What would be the case, though, is that it wouldnt be the president alone persuading a single military officer alone on the other side of the telephone. There would be a large group of advisers and Legal Advisers weighing in on this, and thats an important part of the context that is sometimes lost in the media coverage. There would be a lot of people under the scenario that youve described not imminent, not waking the president up, but we have time to decide this. Many, many people would be weighing in, including many lawyers. I think this was answered to some extent, but ill ask you, dr. Feaver, would the possession of a Nuclear Weapon capable of reaching the United States constitute an imminent attack, in your opinion . The simple possession of a Nuclear Weapon capable of hitting the United States, does that constitute an imminent attack . Im not a lawyer, and so i could not judge whether that would meet the legal test. I think it would, in most peoples minds, constitute a grave threat to u. S. National security, particularly if it was a north Korean Nuclear warhead atop a north Korean Missile that was capable of reaching the United States. I think most americans would view that as a grave threat to our National Security. Whether that would meet the legal test of imminence would require legal judgment, and ill defer to counsel on my right. Mr. Mckeon . Senator, the mere possession of a Nuclear Weapon i do not think would meet that test. I think there would be time required for congressional authorization, if the decision were taken that the mere possession of a Nuclear Weapon by a state such as north korea was unacceptable to u. S. National security interests. They have a Nuclear Weapon today. We know that much. Thank you, mr. Chairman. Senator rubio. Thank you, mr. Chairman. Thank you all for being here. I want to say at the outset, this is an important conversation but one we should tread lightly on. Our allies who rely on u. S. Defense assurances are watching. And if we create doubt in their minds about the capability or willingness of the United States to live up to those commitments in any way, and i am not claiming thats what anyones doing, i think it could have repercussions that are significant, including encouraging some of them to perhaps pursue their own deterrent capability if they come to doubt our political ability and our willingness to live up to our commitments, actually making the world more dangerous, not less dangerous. I also think our adversaries are watching. And ill get to that part in a moment, but i think if anyone out there thinks they could somehow get away with something because in politics of the United States would prevent the commander in chief from acting expeditiously, that could also encourage miscalculation, particularly on behalf of people that are isolated from the world, dont get a lot of information and have never had anyone tell them theyre wrong or no. And i have one person in particular in north korea that concerns me in that regard. I dont think theres any debate about imminent attack or under attack. I think we all, i would agree, i think we would all agree that the president of the United States has to have the capability to quickly respond if we are under attack and or under potential imminent attack, and obviously, there could be some debate about it. I also think its important for us in the context of this new posture review to know that the traditional cold war threat of a massive exchange between the u. S. And the then soviet union is probably not likely in the short term. I think the likelier threats remain the use of russia tactical battlefield weapons to escalate in order to deescalate a battlefield event, a terrorist organization that comes into possession of a Nuclear Device or some other weapon of mass destruction, and then a rogue regime that doesnt have any of these safeguards weve talked about. Its basically one guy who has a bad night and gets up and decides he wants to do something about it. So, these are things that its important to understand, i think this whole debate is about first use. And i want to touch on a topic that was first innovated during the cold war in the context of an overwhelming conventional advantage of the warsaw pact had, but we also saw it operative in the first gulf war, and thats the notion of calculated ambiguity. And i believe it served us in both, and particularly in 91 when Saddam Hussein was perhaps tempted to use biological and or chemical weapons. One of the reasons why perhaps he did not pursue it was that there was calculated ambiguity about whether or not that would trigger a u. S. Nuclear response, and i think we could all foresee what that conflict would have looked like, had he deployed biological and or chemical agents that he had in his possession, could potentially have used. Is calculated ambiguity still an important concept in the 21st century . The notion that adversaries should have doubt in their mind about whether or not the United States retains the right to strike first, should they either use a weapon of mass destruction and or move in a dangerous direction . Is calculated ambiguity still useful and still operative in this set of threats that we now face . Senator, i believe that it enhances our deterrents to have some doubt in the mind of an adversary about under what conditions we would use a Nuclear Weapon. Senator, i agree and id go further and say that president obama, who was no fan of Nuclear Weapons and who moved us