Transcripts For CSPAN Nuclear Weapons Authority 20171121

The hearing will come to order. A number of members on both sides of the aisle have raised questions about the executive authorities with respect to warmaking and the use of Nuclear Weapons, entering into an agreement with other countries. This is the first time the Foreign Relations committee of the senate or house has met on this topic since 1976. Warng the decision to go to is a heavy responsibility for our nations elected leaders. The Atomic Energy act of 1946 and the practices represent the use of Nuclear Weapons must be subject to political control. This is why no general or admiral has the authority to order the use of Nuclear Weapons, only the president , the elected political leader of the United States has this authority. The Nuclear Arms Race between ussrnited states and the dramatically increase the risk of Nuclear Conflict. We plan for the end thinkable him how to get missiles in the air without within those few coulds before warheads destroy our ability to respond. There is no time for debate. Having such forces at the ready has been successful deterring are an attack and we grateful, but this process means the president has the Sole Authority to give that order. Whether real or responding to a Nuclear Attack or not. Once that order is given there is no way to revoke it. I would not support changes that would reduce our deterrent of adversaries or reassurance of our allies but i would like to reality of this system. I want to thank our distinguished witnesses and withrs of this committee which they approach this topic before us today and hope that together we can have a productive and enlightened discussion about this issue. I would like to turn to my friend senator gardner. I must always thank you for holding hearings. But i really do believe this is a critically important discussion to have not just with ourselves but with the American People. Whatalways amazed as to subject come up at town Hall Meetings through maryland. Most subjects deal with local economic or domestic issues. Town hallnormally get national questions at townHall Meetings. I have been getting questions about can the president order a Nuclear Attack without any controls . That is asked more and more by the American People. It is fueled by comments made by President Trump in regards to north korea. According be president , north korea best not make any more threats to the United States. They will be met with fire and theory like the world has never seen, or the president s comments will have no choice but to totally destroy north korea. Mean therpret that to president is actively considering the use of Nuclear Weapons in order to deal with the threat of north korea. That is frightening. Has the chairman pointed out based on my understanding, there are no checks on the president s authority. The system as it is set up today provides the president with the ultimate authority to use Nuclear Weapons. That was developed because of reality of the security of our country, the Nuclear Command and control system we have in place is the result of three factors. The particular threat and challenge of the cold war, the United States faced a nuclear arms adversary in the soviet union with a large and capable nuclear force. There was a strategy of mutually assured destruction which placed distinct commands on our command and control system. Physics. F icbm launched from russia to the United States would have a 30 minute flight time. Re was a time to can feed convene a special session. The president s team had a short window to identify, communicate and decide, and if necessary launch a nuclear force. There was no time for consultation. Behind usar may be but such a scenario based on the need for the to terror a Nuclear Attack remains the driving force behind the current command and control architecture today. The final factor rests with the fact that Nuclear Weapons since their development have been considered unique. Not like any other military weapon. Starting under president truman, the point was made the white house was in charge of the atomic bomb, not the military. Nuclear bombs were not a military weapon. It was used by the controlled forces under strict control of civilian officials. Is our highest elected civilian official and commander in the constitution and played a role with this unique weapon. The president and only the president assume the unchecked power to launch Nuclear Attacks. You have got to understand this is a military weapon. It is used to wipe out unarmed people. We have got to treat this thing differently from rifles and cannons. Nuclear weapons remain unique but we face a different question than the one we faced in the cold war. Revisit this question on whether a single individual should have Unchecked Authority to launch a Nuclear Attack under all circumstances including the right to use it as a first strike. The most likely attack is not a massive surprise from russia or china but a Nuclear Conflict that springs from a conflict with the Smaller Nuclear forces such as north korea. In this circumstance where the face theates would not same pressure it may be possible and wise for the president to take the time to consult congress before the profound decision to use Nuclear Weapons is made. I would like to be able to tell my constituents we have a system and plays that prevents and a rational decision to use Nuclear Weapons. Unfortunately i cannot make that assurance today. Hearing fromd to our distinct witnesses. I would like to acknowledge, mr. Mckinnons presence here as a former counsel to this committee here, it is nice to have him back before our committee. Thank you. Our first witness, the commander of United States Strategic Command from 2011 to 2013. Thank you for your service to our country. Our second witness, dr. Peter dr. Peter fever. And, thank you for coming back. All of you are familiar. If you could summarize your comments in five minutes we would appreciate that. Any written materials will be incident to the record. In the orderoceed introduced we would appreciate it. Thank you. Good morning distinguished members of the committee. T is my honor to appear today i am pleased took care with these outstanding panelists and colleagues to my right. Command and control is an important component of our deterrent and i thank you for taking the time to understand it better. The views are mine. I no longer represent the u. S. Air force or Strategic Command. I will bring the perspective of almost four decades of military service to my remarks today. Much of that was a Nuclear Related duty. Some of the most go closely guarded secrets are associated with Nuclear Weapons and the process as well. There are limits on what i can say even if some aspects of this matter are discussed openly by others. I would like to make three brief remarks. Has this committee knows well, the u. S. Faces more complex Security Problems and greater uncertainty than during the cold war. Nuclear weapons are not gone from affairs. Russia and china are modernizing their forces as the basis of strategies designed to expand at our expense and the expense of our allies. Russia makes explicit Nuclear Threats to include the threat of the Nuclear First use. China will deploy submarines chapter in their nuclear history. North korea threatens our regional allies and is pursuing the capability to pursue the u. S. Directly. I ran remains a country of interest. Like strategic threats Cyber Weapons and threats against critical space assets have emerged and can arrive at our doorstep quickly. Nuclear weapons remain important in the strategies of potential adversaries. Well the u. S. Nuclear force is far smaller, postured less aggressively occupies a less prominent place in our defense strategy, Nuclear Deterrence remains crucial to our defense and teejic stability. There is an old saying i have used many times. Deterrence exists when an adversary believes they cant achieve their objectives. The Nuclear Weapons prevent actual use of these weapons against us and our allies, which is their primary purpose. Compel adversaries to ponder consequences of their actions before they act and get the need allies to require their own. No other weapon can replace the deterrent value of Nuclear Weapons to control Nuclear Forces under all conditions of crisis remains central to the credibility of the deterrent. U. S. Nuclear forces operate under strict civilian control, only the president of the United States can order Nuclear Weapons and the president s ability to exercise that authority and direction is insured by people, processes and capabilities that comprise the Nuclear Command and control system. This is controlled by human beings. Nothing happens automatically. The system is designed to do two important things. Enableesigned to unauthorized use of Nuclear Weapons. And, to do so in the face of a wide variety of scenarios including a Nuclear Attack. , a challenge of a cold war short notice massive attack while less likely today i would agree still exists. A colleague of mine has always said that when you are looking at it adversary, you have to look at capability and intent. Russians may not have the intent of attacking us today, but they retain the capability to do so. So long as they do we have to deter that capability. The Nuclear Decision process , anddes assessment, review consultation between the United States and military leaders. Any decision by the forces themselves. Characterized by layers of safeguards and reviews. I think it is important to remember the United States military doesnt blindly follow orders. President ial order to employ Nuclear Weapons must be legal. The basic legal principles of military necessity apply to Nuclear Weapons just as they do to every other weapon. It was my job, and the job of ther Senior Leaders like secretary of defense and other commanders to make sure these principles were applied to nuclear orders. I want to urge caution as you consider these measures. Changes can have profound implications for deterrence or extended deterrence and the confidence of the men and women in the Nuclear Forces. Thank you for inviting me. I look forward to your questions. Thank