>> next, senate hearing on the president's ability to authorize the use of nuclear weapons. then opening ceremony for the new miami -- museum of the bible in washington, dc, after that former white house strategist steve bannon talking about u.s. relations with israel. >> next, a hearing on the president's authority to order the use of nuclear weapons. the senate foreign relations committee heard item on the procedures currently in place, and legislation that would liar congressional approval to use those weapons. this is two hours and 10 minutes. [inaudible conversations] >> the senate foreign relations

business meeting will come to order. do just a little bit of business on the front end and hopefully take care of some business quickly. now people have other meetings and then move to the hearing itself. we thank our witnesses for allowing us to do this, and we're glad you're here. we have a number of items on the agenda today. well move a number of nominations and foreign service officer lists. we will also take up s1928. the multilateral if a review act of 2017. want to thank senator koonce force his leadership and hard work and recognize senators isakson, rubio, young, cane, and merkley for their contributions to this important bipartisan legislation before our committee. this bill would establish a process for conducting objective reviews on how well multilateral institutions carry out their missions with our funding. the authorities sunset after four review periods and 11

years. through this process we'll be able to evaluate their performance in an objective way. the review will look at performance, management, accountability and transparency. align immigrant with u.s. foreign policy goals and efficiency. the u.s. spent around $11 billion to support the work of these entities and we owe the u.s. taxpayers good value for their money. these reviews will help us make better informed decisions about how to prioritize scarce rescourses and also provide solely ground for advocating for changes and reforms. others such as the united kingdom some australia have done similar reviews of their multilateral and contributions with good results, by the way, multilateral aid contributions with good results. i argue you to support this effort to promote greater accountability for our spending on multilateral entities. senator card do you have any comment yo wish to make?

>> yes, die, mr. chairman. but before i community on the bill and nominations that are on our agenda, i want to comment regarding information statistics regarding the foreign service that has been made public over the least week. ambassador barbara stephen serena of the american foreign service association stated last week that, and i quote, there is no denying that our leadership ranks are being depleted at a dizzingy speed. due in part to the decision to slash promotion numbers by more than half, the foreign service officer corps at state has lost 60% of its career ambassadors, since january, ranks of the career ministers are three star equivalents are down from 33 to 19. the ranks tower two star ministers, counselors have fallen from 431, after labor day to 369 today, and are still falling. ambassador stevenson, the float governing board of the fs is

improperring to us ask why. i feel like i have been asking by of the administration and state department on at lot issues, including the personnel budget and reorganization matters. i'm not getting a lot of answers. just as onsmall example. the trump administration lifted the federal hiring freeze in april of 2017, the state department and the usaid has elected keep its own hiring freeze in place. why? my impression is that the morale is at an all-time low at the state department and usaid. causing a massive exodus of diplomatic and developmental expertise. why is this happening? what is the department's leadership doing about it? our president said recently we do not need to worry about the fact that many of the senior level positions of the state department remain unfilled because when it comes to foreign policy, his opinion is the only one that matters. why on earth would he say that? for the thousands of fsos around the world, working to advance

the ideal offered the united states, this was a horrible message. if this is the sort of high level decapitation of leadership going on at the defense department, with three and four star officers resigning and younger officers and a list of personnel suffering low morale and leaving as well, or not even signing up, i can guarantee you congress would be up in arms. yet here there's silence. why? the state department and usaid i would offer are everybody bit as vital and critical an element to our national security as the department of defense. the intelligence and community, our law enforcement and a myriad others in the federal government who work tirelessly every day to protect our security, extend our prosperity and promote our values. folks, this situation is alarming. we put our country danger when we do not have adequate voice and resources so all of our country's national security tools. second madeline albright once said in turn bent and perilous

world the men and women of foreign service are the front lines every day on every continent for us. this committee needs to continue to press this issue. it's our responsibility to make sure we have the diplomatic assets in place in order to represent our national security. moving to the legislative volume, want to thank senator corker and kunes for the evers on the bill it's part of our effort to coordinate activitied. her funds and advance our national interests and valued. if successful the multilateral aid review ang will provide clear metrics, reliable data and sold analysis of our investments. mr. chairman i hope every member of the committee will read the bill because does spell out or expectations in record to carrying our mission, the right use of resources and re we review this periodically and make sure our efforts are on national security interests. this is an important bill and i