back on the Nuclear Threat index in his 2010 Nuclear Posture review, nevertheless left in place calculated ambiguity in precisely these scenarios. And his rewriting of it was taken to mean we would not threaten countries who were attacking us with nonNuclear Weapons, but a close reading of what he decided left in place enough ambiguity to achieve precisely the deterrent effect you described, and that was from a president who was openly hostile to Nuclear Weapons. Yes. Is the answer to your question. The last point in 4the 40 seconds i have left is this notion of if its legal, you have a right. I think we understand what that means. If a military officials ordered to go into a village of civilians and kill everybody, that clearly violates the law that governs armed conflict. I think theres also danger in that regard here. Now, we have to be careful about how we talk about that as well. We cannot have a bunch of bunker lawyers that basically or activists up and down the chain who decide that theyre going to disobey any order that they disagree with. We can foresee where Something Like that could spin out of control, and ultimately in this republic, we have elections, and one of the things voters think about when they elect someone to the office of president of the United States is whether or not they want to entrust them with this capability. So, it is good that people are aware of this issue, but i think we need to be very careful when we talk about that component of it. I agree. I just want to say, i dont think youll hear from my opening comments, i cannot agree more that both for our adversaries and those who are friends that we need to be careful in how we discuss this. We do not want any of them to fear that, somehow, the ability to make decisions that benefit our country and them or disbenefit them, if theyre acting against us, is being taken away. So, i couldnt agree more. Senator markey. Thank you, mr. Chairman. And thank you for having this very important hearing. I requested this several weeks ago, and i just think its so important that you have such an important discussion, because a few questions are as important to u. S. National security as the question of president ial authority to use Nuclear Weapons, not only to deter or defend against a Nuclear Attack, but also to start a nuclear war. Nuclear weapons are for deterrence, not war fighting. Launching Nuclear Weapons first would be an unprecedented act of aggression and war, whether limited or massive. Any firstuse Nuclear Strike would devolve into retaliatory strikes and war causing unimaginable death, suffering, and destruction. Absent a Nuclear Attack upon the United States or our allies, no one human being should have the power to unilaterally unleash the most Destructive Forces ever devised by humankind. Yet, under existing laws, the president of the United States can start a nuclear war without provocation, without consultation, and without warning. It boggles the rational mind. I fear that in the age of trump, the cooler heads and strategic doctrine that we once relied upon as our last best hope against the unthinkable seem less reassuring than ever. In other areas of government, our constitutions system of checks and balances ensures that the president does not have sole power to make extreme decisions without some level of national consensus. But on the president s Sole Authority to start a nuclear war, even in the absence of a Nuclear Attack against our country, no one can tell the president no, not secretaries mattis or tillerson. Even general kelley, the president s chief of staff, cant control the president s twitter tantrums. As a result, Many Americans share my fear that the president s bomb baskic words could turn into nuclear reality. The fact that any american president has the unilateral ability to start a nuclear war is why i have introduced legislation cosponsored by 13 of my Senate Colleagues to restrict any president s authority to launch a firstuse Nuclear Strike without congressional authorization. The Founding Fathers believe that congress has an integral role in any decision to start a war, and today more than ever, it is imperative that congress reassert that constitutional authority. Mr. Mckeon, is the president legally required to consult with or receive approval from anyone else before ordering the launch of a Nuclear Weapon . Senator markey, in the context that you described, in the absence of an attack or an imminent attack, i think the constitution requires him to come to congress and get that authority. Okay. Does the protocol for the president to launch a Nuclear Weapon change if we are under Nuclear Attack or are deciding to launch a firstuse strike . It is different when we are not under attack those are two different questions. Two different questions . If we are under attack, the president would have the authority under article two to defend the country, and theres no distinction between his authority to use conventional or Nuclear Weapons in response to such an attack. Is there a formal process by which anyone in the chain of command, from the secretary of defense down to the submariner or airman actually initiating the launch sequence that may object to or legally refuse to carry out a president ial order or launch a Nuclear Weapon . Well, as general kehler has described, the officers in the chain of command, the Senior Officers and the secretary could raise objections if they believe the order was illegal. I think the system is designed