you. Chairman corker, distinct members of the committee, thank you for the opportunity to discuss this important topic which i will refer to as Nuclear Command and control. In the past, congress has played a vital role in pushing the executive branch to strengthen command and control. The time may be right for another close look. We must proceed with some caution because the topic is complex and susceptible to unintended consequences. First, at the heart of Nuclear Command and control is what might be called the always never dilemma. We must have a high assurance the country will always be able to present a credible Nuclear Strike capability to our adversaries, even in the most dire scenarios. Because even a single Nuclear Detonation would be so consecration it might trigger a spiral that would lead to civilization threatening outcomes, we must have a high assurance there will never be an accidental or unauthorized use of Nuclear Weapons. Measures designed to improve the always side of the equation can compromise the negative side and vice versa. Predelegating the authority to use Nuclear Weapons to lower echelons may fork and enemies first strike planning that would increase the risk a weapon might be used in an unauthorized fashion. The history of Nuclear Command and control is the history of civilian and military leaders debating a proper balance between always and never. It is a history of occasional discoveries the risks on one side or the other side were greater than originally understood, and it is the history of improvements like locks thataction, blocked detonation of a weapon without inserting the pin code, press to buy farseeing congressional advocates. These improvements may have helped forestall disaster. This brings me to my second point. We must be willing to invest the funds to Keep Technology up to date but in the Nuclear Command and control business, hardware is trumped by software, software is trumped by wetware. Hardware is the Technology Like i just mentioned. Software is the rules and procedures that govern how the hardware is used. The code Management System that determines who has the codes, and who can release them. Wetware refers to the Human Element, reliability of people involved in enforcing the rules and the Civil Military relations that form political context in which the software and hardware operate. At the end of the day what would matter most is the Human Element. With the president s advisers provide timely counsel, and would that shape the president s decisions . With the chain of command recognize a valid nuclear use order as being legal given the militarys training to refuse to implement illegal orders. Would subordinate elements do what they are supposed to do, no more and no less but with appropriate judgment. This last point cannot be over emphasized. For decades it has been possible to build a Nuclear Command and control system that would eliminate the Human Element altogether. Every generation of strategic leaders has understood such a. Ystem would be foolhardy the Human Element introduces risks but it also introduces the opportunity to mitigate risks. This brings me to my third point. The best reforms would be ones that maximize the opportunity for the Human Element to mitigate risks by maximizing time for deliberation and assessment. Efforts to extend decision times must not run afoul of the always never dilemma. I conclude with my fourth and final point. The time is right for a fresh look. Changes in Communications Technology and involving that rapidly evolving Cyber Threats would justify a fresh examination. Threats warned about five years ago have become urgent realities today. Our Divisive Political environment has raised new doubts about the effectiveness of all branches of government to wield the power they possess responsibly. In that context, a review of Nuclear Command and control the shore of Nuclear Confidence in this area. Outside experts have suggested many possible improvements worth considering. There are a variety of proposals that involve requiring certifications by additional cabinet officials of launch orders. However, all of these proposals raise constitutional questions about usurping president ial authority. Because the operation of the Current System is exceeding exceedingly complex i wouldnt recommend diligence and perseverance in oversight of the system to reassure friends and born enemies and warned enemies. Thank you. Thank you for your invitation to be here today. It is nice to be back in this room after spending so many years working on the staff of this committee. I am very impressed by how quickly you have mustered a quorum, having spent numerous hours waiting for that 10th senator to show up. Once one of the rare times that occurred. Thank you. Addressill briefly three questions. Who has the authority to employ Nuclear Weapons . President does. His commander in chief under the constitution, the Sole Authority within the executive branch for such a decision. Some authority is delegated to the secretary of defense and appropriate commanders. The authority to use Nuclear Weapons remains with the president. That is as it should be given the consequences in nuclear use. It bears emphasis the president would not make this decision by himself. The system is designed to ensure the president consults with the National Security council and other military advisers and i would expect that to occur in every case where it is contemplated. That is hardly the end of the inquiry. Intertwined by a question, who has the authority to take the country to war . Article one gives congress the power to declare war and several other powers with regard to supporting and regulating the armed forces. Article two provides the president that he is the commander in chief. The tax structure in our history provides Congress Privacy in this sphere. The power is not merely limited to formal declarations of war but to authorize military force, to deter the president can defend against sudden attack or preempt an imminent attack. Article two does not give him Carte Blanche to take the country to war. President s of both parties have made authority the without prior authorization by congress in the matter the framers would not have recognized. We may not resolve this general debate to answer this question presented in todays worrall. In addition to the global terrorism challenge our potential adversaries today, russia, china, north korea and iran. Three countries possess Nuclear Weapons. Ae fourth has pursued such capability. Conflict could involve Nuclear Weapons use. Inect conflict with the war the constitutional sense if , andated by the congress would require authorization by the congress. A recent executive branch in 2011on the war power supports this conclusion. An analysis of whether congressional authorization of use of military force is required but depend on the scope of the conflict and it would be necessary in cases of prolonged and substantial military engagements involving exposure of u. S. Military personnel to significant risk over substantial time. It is hard to imagine a significant with any of these countries that would not meet this test. Koreas Missile Program and the as cleaning rhetoric between the president and the north Korean Leader are no doubt foremost in your mind. Context, he korean stated a Ground Invasion would be required to locate and destroy all components of north koreas Nuclear Weapons program. Given the casualties that would occur in any conflict with north korea let alone in a Ground Invasion no argument could be made that would not be war in the constitutional sense. The president stated time is running out to address the challenge and the National Security adviser suggested the possibility of a preventive four. It is a preemptive strike in the face of impending attack which would require congressional authorization. What is the current policy use of Nuclear Weapons . I highlight several elements of the results of the Nuclear Review in 2010. It remains in place to allow the Trump Administration to review it in january. Important 2010 npr set forth the goal of reducing the role of Nuclear Weapons in the u. S. National Security Strategy and it is important to therstand nothing compels u. S. Of Nuclear Weapons and a highend conflict. The Obama Administration did not adopt formal policy of no first use of Nuclear Weapons. Vice President Biden gibby speech in which he said given our nonnuclear capabilities and the nature of todays threats it is hard to envision a scenario in which the first use would be necessary. He said he and the president were confident we can deter and defend ourselves against nonNuclear Threats to other means. Thank you for the opportunity to be here. Thank you for that outstanding testimony. Im going to reserve my time for interjections and turn to our ranking member. Cardin let me thank you for being here on these difficult issues. I want to preface my question with my strong belief there is not a military solution to the crisis in north korea. Any military option carries unbelievable risk factors, whether it be conventional or the use of Nuclear Weapons. I hope the president struck asia has produced openings to diplomatic surge that will recognize china and the United States should be looking for all frames to this crisis. They have a lot in common. China can change the equation in north korea. I hope that is where we are of any because the use military option has extreme risk. This is not a hypothetical discussion. What concerns me is the president may be getting military options and the use of conditional weapons could lead to extreme number of casualties in japan oran south korea. There may be a discussion about whether a Nuclear First strike could prevent that from occurring or have less of a chance of that occurring. If this is this is not a hypothetical discussion. I was particularly impressed by your statement which says in addition the legal principles of military necessity, distinction and proportionality applied to nuclear plans, operations and decisions. How is the president legally restrained, if at all on the use of a Nuclear First strike as a result of the orders that are , that it must be proportional . For there is a distinction that requires this necessity . Is there any real restraint on choosing a Nuclear First strike . I think there are. There are always legal constraints with any military option is being considered. There has been a longstanding debate about Nuclear Weapons and morale of the, and legality. Where Nuclear Weapons fit in changeden that things in august of 1945. Theres been longstanding policy view from the United States that Nuclear Weapons are not inherently illegal. They can be used illegally. Under whatn is circumstances and what situation . Why can tell you is when i was involved as commander in options, weplanning were ordered to do, the president directs every president has directed the military to preplan options, more as time has passed for additional flexibility, we involve our Legal Advisors in every step of that. Let me interrupt you there. There is discussion taking place at the National Security Council Level with military advisers. The advice is that under the guidelines on proportionality in the necessity, this is not appropriate for use of a Nuclear First strike. Is there action that can be taken by those advisors that the president is overruled . State theirn to view about the legality of the , the president retains Constitutional Authority to order some military action. The military you would be in an interesting constitutional situation, i believe read the military is obligated to follow legal orders, but is not obligated to follow illegal orders. Who would make that judgment on behalf of the dod . It is one of the things that would be on the plate of the commander of Strategic Command. I always believed that was on my plate. Let me drill down on this. If you believe that this did not meet the legal test of proportionality, even if ordered by the president of United States to use a Nuclear First strike me you believe under because of legalities you retain that decision to disobey the commander in chief . Yes. If there is an illegal order presented to the military, the military is obligated to refuse to follow it. Is the process leading to that determination and how he would arrive that there. Awould concede that would be very difficult process and difficult conversation but in the scenario you are painting here, i would also argue there is time for that. There is time for that deliberate conversation on these matters. , partcomplete this cycle of this is the protocols that are established under executive orders on the use of nuclear the require legal proportionality you are talking about. Others is the inherent responsibility of military command to follow only orders that are lawful. Theres two different sets. You may be getting opinions from the commander in chief that this is legal but you would have to make your own independent judgment based on history and illegal orders. Yes. On one to use my first interjection here. In yourvent someone position received an order that had not been vetted through the National Security council, for instance. ,iscussions had not taken place that you got a call out of the blue, things were tense in a particular area and you receive that order, would you consider that to be legal or not legal . Vet never felt i had to orders through the National Security council. I felt as a military Senior Leader i had three obligations. When obligation was to provide military advice. One was to raise concerns that i had if they happen to be legal concerns. The third obligation was related to legality of the order. Either follow the legal order or refuse. I had Legal Advisors myself. We would involve Legal Advisors where dod took that from there, i was issued a take. I would certainly have been in consultation with the secretary of defense and the chairman. Senator johnson. I want to continue on this line of questioning. There are two basic scenarios. The scenario of imminent attack, an attack that is imminent and then one where it is more preemptive. You said theres always going to be time. I did not mean to suggest there would always be time. When the president would thermine we are under threat of almost imminent attack , he has almost absolute authority. Correct . Yes. Context matters here. Yes. Is there any process to assess imminent . Im a former commander, not a lawyer. Im an accountant. Let me just say this. To shed some light. Context matters. If in fact in a range of scenarios where Nuclear Weapon use is possible, or a potential for Nuclear Weapons use, u. S. Policy has helped us clarify over the years under what circumstances we might expect to use Nuclear Weapons. When vitalcumstances National Interests are expect at stake. As a commander i had that in my mind as a context. If we had tactical warning an attack was under way we work in a playbook basically that had been vetted for its legal viability. Defined have somewhat imminent . If you say see radar, that is obviously imminent. What if it is right before . They are the conditions where you might have strategic warning. Solid warning that something will happen. That is game planned out . It is not precisely defined but it would be one of those matters under considerations. Tactical warning carries with it some amount of time urgency. Either for survival of the decisionmaker or a decision about what to do in terms of responding. Strategic warning is not. More time gets introduced into these scenarios as you go from the most extreme stressing scenario to the left. That is the next in reo where it is more strategic and you have time. Lets say you get in order to launch. But for me in a position and you know you have not followed the process. You believe that is an illegal order. No. You have to determine whether that is illegal. You believe that is your responsibility. You have the authority. Because we have not followed steps, we havent gone through the process. I would have said i have a question about this and i would have said i am not ready to proceed. Then what happens . I dont know. Exactly. Never. Tely we have these are hypothetical. We are real in terms of this. We are holding a hearing on this. This is the human factor in our system. The human factor kicks in. There is a Human Element to this. At that point i think, as with any military order, it doesnt matter really the consequences are higher, but it is the same principle on any order. There is a lot of human intervention between a president ial order when time is not imminent to ask the questions, to lay out the fact we have not gone through this process. Have comfort that even though the president has the authority there are limits to that even in this context when there is time. I believe that is true. Even if time is compressed there are circumstances i could envision where i would have said the same thing, which is stop. To resolve these issues we need to address this question. The process provides for that in that it is ultimately an interaction amongst human beings. The decision of authority resides with the president. Thank you for those answers and thank you for your service. Personre we move, the who was in your position as a Senate Confirmed position. Person in your position has been recommended by the military or how does it typically work . I can tell you how it works for me. The secretary of defense in my case interviewed a number of candidates, decided on a candidate to recommend to the president. There was a process that was gone through their at some level and i became the president s nominee to the senate. Most people who have ended up in these positions, are they people who have moved up through the Defense Mechanisms solely . This is not a political position typically. It is based on merit. It is not a political position. It is a position that is based and ielieve experience would like to think merit as well. Certainly experience. There are a lot of factors that go into selection for senior command. For is a great question other witnesses who have been in the position of selecting senior commanders. I was the beneficiary of that. Point, thevantage process is the process the secretary and the chairman. They huddle and look at various candidates and under president obama, he interviewed most of the candidates personally recommended for selection. Typically in recent years the commanders of some have been typically four stars on their second or third assignment. I was not a first time for star when i was nominated to take command. That was my second fourth star. Thank you mr. Chairman. Think the witnesses for being here today. U. S. Nuclear of weapons would appear to be a clear declaration of war. Nuclearpient of a attack would perceive it that way. Only congress can declare war. Should congress where the president to seek authorization for the first use of Nuclear Weapons. Why or why not . As i laid out in my Opening Statement it is my view if United States were to initiate a ,ar with another Nuclear State the use of Nuclear Weapons might be possible. That congress should authorize. If we are under attack from a Nuclear State, using Nuclear Weapons, but is a different question and the president would have the authority to respond with a conventional or Nuclear Weapon. The hardest question is the inbetween, what senator johnson was getting at. It . Ed you find where do you define it . How do you define it . Would be faxed to assist specific. The most obvious cases we see a missile on a launchpad and we have good intelligence they intend to launch at the United States. That seems like a clear case of eminence. That tod move down from where it becomes less imminent and more like a preventive attack. Distinguish between scenarios where the military wake up the president , versus scenarios where the president is waking up the military. Where the military wakes up the issident and warms him there going to be an attack, and those studies the president has a limited time window to make a decision. He would make a decision and have the authority to make the decision. I think we believe the system would carry out the order that he gave. The electorate on election day chose him to make that decision. And the other contexts where the president is met waking up the military, and that setting he requires cooperation of