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A President's Lawful Authority to Respond to a Nuclear Attack:
In a recent interview with Chris Wallace, Vice President Cheney made the following claim about a President's ability to launch a counterstrike if the U.S. came under nuclear attack:
The president of the United States now for 50 years is followed at all times, 24 hours a day, by a military aide carrying a football that contains the nuclear codes that he would use and be authorized to use in the event of a nuclear attack on the United States. He could launch a kind of devastating attack the world's never seen. He doesn't have to check with anybody. He doesn't have to call the Congress. He doesn't have to check with the courts. He has that authority because of the nature of the world we live in.
  Over at Slate, Dahlia Litwick calls this claim a blunt demonstration of "the Nutty Version of the Unitary Executive Theory," and describes it as Cheney's "biggest whopper of the week":
The claim that "the nature of the world we live in" warrants a perennially unchecked executive branch can be delivered with all the gravitas in the world, and it still amounts to constitutional nonsense.
  Notwithstanding the difference between an unchecked executive and a unitary one — that is, the difference between executive powers that cannot be controlled by the other branches and an executive branch in which whatever executive power exists is ultimately controllable by the President — isn't Cheney correct that, under the usual understanding of Article II, a President has this power in the event of a nuclear attack?

  I'm not an expert in the caselaw here, but I had thought that this was settled in The Prize Cases, 67 U.S. 235 (1862):
  If a war be made by invasion of a foreign nation, the President is not only authorized but bound to resist force by force. He does not initiate the war, but is bound to accept the challenge without waiting for any special legislative authority. And whether the hostile party be a foreign invader, or States organized in rebellion, it is none the less a war, although the declaration of it be 'unilateral.' . . .
  Whether the President in fulfilling his duties, as Commander-in-Chief, in suppressing an insurrection, has met with such armed hostile resistance, and a civil war of such alarming proportions as will compel him to accord to them the character of belligerents, is a question to be decided by him, and this Court must be governed by the decisions and acts of the political department of the Government to which this power was entrusted. "He must determine what degree of force the crisis demands."
  To be clear, I am not making a normative argument about what the law should be. In addition, I am not defending the Vice President's view of Article II more broadly. Rather, I'm just wondering if it's Vice President Cheney, rather than Dahlia Litwick, who has better described the mainstream understanding on this particular legal question.

  UPDATE: Several readers believe I have misread Lithwick's column: They suggest that Lithwick was not singling out the point Cheney made in the paragraph she excerpted, but rather was meaning to criticize the broader perspective of Article II that Cheney was making elsewhere in the interview. I don't quite see that, but I am happy to flag the possibility that the misunderstanding was mine: Needless to say, if Lithwick agrees with the Cheney quote she excerpted, then it seems there is no real disagreement here.
LM (mail):
At the very least, I suspect it would come as a surprise to most people if the President wasn't authorized to respond in kind to a massive nuclear attack, without needing to check with Congress.
12.23.2008 6:33pm
OrinKerr:
LM ,

If nothing else, it would require the rewriting of the plot of a lot of movies.
12.23.2008 6:35pm
runape (mail):
Orin,
I'm also not an expert, but I think your post is right. Reading between the lines, I think Lithwick is inferring (perhaps reasonably so) that when Cheney says "launch a kind of devestating attack," what he means is something like "launch an immediate counterattack, and then continue on the offensive for as long as the executive deems necessary."

To be clear, I have no idea whether that's what Cheney meant. But I think that's what Lithwick understood him to have meant.
12.23.2008 6:37pm
Milhouse (www):
runape, I'm sure that's exactly what he meant; are you claiming that he's incorrect? Are you claiming that the president does not have that authority? If so, on what basis?
12.23.2008 6:42pm
bobfromfresno (mail):

that he would use and be authorized to use in the event of a nuclear attack on the United States.

Who says there has to be nuclear attack on the US before the president can launch our missiles?

Why shouldn't the president be allowed to launch a nuclear strike whenever s/he thinks it is in our nations best interests?
12.23.2008 6:47pm
R Nebblesworth:
Most importantly, why are the codes to launch America's nuclear weapons contained in a football?
12.23.2008 6:50pm
JosephSlater (mail):
My question is different: why are the codes contained in a "football," as opposed to a container shaped like a different kind of "ball," or for that matter, why not a non-ball-shaped container?
12.23.2008 6:51pm
Constantin:
The unitary executive panic (for people who actually understand it) has to be the most bizarre meme of the past few years.

When people are made to understand that in a month, the alternative will be some schmoe at EPA telling Barack "you're not the boss of me," it'll go away.
12.23.2008 6:57pm
JosephSlater (mail):
R Nebblesworth:

JINX!!!
12.23.2008 6:57pm
OrinKerr:
Joseph,

Looks like it's actually in a leather briefcase.
12.23.2008 6:57pm
SP:
What if it is an accidental launch? Does the president have the authority to let Washington D.C. be nuked in a trade-off, to prevent a wider nuclear war?
12.23.2008 6:58pm
josil (mail):
A football has laces (or did in the old days), which can be undone to get at the codes. They originally tried a volleyball but couldn't figure out how to gain access to the interior. Of course, a baseball is much too small to hold all the codes. As to other receptacles, it was believed that a football (at least in season) would foil traitors and potential terrorists. Sorry I can't reveal anything more.
12.23.2008 7:00pm
jim47:
Clearly Mr. Cheney has been drinking the fluoride. The authority he claims surely rests not with the President but in the hands of Gen. Jack D. Ripper.
12.23.2008 7:03pm
George Weiss (mail) (www):
well its obvious your right about

1) Litwick getting it wrong about the difference between a president run (unitary) executive and the question of the executive power as a whole
and
2) the power of the president to respond to invasion/nuclear war/rebellion

but then you say:


To be clear, I am not making a normative argument about what the law should be. In addition, I am not defending the Vice President's view of Article II more broadly. Rather, I'm just wondering if it's Vice President Cheney, rather than Dahlia Litwick, who has better described the mainstream understanding on this particular legal question.


that last part is really a confession to missing the point of
a) what Cheney was trying to say in context (about the presidents power regarding the war in Iraq and terror by comparing it to nuclear war)
b) what Litwick was really saying (poorly) in responding to Cheney

so yes...your absolutely right in your analysis the trivial issue on the trivial points that Cheney got right and Litwick got wrong but either deliberately trying to score points by focusing on that trivial point or somehow otherwise missing the point.
12.23.2008 7:09pm
John (mail):
The Constitution simply says, "The Congress shall have Power: To declare War...." and also says, "The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States...."

If we are attacked, I would think, the issue of "declaring" war is academic, to say the least. We are at war already, and no declaration should be necessary before our armed forces defend us and defeat those who have declared war on us.

On the other hand, I can see the logic of Congressional input before we set out on a war that has not already been started.
12.23.2008 7:10pm
Oren:
Orin, I agree with your post as to the current state or the law, but I'm not so confident that this is the only possible arrangement. As my history prof used to say: if things were different, things would be different.

Now, congress certainly does not want to meddle but, faced with a President that they truly don't trust, I can imagine the two branches coming to an agreement that would substantially curtail the authority of the CinC to launch such an attack (for instance, by requiring concurrence of the SecDef or Joint Chiefs).
12.23.2008 7:12pm
JosephSlater (mail):
Orin:

I would ask why the article writers (and others) refer to what does indeed look like a standard leather briefcase as a "football." But Josil, above, provides a fine answer.
12.23.2008 7:19pm
LM (mail):
OrinKerr:

Looks like it's actually in a leather briefcase.

But this is the enclosed satellite phone.
12.23.2008 7:19pm
Dave N (mail):
What if it is an accidental launch? Does the president have the authority to let Washington D.C. be nuked in a trade-off, to prevent a wider nuclear war
No, but according to Hollywood, he does have the authority to nuke New York City.
12.23.2008 7:21pm
Steve:
I think an 1862 case can be informative, but it can never really "settle" a question that relates to the particular context of a nuclear war.

In 1862, one could imagine that a foreign country might suddenly invade us, in which case the President would surely be able to deploy the military to resist the invasion without seeking prior approval. Or one could imagine an internal insurrection in which case, again, the President would have the authority to deploy the military and put down the rebellion.

An analogous situation in the nuclear context would be this: if nuclear missiles are incoming, obviously the President does not need to ask permission to deploy our anti-missile systems in order to "repel the invasion." But whether the President has the right to authorize a counterstrike that would not repel the invasion, but simply result in the mutual destruction of the attacker, is a different question from anything we can imagine in the context of 1862.

The key element in all cases is whether time is of the essence. Obviously, if you're invaded, time is very likely of the essence and so it would be absurd to require consultation with Congress. In the event of a massive nuclear attack which will destroy our ability to retaliate within minutes, it's just obvious that the President has to make the decision about what we do, because there's no other way for the decision to be made. For the "assured" part of the Mutual Assured Destruction doctrine to be valid, our enemies had to believe that if they started a nuclear war, bang, it was all over for them, no doubt about it. If we had a legal requirement that said the President had to check with someone first, not only would it be unworkable within the time frames of a nuclear conflict, but it would cause our enemies to start wondering "hey, maybe it's not so certain that they would retaliate in like kind..."

In any event, in the event of a surgical attack - imagine a nuclear version of 9/11 - I don't think the Prize Cases really settle the issue. There's no invasion to be repulsed, there's no insurrection to put down. What's done is done and there's certainly time (although not an infinite supply of it) for the President to consult with Congress about how we respond.

