTH
CAROLINA
Dr. Feaver. Chairman Corker, Ranking Member Cardin, and
distinguished members of the committee, thank you for the
opportunity to discuss this important topic, which I will refer
to as nuclear command and control.
My bottom line is simple. In the past, Congress has played
a vital role in pushing the executive branch to strengthen
command and control, and the time may be ripe for another close
look. However, we must proceed with some caution because the
topic is complex and susceptible to unintended consequences.
I will make four points.
First, at the heart of nuclear command and control is what
might be called the always-never dilemma. For nuclear
deterrence to work, we must have a high assurance that the
country will always be able to present a credible nuclear
strike capability to our adversaries even in the most dire
scenarios. However, because even a single nuclear detonation
would be so consequential and might trigger an escalatory
spiral that would lead to civilization-threatening outcomes, we
must also have a high assurance that there will never be an
accidental or unauthorized of nuclear weapons.
The challenge is that measures designed to improve the
``always'' side of the equation can compromise the negative
side, and vice versa.
Pre-delegating the authority to use nuclear weapons and
spreading that capability to do so to lower echelons may thwart
an enemy's first-strike planning, for example, but it would
increase the risk that a weapon might be used in an
unauthorized fashion or by someone confused in the fog of
battle.
The history of nuclear command and control is a history of
civilian and military leaders debating the proper balance
between ``always'' and ``never.'' It is a history of occasional
discoveries that the risks on one side or the other side of the
ledger were greater than originally understood. And it is a
history of improvements.
Some, like permissive action links, PALs, which are coded
locks that block detonation of a weapon without inserting the
PIN code, and were pressed by far-seeing congressional
advocates, these improvements may have helped forestall
disaster.
This brings me to my second major point. We must be willing
to invest the requisite funds to keep our technology up to
date. But in the nuclear command and control business, hardware
is trumped by software, and software is trumped by wetware.
Hardware refers to the technologies like the PALs I just
mentioned. Software refers to the rules and procedures that
govern how the hardware is used; for instance, the code
management system that determines who has the PAL codes and who
is authorized to release them. Wetware refers to the human
element, the reliability of people involved in enforcing the
rules, and the civil-military relations that form the political
context in which the software and hardware operate.
At the end of the day, what would matter most is the human
element. Would the President's advisers be in a position to
provide timely counsel? And would that counsel shape the
President's decision? Would the various echelons in the chain
of command recognize a valid authenticated nuclear use order as
being legal, given the military's deeply ingrained training to
refuse to implement any illegal order? Indeed, would
subordinate elements of the command-and-control system do what
they are supposed to do, no more and no less, but with
appropriate judgment?
This last point cannot be overemphasized. For decades now,
it has been technically possible to build a nuclear command-
and-control system that would eliminate the human element
altogether. Every generation of strategic leaders has
understood that such a system would be foolhardy in the
extreme. The human element introduces risks, to be sure, but it
also introduces the opportunity to mitigate risks.
This brings me to my third major point. The best reforms to
nuclear command and control would be ones that maximize the
opportunity for the human element to mitigate risks by
maximizing time for deliberation and assessment. Of course,
efforts to extend decision times must not run afoul of the
always-never dilemma.
I conclude with my fourth and final point. The time is ripe
for a fresh look. Changes in communications technology and
rapidly evolving cyber threats alone would justify a fresh
examination. Threats that were warned about 5 years ago have
become urgent realities today.
And finally, our divisive political environment has raised
new doubts about the effectiveness of all our branches of
government to wield the power they possess responsibly. In that
context, a thoroughgoing review of nuclear command and control
could help shore up nuclear confidence in this area.
Outside experts have suggested many possible improvements
that are worth considering. For instance, there are a variety
of proposals that involve requiring certifications by
additional Cabinet officials of launch orders under certain
circumstances. However, all of these proposals raise important
constitutional questions about usurping the President's
authorities.
Because the actual operations of the current system are
exceedingly complex, I would recommend great caution before
legislating any particular fix. Nevertheless, I would recommend
diligence and perseverance in oversight of the system to
reassure our friends and to warn our enemies that the nuclear
arsenal will function as it is intended.
Thank you.
[Dr. Feaver's prepared statement follows:]
Prepared Statemenmt of Dr. Peter Feaver
Chairman Corker, Ranking Member Cardin, and distinguished members
of the committee: Thank you for the opportunity to discuss one of the
most consequential issues this Committee could ever consider: The
authorities and processes by which the United States might use its
nuclear arsenal. For the sake of convenience, I will refer to this
broad topic as ``nuclear command and control.''
Civilian and military leaders have wrestled with nuclear command
and control for over 70 years--and it has been one of the issues I have
focused on in 30-some years of studying the theory and practice of
American civil-military relations.
My bottom line is simple: in the past Congress has played a vital
role in pushing the Executive Branch to strengthen the nuclear command
and control system and the time may be ripe for another close look. In
the course of reviewing previous choices made, scrutinizing established
procedures, and looking at old problems with fresh eyes, we may well
identify areas for improvement.
However, we must proceed with some caution. The topic is highly
classified and thus hard to discuss in open session. It is also highly
complex, with de facto operations hinging on crucial details that are
hard for outsiders to assess with confidence.
Above all, there are some fundamental dilemmas at the heart of
nuclear command and control that mean there are no simple solutions.
Context matters and every fix may have unintended second or third order
effects that may only be understood after the system has been
thoroughly exercised.
I will make four brief points in my opening remarks and then look
forward to answering your questions as best I can.
First, at the heart of the nuclear command and control system is
what might be called the always/never dilemma. For nuclear deterrence
to work, we must have a high assurance that the country will always be
able to present a credible nuclear strike capability to our
adversaries, even in the most-dire scenarios. Otherwise, if others
believe that some sort of massive or cleverly designed first strike
could render our nuclear arsenal unusable, adversaries will have a
powerful incentive to strike us first and early in any unfolding
crisis.
A significant portion of the nuclear command and control system is
thus dedicated to ensuring that the President would have a viable
nuclear option, even under very demanding time constraints, or even
after the United States has suffered a devastating attack. We spend
enormous sums of money making communications systems as robust as they
can be and training all echelons of command to be ready to present the
national command authority with executable options under any
conditions. Design features that increase the risk of failure--that
would cause the system to fail impotent, rather than merely fail safe--
could undermine deterrence.
However, because even a single nuclear detonation would be so
consequential and might trigger an escalatory spiral that would lead to
civilization-threatening outcomes, we must also have a high assurance
that there would never be an accidental or unauthorized use of nuclear
weapons.
A significant portion of the nuclear command and control system is
devoted to safety and security measures designed to minimize these
risks. U.S. nuclear weapons are equipped with environmental sensing
devices that inhibit nuclear detonation unless the weapon experiences
the exact sequence of physical effects--spin, gravity, change in
altitude, etc.--that would be associated with an intended use, thus
ensuring that the warhead will not detonate simply because it is
dropped or bumped. Launch control processes involve complex
authentication measures designed to validate that an order is
authentically emanating from the national command authority and not
some rogue element. During the later period of the Cold War, weapons
that were deployed in remote settings close to potential battlefields
had protective devices known as Permissive Action Links (PALs) that
rendered the weapon inert so that anyone stealing it or trying to use
it without proper authorization would be stymied.
The challenge is that measures designed to improve the always side
of the equation can compromise the never side and vice-versa. Pre-
delegating the authority to use nuclear weapons and spreading the
capability to do so to lower echelons may thwart an enemy's first-
strike planning, for example, but it would raise the risk that a weapon
might be used in an unauthorized fashion or by someone confused in the
fog of battle.
The history of nuclear command and control is a history of civilian
and military leaders debating the proper balance between always and
never. It is a history of occasional discoveries that the risks on one
side or the other side of the ledger were greater than originally
understood. And it is a history of improvements--some, like Permissive
Action Links, pressed by far-seeing congressional advocates--that may
have helped forestall disaster. Even though we never had a truly
catastrophic nuclear accident it is now publicly known that there were
far too many close calls. Accordingly, our nuclear commanders are wise
to be ever-vigilant and open to reexamining existing procedures with
fresh eyes.
It is thus of vital national importance that our leaders, our
adversaries, our allies, and our citizens have confidence that the
nuclear command and control system continues to give due consideration
to this always/never dilemma and that we have not inadvertently
accepted too much risk of failure on either side. There is no single
optimal solution. The right balance depends on the geostrategic context
and advances in technology, among other factors, which is why we should
never act as if the problem has been ``solved.'' On the contrary, it is
a problem that must be managed on an ongoing basis, adjusting as
appropriate with other changes.
This brings me to my second major point: we must be willing to
invest the requisite funds to keep our technology up to date, but in
the nuclear command and control business hardware is trumped by
software, and software is trumped by wetware. Hardware refers to the
technology: for instance, permissive action links that block the firing
mechanism until a proper code is inserted. Software refers to the rules
and procedures that govern how the hardware is used: for instance, the
code-management system that determines who has the PAL codes and who is
authorized to disseminate them. Wetware refers to the human element:
the reliability of people involved in enforcing the rules and the
civil-military relations that form the political context in which the
software and hardware operate.
In the past, reviews of the command and control system uncovered
hardware flaws that needed to be corrected--for instance, gaps in
communications that could be fixed with more modern technology. But
more often reviews identified software and wetware problems--for
instance, discovering that rules were interpreted in a way that
produced unintended effects or discovering that bureaucracies had
resorted to understandable ``work-arounds'' to get around cumbersome
procedures and, in the process, introduced uncertainties that were not
properly understood by higher authorities. This latter process has been
called the ``paradox of control:'' the more the higher levels of
command seek to assert restrictive control of subordinate elements,
even at the risk of making those subordinate elements incapable of
doing their jobs, the greater is the incentive of those subordinate
elements to establish ``work-arounds'' that the higher authorities may
not be aware of or, if they are, may not fully comprehend.
At the end of the day, what would matter most is the human element.
Would the President properly understand his/her role and his/her
options and wisely weigh the second and third order implications of any
decision he/she made? Would the President's advisors be in a position
to provide timely counsel and would that counsel shape the President's
decisions? Would the various echelons in the chain of command recognize
a valid authenticated nuclear use order as also being legal, given the
military's deeply ingrained training to refuse to implement any illegal
order? Would lower level operators, the proverbial ``button pushers,''
carry out their fateful assignment in light of what is now known about
the risks of nuclear war? Indeed, would subordinate elements of the
command and control system do what they were supposed to--no more and
no less--but with appropriate judgment?
This last point cannot be overemphasized. For decades now, it has
been technologically possible to build a nuclear command and control
system that would eliminate the human element in the launch sequence
altogether. Every generation of strategic leaders has understood that
such a system would be foolhardy in the extreme. The human element
introduces risks, to be sure, but it also introduces the opportunity to
mitigate risks.
This brings me to my third major point. The best reforms to the
nuclear command and control system would be ones that maximized the
opportunity for the human element to mitigate risks by maximizing time
for deliberation and assessment. The best reforms are ones that would
increase the time that the President and his advisors would have
available so as to make considered decisions incorporating the widest
set of inputs, including, if possible, inputs from leaders in Congress.
Of course, efforts to extend decision times must not run afoul of the
always-never dilemma. Reforms that maximized decision time but rendered
the nuclear arsenal unusable in a crisis or conventional conflict would
undermine deterrence and could actually make a nuclear war more, not
less, likely. Moreover, measures aimed at providing radical solutions
at the hardware level risk being undone by workarounds at the software
or wetware levels.
Nevertheless, investments--even costly investments--in systems that
buy more decision time in crises are likely among the wisest
expenditures we can make. For instance, enhanced missile defenses may
be a prudent option in light of the growing threat from North Korea--
one that gives the President more time to assess before reacting. And
upgrading communications systems to ensure that the President will have
immediate access to all of his/her relevant advisors even under
demanding scenarios would be a prudent investment in national security.