applaud you for your work. one last opinion if i might. we have a quorum. we're getting near the end of this work period and we only have one more work period remaining before we adjourn for the year. there's an extremely important bill that senator rubio and baldwin have been working on which would require additional state department reporting on european government efforts to return or provide restitution for property wrongly seed during the holocaust. i've said that it before but time is running out on this issue as people get much older, fewer or surviving and it's much more rick to deal with restitution. i really applaud the work that was done on this bill and i know there are many members of the commiteye that are cosponsors, clung are so johnson, young, and -- and others and i urge the democratic and republican staff to get together with the sponsors to see whether we cannot move this bill through our committee these year and i appreciate the chairman residents attention.

>> thank you. i'd like to ask if it possible, because i know we have conflicts taking place at 10:00 15, with we could move through the business and if people want to make comments arewardsed i'm glad to hear it and we'll have a long hearing. so, let me just say, we had a very unsatisfactory meeting with the state department last week, our two staffs did. i think the concerns about the state department are bipartisan in nature. don't think they're anywhere close to having a plan to present relative to their reforms they want to make there, and i do think that we need to be much more focused on holding them accountable, because i think many of the things you said, if not all but a many of them anyway are very true. with that, i understand that mr. alln for the undersecretary of state management has been held over and will be considered the next business meeting.

would entertain a motion to approve the remaining nominations, includes miss lisa johnson, mr. sean lawler, mr. steve goldsteen, miss rebecca against gonzalez and two foreign service officer lists, and unless there's -- so moved and seconded. all those in favor say aye. >> opposed. are there any recorded nos? any individuals would like on any of these nominations? seeing none, the ayes have and it the nominations and promotions are agreed. to next we move to s1928. first i would entertain a motion to approve the substitute amendment and be portman amendment on block by voice vote. so moved. there is a second? >> second. >> so moved. and seconded. the questions on the motion to approve the substitute amendment and be portman amendmentment al

all the fav say aye. >> opposed. the ayes have it. the amendments are agreed. to any further amendments? >> mr. chairman. thank you, mr. chairman. i appreciate the work of the committee on the multihall rat ail act. have two amendments and along to that is correct senator rubio for joining me as a cosponsor. one addresses the issue of taiwan. talks about using the united states voice and our vote in international organizations to make sure that wire advocate north addition of taiwan as an observe to organizations and entities. we should stand up for taiwan as a great partner and an important voice in the international organizationings. the other amendment is addressing north korea, and a meeting that senator markey and i host evidence with the former -- a former defector this deputy ambassador to united kingdom said the one that that could make a difference in north korea is cutting off diplomatic relations with north korea other nations around the globe that

haven't done that yet and isolating diplomatically north korea as much as possible. so this amendment would use our voice and vote in international organizations and entities to do just that. to make sure that we are stressing the importance of diplomatic isolation of north korean regime and they represent a significant contrast. you have taiwan, somebody we want to partner with and is an incredible partner, somebody who abide and i resecond in rule of law, that cannot participate in these international organizations and then you have one north korea, that has been sanctioned almost greater than any other nation on the face of the planet by the united states, and yet they're allowed to blow in the united nations. why is the nation that's testing nuclear bombs in violation of every sanction possible being treated bert than taiwan? that is a great international partner. so, i'm going to withdraw these two amendmented for the sake of moving forward on 1928 but die think it's important we continue this conversation. thank you for the work you

hereafter been doing on this legs. >> thank you. i do want to point out that as a new member on the committee, you passed one of the most meaningful pieces of legislation ever been passed on north korea. i know we have had legislation that has passed since that time, and i know there's a banking committee piece that has passed down on sanctions. i understand you're working very closely with us and with the sponsors of that bill to add your language there i want to thank you for being so focused on that part of the world and your leadership of that committee, and thank you for withdrawing these so we can work constructively towards another end on the bill i'm talking about. is there a motion to approve the legislation as amended? >> so move. >> a second? >> second. >> so moved and seconded. the question on the motion to approve s1928 as amended. install favor say aye. >> aye. >> opposed? with that the ayes have it. the legs at amounted is agreed.