a lot of people who would be asking the questions the general outlines. What is the context. The president alone could not effect the strike. He would require lots of people cooperating with him to make the strike happened. They would be asking questions that would slow down that process. The context matters greatly for this. Our experience is that the president has asked for authorization when he is initiating a confluence conference. I think if there was that kind of context the president would expect to go to congress for authorization for something in that style. For the u. S. Air force instruction, the twoperson concept is designed to prevent an accidental or malicious launch of Nuclear Weapons by a single individual. Thell only accept only exception is the president. With not make sense to require at least one other person sign off on a decision to launch a first strike. A constitutional officer such as the Vice President . Senator, there is an adage in the law which you may be familiar with. Hard cases make bad law. I think taking away the president s authority as commanderinchief or diluting it requiring them to go to another constitutional officer, i am not sure that is a wise course. It would be a rare case where the president would not consult itll senior advisers is just automatic in the system whether the time is there or not. It would be very and usually that did not. Do you disagree or agree with that . I do not disagree. Any law that raises constitutional questions will be difficult to get past and very difficult to implement. Do want to make sure you propose a fix that undermines the Nuclear Deterrent and compromises the effectiveness. I agree with my colleagues. There are two different questions at work here. One is a question of Constitutional Authority, and what the commander in chief is allowed to do, and the other is a principal and processes and theedures that ensure that authorized use remains at the most senior civilian authority and unauthorized or accidental use cannot occur. Thank you. Thank you. Palomos i think all of our panelists today. You indicate the legal principles of military necessity , distinction and proportionality apply to nuclear plans, operations and decisions. Legal advisers are deeply involved at all parts of the process to offer perspective on how force is used. A few observations. I will give you general and you mr. Mccann, since you are the attorney on the panel, an opportunity to respond. Its unclear to me what the a personndard is for to determine whether or not these legal principles have been satisfied. Is the standard that no reasonable person could conclude the order was necessary or proportional, or is there another Legal Standard . Or is that left strategically vague . The second observation is it is unclear what the commander in chiefs recourse would be if in fact a military person decided not to move forward with these orders based on principle legals grounded in the principles of military necessity and proportionality. What if the military person regards the order as illegal, decides to do what we are taught in the military, make known their decision and refuses to obey that order. What recourse does the commander in chief have in the wake of such a decision . Observation, i am perhaps most ofers are as well, any sort discernment training. Training of our military personnel to be able to apply these legal principles to different circumstances, two Different Military contingencies. Considering legal questions in advance seems distinct from making firm legal determinations in advance. Of, going through a series wargames or contingencies could sharpen ones ability to apply the facts of different complicated global circumstances , to these legal principles. Like tot, if you would comment on any of those observations, why dont they start with mr. Mckeown. Senator young, on the second question about legal recourse, if you had a commander saying that he did not believe it was a legal order, the chain of command runs from the president , firstuppose probably the recourse would be to call the secretary of defense to tell him to order the commander to do it. Eithercommander resisted get a new secretary of defense or a new commander but you would have a constitutional crisis on your hands. Im unaware there is a strict Legal Standard, like a no reasonable will person on the judgment of distinction because it is not an instance that would get litigated often. Im not a dod lawyer. Im just a lawyer in this committee. It would be a judgment based on senior military officers like the chairman who would be in the conversation, and their Legal Advisers who would have heard between 30 and 40 years of military experience and understand how to make these assessments. Thats the best answer i can give you. General, do you have anything to add. These would be highly classified training regiments, if you prefer you can breathe me in a classified setting, about our ability to train people to proportional had been orders ordered. We do train. Everyone in the military on what we call the law of armed conflict. That occurs somewhere every day and includes Nuclear Forces, it includes everyone wearing a uniform. That is not a foreign concept to people who wear our uniforms. In terms of what is legal precedent here . I cant answer that off of the top of my head. I dont know what the Legal Standard is for determining military necessity. Say, for Nuclear Decisionmaking, it is a consultative process. There are senior people involved in that process where my expectation always was if there was a question about legality, if this was something we planned , those issues have been addressed and resolved prior to the time the plan becomes part of the playbook. We have already been through that for this or this. There are many options that have been preplanned. We would follow through. That happens faster but we would follow through with the same Legal Standards. I always assumed it issues got raised at the most senior level we would be able to resolve those issues. By thewas described chain of command operator. For convening this hearing. This is fascinating. Thank you for being here today. Let me pull back the cover a little bit. That thencerned president of the United States volatile, has, so a decisionmaking process that is so quick that he may open order a weapon strike that is out of step with National Security interests. Lets recognize the exceptional nature of this discussion we are having today. Ofant to pen together some the questions that have been. Sked in a more pointed form we have been talking about ways, the reasons that an individual in the chain of command may decide to refrain from carrying out a particular order because of illegality. Senator young raised good concerns about the difficulty of evaluating whether a particular order is necessary or proportional. Let me just ask a simple question. Inone of the questions asked determining whether an order is not therewhether or is a declaration of four that allows for that military action to take place . Whether have to be an independent legal determination made that there was an operational declaration of war in the absence of an attack or imminent threat . Looking at me. Are you asking me . Sure. Force and whether or not there is a declaration of war comes back to context here. , ileast from my perspective always viewed the use of Nuclear Weapons as fitting in with our declaratory policy, which is that we would be in extreme circumstances come and it was described well, in the last Nuclear Posture review, but was described by various administrations that we would have to be in some extraordinary circumstances and we would be dealing with National Interests that are at stake here. I cannot recite authority that has been granted in the past to weapons,ith nuclear but my belief, and i could be wrong here, was that this issue of strategic and tactical warning had been addressed in were ethics and that we not on shaky legal ground if we toe talking about responses strategic or tactical warning. Murphy the chain of command is being asked to carry out. Do you agree . Right. One of the things officers what under what authority are we conducting this operation that would require referring back to what are the authorities . They could reach the judgment it is the inherent authorities in article 2 of the commander in chief clause, so you would require a legal judgment and there is legal staffs throughout the chain of command. What would be the case is it would not either president alone persuading a single military officer alone on the other side of the telephone. There would be a large group of advisers and Legal Advisors weighing in on this, and that is an important part of the context that is sometimes lost in the media coverage. There would be a lot of people under the scenario you described, not imminent, not making the president up, that we have time to the site of many people would be weighing in, including many lawyers. Senator murphy i think this was answered to a certain extent, but i will ask you. With the possession of a Nuclear Weapon capable of reaching the United States constitute an opinion,attack in your the simple possession of a capableNuclear Weapons, of hitting the United States does that constitute an imminent attack . Im not a lawyer, so im not qualified to assess that as a legal test. I think it would be a grave threat to did National Security, particularly if it was a north Korean Nuclear warhead on top of a missile hit a wall reaching the United States. Most americans would view that as a grave threat to our National Security. Whether that would meet the legal test of imminent would require legal judgment. Senator, the mere possession of Nuclear Weapons, i do not think, would meet that test. I think there would be time required for congressional authorization if the decision were taken that the mere possession of a Nuclear Weapon by a state such as north korea was unacceptable to u. S. National security. They have a Nuclear Weapon today. We know that much. Senator rubio . Senator rubio this is an important conversation but one we should tread lightly on. Our allies who rely on u. S. Defense assurances are