Louis
René Beres is Emeritus Professor of Political Science
and International Law (Purdue University). He has written
twelve books and several hundred scholarly articles and
monographs. He also lectures widely on matters of terrorism,
strategy and international law. As an expert on nuclear
war and nuclear terrorism, he is closely involved with
Israeli security issues at the highest levels. He was
Chair of "Project Daniel," a group advising
Israel's Prime Minister on existential nuclear questions.
This article was first published in Jewish Business
News.
It
must not be forgotten that it is perhaps more dangerous
for a nation
to allow itself to be conquered intellectually than by
arms.
Guillaume Apollinaire, The New Spirit and the Poets
(1917)
Nuclear weapons
remain unique in the history of warfare and corresponding
international law. Even a single instance of nuclear war-fighting
could signify an irremediable failure. In essence, nuclear
weapons can succeed only though their non-use. The most
obvious example of any such success would be stable nuclear
deterrence amid nation-state strivings for “escalation
dominance.”
There are relevant
details, both military and legal. Prima facie,
not all nuclear wars would have the same origin. Should
deterrence fail, a core distinction would then concern probabilistic
differences between a deliberate or intentional nuclear
war and a nuclear war that would be unintentional or inadvertent?
This would represent a vital and never-to-be ignored distinction.
Should nuclear
deterrence fail, it could be on account of various antecedent
arms control failures or shortcomings. Here, the intersections
between strategy and law could be determinative. Accordingly,
durable foundations of nuclear war avoidance should always
include elements of treaty-based nuclear arms control.
Regarding strategic
foundations, there will be serious problems of science-based
calculation. Because there has never been an authentic nuclear
war (Hiroshima and Nagasaki don’t “count.”
However, the atomic attacks on Japan in August 1945 represented
nuclear weapons use in a conventional war) determining relevant
probabilities would become a severely problematic task.
In logic and mathematics, after all, true probabilities
must derive from the determinable frequency of pertinent
past events. When there are no such past events, nothing
can be determined with sufficiently predictive reliability.
Capable analysts
will still have to devise optimal strategies for calculating
and averting a nuclear war – any nuclear war. This
indispensable calculation will vary, among other things,
according to (1) presumed enemy intention; (2) presumed
plausibility of accident or hacking intrusion; and/or (3)
presumed plausibility of a decisional miscalculation. Conceptually,
when taken together as cumulative categories of a potential
nuclear war threat, the three component risks of unintentional
nuclear war would best be described as “inadvertent.”
Of necessity, any particular case of an accidental nuclear
war would be inadvertent. Not every case of inadvertent
nuclear war, however, would be the result of an accident.
All of these
listed examples represent potentially interrelated elements
of nuclear war avoidance. This many-sided problem should
never be approached by American national security policy-makers
or the president as a narrowly political or tactical issue.
Rather, informed by suitably in-depth historical understanding
and carefully refined analytic capacities, US military planners
should prepare themselves to deal with a large variety of
overlapping explanatory factors/norms, including jurisprudential
or legal ones. Regarding these pertinent considerations
of law, issues of personal criminal responsibility must
be ones of high importance. Significantly, criminal responsibility
of leaders under international law is not limited to direct
personal action or limited by official position. On this
peremptory principle of “command responsibility,”
or respondeat superior, see In re Yamashita, or
The High Command Case (The Trial of Wilhelm von Leeb). The
direct individual responsibility of leaders is also unambiguous
in view of the London Agreement, which denies defendants
the protection of the act of state defense.
There is more.
At times, the intersections under study could be determinably
synergistic. At such bewildering times, the “whole”
of any injurious effect would be greater than the sum of
its “parts. Going forward, focused attention on pertinent
synergies should remain a distinctly primary analytic objective.
In dealing with
certain still-growing nuclear war risks involving North
Korea, no single concept could be more urgently important
than synergy. Unless such interactions are reliably and
correctly evaluated, the American president could sometime
underestimate the total impact of any considered nuclear
engagement. Incontestably, the tangible flesh and blood
consequences of such underestimations would likely be very
high. To wit, they could defy analytic imaginations and
any post-war legal justifications.
Looking ahead,
in any complex strategic risk assessments regarding North
Korean military nuclear intentions or expanding Russian
nuclear threats over Vladimir Putin‘s genocidal aggression
against Ukraine, the concept of synergy should be assigned
an appropriate pride of place. The only conceivable argument
for an American president deliberately choosing to ignore
the effects of any pertinent synergy would be that the associated
US defense policy considerations appear “too complex”
for capable analysis. When genuinely fundamental US national
security issues are at stake, any such viscerally dismissive
argument would be ill-considered and unacceptable.
For this writer/scholar,
all such reasoning has long been familiar intellectual terrain.