to that complete's committee's business. move to make technical and conforming changes. without objection so ordered. with that the committee stands adjourned exactly at 10:15 as we said. we will see finance committee members later. thank you so. my appreciate it. >> mr. chairman. >> yes, sir. >> if could i just briefly thank you for working with me on this bill. thanks to senator carden and everybody who has been a cosponsor. we spend ten billion a year of the united nations world bank and other organizations and i appreciate this approach and i appreciate senator merkley's amendment at him that wake the whole methodology more transparent. we have to continue 0 in a bipartisan way to make sure that what foreign aid we are investing is done well and wisely and i appreciate the opportunity to work together on the bill. >> i appreciate being able to work with you on this, and i think people understand, too this also gives us the ability, with this data, to strongly support those agencies that we believe taught be strongly supported if they're producing good results.

so thank you. >> thank you. >> with that, we will now move to the hearing. the hearing effort will actually come to order women thank general koehler, dr. fever, mr. mckeyan for joining today and sitting through the business meeting. other number of members on both side offered the aisle of this on and off the committee have raised questions about the executive's authorities with respect to warmaking, and the use of nuclear weapons, and from a diplomatic perspective, entering into and terminating agreements with 0 countries. as i've mentioned publicly, this is one in a series of hearings where our committee will examine all of these issues, but today it's my hope that we will remain focused on the topic at hand, the authority and the process for the use of nuclear weapons. the congressional research service tells us this is a the

first time that the foreign relations committee of the senate or house has met on this topic since 1976, 41 years ago. making the decision to go to war of any sort is a heavy responsibility for our nation's elected leaders. and the decision to use nuclear weapons is the most consequence shall of all. the atomic energy act of 1946 and the scent practices recognize that the use of nuclear weapons must be subject to political control. this is why no general or admiral or defense secretary has the authority to order the use of nuclear weapons, only the president, the elected political leader of the united states, has this authority. the nuclear arms race between the united states and the soviet union during the cold war dramatically elevated the risk of nuclear conflict. as a soviets developed massive numbers of number clock weapons and the systems to develop them to the united states -- to deliver them to the united

states, we plan for the unthinkable, how to get our missiles in the air without -- within those few minutes before their warheads could hit us and possibly destroy our ability to respond. in that kind of scenario there's no time for debate. having such forces at the ready has been successful in deterring such an attack and for that we are grateful. but this process means the president has the sole authority to give that objector. whether we are responding to a nuclear attack or not. once that order is given and verified, there is no way to revoke it. to be clear, i would not support changes that would reduce our deterrence offed a sir very order reassurance of our allies but i would like to explore as the house did 341 years ago the at realities of the sim. want to thank thundershower distinguished witnesses and the member of the committeor the seriousness with which they

approach this topic before us today, and hope that together we can have a productive and enlightening discussion about this sober issue. with that i'd like to turn to my friend and our distinguished ranking member, senator cardin. >> mr. chairman, thank you so much. almost always thank you for holding hearings, but in this case, i really do believe that this is a critically important discussion to of to have with the senate and the american people. i must tell you, i am always amazed as to what subjects come up at town hall meetings i hold throughout maryland. most of the subjects deal with the local economic or domestic issues. we don't normally get a lot of foreign policy questions at town hall meetings. but of late, i've been getting more and more questions about, can the president really order a nuclear attack without any

controls? that question is asked more and more by the american people. of course, it's fueled by comments made by president trump in regards to north korea. quoting the president in is his august interview, north korea best not make any more threats to the united states. they will be met with fire and fury like the world has never seen. or the president's comments will have no choice but to totally destroy north korea. now, many interpret that to mean that the president is actively considering the use of nuclear weapons in order to deal with the threat of north korea. that is frightening. and as the chairman pointed out, based on my understanding of the nuclear command and control protocols, there are no checks, no checks, on the president's

