U.S. Generals Might Stop Trump From an Illegal Nuclear Strike — But Who Will Save Us From a Legal One?

He has become the latest in a long line of generals to be lionized by the anti-Trump #resistance. Speaking over the weekend, Gen. John Hyten, commander of the U.S. Strategic Command, or STRATCOM, which is responsible for nuclear deterrence, revealed what he would do if he were ordered to carry out a nuclear strike.

“I provide advice to the president,” Hyten told an audience at the Halifax International Security Forum in Nova Scotia, Canada. “He’ll tell me what to do, and if it’s illegal, guess what’s going to happen? I’m gonna say, ‘Mr. President, that’s illegal.’” Hyten continued: “Guess what he’s going to do? He’s going to say, ‘What would be legal?’ And we’ll come up with options of a mix of capabilities to respond to whatever the situation is, and that’s the way it works. It’s not that complicated.”

At first glance, Hyten’s statement may sound comforting to those who stay awake at night, worrying about Trump’s small hands hovering over the nuclear button. Last week, for the first time for more than 40 years, the Senate Foreign Relations Committee held a hearing on the president’s authority to launch nuclear weapons. “We are concerned that the president of the United States is so unstable, is so volatile … that he might order a nuclear weapons strike that is wildly out of step with U.S. national security interests,” Sen. Chris Murphy, D-Conn., said at the hearing.

Senior members of Trump’s inner circle seem to share those concerns. In October, Vanity Fair’s Gabriel Sherman reported that “one former official even speculated that [chief of staff John] Kelly and Secretary of Defense James Mattis have discussed what they would do in the event Trump ordered a nuclear first strike. ‘Would they tackle him?’ the person said.”

In comparison to physically restraining the commander-in-chief, Hyten’s proposed course of action — “Mr. President, that’s illegal” — seems a more reasonable and realistic solution to the problem of a belligerent Trump having untramelled access to the nation’s nuclear codes.

Secretary of Defense Jim Mattis, left, poses for a handshake at Offutt Air Force Base with Gen. John E. Hyten, head of Strategic Command, in Bellevue, Neb. on Sept. 14, 2017.

Hyten’s remarks do nothing to reassure me, however. First, why does he assume that this president’s response to being told a nuclear strike might be “illegal” would be to ask: “What would be legal?” Does Trump, who rails against “so-called” judges, strike you as the kind of leader who is bothered by the rule of law? Why wouldn’t he just fire Hyten and replace him with a more compliant general?

Second, the STRATCOM chief said in Canada that he and his fellow generals were “not stupid” and were aware of the risks of breaking the law: “If you execute an unlawful order, you will go to jail. You could go to jail for the rest of your life.” How then does he explain the number of top U.S. generals who happily participated in George W Bush’s illegal invasion of Iraq? Or those who helped Barack Obama conduct his illegal bombing of Libya? Where were the dissenting four-star voices in 2003 or 2011, telling Bush or Obama: “Mr. President, that’s illegal”? So why should we have confidence in Hyten and other officers in 2017?

But perhaps, above all else, does the general really believe the launching of nuclear weapons is “not that complicated,” in terms of the law? Does Hyten, who graduated from Harvard not with a J.D. but with a bachelor’s degree in engineering and applied sciences, think it is that easy to distinguish a “legal” nuclear strike from an “illegal” one?

There are plenty of international lawyers, campaigners, and activists who would disagree, who, in fact, believe a nuclear strike under any circumstances would be a violation of international humanitarian law. They would argue that the criteria for a legitimate strike — necessity, distinction, proportionality, unnecessary suffering — as laid out in the U.S. Law of Armed Conflict Deskbook and grandly cited by Hyten in Nova Scotia, can never be met in the case of nuclear weapons.

Listen to Beatrice Fihn, executive director of the International Campaign to Abolish Nuclear Weapons, which was awarded the Nobel Peace Prize in October. “Nuclear weapons are illegal,” she said after receiving her award in October. “Threatening to use nuclear weapons is illegal. Having nuclear weapons, possessing nuclear weapons, developing nuclear weapons is illegal, and they need to stop.”

Consider the view of Rabinder Singh, a leading British human rights lawyer, and Christine Chinkin, an international law professor and former United Nations adviser, who co-authored an opinion in 2005 stating that the deployment of Britain’s nuclear deterrent “would breach customary international law, in particular because it would infringe the ‘intransgressible’ [principles of international customary law] requirement that a distinction must be drawn between combatants and non-combatants.”

There is a long list of laws going back a century-and-a-half that an attack with nuclear weapons — whether “first strike” or not — would seem to violate. As Newsweek’s Ryan Bort summarized in October:

There’s the 1868 Declaration of St. Petersburg (illegal because the loss of civilian life wouldn’t be minimized), the 1907 Hague Convention (illegal because there would be “no guarantee of the inviolability of neutral nations”), the 1948 Universal Declaration of Human Rights (illegal because the resultant radiation would interfere with the health of innocent people), the 1949 Geneva Convention (illegal because protection of health workers, expectant mothers and the sick would not be ensured) and the 1977 Geneva Convention protocol (illegal because of the loss of civilian life and damage to the environment).

In 1996, the International Court of Justice issued an advisory opinion, which stated that “the threat or use of nuclear weapons would generally be contrary to the rules of international law applicable in armed conflict, and in particular the principles and rules of humanitarian law.” It also said that “states must never make civilians the object of attack and must consequently never use weapons that are incapable of distinguishing between civilian and military targets.”

Sounds pretty clear, right? Nukes are illegal. Not quite. The court also pointed out that “there is in neither customary nor conventional international law any comprehensive and universal prohibition of the threat or use of nuclear weapons as such,” and the 15 ICJ judges said they could not “reach a definitive conclusion as to the legality or illegality of the use of nuclear weapons by a State in an extreme circumstance of self-defence, in which its very survival would be at stake.”

But does North Korea’s nuclear weapons capability really threaten the “survival” of the United States today? Was imperial Japan an existential threat to the U.S. in August 1945, when the atomic bombs were dropped on Hiroshima and Nagasaki in the dying days of the war?

It has always struck me as odd that incinerating millions of people — the vast majority of them noncombatants — in a nuclear strike could be deemed anything other than a war crime. It has always seemed bizarre to me that an atomic bomb that continues to take lives decades after it is dropped could be considered anything other than disproportionate. And I never cease to be amazed by the fact that there are explicit legal bans on the use of chemical and biological weapons, on landmines and cluster bombs, and yet no such equivalent prohibition on the possession or use of nukes, which have a destructive power far greater than all of those other banned weapons put together.

For Gen. John Hyten, however, “it’s not that complicated.” He plans to save us from an illegal nuclear strike. But who will save us from a legal one?

Top photo: The Priscilla nuclear test, part of Operation Plumbbob in 1957 in Nye County, Nev.