Again, it seems clear that the President's decision to use nuclear weapons or his delegation of the authority to make such a decisionis not limited by the provisions of the act. Further, the fact that the statute uses the phrase, "such as he deems necessary," does not prohibit or limit such a delegation.

The Atomic Energy Act also contains a prohibition against the "export" of an atomic weapon. In the last analysis, and especially where the survival of the Nation may be at stake, it seems unrealistic to suggest that a President, acting as Commander in Chief in time of war, would necessarily consider himself bound by such limitations.

Finally, it should be pointed out that lawsuits have been brought attacking the constitutionality of the Atomic Energy Act, although they have protested against atomic testing rather than the use of nuclear weapons. None of these cases is particularly relevant to the problem under discussion, and they are significant for present purposes only in that they fail to suggest any limitations on the authority which may be delegated under the Atomic Energy Act.

While the authority of the President to order the use of nuclear weapons in the event of a war involving the NATO alliance is generally consistent with the principles set out above, command and control of U.S. nuclear forces and weapons assigned to NATO in time of war are subject to other considerations which may complicate the determination of U.S. policy.

First, the United States has entered into an agreement with other members of the NATO Defense Planning Committee to follow certain consultation procedures-time and circumstance permitting-before ordering the use of nuclear weapons earmarked for NATO theater use.12 Additionally, a substantial number of U.S. warheads are deployed in Europe for use by allied delivery vehicles under formal "programs of cooperation and stockpile agreements." 13

While a factor the President would undoubtedly consider, the agreement to consult hardly constitutes a constraint on his authority; more accurately, the obligation would serve to influence the President's policy decision. There is little reason to doubt that the President would consult with the heads of government of the NATO allies if such consultations were not considered prejudicial to the national interest, including the protection of America and allied forces. Nevertheless, considering the nature of modern Soviet nuclear delivery vehicles, there might be a very limited time for such a decision. It is this reality which must have led to the inclusion of the "time permitting" condition in the NATO consultation guidelines.

But time limitation is not the only exception to the obligation of the allied nuclear powers to consult. These heads of government are not so obliged if, upon their consideration of the attendant circumstances, it is deemed necessary to order the use of nuclear weapons without such consultation. The United States and each other NATO nation with an independent nuclear capability retains the option to forgo consultations, if, in the sovereign judgment of the concerned government, circumstances-for example, the necessity for surprise

12 NATO Facts and Figures, Brussels, NATO Information Service, 1971, p. 91.

*

13 According to a recent report by the Secretary of Defense, "*** on Aug. 5, 1974, the United States had about 7,000 nuclear warheads deployed in Europe A substantial proportion (of these warheads) are deployed for use by allied delivery vehicles under programs of cooperation (POC's) and stockpile agreements." James R. Schlesinger, "The Theater Nuclear Force Posture in Europe," p. 6.

do not permit such consultation. The existence and importance of both exceptions are well known and understood by NATO member nations. The simple fact is that NATO has remained an international and not a supranational organization. European NATO members remain a collection of middle-sized and small sovereign national states whose disparate interests make it difficult in many instances to gain the consensus required for action. Achieving a consensus on the use of nuclear weapons could be extremely difficult. However in the last analysis, as Secretary of Defense Schlesinger has stated, "the nuclear power or powers have the responsibility for making the decision on whether or not nuclear weapons will be used." 14

Presidential authority to release U.S. nuclear warheads to NATO allies for their use must be considered in a slightly different context These warheads are closely held by U.S. military custodial units, and, according to Secretary of Defense Schlesinger, will remain in U.S. custody until released by the President in time of war.

The President's authority to transfer nuclear warheads to the country for which they are earmarked might appear to be limited by a provision of the Atomic Energy Act of 1954. That act provides, in part:

It shall be unlawful, except as provided in section 91 of this act, for any person to transfer or receive in interstate or foreign commerce, manufacture, produce, transfer, acquire, possess, import, or export any atomic weapon

**

However, another provision of the same act provides that:

Any provision of this chapter or any action of the [Atomic Energy] Commission to the extent and during the time that it conflicts with the provisions of any international arrangement made after August 30, 1954, shall be deemed to be of no force or effect.15

Since transfer of these earmarked weapons would presumably occur pursuant to an "international arrangement made after August 30, 1954," the ban prohibiting the export of nuclear weapons would not appear to be controlling. Further, as has been previously noted, any possible limitation of the President's power as Commander in Chief expressed or implied in this provision would undoubtedly be overridden.

