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  • Although Two Out of Three Americans Oppose Increasing U.S. Military Spending, the U.S. Government Is Boosting It to Record Levels

    Early this February, the Republican-controlled Congress passed and President Donald Trump signed new federal budget legislation that increased U.S. military spending by $165 billion over the next two years.  Remarkably, though, a Gallup public opinion poll, conducted only days before, found that only 33 percent of Americans favored increasing U.S. military spending, while 65 percent opposed it, either backing reductions (34 percent) or maintenance of the status quo (31 percent).

    What is even more remarkable for a nation where military spending has grown substantially over the decades, is that, during the past 49 years that Gallup has asked Americans their opinions on U.S. military spending, in only one year (1981) did a majority of Americans (in that case, 51 percent) favor increasing it.  During the other years, clear and sometimes very substantial majorities opposed spending more on the military.

    Although the Gallup survey appears to be the only one that has covered American attitudes toward military spending in 2018, reports by other polling agencies for earlier years reveal the same pattern.  The Pew Research Center, for example, found that, from 2004 to 2016, the percentage of Americans that favored increasing U.S. military spending only ranged from 13 to 35 percent.  By contrast, the percentage of Americans that favored decreasing U.S. military spending or continuing it at the same level ranged from 64 to 83 percent.

    This opposition to boosting U.S. military spending became even stronger when pollsters provided Americans with information about the actual level of federal government spending and arguments for and against particular programs.  In March 2017, before opinion polling began by the University of Maryland’s Program for Public Integrity, it distributed a rough outline of the federal budget and a series of statements about spending programs vetted for fairness by opposing groups.  The result was that a majority of survey respondents reported that they favored cutting the military budget by $41 billion.

    Current public opinion on military spending has a clear partisan dimension.  In its February 2018 polling, Gallup found that, among Republicans and independents leaning Republican, 54 percent said that the U.S. government was spending too little on the military.  Conversely, among Democrats and independents leaning Democratic, 53 percent said the federal government was spending too much on it.  Today, with Republicans dominating both Congress and the White House, it’s not surprising that U.S. military spending is once again soaring to record heights.

    It’s hard to say, of course, where the current vast U.S. military buildup will lead.  Critics―and there have been many―predict war, bankruptcy, or both.  Kevin Martin, president of Peace Action, the largest grassroots peace organization in the United States, remarked:  “Our tax dollars pay for military policies that spur a global arms race―one that increasingly endangers our country’s security and undermines its economic viability.”

    Americans might also want to ponder the fact that, with $700 billion per year now being pumped into the Pentagon by U.S. taxpayers, military spending consumes 54 percent of the federal discretionary budget.  And, if President Trump’s official recommendations for future years are followed, the military’s share of the federal budget will surge to 65 percent by fiscal 2023.  Combined with the huge budget deficits that will be produced by the GOP tax cuts for the wealthy and their corporations, this will almost certainly lead to devastating slashes in federal spending for education, healthcare, parks and recreation facilities, food distribution, jobs, infrastructure, and other public programs.

    Of course, there are possibilities for blocking the current flood of military spending and its consequences.  The political mobilization of the widespread, but thus far latent, constituency against increased funding for the Pentagon, coupled with enough Democratic victories at the polls in 2018 to return of the House of Representative to Democratic control, would slow―and perhaps halt―the drift toward an overwhelmingly military-oriented public policy.

    Short of these developments, however, it seems likely that the U.S. government’s discretionary spending will be devoted primarily to preparations for war.


    Dr. Lawrence Wittner (http://www.lawrenceswittner.com) is Professor of History emeritus at SUNY/Albany and the author of Confronting the Bomb (Stanford University Press).

  • Christine Ahn Delivers the 2018 Frank K. Kelly Lecture on Humanity’s Future

    Christine Ahn Delivers the 2018 Frank K. Kelly Lecture on Humanity’s Future

    Christine Ahn delivered the Nuclear Age Peace Foundation’s 17th Annual Frank K. Kelly Lecture on Humanity’s Future on March 7 in Santa Barbara.

    Christine Ahn is the founder and international coordinator of Women Cross DMZ, a global movement of women mobilizing to end the Korean War, reunite families, and ensure women’s leadership in peace building. She is co-founder of the Korea Peace Network, Korea Policy Institute, and Global Campaign to Save Jeju Island.

    Audio

    Introduction by Rick Wayman

    Christine Ahn’s speech

    Q&A with the audience

    Video

    Video of Christine Ahn’s speech

    Photos

    View a collection of photos from the lecture on the NAPF Flickr page

  • The Senate Must End U.S. Involvement in the War in Yemen

    Congress has never authorized U.S. involvement in the war in Yemen, yet for almost three years the United States has literally fueled the conflict and its war crimes. Since March 2015, Saudi Arabia and its allies have targeted civilians, hospitals, schools, and farms with American made bombs dropped by planes refueled by the U.S. Meanwhile, the U.S. has provided Saudi Arabia and its allies political cover while they deliberately use starvation and disease as weapons of war, putting 8 million Yemenis a step away from famine. None of this brutality would be possible without continued American support.

    Senators Bernie Sanders (I-VT), Mike Lee (R-UT), and Chris Murphy (D-CT) introduced a resolution, which would end U.S. military involvement in the Saudi-led coalition’s war in Yemen. The resolution would end U.S. refueling of and intelligence-sharing to coalition warplanes conducting aerial bombings in Yemen. It invokes the War Powers Resolution of 1973, which was passed in the wake of the Vietnam War to empower Congress as the sole body that can declare war. Under the War Powers Resolution, this important legislation is guaranteed a vote, which means that the Senate will finally debate and vote soon on this unauthorized war. This legislation is our best chance to end the U.S. role in this unconstitutional war and push for peace, which is the only significant way to relieve the suffering of the Yemeni people.

    Please take a moment to send a message to your senators, encouraging them to support the Sanders-Lee-Murphy resolution.

  • Sunflower Newsletter: March 2018

    Issue #248 – March 2018

    Become a monthly supporter! With a monthly gift, you will join a circle of advocates committed to a peaceful tomorrow, free of nuclear weapons.

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    • Perspectives
      • Miyoko Matsubara by David Krieger
      • We Call BS by Emma Gonzalez
      • How the Pentagon Devours the Budget by William Hartung
      • Duck and Cover by Winslow Myers
    • U.S. Nuclear Weapons Policy
      • Trump Claims U.S. Will Stop Building Nuclear Arsenal if Others Stop First
      • U.S. Cancels ICBM Test During Olympic Truce
    • Nuclear Disarmament
      • UN Secretary-General Calls for New Push for Nuclear Disarmament
      • New Zealand Reinstates Position for Minister of Disarmament
    • War and Peace
      • NAPF Advisors to Suu Kyi: “End Rohingya Genocide”
      • Top U.S. Diplomat on North Korea Abruptly Resigns
    • Nuclear “Modernization”
      • Trump Administration Reveals Nuclear Weapons Budget Request
      • Lockheed Martin Receives More U.S. Government Money than Many Federal Agencies
    • Nuclear Insanity
      • U.S. and Chinese Officials Fight Over Nuclear Football
      • Trump Administration Pursues Deal to Build Nuclear Reactors in Saudi Arabia
    • Missile Defense
      • Failed Missile Defense Test Cost $130 Million
    • Nuclear Waste
      • The Poison and the Tomb
    • Resources
      • This Month in Nuclear Threat History
      • Presidential First Use of Nuclear Weapons
      • Atomic Homefront Streaming Free
      • TEDx Talk by Atmospheric Scientist Brian Toon
      • Don’t Bank on the Bomb Coming March 7
    • Foundation Activities
      • March 7 Webinar: Women Waging Peace
      • 2018 Swackhamer Disarmament Video Contest
      • Preventing War: Crisis and Opportunity with North Korea
    • Quotes

     

    Perspectives

    Miyoko Matsubara

    I heard from friends in Hiroshima that Miyoko Matsubara left this world on February 9th. She was a very gentle and dedicated hibakusha, who came several times for extended periods to the Nuclear Age Peace Foundation in Santa Barbara to practice her English and polish the presentation of her experience as an atomic bomb survivor. She was 13 years old when the atomic bomb destroyed her city. Like so many other survivors of the Hiroshima and Nagasaki bombings, she was traumatized by the experience and wanted to assure that no other people or cities suffered the trauma and tragedy that she and her city had.

