Strictly speaking, insanity is not a proper medical or psychiatric term, but rather a more-or-less acceptable legal description. Nonetheless, as a convenient shorthand for exploring mental illness or emotional debility in current presidential decision-making circumstances, the term is apt and useful. In essence, at an historical moment when there are increasingly serious and legitimate grounds for questioning Donald J. Trump’s mental stability, it is high-time for a qualified analytic look at presidential authority within an up-till-now obscured area of decision.
This normally opaque area concerns the capacity to launch American nuclear weapons.
In 1976, then just five years out of Princeton as a newly-minted Ph.D., I began work on an original book, Apocalypse: Nuclear Catastrophe in World Politics, published in 1980, about nuclear war and nuclear terrorism. From the start, I was especially centered on US presidential prerogatives to order the firing of nuclear weapons. More precisely, I was interested in the always more-or-less plausible prospect of presidential irrationality.
In pertinent technical terms, this did not mean a US president who was “clinically insane” (potentially the most worrisome sort of concern), but “only” one who might sometime value a specific preference or combination of preferences more highly than American national survival. Today, of course, we worry about leadership irrationality in certain other states, most conspicuously North Korea and Iran.
Back then, with already an expressly American focus in mind, I telephoned former Joint Chiefs of Staff Chairman, General Maxwell Taylor, who promptly responded with a letter on March 14, 1976. Worth indicating at the outset is a noteworthy linguistic twist or nuance. As the General’s letter explicitly referenced the dangers of an “irrational American president,” there can be no properly automatic extrapolation of his diagnosis or recommendations to a US Chief Executive who is seemingly more than irrational – that is, one who is “crazy,” “mad,” or “insane.”
At the same time, it is hard to imagine that General Taylor would in any way hesitate to include these characterizations of an even more advanced decisional “pathology” within the subject-matter scope of his original warning. This is the case, moreover, even though such characterizations are not truly scientific, and are more plainly directed toward ordinary layperson forms of discourse.
There could, after all, be no convincing or even conceivable reason to warn soberly against US presidential “irrationality,” but not against out and out presidential “insanity.” Either way, our present concern must be with any emotionally or mentally debilitated president, whether “merely” irrational, or more distressingly, “insane.” Whichever seemingly applies, the vital questions going forward will have to do with Constitutional, statutory and various other sources of war-making authority, especially the corollary right to order the use of nuclear weapons.
Some of the most urgent questions here should relate to assorted and sometimes subtle intersections of international law and U.S. law. From the beginning of the United States, international law has been part of its national law. Early on, Chief Justice John Marshall, among others, asserted and reasserted that all international law – whatever its source – had been fully incorporated into the law of the United States.
Under current U.S. law, whatever its particular jurisprudential origins, a president may correctly use force once Congress has declared a war, or after the US (and/or its citizens) has already been attacked. As to permissible kinds of force, or corresponding levels of force, these operational decisions would be determinable according to the longstanding laws of war of international law (the comprehensive law of armed conflict or humanitarian international law), and also the pertinent municipal law of the United States. Notably, in any such foreseeable circumstances, there would exist no clearly identifiable prohibitions against nuclear force per se.
Instead, all non-weapon-specific prohibitions would apply broadly, that is, to the extent that any U.S. retaliation or counter-retaliation could sometime violate the incontrovertible expectations of discrimination (sometimes also called “distinction”), proportionality, and/or military necessity.
Both the U.S. Constitution and the War Powers Act place strict limits on any president’s authority to initiate hostilities with a foreign power, whether by conventional or nuclear means. A relevant grey area has to do with the Commander-in- Chief’s right to strike first preemptively; that is, as an expression of “anticipatory” self-defense. Here, the authorizing component of permissibility is perception of any sufficiently grave danger that is “imminent in point of time.” Logically, the relevant criteria of “imminence” cannot be the same today as they were back in 1837.