Earlier generations of strategic leaders found ways to improve the
nuclear command and control system without exacerbating the always/
never dilemma and, speaking as a citizen, I would ask the current
generation of strategic leaders to do the same. However, I would
likewise caution that not every proposed reform would actually reduce
nuclear risks.
This brings me to my fourth and final point: the time is ripe for a
fresh look. The Trump Administration is going through a Nuclear Posture
Review right now and, presumably, the adequacy of the nuclear command
and control system is a priority focus of that review. Changes in
communications technologies and rapidly evolving cyber threats alone
would justify a fresh examination. It is likely that the command and
control system is overdue for some major (and expensive) upgrades. At
the same time, the geostrategic environment today is markedly
different. Threats that were warned about five years ago have become
urgent realities today.
North Korea is only the most vivid example of this; a
confrontational Russia and an assertive China have dramatically changed
our threat picture. The nuclear command and control system is likely
facing new strains because of these developments. And, finally, our
divisive political environment has raised new doubts about the
effectiveness of all our branches of government to wield the power they
possess responsibly. In that context, a thoroughgoing review of nuclear
command and control could help shore up public confidence in this vital
area.
Outside experts have suggested many possible improvements that are
worth considering. One proposal calls for clarifying the chain of
command to ensure that lower-echelons know that any order to use
nuclear weapons has been adequately vetted. Another proposed approach
recommends requiring certifications by additional cabinet officials of
launch orders under certain circumstances. Still another proposal calls
for specifying certain scenarios that would require prior consultation
with Congress before a nuclear use order would be deemed legal. All of
these proposals raise important constitutional questions about usurping
the President's authorities; I am not a lawyer but I will point out
that the precise distribution of powers among the branches related to
military decision-making has never been entirely clear, and so reforms
that raise the hoary war powers issue, particularly in the nuclear
area, are especially fraught. But there may be reforms that pass
constitutional muster while also enhancing the ability of the President
to wield his/her commander-in-chief powers in the most effective and
responsible way possible. Finding those should be an urgent priority
for this and other responsible legislative and executive bodies.
Because the actual operations of the current system are exceedingly
complex, I would recommend great caution before legislating any
particular fix. Nevertheless, Congress can play an important role in
strengthening nuclear command and control. Congress can stipulate that
the NPR explicitly address these questions. Moreover, Congress will
have multiple opportunities to give input through the authorization and
appropriation process for the ongoing modernization of the nuclear
arsenal.
Above all, I would recommend diligence and perseverance in
oversight of the system, to reassure our friends and to warn our
enemies that the nuclear arsenal will function as it is intended.
The Chairman. Thank you very much.
Mr. McKeon?
STATEMENT OF HON. BRIAN MCKEON, FORMER ACTING UNDER SECRETARY
FOR POLICY, U.S. DEPARTMENT OF DEFENSE, WASHINGTON, DC.
Mr. McKeon. Mr. Chairman, Senator Cardin, members of the
committee, thank you for your invitation to be here today. It
is nice to be back in this room after spending so many years of
my professional life working on the staff of this committee.
I will digress briefly, Mr. Chairman, to say I am very
impressed by how quickly you mustered a quorum, having spent
numerous hours waiting and waiting and waiting for that magic
10th Senator to show up.
The Chairman. Thank you. It is one of the rare times that
occurred.
Mr. McKeon. Your efficiency is impressive.
The Chairman. Thank you.
Mr. McKeon. I will briefly address three questions and try
not to duplicate my colleagues.
First, who has the authority to employ nuclear weapons? In
one respect, the answer is simple. The President does. As
Commander in Chief of the Armed Forces under the Constitution,
he has the sole authority within the executive branch for such
a decision.
Some authority in military operations is delegated to the
Secretary of Defense and then further delegated to appropriate
combatant commanders. The authority to use nuclear weapons,
however, remains with the President. That is as it should be in
a republic, given the gravity of the decision and the
consequences of any nuclear use.
It bears emphasis that the President would not make this
decision by himself. The system for a decision is designed to
ensure that the President consults with the National Security
Council and his other senior civilian and military advisers,
and I would expect that to occur in every case where the use of
nuclear weapons is contemplated.
That is hardly the end of the inquiry. The authority to
employ nuclear weapons is closely intertwined with an equally
momentous question: Who has the authority to take the country
to war? Article I of the Constitution gives Congress the power
to declare war, grant letters of marque and reprisal, and
several other powers with regard to supporting and regulating
the Armed Forces. To the President, Article II provides that he
is the Commander in Chief of the Army and the Navy.
The constitutional text structure and our history provide
Congress with primacy in this sphere. This power is not merely
limited to formal declarations of war, which Congress has not
done since World War II, but to authorizing most uses of
military force.
To be sure, the President possesses the constitutional
authority to defend against sudden attack or to preempt an
imminent attack. But Article II does not give him carte blanche
to take the country to war.
In the modern era, Presidents of both parties have often
made broad assertions of authority to take military action
without prior authorization by Congress in a manner that the
Framers would not have recognized. Nonetheless, we need not
resolve this general debate to answer the specific question
presented in today's world.
In addition to the global terrorism challenge, our major
potential adversaries today number on one hand: Russia, China,
North Korea, and Iran. Three of these countries possess nuclear
weapons, and the fourth has pursued such a capability.
Therefore, conflict with these states could conceivably involve
nuclear weapons use. Direct armed conflict with these countries
would undoubtedly be war in the constitutional sense and, if
initiated by the United States, would require authorization by
the Congress.
A recent executive branch opinion on the war power by the
Office of Legal Counsel in 2011 supports this conclusion. It
indicated that analysis of whether congressional authorization
for use of military force is required would turn on examination
of ``the nature, scope, and duration'' of the conflict, and
that specific congressional approval would be necessary in
cases of ``prolonged and substantial military engagements
typically involving exposure of U.S. military personnel to
significant risk over a substantial period of time.'' It is
hard to imagine an armed conflict scenario with any of these
countries that would not meet that test.
The rapid advances of North Korea's nuclear and missile
program, and the escalating rhetoric between the President and
the North Korean leader, are no doubt foremost in your minds.
In the North Korean context, the view that Congress would need
to authorize a war is buttressed by the recent letter to your
House colleagues by the vice director of the Joint Staff, Rear
Admiral Michael Dumont, where he stated that a ground invasion
would be required in order to locate and destroy all components
of North Korea's nuclear weapons program.
Given the high number of casualties that would occur in any
conflict with North Korea, let alone during a ground invasion,
no reasonable argument can be made that that would not be war
in the constitutional sense.
The President and his senior administration officials have
stated that time is running out to address the North Korean
challenge. And in August, the National Security Advisor
suggested the possibility of a preventive war. Such a war is
distinct from a preemptive strike in the face of impending
attack, and would also require congressional authorization.
For context on these two questions, I would answer a third:
What is the current policy on use of nuclear weapons?
In my prepared statement, I highlight several elements of
the results of the Nuclear Posture Review in 2010 and the
presidential employment guidance issued in 2013, which remain
in place while the Trump administration completes the Nuclear
Posture Review ordered by the President in January. General
Kehler has described some of these elements as well in his
statement.
Most importantly, the 2010 NPR set forth a goal of reducing
the role of nuclear weapons in the U.S. National Security
Strategy, and it is important to understand there is nothing in
the current guidance that compels the use of nuclear weapons in
a high-end conflict.
Finally, I would note the Obama administration did not
adopt a formal policy of no first-use of nuclear weapons,
although, in the final month of the administration, Vice
President Biden gave a speech in which he said that, given our
nonnuclear capabilities and the nature of today's threats, it
is hard to envision a plausible scenario in which the first use
of nuclear weapons would be necessary. He went on to say that
he and the President were confident that we can deter and
defend ourselves and our allies against nonnuclear threats
through other means.
In closing, thank you for the opportunity to be here, and I
look forward to your questions.
[Mr. McKeon's prepared statement follows:]
Prepared Statement of Hon. Brian P. McKeon
Mr. Chairman, Senator Cardin, members of the committee, thank you
for inviting me to address important questions regarding the authority
to employ nuclear weapons. I bring to this issue experience both as a
lawyer--as chief counsel for the Democratic members of this committee
for 12 years--and as a policymaker in the Executive Branch, with
service in three different national security positions in the White
House and the Defense Department during the Obama administration, where
I was regularly engaged in nuclear weapons policy matters. My position
in the Defense Department ended on January 20 of this year; I speak
only for myself and not the Department.
I commend you for examining this issue, as well as the broader
question of war powers, as you did last month with the Secretaries of
State and Defense, and in June with outside witnesses.
I will briefly address three questions.
First, who has the authority to employ nuclear weapons? In one
respect, the answer is simple: the President does. As Commander in
Chief of the armed forces under the Constitution, he is the sole
authority within the Executive Branch for such a decision. Some
authority in military operations is delegated to the Secretary of
Defense, and then further delegated to the appropriate combatant
commanders. The authority to use nuclear weapons, however, remains with
the President. That is as it should be in a republic, given the gravity
of the decision and the consequences of any nuclear use.
It bears emphasis that the President would not make this decision
by himself. The system for decision is designed to ensure that the
President consults with the National Security Council and his other
senior civilian and military advisers, and I would expect that to occur
in every case where the use of nuclear weapons is contemplated. If the
order is given, the chain of command runs from the President to the
Secretary of Defense to the Commander of U.S. Strategic Command in the
case of strategic weapons, and, in the case of non-strategic weapons in
Europe, to the Commander of U.S. European Command; the Chairman of the
Joint Chiefs is not in the chain of command. If time and circumstances
permit, I would also expect any President to consult with leaders of
key allies, particularly in the region of potential conflict.
That is hardly the end of the inquiry. The authority to employ
nuclear weapons is intertwined with an equally momentous question: who
has the authority to take the country to war?
The members of this committee well understand the basic
constitutional framework, given your jurisdiction over the war power
under the Senate rules. Article I of the Constitution gives Congress
the power to declare war, grant letters of marque and reprisal, and
several other powers with regard to supporting and regulating the armed
forces. To the President, Article II provides that he is the Commander
in Chief of the Army and Navy.
In my view, and the view of many respected scholars, the
constitutional text, structure and our history provide Congress with
primacy in this sphere. This power is not merely limited to formal
declarations of war--which Congress has not done since World War II--
but to authorizing most uses of military force. To be sure, the
President possesses the constitutional authority to defend the country
against sudden attack, or to pre-empt an imminent attack. But Article
II does not give him carte blanche to take the country to war.
In the modern era, presidents of both parties have often made broad
assertions of authority to take military action without prior
authorization by Congress, and have given a narrower reading to the
Declaration of War clause, in a manner the Framers would not have
recognized.
Nonetheless, we need not resolve that general debate to answer the
specific question presented in today's world. In addition to the global
terrorism challenge, our major potential adversaries today number on
one hand: Russia, China, North Korea and Iran. Three of these countries
possess nuclear weapons; the fourth has pursued such a capability.
Therefore, conflict with these states could conceivably involve nuclear
weapons use. Direct armed conflict with these countries would
undoubtedly be ``war'' in the constitutional sense, and if initiated by
the United States, would require authorization by the Congress. Quite
apart from the legal requirement, as a matter of politics and policy,
any President should want the Congress, as the body directly
representative of the American people, to provide its support--to join
in the decision and the responsibility for such a national commitment
of blood and treasure.
A recent Executive Branch opinion on the war power--by the Office
of Legal Counsel in 2011 regarding the military operation in Libya--
supports this conclusion. It indicated that analysis of whether
congressional authorization of a use of military force is required
would turn on examination of the ``nature, scope, and duration'' of the
conflict, and that specific congressional approval would be necessary
in cases of ``prolonged and substantial military engagements, typically
involving exposure of U.S. military personnel to significant risk over
a substantial period [of time].'' It is hard to imagine an armed
conflict scenario with any of these countries that would not meet this
test.
