Read on Twitter
The Speaker must quickly clarify this report, which wrongly makes it sound as tho the military, rather than the civilian authority, is now responsible for launch decisions. No. What DOD must've meant was that steps are in place to prevent any unlawful nuclear launch. /1 https://twitter.com/MikeBalsamo1/status/1347603816196272129
Such a position by the military is entirely consistent with its obligation to uphold the Constitution and laws, and consistent with military officials' own duty under law not to obey an unlawful order. /2
These laws include, of course, not only constitutional and statutory obligations, but also international treaty obligations that prohibit, among other things, disproportionate uses of force. /3
So says not just law profs, but fmr STRATCOM head Gen. Kehler in his 2017 testimony to a bipartisan Senate Foreign Relations Cmte hearing on checks on POTUS' ability to order a nuclear first strike. https://www.foreign.senate.gov/hearings/authority-to-order-the-use-of-nuclear-weapons-111417 /4
Among many other things, Sen. Johnson pressed Kehler on what he would do in the face of a presidential launch order, the legality of which had not been checked by counsel: “I would have said, ‘I have a question about this,’ & I would have said, ‘I am not ready to proceed.’” /5
On the military's duty not to follow unlawful orders, see, e.g., https://www.justsecurity.org/71352/preparing-the-public-for-a-contested-election/ /6
On the importance of being clear about civilian control even in these Trumpian times, see, e.g., https://www.theatlantic.com/ideas/archive/2019/12/military-constitution-trump/604072/ /end
For those doubting proportionality, etc., among legal obligations STRATCOM thinks about, key Kehler exchange begins just before the hour mark in the SFRC video above. Increasingly convinced the whole exchange should be required law school viewing.