authority. the system as it is set up today provides the president with the sole and ultimate authority to use nuclear weapons. that was developed because of the realities of the security of our country. the nuclear command and and control system we have in place is the result of three factors. the first was that the particular threat and challenge of the cold war. for decaded the united states faced a nuclear armed adversary in the soviet union with a large and capable nuclear force. the united states set upon a strategy of mutual assured destruction which places distive commanded on the nuclear war command and control system. the second and related factor is this law as physics. an icbm launch from rich to -- from russia to the united states would have a 3-minute flight time. wasn't time to convene a special

session of congress or have the type of consultation to have a deterrent. this being at the president and his team have an incredibly short window to identify, assess, communicate, decide, and if necessary, launch, nuclear force. there is no time for cabinet meet examination no time for consultation. the cold war may be long behind us, but such a scenario, based upon the need to deter a massive soviet nuclear attack with little or more no warning time e driving force between the current manned and kole architecture today. the final factor behind u.s. nuclear command and control system rests with the fact that nuclear wents, ever since their development, have always been considered unique. not like any other military weapon. starting under president truman the point was made crystal clear that the white house in charge of the atomic bomb and its uses, not the military. nuclear poms were not a military weapon whose use be woo would be

controlled by the averages forces about the strategic weapon under strict kole of civilian and elected officials. the president has both the highest elected economy and commander in chief under the discussion, played unique role with this unique weapon. the president and only the president assumed the sole and unchecked power to launch nuclear attacks. at president trumanon said you have got to understand that this isn't a mull tear weapon. it is used to wipe out women and children and unarmed people and not for military uses, so we have got to treat this thing differently from rifles and cannons and ordinary things like that. nuclear weapons are unique work face a different question then the cold war ump given today's challenge wed need to revisit this question on whether a single individual should have the sole and unchecked authority to launch a nuclear attack under all circumstances, including the right to use it as a first

strike. the most likely attack we face is not a massive surprise nuclear attack by russia or china, but a nuclear conflict that springs from an escalating conflict with the smaller nuclear forces such as north korea. in this sort of circumstance, where the united states would not face the same sort of use them or lose them pressure we faced during the colder war and maybe by possible and certainly wise for the president to take the time to consult congress before the profound and historic decision to use nuclear weapons is made. i would like to be able to tell my constituents and the american people we have a system in place that prevents an impulsive and irrational decision to use nuclear weapons. unfortunately i cannot make that assurance today. i look if you forward to hearinm the very -- three very distinguished witness us. just would like to acknowledge mr. mckeion's president here as the form couple to this -- former counsel to this committee. nice to have him here.

>> thank you so much. our first witness today general bob koehler, commander of the strategic common from 201 to 20 13. thank you for being here and for your service to our country. the second witness is -- peter fever, political science of duke university. thank you for being here today. the third witness is -- ryan mckeon, the acting undersecretary of defendant for policy during the obama administration and once a staff member on the committee. thank you for coming back. if you can summarize your comments in five minutes, we would appreciate that. any written materials you have without objection will be entered into the record and if you could just begin and proceed in the order introduced, we would appreciate. >> thank you, and good morning, mr. chairman, good morning, senator cardin, distinguishes members of the committee, it's my honor to appear today to discuss nuclear decisionmaking.

i'm also really pleased to appear with these two outstanding panelists and colleagues to my right. command and control is a critically important component of our nuclear deterrent and i applaud you for taking the time to understand it bet better. the views i express this morning are mine and no longer represent the department of strategic command or the u.s. air force. i will try to bring the perspective of element four decade military service and senior military command to my remarks today and much of that was in nuclear related duty. let me also adder that some of the nation's most closely guarded secrets are associated with nuclear weapons. with the plans associated with them and with the processes as well. so there are limits on what i can say, even if some aspects of this matter are discussed openly by others. in the interests of time, i would like 0 make three brief opening remarks. first, as the committee knows well, the u.s. now faces more