NATO planning does contemplate a delegation of the President's authority to order the use of theater nuclear weapons to the Supreme Allied Commander Europe (SACEUR) under certain wartime conditions. SACEUR is, in theory at least, responsible to the collective governments represented in the NATO Defense Planning Committee. It is significant, however, that SACEUR also serves as the U.S. Com

14 Nuclear Weapons and Foreign Policy, hearings before the Subcommittee on U.S. Security Agreements and Commitments Abroad and the Subcommittee on Arms Control, International Law and Organization of the Senate Committee on Foreign Relations, 93d Cong., 2d sess., p. 157. Secretary Schlesinger's statement regarding consultation is reprinted in appendix 1. Also of significance is a 1973 staff report prepared for another subcommittee of the Senate Committee on Foreign Relations, excerpted in appendix 2.

15 An exhaustive review of the act's legislative history throws no light on the question of how Congress intended that the two provisions would interact, or how the predecessor sections in the 1946 statute would interact. For a brief discussion, see p. 9357 of the Congressional Record for July 18, 1946; also S. Rept. 1699, 83d Cong., pp. 19 and 21; H. Rept. 2181, 83d Cong., pp. 19 and 21. The most detailed reference to the problem is in the Senate report on the 1946 act:"The committee recognizes that the ultimate solution to the problems posed by the development of nuclear energy and atomic weapons lies in the adoption of effective and enforceable international safeguards. The bill therefore seeks to create a system of domestic control designed to protect the common defense and security, without constituting an obstacle to the attainment of satisfactory international controls." S. Rept. 1211, 79th Cong., p. 23. Finally, as a further illustration of this paper's principal thesis-namely, that control over nuclear weapons is exclusively in the President-reference may be had to the committee's statement that "In view of their enormous military significance, atomic weapons are subject, under this bill, to full control by the President as Commander in Chief. All determinations as to production rates, custody, and transfers are to be made by him." Ibid., p. 19.

mander in Chief, Europe, and, in the latter capacity, has always been in the U.S. chain of command. The question of whether SACEUR, as a NATO commander, could order the employment of U.S. theater nuclear forces in a manner not consistent with the President's desires is most sensitive, but it seems clear that the President's orders would always control.

There have been frequent assurances from officials of the executive branch that the ultimate decision on the use of U.S. nuclear weapons will always lie with the President. The basis documents, if any, which spell out the procedures through which the U.S. President will retain positive control, even after U.S. Forces are assigned to SACEUR, are highly classified and have not been examined. In any event, it would not appear to be constitutionally permissible for the President to transfer his responsibilities as Commander in Chief, particularly if the transferee were responsible, in part or in whole, to the governments of other sovereign states.

APPENDIX 1

16 CONSULTATION

The fact that nuclear weapons could be launched from or used on allied soil necessitates the closest type of dialogue and coordinated planning between the United States and the allies. We recognized early on that the need for close consultation within NATO would be essential to alliance solidarity and our collective security.

Accordingly, in 1962 the alliance established what has become known as the Athens Guidelines, which deal with the question of consultation in a variety of situations involving aggression against NATO. Subsequent elaborations of the Guidelines provided that special weight be accorded the views of those NATO countries on or from whose territory nuclear weapons would be employed, countries providing the nuclear warheads, or the countries providing or manning nuclear delivery systems. The necessity of avoiding inflexible or overly elaborate procedures which might inhibit action or endanger the credibility of the deterrent also was recognized.

In accord with these principles, procedures and channels were established through which national capitals could be consulted and would be able to transmit their views through the North Atlantic Council or the NATO Defense Planning Committee (DPC) to the nuclear powers, or directly capital to capital. Requests for use of nuclear weapons in defense of NATO by a member government or major NATO commander, or a proposal to use weapons by a nuclear power, would be communicated directly to NATO governments and to the Council/DPC. The focal point for consultation normally would be the Council/DPC, where interest likely would center on the political and military objectives and consequences of the proposed use and nonuse. The views of countries expressed there would be communicated to the nuclear power or powers concerned by the fastest means available.

16 Statement of Secretary of Defense James R. Schlesinger, Nuclear Weapons and Foreign Policy, hearings before the Subcommittee on Arms Control, International Law and Organization of the Committee on Foreign Relations, U.S. Senate, 93d Cong., 2d sess., Apr. 4, 1974, pp. 156-157.

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Two additional points should be made. First, it is well understood that the agreed consultation procedures would be exercised, time and circumstances permitting. Second, the nuclear power or powers have the responsibility for making the decision on whether or not nuclear weapons will be used. That decision in then transmitted to the major NATO commander(s) and to the NATO governments and their representatives at the NAC/DPC.