One way to harmonize the Cheney and Lithwick positions is that Cheney may have been postulating a massive nuclear attack by an enemy, while Lithwick may have been imagining a single-bomb scenario. In terms of historical examples, we certainly didn't respond to Pearl Harbor with unilateral action by the President, nor did Bush (hardly a proponent of a restrained executive) act unilaterally in response to 9/11.
12.23.2008 7:21pm
OrinKerr:
George Weiss,

I believe you are suggesting that I have misread both Cheney and Lithwick, but I cannot find an explanation in your comment as to what I have misread or what they were each actually trying to say that I am trying to misrepresent. Perhaps you could explain a bit better what I have misunderstood, especially given your quite fascinating suggestion that I am being intentionally misleading?
12.23.2008 7:22pm
OrinKerr:
Steve,

Wasn't that the argument that was rejected in the Prize cases -- that is, that there was some sort of judicial review of whether the President was correct in thinking that the action was necessary in that setting?
12.23.2008 7:26pm
PatHMV (mail) (www):
The legal niceties are, frankly moot. The President is the Commander-in-Chief. Barring some order which is so unequivocably unconstitutional that nobody would dispute that conclusion, it is the responsibility of the armed forces to carry out his orders. It is not the military's job to decide whether Congress must be consulted in any given circumstance or prior to the President giving any particular order. In the event of the scenario described by the Vice President, the President will make a decision, and the military will (and should) carry out whatever orders he gives. What the court or Congress pronounces about that decision long after the fact (presuming they continue to exist) will be utterly irrelevant.
12.23.2008 7:32pm
Eric Muller (www):
Full context:
CHENEY: Well, I think in wartime, when you consider his responsibilities as commander in chief, clearly that means command of the armed forces.

It also, when you get into use of forces in wartime, means collecting intelligence. And therefore, I think you're fully justified in setting up a terror surveillance program to be able to intercept the communications of people who are communicating with terrorists outside the United States.

I think you can have a robust interrogation program with respect to high-value detainees. Now, those are all steps we took that I believe the president was fully authorized in taking and provided invaluable intelligence which has been the key to our ability to defeat Al Qaida over these last seven years.

WALLACE: This is at the core of the controversies that I want to get to with you in a moment. If the president during war decides to do something to protect the country, is it legal?

CHENEY: General proposition, I'd say yes. You need to be more specific than that. I mean — but clearly, when you take the oath of office on January 20th of 2001, as we did, you take the oath to support and defend and protect the Constitution of the United States against all enemies, foreign and domestic.

There's no question about what your responsibilities are in that regard. And again, I think that there are bound to be debates and arguments from time to time, and wrestling back and forth, about what kind of authority is appropriate in any specific circumstance.

But I think that what we've done has been totally consistent with what the Constitution provides for.

The president of the United States now for 50 years is followed at all times, 24 hours a day, by a military aide carrying a football that contains the nuclear codes that he would use and be authorized to use in the event of a nuclear attack on the United States.

He could launch a kind of devastating attack the world's never seen. He doesn't have to check with anybody. He doesn't have to call the Congress. He doesn't have to check with the courts. He has that authority because of the nature of the world we live in.

WALLACE: So what...

CHENEY: It's unfortunate, but I think we're perfectly appropriate to take the steps we have.

And go back and look at how eager the country was to have us work in the aftermath of 9/11 to make certain that that never happened again. Now we've had a lot of time pass over it, so we've had, I think, people more complacent, perhaps, than was true some time ago.

We've also had a lot of our critics who want to score political points made what I think are outrageous charges. But in my mind...

WALLACE: So what rights do the Congress — what constitutional rights do the Congress and the courts have to limit the power of the president when it comes to these matters of national security?

CHENEY: Well, the Congress has — clearly has the ability to write statutes and has certain constitutional authorities granted in the Constitution.

But I would argue that they do not have the right by statute to alter a presidential constitutional power. In other words, you can't override his constitutional authorities and responsibilities.

WALLACE: So if they want to say he can't surveille or he can't detain...

CHENEY: Well, they have, for example, said — passed the War Powers Act. The War Powers Act is still in force out there today. That requires him to grant certain notifications to the Congress and give them the authority to supersede those by vote, if they want to, when it comes to committing troops.

No president has ever signed off on the proposition that the War Powers Act is constitutional. I would argue that it is, in fact, a violation of the Constitution, that it's an infringement on the president's authority as the commander in chief.
12.23.2008 7:34pm
Charles Chapman (mail) (www):
I picture foreigners, and particularly foreign military personnel, reading about this "debate," this "issue," as framed by Litwick, and laughing their asses off.

So let me understand Litwick's position. The U.S. is struck with a nuclear first strike. Before the U.S. can retaliate, or attempt to "preempt" or prevent further strikes, Congress must first declare war.

And this of course remains true as the second and third wave attacks consisting of bombers carrying nuclear weapons approach our shores.

And this would also undoubtedly remain true if everyone in Congress was killed in the first strike. In that case the necessary declaration of war, and thus any retaliation, "preemption," and prevention would wait until Congress was properly reconstituted through elections and appointments.

And if the President did retaliate without Congressional approval, some liberal group would undoubtedly sue.

Didn't someone once say something about the Constitution not being a suicide pact?

Perhaps more legalistically (but not more seriously), this may be an example of how a Constitution written based on one set of physical realities in the 18th century might have to be interpreted a bit more broadly and flexibly given a vastly different set of physical realities 200 odd years later. When the Constitution was written, it might have been feasible to wait for a declaration from Congress after being hit by a "surprise" (what surprise?) attack consisting of cannon balls striking a port city and perhaps an army landing by sea and approaching on horseback. In the nuclear age, forget about it.
12.23.2008 7:34pm
Steve:
Well, Orin, it's one thing to say that if the President believes in good faith that the situation is an emergency which requires his unilateral action, the courts will not second-guess him after the fact. It would be another thing to say that the President has unilateral authority to act regardless of whether he believes the situation to be an emergency. Again, I don't think Cheney and Lithwick are starting from an agreed-upon set of facts.

Of course, there's also a good case to be made that a presidential act which destroys the world is not judicially reviewable, for intensely practical reasons.
12.23.2008 7:37pm
Redacted:
Q: How do you tell who is captain of lifeboat?

A: Captain has gun.
12.23.2008 7:37pm
George Weiss (mail) (www):
orin-

In the parenthesis in my comment above I actually did say what I think Cheney was getting to-which was to draw parallels between the authority of the president to respond to nuclear war and the authority of the president to respond to Iraq and 9/11. Further, its clear from Cheney's references to the war powers act (which he and many presidential administrations have found unconstitutional) and his references to 9/11 that this is the direction he was going in the same section he brought in the subject of the nuclear codes football.

What you have done is not misread Cheney or Litwick per se-since they did in fact say exactly what you reported-what you have done is shifted the focus (intentionally or unintentionally) form the trivial point (the presidents authority to respond to nuclear war) to the broader point (the presidents authority to respond to overseas war and 9/11.

...its not much diffrent from attacking a "Bushism" without talking about the broader picture of what Bush was saying.
12.23.2008 7:38pm
einhverfr (mail) (www):
Steve:

There is another aspect to this too. The fact is that even if every other nuclear armed country in the world attacked us suddenly with everything they had, this could NOT disarm us enough to prevent us even after the fact from retaliating with (most likely) with enough to case more harm to them than we would suffer.

Note that in a nuclear first strike scenario, the main targets would be missile silos because if you don't take those out, they can be used for retaliation. Even if every land-based missile was destroyed and every nuclear-capable bomber taken out, that would still leave most of our submarine fleet intact, perhaps with up to a third of our nuclear weapons able to ride out a first strike and then be used in retaliation. These weapons would then be unopposed and could target civilian centers without needing to focus on missile silos, etc. More likely each of the three legs (b-52, minuteman, and Ohio-class subs) would maintain enough for deadly retaliation. The idea that we have to retaliate now or else it will be too late is a fiction which quite frankly is dangerous.
12.23.2008 7:40pm
David Schwartz (mail):
My understanding was the the term "football" was simply a code name for the briefcase. The code name was chosen largely so that its movements could be innocuously described as "passing the football".

Litwick's position is bizarre. Of course the President can order an immediate military response, nuclear or not, if he deems it a necessary response to foreign military aggression.
12.23.2008 7:41pm
Ella the Ebenist:
I'm not sure if this precisely what either Cheney or Litwick meant in reference to the nuclear counterstrike thing -- but it seems to me that what this debate really comes down to is whether "the authority to do large things also encompasses the authority to do smaller things". Ordering a nuclear strike is clearly much more consequential, and creates much more suffering, than waterboarding an individual suspect. Cheney may be implying that because the president can do the former, he naturally has the power to do the latter as well. Meanwhile, Litwick would want to deny this -- not that the president doesn't have the right to launch nuclear missiles, that is undeniable -- but she thinks that although the president has this large power, it is specifically limited to launching missiles, and it doesn't mean that he has the right to do as he pleases with in the quite different context of an interrogation.

Anyway, I am putting words in their mouth here and maybe they would say they meant something different, but that's how I would unpack it -- since this general issue comes up a lot in discussions of the "unitary executive".
12.23.2008 7:43pm
DG:
This is why people like Lithwick should and will never be responsible for something like defending this country. Cheney hasn't done a wonderful job, but to question, even for a moment, the authority of the National Command Authority to respond to a nuclear attack is dangerous and absurd. I'm not sure what impairs her judgement so - her hatred of Bush, her left wing politics, her status as an attorney (many of whom seem astounded by warfare), or her job as a journalist. Maybe its a combination.
12.23.2008 7:46pm
Steve:
The idea that we have to retaliate now or else it will be too late is a fiction which quite frankly is dangerous.

