There is No Lawful Order

Should the US military launch nuclear weapons, if Donald Trump orders a first strike?


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Now, let’s flesh out that answer a bit. The premise of the way the US’ National Command Authority (NCA) is set up, is to centralize control of the US nuclear arsenal, ostensibly for defensive reasons. Recent discussions about Donald Trump’s unsuitable command temperament – did I put that delicately enough? – have swirled around the idea that Trump might order a strike, and the military might ignore NCA’s directive as “not lawful.”

“I’m sorry sir, that is not a lawful order,” is what they trained us, over and over, to say in the muggy June evenings in Ft Dix, NJ, in 1983 when I went through basic training. At that time, the US Army of the 1980s was still reeling from its self-inflicted morale damage following the ignominious defeat in Vietnam. Included in that ignominy was the institutional awareness that the US military had taken things way across the line: the carnage at My Lai was bad, but it wasn’t really any worse than what the US Marines did at Hue. Or the US Air Force did during Operation Linebacker, when politician-to-be John McCain dropped bombs on a defenseless city of civilians. My Lai had become the tip of an iceberg, that the US planted a flag upon, trying to say, “this atrocity was special. These atrocities are not us.” So those of us being absorbed into the big green machine sat, using our M-16 rifles as props to support our weight, and took a few classes on what constituted lawful and unlawful orders. We were told, “don’t shoot prisoners.” And then we were told, “don’t shoot someone who is trying to surrender.” And we were told “don’t shoot civilians, although your first responsibility is to your mission and your fellow soldiers so if you’re fired upon, return fire.” And we were told, “I’m sorry, sir, that is not a lawful order,” was our duty to say to an unlawful command; we were to accept that we’d be relieved of duty and might be put on a barracks detail, until the chain of command determined whether we were wrong, or right, and everything got sorted out.

Of course none of that is how it ever happens. There is no perceptible shortage of people in the military who are comfortable (indeed, gleeful) with orbiting a Médecins Sans Frontières hospital in Kandahar and raining 155mm high explosive shells onto it for an hour, in spite of radioed please for help. There is also no perceptible shortage of people in the military who would pop the cork on a nuclear war; the reason is simple: decent human beings with any sense of empathy at all, are not placed in command of nuclear missile batteries. In the clip above, from the brilliant Crimson Tide (1995) [imdb] the ballistic missile submarine’s commander gives the stock response to “I’m sorry sir, that is not a lawful order,” which is, “if you won’t do it, I’ll find someone who will.” That’s the problem with the whole fol-de-rol of “legitimate orders” – the military is structured so that the most you can do if there’s an illegal order, is to act like a bit of a speed-bump. At My Lai, Lt Calley ordered his platoon to kill all the people in the village and, when one of his troop demurred, he didn’t bother working his way down the chain of command: he started shooting villagers. Then most of the rest of the platoon joined in.

Picture that scenario, and apply it to nuclear war.

If the commander of one ballistic missile submarine says “I’m sorry sir, that is not a lawful order,” the next one won’t, nor will the next one. And because of the distributed logic of nuclear deterrent, none of the commanders in the subs or the silos will know what the others are doing. They will know only that if one missile goes, return fire will come back the opposite direction, so it’s best to put all the chips in the pot and turn the cards over and see who’s got the winning hand.

My point is that the command structure of the US nuclear forces is arranged so as to prevent acts of conscience. It just so happens that that set-up also provides good deterrent, so deterrent is the fig-leaf. It’s rare to have to say “Stanley Kubrick got it wrong” but wrong he did get it, in Doctor Strangelove – the US would not have tried to help recall or stop the bombers: every US administration since the beginning of the nuclear age would have treated that situation as requiring putting all the chips in the pot and (by most estimates) 3 billion people would die and the living would envy the dead.

There is no such thing as a “legitimate” (really “lawful”) order to launch a nuclear weapon, anyway. Because nuclear weapons, by their very nature, are indiscriminate and cause massive collateral damage. Bear in mind that the vast majority of the US’ nuclear arsenal is aimed at Russian cities; those are not lawful targets. An order to launch a nuclear weapon at a city is Lt. Calley’s order times a half a million or worse. There is no such thing as a “limited” nuclear strike, for the same reason that there is no such thing as a nuclear strike that the United States would accept a sincere apology for: imagine if Russia decided to emphasize a geopolitical point by vaporising Miami – is there any conceivable forgiveness that would stop short of a full retaliatory strike? Of course not.

I’d like you to think about that point for a minute.