watching, and if we create doubts in their minds about the capability of the United States to live up to those commitments and im not claiming that that is what anyone is doing a good have repercussions that it could have repercussions that are significant, including detroit capability, actually making it more dangerous. I think our adversaries are watching. I think if anyone thinks they can get away with something because the politics of the United States would prevent the commander to act expeditiously, that could encourage miscalculation, occurred especially on the part of people who are isolated, do not get a lot of information, and have never had people telling them wrong or no. Person in north korea that concerns me in that regard. I do not think there is any debate under attack. I think we would all agree that the president has to have the capability to quickly respond if were under attack and or under potential imminent attack, and there could be some debate about it. It is important for us in the context of this new posture review to know the traditional cold war threat of a massive change between u. S. And that then soviet union is probably not likely in the shortterm. I think the likelier threats remain the use of russias , inical battlefield weapons order to deescalate a battlefield event, a terrorist device or weapon of mass distraction, or a rogue regime. It is basically one guy who has a bad night and gets up and decide he wants to do something about it. It is important understand this. This whole debate is about first use. I want to touch on a topic that was in the cold war in the context of a conventional advantage, but we also saw it in the gulf war, the notion of calculated ambiguity. , believe it served us in both particularly in 1991 when Saddam Hussein was tended to use biological or chemical weapons. One of the reasons he cannot pursue it was there was calculated ambiguity about whether or not that would trigger a u. S. Nuclear response. I think we could all foresee what that conflict would have looked like, had he deployed biological and or chemical agents he had in his possession that he could eventually could have used. Ambiguity still and apart concept in a 21st century, about whether or not the United States retains strike first should they use a weapon of mass distraction . Ambiguity is calculated and beauty still useful ambiguity still useful . That enhances our deterrence to have some doubt in the mind of an adversary about under what conditions we would use a Nuclear Weapon. Senator, i would agree and go further and say that president obama, who was no fan of Nuclear Weapons and put us back on that Nuclear Threat index in his 2010 Nuclear Posture review, left in place calculated and the community and precisely these scenarios. Rewriting of it was taken to meet we would not threaten countries who were attacking us with nonNuclear Weapons, but a close reading of what he was deciding left in place left enough and the goodies to achieve the deterrence effect you describe. That was from a president who was openly hostile to Nuclear Weapons. Yes is the answer to your question. The last point is if it is legal you have a right, and we understand what that means. If military officials are ordered to kill everybody, that clearly violates the law that armed conflict. He cannot have a bunch of bunker lawyers or activists up and down the chain who decide they are going to disobey any order they disagree with. We can foresee Something Like that could spin out of control and ultimately in this republic, we have elections, and one of the things voters think about when they elect someone to the office of president of the United States is whether or then want to entrust is whether or not they want your trust them with that capability. It is important when we think about that component. i cannot agree more that both for our adversaries and those who are friends that we need to be careful in how we discussed this. We do not want any of them to fear that somehow the ability to make decisions that benefit our fitntries and them or disbene them if they are acting against us is taken away. Senator markey . Senator markey thank you for having this important hearing. I requested this several weeks ago and i think it is important you have such an important few questionsause are as important to u. S. National security as the question of president ial authority to use Nuclear Weapons, not only to deter, defend against a Nuclear Attack, but also to start a nuclear war. Nuclear weapons are for deterrence. Launching Nuclear Weapons first would be an unprecedented act of aggression and war, whether limited or massive. Any first use Nuclear Strike would evolve into retaliatory strikes and war causing unimaginable death, suffering, and discussion destruction. Absent an attack upon the United States, or our allies from know humanuman being no one being should ever have that capability. Yet under existing laws, the president of the United States can start a nuclear war without provocation, without consultation, and without warning. It boggles the rational mind. I fear in the age of trump, the cooler heads and strategic doctrine that we once relied upon as our last best hope against the and think of all seem less reassuring than ever. In other areas of government, of constitution system checks and balances interest the president does not have sole power to make extreme decisions without some level of national consensus. On the president s Sole Authority to start a nuclear war, even in the absence of a Nuclear Attack against our country, no one can tell the president no, not secretaries mattox or tillis. Even general kelly come up this chief of staff, cannot control the president s twitter tantrums. Many americans share my fear that the president s bombastic words could turn into nuclear reality. The fact that any american president has the unilateral ability to start a nuclear war is why i have introduced legislation cosponsored by 13 of my colleagues to restrict any president s authority to launch a first used to clear strike without congressional authorization. The Founding Fathers believed congress has an integral role in any decision to start a war, and today more than ever, it is imperative that congress reassert that Constitutional Authority. Is the president legally required to consult with the received approval from anybody else before ordering the launch of a Nuclear Weapon . In the context you to strive in the absence of an imminent attack, the constitutional cars them to come to congress to get that authority. Markey does the protocol to launch a Nuclear Weapon change if we are under Nuclear Attack or deciding to launch a first you strike . It is different if we are not under attack. Those are two different questions. If we are under attack, the president would have the authority under article two to defend the country, and there is no distinguishing in response to such an attack. Senator markey is there any process from the secretary of defense down to the submariner or the airmen that may object to or legally refuse to carry out a president ial order of launching a Nuclear Weapon . The general has described the officers in the chain of command, the Senior Officers and the secretary could raise objections if they believed the order was illegal. I think the system is designed to protect the first or second lieutenant, 23yearold air force officer sitting in the Launch Control center and having to make that great decision. It is the secretary who needs to bear the burden. Senator markey because disobeying of an order would be a violation of law other than of law under the code of military justice. And or your testimony, you say that in august, the National Security advisor, mr. Mcmaster, suggested the possibility of a preventive war, which would require the congressional authorization. In other words, if there had been a decision that it was being made by the president to use Nuclear Weapons, maybe small technical Nuclear Weapons, to hit a Nuclear Weapons system in known locations in north korea as part of a preventative nuclear war, it is your opinion that the president would have to come to the United States congress in order to receive congressional approval. Did that correct . Is that correct . That is correct. Senator markey so when general mcmaster talks in those terms, or method of war preventative war, and that is what most people are concerned about, this question of the president actually using them as part of that kind of scenario, there is in your opinion a constitutional responsibility for congress to have dinner photo on that before such a nuclear war is commenced by the United States . Credits, and in my view, the president would like the authority. We had hearings on this committee, but in the judiciary inmittee before the gulf war 1991, and i was working for chairman biden. One of the witnesses who was the Legal Advisor said something that stuck with me, who was which was silence from congress, then the answer is no. The sound ofy silence has finally ended after 1976 today to this issue, i think mr. Chairman, you deserve much praise for having this very important discussion. Senator corker thank you so much for your interest in the topic and for pursuing this for so many years. I also want to thank you for having this hearing. A strong belief that other administrations of both parties and under both parties leadership there has been a creeping abdication of power from congress to the present. Those are powers important that but also in the powers to oversee treaties another diplomatic matters. In recent years i think this committee has started to pull some of that power back to this end of coming and the. That is what the iran review act did. President obama was asserting an ability to do this deal with iran on the Nuclear Program about seeking a vote of congress, and we felt no congressional and premature was very wise. We pulled that back. We pulled that with respect to the russian sanctions, turn to pull back that oversight responsibility. I have been engaged with an effort and the chair has held a hearing on the question of 9 11 authorization, whether it still applies to military operations