I have been publishing about difficult and related strategic-legal
issues for more than fifty years. After four years of doctoral
study at Princeton in the late 1960s, historically a prominent
center of American nuclear strategic thought (recall especially
Albert Einstein and J. Robert Oppenheimer), I began to consider
adding a modest personal contribution to evolving nuclear
literatures. By the late 1970s, I was cautiously preparing
a new manuscript on US nuclear strategy (Earlier, by this
author, see: Louis René Beres, The Management
of World Power: A Theoretical Analysis (University
of Denver, 1973) and Transforming World Politics: The
National Roots of World Peace (University of Denver,
1975), and, by variously disciplined processes of correct
inference, on the corresponding risks of a nuclear war.
At that early
stage of the then-emerging discipline, I was especially
interested in US presidential authority to order the use
of American nuclear weapons. From day one, I learned that
allegedly reliable safeguards had been incorporated into
all operational nuclear command/control decisions, but also
that these same safeguards could not be applied at the presidential
level. To a young scholar searching optimistically for meaningful
nuclear war avoidance opportunities, this ironic disjunction
didn’t make any obvious sense. So, what next?
It was time
for gathering suitable clarifications. I reached out to
retired General Maxwell D. Taylor, a former Chairman of
the US Joint Chiefs of Staff. In reassuringly rapid response
to my query, General Taylor sent a comprehensive handwritten
reply. Dated 14 March 1976, the distinguished General’s
detailed letter concluded ominously: “As to those
dangers arising from an irrational American president, the
only protection is not to elect one.”
Until recently,
I had never given any extended thought to this authoritative
response. Today, following the dissembling presidency of
Donald J. Trump, General Taylor’s 1976 warning plainly
takes on more urgent meanings. Based on ascertainable facts
and logical derivations (technically called “entailments”
in formal philosophy of science terminology) rather than
wishful thinking, we should now reasonably assume that if
Donald J. Trump were to return to the White House and exhibit
accessible signs of emotional instability, irrationality
or presumptively delusional behaviour, he could still order
the use of American nuclear weapons. He could do this officially,
legally and without any compelling expectations of nuclear
chain-of-command “disobedience.” Here, meaningful
considerations of law would be more-or-less bifurcated between
domestic or municipal law and international law. Still,
international law is part of United States jurisprudence.
In the words of Mr. Justice Gray, delivering the judgment
of the US Supreme Court in Paquete Habana (1900): “International
law is part of our law, and must be ascertained and administered
by the courts of justice of appropriate jurisdiction….”
Still, there could remain certain authoritative considerations
of international law, specifically those having to do with
strategies of pre-emption or “anticipatory self-defense.
Still more worrisome,
President Trump could become emotionally unstable, irrational
or delusional, but not exhibit such grave liabilities conspicuously.
What then?
A corollary
question should also come to mind:
What
precise stance should be assumed by the National Command
Authority (Secretary of Defense, Chairman of the Joint Chiefs
of Staff, and several others) if it should ever decide to
oppose an “inappropriate” presidential order
to launch American nuclear weapons?
Could the National
Command Authority (NCA) “save the day,” informally,
by acting in an impromptu or creatively ad hoc
fashion? Or should indispensable preparatory steps already
have been taken, in advance, pre-emptively? That is, should
there already be in place certain credible and effective
statutory measures to (1) assess the ordering president’s
reason and judgment; and (2) countermand any inappropriate
or wrongful order?
Presumptively,
in US law, Article 1 (Congressional) war-declaring expectations
of the Constitution aside, any presidential order to use
nuclear weapons, whether issued by an apparently irrational
president or by an otherwise incapacitated one, would have
to be obeyed. To do otherwise, in such incomparably dire
circumstances, would presumptively be illegal. Here, therefore,
any chain-of-command disobedience would be impermissible
on its face.
There is more.
In principle, at least, US President Donald Trump could
order the first use of American nuclear weapons even if
this country were not under any specifically nuclear attack.
Some further strategic and legal distinctions would need
to be made between a nuclear “first use” and
a nuclear “first strike.” These would not be
minor distinctions. Also, under authoritative terms of international
law, there would be coinciding concerns about the egregious
crime of “aggression.”
While there
exists an elementary yet substantive difference between
these two options, it is an operational distinction that
candidate Donald Trump failed to understand during the 2016
presidential campaign debates. Significantly, as this former
and now re-aspiring president reads nothing about such matters—literally
nothing at all—there remains good reason for certain
additional US nuclear policy refinements.
What next? Where
exactly should the American polity and government go from
here on such overriding national security decision-making
issues? To begin, a coherent and comprehensive answer will
need to be prepared for the following basic question:
If
faced with any presidential order to use nuclear weapons,
and not offered sufficiently appropriate corroborative evidence
of any actually impending existential threat, would the
National Command Authority be: (1) be willing to disobey,
and (2) be capable of enforcing such needed expressions
of disobedience?
In any such
unprecedented crisis-decision circumstances, all authoritative
judgments could have to be made in a compressively time-urgent
matter of minutes, not hours or days. As far as any useful
policy guidance from the past might be concerned, there
could exist no scientifically valid way to assess the true
probabilities of possible outcomes. This is because all
scientific judgments of probability—whatever the salient
issue or subject—must be based upon recognizably significant
past events.
