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According to a recent editorial in Scientific American(March 1,2017 "Take the Nukes off a Short Fuse"), the president of the United States can order missiles to be shot off without anyone else concurring. Also, are military personnel legally bound to obey this? Maybe a soldier could legally disobey such an order on the grounds that it was an illegal order or that it "shocked the conscience?"

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The Commander-in-chief powers are quite broad. The War Powers Resolution limits his ability to engage unilaterally in military action, by requiring him to report to Congress within 48 hours, and if Congress disapproves, troops must be removed after 60 days. However, this law pertains to armed forces, and would not apply to remotely-launched missiles. Additionally, it is unknown if the resolution is unconstitutional (presidents say it is). No law at all requires POTUS to obtain permission from someone else, in order to engage in a military action.

Article 90 of the UCMJ states that it is a punishable offense to "willfully disobeys a lawful command of his superior commissioned officer". The manual also states that

An order requir­ing the performance of a military duty or act may be inferred to be lawful and it is disobeyed at the peril of the subordinate. This inference does not apply to a patently illegal order, such as one that directs the commission of a crime.

Murder of a civilian is an example. It also says

The lawful­ness of an order is a question of law to be deter­mined by the military judge.

"Shocking the conscience" is not a grounds allowing disobedience. One can only conjecture how a military judge would evaluate the lawfulness of a presidential order, when there is not a shred of legal evidence that such an order is in fact illegal: I conjecture that the order would be found to be lawful.

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    What about circumstances under which the commander-in-chief's military subordinates can lawfully disobey his order? Are there any? – phoog Oct 4 '17 at 2:54
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    Sounds like your answer is "Yes" to the title question and "Yes" they are legally bound to carry out legal orders. Uniform Code of Military Justice (UCMJ) 809[890].ART.90 (20). – BobE Oct 4 '17 at 3:11
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    If a President were to order the nukes to be launched in order to (say) wipe Mexico off the map, that might be judged to be a Crime against Humanity, and as such, would be illegal. "I was just obeying orders" is no longer a defence since Nuremberg. – Martin Bonner supports Monica Oct 4 '17 at 14:22
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    However, an international tribunal that prosecuted members of the US military for such crimes would not prosecute the soldier who implements the order, it would prosecute a general. Point is, from the perspective of US law, the soldier could not legally resist an order unless it is plainly unlawful, and in the OPs scenario, it is not plainly unlawful. You can always up the ante and change the situation, and maybe the ECJ would render a different judgment from a US military court. – user6726 Oct 4 '17 at 14:52
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    @user6726 : Lots of low-ranking soldiers/officials in the concentration camps have been prosecuted. It's not either/or, the tribunal (or possible future US court) would go for both. – Martin Bonner supports Monica Oct 4 '17 at 20:14
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Marjorie Cohn, Professor Emerita at Thomas Jefferson School of Law, wrote an article on The Duty To Disobey A Nuclear Launch Order, and concluded:

An order to use nuclear weapons ― except possibly in an extreme circumstance of self-defense when the survival of the nation is at stake ― would be an unlawful order. Military necessity is also a well-established law of war. It allows “those measures not forbidden by international law which are indispensable for securing the complete submission of the enemy,” according to the Lieber Code. It is never necessary to use a nuclear weapon, except in certain hypothetical cases of self-defense if the survival of the US were at stake.

Finally, there is the principle of unnecessary suffering. “It is prohibited to employ weapons, projectiles and material and methods of warfare of a nature to cause superfluous injury or unnecessary suffering,” according to Article 35.2 of the Additional Protocol I to the Geneva Conventions. A nuclear attack on North Korea would kill and maim untold numbers of people.

Of note:

On Nov. 19, Air Force General John Hyten, commander of the U.S. Strategic Command, declared he would refuse to follow an illegal presidential order to launch a nuclear attack. “If you execute an unlawful order, you will go to jail,” the general explained at the Halifax International Security Forum in Nova Scotia. “You could go to jail for the rest of your life.”