complex security problems and greater uncertainty than it did during the cold war. nuclear weapons are not gone from world affairs and it doesn't look to me like they're going to be gone from world aaffairs anytime. so russia and china are modernizing the pores as the bases offing extras at our expense. and the expense of our alis. russia frequently makes explicit nuclear threats to include first use. china will soon deploy ballistic missile submarines opening a new chapter, north korea threatens or regional allies and forward based forces and is pursuing the capability then the u.s. directly. north korea has also threatened nuclear first use. iran remains a country of interest. other strategic threats linings long-range con diengal weapons, cyber weapons and threats against critical space have emerged and can arrive at our doorstep quickly but nuclear

weapons are important in the strategied of our potential adversaries. the second point. while the u.s. nuclear force is far smaller, postured less aggressively, and occupies a less prominent place in our defense strategy than it did during the cold war, nuclear deterrence remains crucial to our defense and to strategic stability. there's an old saying that i've used many tames over the year deterrence exists whenned a adversary believes they can't achieve they're objectives, will surf unacceptable consequences if they've try, or both. u.s. nuclear weapons prevent the coercive or actual use of these weapons against us in our allies which is their primary purpose, cob strain the scope and scale of conflict, compelled a very sirs a do ponder the consequences of their, as before they act and obviated the need for additional allies to acquire their own. no other weapon can replay the deconcern value of nuclear weapons. and the ability to command and control our nuclear forces under

all conditions of crisis and conflict remains central to the credibility of the deterrent. third. u.s. nuclear forces operate under strict civilian control. only the president of the united states can order the employment of u.s. nuclear weapons and the president's ability to exercise that authority and direction is ensured by people, processes and capabilityies that x-ray in the nuclear command and control system. a still controlled by human beings, not happenings automatically. that system is designed to do two very important things. first, it's the dined so enable the the authorized use of nuclear weapons pretrial eventing the unauthorized use or the accidental use or the inadvertent use of them. and, two, to do so in the face of a wide variety of scenarios. including a nuclear attack. and the challenge of the cold

war, which is a short notice mastiff attack, while -- massive attack, while less likely today i would agree, still exists, a colleague of mine always said that when you're looking at an adversary you have to look at capability and intent. russians may not have the intent of attacking us today with a short notice massive attack but they retain the capability to do so and so long as they do, we have to deter that capability. the nuclear decision process includes assessment, review and consultation between the president and key civilian and military leaders. followed by transmission and implementation of any presidential decision by the forces themselves. all activities surrounding nuclear weapons are characterizedded by layers of safeguards, tests and reviewed. finally, i think it's important to remember that the united states military doesn't blindly follow orders. the presidential order to employ

u.s. nuclear weapons must be legal. the basic legal principles of military necessity, distinction and proportional lit apply to nuclear weapons just as they do to every other weapon. it was my job, and the job of other senior leaders like the secretary of defense and the chairman and the other combatant commanders to make sure the principles were applied to nuclear orders. as i close i want to urge caution as you consider these matters. changes or conflicting signals can have profound implications for deterrence, for extended deterrence and for the confidence of the men and the women in the nuclear forces. again, mr. chairman, thank you for issue voting me. i appreciate being here today and i look forward to your questions. >> thank you very much. doctors fever. >> chairman corker, ranging member cardin and distinguished members of the committee. thank you for the opportunity to discuss this important topic which i will refer to as nuclear command and control.

my bottom line is simple. in the past, congress has played a vital role in pushing the executive branch to strengthen command and control, and the time may be ripe for another close look. however, we must proceed with some caution because the topic is complex and susceptible to unintend consequences. ...

>> >> that could thwart the first enemy strike plan but would increase the risk that what it might be used in the unauthorized fashion or by someone confused the fog of battle. the history of committed and control history of civilian and military leaders without proper balance added it did say history of vocational discoveries that their risk of one side or the other was greater than originally understood and is a history of improvements like that permissive action that block the detonation of a weapon without the pin code and pressed by congressional

advocates. these improvements may have helped to forestall disaster and brings me to resected major point we must be willing to have that requisite funds to keep the technology of today but hardware is trump to buy software hardware refers to the technology like what i just mentioned and software is the rules them procedures govern how the hardware is used for instance the code management system to determine who has the coated authorized to release them. what we're refers to the human element the reliability of people involved to enforce the rules and that relations have warmed up political context that the software and hardware operate at the end of the day what would matter most is the human element with the president's advisers to be in a position

