Congress could stop Milley’s nuclear weapons quandary from happening again

Gen. Mark Milley, chairman of the Joint Chiefs of Staff, reportedly was concerned that former President Trump was so psychologically troubled that he might misuse nuclear weapons after losing re-election. The Washington Post reports that, according to a new book by Bob Woodward and Robert Costa, Milley “summoned senior officers to review the procedures for launching nuclear weapons, saying the president alone could give the order — but, crucially, that he, Milley, also had to be involved.”

If true, the general’s statement was, as the late Secretary of State Dean Acheson once said, “clearer than truth.” The president, as commander in chief, can order the Secretary of Defense to direct a combatant command, such as U.S. Strategic Command, to use nuclear weapons. The chairman of the Joint Chiefs is the principal military adviser to the president, the senior-most uniformed member of the armed services, and a statutory adviser to the National Security Council. But while the chairman can transmit communications from the president and defense secretary to combatant commanders, he does not command any combatant forces.

Of course, any president should seek the Joint Chiefs’ military advice about using nuclear weapons, and communications rehearsals for potential nuclear crises anticipate such discussions. But if the chairman of the Joint Chiefs were, for example, killed in an enemy attack or otherwise incommunicado, there is no legal reason that a presidential launch order could not proceed without his involvement. What Woodward and Costa imply is that Milley suggested that nuclear weapons could not be launched without his permission, and legally speaking, this is not true.  

That said, the chairman’s predicament presents serious questions for our country.

U.S. military officers swear to support, defend and bear true faith and allegiance to the Constitution, which under Article II vests the president with executive authority, makes him commander in chief of the U.S. armed forces, and gives him the power to appoint senior officers with the Senate’s advice and consent. The president can be removed if he is impeached by a majority of the House and convicted by two-thirds of the Senate of treason, bribery or “other high crimes and misdemeanors,” or, under the 25th Amendment, if the vice president and a majority of, essentially, the Cabinet notify Congress that the president is “unable to discharge the powers and duties of his office.” If the president contests the vice president’s assertion of his inability, Congress resolves the issue, with a two-thirds majority of each chamber needed to depose the president.

Officers can disobey orders that they believe to be immoral or unwise, but in so doing, they risk being removed and punished; they ought to be prepared to resign over matters of principle. Officers must disobey illegal orders; in fact, they have an affirmative obligation to do so, and to report to appropriate authorities that an illegal order was given.

There is no legal provision for an officer to disobey a lawful order, frustrate its execution, and remain in the chain of command. That is not to say that this has never been done. Famously, Defense Secretary James Schlesinger, albeit a civilian, was prepared to disobey and frustrate the execution of any nuclear launch order given by an alcohol-impaired President Nixon during the depths of Watergate. Less well known are Army officers who deliberately disobeyed President Buchanan’s unwise orders to allow the Confederacy to seize certain federal arms and munitions in the South between Abraham Lincoln’s election and inauguration.

Schlesinger and those Union officers acted illegally — but morally — and are viewed well by history. If Woodward and Costa are correct in suggesting that Milley sought to thwart an ill-advised nuclear launch order from what he believed to be a psychologically impaired president, the same may be said of him, since there could be no greater good than preventing an unnecessary war that would kill millions of innocent people.

A better path would have been for the chairman to demand that his civilian superiors, Vice President Mike Pence and Acting Secretary of Defense Christopher Miller, convene the Cabinet (to which they, but not he, belong) to discuss invoking the 25th Amendment. Perhaps Milley did so — and the Senate Armed Services Committee should ask him when he testifies later this month. Milley also was well within his rights to discuss his concerns with House Speaker Nancy Pelosi (D-Calif.), third in line for the presidency, as he reportedly did. If Pence and Miller disregarded such a deadly serious request from the chairman, shame on them for dodging their duty as constitutional officers.

Under our constitutional framework, we do not want, and cannot have, uniformed officers prepared to disobey and thwart the elected commander in chief’s lawful orders while retaining their commissions. This goes back even earlier than the Constitution, to when Gen. George Washington established the principle of civilian control of the American military when he retired to Mount Vernon after winning the Revolutionary War, leaving the government in the hands of the elected Continental Congress — thereby becoming, in King George III’s words, “the greatest man in the world.”

Milley was placed in a terrible situation in preparing, as he apparently viewed it, to prevent nuclear war. Fortunately, there is a solution to prevent this from happening again. President Biden and Congress should, by statute, make it unlawful for the United States to exercise first use of nuclear weapons. This would make the kind of order that Milley reportedly feared not merely immoral and unwise, but illegal. And again, illegal orders must be disobeyed.

During the Cold War, a first use of nuclear weapons by the United States was anticipated as a possibility for good reasons: upon incontrovertible intelligence that the Soviets planned a surprise first strike, to respond to the use of chemical or biological weapons against the U.S., or to keep our conventional forces from being defeated while defending Germany or Korea. These reasons remain, although now they are less urgent, perhaps, than the possibility of a mentally unfit president ordering a nuclear strike and his vice president and Cabinet not invoking the 25th Amendment.

If, God forbid, a president does ever order the unnecessary first use of nuclear weapons, make it an illegal order that our military can disobey without undermining our Constitution.

Kevin T. Carroll is a partner in Wiggin and Dana’s Litigation Department in the Washington and New York offices, and a leader of the firm’s National Security and Congressional Investigations practice group. He served as an Army and CIA officer, senior counsel to the House Homeland Security Committee, and senior counselor to the Secretary of Homeland Security. The views expressed here are his own.