Naturally, the nuclear consultation process is woven into the ongoing process of general consultation in time of crisis. NATO countries would be consulting from the earliest stages of any crisis, hopefully before commencement of hostilities. In this manner, nuclear considerations would mesh with the structure of general consultation already in process.

I might add here that consultation with our allies about nuclear weapons and policy is of course not limited to periods of crisis. As I mentioned earlier, the Nuclear Planning Group has provided an excellent mechanism for conducting a continuing dialog on these matters. By facilitating such a dialog in peacetime, the NPG fulfills a key purpose of familiarizing NATO Ministers with the kinds of information and questions that would be relevant to consultation on the possible use of nuclear weapons.

APPENDIX 2

F. GUIDELINES FOR NATO CONSULTATION ON NUCLEAR WEAPONS

17

In 1969, NATO drew up agreed general guidelines for consultation procedures on the use of nuclear weapons. These guidelines proceeded from three decisions that had already been taken. The first decision was taken at the Athens meeting of the North Atlantic Council in 1962 and produced what were called the "Athens Guidelines." The second decision was taken at The Hague in April 1968 by members of NATO's Nuclear Planning Group. The third was taken in London in May 1969 at a ministerial meeting of the Nuclear Planning Group. In brief, NATO doctrine is that in the event of a Soviet attack with nuclear weapons in the NATO area, the alliance would respond with nuclear weapons on the scale appropriate to the circumstances. Consultation would [deleted]. In the event of a full scale Soviet attack with conventional forces, indicating the opening of general hostilities in any sector of the NATO area, the forces of the alliance would if necessary, respond with nuclear weapons on the scale appropriate to the circumstances. Again consultation would [deleted]. In the event of a Soviet attack which did not fulfill the conditions described in the first two cases, but which nevertheless threatened the integrity of the forces and the territory attacked and which could not be successfully held with the existing conventional forces, the decision to use nuclear weapons would be subject to prior consultation in the North Atlantic Council. In all cases, special weight would be given to the views of the NATO country most directly affected—that is, the country on, or from, whose territory nuclear weapons would be employed; the country or countries providing the nuclear warheads; and the country or countries providing or manning the contemplated means of delivery.

17 U.S. Security Issues in Europe: Burden Sharing and Offset, MBFR and Nuclear Weapons, a staff report prepared for the use of the Subcommittee on U.S. Security Agreements and Commitments Abroad of the Committee on Foreign Relations, U.S. Senate, committee print, 93d Cong., 1st sess., Dec. 2, 1973, pp. 19–20.

As far as consultation procedures are concerned, any request for the use of nuclear weapons in the defense of NATO either from a member government or from a major NATO commander, and any possibility for the use of nuclear weapons in defense of NATO by a nuclear power, would be communicated immediately to the NATO governments and to the Defense Planning Committee (composed of all NATO members except France). The normal forum for consultation would be the Defense Planning Committee where member governments would be able to express their views, in particular on the political and military objectives of the proposed use of nuclear weapons, the methods of use and the possible consequences either of use or nonuse. These views would then be communicated to the nuclear power concerned, and the decision of the nuclear power would be conveyed. to the allied governments, the North Atlantic Council and the major NATO commanders. U.S. officials estimate that this consultation procedure could be accomplished in [deleted].

SACEUR would thus not be permitted to use nuclear weapons. unless there were consultations with NATO member governments directly and with NATO itself through the Defense Planning Committee. But the converse does not apply, because no NATO body has the authority to order SACEUR to use nuclear weapons. The release of nuclear weapons can only be authorized by the President of the United States (or, for British weapons, the British Prime Minister). Before releasing or ordering the use of nuclear weapons in Europe, the President is bound to consult if time and circumstances permit. In a technical sense, the President cannot order SACEUR (who is simultaneously the allied commander responsible to NATO's Defense Planning Committee as well as the commander, U.S. Forces in Europe) to fire a nuclear weapon; he can only release the weapon to him (although he can unilaterally direct the same commander, in his national capacity as commander of U.S. forces in Europe, to employ nuclear weapons). SACEUR would then regard the President's decision to release a nuclear weapon to him as a valid reflection of NATO's collective interest and will, although the release is not a command so that SACEUR would still retain discretion as to whether or not to fire the weapon. The NATO guidelines do not explicitly cover [deleted]. Nor do they provide guidance for situations in which [deleted].

The agreed NATO guidelines state that in times of crisis the procedures for general consultation should be set in motion at the earliest possible stage in the crisis-[deleted]. We were told at SHAPE that in most NATO procedural exercises the decision to use nuclear weapons is usually reached [deleted].