against other nonstate terrorist relations than al qaeda, and i view this hearing much the same way, that we share an understanding of what current protocols are, but asked whether congress is taking the steps we need to to make sure we, abdicating the responsibilities we were granted by madison and the other founders in 1787. I was interested in your testimony about, from a military standpoint, as a leader, your thought about an order, if the present gives an order and you would grapple with whether or not you would view it to be lawful. The question of legality and lawfulness starts with the constitution. Oaths to theke constitution, not to a flight, not to the present. We take an oath to the constitution. If you thought an order violated the constitution, i assumed that was incorporated in your testimony. I wonder about your thought it isinternal protocols, more than just a constitution, but you would feel in order to use a Nuclear Weapon, filing internal protocols that have either the military, with respect to proportionality or protocol, is that the kind of using it as a hypothetical, with that be to kind of thing that no, i cannotide, execute that him and im interested if there is a widely shared view of what this line between a lawful order and an unlawful order would be. Excuse me, senator. Senator, this issue about legality of orders exists at every level of command, no matter whether the order is to use Nuclear Weapons or to use some other kind of weapon, perform some kind of operation. The principle remains the same. In order for our military to follow the orders of the civilian leaders, then those orders have to be two things. There are a couple of tests. One test is it has to come from someone who has command authority. And, second, it has to meet the legal test of the law of armed conflict. Issues about the extent that president ial authority, etc. , are really constitutional issues for all of you to hammer out and then provide to the military. That is the way i think that works. And then, second, though, when these issues are in military decisionmaking, i always had a Legal Advisor by my side. I think you would find commanders across the board these days have Legal Advisers by their site. The secretary of defense and people who would be part of a conference having a conversation legalNuclear Decisions, advisers would be part of that conversation. And certainly my experience with this has been that Legal Advisers are not reluctant to raise their hand and say before we go further, here are the things you need to consider about legality. Whatnk the points about at point do we need congress to weigh in, etc. , while they might not be at the fingertips of every military commander, there certainly discussed in the military legal profession. And so i was never concerned that i would not have the appropriate Legal Advisor at hand and that legal concerns would not be part of the conversation. I am about out of time, but if you would like to answer that. The military has an obligation to follow legal orders, and there is a presumption that the orders that come through the chain of and from Cotton Authority are legal, those orders are summit tenuously vetted by the legal vetted byously the Legal Advisers. That does not mean that every order that comes down is an opportunity to discuss and debate between the chains of command. There is a perception that the orders are legal. And when there is an extraordinary order, i can order to launch a Nuclear Weapon, that would require a lot of attention and would galvanize attention. The second point i would make is may, chairman, want to have the respect talk about what are the legal authorities that are extant now regarding conflict on the Korean Peninsula. We are still under armed hostilities, just in an armistice on the first korean war, and it had been awful you councilu. N. Security regulations. Im not a lawyer to adjudicate those rate im sure the dod lawyers are looking at those issues. May i add one more thing . I know the sender is out of time. The senator is out of time. If i was not getting legal import, i was asking for it input, i was asking for it. My response ability as commander command was to clear up any of those concerns. They are not in a position to make a legal determination with an order that is given to them. For example, i spent time in a missile Launch Control center in the early parts of my career. Whether the to know target i was being told to strike was a legal target or not a legal target. I was relying on people above me in the chain of command to carry that out, and my view as the commander of Strategic Command was that was my responsibility to do. Senator corker what was your last admonition to me . It was not an admonition, but a suggestion. Corker i took it as an admonition. It would be what would be the authority, and while it would be politically advisable that the president go to congress to get new authorization for any new hostilities, it is at least possible and i am not a lawyer, so i suggest lawyers be consistent consultant on what is the legal basis existing because of prior Security Council resolutions that authorized the first korean war, which is not over. It is just in a ceasefire. And then subsequent resolutions regarding north koreas illegal Nuclear Program. Senator corker very good. If i could brief on senator kaines issue. Ican recall a circumstance, will not identify the commander and it was not a nuclear issue, where a commander was seeing a scenario where he saw he was going to get some order, and he was wondering whether that would be a legal order come and he started asking questions months in advance of the office of the general counsel in osd. I obviously it is a human system and human system can break down, but we have people to not get to be fourstar generals unless they are strong individuals. Senator corker thank you. Senator rich i want to thank all three of you for your analysis of the issues. Everyant to state that single word that has been uttered this morning in his hearing is going to be analyzed in pyongyang. They are going to look very carefully at how we, the American People, viewed this. And for those doing the analysis, i want to underscore is notcussion here today as practical as it is academic. About have strong ideas the power of the first branch, congress, and the second branch, the president and the military. The constitution was written in a day when things were much different than they are today. They were much lower than they are today. Every time the president has he has been backed by the record people and congress. I want to make sure that towne thaterstands pyongyang understands that this talk about standards and proportionality and all the other things we talk about is not a discussion that is going to take place in the heat of battle in todays world. These decisions have to be made in moments, and it is not going to be made by courts or by lawyers or by congress. Made bying to be commander of chief of american forces. And he is going to do that, as you pointed out, with the experts he has surrounded himself with, but nonetheless he will make that decision. And pyongyang needs to understand that they are dealing with a person who is commander in chief right now who is very focused on defending this country, and he will do what is necessary to defend this country. Anyone to confuse, which most people would be, and i have sat through scores of articles about the power of f, thatmander of chie power of congress, from a practical standpoint, the president of the United States is going to make this decision and he will make it quite quickly if he has to. So i want everyone to understand how this works. Situation, itave is not a situation where lawyers are going to get involved and theyre going to be arguing about proportionality and other standards. Unfortunately, we live in a world that is full of realistic ,ecisions that have to be made and they will be made. Thank you, mr. Chairman. I think that is the reason we are having the hearing. Thank you so much. But we respond to that. I agree with that, and i the i think a hearing we should have the hearing. The problem is there are legitimate disputes over the power of the president and the power of congress when it comes to this sort of thing. I want everyone to understand, particularly those in pyongyang, that these are pragmatic decisions that have to be made and will be made, and they are not going to be clouded by argument of an army of lawyers on each side arguing what is proportional and what is not. You can argue whether that is right or wrong, but that is the facts, those are the facts on the ground. Senator corker i think that is thinkt, and i do not theres any question, and one of the reasons we have passed some of the pieces of legislation that we have to the years from whether it is the huron review review act oriran the russia sanctions that we passed, there has been a tremendous tilt to the executive branch, and certainly still is and will always as it relates to war. Theres no question. I think it has been a good hearing to ferret out some of these issues and cause us to think more fully about what happens during these periods of time. Somethingve you said to the effect that in the case when you have time to consider a response, and the cooperation of many commanders is required to execute in order. Is that accurate . Auidio] does that sustain a decision in order for that briefcase to be utilized . I cannot speak in open session about the particularities, i will say the system is not a wanton that the president can accidentally a button that the president can accidentally leaned on the desk and cause missiles to immediately fly, as some people in the public are feared it would be. It requires the people to work with military aides that are attending him and have possession of materials he needs and it requires personnel at all levels of the command all the way down to the missile silo to carry out an order. The president by himself cannot press a button and cause missiles to fly. He can only give an authenticated order which others would follow that would cause missiles to fly. Context, you put the condition when you