Well sure, but the people with whom the President hypothetically needs to consult could certainly be taken out, even if the nuclear subs can't. Frankly, the question of what the President ought to do if 1000 Soviet missiles suddenly appear on the horizon - should he wipe them out as well, or should he just head to his bunker and calmly consult with whoever else survives the attack regarding what orders to send to the nuclear subs - strikes me as completely academic, the sort of thing college freshmen used to talk about even back when there was such a thing as the Soviet Union. It's a moot point.
12.23.2008 7:46pm
DG:
Even if our submarine fleet survives - and it probably would - how could we be assured of communications and authority for strategic weapons launch if a response is not made immediately? Of course in the old cold war scenario, one of the warning signs of an impending first strike by the enemy would be our boomers being eliminated by their fast-attacks.
12.23.2008 7:50pm
OrinKerr:
Steve,

That's an interesting theory, but didn't the Supreme Court say in the Prize cases that "this Court must be governed by the decisions and acts of the political department of the Government to which this power was entrusted"? I'm not sure how to square your theory with what the prize cases says.

George,

You misunderstand. The point of the post was not to comment on Cheney's general views of Article II; whether the excerpt viewed Cheney's broader views out of context is irrelevant. The point of the post was to assess the one claim he made that Lithwick decided to excerpt and make a focus of her column: Lithwick's column itself takes this point in isolation, and then attacks it in isolation as "nonsense."
12.23.2008 7:51pm
Elliot123 (mail):
"The idea that we have to retaliate now or else it will be too late is a fiction which quite frankly is dangerous."

But the idea that we have to immdiately cripple the enemy's ability to deliver additional strikes is not.
12.23.2008 7:55pm
mjh21 (mail):
The first sentence of Article II, Section 1 of the Constitution, says that the "executive Power shall be vested in a President of the United States of America". Is it really a "nutty" theory - absent some Supreme Court or Federal Circuit interpretation that I'm unaware of - that neither congress nor the judicial branch can give themselves or each other executive power? I not only don't think so, I'm sure that we'll see the Obama administration take essentially the same position. Ditto for not signing the War Powers Act and not ceding to congress any inherent Article II authority to conduct warrantless surveillance and/or searches if national security so dictates. In short, people like Lithwick don't like the people making the arguments, so they don't like the arguments. I suspect she will become at least agnostic as Obama - as would any responsible president - hews pretty closely to the Bush line on executive power (as did the Clinton administration).
12.23.2008 7:56pm
Chem_geek:
DG: If our boomers could have been found by their fast-attacks, that is...
12.23.2008 7:57pm
Chem_geek:
mjh21: Ding! Ding! Ding! Thank you folks, no more calls, we have a winner. After Mr. Obama is sworn in, the hypocrisy will be amazing to behold.
12.23.2008 7:59pm
George Weiss (mail) (www):
orin

actually Litwick's column was clearly a long drawn out criticism of Cheney's broader views.

and i understand the point of the post was to isolate this issue-that's the problem-this issue should not be isolated without context
12.23.2008 8:07pm
ARCraig (mail):
Isn't the two-man rule, whereby the President's order to use nuclear weapons has to be confirmed by at least one other person on an approved list (in practice it would almost certainly be SecDef, but it could be any number of people on the list who, among other things, were confirmed by the Senate to their position), something that's mandated by Congressional statute? How does that play into this?
12.23.2008 8:10pm
Register This:
But wait -- isn't Cheney still wrong? I don't think he goes far enough. He says the President would "be authorized to use in the event of a nuclear attack on the United States." But isn't the President authorized, as Commander in Chief, to drop the n-bomb anytime he wants? Sure, Congress can later choose not to declare war, but the President doesn't need war to be "declared" before he launches a nuke. And I think any statute that claimed to impose such a restraint on him would be unconstitutional.
12.23.2008 8:18pm
OrinKerr:
George,

You seem to want me to have written a different post than the one I did, on a different topic than what interested me. I am sorry if my selection of topics does not meet your approval.
12.23.2008 8:22pm
Andy Freeman (mail):
> Now, congress certainly does not want to meddle but, faced with a President that they truly don't trust, I can imagine the two branches coming to an agreement that would substantially curtail the authority of the CinC to launch such an attack (for instance, by requiring concurrence of the SecDef or Joint Chiefs).

How would such an agreement be enforced? How would that president's authority be curtailed in practice?

Suppose that president says "launch". Does the person receiving said order have the authority to say "no"?

I suppose that congress could hide the football, but the president can use other communications schemes.
12.23.2008 8:39pm
George Weiss (mail) (www):
your desire to score cheap rhetorical points with your post didnt meet my approval
12.23.2008 8:42pm
Oren:
Given that Congress undoubtedly has the power to defund the entire nuclear arsenal (and disband the Army, Navy and Air Force while they are at it), attaching some strings to the usage of those funds seems pretty tame by comparison.
12.23.2008 8:47pm
Dilan Esper (mail) (www):
Joseph, Looks like it's actually in a leather briefcase.

It's a little known historical fact that after dropping the bombs on Hiroshima and Nagasaki, Harry Truman spiked it.
12.23.2008 8:53pm
Ricardo (mail):
I think context matters here. The question Cheney was responding to was, "This is at the core of the controversies that I want to get to with you in a moment. If the president during war decides to do something to protect the country, is it legal?" Cheney's answer was, "General proposition, I'd say yes. You need to be more specific than that. I mean — but clearly, when you take the oath of office on January 20th of 2001, as we did, you take the oath to support and defend and protect the Constitution of the United States against all enemies, foreign and domestic. ... [followed by quote given above]."

Lithwick responds by saying, "The claim that "the nature of the world we live in" warrants a perennially unchecked executive branch can be delivered with all the gravitas in the world, and it still amounts to constitutional nonsense."

It's clear to me at least that Lithwick is not saying Cheney's specific claim of Presidential authority to launch a nuclear strike is "nonsense." She is saying the implication that Cheney is trying to draw from this example -- that of unchecked executive authority to do anything he wants as long as he thinks it's necessary to "protect the country" is nonsense. Lithwick could have been clearer by quoting Chris Wallace's question or calling his statement a non sequitur rather than "nonsense" but her point stands.
12.23.2008 8:54pm
Steve:
That's an interesting theory, but didn't the Supreme Court say in the Prize cases that "this Court must be governed by the decisions and acts of the political department of the Government to which this power was entrusted"? I'm not sure how to square your theory with what the prize cases says.

Again, I think the Prize Cases were decided in a context where the only scenarios on the table were invasion or rebellion as they would have been understood in 1862, and I don't think we can regard the holding as conclusive regarding a nuclear context.

It's clear that Cheney was one of those within the Administration who believed the President did not have to consult with Congress in order to invade Afghanistan after 9/11. His view did not carry the day within the Administration, and I expect future generations will look back and say that if even the Bush Administration, which was very aggressive on issues of executive power, didn't attempt to retaliate unilaterally, then that's probably the paradigm they should follow as well.

But you seem to be suggesting that the Prize Cases conclusively decide the issue in Cheney's favor, which I can't agree with. Certainly the President has broad powers to deal with an ongoing threat and to protect the country against imminent threats, but does he really have unchecked powers to retaliate for an attach that has already come and gone? I don't think the Prize Cases say that.
12.23.2008 8:54pm
Cornellian (mail):
He has that authority because of the nature of the world we live in.

Apparently, fans of the "Living Constitution" are found in both parties.
12.23.2008 8:55pm
Borealis (mail):
Clearly in the event of a nuclear attack, once the President is told of the incoming missles, he must get a bill enacted by both the House and the Senate, sign it, then get the law reviewed by the Supreme Court in written decisions, before he responds. Otherwise he will be a "Unitary Executive".
12.23.2008 8:55pm
Oren:
Andy, as a condition of receiving funding, the US missile command will demonstrate a fail-safe launch system that meets Congress' specs.
12.23.2008 9:05pm
Richard Aubrey (mail):
With the second wave of nukes incoming, I can see a congresscritter holding out for some pork.
Seriously.
How smart are those guys, anyway?
After 9-11, they sang God Bless America on the capitol steps, it is said, and then went back to kneecapping Bush.
12.23.2008 9:07pm
ck (mail):
I agree that Lithwick is wrong with respect to the particular Cheney statement she quoted.

However, I suspect that she was not really responding to the literal meaning of that statement, but to the broader idea that the President has completely plenary power in all matters of war and national defense, unencumbered by Congress's constitutional monopolies on declaring war or regulating the military. I don't know if Cheney or Bush has ever straightforwardly claimed such power, but it is the underlying basis of their claims about the unconstitutionality of the War Powers Act, FISA, UCMJ prohibitions of torture, etc., isn't it? Certainly many of their supporters (like "bobfromfresno" and "Register This", above) take this thoroughly Nutty view.
12.23.2008 9:09pm
nyejm (mail) (www):
On why it's called a "football" -- I have no citation here, but I am fairly certain that the answer has to do with the importance of not (metaphorically) fumbling it. Keep it in your hands at all times, etc.
12.23.2008 9:10pm
davod (mail):
Silly Billys. Obviously what is needed is to follow the thinking of Senator Biden after 9/11. Pay the antagonist or it allises lots of money quickly.
12.23.2008 9:14pm
Putting Two and Two...:
Orin seems to have misunderstood Lithwick. The "big whopper" is pretty clearly what she says it is: "The claim that "the nature of the world we live in" warrants a perennially unchecked executive branch can be delivered with all the gravitas in the world, and it still amounts to constitutional nonsense."