“Tossing a few nukes around” – LBJ, 1966

If you thought in the right direction, the other shoe should have dropped for you, which is this: the US’ plans for limited use of nuclear weapons only make sense in the context of US use of nuclear weapons against countries that cannot retaliate in kind. In other words, all this stuff is complete bullshit: the US is really having a bogus internal dialogue about how much nuclear saber-rattling it is willing to engage in. And, every US administration since the first that authorized the use of nuclear weapons against a city full of civilians of a non-nuclear power has talked about doing it again. Eisenhower talked openly about using nuclear weapons in Korea. Eisenhower talked openly about using nuclear weapons to support the French invasion force that mouse-trapped itself at Dien Bien Phu in Vietnam [dbp] Johnson discussed using nuclear weapons in Vietnam, too. [ni] A friend of mine who was a major commanding a battery of the US Army Artillery during Gulf War I has shown me pictures of the “special munition truck” that carried Multi-Launch Rocket System (MLRS) ballistic rockets [wik] with miniaturized nuclear warheads. Don’t look behind the curtain and ask why the M270A1 MLRS vehicle has an armored blast-proof cab: this is a system that’s supposed to exist behind the forward edge of the battle area, where it will never get incoming return fire. Why blast-proof it except to handle the overpressure of a nuke? The US was ready to retaliate with WMD if Saddam Hussein actually fielded WMD, because WMD are bad. Nobody (including my friend) would have said “I’m sorry, sir, that is not a lawful order” and refused to fire. The US has always been ready, has always structured its nuclear arsenal, so that it could be deployed against civilian targets.

Bach Mai hospital, Hanoi, 1977

There aren’t any military targets worth a nuke, barring an incredibly stupid enemy that builds forward bases and sits there, fat, dumb, and happy, like the US colonial bases in Japan, or Korea, or Hawaii, etc. No nation’s military with any understanding of how Americans make war, will ever go into battle in a clustered deployment; that’s a consequence of two things – the Vietnamese taught the world that America can’t win insurgencies and the Americans are horrible bloodthirsty cowards who will possibly nuke you if you cluster up. If we don’t nuke your maneuver elements, we’ll drop a MOAB on them, or a zillion pounds of “conventional” explosives and long-range gunfire from naval assets, so it makes no difference. US military doctrine has always been to eradicate enemies (military and civilian alike) with overwhelming force, from a safe distance.

Don’t look to the US military to save the world if Donald Trump decides to deploy nuclear weapons.

Now, let’s talk about one of the really nasty bits. I can prove to you that the US nuclear arsenal is designed for aggressive use, not merely as a deterrent. All the clues you need are in the clip from Crimson Tide, actually. Here’s how it goes: the US triad of “deterrent” is configured so that weapons site commanders can launch on detonation if they can no longer receive orders from the NCA. If the ballistic missile subs can’t raise command at all the commander can reasonably assume that the NCA was wiped out in a first strike, and they’re “weapons free.” Same for the silos in the midwest. The Air Force’s part of the triad, the bombers and jets, are slightly different because they’d be expected to try to survive a first strike. But they’d damn sure know if a first strike came in – and if they survived, they’d know what to do, or try to do, with what was left of their lives. In other words, there’s really no need at all to have an NCA that says “attack.” All that’s needed is an NCA that someday stops responding, and – after a bit – it will sink in to the deterrent forces that it’s time to retaliate and destroy the rest of the world. There is no need to have an NCA that can take an attack order unless the US has actually structured its nuclear “strategic deterrent” as an offensive capability.

We now know that the Soviets understood this, figured it out, and implemented it during the cold war. Their system was called “PERIMETR” (aka: Mertvaya Ruka “the dead hand”) and it was as though Stanley Kubrick’s Doctor Strangelove was accidentally a documentary. PERIMETR worked exactly as I described: if the Soviet strategic deterrent didn’t hear anything from their equivalent NCA, they were “weapons free.” Sadly, US reporting [wired] about PERIMETR universally makes it sound as though the Soviets did a monstrous thing, while completely ignoring the obvious fact that we did that monstrous thing, first.

Because any order to launch a nuclear weapon means that a large region of the target’s territory is going to be scoured with light and flame, a nuclear launch is inherently an illegal order. It is against all of the laws of warfare to launch area attacks against non-military targets, and because of the size of a nuclear weapon’s area of effect, it is impossible for them to only hit military targets.

If we lived in a just world, everyone who expressed a willingness to use these things would be arrested, rounded up, and put someplace safe where they couldn’t hurt the rest of us. Perhaps on some deserted island, where they could live out their Lord of The Flies fantasies and see how they like the post-apocalyptic hell they have enacted for the rest of us.

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David Hoffman The Dead Hand is a solid overview of what little is known about PERIMETR. [amazon] I’d say it’s mostly of interest to those of us who watch these things closely. It’s not a great book but it’s got a lot of important puzzle-pieces in it.

Schlosser’s Command and Control is a better read (though terrifying) and describes some aspects of the US NCA system. It’s written framed around a nuclear silo accident that almost wiped out a chunk of the midwest and might have sparked a nuclear war. [amazon] Spoiler: it involves a silo explosion, and ends with a re-entry vehicle full of hydrogen bombs popping like a cork out of the silo and winding up sitting in a farmer’s driveway. No shit.