Gen. Hyten is correct. For those in the military, there is a legal duty to obey a lawful order but also a legal duty to disobey an unlawful order. An order to use nuclear weapons ― except possibly in an extreme circumstance of self-defense when the survival of the nation is at stake ― would be an unlawful order. ....both the Nuremberg Principles and the Army Field Manual create a duty to disobey unlawful orders. ...The president can only use military force in self-defense or to forestall an imminent attack. There must exist “a necessity of self-defense, instant, overwhelming, leaving no choice of means, and no moment for deliberation,” under the well-established Caroline Case. A president has no lawful authority to order a first-strike nuclear attack. ...The president can only use military force in self-defense or to forestall an imminent attack. There must exist “a necessity of self-defense, instant, overwhelming, leaving no choice of means, and no moment for deliberation,” under the well-established Caroline Case. A president has no lawful authority to order a first-strike nuclear attack. Military necessity is also a well-established law of war. It allows “those measures not forbidden by international law which are indispensable for securing the complete submission of the enemy,” according to the Lieber Code. It is never necessary to use a nuclear weapon, except in certain hypothetical cases of self-defense if the survival of the US were at stake.

Finally, there is the principle of unnecessary suffering. “It is prohibited to employ weapons, projectiles and material and methods of warfare of a nature to cause superfluous injury or unnecessary suffering,” according to Article 35.2 of the Additional Protocol I to the Geneva Conventions. A nuclear attack on North Korea would kill and maim untold numbers of people.

If the president ordered a nuclear strike, Gen. Hyten said he would offer legal and strategic advice, but he would not violate the laws of war simply on the president’s say-so. Additional information surrounding this conclusion is detailed in the referenced article.

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    Copy-pasting an answer is strictly disallowed here. – Nij Nov 28 '17 at 2:56
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    See law.stackexchange.com/help/referencing. – phoog Nov 28 '17 at 4:38
  • The answer that I pasted here is in some form necessary and important to Stack Exchange and our society, since it was so different from the answers so far provided on a vital issue. But I didn't and don't have the legal background or the writing skill to summarize in a timely manner what Professor Cohn wrote. If you have the knowledge and skill, go ahead and do the rewrite of what Cohn said, but what I pasted(and gave full credit to Cohn) should stay up til yours is ready, if Stack Exchange is to be relevant. Also, I think it's an overstatement to say copy and pasting is strictly disallowed. – Richard Peterson Nov 30 '17 at 0:26
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    I can't find a blanket prohibition on copy-paste answers, but yours included a lot of detail that was unhelpful (while cutting off before some helpful information). I just did a little fixing of the answer to make it compliant with community norms. – feetwet Dec 1 '17 at 16:59
  • I added some more stuff from the article back in because the issues raised by Professor Cohn were scarcely touched on by the other two answerers. I'm sure no normal, reasonable "community norms" are violated. – Richard Peterson Jan 5 '18 at 23:18
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I highly recomend that you watch the opening scene of "War Games" which deals with this scenario and is considered to be highly authentic launch procedures from the soldier's perspective. As depicted in the film, a launch team of two individuals are locked into a room with now outside contact save for the equipment printing the orders for the duration of the shift. When the equipment print the order, the soldier's authenticate it and follow the instructions. They have no "window" to look out, no TV to check on reporting, and no reason to suspect that the order is anything but lawful. The film also depicts the response if the order is not carried out. Keep in mind that this may not be a first strike but a second strike and the officers in the command bunker have no way of knowing this (or even if any other missal was ordered to launch). There assesment is that the order is valid, it instructs them to launch and what to hit, and that's all they will know until they are debriefed (presuming they aren't killed by an incoming attack).

At the top level, the only way to countermand a launch order is if the Secretary of Defense fails to confirm that the order is authentic (that is, the President issued it). The SecDef has no veto over the order if it is in fact given by the President. He only has to say it was definitely an order from the actual sitting President (and not, say, someone using a Nuclear Football that was accidentally left behind during a Presidential event... cause they have left Nuclear Footballs behind... no compromise took place, however.). Once that issue is given, it is considered lawful and anyone further ordered to act according to that order is in a blackout state to have no information other than that the order lawfully told them to launch.

  • Whether this depiction of the launch procedure is authentic is beside the point here. This forum is for the legal/lawful perspective, not military authenticity. – Brandin Nov 21 '17 at 16:47
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    Again, looking at what happens in "War Games" in the event that this happens in a real setting, we see that the dissenting officer is being told to do it under threat of physical force, not legal charges from his service. The Nuremberg defense is valid under these circumstances (the Nazis charged did have the option of dissent. They chose not to note any such dissent at the time of execution, thus they were culpable. Had they been compelled by threat of immediate death, it would have worked.). "Just following orders" is valid if you are given no options to not follow orders. – hszmv Nov 21 '17 at 17:31

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