to protect the first or second lieutenant, 23yearold air force officers who are in the Launch Control center from having to make that grave decision. Its really the fourstars and the secretary who need to bear that burden. Because disobeying such an order would be considered a violation of federal law under the uniform under the United States code under uniform code of military justice. So, in your testimony, mr. Mckeon, you say that in august, the National Security adviser, mr. Mcmaster, suggested the possibility of a preventive war, which would require a congressional authorization. In other words, if there had been a decision that was being made by the president to use Nuclear Weapons, maybe small, tactical Nuclear Weapons, to hit the Nuclear Weapons system in known locations in north korea as part of a Preventive Nuclear war, it is your opinion that the president would have to come to the United States congress in order to receive congressional approval, is that correct . Yes, correct. Is that correct . So, when mr. Mcmaster, when general mcmaster talks in those terms, preventive war, and that is, i think, what most people are most concerned about, this question of the president actually using them as part of that kind of a scenario, there is in your opinion a constitutional responsibility for the members of congress who have to have voted on that before such a nuclear war is commenced by the United States . Correct. And in my view, the president would lack the authority. We had hearings, not in this committee, but in the Judiciary Committee before the gulf war in 1991, and i was working for senator biden and the chairman of that committee. One of the witnesses, harold cocco koe, later the Legal Adviser, said silence has a sound. If the sound from congress is silenced, then the answer is no. Yeah, well, the sounds of silence has finally ended after since 1976 to today on this issue, and i think, mr. Chairman, that you deserve much praise for having this very important discussion. Thank you. Thank you. Thank you so much for your interest in the topic and for pursuing this for so many years. Senator kaine. Thank you, mr. Chair. And i also want to thank you for having this hearing. I have a strong belief that under administrations of both parties and under congresses of both parties leadership, theres been a significant, kind of creeping abdication of the power in the war peace and diplomacy space from congress to the president. There are article 2 powers that are very important with respect to being the commander in chief and also with respect to the conducting of diplomacy, but theres also very strong congressional prerogatives and the power to declare war but also in the powers to oversee treaties and other diplomatic matters. And in recent years, i think this committee has started to pull some of that power back to this into pennsylvania avenue in important ways. That was what the iran review act did. President obama at that time was asserting an ability to do this to deal with iran on the Nuclear Program without seeking a vote of congress, and we felt that no congressional imprematur was wise and we pulled that back. We tried to pull back a little bit of the oversight responsibility. Ive been engaged in an effort with colleagues and the chair recently held an important hearing on the question of the 9 11 authorization, whether it still applies to military operations against other nonstate terrorist organizations and al qaeda, and i view this hearing as much the same way, trying to make sure we all share an understanding of what current protocols are, but then ask ourselves whether congress is taking the steps we need to, to make sure were not abdicating the article and responsibilities we were granted by madison and the other founders in 1787. General kehler, i was interested in your testimony about your, just from a military standpoint as somebody whos the head of stratcom, as a leader, your thought about an order. If a president gives an order and you would grapple with whether or not, you know, you viewed it to be lawful. The question of legality and lawfulness starts with the constitution. You take you and we take oaths to the constitution not to a flag not to the president or a party, but to the constitution. So clearly, if you thought an order violated the constitution, i assume that was incorporated in your testimony. But i wonder about your thought about internal protocols, if its more than just the constitution, but if you were to feel that an order to use a Nuclear Weapon, say violated internal protocol as been agreed upon within the military, either with respect to proportionality or some procedural protocol, is that the kind of, just using it as a hypothetical, would that be the kind of thing that might make you decide, no, i cannot execute on that order . And then im interested in understanding whether there is a widely shared view of what this line between a lawful order and an unlawful order would be. Excuse me, senator. Senator, the this issue about legality of orders exists at every level of command, no matter whether the order is to use Nuclear Weapons or weather to use some other kind of weapon, perform some other kind of operation. The principle remains the same. In order for our military to follow the orders of the civilian leaders, then those orders have to be two things. There are a couple of tests. One test is that it has to come from someone who has command authority. Right. And second, it has to meet the