I don't see any hint of a question about the president's authority to retaliate after an attack. The transcript puts the two issues in the same paragraph. Not Lithwick's responsibility.
12.23.2008 9:15pm
Laura S.:
Ah Lithwick at it again; I wonder sometimes whether she has drunk the kool-aid or if she comprehends but is simply not ashamed of her naked partisanship.

I see two threads here
1) One is to tar Cheney as delusional and radical--which is on particularly tenuous grounds given that it is widely accepted that the president bears the singular burden of deciding what response to make to an imminent nuclear strike.

2) The continuing--dishonest--meme that the notion of a unitary executive means an unchecked executive.
12.23.2008 9:18pm
Oren:

kneecapping

Yeah, refusing to give him permission to invade Iraq was a real blow.
12.23.2008 9:25pm
Oren:
Laura, the VP was asserting authority to conduct day-to-day foreign policy just as-though the US were under imminent nuclear attack. That is a radical position.
12.23.2008 9:26pm
LM (mail):
Richard Aubrey:

After 9-11, they sang God Bless America on the capitol steps, it is said, and then went back to kneecapping Bush.

Yeah, it was shameful how Congress refused to give Bush anything he asked for after 9/11. Even worse was how they kneecapped him personally so viciously it turned public opinion against him to the tune of a 90% approval rating.

Bastards!
12.23.2008 9:26pm
LM (mail):
Oren,

We'd be a minute safer with you holding the football than me.
12.23.2008 9:32pm
Alix Cavanaugh (mail) (www):
I think that Lithwick may have interpreted Cheney's claim slightly differently. She might have read "in the event of a nuclear attack" not as a restriction on the claimed authority, but just as descriptive of the role that the nuclear arsenal actually plays in US strategy, and thought that Cheney was claiming that the President could legally launch a nuclear attack at any time, whether or not it was in response to another country's attack.

I think that's something of an uncharitable reading, but the temptation to read Cheney uncharitably on this issue is, perhaps, understandable. (Probably some people will bite the bullet and claim that the President does have the absolute legal authority to launch a first strike on a whim, but I view that result as a reductio of any constitutional theory that leads to it.)

As for the Prize Cases cite, two points:

(1) As a descriptive matter, I would say, yes, that's the mainstream understanding of the law, but for what it's worth, I would point out that there are good reasons to view the quoted passages as dicta.

The Prize Cases were ultimately, as the name suggests, not about issues of constitutional law but about whether the ships that tried to trade with the Confederacy and/or enter the blockaded ports were captured as lawful prize, under the customary rules of prize law. And the precedents were clear that it was the actually existing factual state of war -- not any executive or legislative action -- that made the crucial difference with respect to the rules of prize law. (See The Eliza Ann, Dods. 243, 247, 165 Eng. Rep. 1298, 1300 (Adm., 1813), cited in the Prize Cases, 67 U.S. (2 Black) 635, 668 (1862)).

(2) In any case, the quoted passages address only the President's authority to act in the absence of contravening statute law (in Youngstown category II, not category III situations).
12.23.2008 9:35pm
Anderson (mail):
I agree that Lithwick is wrong with respect to the particular Cheney statement she quoted.

However, I suspect that she was not really responding to the literal meaning of that statement, but to the broader idea that the President has completely plenary power in all matters of war and national defense, unencumbered by Congress's constitutional monopolies on declaring war or regulating the military.


Right on both counts. Cheney can't extrapolate from the unique circumstances of nuclear war to less apocalyptic scenarios.

Legally, the president can respond to attacks, and doesn't need Congressional approval for, what, 90 days under the War Powers Act? But that doesn't authorize him to do Any Sneaky Little Thing His Heart Desires in the name of "national security" ... say, torturing Cheney on suspicion that Cheney is really an Iranian agent.

Politically, he can do whatever doesn't get him impeached.
12.23.2008 9:38pm
OrinKerr:
Putting Two and Two writes:
I don't see any hint of a question about the president's authority to retaliate after an attack.
From Lithwick's essay:
Just as Cheney is able to sow legal doubt where none exists, he is adept at issuing blanket legal proclamations about questions that are open-ended and theoretical. Some of his finest overstatements of this past week include the assertion that those prisoners still left at Guantanamo Bay represent "the hard-core." Oh good grief. Even the CIA stopped believing that hooey six years ago. Which brings us to Cheney's biggest whopper of the week. In yesterday's interview with Chris Wallace, he was as blunt as anyone can be in articulating the Nutty Version of the Unitary Executive Theory:

"The president of the United States now for 50 years is followed at all times, 24 hours a day, by a military aide carrying a football that contains the nuclear codes that he would use and be authorized to use in the event of a nuclear attack on the United States. He could launch a kind of devastating attack the world's never seen. He doesn't have to check with anybody. He doesn't have to call the Congress. He doesn't have to check with the courts. He has that authority because of the nature of the world we live in."
I see more than a hint: In fact, it seems to me, and many readers above, that this is directly what Lithwick is saying.
12.23.2008 9:40pm
Oren:
Orin, I'll stipulate to Cheney's statement if we agree that it covers only unprovoked nuclear attacks. He's cleverly refused to say anything about the actual hard cases that we face so there's no point in refuting those.
12.23.2008 9:48pm
NickM (mail) (www):
Asseerting that a nuclear attack of a single bomb is an isolated event might make sense long after the fact, but at or shortly after the time of the launch, there is no sensible reason to make such an assumption.

Nick
12.23.2008 9:52pm
Sarcastro (www):
Jack Bauer would know who should carry that Football, and he would shoot him above the kneecap so he could still walk.
12.23.2008 9:55pm
Laura S.:

Laura, the VP was asserting authority to conduct day-to-day foreign policy just as-though the US were under imminent nuclear attack. That is a radical position.

Ah the pivot. Lithwick chose to fixate on the nuclear-retaliation statement. I'm sorry but she gets low marks for that choice. Of course there is a rhetorical reason: the specter of nuclear-war amps up her argument because of its irreversible nature.
12.23.2008 9:59pm
Alix Cavanaugh (mail) (www):
Incidentally, as a side note, if a veto-proof majority of Congress "truly didn't trust" the President with nuclear weapons (as in Oren's hypothetical), they have no shortage of legal ways to remove them from his control.

They could sell them to a trustworthy state militia for a nominal price, and then reclaim the calling-out powers delegated to the President by the Militia Acts.

They could lease them for a few years to a trustworthy foreign country.

They could sell off all the present launch systems for scrap and fund only new ones lacking some specific part (perhaps even some piece of software) which would require a separate appropriation, but which was designed to be capable of fabrication and delivery in a matter of hours once the appropriation is authorized.

Of course, given a veto-proof majority for any of these things, it would probably be simpler just to impeach the President.
12.23.2008 10:06pm
Elliot123 (mail):
It appears some here don't think Lithwick is smart enough to write what she means, and therefore needs a translator.
12.23.2008 10:09pm
PC:
I also watched "The Day After" on the SciFi channel earlier today so, yeah, the president has that authority.
12.23.2008 10:11pm
winstontwo (mail):
again, why is anyone under the impression that the president can launch a nuclear strike only AFTER one has been launched against us?

Where does that come from?

And the second question is this: what is the check, if any, on the president's power. What if the president says, "We have been attacked (by nukes) so I am launching our nukes." Is there anyone anywhere in the chain of command that has the responsibility/power to verify that we have, in fact, been attacked with nukes and say "No." to the president? If yes - what is the basis for that person's authority? If no - why can't the president launch nukes preemptively? Or for any reason he or she wants?
12.23.2008 10:14pm
Jagermeister:
Speaking of "cheap rhetorical points", George, you don't find anything suspicious about someone who uses Washington Post editorials as their authority for legal issues? Or didn't you bother to click though the links and see who Litwick was actually referencing in her incredible claim to see settled law where the rest of us see unresolved questions?
12.23.2008 10:15pm
tjvm:
I don 't see anything in Lithwick's column that indicates that she's disputing the right of the President to launch a nuclear counter-attack. As others have noted above, she appears to be disputing Cheney's very broad notion of presidential authority.

Cheney's (implied) argument seems to be: If the President has the authority to launch a nuclear strike on his own in order to protect the nation, then, a fortiori, surely he must have authority to do almost anything else to protect the nation (since just about anything else would be a lesser measure). Personally, I think this is flawed reasoning. The reason the president can unilaterally launch a nuclear counter-strike is that there's no time to do anything else; consultation and debate is impossible. It does not follow that the president can do anything he deems appropriate during a "war on terror" of potentially unlimited duration.
12.23.2008 10:16pm
A. Zarkov (mail):
The executive branch has run at least 4 major wars without a formal declaration of war containing the magic words "declaration of war against x." Congress funded those wars just as they funded the design, fabrication and deployment of nuclear weapons. The president has as much right to use nuclear weapons as any of the other weapons under his command and control. If Congress wants limitations on the use of these weapons, then they can write specific legislation saying so. The continuing authority of president to use nuclear weapons to deter or retaliate in no way implies any kind of unchecked executive power. I don't think Cheney statement means any more than that.
12.23.2008 10:20pm
OrinKerr:
I should add that if Cheney was making an implied argument he wasn't explicitly making, and Lithwick was impliedly criticizing the implied argument, then I impliedly agree with what the implied Lithwick is saying the implied Cheney is saying.

But then I would think this is obvious.
12.23.2008 10:32pm
Brian G (mail) (www):
I hope President Obama, should (God forbid) he ever found himself in this situation I firmly believe he'll follow the Cheney method as opposed to the Dalia Lithwick method.