The rapid advances of North Korea's nuclear and missile program,
and the escalating rhetoric between the President and the North Korean
leader, are no doubt foremost in your minds. In the North Korean
context, the view that Congress would need to authorize a war is
buttressed by the recent letter to your House colleagues from the Vice
Director of Joint Staff, Rear Admiral Dumont, where he stated that a
ground invasion would be required in order to locate and destroy all
components of North Korea's nuclear weapons program. Given the high
number of casualties that would occur in any conflict with North
Korea--let alone during a ground invasion--no reasonable argument can
be made that this would not be ``war'' in the constitutional sense.
The President and senior administration officials have stated that
time is running out to address the North Korean challenge, and in
August, the National Security Adviser suggested the possibility of a
preventive war. Such a war--as distinct from a pre-emptive strike in
the face of an impending attack against the United States--would also
require congressional authorization.
For context on these two questions, I would answer a third: what is
the current policy on use of nuclear weapons? The Trump administration
is working on a Nuclear Posture Review ordered by the President last
January. For now, my understanding is that the policy set by the Obama
administration continues to obtain.
That policy is set forth in the report of the Nuclear Posture
Review (NPR) in 2010 and presidential employment guidance issued in
2013. While the specific guidance to the commanders is classified, the
NPR report is unclassified, and the Defense Department submitted an
unclassified summary of the employment guidance to the Congress in
2013. A few elements of these documents bear highlighting.
The 2010 NPR set forth a goal of reducing the role of nuclear
weapons in the U.S. national security strategy, and stated that, among
other things:
The United States would only consider use of nuclear weapons in
extreme circumstances to defend the vital interests of the
United States or its allies and partners.
The United States will continue to strengthen conventional
capabilities and reduce the role of nuclear weapons in
deterring non-nuclear attacks, with the objective of making
deterrence of nuclear attack on the United States or our allies
and partners the sole purpose of U.S. nuclear weapons.
The United States updated the longstanding ``negative security
assurance'' by stating that it will not use or threaten to use
nuclear weapons against non-nuclear weapons states that are
party to the Nuclear Non-Proliferation Treaty and in compliance
with their nuclear non-proliferation obligations.
Additionally, the employment guidance directed the Department of
Defense to:
Conduct deliberate planning for non-nuclear strike options to
assess what objectives and effects could be achieved through
such options.
Examine further options to reduce the role that Launch Under Attack
plays in U.S. planning, while retaining the ability to do so if
directed.
Finally, the Obama administration did not adopt a formal policy of
``no first use'' of nuclear weapons, although in the final month of the
administration, Vice President Biden gave a speech in which he said
that given our ``non-nuclear capabilities and the nature of today's
threats, it's hard to envision a plausible scenario in which the first
use of nuclear weapons would be necessary.'' He went on to say that he
and President Obama were ``confident we can deter--and defend ourselves
and our Allies against--non-nuclear threats through other means.''
In closing, I am grateful for this opportunity to appear before you
today. I look forward to your questions.
The Chairman. I thank all three of you for that outstanding
testimony. As usual, I am going to reserve my time for
interjections and turn to our ranking member.
Senator Cardin. Let me also thank all three of you not just
for your appearance here today but for your service to our
country on these very difficult issues.
I am going to preface my question with my strong belief
that there is not a military solution to the crisis in North
Korea, that any military option carries unbelievable risk
factors, whether it be conventional or the use of nuclear
weapons.
And I hope that the President's trip to Asia has produced
the openings to urge a diplomatic surge that will recognize
that both China and the United States should be looking for
off-ramps to this crisis, and they have a lot in common, and
China can change the equation in North Korea.
So I hope that is where we are heading, because the use of
any military option has extreme risks.
So this is not a hypothetical discussion. What concerns me
is that the President may be getting military options, and the
use of conventional weapons could lead to an extreme number of
casualties in Japan or in South Korea. So there may be a
discussion about whether a nuclear first-strike could prevent
that from occurring or have less of a chance of that occurring.
So this is not a hypothetical discussion.
So, General, I was particularly impressed by your statement
which says, in addition, the legal principles of military
necessity, distinction, and proportionality also apply to
nuclear plans, operations, and decisions.
So how is the President legally restrained, if at all, on
the use of a nuclear first-strike as a result of the orders
that are there under command that it must be proportional or
that there is a distinction that requires this military
necessity? Is there any real restraint on the President on
choosing a nuclear first-strike in a circumstance in North
Korea?
General Kehler. Senator, I think there are. I think there
are always legal constraints when any military option is being
considered.
There has been a longstanding debate about nuclear weapons
and morality and legality, and where nuclear weapons fit in all
of that, given that things changed in August 1945. And there
has been, I think, a longstanding policy view from the United
States that nuclear weapons are not inherently illegal. They
can be used illegally. The question is under what circumstances
and situation.
And what I can tell you is that when I was involved as the
commander of STRATCOM in preplanning options that we are
ordered to do--every President has directed the military to
preplan some options, more as time has passed for additional
flexibility, et cetera, et cetera--we involved our legal
advisers in every step of that process.
Senator Cardin. Let me interrupt you there.
So there is discussion taking place at the National
Security Council level with legal advisers, with military
advisers. And the advice is that, under the guidelines on
proportionality and necessity, that this is not appropriate for
use of a nuclear first-strike.
Is there action that can be taken by those advisers if the
President overrules that decision and says, no, we are going
with a nuclear attack?
General Kehler. 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.
The question about the legality----
Senator Cardin. Who would make that judgment on behalf of
the operational command under DOD?
General Kehler. Well, that is one of the things that would
be on the plate of the commander of Strategic Command. I always
believed that that was on my plate, that ultimately it is very
difficult----
Senator Cardin. So let me just drill down on this. If you
believe 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, because
of legalities, you retain that decision to disobey the
Commander in Chief?
General Kehler. 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 that you described. It is
the process leading to that determination and how you arrive at
that. I would concede to you that 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 is time for that kind of a deliberate
conversation on these matters.
Senator Cardin. And just to complete this cycle, part of
this is that the protocols that have been established under
executive orders on the use of nuclear that require the
proportionality that you are talking about. Another is the
inherent responsibility of military command to follow only
orders that are lawful. Am I reading that correctly?
General Kehler. Yes, that is correct.
Senator Cardin. So there are two different sets, because
you may very well be getting opinions from the White House that
this is legal, but you would have to make your own independent
judgment based upon history and based upon following only legal
orders.
General Kehler. Yes.
Senator Cardin. Thank you.
The Chairman. I am going to use my first interjection here.
So in the event someone in your former position received an
order that you knew had not been vetted through the National
Security Council, for instance, that discussions had not taken
place, that you just got a call out of the blue, things were
tense in a particular area and you received that order, would
you consider that to be legal or not legal?
General Kehler. I never felt, Senator, that I had to vet
orders through the National Security Council. I felt, as a
military senior leader, that I had three obligations. One
obligation was to provide my military advice. One obligation
was to raise any concerns that I had; if they happened to be
legal concerns, to raise those concerns. And then the third
obligation that I had was related to the legality of the order,
either follow a legal order or refuse to follow an illegal
order.
I had legal advisers myself. I fully expected that we would
involve the Secretary's legal advisers, the chairman's legal
advisers. Where DOD took that from there was sort of their
issue to take.
But this, I would certainly have been in consultation with
the Secretary of Defense and the chairman.
The Chairman. Senator Johnson?
Senator Johnson. General, I want to continue down this line
of questioning.
From my standpoint, there are really two basic scenarios,
the scenario when we are under imminent attack, or there is an
attack that is imminent, and then one where it is more
preemptive, where there is time. You said there is always going
to be time. There may not always be time, correct?
General Kehler. I did not mean to suggest that there would
always be time. I agree with that.
Senator Johnson. So when the President would determine that
we are under the threat of almost an imminent attack, he has
almost absolute authority, correct?
General Kehler. Yes. Context matters here and--yes.
Senator Johnson. So is there any process to assess
``imminent'' at that moment?
General Kehler. So I am a former commander, not a lawyer,
so----
Senator Johnson. I am an accountant, so----
General Kehler [continuing]. So let me just say this, to
try to shed some light on this. Context matters here. If, in
fact, in a range of scenarios where nuclear weapon use is
possible, or there is a potential for nuclear weapons use, U.S.
policy has helped us clarify over the years under what
circumstances we might expect to use nuclear weapons.
So, for example, the 2010 Nuclear Posture Review said,
``extreme circumstances when vital national interests are at
stake.'' As a commander, I had that in my mind as a context for
nuclear weapons.
And if we had tactical warning that an attack was underway,
then we were into a playbook, basically, that had been vetted
for its legal viability, et cetera, et cetera, et cetera.
Senator Johnson. So we somewhat defined ``imminent.''
Obviously, if you see radar saying this is a launch, that is
obviously imminent.
General Kehler. Right.
Senator Johnson. What if it is right before?
General Kehler. Well, there is also the conditions where
you might have strategic warning, where we have solid warning
that something will happen.
Senator Johnson. That is already game-planned out, in terms
of what strategic warning is that would say it is imminent?
General Kehler. Well, it is not precisely defined, but I
think it would be certainly one of those matters under
consideration.
Tactical warning, by the way, carries with it some amount
of time urgency either for the survival of the decision-maker
or for a decision about what to do in terms of responding.
Strategic warning is not as time urgent. And so more time gets
introduced into these scenarios as you go from the most extreme
stressing scenario back to the left.
Senator Johnson. So that is the next scenario, where it is
more strategic, and you have time.
Let's say you get a presidential order to launch, but you
are in the position and you know that you have not followed the
process. It has not been properly vetted. In that case, in your
position, you believe that is an illegal order?
General Kehler. No, I believe you have to determine whether
that is a legal order.
Senator Johnson. But you believe that is your
responsibility. You have the authority to say----
General Kehler. Yes.
Senator Johnson.--this is not legal because we have not
followed the steps. We have not gone through the process.
General Kehler. I would have said, ``I have a question
about this,'' and I would have said, ``I am not ready to
proceed.''
Senator Johnson. And then what happens?
General Kehler. Well--[Laughter.]
General Kehler. As I say, I do not know exactly.
Fortunately, we have never--these are all hypothetical
scenarios. I mean, they are real in terms of----
Senator Johnson. We are holding a hearing on this, so.
General Kehler. Exactly. This is the human factor in our
system. The human factor then kicks in. It is what Dr. Feaver
said. There is a human element to this.
And at that point, I think, as with any military order--it
does not matter, really. The consequences are higher if it is
an order on nuclear weapons, but it is the same principle on
any order.
Senator Johnson. So the point is there is a lot of human
intervention between a presidential order when there is time,
it is not imminent, to really ask the questions, to lay out the
fact that we have not gone through this process, this is not
well thought out, it is not proportional. So we can have a
little comfort that even though the President has the
authority, there are limits to that even within this context,
when there is time.
General Kehler. I believe that is true. And even if time is
compressed, there are circumstances that I could envision where
I would have said the same thing, which is, ``Wait. Stop. We
need to resolve these issues,'' or we need to address this
question, or whatever.
And the process provides for that in that it is ultimately
an interaction among human beings. The decision authority
resides with the President, however.
Senator Johnson. Thank you for those answers. Thanks for
your service.
General Kehler. Yes, sir.
The Chairman. Let me just, before we move to the next, the
person who is in your position, it is a Senate-confirmed
position, is that correct?
General Kehler. Yes, sir. That is right.
The Chairman. And typically, the person that is put in your
position is recommended by the military? How does it typically
work?
General Kehler. Well, I can tell you how it worked for me.
The Secretary of Defense, in my case, the Secretary of Defense
interviewed a number of candidates, decided on a candidate to
recommend to the President. There was a process that was gone
through there at some level. And I became the President's
nominee to the Senate. And then you all----
The Chairman. Most of the people who ended up being in
these positions, are they people that have moved up through the
defense mechanisms solely? This is not a political position,
typically? It is a position that is based on merit?