    To read more, click here.

    We Call BS

    We are going to be the kids you read about in textbooks. Not because we’re going to be another statistic about mass shooting in America, but because we are going to be the last mass shooting.

    The people in the government who were voted into power are lying to us. And us kids seem to be the only ones who notice and our parents to call BS. Companies trying to make caricatures of the teenagers these days, saying that we are all self-involved and trend-obsessed and they hush us into submission when our message doesn’t reach the ears of the nation, we are prepared to call BS. Politicians who sit in their gilded House and Senate seats funded by the NRA telling us nothing could have been done to prevent this, we call BS. They say tougher guns laws do not decrease gun violence. We call BS. They say a good guy with a gun stops a bad guy with a gun. We call BS. They say guns are just tools like knives and are as dangerous as cars. We call BS. They say no laws could have prevented the hundreds of senseless tragedies that have occurred. We call BS. That us kids don’t know what we’re talking about, that we’re too young to understand how the government works. We call BS.

    To read more, click here.

    How the Pentagon Devours the Budget

    Imagine for a moment a scheme in which American taxpayers were taken to the cleaners to the tune of hundreds of billions of dollars and there was barely a hint of criticism or outrage. Imagine as well that the White House and a majority of the politicians in Washington, no matter the party, acquiesced in the arrangement. In fact, the annual quest to boost Pentagon spending into the stratosphere regularly follows that very scenario, assisted by predictions of imminent doom from industry-funded hawks with a vested interest in increased military outlays.

    Most Americans are probably aware that the Pentagon spends a lot of money, but it’s unlikely they grasp just how huge those sums really are. All too often, astonishingly lavish military budgets are treated as if they were part of the natural order, like death or taxes.

    To read more, click here.

    Duck and Cover

    Once those articulate Florida high school students, God love them, are finished exposing the craven emptiness of politicians like Marco Rubio and others subverted by the NRA, they might want to turn to nuclear weapons as another sacred cow ripe for the “we call B.S.” treatment.

    The acute dangers of gun violence and nuclear weapons offer ominous parallels. Both are deadly serious issues that provoke absurd levels of avoidance and paralysis.

    To read more, click here.

    U.S. Nuclear Weapons Policy

    Trump Claims U.S. Will Stop Building Nuclear Arsenal if Others Stop First

    U.S. President Donald Trump, speaking to a gathering of governors and mayors, outlined his administration’s approach to the nuclear arms race. “We’re increasing arsenals of virtually every weapon. We’re modernizing and creating a brand-new nuclear force. And, frankly, we have to do because others are doing it. If they stop, we’ll stop.”

    Trump continued, “I hope they stop, and if they do, we’ll stop in two minutes.” He added, “We won’t lead the way, we’ll go along with them.”

    Just days earlier, Trump’s Nuclear Posture Review called for four new types of nuclear weapons: an air-launched cruise missile, a new warhead for land-based ICBMs, a “low-yield” warhead for submarines, and a submarine-launched cruise missile.

    Rebecca Morin, “Trump: U.S. Will Cease Building Nuclear Arsenal if Other Countries Stop First,” Politico, February 12, 2018.

    U.S. Cancels ICBM Test During Olympic Truce

    The United States quietly canceled a Minuteman III intercontinental ballistic missile test scheduled for February 6 or 7. The test, which would have sent a nuclear-capable missile from Vandenberg Air Force Base in California to the Kwajalein Atoll in the Marshall Islands, would have violated the spirit of the Olympic Truce, which began on February 2.

    On February 2, the Nuclear Age Peace Foundation sent a letter to Secretary of Defense James Mattis, encouraging him to postpone any ICBM tests during the Olympic Truce period. The letter stated, “If North Korea were to test an ICBM during the Olympics, many nations, including the United States, would view the act as provocative and threatening. One does not have to stretch the imagination too far to guess how North Korea might react to our testing of ICBMs during the same period.”

    Janene Scully, “Vandenberg AFB Minuteman III Test Launch Delayed Ahead of Olympics,” Noozhawk, February 6, 2018.

    Nuclear Disarmament

    UN Secretary-General Calls for New Push for Nuclear Disarmament

    Speaking at the Conference on Disarmament, UN Secretary-General Antonio Guterres called for a new global effort to get rid of nuclear weapons. He said, “Countries persist in clinging to the fallacious idea that nuclear arms make the world safer … At the global level, we must work towards forging a new momentum on eliminating nuclear weapons.”

    U.S. Ambassador Robert Wood was quick to undermine the Secretary-General’s call, saying that instead of pursuing nuclear disarmament, negotiators must “look reality in the eye.” Wood insisted that now is not the time for bold disarmament initiatives. The French and Chinese ambassadors also sought to downplay Guterres’ strong call for action.

    Tom Miles, “UN Chief Calls for New Push to Rid the World of Nuclear Weapons,” Reuters, February 26, 2018.

    New Zealand Reinstates Position of Minister for Disarmament

    New Zealand Prime Minister Jacinda Ardern has reinstated the country’s Cabinet-level position of Minister for Disarmament and Arms Control. The previous government had discontinued the position in 2011.

    Prime Minister Ardern said that the position “is an acknowledgement of the emphasis this government places on our long held anti-nuclear stance, and the role we must play now and in the future.”

    Winston Peters Given Newly-Revived Ministerial Role of Nuclear Disarmament,” TVNZ, February 26, 2018.

    War and Peace

    NAPF Advisors to Suu Kyi: “End Rohingya Genocide”

    Three Nobel Peace Laureates – Mairead Maguire, Shirin Ebadi, and Tawakkol Karman – have demanded that fellow Nobel Peace Laureate Aung San Suu Kyi take decisive action to end the genocide of Rohingya in Myanmar. Maguire and Ebadi are members of the NAPF Advisory Council.

    Speaking after visiting a Rohingya refugee camp in Bangladesh, Mairead Maguire said, “The torture, rape and killing of any one member of our human family must be challenged, as in the case of the Rohingya genocide. This is genocide. We can’t remain silent. Silence is complicity.”

    Shirin Ebadi said, “With over a million Rohingya displaced, countless dead or missing, and rape and sexual violence being used as a weapon of war, it is well past the time for the international community to act.”

    Ruma Paul, “Nobel Peace Laureates to Suu Kyi: ‘End Rohingya Genocide or Face Prosecution’,” Reuters, February 28, 2018.

    Top U.S. Diplomat on North Korea Abruptly Resigns

    Joseph Yun, a U.S. diplomat with over 30 years of experience, unexpectedly announced that he will retire effective March 2. Yun consistently encouraged dialogue with North Korea, and his absence will likely elevate the dangerous voices within the Trump administration calling for military action against North Korea.

    President Trump recently stated, “If the sanctions don’t work, we’ll have to go to phase two, and phase two may be a very rough thing. It may be very, very unfortunate for the world.”

    Ellana Lee and Joshua Berlinger, “U.S.’s Top North Korea Diplomat Announces Surprise Retirement,” CNN, February 27, 2018.

    Nuclear “Modernization”

    Trump Administration Reveals Nuclear Weapons Budget Request

    On February 23, the Trump administration released the detailed budget request for the National Nuclear Security Administration (NNSA). The NNSA is responsible for the nation’s nuclear weapons laboratories, as well as nuclear warhead maintenance, design, and production. This budget request of $15.1 billion is a 17% increase over FY2018 enacted levels, while many other government-funded programs providing benefits to society are being slashed.

    The NNSA budget is not the entire U.S. nuclear weapons program. The Department of Defense is responsible for all of the systems to deliver nuclear weapons, such as submarines, aircraft, and land-based missiles.