Really, does anyone actually believe that if we were nuked the President would have to call a special session of Congress to get authority on how to respond? I am sure Lithwick doesn't believe it, it is only the Cheney-hatred talking. In any event, I expect Lithwick's opinion will be different come the afternoon of January 20th.
12.23.2008 10:33pm
PC:
Is anyone up for a screening of "Threads?"
12.23.2008 10:39pm
Alix Cavanaugh (mail) (www):
The more I think about it, the more defensible I find what I termed Lithwick's "uncharitable" reading. It seems very strange to describe a counterstrike as "a kind of devastating attack the world's never seen" -- presumably it would instead be the kind of devastating attack of which the world had seen an instance just minutes before.
12.23.2008 10:55pm
JB:
The problem is, of course, the question of who the President would launch the attack against.

If we are attacked, no question the declaration of war is implied and the President can command the armed forces to strike back with whatever we've got. But if we're not attacked, the President has to go through Congress. So if we're attacked by party A, the President can attack party A immediately, but needs Congressional authorization to attack party B which was not involved in the attack.

Of course, in real world terms, party A is al-Qaeda and party B is Iraq, and that raises the real problems--i.e, it is reasonably likely that in the aftermath of an undeniable strike on U.S. soil and/or personnel, it could be unclear who parties A and B are even long after it is too late to strike party A.
12.23.2008 10:56pm
Richard Aubrey (mail):
As I recall, those dems who voted for war did so before the elections and complained it was dirty pool to have the sequence so.
Then they claimed they didn't think Bush meant, you know, actual fighting and stuff.
12.23.2008 11:13pm
tsotha:
I should add that if Cheney was making an implied argument he wasn't explicitly making, and Lithwick was impliedly criticizing the implied argument, then I impliedly agree with what the implied Lithwick is saying the implied Cheney is saying.

Heh heh. So it's to be rhetorical judo, is it? Bravo!
12.23.2008 11:26pm
AlanO:
Let's not forget that the Congress over the years has bought the very arsenal that would be used in a counterattack and created by legislation the military organizations that would carry it out. It is an oversimplification to say that there is no need for Congressional authorization. Of course there is (unless we have a president rich enough to personally bankroll nuclear weapons). Congress has bought the gun, loaded the gun, and put the gun in the President's nightstand.
12.23.2008 11:32pm
George Weiss (mail) (www):

OrinKerr:
I should add that if Cheney was making an implied argument he wasn't explicitly making, and Lithwick was impliedly criticizing the implied argument, then I impliedly agree with what the implied Lithwick is saying the implied Cheney is saying.

But then I would think this is obvious.


no its not obvious...since you could have agreed or disagree reasonably with what the implied lithwick or the implied cheney are saying...
12.23.2008 11:44pm
Jim Rhoads (mail):
It is one the oldest rhetorical tricks in the book to (sub silento, of course) imply an unreasonable premise from an accurately expressed principal and then to criticize the implied premise.

IMHO, that is what Dahlia has done here.
12.23.2008 11:57pm
NG (mail):
Admittedly, I've only skimmed the comments, so sorry if someone else as already made a similar point.

That said, I have noticed a few others saying, roughly, the point I want to make: the language you quote from the Prize Cases seems to have in mind a very narrow range of circumstances. Invasion means invasion, and not just any invasion, but one "when the regular course of justice is interrupted by revolt, rebellion, or insurrection, so that the Courts of Justice cannot be kept open." Essentially dicta in the Prizes Cases, which of course gave pretty much one of the most expansive views of executive power in the Court's history, remember that the exact same view was operationalized in Milligan, where the President's authority was limited. Subsequent cases like Youngstown, which is probably more on point here, have an even narrow view. Personally, I think Justice Jackson's 3-tiered view of executive power in his Youngstown concurrence gives the most reasonable view. It also has the benefit of a long, favorable citational afterlife.

(Sorry if my facts or terminology aren't quite right. I'm a political science student, and political theory at that, not a law student. Most of my knowledge of this area of law comes from the fact that I argued it a couple years ago as an undergraduate moot court problem.)

What Lithwick seemed to be contesting was not the (I think relatively uncontested) idea that in a situation of *real* exigency, the President has some capacity to act, to resist force with force, even absent a clear legislative statement. Rather, she seems to be taking issue with the fact that Cheney didn't seem to have in mind that sort of exigency. Now, I don't think even Cheney would unilaterally launch a massive nuclear strike on a whim, and I doubt she thinks so either. Nevertheless, his understanding of the power of the executive does seem to extend a bit quite a bit beyond such situations of exigency as they've been traditionally understood. That, I think, is what she was taking issue with.
12.24.2008 12:20am
Beem:
What I see in the transcript is as follows, in painful detaill:

(1) Chris Wallace questions Dick Cheney on the controversial war tactics used by Bush Administration like waterboarding, surveillance, etc
(2) Cheney defends himself by making an inductive argument about Presidential powers, moving from the specifics of nukes to a general point on Presidential wartime powers.
(3) The general point Cheney makes is that "He doesn't have to check with anybody. He doesn't have to call the Congress. He doesn't have to check with the courts. He has that authority because of the nature of the world we live in."
(4) Cheney obvious intends the above to apply not just to nukes, but wartime tactics in general. Otherwise, Cheney's entire response is a non-sequiter, because he was asked about water boarding and surveillance. Replying about nukes makes zero sense unless there's a general point involved somewhere.
(5) Dahlia takes issue with Cheney's general statement about wartime powers, suggesting that this is an example of Cheney's "Nutty Version of the Unitary Executive Theory." Dahlia is NOT attacking the specifics of nuke policy, she is attacking the general principle that Dick Cheney is trying to induce from the nuclear situation, namely that the President enjoys unchecked power that extends well beyond nukes to also include waterboarding, surveillance, etc. It is this general idea that Cheney promotes and that Dahlia labels "the Nutty Version of the Unitary Executive Theory."
(6) Orin fashions a bizarre strawman out of the blue, criticizes it, and then pats himself on the back for ably dispatching imaginary arguments no one was making.
12.24.2008 12:46am
pintler:

In terms of historical examples, we certainly didn't respond to Pearl Harbor with unilateral action by the President


I don't know if the Chief of Naval Operations cleared it with FDR, but he issued the order "Execute unrestricted air and submarine warfare against Japan" on Dec 7th. Congress didn't declare war until the next day.
12.24.2008 12:51am
Putting Two and Two...:
Orin:

I see more than a hint: In fact, it seems to me, and many readers above, that this is directly what Lithwick is saying.


Isn't it just a teensy bit odd that the words "nuclear" and "attack" don't appear anywhere else in Lithwick's article if that's the "big whopper" she's talking about?

She quoted the nuclear bit because it is part of the paragraph that contains "the whopper". Cheney put the two together because absent the urgency and drama of a nuclear attack, his theories on presidential authority fall flat.
12.24.2008 12:52am
LM (mail):
Richard Aubrey,

Let's assume for the sake of argument that:

· refusing to delay the vote three weeks until after a national election had nothing to do with politicizing it, and

· Bush didn't mislead anyone about why he wanted the authorization or how he'd use it.

Now let's pretend this didn't take place more than a year after 9/11, which makes it irrelevant to your claim that "After 9-11, they sang God Bless America on the capitol steps, it is said, and then went back to kneecapping Bush."

Even under those fictional circumstances, how do the Democratic war critics' complaints amount to "kneecapping" if they honestly believed them? To my way of thinking that's called "doing their job."

But anyway, let's go the final step and assume arguendo it was indeed "kneecapping." Then what's the right word for Cheney and Rove accusing the critics of being unpatriotic? Especially considering, unfortunately, that most of the critics' complaints and predictions were vindicated by events?
12.24.2008 12:57am
Dave Hardy (mail) (www):
"I think context matters here. The question Cheney was responding to was, "This is at the core of the controversies that I want to get to with you in a moment. If the president during war decides to do something to protect the country, is it legal?" "

Isn't the answer to that "yes"?

The presupposition is that "war" exists, however defined.

The only ambiguity I can see is if the action specifically contravenes the bill of rights or the amendments, i.e., imprisons everyone of ancestral descent from the aggressing country (which did happen), deprives red haired people of the right to vote, etc.. If the question is whether the president can legally authorize counterattacks on the aggressor, in wartime however defined, the context of the question, what is the issue? Could the president order the invasion of Normady in 1944, legally?
12.24.2008 1:03am
traveler496:
I wonder what Bush or Cheney would have done in Stanislav Petrov's shoes.

I wonder what Obama would do.
12.24.2008 1:17am
OrinKerr:
Beem,

I would be delighted to amend the post if you think I am misundertstanding Lithwick's argument. Indeed, I will do so just in case, to flag the issue for readers. Thanks for reading, and Happy Holidays!

Orin
12.24.2008 1:34am
Michael B (mail):
Lithwick's subtly invested lede graf - a comedic foretelling of her concluding commentary. Does she do stand-up? Glenn Greenwald's schtick is similar, but it's done absolutely straight-up, ram-rod straight. Greenwald has that Mugabe-like egoism and absolutism going for him. Not so with Lithwick, one can relax and laugh much more readily.

That's not disdain, it's a fairly accurate depiction.
12.24.2008 1:40am
Nunzio:
W. and Cheney's view of executive power seems very restrained compared to F.D.R.'s.

Can we hate W. and Cheney but not hate ourselves for carrying around in our pockets dimes with the visage of that crippled tyrant, F.D.R.?
12.24.2008 2:00am
Michael B (mail):
Beem,

Your own interpretation is a strawman. For example, in what sense Cheney is proposing a "general principle" vs. speaking to a specific, existential set of facts, is not at all so clear.