to provide time the council would shape the president's decisions with the various echelon of the chain of command to recognize that use order to be legal with the deeply ingrained treating and indeed was aboard the elements to do what they are supposed to do space -- no more in no less of a prejudgment the last point cannot be overemphasized. it is technically possible to build command-and-control to eliminate the human element altogether. every generation of strategic negative strategic leaders have understood such a system would be foolhardy in the extreme the human element introduces risks to be sure but also the opportunity to mitigate risks. this brings me to deaf third major point the best reform are ones that maximize the opportunity for the human

element to mitigate risk by maximizing time for the liberation and assessment. of course, must not run afoul of and i conclude with my fourth and final claim the time is right for a fresh look with changes of communications technology rapidly evolving cyberthreats alone would justify a fresh examination those that were warned about five years ago is in merger reality today and finally with our divisive political environment has effectiveness of all branches of government to wield the power they possess and in that context with command and control could help shore up nuclear confidence in this area and experts have suggested many possible improvements worth considering with a variety of proposals that involves

cert by cabinet officials under circumstances however all of these proposals raise constitutional questions about usurping the president's authority. because of those actual operations are complex before legislating any particular fix but nevertheless i would recommend diligence and perseverance and oversight to reassure our friends and enemies that the nuclear arsenal will function as intended. thank you. >> senator and to members of the committee thank you for your invitation to be here today it is nice to be back in his room after being in this river as a staff and i will digress briefly i am very impressed up quickly mr. decorum with numerous hours waiting for that magic

senator to show what. -- i will briefly address the three questions not to duplicate. who has the authority? the president. is commander in chief the sole authority within the executive branch some operations is delegated to the secretary of defense then further delegated to combat and commanders the ability to use nuclear weapons remains with of president given the gravity of the consequences. that they would not make this decision by himself that system is designed to ensure they consult with the national security council and other senior civilian advisers i would expect that to occur in every case with nuclear weapons as

contemplated. the authority to employ nuclear weapons is intertwined with a momentous question who has the authority to take the country to war? those to supplying the court forces the president says he is the commander in chief of the army and navy that constitutional surtaxed gives privacy in this sphere the power is not merely limited to formal declarations of war since world war ii but to authorize most use of military force. to have that constitutional authority or to preempt the evident attack article to does not give carte blanche to take the country to war. in the modern era of the president has made by the sentence of authority to take military action without prior authorization by congress in a manner the

framers would not have recognized. nonetheless we may not have resolved this debate in addition to the of global terrorism thailand the adversaries today in one hand with russia and china and north korea and iran. period these possess nuclear weapons in the fourth has pursued such a capability. those that have nuclear weapons use to one doubted the be bored in a constitutconstitut ional sense it instituted by the congress if it is initiated excuse me it would require authorization by congress. to indicate the analysis with the use of military forces required with the examination of the nature scope and duration of the conflict.

and specific congressional approval would be necessary for the prolonged and military engagement with exposure with military personnel over a substantial period of time. it is hard to imagine anybody that would not meet that test so that escalating rhetoric between the president and north korean leader are foremost in your mind in that context congress needs to authorize from the joint staff where he stated a ground invasion would be required to locate and destroy all components of the nuclear weapons program given a high number zero curring in any conflict let alone during the ground invasion no argument could be made there would not be war in the constitutional sense so officials have stated time is running out

in august suggesting the possibility of a preventive for that is a pre-emptive strike in the face of a pre-emptive -- impending attack and for contacts what is the current policy of use of nuclear weapons? i highlight several elements with a presidential emplaning guidance which remained in place while they complete that posture review and then to describe these elements in his statement the 2010 npr set the goal to reduce nuclear weapons of the national security strategy and it is important to understand nothing in the current guidance that the obama administration did not adopt a formal policy of no first use all the with the

final months vice president fighting gave a speech in which he said given the on nuclear capabilities it is hard to envision a scenario with a first use of nuclear weapons would be necessary he the president were confident they could defend themselves against non-nuclear threats through other means. the key for the opportunity to be here look forward to your questions. >> thanks for that outstanding testimony i will reserve my time for interjections. >> also to all three if you for your service to our country of these very difficult issues. i will preface the question with my strong belief that there is not a military solution to the crisis in north korea. with any military option carries of believable risk factors rather conventional

or the use of nuclear weapons. i hope the president's trip to asia has a diplomatic search to recognize china and the united states should be looking for off ramps to this crisis with a lot in common -- common in china can change the equation. i hope that is where we are headed because the use of any military option has extreme risk. it isn't a hypothetical discussion what concerns me the president may be getting military options with the use of conventional weapons leading to an extreme number of casualties in japan or south korea. so whether a nuclear first-rate could prevent that from occurring.