    Detailed NNSA Budget Accelerates Nuclear Arms Race,” Nuclear Watch New Mexico, February 26, 2018.

    Lockheed Martin Receives More U.S. Government Money than Many Federal Agencies

    In 2017, the weapons and aerospace company Lockheed Martin made $51 billion in sales. Of this, $35.2 billion was from the U.S. government. This is nearly as much money as the Trump administration proposed for the entire State Department in Fiscal Year 2019.

    Lockheed Martin is one of the world’s biggest producers of nuclear weapons components for both the United States’ and United Kingdom’s nuclear arsenals. The company regularly tops the list of corporations that receive the most money from the U.S. government.

    Christian Davenport and Aaron Gregg, “Lockheed Martin Got $35.2 Billion from Taxpayers Last Year. That’s More than Many Federal Agencies,” Washington Post, February 16, 2018.

    Nuclear Insanity

    U.S. and Chinese Officials Fight Over Nuclear Football

    During President Trump’s trip to China in November 2017, White House Chief of Staff John Kelly and a Secret Service agent tussled with Chinese Security officials over the U.S Nuclear weapons briefcase, often called the “nuclear football.” The scuffle took place during Trump’s visit to the Beijing Great Hall of the People. When the U.S. aid carrying the briefcase was denied entrance to the hall, Kelly intervened. A Chinese security guard pushed Kelly, causing a secret service agent to tackle the Chinese security personnel.

    In response to the story, the U.S. Secret Service tweeted, “FACT CHECK: Reports about Secret Service agents tackling a host nation official during the President’s trip to China in Nov 2017 are false.”

    Jonathan Swan, “Scoop: Skirmish in Beijing Over the Nuclear Football,” Axios, February 18, 2018.

    Trump Administration Pursues Deal to Build Nuclear Reactors in Saudi Arabia

    On March 1, U.S. Energy Secretary Rick Perry will meet with Saudi officials in London to discuss a deal to build nuclear reactors in Saudi Arabia. The Trump administration is considering permitting Saudi Arabia to enrich and reprocess uranium as part of a deal that would allow Westinghouse Electric Co. and other U.S. companies to build nuclear reactors in the Middle East kingdom.

    Any agreement must be approved by Congress. Senator Ed Markey, in a letter to Rick Perry and Secretary of State Rex Tillerson, wrote, “Congress remains in the dark about what exactly is being considered, why we may be re-evaluating our nonproliferation objectives and standards, and how and when this information is being conveyed to Saudi Arabia and other countries around the world.”

    Ari Natter, Jennifer Jacobs, and Jennifer Dlouhy, “Perry Plans Nuclear-Energy Talks with Saudis, Sources Say,” Bloomberg, February 26, 2018.

    Missile Defense

    Failed Missile Defense Test Cost $130 Million

    On January 31, the U.S. Missile Defense Agency conducted a test of the Raytheon SM-3 Block IIA interceptor missile system. The test, which cost taxpayers $130 million, resulted in failure.

    A similar test missile also failed to reach its target in June off Kauai when a sailor on the USS John Paul Jones accidentally pushed a button that caused the missile to self-destruct.

    Failed Missile Test Off of Kauai Costs the U.S. $130m,” Associated Press, February 21, 2018.

    Nuclear Waste

    The Poison and the Tomb

    From 1946-58, the United States conducted 67 nuclear weapon tests in the Marshall Islands. These tests included many of the biggest thermonuclear weapons ever exploded on Earth. The human and environmental consequences of U.S. nuclear testing is immeasurable, and continues to wreak havoc on this Pacific Island nation.

    On Enewetak Atoll, the U.S. bulldozed tons of contaminated soil and material into a large bomb crater. They encased it in an 18-inch thick concrete dome, and left it to the elements. The “tomb,” as the locals call it, is cracking and leaking, with no solution in sight.

    Kim Wall, Coleen Jose, and Jan Hendrik Hinzel, “The Poison and the Tomb: One Family’s Journey to Their Contaminated Home,” Mashable, February 25, 2018.

     Resources

    This Month in Nuclear Threat History

    History chronicles many instances when humans have been threatened by nuclear weapons. In this article, Jeffrey Mason outlines some of the threats that have taken place in the month of March, including the March 1, 1954 Castle Bravo nuclear test, the largest nuclear test ever conducted by the United States. At 1,000 times more powerful than the atomic bomb that destroyed Hiroshima, the Castle Bravo test caused untold devastation to the people and the environment of the Marshall Islands.

    To read Mason’s full article, click here.

    For more information on the history of the Nuclear Age, visit NAPF’s Nuclear Files website.

    Presidential First Use of Nuclear Weapons

    On November 4, 2017, Harvard University hosted a symposium entitled “Presidential First Use of Nuclear Weapons: Is It Legal? Is It Constitutional? Is It Just?” A short introductory video along with transcripts of the speeches are now available online.

    Click here to watch the six-minute introductory video.

    Click here to read the contributions from speakers, including Congressman Jim McGovern, Kenette Benedict, John Burroughs, and Zia Mian.

    Atomic Homefront Streaming Free

    The powerful documentary film “Atomic Homefront” is about the oldest nuclear weapons wastes of the Atomic Age, from the Manhattan Project in the early 1940s, and the St. Louis, Missouri community’s response to living amidst such risks. The radioactive wastes were illegally dumped at West Lake Landfill in the early 1970s. Located in the Missouri River floodplain, radioactive contaminants have leaked out of West Lake Landfill for decades, flowing with wind and water into surrounding neighborhoods. An underground fire, smoldering for years in an immediately adjacent municipal garbage dump, is now burning within hundreds of feet of the radioactive waste, and has dramatically exacerbated concerns.

    Atomic Homefront is streaming free on HBO through March 18. Click here to watch it.

    TEDx Talk by Atmospheric Scientist Brian Toon

    Brian Toon, a professor in the Department of Atmospheric and Oceanic Sciences at the University of Colorado-Boulder, has been studying the effects of nuclear war for 35 years. In this TEDx talk, he explains how even a small nuclear war could destroy all life on Earth, and what we can do to prevent it.

    Click here to watch the video.

    Don’t Bank on the Bomb Coming March 7

    The 2018 edition of the “Don’t Bank on the Bomb” report will be released on March 7. The report details the many companies around the world involved in the production of nuclear weapons, as well as the institutions that finance the nuclear weapon producers.

    The report also highlights financial institutions that have decided to implement explicit policies not to finance companies that produce nuclear weapons.

    For more information on the report, click here.

    Foundation Activities

    March 7 Webinar: Women Waging Peace

    On March 7, the eve of International Women’s Day, please join us for a free webinar featuring our 2018 Kelly Lecturer, Christine Ahn, and NAPF Advisor Medea Benjamin. These outstanding peace leaders will join us live to talk about the indispensable role of women in building peace in Korea and around the world.

    The webinar will take place from 12:30 – 1:00 p.m. Pacific Time. It is free to participate. To register, click here.

    2018 Swackhamer Disarmament Video Contest

    The 2018 Swackhamer Disarmament Video Contest is accepting entries through April 1. The contest is free to enter and is open to people of all ages around the world. The topic of this year’s contest is “Creating a Nuclear-Free Future: The Role of Young People.”

    Contestants will make videos of 2 minutes or less about the role that young people have in abolishing nuclear weapons. It can be what they or other young people are doing now, or an idea of what they think can be done.

    For more information and complete instructions on how to enter, go to www.peacecontests.org.

    Preventing War: Crisis and Opportunity with North Korea

    On March 7, 2018, Christine Ahn will deliver the Nuclear Age Peace Foundation’s 17th Annual Frank K. Kelly Lecture on Humanity’s Future. Ahn’s lecture is entitled “Preventing War: Crisis and Opportunity with North Korea.”