E.g., CHENEY: "General proposition, I'd say yes. You need to be more specific than that. I mean — but clearly, when you take the oath of office on January 20th of 2001, as we did, you take the oath to support and defend and protect the Constitution of the United States against all enemies, foreign and domestic."

Immediately thereafter he speaks to another specific set of circumstances: the circumstances that surround the potential for using the "nuclear football".

So at what point there is this "general principle" being claimed, vs. speaking to more specific circumstances, is not at all clear, as Lithwick would have us believe.
12.24.2008 2:04am
DCP:

What Lithwick seemed to be contesting was not the (I think relatively uncontested) idea that in a situation of *real* exigency, the President has some capacity to act, to resist force with force, even absent a clear legislative statement. Rather, she seems to be taking issue with the fact that Cheney didn't seem to have in mind that sort of exigency.


Go back and read what she wrote again.

(1) She is contesting this very idea.

(2) Cheney pretty clearly specified this exact scenario - you can play Madame Cleo and read whatever sinister ulterior or collateral motives you want into that statement - but she quoted him directly on it.

(3) If Lithwick thinks there is some outrageous molestation of constitutional law on this topic then she could at least have the courtesy to use her brilliant legal mind and tell us precisely why this is so. (I'll give you one guess as to why she doesn't)

It reads to me like her usual tripe. She was just dumb enough to focus in on a quote that was 100% accurate, hoping that the image of Bush/Cheney with their fingers on the button would frighten naive readers into purchasing her broken record about the broader evils of Dick Cheney's nefarious plans, like he's some sort of villian in an old James Bond movie.

And I think we can all easily predict what sort of executive authority/seperation of powers tune she will be singing six months from now.

As a longtime reader of VC, I have to ask: (a) why do the bloggers keep bringing up Lithwick and (b) why do people bend over backwards to defend her? We might as well rehash Rush Limbaugh's talking points every day.

On a sidenote - I'm guessing that there are very detailed formal and informal protocols for Presidental actions in these types of exigent situations, given the importance of the issue over the past 50 years, particularly during the Cold War. I'm also guessing they are the product of a collaborative effort from many different facets of the government. And, given the national security implications, this probably isn't the sort of information we want aired and debated in the public forum. Of course I have no direct knowledge of any of this....but neither does Lithwick, that's for sure.
12.24.2008 2:08am
Californio (mail):
Well, I had a dream about this just the other night. Immediately after a nuclear explosion , as I dug out the remains of my child - soon to be dead myself from the radiation poisoning, my rage was directed at the thought of our President failing to properly consult congress before launching a counterstrike. What Temerity! Good Day to you Sir! Good Day!
12.24.2008 2:13am
Michael B (mail):
12.24.2008 2:49am
LM (mail):
Here's what she said:

He could launch a kind of devastating attack the world's never seen. He doesn't have to check with anybody. He doesn't have to call the Congress. He doesn't have to check with the courts. He has that authority because of the nature of the world we live in.

The claim that "the nature of the world we live in" warrants a perennially unchecked executive branch can be delivered with all the gravitas in the world, and it still amounts to constitutional nonsense.

As I understand the arguments made here, between those two paragraphs we're to read an implied connector along the lines of,

"By implication, Cheney seems to believe 'the world we live in' extends the Executive's authority generally, and beyond virtually any constitutional constraint."

I'd like to think that's what she had in mind, since what she's saying otherwise makes so little sense, and since supplying the connector turns it into something I agree with to a great extent. The only problem is, what she wrote just doesn't read that way. And though I'm not surprised she'd make the "unitary executive" mistake -- she's not exactly a legal scholar -- she's usually a very competent writer, so the missing explanatory link would strike me as fairly uncharacteristic.

Bottom line: She has to have had some kind of lapse. I'd like to think she didn't say something really dumb, that she just forgot to say something important. But who really knows?
12.24.2008 3:02am
Cornellian (mail):
Well, I had a dream about this just the other night. Immediately after a nuclear explosion , as I dug out the remains of my child - soon to be dead myself from the radiation poisoning, my rage was directed at the thought of our President failing to properly consult congress before launching a counterstrike. What Temerity! Good Day to you Sir! Good Day!

I guess that's in contrast to how good you'd feel after that nuclear explosion, your kid's death and your own impending death, knowing that the President had reacted without consulting Congress.
12.24.2008 3:05am
AGBates:
Alix Cavanaugh (9:35) has it basically right. First, few people today would question the inherent constitutional authority of the president to "repel sudden attacks," especially in the absence of a congressional prohibition. Even prominent executive war power skeptics like Louis Fisher recognize this authority.

(It is worth noting that the consensus extends only to defensive actions in the narrowest sense. There is a divide over the propriety of retaliatory attacks and other offensive responses. Compare, e.g., Prakash, Unleashing the Dogs of War: What the Constitution Means by “Declare War,” 93 Cornell L. Rev. 45 (2007), with Ramsey, The President's Power to Respond to Attacks, 93 Cornell L. Rev. 169 (2007).)

Second, although people sometimes cite the Prize Cases in support of the President's power to respond to attacks, I think those people have misread the case:

(1) As Alix Cavanaugh noted, the question in the Prize Cases was whether Lincoln's blockade was proper under international law, not whether the blockade was an appropriate exercise of the President's constitutional war powers.

(2) The first quote ("If a war be made by invasion of a foreign nation, the President is not only authorized but bound to resist force by force") refers to the President's authority under the Militia Act and the Insurrection Act, which are discussed in the preceding sentence. Justice Grier is noting that the President may respond to an invasion "without waiting for any special legislative authority" because the President already has general legislative authority to do so.

This discussion is meant to show that a nation can be in a state of war even if the legislature has not issued a formal declaration of war. The example has little to do with the actual facts of the Prize Cases, which involved a civil war, not a foreign invasion.

Note also that Justice Grier later hedges a bit on the necessity of legislative sanction:
If it were necessary to the technical existence of a war that it should have a legislative sanction, we find it in [Congress's ex post facto ratification of some of Lincoln's unilateral acts.] Without admitting that such an act was necessary under the circumstances, it is plain that, if the President had in any manner assumed powers which it was necessary should have the authority or sanction of Congress, that ... this ratification has operated to perfectly cure the defect.
(3) The second quote ("Whether the President...") means exactly what it says: the President, as Commander-in-Chief, gets to decide what degree of force is necessary in any given military situation. If he determines that the confederates should be treated as belligerents, it is not the Court's place to second guess him. "[The President] must determine what degree of force the crisis demands." This passage speaks to the President's control over tactics and operations, not his power to initiate military action.
12.24.2008 3:15am
rz:
ARCraig: Yeah, I'm not sure how the idea of a National Command Authority, which requires POTUS and SecDef to jointly decide to launch a nuclear attack, jives with the unitary executive theory, which, to quote Wikipedia, "basically means the president controls the entire executive branch."

Interesting stuff, anyway. I suggest the following as bedtime reading:
Wikipedia on the National Command Authority
Wikipedia on SIOPs
12.24.2008 4:41am
man from mars:
Best movies involving the start of nuclear war:
Dr. Strangelove
Deterrence
Miracle Mile
Failsafe.

Best nuclear war books:
Red Alert
On the Beach
Failsafe (parts of it, not the whole book).

In the excellent movie, Deterrence, there is a scene where the president tries to freeze Kuwaiti assets and there is a discussion about whether he should call the Treasury or the Attorney General.
12.24.2008 5:09am
Bob from Ohio (mail):
I don't think having a required SecDef approval is Constitutional. No part of the President's authority can depend on a subordinate official.

As a practical matter, since the President can remove the SecDef from office and appoint a new Acting one, how is it a check for more than a few minutes?

As a further practical matter, in a nuclear attack, no one is going to ask a lawyer what they think. The President, any president, including Luthwick if she was it, would launch a counter attack and worry about legalities later.
12.24.2008 8:23am
Richard Aubrey (mail):
man from mars
Failsafe stole Red Alert, which was the better book.

LM.
"Kneecapping". Forcing a vote in a timely fashion is not politicizing anything. The dems complained that doing it before the elections put them in a bind. They couldn't vote against it because their constituents might object. Would object. If the election were first, they could kneecap Bush and get away with it.
I should refine my comment to refer to dems, mostly impelled by BDS, since, aside from that and personal enrichment, they have no ideology or organizing principle. See Rangel and the draft.
12.24.2008 8:49am
pluribus:
Charles Chapman:

Perhaps more legalistically (but not more seriously), this may be an example of how a Constitution written based on one set of physical realities in the 18th century might have to be interpreted a bit more broadly and flexibly given a vastly different set of physical realities 200 odd years later. When the Constitution was written, it might have been feasible to wait for a declaration from Congress after being hit by a "surprise" (what surprise?) attack consisting of cannon balls striking a port city and perhaps an army landing by sea and approaching on horseback. In the nuclear age, forget about it.

This sounds like part of a "living constitution" argument. Many who argue that the powers of the commander-in-chief are/should be unfettered also argue that the Constitution must be interpreted according to its original meaning.
12.24.2008 9:29am
ReaderY:
Congress first gave the President authority to repel invasions (a congressional responsibility by the Constitution) before the War to 1812, and it never took it away. A nuclear attack is an invasion. Ergo...
12.24.2008 9:42am
ReaderY:
That said, because the constitution lodges authority to repel invasions with Congress, not the President, along with numerous other power, it seems rather clear that the entire power to order the initiation of military force (as distinct from executing that order) lies with Congress,not the President. Accordingly, if Congress really wanted to I suppose could take authority to repel invasions, including the authority to respond to a nuclear strike, back.