General Kehler. It is not a political position, and it is a
position that is based on, I believe, experience, and I would
like to think merit as well, but certainly experience.
Certainly, there are a lot of factors that go into selection
for senior command.
That is a great question I think for you to pose to other
witnesses who have been in the position to select senior
commanders. I was the beneficiary of that selection.
Mr. McKeon. Mr. Chairman, I can tell you, at least from my
vantage point in the Pentagon, but also as chief of staff to
the National Security Council, the process General Kehler
describes is the process. The Secretary and the chairman huddle
and look at various candidates from the services for the four-
star combatant commands.
Under President Obama, he personally interviewed most of
the candidates who were recommended for selection.
General Kehler. And typically, Mr. Chairman, in recent
years, the commanders of some of the combatant commanders have
been typically four-stars on their second or third assignment.
So I was not a first-time four-star when I was nominated to
take command of Strategic Command. That was my second four-star
assignment.
The Chairman. Thank you.
Senator Udall?
Senator Udall. Thank you, Mr. Chairman.
I thank all the witnesses for being here today.
The first use of U.S. nuclear weapons would appear to be a
clear declaration of war. Certainly, the recipient of a U.S.
nuclear attack would perceive it that way. Under the U.S.
Constitution, only Congress can declare war.
Should Congress require the President to seek authorization
for the first use of nuclear weapons? Why or why not?
Mr. McKeon, why don't we start with you?
Mr. McKeon. Senator, as I laid out in my opening statement,
it is my view, certainly, if the United States were to initiate
a war with another nuclear state, and we conceive that the use
of nuclear weapons might be possible, that is war in the
constitutional sense that Congress should authorize.
If we are under attack from a nuclear state using nuclear
weapons, that is a different question, and the President would
have the authority under Article II to respond, whether with
conventional or nuclear weapons.
The hardest question is the in-between question, and what
Senator Johnson was getting at. Where do you define imminence
on the continuum?
Senator Udall. How do you define it?
Mr. McKeon. Well, it would be very fact-specific, to give
you a bit of a lawyer's dodge. But kind of the most obvious
case is we see a missile on a launchpad or several missiles on
several launchpads, and we have good intelligence that they
intend to not test them but launch them at the United States.
That seems like a pretty clear case of imminence.
Then you would move down a continuum away from that to
where it becomes less imminent and looks more like a preventive
attack.
Senator Udall. Dr. Feaver and General?
Dr. Feaver. What I would say is distinguish between
scenarios where the military wake up the President versus
scenarios where the President is waking up the military.
Where the military wakes up the President and warns him
that there is about to be an attack or that we are experiencing
attack, in those settings, the President has a very limited
time window to make a decision. He would make a decision. He
alone would have the authority to make the decision. And I
think we all believe that the system would carry out the order
that he gave. The electorate on Election Day chose him to make
that decision.
But in the other context where the President is waking up
the military, maybe in an extreme funk, saying, ``I am angry,
and I want something done,'' in that setting, he requires the
cooperation of a lot of people who would be asking exactly the
questions that General Kehler outlined. ``What is the context?
Why is this?'' And the President alone could not affect the
strike. He would require lots of people cooperating with him to
make the strike happen, and they would be asking the questions
that would slow down that process.
So the context matters greatly for this.
Our experience is that the President has asked for
authorization when he is initiating a conflict. That is what
President Bush did in 2002. And I believe that if there was
that kind of context, the President would expect to go to
Congress for authorization for something in that style.
Senator Udall. Now per the U.S. Air Force instruction, the
two-person concept is designed to prevent an accidental or
malicious launch of nuclear weapons by a single individual. In
the nuclear chain of command, the only exception to this rule
is the President.
Would it not make sense to require at least one other
person sign off on a decision to launch a first strike; for
example, a constitutional officer such as the Vice President?
Mr. McKeon. Senator, there is an adage in the law that you
may be familiar with that hard cases make bad law, and this is
a hard case. And I think taking away the President's authority
as Commander in Chief or diluting it in some respect by
requiring him to go to another constitutional officer in a
formal sense, I am not sure that is a wise course.
I do think, as I said, it would be a rare case where the
President would not consult with all of his senior advisers, to
include the Vice President. It is just automatic in the system,
whether there is considerable time or not, that that would
occur. It would be very unusual if it did not.
Senator Udall. Do you all disagree or agree with that?
Dr. Feaver. I do not disagree. I think any law that you
pass that raises constitutional questions will be very
difficult, one, to get passed, and, two, very difficult to
implement.
You want to make sure that you don't propose a legislative
fix that undermines the nuclear deterrent and, thus,
compromises the effectiveness of why we have nuclear weapons.
General Kehler. And I agree with both of my colleagues.
There are two different questions really at work here. One is a
question of constitutional authority and what the Commander in
Chief is allowed to do as the Commander in Chief. And the other
is a principle, and a set of processes and procedures, that
ensure that the authorized use remains at the most senior
civilian authority, and that unauthorized or accidental use
cannot occur.
Senator Udall. Thank you, Mr. Chairman.
The Chairman. Thank you.
Senator Young?
Senator Young. Thank you, Mr. Chairman.
I thank all our panelists for being here today.
General Kehler, I just want to follow up on what has been
much discussed here. In your written statement, you indicate,
``The legal principles of military necessity, distinction, and
proportionality also apply to nuclear plans, operations, and
decisions. Legal advisers are deeply involved with commanders
at all steps of the deliberate and crisis action processes to
offer perspective on how force is to be used, as well as the
decision to use force.''
So a few observations, and I will give you, General, and
you, Mr. McKeon, since you are the attorney on the panel, an
opportunity to respond to any you like.
Number one, it is unclear to me what the legal standard is
for a person to determine whether or not these legal principles
have been satisfied. So is the standard that no reasonable
person could conclude that the order was necessary or
proportional? Or is there some other legal standard? Or is that
left strategically vague?
The second observation is it is unclear what the Commander
in Chief's recourse would be if, in fact, a military person
decided not to move forward with these orders based on
principled reasons that are grounded in the legal principles of
military necessity and proportionality. That is, what if a
military person regards the order as illegal, decides to do
what we are taught in the military--make known their decision
and refuses to obey that order? What recourse does the
Commander in Chief then have in the wake of such a decision?
And then the last observation is that I am unaware of, and
perhaps most others are as well, but I am unaware of any sort
of what I will call discernment training; that is, the training
of our military personnel to be able to apply these legal
principles to different circumstances, to different military
contingencies.
Considering legal questions in advance, to me, seems
distinct from making firm legal determinations in advance. And
going through a series of wargames or contingencies could help
sharpen one's ability to apply the facts of different
complicated, global circumstances to these legal principles.
So with that, if you would like to comment on any of those
observations, why don't I start with Mr. McKeon as the
counselor present?
Mr. McKeon. Senator Young, on the second question about the
legal recourse, if you had a commander saying that he did not
believe it was a legal order, the chain of command runs from
the President to the Secretary to the combatant commander. The
chairman of the Joint Chiefs is not in that chain of command.
I suppose probably the first recourse would be to call the
Secretary of Defense to tell him to order the commander to do
it. Then if the commander still resisted, you either get a new
Secretary of Defense or get a new commander. But you would have
a real constitutional crisis on your hands, if that occurred.
I am unaware that there is a strict legal standard like
``no reasonable person'' on the judgment of proportionality and
distinction, because it is not an instance that would get
litigated very often, although General Kehler may be more
familiar with the UCMJ cases than I am, because I am not a DOD
lawyer. I was a lawyer in this committee.
It would be a judgment based on senior military officers
like the chairman who would be in the conversation, and the
combatant commander, and their legal advisers, all of whom
would have had between 30 and 40 years of military service and
experience, and understand how to make these assessments.
I think that is the best answer I can give you on it.
Senator Young. Thank you.
General, do you have anything to add? And also, perhaps you
could answer the question--of course, these would be highly
classified training regimens, and if you prefer, you could
brief me in a classified setting--about our ability to train
people to discern when proportional, necessary orders have been
ordered.
General Kehler. We certainly do train everyone in the
military on what we collectively call the law of armed
conflict, and that training occurs probably somewhere every
day. It includes the nuclear forces. It includes everyone
wearing a uniform. So this is not a foreign concept to people
who wear our uniforms.
In terms of what is legal precedent here, I, frankly,
cannot answer that off the top of my head. I don't know. And
what the legal standard is for determining distinction,
proportionality, and military necessity, I cannot describe that
off the top of my head either.
What I can say is that, for nuclear decision-making at the
highest level, it is a consultative process, and there are
senior people involved in that process.
Where my expectation always was, if there was a question
about the legality--first of all, if this was something we had
planned, then those issues have been addressed and resolved
prior to the time that the plan becomes part of a playbook that
says, ``Hey, you can pick this one,'' because we have already
been through all of that for this or this or this. And there
are many options that have been preplanned.
If we were doing crisis action planning, we would do the
same thing. We would follow through. That happens faster, but
we would follow through with the same thing. The same legal
standards would be applied.
I always assumed that, if issues got raised at the most
senior level, that we would be able to resolve those issues.
And then as was described, the chain of command is operative
here.
The Chairman. Thank you. Thank you both very much.
Senator Murphy?
Senator Murphy. Thank you, Mr. Chairman, for convening this
hearing. This is fascinating.
Thank you all for being here today.
Let me just pull back the cover for a minute from this
hearing. We are concerned that the President of the United
States is so unstable, is so volatile, has a decision-making
process that is so quixotic, that he might order a nuclear
weapons strike that is wildly out of step with U.S. national
security interests. Let's just recognize the exceptional nature
of this moment in the discussion that we are having today.
I want to maybe pin together some of the questions that
have been asked here in a little bit more pointed form. We have
been talking about the ways and the reasons that an individual
in the chain of command may decide to refrain from carrying out
a particular order because of its illegality. I think Senator
Young raised some very good concerns around the difficulty of
evaluating whether a particular order is necessary or
proportional.
But let me just ask a simple question. Is one of the
questions that is asked in determining whether an order is
legal whether or not there is a declaration of war that allows
for that military action to take place? Would there have to be
an independent legal determination made by those in the chain
of command that there was an operational declaration of war, in
the absence of an attack or an imminent threat?
General Kehler. Senator, you were looking at me. Are you
asking me?
Senator Murphy. Sure.
General Kehler. Great. So the authority to use force and
whether or not there is a declaration of war comes back to
context here.
At least from my perspective, I always viewed the use of
nuclear weapons as fitting in with our declaratory policy,
which is that we would be in extreme circumstances. And it was
described pretty well. It was described in the last Nuclear
Posture Review. But subsequent to that, it was described in
other various ways by the United States, various
administrations over time, that we would be in some kind of
extraordinary or extreme circumstances, and we would be dealing
with national interests that are at stake here.
I can't go back and recite authority that has been granted
in the past to respond with nuclear weapons, but my belief, and
I could be wrong here, was that this issue of strategic and
tactical warning had been addressed in prior epochs, and that
we were not on shaky legal ground if we were talking about
response to strategic or tactical warning.
Senator Murphy. But the question as to whether there is
legal authority is part of the decision-making process
regarding the legality of a particular order that the chain of
command is being asked to carry out?
General Kehler. Sure.
Senator Murphy. Dr. Feaver, do you agree?
Dr. Feaver. Right. One of the things that the officers will
ask themselves is, under what authority are we conducting this
operation? That would require referring back to, what are the
authorities?
They could reach the judgment that it is the inherent
authorities in Article II of the Commander in Chief clause. So
you would require a legal judgment, and there are legal staffs
throughout the chain of command.
What would be the case, though, is it would not be the
President alone persuading a single military officer alone on
the other side of the telephone. There would be a large group
of advisers and legal advisers weighing in on this. And that is
an important part of the context that is sometimes lost in the
media coverage. There would be a lot of people under the
scenario that you described, not imminent, not waking the
President up, but we have time to decide this. Many, many
people would be weighing in, including many lawyers.