    Christine Ahn is the Founder and International Coordinator of Women Cross DMZ, a global movement of women mobilizing to end the Korean War, reunite families, and ensure women’s leadership in peace building. She is co-founder of the Korea Peace Network, Korea Policy Institute and Global Campaign to Save Jeju Island.

    The event is free and open to the public. The lecture will begin at 7:00 p.m. at the Karpeles Manuscript Library, 21 W. Anapamu Street, Santa Barbara, CA 93101. For more information, click here.

    Quotes

     

    “When will our consciences grow so tender that we will act to prevent human misery rather than avenge it?”

    Eleanor Roosevelt. This quote appears in the book Speaking of Peace: Quotations to Inspire Action, which is available to purchase in the NAPF Peace Store.

     

    “In our hearts we know that we can never use these bombs, and therefore to own them and to perpetuate the myth of deterrence is a moral failure.”

    The Rt Revd Stephen Cottrell, Bishop of Chelmsford, speaking at a debate on nuclear weapons in the House of Lords (UK).

     

    “They will find out in about 30 minutes.”

    Gen. John Hyten, Commander of U.S. Strategic Command, when asked whether Russia could distinguish a low-yield from a high-yield nuclear weapon before it explodes.

     

    “The only role the UC really plays is to provide a fig leaf of academic cover to the creation of weapons of mass murder.”

    Jackie Cabasso, Executive Director of Western States Legal Foundation, talking about the University of California’s management of the United States’ nuclear weapons laboratories.

    Editorial Team

     

    Natalie Aldrich
    Joy Ferguson
    David Krieger
    Lauren Lankenau
    Carol Warner
    Rick Wayman

  • The Use and Misuse of the Language of Self-Defense

    This article is part of a series from the November 2017 Harvard University conference entitled “Presidential First Use: Is it legal? Is it constitutional? Is it just?” To access all of the transcripts from this conference, click here.

    Is the first use of nuclear weapons just? Is it morally right? This question applies not only to presidential first use but to first use by any state or non-state actor. Here is an ancient motto that has recently taken on an ominous new meaning: Fiat iustitia, pereat mundus (“Let justice be done, though the world perish”). Sometimes this motto is phrased as Fiat iustitia, ruat caelum (“Let justice be done, though the heavens fall”). Both versions urge that you should do what is right no matter how horrendous the consequence might be.

    In the 16th century the Holy Roman Emperor Ferdinand I chose that first motto and used it as his armies fought the invading forces of the Ottomans led by Suleiman the Magnificent. Ferocious as those battles were, however, Ferdinand could never have imagined that the world would in fact perish as a result of his fighting what he thought was a just war.

    Since Hiroshima and Nagasaki, the metaphors of the world perishing or the heavens falling have taken on far more literal meanings. When we think about justice and war, three main views prevail. One is the so-called realist view that war is hell, that justice is not an issue in war and never has been. The second is the pacifist view that wars are never just. The third is Just War Theory, which argues that there can be morally acceptable wars if they are waged for justifiable purposes such as national self-defense, but only if going to war is the last resort, and if war never explicitly targets noncombatants or uses inhumane weapons. Nuclear war cannot meet any of the conditions for a just war, because it would obliterate the distinctions between self-defense and aggression, combatants and noncombatants, and more or less inhumane weapons.

    Michael Walzer, in his book Just and Unjust Wars, put it this way: “Nuclear weapons explode the theory of just war.” Any use of nuclear weapons is unjust because it endangers vast numbers of civilians and employs the most inhumane of weapons. Any first use of such weapons is precisely not launched as a last resort. Can we say the same, however, about policies that merely warn of or threaten the resort to nuclear weapons?

    Proponents of first use argue that there should be no moral constraints on what a nation can do or threaten in self-defense and that threatening to use nuclear weapons is quite different from actually doing so; in their view, such threats are a form of deterrence. Ordinary moral constraints should allow for limited exceptions as a last resort when self-defense is at issue. Invoking self-defense as justification for going to war rests on a longstanding analogy between nations defending themselves and individuals doing so by means of violence as a last resort if need be.

    But we need look no further back than to the wars in Vietnam and Iraq to see misuses of that language of self-defense. Those misuses led the United States and other nations to violate the most basic moral constraints regarding engaging in war as a last resort and in a way that spares civilians and prohibits inhumane weapons.

    Just as wagers of wars past once took for granted that God was on their side, so self-defense and national security are invoked today even for aggressive ventures far beyond national borders. Such actions are hardly analogous to what an individual might rightfully do as a last resort when faced with direct assault. Indeed, the ferocity of today’s weapons and the genuine threat those weapons pose to national survival now lead governments often to argue that every action they take to reinforce their own power or to diminish that of their enemies contributes to self-defense.

    During the 1980s, when the world lived with a balance of terror, the North Atlantic Treaty Organization (NATO) insisted on retaining a policy of first use. The member nations argued that nuclear deterrence by itself might not suffice if Soviet conventional forces moved into Europe. NATO’s only way to guard against such a move would be to rely on the threat of first use of nuclear weapons. At the same time, there was growing unrest in Europe, caused by the fear that the great powers intended Europe to be the theater where they would clash. Peace movements were mobilizing, calls were made for more complete test bans, for nuclear-free zones, for the elimination of the use of cruel weapons and cruel methods of warfare, and for the rejection of first-use policies.

    In 1982 McGeorge Bundy, George Kennan, Robert McNamara, and Gerard Smith published an influential article that urged that the time had come for NATO to reconsider the policy of first use. “We think a policy of no-first-use, especially if shared with the Soviet Union, would bring new hope to everyone in every country whose life is shadowed by the hideous possibility of a third great twentieth-century conflict in Europe—conventional or nuclear.” Thirty-five years later, the fear of a third great conflict to which they referred as a hideous possibility has returned.

    Kofi Annan, secretary general of the United Nations from 1997 to 2005, recently recalled his feeling of great relief at the collapse of the Berlin Wall in 1989, the sudden sense that, “with the end of the Cold War, the UN could do what it was set up to do, without one country vetoing the other”; world leaders would realize that “cross-border cooperation was the only way to solve crises.” Yet now, Annan said, “we seem to be back to where we were in ’89.” He added that men in high places “don’t always seem to understand the risks we are all in,” and warned: “All that we need is one miscalculation … and all bets are off.”

    That same sense of urgency and high risk was expressed by the Norwegian Nobel Committee when awarding the 2017 Nobel Peace Prize to the International Campaign to Abolish Nuclear Weapons (ICAN). The Nobel Committee’s citation explained that “we live in a world where the risk of nuclear weapons being used is greater than it has been for a long time.” The number of states with nuclear weapons has increased and so has the intense distrust among nuclear adversaries. There is greater risk than ever that nuclear weapons might be launched accidentally, in error, or utterly irrationally. Just as the popular movement in Europe contributed to public debate and to bringing about change during the 1980s, so ICAN is today joining with environmental and other kinds of groups to achieve a treaty-based prohibition of nuclear weapons.

    By drawing attention to the catastrophic consequences for the peoples of the world of any use of nuclear weapons, these groups aim to raise awareness of what genuine concern for collective self-defense calls for on the part of the peoples around the world. This is a use of the language of self-defense that we need to support: the collective self-defense of all the people who might be the victims of horrendous nuclear catastrophe. As President Reagan and General Secretary Gorbachev jointly declared in 1985: “A nuclear war cannot be won and must never be fought.”

  • Democracy, Hypocrisy, First Use

    This article is part of a series from the November 2017 Harvard University conference entitled “Presidential First Use: Is it legal? Is it constitutional? Is it just?” To access all of the transcripts from this conference, click here.

    I’m an anthropologist. In my view, what holds the arms race in place and keeps it going is what Elaine Scarry has called a “mental architecture.” That mental architecture makes it seem natural and normal to many that tens of thousands of nuclear weapons exist on hair-trigger alert. How did that mental architecture arise?

