Louis René Beres
“He likes me.” (New Year’s Day, 2020) US President Donald Trump explaining why Americans need no longer worry about North Korea
Though written before the nuclear age, Sigmund Freud’s early warning about non-rational decision-making in world politics remains valid. Indeed, in the midst of a steadily-expanding nuclear weapons and infrastructures, this warning has become even more prescient than before. Moreover, such expanding risks need not be confined to foolishness, delusion, neurosis or lunacy. In part, at least, these risks could rise between perfectly rational and well-intentioned national adversaries, and need to be analyzed, inter alia, within the still-evolving context of “Cold War II.”
Exactly which national security risks confronting the United States are conceivably existential? Most plausible is the stubbornly complex problem of North Korea. Here, everything may first appear simple to US President Donald Trump, but would actually prove bewilderingly complex and daunting. In essence, during any upcoming periods of competitive risk-taking with Kim Jung Un, certain intersecting and reinforcing searches for “escalation dominance” by the two leaders could lead suddenly or incrementally to an inadvertent nuclear war. Most worrisome, in this regard, would be variable underestimations of enemy resolve and unforeseen synergies between US and North Korean policy decisions.
Immediately, Mr.Trump must make himself much better-informed about all pertinent nuclear conflict scenarios. Necessarily, whatever differences or nuances obtain between them, these narratives would develop within our persistently anarchicor “Hobbesian” world system. Correspondingly, both the Congress and the citizenry would need to maintain a close and preferably non-partisan watchover Trump’s discernible willingness to take nuclear war decision-making with seriousness of purpose.In this matter, the American president would need to be reminded that no genuinely scientific estimates of nuclear war are logically possible.The reason? In science, accurate probability assessments must always be based upon the ascertainable frequency of pertinent past events.
Happily, there has never been an authentic nuclear war.
I have been studying nuclear war and strategy for half a century. Following four years at Princeton in the late 1960s, long an intellectual center of American nuclear history and thought, I began to think about adding a personal contribution to the already-growing literatures of nuclear strategic thought. By the mid- 1970s, I was busily preparing an original manuscript on U.S. nuclear strategy and the corollary risks of nuclear war.
At that time, I also became interested in certain very specific questions of presidential authority to order the use of American nuclear weapons.
I soon learned, among other things, that allegedly reliable technological safeguards had been built into all American nuclear command/control decisions, but that these safeguards could not apply at the presidential level. To an aspiring strategic scholar, this ironic disjunction didn’t make any intellectual sense, especially in a world where national leadership irrationality was not without precedent. For needed clarifications, I reached out to General Maxwell D. Taylor, USA/ret., a distinguished former Chairman of the Joint Chiefs of Staff.
In impressively rapid response to my query, General Taylor sent off a detailed handwritten reply. Dated 14 March 1976, the General’s letter concluded soberly:“As to those dangers arising from an irrational American president, the only protection is not to elect one.”
Until now, I had never given any extended thought to this boldly truthful but distressing response. Somehow, I had continuously assumed that “the system” would operate according to plan. Always. Today, as the presidency of Donald Trump coincides with a North Korean nuclear standoff and still-expanding Iranian nuclearization, General Taylor’s 1976 warning takes on much greater meaning. Further complicating matters is Trump’s New Year’s Day 2020 observation about North Korean strategic progress. There was no need to worry, he offered reasuringingly, because Kim Jung Un “likes me.” And as if this might not be a compelling enough explanation, the president added: Kim Jung Un (a dictator who has murdered thousands of North Korean citizen’s) is “a man of his word.”
A primary question should now come immediately to mind. What should be done by the US National Command Authority if it should ever decide to oppose a presumptively inappropriate/irrational presidential order to launch American nuclear weapons? Could the National Command Authority reliably “save the day” by acting in an impromptu or creatively ad hoc fashion? Or should there already be in place various credible and effective statutory measures to (1)assess the ordering president’s reason and judgment; and (2) countermand any determinably wrongful order?
In law, Article 1 of the US Constitution, Congressional war-declaring expectations of the Constitution notwithstanding, any presidential order to use nuclear weapons, whether issued by an apparently irrational president or by an otherwise incapacitated one, must be obeyed. All things considered, to do otherwise in such dire circumstances would be prima facie illegal; that is, impermissible on its face. And President Trump could sometime order the first use of American nuclear weapons even if the US were not under any specifically nuclear attack, a prerogative that would add yet another problematic layer of presidential nuclear authority.
A further distinction, both strategic and legal, must be made between first useand first strike. There exists an elementary but vitally important difference. This vital difference has to do, in part, with distinguishing permissible self-defense from aggression. The latter is a properly codified crime under international law. It is, therefore, reciprocally prohibited by US law.
Where should American nuclear decision-making policy go from here? To begin, a coherent and comprehensive answer will need to be prepared for the following antecedent question: If faced with any presidential order to use nuclear weapons, and not offered sufficiently appropriate corroborative evidence of any actually impending existential threat, would the National Command Authority: (1)be willing to disobey? and (2)be capable of enforcing such seemingly well-founded expressions of authoritative disobedience?