In matters of
nuclear war, there are no pertinent past events. This is
a markedly fortunate absence, of course, but still one that
would stand in the way of rendering reliable decision-making
predictions. The abundant irony here is both obvious and
dangerous.
Whatever the
determinable scientific obstacles, the optimal time to prepare
for any such incomparably vital US national security difficulties
is now. Once we were already in extremis atomicum,
it would be too late.
Regarding the
specific matter of North Korea (Iran is not yet nuclear),
the American president will need to avoid any seat-of-the-pants
analogies (whether openly expressed or “merely”
internalized) between commercial bargaining and military
brinksmanship. Faced with dramatic uncertainties about counterpart
Kim Jung Un’s own expected willingness to push the
escalatory envelope, the American president could sometime
(suddenly and unexpectedly) find himself faced with a fearfully
stark choice between outright capitulation and nuclear war.
Even for a genuinely gifted US president (hardly a present-day
consideration), any such choice could prove “paralyzing.”
To avoid being
placed in such a limited choice strategic environment, a
president should understand that simply having a larger
national nuclear force in these sorts of negotiations might
not bestow any critical bargaining or outcome advantages.
On the contrary, this seeming advantage could generate unwarranted
US presidential overconfidence and various resultant forms
of decisional miscalculation. In any such wholly unfamiliar,
many-sided and unprecedented matters, size could matter,
but perhaps counter-intuitively, inversely, or even in various
ways not yet fully understood.
More than likely,
prosaic analogies would be misconceived. Nuclear war avoidance
is not a matter resembling and commercial or investment
negotiation. While the search for some sort of “escalation
dominance” may be common to many sorts of deal-making,
the cumulative costs of any related nuclear security policy
losses could simply be incomparable or one-of-a-kind.
There is more.
In certain fragile matters of world politics, even an inadvertent
decisional outcome could sometime be nuclear war. Here,
whether occasioned by accident, hacking or “mere”
miscalculation, there could be no meaningful “winner.”
At a conceptual minimum, any US president ought to understand
this as elementary.
In the paroxysmal
aftermath of any unintended nuclear conflict, those authoritative
American decision-makers who had once accepted former President
Donald J. Trump’s oft-stated preference for “attitude”
over “preparation” in strategic negotiations
would likely reconsider their earlier reasoning. By then,
however, it would already be too late. As survivors of a
once-preventable nuclear conflagration, now-stunned officials
could only envy the dead. This is the case, moreover, whether
the nuclear conflict had been intentional or unintentional,
whether it was occasioned by base motives, miscalculation,
computer error, hacking intrusion, or by some weapon-system/infrastructure
accident.
Today, 78 years
after Hiroshima and Nagasaki, nuclear war remains an incurable
disease. To ensure credible deterrence, a US president would
no longer needs to respond to a nuclear attack immediately.
Because the triad of strategic forces includes cumulatively
invulnerable submarine forces, this country no longer needs
to rely upon am inherently destabilizing “launch on
warning” nuclear posture. This means, among other
things, that a president of the United States need no longer
require sole decisional authority over America’s nuclear
weapons.
At some point,
any continuing failure of United States law and practice
to acknowledge this sobering transformation could lead to
another historical use of nuclear weapons – by this
country, by its then-evident adversary or both. In any such
scenario, the atomic conflagration would dwarf the 1945
effects of Hiroshima and Nagasaki. It follows, above all
else, that nuclear war avoidance is mandated by human reason.
Physicist and
Manhattan Project director J. Robert Oppenheimer, the subject
of a new film released in July 2023, clung to the hope that
nuclear weapons could somehow become peace-maximizing rather
than destabilizing. Accordingly, in a lecture delivered
before the George Westinghouse Centennial Forum on May 16,
1946, he commented: “The development of nuclear weapons
can make, if wisely handled, the problem of preventing war
not more hopeless, but more hopeful than it would otherwise
have been….” Back in 1946, however, Oppenheimer
did not anticipate a broad variety of troublesome issues,
including the proliferation of nuclear weapons (“vertical”
and “horizontal”) to states and sub states,
risks of an unintentional nuclear war, the failure of law-based
nuclear arms control and the inextinguishable irrationality
of human decision-makers seeking “escalation dominance”
during precarious crises. Today, looking toward an uncertain
national and global future, the only rational course is
to collectively eschew nuclear weapons as a prospective
benefit, and to do whatever is necessary in both law and
strategy to build more durable foundations of nuclear war
avoidance.
For the most
part, this uniquely challenging task will be intellectual
rather than political. In essence, what we need today is
a form of “reverse” Manhattan Project, one dedicated
to untying us all from the potentially mad clockwork first
set in motion during the summer of 1945. This indispensable
goal can never be achieved in the context of long-standing
processes of belligerent nationalism and unpredictable escalations.
To the contrary it will require, at the outset, a planet-wide
collaboration between major world powers and also more suitably
law-based structures of supra-national coordination. The
odds of achieving tangible success in these efforts would
surely be unfavourable, but still less unfavourable than
continuing to accommodate nuclear war avoidance with traditional
geopolitics.