On October 30, Congressman Ted W. Lieu spoke about legislation he recently introduced: "Restricting First Use of Nuclear Weapons Act of 2017". The bill aims to require the president to obtain congressional approval before launching a nuclear strike.
Given the issue of constitutionality, it comes as no surprise that some Republicans, including Tea Party members and other strict constitutionalists, agree with Lieu that the president lacks authority to launch a nuclear strike first.
By Vanessa Young, Burkle Center Intern, Class of 2019
UCLA Burkle Center for International Relations, November 27, 2017 — On October 30, 2017, Congressman Ted W. Lieu (D - CA 33rd District) gave a public lecture at the UCLA School of Law concerning his bill, H.R. 669 the Restricting First Use of Nuclear Weapons Act of 2017. The talk was co-sponsored by the UCLA Burkle Center for International Relations and the International and Comparative Law Program at the UCLA School of Law. Congressman Lieu began his lecture by asking the audience, “How many of you here know what it takes to launch a nuclear weapon in America?” Only a few people raised their hands, prompting him to explain the nuclear launch process. Executing a launch requires the approval of the National Command Authority, which consists of only two individuals - the U.S. Secretary of Defense and the President of the U.S., whom the former is required to obey. “It is that easy,” Lieu remarked, “no member of the judiciary is involved, no member of Congress is involved, nobody else in the president’s cabinet is even involved.” After looking at the current process, Lieu concluded, “giving one person this power is just flat out unconstitutional.” This thinking provided the rationale behind his legislation, which seeks to limit the president’s power to carry out a nuclear strike without congressional approval.
Background on the Bill
Reminding the audience that “the framers [of the U.S. Constitution] went to great lengths” to limit the executive branch, Lieu emphasized his belief that the U.S. should adhere to the Constitution when it comes to authorizing war. In his view, it is unconstitutional for the president to be able to launch a nuclear strike without first seeking congressional approval, because Congress alone has the power to declare war. In layman’s terms, Lieu explained that his bill essentially says, “You, Mr. President, cannot launch a nuclear first strike without first getting congressional authorization.”
Lieu also clarified the bill was neither a partisan issue for him nor a direct response to President Trump’s election. Lieu explained that he, along with Senator Edward Markey (D-Massachusetts), had previously introduced this legislation while former President Obama was still in office and considering adopting a no-first use policy. When it comes to the nuclear launch approval process, Lieu believes “this system should be fixed, regardless of who happens to be president.” However, Lieu added that “because of the current president we have, I think this legislation has more urgency.” In fact, he noted “now every time the president says or does something crazy,” the bill gains more co-sponsors. With over 70 co-sponsors presently, H.R. 669 can assuredly be considered bipartisan legislation. Given the issue of constitutionality, it comes as no surprise that some Republicans, including Tea Party members and other strict constitutionalists, agree with Lieu that the president lacks authority to launch a nuclear strike first.
Congress and the Constitutionality of War
Prompted by a question about the history of congressional war declarations, Congressman Lieu moved into a deeper discussion about why Congress has not formally declared war since the Second World War. He suggested the wars in Vietnam and Korea might not have occurred if the executive branch had asked for congressional approval. Even today, the U.S. is engaged in “conflicts around the world, even though Congress has not declared war.” Given its reluctance to formally declare war, Congress has only granted the executive branch an Authorization for Use of Military Force (AUMF) for two purposes: authorizing the use of force in Iraq, and a more general authorization against terrorism. Lieu went on to criticize both Democratic and Republican presidents for their use of AUMFs as a proxy for congressional war declarations. “This is not, to me, a Republican or Democratic issue,” he said, noting he was also critical of the Obama administration’s use of military airstrikes in Syria. “In the past few decades, Congress essentially let the executive branch take a huge amount of authority in terms of war and peace issues.” According to Lieu, the executive branch’s use of past AUMFs to justify engaging in conflicts abroad is troubling.