That was the year of the Caroline, the classic but also pre-nuclear case setting the legal standard for all subsequent preemptive national action, meaning that a state could undertake a preemptive strike against a danger posed if such danger was “instant, overwhelming, leaving no choice of means, and no moment for deliberation.”
Now, what should we expect from President Donald Trump if he should sometime reason that a nuclear attack on the United States or its allies is “imminent in point of time?” Shall we stay comfortable with leaving such a profoundly existential judgment to his own personal authoritative decision of the moment? Or should this eleventh-hour option more plainly be a matter of shared or “concurrent authority” with the Congress?
In actual practice, applicable questions of law are apt to be subordinated to an overarching and ubiquitous assumption that the president’s final authority in defending the United States must never be challenged during any still-impending or already-ongoing crisis, especially where an enemy nuclear attack might be contemplated. In brief, this means that an American president, even if authentically irrational or insane, would likely have his military commands obeyed, up to and including any order to use nuclear weapons, and whether employed preemptively, in retaliation, or in counter-retaliation. It also means that while a wide variety of redundant safeguards already exists to prevent any unauthorized use of American nuclear weapons up and down the nuclear chain of command, no parallel safeguards exist at the very top or apex of the critical decisional pyramid.
It remains possible, of course, and even potentially desirable in certain circumstances, that a presidential order to use nuclear weapons would be disobeyed at one or another critical level of implementation. Strictly speaking, however, as any such expression of disobedience would presumptively be “illegal,” it is assuredly not sufficiently probable in extremis atomicum. In this connection, the staggering irony of our actually having to hope for at least certain high-level instances of disobedience or chain-of-command failures ought not to be lost. Prima facie, it reveals that our extant nuclear-decision safeguards are overwhelmingly inadequate.
Also worth mentioning is that there could be nothing meaningfully scientific about ascertaining accurate probabilities in such matters. This is because (1) mathematical probability must always be determined according to the discernible frequency of past events; and because (2) there haven’t been any pertinent past events (unless we were willing to “count” the Cuban Missile Crisis of 1962).
Is the US nuclear authority dilemma remediable in any still-promising way? “The best protection,” I first learned from General Maxwell Taylor forty-one years ago, “is not to elect” an irrational president. But now, as such straightforward advice cannot be acted upon retroactively, the residually “best protection” must inevitably lie in appropriately vigilant oversight by the Secretary of Defense, the Chairman of the Joint Chiefs of Staff, the National Security Advisor, and certain select others. This includes their predictably reliable willingness – either singly, or in collaboration with each other – to disobey a presumptively irrational or insane presidential nuclear order. Paradoxically, such willingness could still be defended as law-enforcing under those universally binding Nuremberg Principles (1946) that obligate all persons (especially senior government officials, everywhere) to resist “crimes of state.”
Because war and crimes against humanity are not mutually exclusive, compliance with overriding Nuremberg Principles could be necessary not only to limit aggression, but also to prevent genocide.
Ultimately, the most serious threat posed by the Trump presidency is the heightened risk of a nuclear war, whether by deliberateness, miscalculation or by accident.
Ultimately, our very best chance of avoiding or surviving this grievous threat could depend less upon tangible law and institutions than upon the last-minute courage of a tiny handful of senior officials.
Ultimately, and ideally buttressed by both national and international law, such recognizable virtue could become the best or perhaps only way to compensate for the longstanding de facto American failure to heed General Taylor’s 1976 warning. This dispassionate earlier alarm, which had simply cautioned “not to elect” a potentially “irrational” American president, should now be extended to include a potentially “insane” Commander-in-Chief. This sharply pointed advice is not gratuitously disrespectful to President Donald Trump; it is rather, only reasonable and prudent.
“The safety of the people,” says Cicero for all time in De Legibus (“On The Laws”) “shall be the highest law.”
This article was first published at JURIST — Academic Commentary, Aug. 22, 2017,