have the time to consider response, so when you do not have the time to consider a response, there have conversations they about reacting to a short order and assault. Is it till the case that you have to have the cooperation of should you commanders to execute in order . Yes, but in those settings, that is where the president is waking up the president , because they are the ones monitoring the intelligence picture, the ones who are getting the warning that a Missile Launch against the United States is about to happen , and so they are already cooperating by waking up the president , advising him or her of the situation, and presenting them the range of options. I would code that as cooperating with the president in order to give the president the options of making a decision. Those are the types of scenarios they give people nightmares. It has been over a dozen such scenarios of false alarms where there were folks on both sides, the russians and the americans, that had been worried that a major attack was underway with minutes to spare. I would like to enter into the record an article that details more than a dozen of such events. There is the famous moonrise incident in 1960. Theres the training video incident of 1969. Theres a case when yeltsin accidentally activated the briefcase, in response to a Nuclear Research is helping launched by the norwegians. And it is those cases that give people great worry. And part of the point of the Nuclear Triad and this has not been mentioned, so i will to make sure it is mentioned part of the point was to have forces that could survive an initial attack, submarines and bombers that carry weapons, so that you do not have to make a decision within a couple minutes. You had a short retaliation with at least two bank legs of the triad that ensured survival. Can i get a response as to reasonablet is a analysis . I think that is, and that is precisely why no previous strategic leader decided to put in place an automated response. They always wanted a human in the loop. And then the cases you mentioned, there was a human assessment concluded this was not real, you have time to wait. And is why i would support advocate for anything that can be done to extend that time, whether through better missile defense, more hardened indications technology so more people can be brought in updating other aspects of the command and control system so there is time for the Human Element to make the assessments necessary to reach the right decision. We have had too many close calls over the course of the cold war, but they were avoided in the end by wise human decisions. In some cases i will not going to details. In the 2010 Nuclear Posture review, is it not the position of the united dates that we essentially are saying we would not use a Nuclear First strike against a nonproliferation treaty participant who does not have Nuclear Forces . I have written an oped in the New York Times about this. That is how was covered in the ba, that if you read it closes, it leaves wiggle room, because it says those countries in compliance with the nonproliferation treaty leaves open and it take who determines whether they are in compliance, i inferred from that capacity that it was the white house would determine whether they were in compliance, which is a loophole that gives the president strategic ambiguity that he might wish for deterrence purposes. Part of the reason for the discussion over no first use is because it creates more confidence among other nations that are Nuclear Armed not to proceed a false attack by the United States that occurred in case, do any three of you see diet in strengthening the perception that the u. S. , by policy, would not utilize Nuclear Weapons in a first strike . I see some value from such an assurance, that i also see some costs come and i think that is what every previous administration, including president obama, who might have been expected to adopt a no first use policy, chose not to nothe end adopt a blanket first use policy. I doubt this administration would either. If obama cannot be convinced it was worth the risk, i doubt President Trump would be. There is a longer conversation about the pros and cons for that, but im out of that. Senator shaheen thanks for holding the hearing, and thank you for being here today. Doctor, in written testimony you techven a single Nuclear Nation would be so consecration and trigger an ethical authorities prior role that would lead to civilizationthreatening outcomes. And i ask if everybody in the panel agrees with that . Aye. I would agree with it in for the in principle. Determinantsf the deterrence features that has been with Nuclear Weapons since the beginning has been a high risk that any nuclear use cannot be controlled. Senator shane and added shaheen and that leads to the deterrence. That . Do you agree with that . I agree with peters statement. Senator shaheen it is that statement that gives me and others pause and is one of the reasons for the hearing, when we have an administration where the National Security adviser has we can have a preventative war on the Korean Peninsula when the president has said he has asked our military leadership to come up with plans to address the north korean regime. It suggests what were talking about his a nuclear war, a first strike. The potential for that to escalate, as everyone is very difficult to even contemplate. And i think one of the challenges is that we are dealing with a president , as senator cardin has said, who has not seemed to be willing to issue vice on an many issues affecting power. While i agree with the senators comments if the United States is threatened, the president will act, i want the president to acknowledge input from a lot of experts and not act waste on a and the anxiety that that produces contributes to the concern about whether we are in a situation where we need to look at in congress a first Nuclear Strike policy and banning that. Can you imagine a policy that would limit the president s authority to use Nuclear Weapons and not weaken the deterrence value of our Nuclear Arsenal . In thinking about this hearing, i have struggled to come up with constructs that make sense. It is hard to develop a principled way to constrain the commander in chiefs power within the executive branch, as i said earlier. I think hard cases make bad law, and if we were to change the decisionmaking process in some way because of a distrust of this president , i think that would be an unfortunate prece dent for future president s, and i say this as someone who has worked in this chamber for 20 years. Are proposalsre that are floating out there that are worth looking at. Theres a group of academics like myself who study this issue, and weve been kicking around various proposals that would limit the scenarios so it would set aside the reprisals, the launch under attack scenarios, and just where there is plenty of time, then specifying various protocols for authenticating an order for validating that the order is legal and things like that. Raises these proposals important questions about article 2, so they would have to be closely fetid. Their proposals like that vetted. There are proposals that could be improved. There are proposals that could ismbiguously help, and that modernizing the technology in the command and control system, is overdue in some areas for upgrade. These are very expensive, but precisely for the reason you accidentator, that an and unauthorized use would be so catastrophic and be worth making. We talked about potential scenarios this morning. My view on this is it is not possible to envision all of the scenarios in advance. And when we tried to come up onh ways to place limits various scenarios, my concern creatingthat we are some detriment to the overall deterrent. Unfortunate as it is, the big paradox of the nuclear age is here. And order to prevent their use, the objective, yet be prepared to use them. For us to presuppose all of the scenarios under which we would want to somehow limit the power of the commander in chief, i would urge you to be very cautious for all the reasons that were raised today. It has implications for the deterrence. It has invocations for extended deterrence. And it has implications if these just remain unresolved issues. Our ownmplications for military men and women, and the confidence and trust they place in the chain of command. So certainly i believe we always get better by having these conversations and debating and do all the things we have done throughout the cold war and beyond. I would urge you to be very cautious about suggesting changes to this particular system. Again, my perspective from my view was that the process accounts for the kind of scenarios that weve been talking about today. It certainly accounts for tactical warning that if an attack is underway, and we are preplant and the vetting has been done, it accounts for the anential for using before adversarial weapon has been used shaheen and i hear that and appreciate the caution. But doesnt it also suggest that it is also important for the commander in chief to also be talks abouthow he this issue so there is not a miscalculation on the part of our aggressors who would do us harm about what is the real intent here is. I agree with you on that, senator. The statesmans the president makes through his twitter account no doubt the statements the president makes through his twitter account no doubt confuse those on the other side of the pacific. When he says and omar that is armada is coming, that has to give people pause. We have policies, we have the National Command authority, secretary, and the chairman will take care of it. That does not compute in kim jonguns mind that what the president says is not matter. Does not matter. Corker it has been from my perspective a great hearing, very balanced. After 41nformative, years of not having a hearing on this topic, and i appreciate all those, including crs that encouraged us to do so, if in fact you feel like you did. I think you basically you are saying you do not see any legislative changes that ought to be made at this time. I think that is where you both are. I think what you were saying was really not legislative changes as it relates to the power that the commander in chief has. Youre talking about other pragmatic changes as it relates to just the decision tree. Is that correct . After the command has been given . I would be wary of legislative fixes because there is the secondand thirdorder effects that are hard to anticipate, and history of the Nuclear Command and control system is discovering that changes that have been made and well intentioned in one level, inducing unexpected result another aspect. I would be wary of legislative fixes, but that does not mean i would not review them. Part of the value is reassuring the American Public that they have a Nuclear Arsenal that is well maintained and well guarded against unauthorized use. I think the senators are channeling concerns the public has about this, and reviewing and not designed to make a legislative fix and go some distance to reassuring the public. To comment on what you said, i am wary of the legislative change on decisionmaking process, but the larger conversation we have had in this hearing about the war power really falls on you and your colleagues here in this body to continue to step forward and make the case for the constitutional imperative. 