I also don't believe that the President has authority to launch a pre-emptive first strike (or other pre-emptive war) without Congress' permission.
12.24.2008 9:50am
pluribus:
NG:

Invasion means invasion, and not just any invasion, but one "when the regular course of justice is interrupted by revolt, rebellion, or insurrection, so that the Courts of Justice cannot be kept open."

With respect (you admit you are a political science student, not a lawyer), you are confusing The Prize Cases and Ex parte Milligan. Whether the courts were open and functioning was a key factor in Milligan but not in the Prize Cases. Certainly, the president's power to respond to a nuclear attack would have nothing to do with whether the courts were open at the time of the attack.
12.24.2008 9:59am
pintler:

this may be an example of how a Constitution written based on one set of physical realities in the 18th century might have to be interpreted a bit more broadly and flexibly given a vastly different set of physical realities 200 odd years later.


Or, alternatively, amended? The consent of the governed and all that...
12.24.2008 10:35am
ReaderY:
See e.g. 10 USC 12406; 10 USC 331;

But see 50 USC 1631 -- Congress does place some limits on the President. Perhaps the football contains, among other things, pre-existing forms to comply with this statute.
12.24.2008 10:37am
pluribus:
pintler:


this may be an example of how a Constitution written based on one set of physical realities in the 18th century might have to be interpreted a bit more broadly and flexibly given a vastly different set of physical realities 200 odd years later.

Or, alternatively, amended? The consent of the governed and all that...

I'd guess you are not suggesting the president should seek a constitutional amendment before lauching a counterstrike. Or, at least I'd hope so.
12.24.2008 10:44am
Anderson (mail):
Okay, I've actually read Lithwick's column now, and I do think that Prof. Kerr's reading was uncharitable at best.

Full graf of Lithwick after the Cheney quote with which Prof. Kerr leads:

The claim that "the nature of the world we live in" warrants a perennially unchecked executive branch can be delivered with all the gravitas in the world, and it still amounts to constitutional nonsense. To this end it's well worth reading Absolute Power, in which distinguished legal journalist John MacKenzie takes a close look at claims about the unitary executive. MacKenzie shows how a scholarly constitutional claim about the right of executive branch officials to interpret the Constitution morphed into the aggressively ahistorical interpretation of executive power that Cheney parrots with such perfect confidence. As MacKenzie writes: "The unitary executive has come a long way for a theory that has a hole in its heart and no basis in history or coherent thought. It simply is devoid of content, not expressed or even strongly implied in foundational documents such as The Federalist, not to mention the Constitution."

She is VERY OBVIOUSLY taking Cheney's claim, not as being limited to nuclear retaliation, but as supporting a "perennially unchecked executive branch." "Perennially" is the word to watch here.

Now, that may in itself be an uncharitable reading of what Cheney meant, but to take that paragraph as disputing the particular point about nuclear retaliation is just a little weird.

-- I note also that Lithwick treats the issues of (1) did we torture, (2) was it effective, and (3) was it illegal, as settled. If Prof. Kerr found anything controversial there, he didn't post on it.

Lithwick *can* be more partisan than particular sometimes, one reason I didn't check her column at first; but I don't think this is one of those times.
12.24.2008 10:58am
Andy Freeman (mail):
> In terms of historical examples, we certainly didn't respond to Pearl Harbor with unilateral action by the President

Was that lack of response due to any reticence by Roosevelt or by the swiftness of Congressional action?

I'm pretty sure that it's the latter, but let's see evidence for the former.

What didn't we do in the interval between the attack and congressional action that we could have done? (Ignoring, of course, MacArthur's unforced loss of the heavy bombers in the Philippines - that wasn't presidential inaction but Doug's incompetence. He got better.)
12.24.2008 11:25am
Crimso:

Dahlia is NOT attacking the specifics of nuke policy, she is attacking the general principle that Dick Cheney is trying to induce from the nuclear situation, namely that the President enjoys unchecked power that extends well beyond nukes to also include waterboarding, surveillance, etc.

So how does she feel about Lincoln?
12.24.2008 11:59am
Crimso:

I don't know if the Chief of Naval Operations cleared it with FDR, but he issued the order "Execute unrestricted air and submarine warfare against Japan" on Dec 7th. Congress didn't declare war until the next day.

I'll go one better for good measure. FDR authorized unrestricted warfare against German submarines some months before that.
12.24.2008 12:02pm
Alix Cavanaugh (mail) (www):
Bob from Ohio wrote:
I don't think having a required SecDef approval is Constitutional. No part of the President's authority can depend on a subordinate official.

As a practical matter, since the President can remove the SecDef from office and appoint a new Acting one, how is it a check for more than a few minutes?
This argument is frequently made, most notably by Calabresi and Prakash, but I don't think it's correct, even if one accepts the general "unitary executive" thesis of structural hierarchism. There's nothing inherent in the notion of "executive power" that requires that the possessor of it be capable of exercising it alone.

(It's particularly odd that Calabresi and Prakash imiss this point, since they rely on Locke and Blackstone as exemplars of the original public meaning of "executive power", but the archetypal Blackstonian/Lockean executive--the English King--could do nothing legally binding alone without a countersignature or the use of a seal in the possession of a minister.)

As for firing the Secretary of Defence, I think (and am happy to be corrected if I'm wrong) that the law of "acting" officials is part statutory and part common law, but in any case not of constitutional stature and not immune to congressional revision.

It would seem to defeat the purpose of the confirmation clause if the President were always guaranteed the ability to use an "acting" official, unconfirmed by the Senate for the post whose authority he exercises, as the equivalent of one properly appointed and confirmed.
12.24.2008 12:36pm
Alix Cavanaugh (mail) (www):
Nunzio wrote:
Can we hate W. and Cheney but not hate ourselves for carrying around in our pockets dimes with the visage of that crippled tyrant, F.D.R.?
Crimso wrote:
So how does she feel about Lincoln?
Such arguments aren't persuasive.

It is perfectly reasonable to think that a President is on the whole admirable or even great without believing his every action morally justifiable or praiseworthy, let alone legal.
12.24.2008 12:43pm
pintler:

I'd guess you are not suggesting the president should seek a constitutional amendment before lauching a counterstrike. Or, at least I'd hope so.


Indeed not - I am suggesting that if we feel he needs that ability, and the constitution doesn't supply it, we amend rather than bend.

[for the record, I think the president probably needs that ability, at least for the present. I am less a fan of the post WW2 trend to go into actual multiyear wars w/o an actual declaration of war.]
12.24.2008 12:43pm
Crimso:

Such arguments aren't persuasive.

My wife is also a huge fan of the double standard. Her arguments are really unpersuasive. I think Lincoln was the greatest President we've had by far. But I also know he went way beyond anything Bush ever did. Guess he did it for the good of the country, as he understood it. Pity we can accept such from a figure from the dim reaches of history, but contemporaries are assumed to be acting in bad faith. It is understandable (and I'm not being sarcastic).
12.24.2008 1:01pm
Alix Cavanaugh (mail) (www):
Crimso,

One needs to distinguish a variety of different claims. Whether or not an official is acting in good faith "for the good of the country as he understands it" is a very different question from whether his actions are objectively morally justifiable, and that is a very different question from whether his actions are lawful and intra vires his powers.
12.24.2008 1:10pm
Alix Cavanaugh (mail) (www):
In addition, there is no double standard involved in claiming that an action may be justifiable in one set of circumstances but not in another, even if the goals of the agent are the same in both sets of circumstances. This applies whether the justification in question is moral or legal.
12.24.2008 1:30pm
Michael B (mail):
12.24.2008 2:03pm
man from mars:
Aubrey,
I agree with you. That's why I said just "parts" of Failsafe. The professor fellow and the translator were both interesting characters (in the book) despite its other flaws.

By the way, back to this thread, in math, a "unitary transformation" (or "unitary matrix") preserves volumes. It does not make things bigger or smaller. So a unitary executive connotes, at least to a mathematician, an informal idea of not preserving, not expanding, executive power.

I believe, however, that the public misunderstanding and passion on the meaning of "unitary executive" was the lowest point in public discourse about the law in my memory.
12.24.2008 2:22pm
man from mars:
For "not preserving" read "preserving". Come on guys fix the comment system here it's not 2002 any more.
12.24.2008 2:23pm
pluribus:
pintler:

I am suggesting that if we feel he needs that ability, and the constitution doesn't supply it, we amend rather than bend.

Agree with your ifs, but the question really is does the Constitution presently "supply that ability"? If the constitution as originally written gives the commander-in-chief adequate power to respond to nuclear attacks, there is no need for an amendment.

[for the record, I think the president probably needs that ability, at least for the present. I am less a fan of the post WW2 trend to go into actual multiyear wars w/o an actual declaration of war.]

I don't believe the president as commander-in-chief "needs" a declaration of war before responding to attacks on this country. OTOH, I don't think the president has the constitutional power to commit the country to multi-year wars. Without congressional funding, he simply couldn't do so, even if he wanted to.
12.24.2008 3:46pm
Richard Aubrey (mail):
man from mars.
Did you see anybody on this board implying that the unitary executive idea was a new, horrible, and extra-constitutional plot by Bush and Cheney?
12.24.2008 4:04pm
Anderson (mail):
Without congressional funding, he simply couldn't do so, even if he wanted to.

The Whigs happened upon that particular political defect in the Constitution around 1846 or so.