In any such unprecedented nuclear crisis circumstances, all relevant decisions could have to be made in a compressively time-urgent matter of minutes. Such tight chronological constraints could quickly become pressing and overriding. What then?
More precisely, we must inquire, is the current US president reasonably well-prepared to deal with any such bewildering and consequential eventualities? If not, what shall we do to effectively remediate such an intolerable shortcoming? Significantly, there can be no more urgent strategic query.
. Though almost everyone might feel comforted if the escalating North Korean nuclear crisis were somehow to subside, there will inevitably arise certain other similar or plausibly more portentous atomic emergencies. To respond purposefully, this country will require far more than a purely ad hoc or reactive policy decision from the White House. It will require intersecting foreign policy goals that are expressly identified and based upon calculable considerations of intellect or “mind,” not just on idle or banal political rhetoric.
There is one last but vital observation to be offered here. Whether in reference to some proposed military intervention or some other considered military action, the American president is always bound not only by US law, but by international law. The latter, which is discoverable in various customary norms as well as in bilateral and multilateral treaties, remains an integral part of American law.Such “incorporation” is most prominently expressed at Article 6 of the US Constitution (the “Supremacy Clause”), and also at various major US Supreme Court decisions.
Is US President Donald Trump remotely familiar with this or any other section of the Constitution?
The answer is obvious and distressing.
There is more. US President Donald Trump’s policies for dealing with adversarial nuclear threats must remain consistent with presumed American military requirements and with all corollary jurisprudential obligations. Inevitably, striking the necessary and optimal balance between both coinciding national imperatives will confront this president with tangible intellectual and ethical challenges of the very highest order and simultaneously, at the same time. It follows that Americans will soon need to take more seriously (1) Sigmund Freud’s early warning about psychologically compromised or disabled national leaders; and (2) the correlative hazards of an accidental or inadvertent nuclear war.
While all accidental nuclear wars would necessarily be inadvertent, not all inadvertent nuclear wars need be accidental. Indeed, the expectedly greatest dangers regarding Donald Trump decision-making “at the brink” would concern one form or another of miscalculation, a warning that while “ordinary” competitive risk-taking with Pyongyang or Tehran might not easily be avoided, the American search for “escalation dominance” should nonetheless be tempered by presumptively core considerations of national survival.
Going forward, there could be no greater “fool” in the White House than an American president who fancies himself a “very stable genius” but patently lacks all basic elements of needed intellectual preparation. Accordingly, to avoid “havoc” – an indispensable avoidance – the American president should first learn from classic military strategist Carl von Clausewitz’s On War concept about “friction.” This oft-quoted concept references the always vital difference between “war on paper” and “war as it actually is.” Although Donald Trump still reveals tangibly little intellectual capacity to understand differences between calculated threats of international violence and US military power, it is a deficit that must first be acknowledged before it can be remedied.
Therein lies the overriding strategic policy challenge to the United States. Unless it can be suitably met and overcome, America’s rapid approach to the “brink” could generate authentically catastrophic nuclear outcomes. Under assorted hard-to-fathom circumstances, for example, there could sometime evolve an insufficient understanding of (or attention to) certain hybridized adversaries by the Trump White House, e.g., Iran and Hezbollah. These plausible kinds of deficit could include, inter alia, various unforeseen synergiesbetween state and sub-state adversaries.
For the moment, at least, America is endangered by a president who is plainly “over his head” in managing his nuclear decision-making authority It also goes without saying that American presidential obligations concerning this fearful authority are of the highest possible national and international urgency. Potentially, after all, these complex and multi-layered obligations are now literally coextensive with civilizational survival.
At no point should we regard any future presidentially-spawned atomic havoc as tolerable or forgivable.
In orthodox political science terms, positing the expansion of “Cold War II” means expecting that the world system is becoming increasingly bipolar. For early writings, by this author, on the global security implications of just such an expanding bipolarity, see: Louis René Beres, “Bipolarity, Multipolarity, and the Reliability of Alliance Commitments,” Western Political Quarterly, Vol. 25, No.4., December 1972, pp. 702-710; Louis René Beres, “Bipolarity, Multipolarity, and the Tragedy of the Commons,” Western Political Quarterly, Vol. 26, No.4., December 1973, pp, 649-658; and Louis René Beres, “Guerillas, Terrorists, and Polarity: New Structural Models of World Politics,” Western Political Quarterly, Vol. 27, No.4., December 1974, pp. 624-636.
 With anarchy, international law remains a “vigilante” system, or, in other words, “Westphalian.” This latter reference is to the Peace of Westphalia (1648), which concluded the Thirty Years War, and created the now still-existing decentralized, or self-help, state system. See: Treaty of Peace of Munster, Oct. 1648, 1 Consol. T.S. 271; and Treaty of Peace of Osnabruck, Oct. 1648, 1., Consol. T.S. 119, Together, these two treaties comprise the Peace of Westphalia.