There are much worse things I want to eventually tell you about US nuclear weapons policy; it’s just very hard for me to write calmly about it, wrapped up comfortably in my warm bathrobe with the snow outside and a hot cup of tea. The horror is so deep and profound it’s hard to confront. Imagine if you knew that H.P. Lovecraft’s stories were real; it’s that bad. Recently some new bits of the story have been published (Daniel Ellsberg has come clean about what he did at RAND) (some of us already knew from other sources) and has more importantly admitted that he was the leaker that dropped tidbits about SIOP back in the 70s (some of us suspected that it was him) So we are now, 50 years later, ready to assemble the pieces of the puzzle and see the monstrous thing that still lurks inside the US military-industrial complex – a thing that will convince you that no matter how scary a nihilist may be, they are nothing compared to an ideological bureaucrat. Hannah Arendt was like Pickman, an artist drawing portraits of these monsters, from life.

My dad (the historian) says you can’t begin to tell the history of a time for 50 years because that’s when the bodies are buried and it’s OK to talk. The scary stuff Ellsberg and others have been bringing out just screams that dad’s right and – if that’s true – what is still waiting to come out is going to be some Lovecraftian horror indeed.



  1. says

    I’m afraid I’ve never had faith in the lone military man who saves the day, or even a troop of them, whatever. Are there decent people in the military who would do the right thing? Sure. Are they massively outnumbered? Yep. I had, during the previous administration, got to thinking I’d never be as scared of nuclear war as I was back in the 60s/70s.

    I’ve lived long enough to have that frivolous thought thoroughly vapourized. I’m much more scared now. Given that I’m sitting in nuke central, I just hope I will get actually vapourized, rather than living to regret the fact I’m alive.

  2. says

    There was Stanislav Petrov. [stderr] There have been others. Unfortunately, there have been others. Unfortunately there have had to be, that is.

    The command/control system is really bad. So far, we’re rolled a string of 00’s on our saving throws…

    (By the way, Petrov worked at Oko – the “eye” – which was the Soviet NCA; basically he was the guy who oversaw PERIMETR and told it “false alarm” on Sept 26, 1983)

  3. Andrew Dalke says

    Diego Garcia might be an exception to the statement “the size of a nuclear weapon’s area of effect, it is impossible for them to only hit military targets.” There are only military and civilian support staff on that island, and no other inhabited land nearby. That possible counter-example does not affect your overall thesis.

  4. says

    Andrew Dalke@#4:
    Yeah, there are probably a few military-only targets; I hadn’t thought of Diego Garcia. There are a few bases like Subic Bay (except now it’s demilitarized) that are large enough to absorb a warhead without collateral damage. Perhaps some of the US’ secret desert bases in Syria… Except of course we’re not talking about a US base getting hit: we do the hitting, we don’t get hit.

  5. EnlightenmentLiberal says

    If I were ever president (lols), one of the first things that I would try to do is get a new international treaty that forbids the first use of nuclear weapons, even if attacked with overwhelming conventional forces, chemical weapons, biological weapons, etc., with the penalty of having your country invaded and ruled by an international coalition for several decades. Signatories would be obliged to provide military forces to enforce this rule.

    I’m very annoyed that this treaty is not a thing already.

    And I would restart / continue the mutual dismantling of nuclear weapons with Russia.

  6. says

    If I were ever president (lols), one of the first things that I would try to do is get a new international treaty that forbids the first use of nuclear weapons, even if attacked with overwhelming conventional forces, chemical weapons, biological weapons, etc., with the penalty of having your country invaded and ruled by an international coalition for several decades.

    I agree. I believe the UN needs a process whereby the security council can declare a state to be “failed” or “illegitimate.” That puts it into a sort of international bankruptcy court in which its government is knocked apart and reconstituted. Wars of aggression, nuclear threat-making, etc, would all be grounds for declaration of illegitimacy.

    We can dream. It’s not going to happen. Clearly, the US is keeping nuclear weapons as weapons of privilege. The world will never be done with them.

  7. chigau (違う) says

    my googling tonight reminded me that
    M.A.S.H., Catch 22, and Kelly’s Heroes
    were all released in 1970.
    is that significant?

  8. says

    I believe the UN should move its physical self out of the USA.

    I agree. And it should vote to dissolve itself and reconstitute itself immediately afterward, with no vetoes on the security council.

    my googling tonight reminded me that
    M.A.S.H., Catch 22, and Kelly’s Heroes
    were all released in 1970.
    is that significant

    I dunno… 1970 was the beginning of popular outcry against the Vietnam war. Dr Stranglove was 1966, I think.

    I saw Catch 22 when I was too young. The scene where Yossarian runs back to try to help the gunner (Art Garfunkel) was traumatic for me.

  9. chigau (違う) says

    Garfunkel played Nately. He died because he was aboard when Dobbs flew his plane into a mountain after shredding … Joe something.
    The guy with the intestines was Snowden.
    Without looking it up, I don’t remember if he was the Dead Man in Yossarian’s Tent.
    (Every couple of years I have a 3AM, bolt upright nightmare about that intestine thing.)
    (also the Joe’s standing legs thing)
    (and the flogging the dead horse)
    What a great movie.