    For over 30 years now, I’ve been in dialogue with nuclear-weapon scientists at both the Lawrence Livermore National Lab and the Los Alamos National Lab. If you’re an anthropologist, you always try to be sympathetic to the people you study, to explain to others how their worldview makes sense. Many of these scientists have become friends whom I like and respect. But my writing about these scientists, and about American nuclear culture more generally, also asks how beliefs that seem to me mythical and profoundly mistaken became for weapons professionals and for the broader American public what the French social theorist Roland Barthes calls “falsely obvious.”

    Two of these myths are widely subscribed to by both liberals and conservatives. The two myths purport to explain why some countries can be trusted with nuclear weapons and some can never be, and lead many to believe that nuclear weapons protect a liberal democratic international order. They also lead many to take it for granted that the president of the United States can condemn North Korea for testing a missile the very same week that the US tests a ballistic missile, and no one says, “Wait a minute, isn’t that hypocritical? Isn’t there a double standard there?”

    The first myth is that the US is a democracy in the fullest sense of the word, and that nuclear weapons protect this democracy. When I say to my students, “You know the US is not really a democracy, right?” they say “You’re crazy, Professor.” They won’t even argue about it, because to them it’s obvious the US is a democracy.

    What is a democracy? The Oxford English Dictionary definition is it’s “government by the people; that form of government in which the sovereign power resides in the people as a whole and is exercised either directly by them as in small republics of antiquity or by officers elected by them.”

    The US Constitution states that “Congress shall have power to declare war, grant letters of marque and reprisal, and make rules concerning captures on land or water.” The OED definition and the US Constitution make clear that in a democracy, one autocratic figure should not have sole authority to declare war. But in reality, as President Nixon famously told a group of congressmen, “I can go in my office and pick up a telephone, and in 25 minutes, millions of people will be dead.” A president of the United States made that boast—there is nothing less democratic. As Elaine Scarry says, “A momentous shift in the nature of government, the home population’s power of and responsibility for self-defense, has been lifted away from them and condensed into the head of government.”

    The second myth is that the US is a modern country with the maturity and rationality to possess nuclear weapons, unlike developing countries, and unlike countries in the Global South. I call this way of looking at the world nuclear orientalism. It characterizes countries in Asia, Africa, Latin America as too infantile, too immature, and too irresponsible to be trusted with nuclear weapons.

    Nuclear orientalists—that is to say, most of us—see developing countries as lacking the democratic self-control required of nuclear powers. They present developing countries as seeking nuclear weapons for vanity or to gain attention and not for legitimate reasons of self-defense. And they believe that fanatics are more likely to control nuclear weapons in developing countries, especially Muslim countries, than in developed ones.

    The frame of nuclear orientalism takes it for granted that Muslim leaders could destroy the world in a fit of fanaticism. Here are some examples, deliberately chosen from both the left and the right. At the Livermore Lab, where I did my fieldwork, I was given a pamphlet that stated, “Smaller nations with deep-seated grievances against each other may lack the restraint that was exercised by the US and the USSR.” Here is Kenneth Adelman, who was an official in the Reagan Administration: “The real danger comes from some miserable Third World country which decides to use these weapons either out of desperation or incivility.”

    These comments take it as given that Third World countries are not like us. In that same spirit here is a very recent example from Forbes magazine: “Nuclear weapons are one of those sovereign rights that should not be granted to autocratic leaders. Because of this adherence to core values, global public opinion trusts Western democracies to have nuclear weapons and to use them in a defensive manner.” By contrast, the author of the Forbes article points out that “North Korea’s sovereignty inheres in just one man.” But remember Richard Nixon’s boast that he could exercise a similarly autocratic sovereignty.

    Many of these discussions assume that public opinion has a greater force in the West than in developing countries. For example, Bill Potter, a liberal arms control analyst at the James Martin Center for Nonproliferation Studies, has written, “Adverse domestic opinion may also serve as a constraint on the acquisition of nuclear weapons by some nations. Japan, West Germany, Sweden, and Canada are examples of democracies where public opposition could have a decided effect on nuclear weapons decisions. … The fear of adverse public opinion, on the other hand, might be expected to be marginal for many developing nations without a strong democratic tradition.”

    What I find fascinating about an expert on nuclear weapons and nuclear history writing this is that Britain, France, and the United States all made the decision to acquire nuclear weapons with absolutely no democratic debate. There was no debate in the public sphere, nor in those countries’ legislatures. These decisions were not subject to democratic decision making, yet even highly informed people continue to take it, falsely, as obvious that they were and are.

    And consider US media coverage of India’s and Pakistan’s nuclear tests in 1998. Michael Krepon, the liberal cofounder of the Stimson Center, said that India’s tests “weren’t done for security purposes,” despite the fact that India has a nuclear-armed China on its border. Instead, he said, India tested nuclear weapons “for reasons of domestic politics and national pride. … We have street demonstrations to protest nuclear weapons. They have them to celebrate them.” In other words, the US is serious, India is frivolous.

    More recently, the New York Times opined, using language usually reserved for children: “Maybe North Korea is just jealous of all the attention that Iran has been getting as a result of Tehran’s recent nuclear bad behavior and craves a spotlight of its own.” Nor is the New York Times alone in this view: “Whenever the North Koreans act up, one has to assume in part at least that they are trying to get the world’s attention.” That’s from Robert Einhorn, who was special advisor on nonproliferation and arms control to the secretary of state from 2009 to 2013. Cartoons often make these assumptions even more visceral; many portray Kim Jong-un as a child who wants attention and can’t be trusted with nuclear weapons.

    Today, our mental architecture is being destabilized because the US has a president who disturbingly resembles the most cartoonish versions of Kim Jong-un; Trump also seems like a child who wants attention and can’t be trusted. The dichotomy between a responsible, mature, rational, democratic United States and autocratic, impulsive, childish, irresponsible North Korea, Pakistan, Iran, or India is breaking down. Since President Trump won the election, students in my classes have begun to say things that they would not have said before. They are starting to ask, “He couldn’t just use the weapons on his own, right? There must be some way of constraining him?” I have to tell them that, in theory at least, he can use the weapons on his own.

    Students who used to reject out of hand my arguments about nuclear orientalism are now giving them a second look in the era of Trump, who made comments like this one in a speech to the United Nations: “The United States has great strength and patience but if it is forced to defend itself or its allies we will have no choice but to totally destroy North Korea. Rocket Man is on a suicide mission for himself.” This is an open boast from the president of the United States that he is considering committing genocide.

    If we want to move toward a better, safer world, we have to start to realize that Americans have no monopoly on maturity and rationality. We should look in the mirror of Donald Trump and ask ourselves what it says about the United States that it was capable of electing such a human being as president. We should question our own smugness about how safe nuclear weapons are in our leader’s hands. Given that any country can end up with an irrational, autocratic leader at some point, the only world safe from nuclear war is a world where nuclear weapons have been abolished.

  • Nuclear Weapons Use in South Asia

    This article is part of a series from the November 2017 Harvard University conference entitled “Presidential First Use: Is it legal? Is it constitutional? Is it just?” To access all of the transcripts from this conference, click here.

    My topic is nuclear weapons in South Asia. The United States was the first nation to build nuclear weapons, and the US first use of nuclear weapons was itself their first ever use. The United States was not under imminent threat of attack when they used nuclear weapons on Japan. The US explained the atomic bomb to the world as a weapon of awesome power that was harnessing the power of the sun and as the future of warfare. No wonder others wanted it. If the United States could use this weapon and claim that it turned the tide of war, then they wanted it too. This lesson took root in South Asia and today both India and Pakistan have nuclear weapons.

    The image above was taken by an astronaut. The bright yellow line snaking up the middle is the border between India on the right and Pakistan on the left. The bright shiny spot way at bottom left is the city of Karachi, population roughly 20 million. Imagine the distance from that city of 20 million people to the border with India (it is at most a few hundred miles). It would take a missile three hundred seconds to fly from an Indian military base to a target in Pakistan and vice versa. By the time Pakistan or India knows that the missile is coming, the better part of a hundred seconds is already gone. That leaves you two hundred seconds to figure out what’s happening. Is it real? What do we do? Who decides? Two hundred seconds. You can almost hold your breath for that long. Almost.