Senator Murphy. I think Mr. McKeon answered this to an
extent, but I will ask you, Dr. Feaver. Would the possession of
a nuclear weapon capable of reaching the United States
constitute an imminent attack, in your opinion? The simple
possession of a weapon, a nuclear weapon capable of hitting the
United States, does that constitute an imminent attack?
Dr. Feaver. I am not a lawyer, and so I could not judge
whether that would meet the legal test. I think it would, in
most people's minds, constitute a grave threat to U.S. national
security. Particularly if it was a North Korean nuclear warhead
atop a North Korean missile that was capable of reaching the
United States, I think most Americans would view that as a
grave threat to our national security. Whether that would meet
the legal test of imminence would require a legal judgment. I
will defer to counsel on my right.
Senator Murphy. Mr. McKeon?
Mr. McKeon. Senator, the mere possession of a nuclear
weapon I do not think would meet that test. I think there would
be time required for congressional authorization, if the
decision were taken that the mere possession of a nuclear
weapon by a state such as North Korea was unacceptable to U.S.
national security interests.
They have a nuclear weapon today. We know that much.
Senator Murphy. Thank you, Mr. Chairman.
The Chairman. Senator Rubio?
Senator Rubio. Thank you, Mr. Chairman.
Thank you all for being here. I want to say at the outset
this is an important conversation, but one we should tread
lightly on. Our allies who rely on U.S. defense assurances are
watching, and if we create doubt in their minds about the
capability or the willingness of the United States to live up
to those commitments in any way, and I am not claiming that is
what anyone is doing, I think it could have repercussions that
are significant, including encouraging some of them to perhaps
pursue their own deterrent capability. If they come to doubt
our political ability and/or willingness to live up to our
commitments, we are actually making the world more dangerous,
not less dangerous.
I also think our adversaries are watching, and I will get
to that part in a moment. But I think if anyone out there
thinks they can somehow get away with something because the
politics of the United States would prevent the Commander in
Chief from acting expeditiously, that could also encourage
miscalculation, particularly on behalf of people that are
isolated from the world, don't get a lot of information, and
have never had anyone tell them they are wrong or no. And I
have one person, in particular, in North Korea that concerns me
in that regard.
I don't think there is any debate about imminent attack or
under attack. I think we would all agree that the President of
the United States has to have the capability to quickly respond
if we are under attack and/or under potential imminent attack.
Obviously, there could be some debate about it.
I also think it is important for us, in the context of this
new posture review, to know that the traditional Cold War
threat of a massive exchange between the U.S. and the then-
Soviet Union is probably not likely in the short term. I think
the likelier threats remain the use of Russian tactical
battlefield weapons to escalate in order to de-escalate a
battlefield event, a terrorist organization that comes into
possession of a nuclear device or some other weapon of mass
destruction, and then a rogue regime that does not have any of
these safeguards that we have talked about. It is basically one
guy who has a bad night and gets up and decides he wants to do
something about it. So these are things that it is important to
understand.
I think this whole debate is about first use, and I want to
touch on a topic that was first innovated during the Cold War
in the context of an overwhelming conventional advantage the
Warsaw Pact had, but we also saw it operative in the first Gulf
War, and that is the notion of calculated ambiguity.
I believe it served us in both instances, particularly in
1991, when Saddam Hussein was perhaps tempted to use biological
and/or chemical weapons. One of the reasons why perhaps he did
not pursue it was that there was calculated ambiguity about
whether or not that would trigger a U.S. nuclear response. And
I think we could all foresee what that conflict would have
looked like had he deployed biological and/or chemical agents
that he had in his possession and could have potentially used.
Is calculated ambiguity still an important concept in the
21st century, the notion that adversaries should have doubt in
their mind about whether or not the United States retains the
right to strike first should they either use a weapon of mass
destruction and/or move in a dangerous direction? Is calculated
ambiguity still useful and still operative in this set of
threats that we now face?
General Kehler. Senator, I believe that it enhances our
deterrence to have some doubt in the mind of an adversary about
under what conditions we would use a nuclear weapon.
Dr. Feaver. Senator, I agree. And I would go further and
say that President Obama, who was no fan of nuclear weapons and
who moved us back on the nuclear threat index in his 2010
Nuclear Posture Review, nevertheless left in place calculated
ambiguity in precisely these scenarios. And his rewriting of it
was taken to mean we would not threaten countries who were
attacking us with nonnuclear weapons. But a close reading of
what he decided left in place enough ambiguity to achieve
precisely the deterrent effect you described. And that was from
a President who was openly hostile to nuclear weapons.
Mr. McKeon. Yes, is the answer to your question.
Senator Rubio. The last point in the 40 seconds I have left
that I just wanted to touch on is this whole notion of, if it
is legal, you have a right. And I think we all understand what
that means. If military officials are ordered to go into a
village full of civilians and kill everybody, that clearly
violates the law that governs armed conflict.
I think there is also some danger in that regard here, and
we have to be careful in how we talk about that as well. We
cannot have a bunch of bunker lawyers that basically--or
activists up and down the chain who decide that they are going
to disobey any order that they disagree with. I mean, we can
foresee where something like that can spin out of control.
And ultimately, in this Republic, we have elections. And
one of the things that voters think about when they elect
someone to the Office of President of the United States is
whether or not they want to entrust them with this capability.
So it is good that people are aware of this issue, but I think
we need to be very careful when we talk about that component of
it.
Thank you, Mr. Chairman.
The Chairman. I agree. I just want to say, I don't think
you were here for my opening comments, I cannot agree more that
both for our adversaries and those who are our friends, that we
need to be careful in how we discuss this. We do not want any
of them to fear that somehow the ability to make decisions that
benefit our country and them, or disbenefit them if they are
acting against us, is being taken away. I couldn't agree more.
Senator Markey?
Senator Markey. Thank you, Mr. Chairman, and thank you for
having this very important hearing. I requested this several
weeks ago, and I just think it is so important that you have
such an important discussion, because few questions are as
important to U.S. national security as the question of
presidential authority to use nuclear weapons not only to deter
or defend against a nuclear attack but also to start a nuclear
war.
Nuclear weapons are for deterrence, not warfighting.
Launching nuclear weapons first would be an unprecedented act
of aggression and war. Whether limited or massive, any first-
use nuclear strike would devolve into retaliatory strikes and
war, causing unimaginable deaths, suffering, and destruction.
Absent a nuclear attack upon the United States or our
allies, no one human being should have the power to
unilaterally unleash the most destructive forces ever devised
by humankind. Yet, under existing laws, the President of the
United States can start a nuclear war without provocation,
without consultation, and without warning. It boggles the
rational mind.
I fear that in the age of Trump, the cooler heads and
strategic doctrine that we once relied upon as our last best
hope against the unthinkable seem less reassuring than ever.
In other areas of government, our Constitution system of
checks and balances ensures that the President does not have
sole power to make extreme decisions without some level of
national consensus. But on the President's sole authority to
start a nuclear war, even in the absence of a nuclear attack
against our country, no one can tell the President no, not
Secretaries Mattis or Tillerson. Even General Kelly, the
President's chief of staff, cannot control the President's
Twitter tantrums.
As a result, many Americans share my fear that the
President's bombastic words could turn into nuclear reality.
The fact that any American President has the unilateral ability
to start a nuclear war is why I have introduced legislation
cosponsored by 13 of my Senate colleagues to restrict any
President's authority to launch a first-use nuclear strike
without congressional authorization.
The Founding Fathers believed that Congress has an integral
role in any decision to start a war. And today more than ever,
it is imperative that Congress reassert that constitutional
authority.
Mr. McKeon, is the President legally required to consult
with or receive approval from anyone else before ordering the
launch of a nuclear weapon?
Mr. McKeon. Senator Markey, in the context that you
described, in the absence of an attack or an imminent attack, I
think the Constitution requires him to come to Congress to get
that authority.
Senator Markey. Does the protocol for the President to
launch a nuclear weapon change if we are under nuclear attack
or deciding to launch a first-use strike? It is different when
we are not under attack?
Mr. McKeon. Those are two different questions.
Senator Markey. Two different questions.
Mr. McKeon. If we are under attack, the President would
have that authority under Article II to defend the country, and
there is no distinction between his authority to use
conventional or nuclear weapons in response to such an attack.
Senator Markey. Is there a formal process by which anyone
in the chain of command, from the Secretary of Defense down to
the submariner or airman actually initiating the launch
sequence, may object to or legally refuse to carry out a
presidential order or launch a nuclear weapon?
Mr. McKeon. Well, as General Kehler has described, the
officers in the chain of command, the senior officers and the
Secretary, could raise objections, if they believe the order is
illegal.
I think the system is designed to protect the first or
second lieutenant, 23-year-old Air Force officer sitting in the
launch control center from having to make that grave decision.
It is really the four-stars and the Secretary who need to bear
that burden.
Senator Markey. Because disobeying such an order would be
considered a violation of Federal law under the United States
Uniform Code of Military Justice.
So in your testimony, Mr. McKeon, you say that, in August,
the National Security Advisor, Mr. McMaster, suggested the
possibility of a preventive war, which would require
congressional authorization.
In other words, if there had been a decision that was being
made by the President to use nuclear weapons, maybe small
tactical nuclear weapons to hit the nuclear weapons system in
known locations in North Korea as part of a preventative
nuclear war, it is your opinion that the President would have
to come to the United States Congress in order to receive
congressional approval. Is that correct?
Mr. McKeon. Yes, correct.
Senator Markey. So when General McMaster talks in those
terms, ``preventative war,'' and that is I think what most
people are most concerned about, this question of the President
actually using them as part of that kind of scenario, there is,
in your opinion, a constitutional responsibility for Members of
Congress to have to have voted on that before such a nuclear
war is commenced by the United States.
Mr. McKeon. Correct. And in my view, the President would
lack the authority. We had hearings not on this committee but
in the Judiciary Committee before the Gulf War in 1991 when I
was working for Senator Biden, then the chairman of that
committee. One of the witnesses, Harold Koh, who was later the
legal adviser in the State Department, said something that
stuck with me ever since, which is: Silence has a sound. If the
sound from Congress is silence, then the answer is no.
Senator Markey. Well, the sound of silence has finally
ended since 1976 to today on this issue. And I think, Mr.
Chairman, that you deserve much praise for having this very
important discussion. Thank you.
The Chairman. Thank you so much for your interest in the
topic and for pursuing this for so many years.
Senator Kaine?
Senator Kaine. Thank you, Mr. Chair. I also want to thank
you for having this hearing.
I have a strong belief that under administrations of both
parties, and under Congresses of both parties' leadership,
there has been a significant kind of creeping abdication of
power in the war, peace, and diplomacy space from Congress to
the President. There are Article II powers that are very
important with respect to being the Commander in Chief, and
also with respect to the conducting of diplomacy. But there is
also very strong congressional prerogatives in the power to
declare war, but also in the powers to oversee treaties and
other diplomatic matters.
And in recent years, I think this committee has started to
pull some of that power back to this end of Pennsylvania Avenue
in important ways. That is what the Iran Review Act did.
President Obama at that time was asserting an ability to do
this deal with Iran on the nuclear program without seeking a
vote of Congress, and we felt that no congressional imprimatur
was very unwise, and we pulled that back.
We have done that with respect to Russian sanctions, and
the current administration tried to pull back a little bit of
the oversight responsibility.
I have been engaged in an effort with colleagues, and the
chair has recently held a very important hearing on the
question on the 9/11 authorization, whether it still applies to
military operations against other nonstate terrorist
organizations and Al Qaeda.
And I view this hearing as much the same way, trying to
make sure we all share an understanding of what current
protocols are, but then ask ourselves whether Congress is
taking the steps we need to, to make sure that we are not
abdicating the article and responsibilities that we were
granted by Madison and the other Founders in 1787.
