Can Trump single-handedly order a nuclear attack on North Korea?

The legal answer is yes, in some circumstances

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 Updated:

President Donald Trump, accompanied by Chief of Staff John Kelly, second from left, walks across the tarmac to Air Force One at Ninoy-Aquino International Airport in Manila, Philippines, Tuesday, Nov. 14, 2017. 

Andrew Harnik/AP

Could the United States launch a nuclear attack on North Korea, even before it is attacked? And could President Donald Trump order such an attack on his own?

These once improbable questions have been vigorously discussed in the capital since Trump this summer raised the prospect of raining “fire and fury” on North Korea in response to the isolated country’s military threats, and then weeks later claimed that North Korea faced “total destruction” if the United States felt it had to defend itself against an attack.

His defense secretary, James Mattis, affirmed in testimony before the Sen. Foreign Relations Committee on Oct. 30 that a first strike on North Korea using U.S. nuclear arms is possible “if we saw they were preparing” an imminent, direct attack on the United States. Mattis quickly added, however, that nonnuclear weapons were available for use if needed, and said a nuclear strike was not being discussed by senior officials “in any kind of actionable way.”

But the prospect of nuclear combat on the orders of a president whom the committee’s chairman, Sen. Bob Corker, R-Tenn., has dismissed as an “adult day care” resident, has stirred controversy and helped galvanize proposals by a few lawmakers to lengthen the “chain of command” that would lead to a nuclear weapons launch — either against North Korea or another nation.

Under a bill introduced by Sen. Ed Markey, D-Mass., and Rep. Ted Lieu, D-Calif., Congress would be inserted explicitly into that chain, given a chance to say yea or nay to any first use of nuclear weapons.

The measure’s political prospects are dim. Congress as a whole has long tread lightly in this area, and a Nov. 3 report by the Congressional Research Service concluded “there is no clear answer on whether legislation limiting the President’s power to employ those nuclear weapons that are already in the military arsenal would violate separation of powers principles.”

The issue of “who gets to decide” nonetheless took center stage at a Tuesday hearing called by Corker to explore “the realities of this system” by which the president can singly order a nuclear detonation – a chain of command last examined by that committee 41 years ago. At the hearing Tuesday, three experts — none of whom is currently in the government — testified that Trump’s ability to decide the issue on his own is limited but also said that additional limits may not be sensible.

A president, they said, does not have authority to launch nuclear weapons without congressional approval unless the United States is already under attack or quite certainly about to be. “To be sure, the President possesses the constitutional authority to defend the country against sudden attack, or to pre-empt an imminent attack,” said Brian McKeon, an acting undersecretary of defense for policy during the Obama administration. “But Article II does not give him carte blanche to take the country to war.”

If the United States is not under attack, the Constitution gives Congress a role as the branch of government with authority to declare war, McKeon said. The hearing’s other witnesses, retired Air Force Gen. Robert Kehler, who commanded the U.S. Strategic Command from 2011 to 2013, and Peter Feaver, who served on the National Security Council staff under President Bill Clinton and President George W. Bush, said they shared McKeon’s view that absent a foreign act of aggression, unleashing a nuclear attack would require congressional approval.

This is clearly the case, McKeon said, when the armed conflict at issue would be of considerable scope or duration. Because the Vice Director of the Joint Staff, Rear Admiral Michael J. Dumont, told a California lawmaker last month that the only way to locate and destroy “with complete certainty” all components of North Korea’s nuclear weapons programs would be to undertake a ground invasion, such a conflict would certainly appear to require congressional authorization.

Trump cannot, as a result, legally just haul off and smack North Korea with nuclear weapons on his own impulse, even if his administration’s motive is to prevent that country from acquiring the capability to threaten America with a nuclear strike at some point in the future. Kehler even noted in his prepared statement that under the military code of justice, soldiers and officers alike are “bound to question (and ultimately refuse) illegal orders or those that do not come from appropriate authority” — although how this might play out under time pressure and with a real presidential launch order remains uncertain.

Still, the trio of witnesses cautioned against legislative action that would handcuff the president’s ability to respond quickly and with nuclear might to a future attack on the United States. “The authority to use nuclear weapons … remains with the President,” McKeon wrote in his statement. “That is as it should be in a republic, given the gravity of the decision and the consequences of any nuclear use.”

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