If President Trump orders an unwise preemptive strike against North Korea, can the Defense Secretary or top military generals disobey it? This situation can become increasingly troubling after the Winter Olympics end February 25.
The idea came up in private discussion while “on the road” Monday (President’s Day). A quick search of reasonably credible news stories and commentary does show some variation in perspective.
Back in August, 2017, after the DIA had reported that North Korea already had achieved some of the miniaturization necessary to put a nuclear warhead on an ICBM, Dan Lamothe of the Washington Post wrote an analysis suggesting that in most cases, top officials would have to resign if they didn’t want to carry out the order. It should be noted that more recently, others have questioned that DIA assessment. But it is probably easier to place a fission weapon (which can also cause an E1-level EMP) on a device than a thermonuclear weapon, as more recent events have subsumed.
Lindsay Maizland has a detailed simulation of what happens with a nuclear order on Vox from August, here. Call it “nuclear monarchy.”
But Marjorie Cohn, of Truth-Out, offers an analysis, republished on Huffington Post, in later November 2017 (one day before North Korea’s latest ICBM test) showing that military officials have a duty to disobey unlawful orders. Part of this comes from the Nuremberg trials. A preemptive strike that was disproportional to the provocation might arguably be unlawful. Placing civilians in harms way (whether in South Korea, Japan, Guam, Hawaii, Alaska, Canada, and especially the continental United States) sounds as if this could raise legal questions, according to the article. The article is called “The Duty to Disobey a Nuclear Launch Order”. It’s interesting to note that Truth-Out often presents far leftist articles and has been begging for donations; but this article sounds centrist and on the mark.
A good example of a totally lawful order would be shooting down a missile over the Pacific – which I hope we have the ability to do (Jan. 11). A microwave attack (“bloody nose”) on North Korea’s missile infrastructure (which sounds dubious inasmuch as so much of North Korea’s gear is buried under mountains) would sound legal, but very risky if it could invite a barrage on South Korea (or at some time in the future real nuclear or EMP retaliation against the US). The “decoupling” problem discussed previously could give Trump a legal rationale for a preemptive attack, based on my own experience in the Army in the past. But again, bargaining away the welfare of a civilian population for a strategic national benefit might be manifestly illegal.
Some of have suggested that a military rebuke of a presidential preemptive strike order could lead quickly to Trump’s removal from office, but others have said that such action undermines civilian control of the military and can lead to Latin American style military coups.
There are some stories about Obama’s trip to China this year and subterranean talks to get China to fine tune North Korean sanctions, regardless of reports now. But the best I can find right now is an Atlantic article by Uri Friedman, Aug. 2017, where there is a suggestion toward the end that the US be willing to withdraw from protecting South Korea altogether (removing the “decoupling” problem) in return for China’s removal of Kim Jung Un or at least all of his nuclear weapons.
(Posted: Tuesday, February 20, 2018 at 2 PM EST)