General Kehler, I was really interested in your testimony
about, just from a military standpoint, as somebody who was the
head of STRATCOM, as a leader, your thought about an order, if
a President gives an order and you would grapple with whether
or not you viewed it to be lawful.
The question of legality and lawfulness starts with the
Constitution. You and we take oaths to the Constitution, not to
a flag, not to a President, not to a party. We take an oath to
the Constitution. So clearly, if you thought an order violated
the Constitution, I assume that was incorporated in your
testimony.
But I wonder about your thought about internal protocols.
If it is more than just the Constitution, but you were to feel
that an order to use a nuclear weapon, say, violated internal
protocols that had been agreed upon in the military either with
respect to proportionality or some procedural protocol, is that
the kind of, just using it as a hypothetical, would that be the
kind of thing that might make you decide, ``No, I cannot
execute on that order?''
And then I am interested in understanding whether there is
a widely shared view of what this line between a lawful order
and an unlawful order would be.
General Kehler. Senator, this issue about legality of
orders exists at every level of command no matter whether the
order is to use nuclear weapons or whether to use some other
kind of weapon, perform some other kind of operation.
The principle remains the same. In order for our military
to follow the orders of the civilian leaders, then those orders
have to be two things. There are a couple tests. One test is
that it has to come from someone who has command authority.
Second, it has to meet the legal tests of the law of armed
conflict.
So issues about the extent of presidential authority, et
cetera, et cetera, are really constitutional issues for all of
you to hammer out and then provide to the military. That is the
way I think that works.
And then second, though, when these issues are in military
decision-making, I always had a legal adviser by my side. I
think you would find that commanders across-the-board these
days have legal advisers by their sides. The Secretary of
Defense and people who would be part of a conference having a
conversation about nuclear decisions, legal advisers would be
part of that conversation. And certainly, my experience with
this has been that legal advisers are not reluctant to raise
their hand and say, before we go further, here are the things
that you need to consider about legality.
I think Brian's points about at what point do we need
Congress to weigh in, et cetera, et cetera, while they might
not be at the fingertips of every military commander, they are
certainly discussed in the military legal profession.
So I was never concerned that I would not have the
appropriate legal adviser at hand and that legal concerns would
not be part of that conversation.
Senator Kaine. Dr. Feaver, I am about out of time, but if
you would like to answer, that would help me.
Dr. Feaver. So the military has an obligation to follow
legal orders, and there is a presumption that the orders that
come through the chain of command and from competent authority
are legal. But those orders are simultaneously vetted by the
legal advisers, as General Kehler said.
But as Senator Rubio pointed out, that does not mean that
every order that comes down is an opportunity to discuss and
debate between the chains of command. There is a presumption
that the orders are legal.
And when there is an extraordinary order, like an order to
launch a nuclear weapon, that would require a lot of attention
and would galvanize attention.
The second point I would make is you may, Chairman, want to
have lawyers back to talk about the legal authorities that are
extant now regarding conflict on the Korean Peninsula. We are
still under armed hostilities, just in an armistice, from the
first Korean War, and there have been multiple U.N. Security
Council resolutions, all of which provide some legal basis for
U.S. action. And I am not a lawyer to adjudicate those, but I
am sure that the DOD lawyers are looking at those issues.
Senator Kaine. Thank you, Mr. Chairman.
The Chairman. Thank you.
General Kehler. Sir, may I add one more thing? I know the
Senator is out of time.
The Chairman. Yes.
General Kehler. If I was not getting legal input, I was
asking for it. And my obligation, my responsibility, as the
commander of Strategic Command, was to clear up any of those
concerns on behalf of the operating forces. They are not in a
position really to make a legal determination with an order
that is given to them.
So, for example, I spent a lot of time in a missile launch
control center over my early parts of my career. I had no way
to know whether the target that I was being told to strike was
a legal target or not a legal target. I was relying on people
above me in the chain of command to carry that out. And my view
as the commander of Strategic Command was that was my
responsibility to do.
The Chairman. If I could go back, Dr. Feaver, what was your
last admonition to me?
Dr. Feaver. It was not an admonition but a suggestion, sir.
The Chairman. I took it as an admonition. [Laughter.]
Dr. Feaver. There have been many questions about what would
be the legal authority for U.S. military action on North Korea,
particularly with regard to nuclear weapons. While it would
certainly be politically advisable that the President go to
Congress to get new authorization for any new hostilities, it
is at least possible, and I am not a lawyer, so I am suggesting
that lawyers be consulted on what is the legal basis that is
already existing because of prior U.N. Security Council
resolutions that authorized the first Korean War, which is not
over, it is just in a ceasefire, and then subsequent U.N.
Security Council resolutions regarding North Korea's illegal
nuclear program.
The Chairman. Very good.
Yes, sir?
Mr. McKeon. Can I just comment briefly on Senator Kaine's
issue? Four-star generals are not shrinking violets, and I can
recall a circumstance, I will not identify the commander, and
it was not a nuclear issue, where a combatant commander was
looking down the road and seeing a scenario where he saw he was
going to get some order, and he was wondering whether that
would be a legal order. And he started asking questions months
in advance of the Office of General Counsel in OSD.
So obviously, it is a human system, and the human system
can break down, but people don't get to be four-star generals
unless they are strong individuals.
The Chairman. Thank you.
Senator Risch?
Senator Risch. Thank you, Mr. Chairman.
First of all, I want to thank all three of you for your
thoughtful analysis of the issues here.
I do want to state for the record, however, that every
single word that has been uttered here this morning in this
hearing is going to be analyzed in Pyongyang. They are going to
look very carefully at how we, the American people, view this.
And for those who are doing the analysis, I want to
underscore that our discussion here today is not as practical
as it is academic. We all have strong ideas about the power of
the first branch, Congress, and the second branch, the
President and the military.
The Constitution was written in a day when things were much
different than they are today, moved much slower than they are
today. Every time that the President has used force, he has
been backed by the American people and by Congress.
So I want to make sure that Pyongyang understands that this
talk about lawyers and this talk about standards and
proportionality and all the other things that we all talk about
is not a discussion that is going to take place in the heat of
battle in today's world.
These decisions have to be made in moments. And it is not
going to be made by courts or by lawyers or by Congress. It is
going to be made by the Commander in Chief of the American
forces. And he is going to do that, as you pointed out, in all
likelihood, with the experts that he has surrounded himself
with. But nonetheless, he will make that decision.
And Pyongyang needs to understand that they are dealing
with a person who is Commander in Chief right now who is very
focused on defending this country, and he will do what is
necessary to defend this country.
So lest anyone be confused, as most people would be, and I
have sat through scores of hours of arguments about the power
of the Commander in Chief, the power of Congress, et cetera,
from a very practical standpoint, the President of the United
States is going to make this decision, and he is going to make
it quite quickly, if he has to. So I want everyone to
understand how this works.
And it isn't a gray situation. It isn't a situation where
lawyers are going to get involved, and they are going to argue
about proportionality and all these other standards we talk
about. Unfortunately, we live in a world that is full of
realistic decisions that have to be made, and they will be
made.
Thank you, Mr. Chairman.
The Chairman. I think that is the reason we are having the
hearing. Thank you. Thank you so much.
Senator Merkley?
Senator Risch. Mr. Chairman, I have a few minutes left. Let
me respond to that.
I agree with that, and I think we should have the hearing.
But the problem you have with that is there are legitimate
disputes over the power of the President and the power of
Congress when it comes to this sort of thing. I want everyone
to understand, particularly those in Pyongyang, that these are
pragmatic decisions that have to be made and will be made, and
they are not going to be clouded by arguments of an army of
lawyers on each side arguing what is proportional and what
isn't.
Now, you can argue whether that is right or wrong, but
those are the facts on the ground.
The Chairman. I think that is correct. And I don't think
there is any question. And one of the reasons we have passed
some of the pieces of legislation that we have through the
years, whether it is the Iran review act, or whether it is the
Russian sanctions bill we just passed, is that, through the
years, there is no question there has been a tremendous tilt to
the executive branch, and certainly still is, as it relates to
war, there is no question.
But that is the purpose of the hearing, and I think it has
been a good one to ferret out some of these issues and cause us
to think more fully about what happens during these periods of
time.
Senator Merkley?
Senator Merkley. Thank you, Mr. Chairman.
Dr. Feaver, I believe you said something to the effect
that, in the case where you have time to consider a response,
the cooperation of many strategic commanders is required to
execute an order. Is that more or less accurate?
Does that essentially sustain the vision that there has to
be a person between the President and the nuclear briefcase who
cooperates in order for that briefcase to be utilized?
Dr. Feaver. I can't speak in open session about the
particularities, but I will say that the system is not a button
that the President can accidentally lean against on the desk
and immediately cause missiles to fly, as some people in the
public, I think, fear it would be. It requires the President to
work with military aides who are attending him and who have
possession of the materials that he needs. And it requires
personnel at all levels of echelon command all the way down to
the missile silo to carry out an order.
The President by himself cannot press a button and cause
missiles to fly. He can only give an authenticated order, which
others would follow and then cause missiles to fly.
Senator Merkley. In the context, you put the condition
``when you have time to consider a response.'' So when you do
not have the time to consider a response, there has been a lot
of conversation here today about reacting on short order to an
assault, is it still the case that you have to have the
cooperation of strategic commanders to execute an order?
Dr. Feaver. Yes, but in those settings, that is where the
military is waking up the President, because they are the ones
who are monitoring the intelligence picture. They are the ones
who are getting the warning that a missile launched against the
United States is about to happen.
So they are already cooperating by waking up the President,
advising him or her of the situation, and presenting them the
range of options. So I would code that as cooperating with the
President in order to give the President the options of making
a decision.
Senator Merkley. Those are the types of scenarios that
really give people nightmares. There have been over a dozen
such scenarios of false alarms where there were folks on both
sides, the Russian side and the American side, that have been
extremely worried that a major attack was underway with minutes
to spare.
I would like to enter in the record an article that details
more than a dozen such events. There is the famous moonrise
incident in 1960. There was the training video error of 1979.
There is a case when Boris Yeltsin actually activated the
nuclear briefcase in response to a nuclear research missile
being launched by the Norwegians.
[The information referred to is located at the end of this
transcript.]
Senator Merkley. And it is those cases that give people
great worry.
And part of the point of a nuclear triad, and this has not
been mentioned today, so I wanted to make sure it is mentioned,
part of the point was to have forces that could survive an
initial attack, submarines and bombers that carry weapons, so
that you did not have to make a decision within a couple
minutes. You had assured retaliation with at least two legs of
the triad that were more survivable.
Can I just get a response as to whether that is a
reasonable analysis?
Dr. Feaver. I think that is, Senator. And that is precisely
why no previous strategic leader decided to put in place an
automated response. They always wanted a human in the loop.
And in the cases that you mentioned, and others, it was a
human assessment that concluded this was not real, we have time
to wait. And that is why I would support and advocate for
anything that can be done to extend that time, whether through
better missile defense, more hardened communications technology
so more people can be brought in, updating other aspects of the
command-and-control system, so that there is time for the human
element to make the assessments necessary to reach the right
decision.
We have had too many close calls over the course of the
Cold War, but they were avoided in the end by wise human
decision.
Senator Merkley. In some cases, yes--well, I won't go into
details.
So in the 2010 Nuclear Posture Review, is it not the
position of the United States that we essentially are saying we
would not use a nuclear first-strike against and a Non-
Proliferation Treaty participant who does not have nuclear
forces?
Dr. Feaver. I had written an op-ed in the New York Times
about this at the time. That is how it was covered in the
media, but when you read it closely, I believe it still leaves
wiggle room, in particular because it says those countries in
compliance with their Non-Proliferation Treaty obligations. And
it leaves opaque who determines whether they are in compliance.
I inferred from that opacity that the White House would
determine whether they were in compliance, which is a loophole
that gives the President the strategic ambiguity that he might
wish for deterrence purposes.
