Better Informing a President’s Decision on Nuclear Use

Over the past four years, many Americans have been surprised to learn that a U.S. president can order a nuclear strike at a moment’s notice without the approval of any other official. Though the president might be expected to consult with top military advisers, Congress or U.S. intelligence, there is no requirement that he or she do so. As long as the order can be certified as coming from the president, and as long as military officials involved in implementing the decision do not object to the order as violating the law of armed conflict, U.S. forces are expected to carry out the order.

Several members of Congress and experts have offered proposals to revise nuclear authorization procedures to require the approval of additional officials prior to the release of nuclear weapons. This would be an important step in improving the system, but it does not exhaust the changes needed to ensure the system serves U.S. interests. If and when the United States revises its policies on nuclear use authority, it should also address two other outstanding issues: ensuring that procedures are in place for the president to consult with the leaders of allied countries prior to ordering a nuclear operation that would affect them and reviewing the process by which the military would assess the legality of nuclear operations under the law of armed conflict.

Providing for Consultations With Allies

Allied countries may also be surprised to learn that there is no requirement for a U.S. president to consult them before using a nuclear weapon in their defense. Even worse, the existing communications systems and expectations that govern the current U.S. procedure for authorizing nuclear use may make it very difficult to have these consultations, even if a president wanted to. The existing system raises the risk that a president’s decision about whether to use a nuclear weapon could be based on incomplete information or could contradict the interests or wishes of U.S. allies. As the United States revises its policies on nuclear use authority, it should also ensure that procedures are in place for the president to consult with the leadership of affected allied countries.

Any detonation of a nuclear weapon near an ally’s territory will have tectonic effects on the ally’s interests. The blast—whether from a U.S. weapon or from an adversary responding to U.S. use—could cause radiation, thermal or blast damage to allied infrastructure, troops, civilians or natural resources. If the United States chooses to use a nuclear weapon in the context of a limited regional conflict, the likeliest context for nuclear use, it could disrupt the operations of allied forces or could shift the outcome of that conflict. Doing so could transform that ally’s relationships with regional partners or adversarial neighbors, especially if they think the ally approved nuclear use, and it could have complex and lasting consequences if domestic political groups criticize the allied government or its alliance with the United States for the event. At worst, U.S. nuclear use could inadvertently leave an ally angry, weakened and isolated.

For all of these reasons, a U.S. president has a strong interest in consulting with an allied leader prior to deciding whether to use a nuclear weapon. An ally is likely to have crucial information about the probable consequences of nuclear use that could affect the U.S. president’s decision. Furthermore, the president and U.S. military leaders may need to coordinate with an ally on a range of matters related to the decision—how allied forces can reduce the need to employ a nuclear weapon, how they can ensure nuclear and conventional operations will remain effective after nuclear use, how employment can contribute to winning a regional conflict after nuclear use, and whether allied civilians and infrastructure can be kept safe from U.S. use or expected adversary responses, including further nuclear escalation.

As a matter of principle, U.S. allies deserve to be consulted in U.S. nuclear use decisions whenever possible. While some allied officials worry that the United States might not use a nuclear weapon if needed, others worry that a president could use a nuclear weapon in a situation in which they believe it isn’t necessary. Some officials in allied countries flatly reject the idea that the United States should use nuclear weapons on their behalf. Even in circumstances where an ally approves of U.S. nuclear use, they should—if at all possible—get a say in how, when and where, and be given fair warning before it happens.

Regular deterrence dialogues established in the Obama administration serve an important function for assuring allies, consulting on U.S. nuclear weapons policy and signaling cohesion. However, the United States does not generally discuss hypothetical nuclear use scenarios in these dialogues for the simple reason that the officials conducting these dialogues cannot predict a president’s orders in a crisis. As a result, they do not provide allies with detailed information about when, why and how the United States could use a nuclear weapon to defend them.

