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AUTHORITY TO ORDER THE USE OF NUCLEAR

WEAPONS

UNITED STATES*

SUMMARY

Under existing law, the President alone has the basic authority to order the use of nuclear weapons. This authority, inherent in his constitutional role as Commander in Chief, may be delegated to subordinate officers in the chain of command virtually without limitation. Whether the President has, in fact, delegated the authority to use nuclear weapons under certain circumstances has not been ascertained. Such delegations, if they exist, would be highly classified.

The President's authority to order the use of theater nuclear weapons in the event of a war involving NATO, while subject to certain procedural arrangements, is similarly unlimited. While the U.S. Government has agreed to consult with other NATO allies before using nuclear weapons in the NATO area, this obligation is limited to situations where time and circumstances permit. Further, while NATO operational plans contemplate the assignment of U.S. theater nuclear forces to the Supreme Allied Commander, Europe (SACEUR), in time of war, the President would retain his constitutional responsibility to control these forces and could order or forbid the use of U.S. nuclear weapons by U.S. forces even after assignment of these forces to SACEUR.

Formal programs of cooperation and stockpile agreements contemplate the transfer of U.S.-owned nuclear warheads from the custody of U.S. military units located in Europe to certain of the NATO allies for their use. Before such weapons can be lawfully transferred to the host nations, an order of release, based on Presidential authority, would be issued to U.S. custodial units.

This paper concerns the authority of the President and other Federal officials to order the use of nuclear weapons. Excluded from its scope is a discussion of the broader question of whether the President may initiate a war (i.e., order a first strike) except in the event an attack or invasion is imminent.1

One of the underlying factors generating interest in this matter is the concern which several Members of Congress have expressed relating to U.S. strategic policy which excludes a first strike, but which does not rule out the first use of nuclear weapons, if necessary, *Prepared by Andrew C. Mayer, Specialist in National Defense, Foreign Affairs Division, Oct. 16, 1975. 1 On the more controversial question of the President's authority to commit forces to combat without the consent of Congress, see a discussion of The War Power. Congressional Research Service. Constitution of the United States of America-Analysis and Interpretation. Washington, U.S. Government Printing Office, 1973. Senate Document No. 92-82. Pp. 323 et seq.

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after a war is constitutionally initiated. This concern centers around the fact that, under existing law, the President may, on his own authority, decide to initiate the use of nuclear weapons after a conventional war is commenced. Congress would not necessarily share in such a decision.

The other major circumstance which is of concern is the possibility that the President might delegate to a subordinate his authority to order the use of nuclear weapons. As will be shown, broad delegations of command authority by Presidents to military commanders in time of war have been the rule, not the exception, throughout our national history.

The awesome implications of nuclear warfare, perhaps unprecedented in the history of man, may indicate a need for the Congress to consider whether more legislative control of nuclear weapons in time of war is necessary. This paper does not offer solutions to any of the many questions which these concerns raise. It does attempt to trace the boundaries of authority within which the President may act under the Constitution and current law, and it provides a background which may be helpful in a consideration of this important subject.

The question of which officials have the authority to initiate the use of nuclear weapons is one which has periodically generated considerable interest and controversy. The most exhaustive public debate of the issue took place during the 1964 Presidential campaign when Senator Barry Goldwater suggested 3 that small tactical nuclear weapons should be considered conventional weapons, and that authority to use them should be given to local commanders. While the response on behalf of President Johnson was an overwhelming negative, the answer to this basic question was never really given, nor does it appear that an answer is possible now without reference to highly classified material.

President Johnson emphatically rejected Goldwater's proposal: Make no mistake. . . . There is no such thing as a conventional nuclear weapon. For nineteen peril-filled years no nation has loosed the atom against another. To do so now is a political decision of the highest order. It would lead us down a path of blows and counterblows whose outcome none may know. No president of the United States can divest himself of the responsibility for such a decision.*

In a similar vein, Secretary of Defense Robert S. McNamara stated that the decision to use any nuclear weapons carried such consequences “that the man to make that decision is and must continue to be the President of the United States." 5

On the other hand, although all administration spokesmen under lined as strongly as possible the fundamental political point that the President did not intend to divest himself of the responsibility for making the decision, on at least one occasion President Johnson

2 First-Strike-The first offensive move of a war. As applied to general nuclear war, it implies the ability to eliminate effective retaliation by the opposition.

First Use—The initial employment of specific military measures, such as nuclear weapons, during the conduct of a war. A belligerent could execute a second strike in response to aggression, yet be the first to employ nuclear weapons.

3 See The Nation, “Goldwater's Military Views,” August 10, 1964, p. 41; Life, “Our Defense,” Sept. 25, 1964, p. 10.

4 Folliard, Edward T. Johnson Assails Rival's A-Plan-Sees Peril in Shifting Control. Washington Post, Sept. 8, 1964: A1, A8. (Italic supplied.) Officially reported in Lyndon B. Johnson, Public Papers of The Presidents, 1963–64, vol. II, p. 1051.

