Robert Kehler, the former head of U.S. Strategic Command, which oversees the country’s nuclear deterrent, said military leaders could refuse to carry out a presidential order for a nuclear first strike if they and their legal advisers conclude that the military action is unnecessary, excessive, or indiscriminate in targeting civilians—and that the request from the White House is therefore unlawful.
Yet this argument unraveled under questioning. When the Maryland Democrat Ben Cardin asked what these military leaders could do if the president overruled them, Kehler conceded, “Other than to state their view about the legality of the move, the president retains constitutional authority to order some military action. You would be in a very interesting constitutional situation. The military is obligated to follow legal orders, but is not obligated to follow illegal orders.” (McKeon pointed out that while the chain of command for a nuclear first strike might run from the president to the defense secretary to a combatant commander, the president could simply fire and replace the defense secretary or combatant commander if his order is disobeyed.)
“I would [say] ‘I have a question about this’ and I would [say] ‘I’m not ready to proceed,’” Kehler explained.
“And then what happens?” inquired the Wisconsin Republican Ron Johnson.
“Well, I don’t know exactly,” Kehler admitted, laughing nervously. “Fortunately we’ve never—these are all hypothetical scenarios.”
“But we’re holding a hearing on this, so ...” Johnson responded.
When the exchange finally ended, unresolved, Kehler, the man whose job it once was to contemplate these very quandaries, let out a sigh of relief.
The committee chairman, Tennessee Republican Bob Corker, had technically called the hearing. But it was the escalating tensions over North Korea’s development of nuclear weapons, and the concerns of Corker and many of his colleagues about Trump’s handling of the crisis, that had forced the issue in Congress after a four-decade hiatus in debating the world’s most destructive weapons.
“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,” said the Connecticut Democrat Chris Murphy, who recently sponsored a bill to bar the president from taking military action against North Korea without congressional authorization. “Let’s just recognize the exceptional nature of this moment.”
The North Koreans “don’t have a constellation of satellites to see where we are moving our forces—when [Trump] says an armada is coming, that obviously has to give them some pause,” McKeon noted. “People may say ‘Well, what he says in his Twitter account doesn’t matter. We have policies. We have the leadership of the national command authority—the secretary [of defense] and the chairman [of the Joint Chiefs of Staff], they’ll take care of it.’ That doesn’t compute in Kim Jong Un’s mind—that what the president says doesn’t matter. I would be very worried about a miscalculation based on the continuing use of his Twitter account with regard to North Korea.”