“He’ll tell me what to do, and if it’s illegal, guess what’s going to happen? I’m gonna say, ‘Mr. President, that’s illegal,’” Gen. John Hyten told the Halifax International Security Forum. Hyten, commander of U.S. Strategic Command, declared he would not follow an “illegal” order to launch nuclear weapons.
The context for the general’s comment was, of course, North Korea. President Donald Trump in August famously promised “fire and fury,” and in September he threatened to “totally destroy” the North. These explosive words were on top of many pledges not to allow Pyongyang to develop weapons that could threaten the American homeland.
No wonder many have been concerned that Trump, by ordering a first nuclear strike on North Korea, will violate international law and norms and blow up the planet. He just might manage to do that—who knows?—but you don’t have to worry he will violate norms or law.
As an initial matter, Gen. Hyten was on firm ground when he said he would refuse to obey an illegal order from the commander in chief. David Maxwell of Georgetown University points out that enlisted personnel in the American military take an oath to follow the orders of the president but officers do not. Officers swear or affirm to “support and defend the Constitution.”
“The difference in the two oaths is important, and it is what makes our officer corps different from those in so many other countries,” Maxwell, a retired U.S. Army colonel who served five tours of duty in South Korea, told The Daily Beast in response to a question about Hyten’s provocative comment. “We seek to defend the idea and ideals of our nation and our political philosophy and are loyal to those ideas and ideals and not to an individual who holds office.”
Hyten, like all prior custodians of the nation’s nuclear weapons, has thought a lot about the legality of nuclear strikes.
“Under international law, using nuclear weapons first is almost always illegal,” writes Gwynne Dyer. That may be what Dyer, the well-known London-based journalist, wants the law to be, but he is almost certainly wrong.
Only two nuclear states—China and India—have announced no-first-use policies, and Beijing’s official pronouncement on this issue almost certainly does not reflect its actual nuclear doctrine.
Russia? Vladimir Putin has boasted openly about his country’s “offensive nuclear weapons.”
The U.S., which has always reserved the right to use nukes first and in fact did so in 1945, has a publicly announced policy on the employment of these weapons, the Nuclear Posture Review. The most recent review, issued April 2010, does not stand in the way of a nuke strike on North Korea.
“The United States is now prepared to strengthen its long-standing ‘negative security assurance’ by declaring that the United States will not use or threaten to use nuclear weapons against non-nuclear weapons states that are party to the Nuclear Non-Proliferation Treaty and in compliance with their nuclear non-proliferation obligations,” the Nuclear Posture Review declares (PDF).
Pyongyang takes the position it is no longer a signatory to that global treaty, but even if it were—many argue its withdrawal from the pact did not meet procedural requirements—it would not be in compliance. Bottom line: U.S. doctrine permits a first strike on North Korea.
But what about the Korean War armistice, signed in July 1953? That is, in essence, an agreement not to use force. American Gen. Vincent Brooks, the commander of the UN Command, a party to this truce, this month declared the armistice “remains in place.”
This despite the fact that North Korean soldiers violated the armistice on the 13th of this month when they fired into South Korea over the Military Demarcation Line and when one soldier actually crossed into the South by stepping over that boundary.
Pyongyang at least three times in the last decade—in 2003, 2006, 2009—renounced the armistice.
The last North Korean renunciation occurred on Sept. 25, when Foreign Minister Ri Yong Ho, in New York at the conclusion of the UN General Assembly, said his country had the right to shoot down American planes in international airspace.
And, in addition to the two armistice infractions the UN Command identified with regard to the Nov. 13 incident, there have been hundreds of what Washington calls North Korean “violations” of the armistice. In reality, those violations are the conduct of a war that the U.S. refuses to recognize.
An armistice cannot exist as a legal matter if one of the parties says it will not abide by it. What Brooks was really doing when affirming the armistice was making a unilateral declaration.
So if there is in fact no armistice, there is no agreement not to use force. If there is no agreement not to use force, Trump can, as commander in chief, order any type of strike on North Korea. Gen. Hyten, therefore, does not have to worry about “illegal” nuclear attacks on the North.
Moreover, if nuclear strikes on North Korea were illegal, then why are American senators and representatives sponsoring legislation to prevent Trump from launching one? Sen. Ed Markey of Massachusetts and Representative Ted Lieu of California have sponsored a bill requiring a congressional declaration of war for the president to launch a first nuclear strike. The mere fact they think legislation is necessary indicates that present law permits the president, as commander in chief, to begin Armageddon on his own.
“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,” says Sen. Chris Murphy, the Connecticut Democrat.
Many agree with Murphy, but he is not the one charged with protecting the American homeland. As Maxwell told me, “We should remember that we the people have elected our president and in so doing have entrusted him with solemn oath to support and defend our Constitution and by definition to protect the security of the United States.”
As President Barack Obama was fond of saying, “elections have consequences.”