5 McNamara Reopens Nuclear Issue. Washington Post, Sept. 19, 1964: A6.

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indicated that the means whereby his decision would be carried out would involve some judgment on the part of other officials:

Complex codes and electronic devices prevent unauthorized actions, and every further step along the way, from decision to destruction is governed by the two-man rule. Two or more men must independently decide the order has been given, and must independently take action.6

In this connection, it is pertinent to insert the following quotation, from a book dealing with the 1964 campaign, as evidence that the question had arisen even earlier:

As far back as October 7, 1958, General Earl E. Partridge, former commander of NORAD (North American Air Defense) had told the New York Times that his was the only command authorized to fire a nuclear weapon in combat without the specific approval of the President. As General Partridge outlined the situation, the enemy attack might be so swift that NORAD headquarters would not know of the decision to retaliate with nuclear weapons until well after the retaliation had been ordered. Thus, it might be a division commander with the rank of brigadier or major general who would give the order to fire the first nuclear weapon of World War III. Recalling the Partridge interview during the campaign, the New York Times wrote that although communications had improved since 1958 “there has been no indication that the specific delegation of authority to the NORAD commander has been withdrawn."7

While statements like the foregoing appear with a certain regularity, it has not been possible to examine the highly classified documents which contain the delegations on which they were based, and it is not possible to confirm whether current procedures include such delegations. Indeed, the official response of the Office of the Assistant Secretary of Defense (Atomic Energy) to our inquiry in this matter was that:

Only the President can authorize the use of our nuclear weapons, and there are positive controls to preclude the use of such weapons without Presidential authority. The specific details of our nuclear release procedures are highly classified. 8

History abounds with precedents supporting the power of the President to delegate his function as Commander in Chief to subordinates; indeed, broad delegation of command authority of the Active Forces to military officers has been the rule rather than the exception. Included in such delegations has been the authority to choose between alternate tactics, strategies, and choices of weapons." Of course, the basic responsibility for general conduct of the war resides in the President, the Commander in Chief, under any circumstances.

Because nuclear weapons can wreak unprecedented havoc, there has arisen a popular belief that the President's authority to delegate authority for their use is more limited than in the case of conventional weapons. While such a proposition has a certain appeal, we have been unable to find any constitutional or statutory basis supporting it.

The realities of command and control in the nuclear age would seem to increase the necessity for prior delegation of authority under certain carefully defined conditions. For example, in the event that the President were disabled in a surprise attack and his lawful successor were not immediately accessible, a contingency plan, containing a delegation of authority to order the use of nuclear weapons under certain conditions, would seem to be a logical and prudent precautionperhaps necessary to national survival.

6 Kiker, Douglas. Atom Issue: President's Declaration. New York Herald-Tribune, Sept. 17, 1964: 6. 7 Lokos, Lionel. Hysteria 1964. New Rochelle, N.Y., Arlington House, 1967. P. 47.

& Letter to the author from Lt. Comdr. L. P. Gebhardt, Office of the Assistant Secretary of Defense (Atomic Energy), dated Aug. 5, 1975.

• For a review of how several wartime Presidents have operated in this sphere, see E. Maz, ed., Ultimate Decision-The President as Commander in Chiel." New York, George Braziller, 1960.

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And in situations where U.S. forces deployed overseas face potentially hostile nuclear-equipped forces, a President might deem it prudent to make a conditional, prior delegation of authority to use nuclear weapons in the event of surprise attack and a breakdown in communications.

In light of the foregoing, it is possible only to set forth a few general principles, based on the provisions of the Constitution and the applicable statutes.

Fundamental to a discussion of this issue is the constitutional provision: "The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States * * * 10

In the absence of a specific congressional restriction, the vast authority of the President to conduct operations during a constitutionally initiated war is virtually unlimited. Thus, one noted constitutional historian has stated that of all his powers, the most basic, spectacular, and injurious to private rights” is that which the President holds as Commander in Chief.11

This power necessarily includes the power of delegation. Section 301 of title 3, United States Code, provides that,

The President of the United States is authorized to designate and empower the head of any departmen or agency in the executive branch, or any official thereof who is required to be appointed by and with the advice and consent of the Senate, to perform without approval, ratification, or other action by the President: (1) Any function which is vested in the President by law, or (2) any function which such officer is required or authorized by law to perform ***

But it would be wrong to conclude that the President's power of delegation is limited by the language of the statute just quoted. It provides, among other things, that: "Such designation and authorization shall be in writing, shall be published in the Federal Register ***.” In the present context, it seems particularly clear that the President's power to delegate cannot be made subject to a requirement of publication in the Federal Register. Although Executive orders which delegate authority generally cite 3 U.S.C. 301 as authority, in appropriate cases they also cite the authority of "President of the United States and Commander in Chief of the Armed Forces of the United States." It is generally conceded that these roles constitute a separate and distinct source of power, and that delegations made pursuant to the President's authority as Commander in Chief probably cannot constitutionally be made subject to limitations of the type spelled out in 3 U.S.C. 301.

However, there is another statute which must be considered in this connection. Section 91(b) of the Atomic Energy Act of 1954, as amended (42 U.S.C. 2121 (b)), provides that,

The President from time to time may direct the (Atomic Energy) Commission: (1) To deliver such quantities of special nuclear material or atomic weapons to the Department of Defense for such use as he deems necessary in the interest of national defense * * *

19 U.S. Constitution, art. II, sec. 2. 11 Clinton Rossiter, quoted in May, Ernest R., “The Ultimate Decision," p. 5.

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