Allies generally try to present a united front with the United States on extended deterrence issues, but sometimes public statements hint at deficiencies in alliance cohesion. For example, in response to a report of a plan that could include the use of 80 nuclear weapons against North Korea, a South Korean defense official recently told reporters, “I can say clearly that the use of a nuclear weapon does not exist in our [operational plans], and it is impossible to use military force without our agreement.” The sentiment, and the resistance to nuclear use, is widespread on the peninsula. Yet, while the United States may in practice need South Korea’s approval to conduct a protracted military campaign, there is no requirement for a U.S. president to consult with Seoul prior to nuclear use, let alone to secure its approval. South Korea does not have detailed knowledge of the full set of available U.S. nuclear employment options, which exist separately from the combined operational plan.

There is currently no requirement—or, in some cases, even an expectation—that the United States would consult with an ally prior to using nuclear weapons near its territory. Even worse, in some situations, there may not be a sufficient system available for timely consultation to occur.

NATO has an established process for member states to request a U.S. nuclear operation, including with the remaining U.S. weapons stored in Europe for NATO use. Since the 1960s, the alliance has recommended that “special weight” be given to consultation with allies on whose territory nuclear weapons may be used—but no member state has a veto over an employment decision and consultation would only take place “time and circumstances permitting.” The United States should ensure that effective procedures and systems are available to communicate with allied civilian and military leaders in all potential cases of nuclear use in Europe, including the smaller allies, and make it standard procedure for the president to exercise these mechanisms before ordering nuclear release.

In Asia, there are no established organizations or nuclear sharing arrangements to facilitate this kind of consultation. Allied officials often express frustration that bilateral deterrence dialogues are too general to help them plan for a crisis. An ally could request nuclear use at any time through channels established for conventional command-and-control systems or diplomatic coordination, but the allies likely would not be able to discuss specifics of nuclear operations in either setting, especially in wartime. On the other hand, allied leaders may never have an opportunity to weigh in against planned nuclear use near their borders.

If and when the United States reconsiders its procedure for how a U.S. president can order nuclear use, it should establish procedures and secure video, voice and data channels for the president to consult with the leadership of allied countries affected by the decision, including Australia, Japan and South Korea. The standing procedure for nuclear use authorization should have senior advisers prompt the president to consult with allies and to build in time for the conversation to occur—both in exercises and in a crisis. If an ally disapproves of a proposed nuclear operation, the president should seek other ways to accomplish the objectives of both parties.

Allied approval cannot be a formal requirement of the nuclear use authorization process. In some circumstances, it would be impossible or imprudent to consult with an ally before ordering a nuclear operation—for example, when a decision has to be made immediately, when consultation might imperil a mission, when it is impossible to establish a communications link safely and securely, or when the mission is unlikely to affect the ally’s territory or operations. But a U.S. president should make every effort to secure an allied leader’s agreement on a course of action in a nuclear crisis.

The act of setting up a procedure could be constructive in itself. U.S. allies have been deeply shaken by four years of an erratic president often dismissive of allies’ concerns, including by issuing careless nuclear threats in public that have surprised and alarmed allies. Even more than a bomber overflight or a port call from a ballistic missile submarine, discussing procedures for deliberation, establishing the communications channels and rehearsing these consultations can reassure allies that the United States takes its interests seriously. At the same time, U.S. officials should provide allied leadership with more detailed briefings about U.S. procedures, capabilities and plans in order to streamline consultation in a crisis and assuage any allied concerns about the shift in procedures. U.S. officials should discuss hypothetical nuclear employment scenarios with allies so that each partner can better understand the other’s interests. These briefings should put nuclear assurance discussions on a firmer footing than the current precarious edifice and provide an opportunity for U.S. officials to understand allied interests in different hypothetical contingencies. Furthermore, allies or adversaries may recognize these consultative procedures as enhancing the credibility of U.S. extended deterrence commitments as they could facilitate decision-making in a crisis and enhance alliance cohesion at the political, strategic and operational levels.

Establishing procedures for the president to consult with allies on nuclear use can lead to better operational planning, better alliance relations and a better informed decision. Just as the president should not make a decision on nuclear use without the benefit of counsel from domestic advisers, he or she should not make a decision without the counsel of foreign partners.

Requiring a Broader Certification on Legality

The sole constraint on a president’s nuclear employment order is that it must be consistent with international humanitarian law, commonly referred to as the law of armed conflict (LOAC). The current procedure for determining whether nuclear optio

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