Senator Merkley. Part of the reason for the discussion over
no first use is because it creates more confidence among other
nations that are nuclear-armed not to perceive a false attack
by the United States, as occurred in the 1995 case in which
Yeltsin activated their nuclear briefcase.
Do you see any value, or do any of you three see any value,
in strengthening the perception that the U.S. by policy would
not utilize nuclear weapons in a first strike?
Dr. Feaver. I do see some value from such an assurance, but
I also see some costs. And I think that is why every previous
administration, including President Obama who might have been
expected to adopt a no-first-use policy, chose not to at the
end adopt a blanket no-first-use policy. I doubt that this
administration would either.
If President Obama could not be convinced that it was worth
the risks, I doubt that President Trump would be.
Senator Merkley. There is a longer conversation about the
pros and cons of that, but I am out of time.
Thank you, Mr. Chairman.
The Chairman. Thank you so much.
Senator Shaheen?
Senator Shaheen. Thank you, Mr. Chairman. Thank you for
holding the hearing.
And thank you, gentlemen, for being here today.
Dr. Feaver, in your written testimony, you said that even a
single nuclear detonation would be so consequential, it might
trigger an escalatory spiral that would lead to civilization-
threatening outcomes.
Can I just ask if everybody on the panel agrees with that?
General Kehler. I would agree with it in principle, I
think. One of the deterrence features, of course, that has been
with nuclear weapons since the beginning is the high risk that
any nuclear use will not be controlled or could not be
controlled, although we have in place----
Senator Shaheen. Absolutely, and that is what helps
contribute to the deterrence factor.
General Kehler. It does. But we have in place means to try
to control it, if deterrence ever fails.
Senator Shaheen. Mr. McKeon, do you agree with that?
Mr. McKeon. I agree with Peter's statement.
Senator Shaheen. I think it is that statement that is so
concerning and certainly gives me pause and others pause, and I
think is one of the reasons for the hearing. When we have an
administration where the National Security Advisor has
suggested that we can have a preventative war on the Korean
Peninsula, when the President has said that he has asked our
military leadership to come up with plans to address the North
Korean regime, it suggests that what we are talking about is a
nuclear war, a first strike. And, certainly, the potential for
that to escalate, as everyone has suggested, is very difficult
to even contemplate.
And I think one of the challenges is that we are dealing
with a President, as Senator Cardin has said, who has not
seemed to be willing to accept advice on an issue, many issues
affecting power. While I agree with Senator Risch's comment
that if the United States is threatened, we want the President
to act, I want the President to act in a way that acknowledges
input from a lot of experts and not to act based on a Twitter
post.
And the anxiety that that produces, I think, contributes to
the concern about whether we are in a situation where we need
to look at, in Congress, a first nuclear strike policy and
banning that.
So you talked about the importance of calculated ambiguity,
Senator Rubio raised that, and the importance of that in
enhancing deterrence and making war less likely. Can you
imagine a policy that would both limit the President's
authority to use nuclear weapons and, at the same time, not
weaken the deterrence value of our nuclear arsenal?
Mr. McKeon. In thinking about this hearing, Senator
Shaheen, I have struggled to come up with constructs that make
sense, and it is hard to develop a principled way to constrain
the Commander in Chief's power within the executive branch.
As I said earlier, I think hard cases make bad law, and I
think if we were to change the decision-making process in some
way because of a distrust of this President, I think that would
be an unfortunate precedent for future Presidents. And I say
that as somebody who worked in this chamber for 20 years and
feels strongly about congressional powers in this sphere.
Senator Shaheen. Dr. Feaver?
Dr. Feaver. I think that there are proposals that are
floating out there that are worth looking at. There is a group
of academics like myself who study this issue, and we have been
kicking around various proposals that would delimit the
scenarios, so it would set aside the reprisal, the launch-
under-attack scenarios. And then just where there is plenty of
time, then specifying various protocols for authenticating an
order, for validating that the order is legal and things like
that.
Each of these proposals raises important questions about
Article II, and so they would have to be closely vetted. But I
think there are proposals like that that could be examined, and
it might improve.
However, there are some things that unambiguously would
help, and that is modernizing the technology in the command-
and-control system, which is overdue in some areas for upgrade.
These are very expensive. But precisely for the reason you
said, Senator, that an accident or unauthorized use would be so
catastrophic, it is an investment worth making.
Senator Shaheen. General Kehler?
General Kehler. Senator, we have talked about a lot of
potential scenarios this morning. My view on this is it is not
possible to envision all of the scenarios in advance. And when
we try to come up with ways to place limits on various
scenarios, my concern would be that we are creating some
detriment to the overall deterrent.
As unfortunate as it is, the big paradox of the nuclear age
is still here. I said that in my written testimony. In order to
prevent their use, which is the objective here, we have to be
prepared to use them.
And for us to presuppose all of the scenarios under which
we would want to somehow limit the power of the Commander in
Chief, I would just urge you to be very cautious here for all
the reasons that were raised today.
It has implications for the deterrent. It has implications
for extended deterrence. And it has some implications, if these
just remain unresolved issues, it has implications for our own
military men and women, and the confidence and trust that they
place in the chain of command.
So certainly, I believe we always get better by having
these conversations and debating and doing all the things that
we have done throughout the Cold War and beyond. I would just
urge you to be very cautious about suggesting changes to this
particular system.
Again, my perspective from my view was that the process
accounts for the kind of scenarios that we have been talking
about today. It certainly accounts for tactical warning that an
attack is underway, and we have preplanned options, and the
vetting has been done. It accounts for the potential for using
before an adversary weapon has been used.
Senator Shaheen. And I appreciate that, and certainly hear
the caution that each of you are giving us. But doesn't it also
suggest that it is important for the Commander in Chief to also
be cautious in how he talks about this issue, so that there is
not a miscalculation on the part of our aggressors who would do
us harm about what the real intent here is?
Mr. McKeon. I fully agree with you on that, Senator. The
statements the President makes through his Twitter account no
doubt cause concern and confusion on the other side of the
Pacific.
They don't have a constellation of satellites to see where
we are moving our forces. When he says an armada is coming,
that obviously has to give them some pause.
And people may say, ``What he says on his Twitter account
does not matter. We have policies. We have leadership of the
national command authority. The Secretary and the chairman,
they will take care of it.'' That does not compute in Kim Jong
Un's mind, that what the President says does not matter.
So I would be very worried about a miscalculation based on
continuing use of his Twitter account with regard to North
Korea, as I understand you are.
Senator Shaheen. Thank you.
Thank you, Mr. Chairman.
The Chairman. Thank you.
So, as I understand it--first of all, this has been, from
my perspective, a great hearing, very balanced, I think,
obviously, informative after 41 years of not having a hearing
on this topic. And I appreciate all those, including CRS, that
somewhat encouraged us to do so, if, in fact, you feel like you
did.
I think Mr. McKeon and General Kehler, basically, you are
saying you don't see any legislative changes that ought to be
made at this time. I think that is where you both are.
And, Dr. Feaver, I think what you were saying was really
not legislative changes as it relates to the power that the
Commander in Chief has. You are talking about other types of
more pragmatic changes as it relates to just the decision tree,
is that correct, after the command has been given?
Dr. Feaver. I would be very wary of legislative fixes,
because there are second- and third-order effects that are hard
to anticipate. And the history of the nuclear command-and-
control system is discovering that changes that have been made
and well-intentioned on one level producing an unexpected
result in another aspect.
So I would be wary of legislative fixes, but that does not
mean I would not review them. I think there are good proposals
out there. And part of the value is reassuring the American
public that they have a nuclear arsenal that is well-maintained
and well-guarded against unauthorized use.
I think the Senators are channeling some concerns that the
public has about this. And reviewing and then deciding not to
make a change, a legislative fix, would go some distance to
reassuring the public.
The Chairman. There is another component.
I will let you go ahead.
Mr. McKeon. Just to comment on what you said, Mr. Chairman,
I am wary of the legislative change on the decision-making
process, but the larger conversation we have had in this
hearing about the war power really falls on you and your
colleagues here in this body to continue to step forward and
make the case for the constitutional imperative.
In both the Gulf War in 1990-1991 and even the Iraq War in
2002, the executive branch was rather grudging in agreeing to,
acceding to a congressional vote and authorization. George W.
Bush either before or right after said something disparaging
about: I don't need some old goat in Congress to go to war
against Iraq.
So the institutional instinct in the executive branch will
always be, ``We can do this under Article II.'' And you will
need, as a political body, to continue to assert your rights to
make the case that we have discussed.
The Chairman. Thank you.
General Kehler. Sir, I agree with the points that have been
made. I would not recommend any legislative changes at this
point as well, but I would recommend a couple of things that I
know are being openly talked about by my colleagues who are
still wearing uniforms.
And one of those is we can always do a better job, I think,
in training our people who are involved in these processes in
terms of where the safeguards are. And the point I was trying
to make this morning about raising the legality issue is to
remind everybody that the military does not blindly follow
orders, and that is true with nuclear orders as well. I think
that should be a reassuring piece for the American public, and
it ought to be reassuring to our allies and our adversaries as
well.
The final thing that I would do is, it is time to invest, I
know this committee does not have jurisdiction, but it is time
to invest in the nuclear command-and-control and communications
system. It has suffered from a lack of investment for too long,
and I think it is very important that Congress be on board to
modernize that system as a high priority, as well as the
forces.
The Chairman. If I could, that coincides with what I wanted
to close with.
When we did the New START Treaty, I was part of a group on
our side of the aisle that approved the treaty. And I am glad
that I did, by the way. It was the right thing to do. As part
of that, we pushed the administration toward modernization.
Would all three of you agree that to have--our nuclear
arsenal is coming down. We want to make sure that these
weapons, in many cases created 50, 60 years ago, we want to
make sure that, if they are called upon to be used, they will
actually do the things they are intended to do.
Would all three of you agree that continued modernization
of our nuclear arsenal is something that protects our Nation
and ensures that, in the terrible event they are ever
necessary, we have the capability of delivering?
General Kehler. Yes, I do.
Dr. Feaver. Yes. People who are worried about a nuclear war
should be in favor of reasonable modernization measures that
will provide greater safety and security in our existing
system.
Mr. McKeon. Mr. Chairman, I would use the word
``recapitalization'' of both the warheads and the platforms of
the triad.
On the latter, all the platforms of the triad are aging out
simultaneously, and there are plans in place to replace them
over the next decade, and I know that will be an expensive
proposition that will be well-debated. But if the policy
decision is made to maintain a triad, then those investments in
those platforms will need to be made.
The Chairman. I would just say this for the American
people. Many of us have visited the facilities where these are
modernized and developed, and it is amazing that some of the
guidance systems that have been in existence are not much more
sophisticated than the tubes on a black and white television.
And we need to continue to invest and make sure we are using
the proper technology, so, in the unfortunate case of them
being utilized, they will actually be there for us. And other
countries are aware of our need to modernize also.
So with that----
Senator Markey. Mr. Chairman, may I just for a minute
interject?
The Chairman. You may.
Senator Markey. Thank you. Thank you, Mr. Chairman.
Again, I want to divide this question for the committee
between an imminent attack on the United States where the
President has the authority to protect our country, that is and
should be the case, from a President launching a preemptive
nuclear war against another country. And I think that is really
what is of the most concern to the American people, that no one
human being should ever have that power.
So from my perspective right now, given what General
McMaster said about the potential for a preventive war, that
means that there could be plans in place right now in the White
House given to the President to launch a preemptive war against
North Korea using American nuclear weapons without consulting
with, informing Congress whatsoever, by aggregating that power
to the executive branch in clear violation of the United States
Constitution--in clear violation of the United States
Constitution.
And so to the extent to which we are having this
discussion, and there is legislation that is pending before
Congress to ensure that Congress reasserts its authority to
ensure that a nuclear war has not begun in the name of the
United States by this President or any President, I think that
is a legitimate constitutional prerogative that we should be
reasserting.
