In January, Senator Ed Markey of Massachusetts and Representative Ted Lieu of California -- both Democrats -- introduced legislation that would prohibit the president of the United States from conducting a "first-use nuclear strike," unless such an attack had been authorized by a prior declaration of war by Congress. At last check, nine senators (all Democrats or Independents) and 54 representatives (including one Republican) had signed on as co-sponsors. The bill, known as the "Restricting First Use of Nuclear Weapons Act of 2017" was referred to the Senate Committee on Foreign Relations and the House Foreign Affairs Committee. Neither body has taken any further action.
Requiring a formal declaration of war prior to any potential use of nuclear weapons would be sound policy, no matter who is occupying the White House. The proposed legislation would reclaim some of the authority Congress has ceded to the executive branch over the past 70 years, and help restore the balance of powers the founders envisioned in our Constitution. In the extreme circumstances under which such congressional action might be required, the debate and vote itself could also serve as a powerful incentive to bring an adversary to the negotiating table before nuclear weapons were actually used.
One of Congress's most solemn and crucial duties is to declare war (or not) against a foreign power. The Constitution places that responsibility squarely in the hands of Congress, and no one else. But Congress has been hesitant to exercise this authority. The years of war our nation has undertaken in Iraq, Syria, Afghanistan and elsewhere in the Middle East have all been carried out without a declaration of war. Instead, our military continues to fight under Congressional consent from a long-outdated "Authorization for the Use of Military Force" (AUMF) passed shortly after the attacks of September 11, 2001. Congress has not revisited that action since, nor actually declared war on any nation, despite spending well over a trillion dollars to support those military actions. Virginia Senator Tim Kaine has been pushing for a new, updated AUMF for several years.
Prior to the current conflicts, we fought in Korea, Vietnam and Southeast Asia, the Balkans, Panama, and elsewhere. None of these military actions were preceded by a formal declaration of war from Congress. In fact the last declared war our troops fought and died in was World War II.
This is a critical problem. The singular power of Congress to declare war is an essential check on the war-fighting capacity of the administrative branch of government and the military it commands. The framers of the Constitution clearly did not want the president or the military to wage war on their own, without consent of the people, through the Congress that represents them.
Nuclear weapons can be launched in a matter of minutes. Once the missiles are fired, they cannot be recalled. The president, should he or she choose, can launch a nuclear strike against pre-programmed targets with essentially no fail-safe mechanism. During the cold war, this Mutually Assured Destruction (MAD) was intended to strengthen our nuclear deterrence -- the Soviets knew that if they chose to mount a nuclear attack, our missiles and bombers would be on their way to a devastating retaliation before our own country was destroyed.
And third, lawmakers must consider the current occupant of the White House. This is a man who, rather than pursue negotiations and allow economic sanctions time to pressure North Korea, has called its leader names and threatened his nuclear-armed nation with "fire and fury like the world has never seen." This is exactly the kind of impetuous, ill-conceived behavior that calls for a Constitutional check from another branch of our government.
An offensive nuclear first strike -- killing millions of innocent civilians -- would certainly be understood by the world as a horrific war crime. And any leader who ordered such an attack would immediately become the world's most despised war criminal. It's important for Americans to remind ourselves that we remain the only nation ever to use nuclear weapons against another country. The rest of the world has not forgotten.
Arms control experts have long advocated an explicit national policy of No First Use of nuclear weapons. Such a policy would reduce the level of tension and danger with North Korea. And in addition, it would immediately reduce tensions between our country and other nations -- both those who also possess a nuclear arsenal and those who rely exclusively on conventional weapons.
Formally committing the United States to a No First Use policy will be one small step towards a safer, saner planet.
Fleisher is a retired public school educator who currently serves on the staff of the Richmond Peace Education Center.