Explaining the Thinking Behind a No-First Use Policy
Lieu also sought to clarify the importance of adopting a policy to restrict the first use of nuclear weapons, reiterating his belief that the paradigm of mutually assured destruction has “kept the peace for decades.” In his view, the possible first use of nuclear weapons destabilizes this concept because U.S. enemies know the president has the ability to launch a nuclear strike first. Having served in the military, Lieu is familiar with the laws of war and conflict, and expressed his belief that using nuclear weapons would not only violate some of the fundamental rules of war, but also cause massive destruction and irreparable harm. He thus appreciates the need for restraint, explaining, “I believe the only reason we have nuclear weapons is to not use them.” Lieu supports the idea of moving towards a world without nuclear weapons, and he noted this bill is one small step in this direction, though the world remains far from this ideal.
Addressing security concerns about the U.S.’s ability to respond to rogue, dangerous states, Lieu cited the support of former U.S. Secretary of Defense, William Perry, for a no first-use policy. Perry endorses the bill because, as Lieu explains, Perry “cannot imagine any scenario where the U.S. would need to explode a nuclear weapon that we could not handle with our awesome conventional military.” He emphasized that the U.S. military still possesses highly destructive conventional weapons which could deal with practically any military threat without resorting to nuclear options. In terms of how the legislation could impact the larger international order, Lieu speculated that if the U.S. were to adopt a no first-use policy, other countries might follow suit.
Other U.S. Security and Foreign Policy Concerns
Beyond addressing national security issues specific to his bill, Lieu also discussed broader concerns in foreign policy, including Russia and North Korea. Speaking about the indictments of Trump campaign officials for their collusion with Russia, Lieu reiterated what is known for certain, explaining, “we know that Russia launched a massive cyberattack and influence campaign on the United States last year.” He urged those interested to read the unclassified report released by intelligence agencies which analyzes the cyberattack and its implications for the future. He also criticized the current administration's statements favoring Russia and doubting NATO, as well as its failure to approve new sanctions on Russia. Lieu appeared content with the indictments and shared, “to me, what makes America great is the president doesn’t get to decide if criminal laws were violated or if there was collusion.” Lieu noted that even while many Republicans in Congress initially gave President Trump the benefit of the doubt, many have now realized there is a “problem at the top,” prompting some courageous Republicans like Senator Corker and Senator McCain to speak out against the president.
Discussing the North Korean nuclear threat, Lieu asserted there is “no good military option” in North Korea because a ground invasion to denuclearize the country would undoubtedly prove bloody and long, during which the country could launch a nuclear weapon in retaliation. In addition, he noted that 20 million people live within range of North Korea’s nuclear weapons. As a result, Lieu believes the U.S. should continue to pursue policy of deterrence, focusing on economic sanctions, diplomacy, and missile defense. He advocated the establishment of a project to expand missile defense and laser technology, capabilities which could prevent potential North Korean intercontinental ballistic missiles (ICBMs) from landing on U.S. soil.
Moving Forward
When asked to assess ability of his bill to pass, Lieu suggested the likelihood of it passing depends in part on the behavior of the president, once again citing the impact President Trump’s actions have on the growing number of co-sponsors. Beyond the immediate question of passing the bill, Lieu added that part of the intention behind the legislation is “just to raise awareness” about the nuclear launch process. Lieu hopes to influence public opinion to push citizens, including U.S. generals, to think critically about constitutionality as it relates to war and conflict. Lieu emphasized the importance of the process “whether or not this bill, this term, ultimately becomes a law.”
Although Lieu does not blame President Trump for current tensions with North Korea, Lieu believes the lack of a coherent, consistent strategy to deal with the threat is troubling, as is the president's lack of diplomatic appointments in the region. Given the gravity of issues related to nuclear weapons and national security, Lieu expressed his hope that the administration can become more focused in its strategy to deal with North Korea and non-proliferation.