Most of the Whig members of Congress continued to vote supplies to the armed forces while denouncing the administration for sending them into battle. They believed the soldiers and sailors entitled to the support of the government even when the government had abused their trust.

-- Daniel Walker Howe, What Hath God Wrought?, at 763.

On the same page, a relevant quotation from Daniel Webster:

No power but Congress can declare war, but what is the value of this constitutional provision, if the President of his own authority may make such military movements as must bring on war?

A question waiting for an answer.
12.24.2008 4:07pm
jukeboxgrad (mail):
crimso:

My wife is also a huge fan of the double standard.


Is she on another blog right now pointing out that you're a "huge fan" of 'two wrongs make a right?'
12.24.2008 4:47pm
Richard Aubrey (mail):
juke.
I doubt that very many people actually claim that two wrongs make a right.
However, they frequently fail to make explicit the real point which ought to be understood but is commonly ignored;
When your guy did it [one wrong] you thought it was just great. When notyourguy did it [second wrong], you got all upset in seventeen ways and insisted it was a horrible crime.
IOW, you have no standards but partisanship.
Unfortunately, those making the two-wrongs argument fail to make the actual point explicit, leaving people like juke to sneer at two wrongs making a right.
I try to complete the point.
12.24.2008 5:25pm
Federale (mail) (www):
I guess we need to go to Justice Souter to get permission to strike back. But that is just what the liberals would want during a nuclear war. They so hate America that they would destroy it even at the cost of their own lives, or maybe they think Manhattan would survive an Iranian bomb? In any event, Litwick is certifiable. Michael Savage is correct, liberalism is a mental disorder.
12.24.2008 5:25pm
jukeboxgrad (mail):
aubrey:

When your guy did it [one wrong] you thought it was just great


Presumably you have some evidence that I think it's "just great" that FDR did what he allegedly did (as claimed in this thread). When are you going to show us that evidence?

And since you have no such evidence, are you going to show us evidence of any liberal or Democrat who thinks those things are "just great?"

And since you have no such evidence, are you going to show us evidence of any liberal or Democrat who gave those things even a lukewarm defense?
12.24.2008 6:02pm
ReaderY:

> In terms of historical examples, we certainly didn't respond to Pearl Harbor with unilateral action by the President


Soldiers, acting on orders coming from the military chain of command, fired shots at the incoming airplanes. This was unilateral executive action, without any authorization from Congress to do so.
12.24.2008 6:04pm
ReaderY:

> In terms of historical examples, we certainly didn't respond to Pearl Harbor with unilateral action by the President


Soldiers, acting on orders coming from the military chain of command, fired shots at the incoming airplanes. This was unilateral executive action, without any authorization from Congress to do so.
12.24.2008 6:04pm
ReaderY:

> In terms of historical examples, we certainly didn't respond to Pearl Harbor with unilateral action by the President


Soldiers, acting on orders coming from the military chain of command, fired shots at the incoming airplanes. This was unilateral executive action, without any authorization from Congress to do so.
12.24.2008 6:04pm
pluribus:
Anderson:

A question waiting for an answer.

Webster and Howe attest that the president has the political power to commit us to a long-term war. They do not address the constitutional question, which was the subject of my comment. The president's political power is in turn dependent on public opinion. If the public supports the war, Congress will also support it with appropriations, if grudgingly, as it has done in the last two years. If the public does not support it, Congress can bring the whole thing to a grinding halt by exercising its constitutional power to cut off funding.
12.24.2008 6:05pm
pluribus:

liberalism is a mental disorder

Some think that demonizing political disagreements is the real pathology.
12.24.2008 6:08pm
man from mars:
no aubrey i realize any lawyer, or at least a lawyer with a modicum of knowledge of constitutional law, knows what the unitary executive theory is. i was complaining that the press and laypeople have transformed the theory into something unrecognizable (probably because they don't know what "unitary" means).
12.24.2008 6:26pm
Richard Fagin (mail):
Dictum in the Prize Cases cleary described the President's authority to act without requirement of a war declaration by Congress when the acts of another nation or entity (e.g., organized or other rebels) by their nature cause a state of war to exist between the United States and that entity of nation. The example of the Mexican American War was used to illustrate the principle. What is clear is that in exigent circumstances the President has the authority, in fact the obligation, to carry out defense of the United States.
12.24.2008 6:53pm
Richard Aubrey (mail):
man from mars. I know. But the viewing with alarm wasn't absent from this board.

Juke I wasn't referring to FDR, but to the sneer that two wrongs don't make a right when the point--naked partisanship--is omitted. FDR or anybody else, not the point.Talking about the use of the sneer, not FDR.
12.24.2008 7:01pm
Anderson (mail):
If the public does not support it, Congress can bring the whole thing to a grinding halt by exercising its constitutional power to cut off funding.

I don't think "supporting the war" is as binary as you suggest. The public generally opposes the war, but favors funding the troops and getting out gradually rather than suddenly.

I think that if we were revising the Constitution, we would have to make it more difficult for the country to get into a war, because once a president embroils us in one, it's politically so difficult to get out. If the Framers noted this problem, I've not heard of it. Anyone got Madison's notes handy?...
12.24.2008 7:03pm
Richard Aubrey (mail):
Anderson.
Do you mean losing gradually versus losing suddenly?
Or taking the time to win?
12.24.2008 10:18pm
jukeboxgrad (mail):
aubrey:

I wasn't referring to FDR


Then you should give us an example of what you were referring to when you said this:

When your guy did it [one wrong] you thought it was just great


Then again, maybe you don't have an example, and the statement has no basis outside your imagination.
12.25.2008 1:17am
PlugInMonster:
This is another example of how demented liberals are in 2008. 40 years ago liberals and conservatives had a consensus on national security issues. But ever since the 1960s, liberals have basically said they have no desire to defend the nation against attack.
12.25.2008 4:40am
Horatio (mail):
General Jack D. Ripper: Mandrake, do you recall what Clemenceau once said about war?

Group Capt. Lionel Mandrake: No, I don't think I do, sir, no.

General Jack D. Ripper: He said war was too important to be left to the generals. When he said that, 50 years ago, he might have been right. But today, war is too important to be left to politicians. They have neither the time, the training, nor the inclination for strategic thought. I can no longer sit back and allow Communist infiltration, Communist indoctrination, Communist subversion and the international Communist conspiracy to sap and impurify all of our precious bodily fluids.
12.25.2008 10:10am
OrinKerr:
Anderson,

I understand that you are being critical in your comment, but it seems to rely on a remarkably strained reading of what Lithwick actually said. In any event, I believe I already addressed your concern in the update.
12.25.2008 3:12pm
Californio (mail):
[ugggh] Man, I just woke up. i had the strangest dream, I dreamt that I posted a sacastic note re: how I'd "feel" about the president not consulting with congress to respond after a nuclear blast in my area - well it prompted another post that wanted to know what would happen if I didn't feel anger at the president. Well , I think the actual legal argument goes like this: "well, duh - I'd be dead either way - so let the missiles fly! Glory Glory Hallelujah! I'd be Slim Pickens riding that missile straight down into the top of the Kremlin you Commie Bas...hey, who said it was the Russians? Then I'd ride it down into Mecca-lecka - high mecca-heiny-ho! Then, um, ah...who says the islamo-fascists did it? Merde - better nuke'em all - it is the only way to be sure. Again - I'd be dead either way."

Post script : Later it was revealed, as an alien race examined the remaining debris, that the president did consult congress - so all was well - as memorialized by what was left of a certain lefty journo who managed to scratch out a final death message : "Constitutional protocalls respected, all is well......."
12.26.2008 6:46am
Sam H (mail):
PatHMV said
"The legal niceties are, frankly moot. The President is the Commander-in-Chief. Barring some order which is so unequivocably unThe legal niceties are, frankly moot. The President is the Commander-in-Chief. Barring some order which is so unequivocably unconstitutional that nobody would dispute that conclusion, it is the responsibility of the armed forces to carry out his orders. It is not the military's job to decide whether Congress must be consulted in any given circumstance or prior to the President giving any particular order. In the event of the scenario described by the Vice President, the President will make a decision, and the military will (and should) carry out whatever orders he gives. What the court or Congress pronounces about that decision long after the fact (presuming they continue to exist) will be utterly irrelevant.
that nobody would dispute that conclusion, it is the responsibility of the armed forces to carry out his orders. It is not the military's job to decide whether Congress must be consulted in any given circumstance or prior to the President giving any particular order. In the event of the scenario described by the Vice President, the President will make a decision, and the military will (and should) carry out whatever orders he gives. What the court or Congress pronounces about that decision long after the fact (presuming they continue to exist) will be utterly irrelevant."

Well, sort of. US military oficers swear to uphold the Constitution not to obey the President.

"I, _____ (SSAN), having been appointed an officer in the Army of the United States, as indicated above in the grade of _____ do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign or domestic, that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservations or purpose of evasion; and that I will well and faithfully discharge the duties of the office upon which I am about to enter; So help me God." (DA Form 71, 1 August 1959, for officers.)
12.26.2008 10:50am
Don Kosloff (mail):
DG noted that: "Of course in the old cold war scenario, one of the warning signs of an impending first strike by the enemy would be our boomers being eliminated by their fast-attacks." The problem is that the elimination would not be a warning sign because we would not know that our boomers were being eliminated. Boomers do not communicate with anybody while on patrol, they only receive incoming messages. This was illustrated when the USS SCORPION was lost at sea. The loss was not discovered until after the family members waited in vain at the pier for the boat to return. In another vein, if China were to launch a first strike tomorrow, it would be a clear indication that they had already figured out a way to neutralize the boomers.
12.27.2008 12:10pm

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