 The chaotic condition of Westphalian global anarchy stands in contrast to the classical jurisprudential assumption of solidarity between all states in a presumably common struggle against aggression and terrorism. Such a peremptory expectation (known formally in international law as a jus cogensassumption), is already mentioned in Justinian, Corpus Juris Civilis (533 C.E.); Hugo Grotius, 2 De Jure Belli Ac Pacis Libri Tres, Ch. 20 (Francis W. Kesey, tr., Clarendon Press, 1925) (1690); and Emmerich De Vattel, 1 Le Droit des Gens,Ch. 19 (1758).
For the most part, the U.S. has been modernizing its nuclear arsenal primarily by upgrading existing weapon systems, rather than by deploying altogether new types of such weapons. The ICBM force is in a final phase of a decade-long $8 billion modernization program. Beginning in 2017, the U.S. Navy began to deploy a modified version of the trident II D-5 submarine-launched ballistic missile (SLBM). The U.S. Air Force has already begun Life Extension Programs for its air-launched cruise missile, as well as for the B-2 and B-52 bombers. In any event, prima facie,U.S. nuclear modernization efforts and plans undercut the publicly-stated U.S. goal of achieving “bold reductions” in Russian and U.S. nonstrategic nuclear weapons in Europe.
 For an early look at these problematic estimations, see: Anatol Rapoport, Strategy and Conscience (New York: Schocken Books, 1964), 323 pp.
 US atomic attacks during World War II do not constitute examples of a nuclear war; rather; they “merely” represent two instances of nuclear weapons use during a conventional conflict.
 This book was subsequently published in 1980 by the University of Chicago Press: Louis René Beres, Apocalypse: Nuclear Catastrophe in World Politics.http://www.amazon.com/Apocalypse-Nuclear-Catastrophe-World-Politics/dp/0226043606
Punishment of aggression is a firm and longstanding expectation of international criminal law. The peremptory principle of Nullum Crimen sine poena, “No crime without a punishment,” has its origins in the Code of Hammurabi (c. 1728 – 1686 B.C.E.); the Laws of Eshnunna (c. 2000 B.C.E.); the even earlier Code of Ur-Nammu (c. 2100 B.C.E.) and the law of exact retaliation, or Lex Talionis, presented in three separate passages of the Jewish Torah.
 Since World War II, aggression has typically been defined as a military attack, not justified by international law, when directed against the territory of another state. The question of defining aggression first acquired legal significance with the Draft Treaty of MutualAssistance of 1923. One year later, the Geneva Protocol of 1924 provided that any state that failed to comply with the obligation to employ procedures of peaceful settlement in the Protocol or the Covenant was an aggressor. Much later, an authoritativedefinition of aggression was adopted without vote by the UN General Assembly on December 14, 1974.
 See, generally, Seneca, 1st Century AD/CE: “We are mad, not only individuals, but nations also. We restrain manslaughter and isolated murders, but what of war, and the so-called glory of killing whole peoples? …. Man, the gentlest of animals, is not ashamed to glory in blood-shedding, and to wage war when even the beasts are living in peace together.” (Letters, 95).
 Note further the jus cogens principle that international law is ultimately deducible from natural law. In this connection, according to Blackstone, each state is always expected “to aid and enforce the law of nations, as part of the common law, by inflicting an adequate punishment upon offenses against that universal law….” See: 2 William Blackstone, Commentaries on the Laws of England, Book 4, “Of Public Wrongs.” Lest anyone ask about the significance of Blackstone for current US national security policies, one need only point out that Commentaries are an original and core foundation of the laws of the United States.
 See especially The Paquette Habana, 175 US 677, 700 (1900); and Tel-Oren v. Libyan Arab Republic, 726, F. 2d, 774, 781, 788 (D.C. Cir. 1984) per curiam.
LOUIS RENÉ BERES (Ph.D., Princeton, 1971) is Emeritus Professor of International Law at Purdue. His twelfth and most recent book is Surviving Amid Chaos: Israel’s Nuclear Strategy (2016) (2nd ed., 2018) https://paw.princeton.edu/new-books/surviving-amid-chaos-israel%E2%80%99s-nuclear-strategy Some of his principal strategic writings have appeared in Harvard National Security Journal (Harvard Law School); International Security (Harvard University); Yale Global Online (Yale University); Oxford University Press (Oxford University); Oxford Yearbook of International Law (Oxford University Press); Parameters: Journal of the US Army War College (Pentagon); Special Warfare (Pentagon); Modern War Institute (Pentagon); The War Room (Pentagon); World Politics (Princeton); INSS (The Institute for National Security Studies)(Tel Aviv); Israel Defense (Tel Aviv); BESA Perspectives (Israel); International Journal of Intelligence and Counterintelligence; The Atlantic; The New York Times and the Bulletin of the Atomic Scientists.