1990 andhe gulf war in the iraq war in 1992, in 2002, the executive branch was grudging to acceding to a congressional vote and authorization, and george h. W. Bush said something disparaging saying i do not need some old goats in congress to go to war against iraqi. Additional thing in the executive the institutional thing in the executive branch as we can always do this under article 2. You will need as a clinical body to continue to assert your rights to make the case we discussed. Senator corker thank you. I agree with the points that have been made. I would not recommend changes at this point as well. I would recommend a couple of things that i know are being openly talked about why my colleagues who are still wearing uniforms. One of those is we can always do a better job in training are people who are involved in these processes in terms of where the safeguards are. And the fact, the point i was trying to make about raising the legality issue is to remind everybody the military does not blindly follow orders, and that is true with nuclear orders as well. That should be a reassuring piece for the American People, and it ought to be reassuring to our allies and adversaries as well. The final thing i would do is it is time to invest i know this committee does not have jurisdiction but it is time to invest in the Nuclear Command and control identification system. It has suffered from a lack of investment for too long, and i think it is important that congress be on board to modernize that system as a high priority as well as corker when we did the new start treaty, i was part of a group on our side of the out that approved the treaty, and it is part of that, and im glad i did. It was the right thing to do. As part of that, we push the administration towards modernization. Would all three of you agree arsenalhave our nuclear as coming down, we want to make sure these weapons in many cases created 50, 60 years ago, we want to make sure if they are called upon to be used, they will actually do the things they are intended to do . Three of you agree that the continuing modernization of our Nuclear Arsenal is something that protects our nation and ensures terribleterrell event they are necessary, we have the capability of th delivering . Yes, i do. Aware of should be systems that create greater security in our system. I would use the word recapitalization of the warheads and the fat forms of the triad. On the latter, all the platforms are aging out simultaneously, and the plants to replace them over the next date will be an expensive proposition. If the policy decision is made to maintain a triad, then those investments in those platforms will need to be made. Sen. Corker i would admit that arefacilities where these modernized and developed, it is amazing that some of the guidance systems that had been in existence are not much more sophisticated than that to you on a black and White Television than the tubes on a black and White Television. We need to make sure we are investing and using the proper technology. Case they arenate utilized, they would actually be there for us. Other countries are aware of our need to modernize. If i may, just for a minute . You may. I thank you. I want to devise this western for the 20 regarding this question for the committee. From a president launching a Preemptive Nuclear war against another country, i think that is really what is of most concern to the American People, that no one human being should ever have that power. From my perspective right now, given what general mcmaster has said about the potential for a preventive war, that means there could be plans in place right now in the white house given to the president to launch a preemptive war against north korea, using american Nuclear Weapons without consulting with, informing congress, whatsoever, by aggregating that power to the in clear branch, violation of the United States constitution, in clear violation of the United States constitution. Which we the extent to are having this discussion and there is legislation that is pending before congress to ensure that congress reasserts its authority to ensure that a nuclear war is not begun in the name of the United States by this president or any president , i think that is a legitimate constitutional prerogative that we should be real. Be reasserting. Trustot think we should the general to be a check on the president. I do not think we should be trusting a set of particles to be protecting the American People from having a nuclear war launched on their behalf. I do not think we should be relying on a group of individuals to be resisting an illegal order when they are all pretty much hired by the president to have the present death jobs in which they had. There is a homogeneity inside that decisionmaking process, mr. Chairman, that does not in fact offer real resistance if the president absolutely insists upon his way. That is just the reality of it. Gentleman with the that it should be the congressional prerogative to declare a nuclear war. I think that is something that we should just continue here to explore, given the assertions made by the National Security adviser. And i would think our other two witnesses would agree, that if there is a Preemptive Nuclear war, it is being considered, that congress does have the constitutional responsibility, although it has been left, as was said, in ambiguity. President uity and after president has thought about whether they are going to be delegated to our authority. This is thehearing, place. I am glad you are kicking it off, but i do not think the assurances that i have received to theill be satisfying American People. I think they can still realize that donald trump can launch Nuclear Codes just as easily as he can use his twitter account without the check and balance that the United States congress would be seeking and constitutionally is possible to exercise. So i think this has been a historic hearing, and i hope theres more to follow. Thank you, sir. Sen. Corker thank you. I thank you for being here. I cannot imagine a more balanced panel, a more sober panel. We thank you for that. Thank you for your service to our country and being here. Your Previous Service in other ways. Followup questions, if you could say that Committee Members will close that process on close of business on thursday. To the you can answer those probably, we would appreciate it. You have conservative greatly to the National Debate and the dialogue today. We thank you very much. With that, the meeting is adjourned. [captions Copyright National cable satellite corp. 2017] [captioning performed by the national captioning institute, which is responsible for its caption content and accuracy. Visit ncicap. Org] i tonight, joe biden and Ohio Governor john kasich speak about partisanship in the trunk era. Biden i wast recently with a Prime Minister in europe, and he wanted to see me. So i thought it was a courtesy call. I thought it was going to last 10 minutes. Hours. Ed 2 1 2 at one point this Prime Minister said, and did you see what he did we were sitting on the same side of a conference table he stood up and he said, he took the president of mantra may tenegro, shove him aside, and all i could think was il duce. Not a joke. That is what people are thinking. That is what people are thinking, violate the norms of generates moret anxiety and fear than any policy prescription that this president has enunciated. The discussion with former vice President Biden and governor kasich takes place at the biden you destitute by Biden Institute at 8 00 tonight. On cspan3 American History tv on70 century puritan views 17th century puritan views on women. The cspan buses traveling across the country on our capitals tour. We stopped in austin, asking folks, what is the most important issue in their state. In texas the most important thing is i was hoping texas would get rid of unnecessary and burdensome occupational regulations. The most important issue is tax reform. We have an outdated tax system and we need to get that change so every american have the can have the best opportunity possible. One of the most important issues, possibly the most important issue, facing texans in washington is transparency in government. I do not think there can be enough of it, and i do not think our leaders could ever do enough to be more transparent in terms of not only their own activities and behavior, that i think all the kinds of records that are used in government need to see the light of day and that the citizens of texas deserve to know what is going on in washington. The most important issue for the state of texas is educational choice. Hopefully we will get a bill passed next session. Voices from the states on cspan. This afternoon President Trump responded to reporters questions about roy moore, the accused who was the alabama republican who was accused of Sexual Assault of minors. President trump we do not need a liberal person in there, a democrat. Jones, i looked at his record