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President Isn't Empowered to Use Nukes First

August 03, 1988|THOMAS A. ROBERTSON and ELAINE SCARRY | Thomas A. Robertson is a California lawyer who represented members of Congress in their challenge to presidential nuclear first use; he is a board member of Lawyers Alliance for Nuclear Arms Control. Elaine Scarry, a professor at the University of Pennsylvania, is researching the issue of consent and nuclear arms as a Guggenheim Fellow in West Berlin.

War, particularly nuclear war, has become a dangerously presidential matter. President Reagan's progress toward reducing (by a fraction) the superpowers' vast nuclear arsenals was a step back from a policy of terror. Welcome as it was, we have to ask: Why is it that in a democracy the steps both forward and back will be taken by Presidents alone?

Since World War II Americans have lost a key civil right guaranteed by the Constitution: freedom from war unless a majority of our elected representatives vote to declare it. The United States fought undeclared wars in both Korea and Vietnam on the President's say-so. A sequence of recent Presidents have claimed an extension of that power to include nuclear war.

For several decades a standard part of the country's strategic doctrine has included the presidential "first-use" option. During the Carter Administration, Presidential Directive 59 formally appropriated Congress' power by allowing a President to use nuclear weapons at his own order to defend our North Atlantic Treaty Organization allies from conventional attack. Because of the likelihood that such first use would quickly escalate to a full-scale nuclear exchange, this policy is tantamount to allowing a President to declare war.

The policy of presidential first use is unconstitutional. The congressional power to "declare war" is not a minor clause in the Constitution; it obligates Congress to control our entry into war. One of our country's leading jurists, the early 19th-Century Justice Joseph Story, called this "the highest legislative act."

The declaratory power was given to Congress, rather than to the President or to either the House or the Senate acting alone, for three reasons:

To distribute authority-- The overall military might of the country is collectively owned by the citizens and their representatives. A solitary person or a small committee cannot put the entire nation at risk of grave injury without receiving authorization from the representatives of the population.

To ensure deliberation --The reasons for going to war must be persuasive enough to hold up under the scrutiny of the large number of individuals who together make up the House and the Senate. The deliberative process is not private and introspective. It is public, open to view, subject to debate and challenge by all assembled.

To serve as a brake on runaway claims of emergency --It is both difficult and time-consuming to convert hundreds of representatives from uncertainty to the decisiveness that is required for a declaration of war. But this very unwieldiness was saluted as a great virtue at the original Constitutional Convention, and again later by jurists who argued that a country must be slow to go to war and quick to attain peace.

If the speed and solitary action required of nuclear weapons make them incompatible with the country's social contract, is it the weapons or the contract that we will dispense with? Right now it seems to be the contract.

Nuclear arms have been called monarchal or totalitarian weapons, indicating the shift in the form of government that comes about when some invention suddenly concentrates unprecedented military power in the hands of the executive. How will the population regain its rightful exercise of consent over the nation's arms? To what branch of government should it address its case?

Congress has so far done little to ensure its guardianship over war, nuclear or otherwise. The one step that it has taken, the War Powers Resolution enacted at the end of the Vietnam War, has never been enforced despite U.S. military actions in Southeast Asia, Central America, Lebanon, Libya, Grenada and the Persian Gulf. Periodically, congressional plaintiffs have courageously appealed to the courts for help; they have received none. But even if one day successfully applied, the War Powers Resolution's various reporting requirements make it inapplicable to a presidential decision to initiate nuclear war. How will a President report to Congress 48 hours after a nuclear war begins? What could Congress (if it still exists) do then?

The federal courts, usually defenders of the Constitution, have left it in great danger on the issue of nuclear war. Last December a federal court in California dismissed a direct challenge by two congressmen to the President's nuclear first-use policy on the ground that Congress might pass a law that would solve the problem. Because the court's action was unpublished and without precedential value, it will not inhibit later cases. Yet it continued a fundamental misunderstanding of the powers vested in Congress under the Constitution. Congress, as our agent, has a duty to make the decision about going to war, and neither it nor the executive may change that requirement.

During the present election campaign it is reasonable to ask both presidential and congressional candidates to acknowledge openly the grave constitutional problem posed by our first-use policy. In the absence of revisionary steps, it is reasonable to return to the courts for review.

In peace and in war our first-use policy each day injures us. A strategic policy that dissolves the basic contract according to which a nation has agreed to live puts the very existence of that nation at risk.

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