Law should forbid U.S. nuclear first strike

Few Americans are still alive who have a living memory of the Hiroshima and Nagasaki bombings.   Maybe that’s why so little attention is paid to the danger of nuclear war, unlike in the 1950s and 1960s.

The purpose of U.S. nuclear weapons is to deter an attack by a foreign country with nuclear weapons, although the U.S. government has never renounced the option of a nuclear first strike, such as in the event of a Red Army invasion of western Europe.

But now President Donald Trump talks about using nuclear weapons to enforce his ultimatums against North Korea.  A nuclear attack on North Korea would be a crime against humanity.  An attack, or the threat of attack, might tempt North Korea’s dictator, Kim Jong-un, to pre-emptively attack the United States or its allies, figuring that he has nothing to lose.

Senator Ed Markey, D-MA, and Rep. Ted Lieu, D-CA, introduced bills in September, 2016, forbidding a nuclear first strike without a declaration of war by Congress.   When they introduced those bills, it looked as if someone other that Donald Trump would be President in 2017, so they are more than merely anti-Trump.

Senator Bob Corker, R-TN, held hearings earlier this month on the possibility of a first nuclear strike by a U.S. President.   The best hope the witnesses could offer was that the military would not obey an illegal order.

A first strike would be a violation of international law, but the military chain of command might not regard international law as binding.   Legislation is needed to make a nuclear attack a legal crime as well as a moral crime.

Barack Obama and the imperial Presidency

President Barack Obama and Secretary of State John Kerry have said that the President has authority to order an attack on Syria on his own authority.  They say he is merely consulting Congress as a favor, and would still be free to act if Congress refused to pass his resolution.

Really?

Here are the words of the United States Constitution, which Obama and Kerry swore an oath to uphold.

Article One, Section 8.  The Congress shall have power … …

To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land or Water;

To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;

To make Rules for the Government and Regulation of the land and naval Forces;

To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrection and repel Invasion; … …

Article Two, Section 2.  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; … …

The Founders limited the power of the President to wage war because they didn’t want the new nation to be governed like a European monarchy, where the king could go to war for personal reasons unrelated to the welfare of the people.

Time passed, and over the years Presidents expanded their power and stretched their authority.   In response, Congress in 1973 passed the War Powers Resolution.   It began as follows.

The constitutional powers of the President as Commander-in-Chief to introduce United States Armed Forces into hostilities, or into situations where imminent involvement in hostilities is clearly indicated by the circumstances, are exercised only pursuant to

(1) a declaration of war,

(2) specific statutory authorization, or

(3) a national emergency created by attack upon the United States, its territories or possessions, or its armed forces.

The resolution went on to state that in cases of dire emergency, the President could initiate military action, provided that (1) he report to Congress the necessity and Constitutional authority for such action, (2) he cease action after 60 days unless given specific congressional authorization and (3) he cease action immediately if Congress so resolves.

When President George W. Bush asked Congress for authority to use military force against Al Qaeda and to force Saddam Hussein to comply with U.N. resolutions on weapons of mass destruction, I thought these were justified grants of authority for specific purposes.  But the two resolutions by Congress were used by Presidents Bush and Obama as open-ended grants of power to use whatever force they thought necessary against hostile governments and individuals.  President Obama’s proposed Syria resolution is subject to being interpreted in this open-ended way.

The House of Representatives refused to vote authority for the Libyan intervention, but Obama went ahead anyway.  I hope Congress asserts its authority in this case and that the President is prudent enough to heed its words.

The Constitutional power to declare war

The President does not have power under the Constitution to unilaterally authorize a military attack in a situation that does not involve stopping an actual or imminent threat to the nation.

Senator Barack Obama, on Dec. 20, 2007