I don't think that we should be trusting the generals to be
a check on the President. I don't think we should be trusting a
set of protocols to be protecting the American people from
having a nuclear war launched on their behalf. I don't think we
should be relying upon a group of individuals to be resisting
an illegal order when they have all pretty much been hired by
the President to have the jobs they have.
There is going to be a homogeneity inside of that decision-
making process, Mr. Chairman, that does not, in fact, offer
real resistance if the President absolutely insists on his way.
That is just the reality of it.
So I agree with Mr. McKeon that it should be the
congressional prerogative to declare a nuclear war. I think
that is something that we should just continue here to explore,
given the assertions made by the National Security Advisor.
And I would think that our other two witnesses would agree,
that if there is a preemptive nuclear war which is being
considered, that Congress does have the constitutional
responsibility, although it has been left, as Mr. McKeon said,
in ambiguity. An atmosphere of ambiguity in President after
President has been created around whether or not they are going
to defer to our authority.
So this is the hearing. This is the place. I am glad that
you are kicking it off. But I don't think that the assurances
that I have received today will be satisfying to the American
people. I think they can still realize that Donald Trump can
launch nuclear codes just as easily as he can use his Twitter
account without a check and balance the United States Congress
would be seeking and constitutionally responsible to exercise.
So I think this has been a historic hearing, and I hope
there is more to follow.
Thank you, sir.
The Chairman. Thank you.
I thank each of you for being here. Again, I cannot imagine
having a more balanced panel, a more sober panel. I think this
was edifying for members of the committee but also the American
public. We thank you for that. We thank you for your service to
our country and being here and your previous service in other
ways.
And I think you know there are typically follow-up
questions.
First of all, I will say to committee members, we will
close that process at the close of business on Thursday.
To the extent you could answer those fairly promptly, we
would appreciate it.
The Chairman. I think you have contributed greatly to the
national debate and dialogue today, and we thank you very much
for that.
The Chairman. And with that, the meeting is adjourned.
[Whereupon, at 12:09 p.m., the hearing was adjourned.]
----------
Additional Material Submitted for the Record
Responses to Additional Questions for the Record Submitted to
General C. Robert Kehler, USAF (Ret.) by Senator Cory A. Booker
Question 1. In a crisis the National Command Authority and the
President are going to be under enormous pressure. The President is
going to make a decision that depends on information from the military
that comes from sensors and satellites. There are documented cases and
I am sure many undocumented ones of incorrect information regarding the
launch of missiles reaching White House officials.
How reliable are the early warning systems and can they be hacked
or fooled into giving false information?
What is the process for interpreting the information and in what
time frame?
Answer. The Integrated Tactical Warning and Attack Assessment (ITW/
AA) system is composed of satellites and ground-based radars that
monitor and report on missile launches and other events around the
world every day. The system and its human operators are tested and
certified to extremely high standards and I was always highly confident
in the information being reported. Air-based threats such as bombers
and cruise missiles are detected and reported via a separate system.
Warning information is presented to operators and command centers
in real time as it is received. Senior commanders and civilian leaders
are quickly brought into the discussion if a threat is indicated and,
ultimately, a wide range of response options can be considered and
implemented by the President. Response times can range from
approximately 30-40 minutes for an ICBM from the Eurasian land mass, to
less than 15 minutes for an SLBM from the Atlantic or Pacific oceans.
Cruise missile threats pose additional problems.
Cases of ``incorrect'' information are extremely rare and always
result in thorough investigation and corrective action. In those rare
cases I'm familiar with, human operators recognized the problems and
intervened with appropriate corrections long before the point where
offensive actions were even considered. While the ITW/AA system is
designed to operate through various kinds of deliberate attacks,
adversaries are deploying new threats like cyber and anti-satellite
weapons that must be considered. Assessments of these new threats were
underway when I retired.
Question 2. During the hearing you emphasized that officers are
taught not to obey any illegal order, and that a military response must
be legal, necessary, and proportional.
Can you cite specific instances in the past 50 years where American
officers refused to carry out what they considered an unlawful
order, and what were the results?
Answer. I am not personally aware of any specific instances in the
past 50 years where American officers were intentionally issued
unlawful orders. I am aware of many cases where legal discussions
occurred, and issues were raised and resolved before orders were
issued. The military planning and execution system includes legal
review at all phases from planning through implementation. American
forces derive their authority to act from a variety of sources
including law (a collection of laws typically referred to as the Law of
Armed Conflict), policy, and regulation. Commanders and civilian
leaders take great care to ensure that orders are legal before they are
issued, and military members are trained and re-trained on their
responsibilities regarding those orders. It is essential that military
members at every level understand the review process and have trust and
confidence in the chain of command.
Question 3. In deciding whether to use nuclear weapons, either as
a first strike or in response to an imminent or ongoing attack, my
understanding is that the President will choose from a set of prepared
options and responses. In terms of whether or not the response would be
legal, you seemed to indicate that if the response option had been
prepared in advance, then it would also have undergone legal review.
If the president simply chooses one of these options, would there
be any legal review at all?
Answer. Every scenario is different and context matters. All
options either developed in advance of or during a crisis or conflict
undergo legal review. However, in my view, additional legal discussion
would be appropriate if the actual scenario is completely different
than those considered during the planning process.
__________
Responses to Additional Questions for the Record Submitted to
Dr. Peter Feaver by Senator Cory A. Booker
Question 1. Communications are key to the process if the United
States is responding to an imminent threat or attack. At several points
information or orders need to be communicated between the military
authorities or between the White House and military authorities. You
noted how important it is to keep the technology up to date.
How secure is the communications network to ensure that accurate
and reliable information is able to flow to and fromthe
decision-makers and those carrying out the orders?
Answer. Ensuring the reliability and security of the communications
network should be a top priority for both the executive-led Nuclear
Posture Review as well as any congressionally led oversight and review
of nuclear command and control. Of course, communications security and
reliability have already been high priorities for nuclear operations
for decades, but the advance of telecommunications technology and the
emergence of cyber threats from a range of adversaries collectively
justify a fresh look.
The communications network can be disaggregated into different
stages for assessment purposes. One stage involves communications
related to conveying indications and warnings of external threats as
inputs to the decision-making team. The security and reliability of
this part of the system can vary somewhat with geography and timing; if
key principals are on travel or otherwise hard to reach, and if an
attack is imminent, it may not be possible to reach all of the key
advisors in time.
Another stage involves conveying the President's orders to the
strategic headquarters responsible for nuclear operations. This stage
is probably the most secure and most reliable.
A third stage involves conveying those orders from strategic
headquarters to the various platforms that could carry out a nuclear
strike. The security and reliability here varies somewhat with the
platform involved. During the Cold War, one of the most demanding
scenarios involved assuring communications with the submarine force
even in the event that the United States suffered a devastating first
strike.
A careful review may identify upgrades to the system to improve the
security and reliability during any or all of these stages.
__________
Responses to Additional Questions for the Record Submitted
to Hon. Brian P. McKeon by Senator John Barrasso
Question 1. It has now become clear that the executive branch had
information pertaining to Russia's potential (now publicly-confirmed)
INF violation during Senate consideration of New START.
Did you participate in the decision-making process to not inform
the U.S. Senate of that potential violation during Senate
consideration of New START?
If so, please describe that decision-making process and the
rationale supporting that decision.
Answer. I respectfully disagree with the premise of your question.
I was not part of, and would have opposed, any effort to withhold
information from the Senate while it undertook its important
responsibility to consider the New START Treaty.
The administration's commitment to ensuring that the Senate had
relevant information about Russian activity was demonstrated in
September 2010. A day or two prior to the consideration of the Treaty
in the Committee on Foreign Relations, the intelligence community (IC)
briefed me and other senior White House officials on an issue of
concern related to Russia and arms control. We urged in the IC
representatives to promptly brief the committee staff, which they did.
As you may recall, Senator Risch made a general reference to the issue
during the committee markup of the Treaty on September 16, 2010.
Director of National Intelligence Clapper also addressed the issue
during an all-senators briefing on the National Intelligence Estimate
on the Treaty later that month.
The Obama administration formally declared the Russian Federation
in violation of the INF Treaty in 2014. It made that declaration public
in the annual report on ``Adherence to and Compliance with Arms
Control, Nonproliferation and Disarmament Agreements and Commitments,''
pursuant to section 403 of the Arms Control and Disarmament Act (22
U.S.C. 2593a), which was issued by the Department of State in July
2014. The report covered compliance in calendar year 2013 to such
agreements and commitments.
The detailed bases for that determination, including when the
Executive Branch first concluded that there may be a potential treaty
violation, is classified. I am no longer a government official, and do
not possess an active security clearance, so I am unable to provide
that information to you. I would refer you to the Office of the
Director of National Intelligence, and the Departments of State and
Defense, for further information.
Question 2. In your prepared remarks you said, ``the Obama
administration did not adopt a formal policy of `no first use' of
nuclear weapons.''
Why wasn't a no-first-use policy adopted?
Answer. Department of Defense lawyers advise me that I am unable to
answer this question, as it would reveal information that is considered
to be internal deliberative process.
For a general statement of the policy, I refer you to the
discussion of the negative security assurance set forth in the report
of the 2010 Nuclear Posture Review, particularly pages viii and ix.
__________
Responses to Additional Questions for the Record Submitted
to Hon. Brian P. McKeon by Senator Cory A. Booker
Question 1. The chain of command for information about an attack,
the consideration of options, and the orders pertaining to the
potential or actual use of American nuclear weapons, runs to and from
the President. However, beyond this there are disagreements in the open
literature as to how the chain of command functions and the role of key
actors, such as the Secretary of Defense.
Please outline for me the chain of command and advisory structure
for me, starting with the first detection of a launch, through
the U.S. launch of a weapon and tell me what DoD or other
procedural or decision memos or documents contain this
information.
Answer. The military chain of command is set forth in Title 10,
United States Code, section 162(b). It reads:
``(b) Chain of Command. Unless otherwise directed by the President,
the chain of command to a unified or specified combatant command runs--
``(1) from the President to the Secretary of Defense; and
``(2) from the Secretary of Defense to the commander of the
combatant command.''
By law, the Chairman of the Joint Chiefs of Staff is not in the
chain of command, and does not exercise military command over the Joint
Chiefs or any of the armed forces. (10 U.S.C. 153(c)). The Chairman is
the principal military adviser to the President, the National Security
Council, the Homeland Security Council and the Secretary of Defense (10
U.S.C. 151(b)(1)). In addition, the Joint Staff typically transmits
detailed military orders to the combatant commander, consistent with 10
U.S.C. 163(a)(1).
For nuclear employment, the cognizant combatant commander for
strategic weapons would be the Commander, U.S. Strategic Command. For
use of U.S. non-strategic nuclear weapons based in Europe, it would be
the Commander, U.S. European Command.
As I stated in my testimony, I would expect that in any scenario,
the President will consult with the National Security Council, and his
other senior civilian and military advisers, about nuclear employment.
The membership of the Council is set forth in statute (section
101(c)(1) of the National Security Act of 1947, 50 U.S.C. 3021(c)(1)).
At a minimum, I would expect the President to consult with his chief of
staff, the National Security Adviser, the Secretaries of State and
Defense, the Chairman of the Joint Chiefs of Staff, and the cognizant
combatant commander.
I am unable to provide further information about the decision-
making process and applicable directives or memoranda, as this
information is classified. I am no longer a government official and do
not possess an active security clearance. I would therefore refer you
to the Department of Defense for further information. Some unclassified
information about the Nuclear Command and Control System (NCCS) is
available in the ``Nuclear Matters Handbook 2016,'' published by the
Deputy Assistant Secretary of Defense for Nuclear Matters, and
available at this link (the information on the NCCS is contained in
chapter 6):
https://www.acq.osd.mil/ncbdp/nm/nmhb/index.htm
__________
Union of Concerned Scientists--Fact Sheet,
``Close Calls with Nuclear Weapons'' (2015)
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