    The Indians and the Pakistanis have tried to put in place systems to manage decision-making about nuclear weapons, but those systems are completely removed from reality. On paper, they have very proper procedures about who will be the members of the committee that will decide whether to launch a nuclear attack. Those committees are chaired by prime ministers or their designated appointees; they include cabinet ministers and generals who are supposed to decide collectively. But could you gather them together or even on the phone in two hundred seconds in the middle of the night in a crisis situation?

    In the Pakistani case, the fantasy of having a prime minister chair the committee that will decide about the use of nuclear weapons beggars belief. In any committee where the prime minister of Pakistan and the chief of the army sit at the same table, it will not be the prime minister who gets to decide. Pakistan has had three periods of military dictatorship, and those periods of military dictatorship saw the beginnings of nuclear program in the 1950s and 1960s, the achievement of a rudimentary nuclear weapons capability in the early 1980s, and the establishment of a large nuclear arsenal with an array of missiles in the early 2000s. The Pakistan army is used to being in charge of everything that matters when it comes to warfare, and prime ministers know to get out of the way.

    The Pakistani plan for the use of nuclear weapons is the first use of nuclear weapons as a deliberate strategy. Their nuclear strategy is that if they are in a war with India, they will turn a conventional war into a nuclear war as soon as they fear they are losing the conventional war. And Pakistani decision-makers expect to lose, unless there is international intervention, because the Indians have more soldiers and more tanks. The Indian response to this has been that if Pakistan uses nuclear weapons against their soldiers anywhere, including on the Indian side of the border, then they will launch massive retaliation. The Indian position is not that they will use nuclear weapons first, but that if those weapons are used against them, the Indian response will not be proportionate. If you attack our soldiers, then we destroy your cities.

    I recently debated a retired Indian vice admiral who had been in charge of India’s nuclear weapons and asked him about the following scenario. Suppose that Pakistan uses a nuclear weapon against some Indian soldiers and tanks in the desert because Pakistan thinks they are going to lose the battle here. Is India going to massively retaliate against Pakistani cities? Is India going to kill millions upon millions of civilians because Pakistan kills some soldiers and destroys some tanks? (Nuclear weapons, by the way, are not very good at destroying tanks.) He said, yes, we will destroy Pakistani cities because that is the only way to deter.

    Where did this insanity come from? It began when the United States was trying to recruit allies in the Cold War. Indian leaders said no. The US then asked Pakistan’s leaders to become allies, and they agreed, in exchange for guns and funds. The US sent both. In the 1950s, the US expected the next war to be against the Soviet Union and to go nuclear. The US military sent a Nuclear Warfare Team to Pakistani military training academies to teach them how to fight a nuclear war. American military planning in the 1950s for the fighting of the next war envisaged the early use of tactical nuclear weapons against Soviet forces, because of the belief that the Soviets would overwhelm the US in any conventional war.

    Little has changed. Now, instead of relying on American nuclear weapons, the Pakistanis have built their own and plan to use them based on the lessons that the Americans taught them so long ago. The Pakistani military will control decision-making on the use of nuclear weapons in South Asia. Because India has overwhelming conventional force, its stated policy is against first use of nuclear weapons. The Indian military by and large doesn’t particularly like this idea. They want to be able to go first. But Indian politicians have held the line against first use, at least so far.

    Until the United States changes how it thinks about nuclear weapons, it’s very hard to imagine any other nuclear-weapons state rethinking its position on their use. If you are an anti-nuclear activist talking to leaders in Pakistan or in India they will tell you, look, if the Americans think they need nuclear weapons, surely we do; if the Americans think that they need to use nuclear weapons first, then surely we should be able to do so too. The future of nuclear decision-making in all the other nuclear-weapons states hinges on how the United States begins to think about changing its policy.

    There is now a new international treaty open for signature to prohibit nuclear weapons and the threat of their use. The world believes by and large that the use of nuclear weapons is not acceptable (122 countries out of the 192 members of the United Nations supported the new treaty). The debate about the use of nuclear weapons needs to begin with the understanding that the threat and use of nuclear weapons would be a crime against humanity and a crime in international law. Any policymaker willing to make the decision to use nuclear weapons or threaten their use should be considered an international war criminal.

  • Presidential Lawlessness

    This article is part of a series from the November 2017 Harvard University conference entitled “Presidential First Use: Is it legal? Is it constitutional? Is it just?” To access all of the transcripts from this conference, click here.

    We need to construct a credible legal institution within the executive branch to constrain the president’s unilateral war-making powers and insist that he gain the consent of Congress before making any use of nuclear weapons. This is required both by the Constitution and by the War Powers Act of 1973. Up through the 1970s, the Office of Legal Counsel (OLC), in the Justice Department, served this crucial function as legal guardian. Its elite staff of 30 civil service lawyers were charged with writing opinions on contested issues of law within the executive branch. A special statute specifically made these opinions binding on the military. This law remains on the books, but the OLC no longer credibly operates as the executive branch’s legal conscience.

    Until the Nixon Administration, the OLC generally had only one political appointee, the assistant attorney general, who was in charge of the office. The hard work of opinion writing was executed by those 30 civil service lawyers, who had a deep understanding of the legal traditions established by generations of executive branch practice. Nowadays, career lawyers are very much in the minority, and high-powered political appointees often take the lead in opinion writing. While executive branch traditions continue to play a role, many OLC opinions now look more like advocate’s briefs for the sitting president than balanced assessments of applicable statutes and doctrines.

    Worse yet, even these partisan opinions no longer play the authoritative role once accorded to the OLC. Instead, the Office of White House Counsel now calls the shots on issues high on the president’s agenda. This rival team of high-powered lawyers did not even exist until 1969, when John Dean was appointed counsel to the president. Before that moment, the White House counsel was a position reserved for one of the president’s trusted political advisors. The counsel’s legal tasks were so minimal that he did not need a legal staff to help him out.

    Dean was only 31 years old when he took up the position of White House counsel. Since he was far too young to assume the counsel’s traditional function as senior advisor, he hired four staff lawyers to take the legal side of the job seriously. This experiment had an inauspicious beginning, since Dean and his staff played a critical role in the Watergate cover-up. But over the next decades, the White House counsel’s office escaped from its scandalous beginnings, and is now slightly larger than the OLC. Moreover, its 35 or 40 positions are swept clean with every administration, in favor of a whole new set of high-powered lawyers, whose principal qualification is their long-standing support of the sitting president and his policies.

    Given the constant turnover, the White House counsel’s office has no institutional memory, and many of the appointees don’t have much personal experience with any number of crucial areas that raise fundamental legal issues. For example, Robert Bauer was the White House counsel at the time of the war against Libya. He had been a lawyer for the Democratic National Committee and a personal lawyer to President Obama. He knew very little about national security law. Yet he intervened decisively on the question of whether the president was required to gain Congressional approval for his bombing campaign against Libya in 2011.

    Obama refused to do so, fearing that Congress would say no. But the War Powers Act of 1973 was designed with precisely such a case in mind. It provides that if the president fails to gain Congressional authorization within 60 days of initiating hostilities, he must cease all military operations within the next 30 days. As the 90th day approached, the Office of Legal Counsel began preparing an opinion that took the statute seriously and advised the president that he should stop bombing.

    In response, Bauer told the OLC to stop work on its opinion, and began to search the executive branch for another legal office that would write a legal-looking opinion that came out with the opposite answer. His quest led him Harold Koh, the State Department’s legal adviser, who obliged with a highly creative “interpretation” of the statute that allowed the president to keep on bombing past the 60–30 day deadline.

    The “Bauer-Koh” moment marked the total disintegration of the OLC’s function as legal guardian. From then on, the OLC was on notice that if it did not give the president what he wanted, his White House counsel would suppress publication of their opinions and find a different executive branch lawyer to back the president up.

