On the 17th January, Democratic Senator Ed Markey and Representative Ted Lieu introduced the Restricting First Use of Nuclear Weapons Act 2017 in both houses of Congress. Four months later, a petition in support of the Bill has received over 500,000 signatures. This underlies the growing support for this Bill which would prohibit the President from launching a first nuclear strike without a declaration of war by Congress. So what lies behind this move, and is this a proposition the UK should be considering?
Presidential authority in the United States
The President, as Commander-in-Chief, possesses this sole authority to unilaterally start a nuclear holocaust, a legacy of the Cold War. There is no check on the his authority to order a nuclear strike. As Richard Nixon commented in 1974, ‘I can go back into my office and pick up the telephone and in 25 minutes 70 million people will be dead.’ US land-based missiles would be launched within five minutes, and submarine-based missiles within 15 minutes, of the President's order, none of which can be recalled once fired. The US nuclear command-and-control system developed in response to the fear of a surprise Soviet nuclear first-strike. It required streamlined decision making to ensure that US missiles would launch before they were destroyed.
This authority sits uneasily with the US Constitution where the power to declare war sits solely with Congress. The launch of nuclear weapons against another country is effectively an act of war. It is here that the Markey-Lieu Bill attempts to make explicit the power of Congress, in specific reference to nuclear weapons. The Bill maintains, ‘notwithstanding any other provision of law, the President may not use the Armed Forces of the United States to conduct a first-use nuclear strike unless such strike is conducted pursuant to a declaration of war by Congress that expressly authorizes such strike.’
The Bill narrowly defines the need for Congressional approval for ‘an attack using nuclear weapons against an enemy that is conducted without the President determining that the enemy has first launched a nuclear strike against the United States or an ally of the United States.’ As such, the Bill does nothing to impede US deterrence of nuclear attack or threat against the United States or its allies. The President would retain the ability to immediately order the use of nuclear weapons in response to a nuclear attack. In the situation of a first-strike, the compressed time-frame requiring sole authority is unnecessary. As Senator Markey has argued the President’s unilateral authority to launch an unprovoked nuclear attack was unconstitutional, undemocratic and ‘simply unbelievable.’
The Bill would enhance US security by limiting the risk of miscalculation with adversaries, assuring them there would be no US ‘bolt from the blue’ surprise attack without a debate in Congress. Such a Bill would contribute towards a global norm that the use of strategic military force should only be used if democratically sanctioned.
First-strike statements in the United Kingdom
The UK election is in full swing. On 24th April, Michael Fallon, the UK Defence Secretary, said that Theresa May is willing to fire Britain’s nuclear weapons as a ‘pre-emptive initial strike’. Widely seen as an attempt to exploit Labour’s division on the retention of Trident, Fallon argued that ruling out a first strike ‘would only give comfort to our enemies and make the deterrent less credible.’ Immediately, Russia responded that the UK would be ‘literally wiped off the face of the Earth by a counter strike.’ This almost absurd diplomatic exchange, coming at a time of already heightened tensions with Russia, shows just how dangerous and sensitive a threat of first-use – in this case, primarily intended to build domestic political support – is taken by other nuclear-armed states.
Labour last week committed to a No First Use (NFU) policy. This announcement contrasts with the UK’s traditional position that strategic ambiguity complicates the decision making of any potential adversaries and that a no first use policy may provide undesirable comfort for them. Yet there are two problems with this traditional position. First, the ambiguity argument supposes that any declaratory policy on the use or threat of UK nuclear weapons would be harmful, whereas previous UK governments have given clear indications they would not use nuclear weapons against almost all non-nuclear weapon states. Second, both the situations where the UK would consider a nuclear first strike, to deter a conventional invasion or pre-empt a nuclear attack on Britain, lack credibility or basis in any realistic scenarios. Neither are mentioned in the the UK Government’s 2015 National Security Strategy and Strategic Defence and Security Review.
More widely, NATO has categorically refused to implement a no first use policy, despite being a defensive alliance. It is claimed that the threat of a nuclear first-strike may be needed to deter Russian aggression in Eastern Europe. However, whether the threat of first-use does actually deter aggression is not as conclusive as often portrayed. As Daryl Kimball has argued the risk of ‘an uncontrollable and potentially suicidal escalation is so high that the threat of using nuclear weapons lacks credibility.’ When NATO has overwhelming conventional superiority over Russia and yet retains the option for first-strike on the basis that Russia may have a residual, temporary conventional advantage in one particular part of Europe, it sends a clear message that each and every state has an obligation to acquire or maintain a full range of options to defend itself, even if those options are destabilising.
A British No First Use policy?
The UK equivalent of the Markey-Lieu Bill would strike a middle ground between the No First Use camp and strategic ambiguity camp. It would allow the Prime Minister to launch a nuclear first strike, but only if the implications of such a strike had been debated by Parliament. Unlike the United States, the UK does not have a written constitution. But there has been a growing consensus under both Labour and the Conservatives that UK Parliament must be in consulted on any military action.
Parliamentarians have already called for legislation to enshrine this growing consensus on military action. As Fabian Hamilton, Shadow Minister for Peace and Disarmament noted, ‘it’s very important ... that parliament must be consulted and must approve of any declaration of war or any warmongering that the United Kingdom wants to conduct for whatever reason.’ This announcement followed the outcry over Boris Johnson’s statement that the UK could join US military action in Syria without parliamentary approval.
Such a Bill would provide clarity on the purpose of the UK’s nuclear deterrent. It would establish clear boundaries about when British nuclear weapons would and could be used, and would set an appropriate high bar for the use of a first strike. It would take away some of the unintended messaging sent to potential adversaries that the UK might contemplate a pre-emptive strike and would lower the risk of accidental nuclear war due to miscalculation. It would set an important precedent internationally that could form the basis of an important multilateral initiative within the nuclear weapon states. And, it would contribute to increasing democratic oversight over our military, and set an example of what it means to be a responsible nuclear-armed democracy.