    The rule of law suffered yet another body blow, in 2014, when President Obama embarked on a sustained campaign against the Islamic State, on September 10. This time around, the administration issued no opinion at all within the 60–30 day period that even purported to justify its escalating war against ISIS. It merely asserted that the Congressional authorizations for the use of force against Al Qaeda in 2001 and Saddam Hussein in 2002 should be expansively interpreted to authorize Obama’s war against ISIS in 2014.

    I represent Captain Nathan Smith, who has served as an intelligence officer in the command headquarters in the ISIS war, in a lawsuit. That suit charges that Obama’s bare assertions of authority, recently reasserted by the Trump Administration, cannot survive serious legal scrutiny, and that the ongoing military campaign against ISIS is illegal under the War Powers Act. Smith vs. Trump is presently under consideration by the Court of Appeals for the DC Circuit, and may well go to the Supreme Court for final resolution. A victory in this case would be a large step forward in vindicating Congress’s constitutional authority as the ultimate arbiter on the question of war and peace.

    Nevertheless, even a favorable Supreme Court decision won’t be enough to stop Trump or future presidents from waging unilateral wars during the long years that future Captain Smiths will need to convince future justices to intervene decisively in the name of the rule of law. America needs a powerful legal guardian within the executive branch to take the plain language of the War Powers Act seriously, and tell the president, in published opinions, that he must stop his unilateral military campaigns at the 90-day limit, or else breach his constitutional obligation to “take care that the laws be faithfully executed.” Such a pronouncement could well trigger the inauguration of impeachment proceedings, and only a particularly foolhardy or self-righteous president would choose to treat the guardian’s words with impunity.

  • International Law and First Use of Nuclear Weapons

    This article is part of a series from the November 2017 Harvard University conference entitled “Presidential First Use: Is it legal? Is it constitutional? Is it just?” To access all of the transcripts from this conference, click here.

    John BurroughsInternational law is part of the law of the land in the United States under the Constitution and decisions of the Supreme Court. The Department of Defense acknowledges that military operations must comply with the international law of armed conflict. The question of how international law applies to first use of nuclear weapons is therefore highly pertinent.

    The use of force of any kind is permitted under the United Nations Charter—a treaty to which the United States is a party—in only two circumstances: when directed or authorized by the UN Security Council or in the exercise of individual or collective self-defense in response to an armed attack. It is worth stressing that Security Council resolutions regarding the North Korean situation contain no hint of an authorization of use of force. On the contrary, they emphasize the primacy of diplomacy backed by sanctions.

    Since the George W. Bush administration, the United States has also had a doctrine permitting preemptive attacks in self-defense against serious threats, particularly threats related to weapons of mass destruction. This is essentially a doctrine permitting preventive war, although its proponents tend to avoid that term. Under Article 51 of the UN Charter and international law, the extent to which preemptive attacks are permitted is controversial. At the most, globally the majority opinion is that they are legal when in response to the early stages of an armed attack by the enemy. Anything beyond that is in my view an illegal preventive war.

    Is the first use of nuclear weapons legal under international law? I begin my analysis with broad requirements of necessity and proportionality, applying particularly to the initiation of war but also throughout its conduct. Those requirements are inherent in a rational and lawful approach to war, an approach that seeks to avoid conflict and, when it occurs, to limit its extent and to make possible the restoration of peace.

    The requirement of necessity in a sense speaks for itself. Military action must involve the application of the least amount of force required for purposes of self-defense. If a less destructive option is available for responding to an attack, it must be chosen. This has obvious implications for the choice between nuclear weapons and conventional weapons.

    Under the requirement of proportionality, the force employed in responding to an attack must not be excessive in relation to the scale of that attack. It must also be rationally related to the purposes of self-defense. When it comes to nuclear weapons, it is especially important that the risk of escalation is part of the proportionality calculus, as the International Court of Justice held in its 1996 Advisory Opinion. The implications are clear for first use of nuclear weapons against a nuclear-armed enemy.

    Next, consider legal requirements applicable to particular military operations. A 2013 Report on Nuclear Employment Strategy submitted to Congress by the secretary of defense stated: “The new guidance makes clear that all plans must also be consistent with the fundamental principles of the Law of Armed Conflict. Accordingly, plans will, for example, apply the principles of distinction and proportionality and seek to minimize collateral damage to civilian populations and civilian objects. The United States will not intentionally target civilian populations or civilian objects.”

    It is certainly to the good that the United States accepts that under the principle of distinction, civilians and civilian infrastructure may not be attacked. But what is missing is an acceptance of the prohibition of indiscriminate attacks. The essentials of that prohibition are well stated in a 2007 Joint Chiefs of Staff publication: “Attackers are required to only use those means and methods of attack that are discriminate in effect and can be controlled.” (my emphasis).

    The omission of the prohibition of indiscriminate attacks in the above-cited 2013 guidance probably reflects the fact that it is extremely difficult, if not impossible, for nuclear weapons to be used in a way that is “discriminate in effect” and “controlled.” That consideration played a key role in the International Court of Justice’s 1996 Advisory Opinion, which stated that under the fundamental principle of distinction, states must “never use weapons that are incapable of distinguishing between civilian and military targets.” The Court found that “in view of the unique characteristics of nuclear weapons,” their use “seems scarcely reconcilable with respect” for that requirement.

    In addition to distinction, the 2013 Defense Department guidance also accepts the requirement of proportionality. This should be understood as the requirement of proportionality in attack, as distinguished from the general requirement of proportionality in the exercise of self-defense I discussed earlier. The requirement of proportionality in attack essentially requires that the collateral injury and damage caused by an attack not be disproportionate to the expected military advantage.

    Because it involves a balancing of costs and benefits, the requirement of proportionality in attack as such may not be understood to rule out all possible uses of nuclear weapons. Imagine a situation in which an enemy is believed to be on the verge of launching nuclear forces and it is believed that only a preemptive nuclear attack can prevent or limit such a launch.

    This scenario first of all demonstrates why nuclear-armed states must avoid going to war. From a legal standpoint, it remains the case that even if a proportionality calculus is believed to justify use of nuclear weapons, it is unlawful under the prohibition of indiscriminate attacks.

    Let me mention other rules significant in this context. They are included in the preamble to the Treaty on the Prohibition of Nuclear Weapons, adopted at a UN Conference in July 2017. The preamble states that the parties base themselves on “rules of international humanitarian law,” which is at the core of the law of armed conflict. In addition to the ones I have discussed, these include the rules on “precautions in attack, the prohibition on the use of weapons of a nature to cause superfluous injury or unnecessary suffering, and the rules for the protection of the natural environment.” The preamble also reaffirms that “any use of nuclear weapons would also be abhorrent to the principles of humanity and the dictates of public conscience.” Those are factors with legal value in international law. The International Campaign to Abolish Nuclear Weapons, which is very good at advocacy, has emphasized “principles of humanity” in explaining the prohibition of use.

    The nuclear-weapons-prohibition treaty will enter into legal force when 50 states have ratified it, probably in the next year or two. It will gain increasing authority as a statement of international law binding all states, including nonparties, as its number of parties grows over the years.

    In conclusion, the first use of nuclear weapons is at least generally contrary to international law. I say “at least generally” to acknowledge that skeptics love to trot out marginal scenarios where use arguably could be justified, as against a rogue nuclear-armed submarine. First use is also irrational—regardless of the particularities of a given situation—because it would open the door to further uses in other situations and promote proliferation.

    The rules I have discussed here also apply to second use of nuclear weapons. It is sometimes asserted that second use would be justified under the doctrine of reprisals. But what that doctrine permits is more restrictive than is generally understood.

    The most far-reaching conclusion, which I endorse, is that use of nuclear weapons should never be contemplated in a conflict situation. A more conservative conclusion, in line with existing US doctrine, is that there should be an extremely high threshold for even considering use of nuclear weapons, including with respect to the option of second use. Further, in determining such matters as targets and lethality requirements, minimization of civilian casualties should be an overriding factor, for example by selecting targets in nonurban areas in any second use scenario.

    What are the implications for presidential first use? I support the approach of requiring congressional approval, both for engaging in war generally and for first use of nuclear weapons. I suggest that the requirement of complying with international law be written into the legislation.

    In an ongoing conflict, where there may be pressures for quick decisions, as in a preemption situation, involvement of the entire Congress may be viewed as impractical. So additional approaches should be considered: for example, a body including the president, some officials, and some members of Congress that would make decisions when speed is deemed necessary. Provision should be explicitly made for the involvement of lawyers charged with upholding compliance with international law.

  • Congress and the Citizenry

    This article is part of a series from the November 2017 Harvard University conference entitled “Presidential First Use: Is it legal? Is it constitutional? Is it just?” To access all of the transcripts from this conference, click here.

    Citizens have always been at the forefront of reducing the risks of nuclear weapons. In the 1980s, the US nuclear freeze movement and the Committee on Nuclear Disarmament in Europe arguably helped to end the Cold War and subsequently reduce US and Soviet arsenals by 80 percent. Before that, in the 1950s, a citizens’ movement aimed to stop atmospheric nuclear testing. Doctors had found strontium 90 from radioactive fallout in babies’ teeth and in mothers’ breast milk. Citizens, outraged that weapons testing programs could harm them directly, came out on the streets to protest, resulting in the 1963 Limited Test Ban Treaty.

    Even before the first test of an atomic bomb, near the end of World War II, a movement of citizen scientists was born at the University of Chicago in 1945. The scientists who helped build the atomic bomb understood that these weapons could incinerate masses of people and cause untold damage. Led by James Franck, they wrote a report to the government arguing that these indiscriminate weapons should not be used on civilians, and that before dropping them, they should first be tested in a demonstration to show the Japanese leadership how terrible they were. These scientists also established the Bulletin of the Atomic Scientists, to publish information about nuclear weapons so that citizens could understand the dangerous consequences of this new form of energy.

    Most recently we’ve seen another private group of citizens, nongovernmental organizations allied as the International Campaign to Abolish Nuclear Weapons, organize the world to devise a new treaty that would ban nuclear weapons under the auspices of the United Nations. For their efforts, the Campaign received the 2017 Nobel Peace Prize.

    Citizens have had enormous success in reducing the risks from nuclear weapons, but until very recently, with the introduction of the Lieu-Markey bill to prohibit presidential first use of nuclear weapons, it has been difficult to see how Congress has actually attempted to check the executive power to build and potentially use nuclear weapons.

    What has prevented Congress in the past from acting on clear citizen preferences for nuclear weapons reduction? Experts offer two reasons why congressional members have been kept from having a say in nuclear weapons policy.

    The first is speed. Experts suggest that in order to retaliate against a surprise attack or even to deter a surprise attack, leaders need to act very quickly, and that the executive and the military are the only entities able to do that. Congress is a deliberative body set up to take many views into account, and, the argument goes, a legislature cannot possibly respond quickly to a dire emergency.

    The second is secrecy. Since the development of the bomb, the expert community and the military have tried to prevent enemies from learning about our plans. The irony is that our enemies quickly managed to get that information. In reality, secrecy has never been maintained. The Russians tested their first nuclear weapon in 1949 and their first thermonuclear weapon in 1955. The knowledge was there, and there wasn’t much being kept from them.

    On the other hand, secrecy has prevented citizens and their representatives from gaining the knowledge we need about nuclear weapons capabilities and costs; about war plans; and about mistakes and accidents. This secrecy further empowers the executive branch. Citizens and their representatives are kept in the dark, our enemies know a lot, and the executive enlarges its power.

    The result of all of this is that the people have no voice in the most significant decision the United States president can make: whether to destroy another society with weapons of mass destruction and in turn risk us being destroyed ourselves. Elaine Scarry brilliantly and rightly calls this a “thermonuclear monarchy”; Garry Wills refers to it as “Bomb Power.” Robert Dahl, a political scientist from Yale, in his 1985 book Controlling Nuclear Weapons, argued that these policies treat citizens as children who, lacking expertise and knowledge, have no right to participate in how nuclear weapons are developed and deployed. He suggests that this turns the people into wards of the state who can exercise only the rights assigned to them by the “guardians of the arsenal.”

    Without congressional deliberation and citizen participation in the gravest decisions of life and death, democracy is greatly diminished. Indeed, can we even call ourselves a democracy at all when our rights to life and liberty are so abridged? If citizens and our elected representatives cannot make decisions about the most fundamental and consequential issues of war and peace, life and death, then we are disempowered and delegitimized.

    What are the remedies? We can begin by reducing the speed at which these decisions are made. There is no longer any need, if there ever was, for the kind of speed that people argued was required during the Cold War, when we were worried about a surprise attack from the Soviet Union. We should take weapons off of high-alert status. Former nuclear missile launch officer Bruce Blair and former Secretary of Defense William Perry have also said that we need to reduce launch readiness. This would allow more people to participate in the decision about what to do in the face of an attack.

    We should also reduce secrecy. If we’re going to make decisions about nuclear weapons, we need to have information about them. In April 2015, the US State Department finally declared the numbers of weapons in our arsenals. In May 2016, the Defense Department did the same thing. Thanks to experts in the scientific community, since 1987 the Bulletin of the Atomic Scientists has published estimates of nuclear weapons in a feature called the Nuclear Notebook. The Notebook’s current coauthors, Hans Kristensen and Robert S. Norris, of the Federation of American Scientists, and their predecessors should be given a Nobel Prize for making these estimates available; the estimates are the only reason that the public knows roughly how many weapons the US, Russia, China, North Korea, the United Kingdom, France, Israel, India, and Pakistan have.

    We can also reduce secrecy by requiring that congressional members and outside experts participate in the nuclear posture review—a process to determine what role nuclear weapons should play in US security strategy—that the executive branch and the military conduct from time to time. If citizens are to participate in decision-making, then we have a right to know about these war plans.

    A move toward congressional participation is suggested in a September 2017 Washington Post article by former Senator Sam Nunn and former Secretary of Energy Ernest Moniz. They argue that the chairs and the ranking minority members of key committees in both houses should review and oversee relations between US and Russia. They are modeling this proposed new body on an earlier Senate Arms Control Observer Group, established in 1985 by Senators Robert Byrd and Bob Dole, a Democrat and a Republican.

    That group met with the secretary of state and with arms control negotiators in Geneva when the US was dealing with the Soviet Union. The group also had opportunities to meet unofficially and informally with the Soviet delegation. The experience provided congressional members with much more information and a sense of what was at stake in those negotiations. It improved their ability to talk to their Senate colleagues about the treaties being discussed and about other foreign policy matters. It is high time that an observer group be established to oversee the US nuclear posture review.

    Finally, we must return to Congress the authority to declare war. The proposed legislation to limit the president’s first use of nuclear weapons is a necessary first step. But to move to what I would call nuclear democracy will take more than simply limiting the president’s ability to launch nuclear weapons first.

    I began by citing the long history of successful citizen opposition to nuclear testing, proliferation, and secrecy. I want to end with a quote from Garry Wills that alerts us to the long arc of bomb power and thermonuclear monarchy. He writes:

    The whole history of America since World War II caused an inertial rolling of power toward the executive branch. The monopoly on use of nuclear weaponry, the cult of the Commander in Chief, the worldwide web of military bases to maintain nuclear alert and supremacy, the secret intelligence agencies, the whole National Security State, the classification and clearance systems, the expansion of state secrets, the withholding of evidence and information, the permanent emergency that has melded World War II with the Cold War, and the Cold War with the war on terror—all these make a vast and intricate structure that may not yield to efforts at dismantling it. Sixty-eight straight years of war emergency powers (1941–2009) have made the abnormal normal, and constitutional diminishment the settled order.

    Wills describes a complex national security system that denies democratic accountability and will require heroic efforts to dismantle. But citizens and their representatives are awakening to its dangers and consequences. It is time to take advantage of that awareness to move toward nuclear democracy.