metadata day hypothetical discussion. so to be impressed by your statement with the legal principles of distinction also applies to nuclear plants and operations how is the president legally restrained if that all with the use of a nuclear first strike as a result of the orders that are there under command or there is a distinction that requires this necessity? is there any real restraint on the of president in north korea?. >>. >>.

>> there are legal constraints within the military option consider old -- considered. the debate of nuclear weapons and morality and legality and where they fit in all of that given that things changed august 1945 and there has been a longstanding policy from the united states that nuclear weapons are not inherently illegal. they could be used illegally but the question is under what circumstances and what situation so when i was involved abstract of -- stratcom with flexibility we

and fall the though legally advisers. >> i'm sorry to interrupt you but there is discussion taking place at the national security council level with military advisers and the advice is under the guidelines of proportionality and necessity that this is not appropriate for a the nuclear first-rate is there an action that could be taken if they overrule that decision?. >> other than to state their view of the legality of the move the president retains constitutional authority to order some military action you would be in a constitutional solution

because the military is obligated to follow legal orders. >> who makes that judgment under dot -- department of defense?. >> that was on my plate and ultimately it is difficult. >> so if this did not meet that legal test of proportionality even by the president of the united states to use a first-rate because of legalities you retain that decision to disobey?. >> yes. if there is the illegal order presented to the military there obligated to refuse. with this process leading to the determination and i

would concede that would be a very difficult process and conversation. bin that scenario i would also argue there is time for that for that kind of deliberate conversation. >> and just to complete this cycle, a part of this is the of protocol established under executive order with nuclear that require the proportionality if you are talking bout other is the inherent responsibility of the military command. >> yes. >> there are two different sets because you could be getting opinions from the white house that this is legal but you have to make your own independent judgment based upon history

or legal orders. >>. >> is somebody received an order that you knew were not vetted through the national security council that discussions had not taken place and you got a call out of the blue things were tense and a particular area and he received that order would you consider that to be legal or not?. >> and never felt with the national security council i felt that i had three obligation. 1m was to provide military vice one was to raise concerns that i had if they were legal concerns in that third obligation was related to the legality of the order

we fuse or follow i had legally visor's myself i fully expected we would have a secretary in cheap -- chairman advisers that was their issue to take but certainly i would have spent it consultation with the secretary of defense and chairman. >>. >> with those two basic scenarios under imminent attack is more pre-emptive. >> i did not mean to imply that. >> so to determine under imminent attack he has absolute authority. correct?.

>> context matters. >> is there any process at that moment?. >> i and a former commander, not a lawyer. >> so to try to shed some light context matters. with a range of scenarios if there is a potential for nuclear weapons use policy will help under what extent -- circumstances with the posture review it said extreme circumstances so at as a commander that was in my mind as a context with a

tactical warning into the of playbook that was headed for the of viability. >> obviously that is imminent but what if it is right before?. >> there's also those conditions where we have solid warning that something will happen. >> that is the game plan of strategic warning?. >> it is not precisely defined but under consideration tactical warning carries with it some amount of urgency. so of a decision of what to do with responding so strategic warning is not so

is more time is introduced into these scenarios as you go from the most extreme extreme, back to the left. >> so that is more strategic if you get a presidential order to launch the you are in a position it is not properly vented so you believe that is the illegal order? to make you have to determine that. >> the data sure responsibility?. >>. >> i would say it i have a question about this and i would have said i'm not ready to proceed. >> then what happens?

fortunately they are hypothetihypotheti cal scenarios. but this is the human factor there is the human element to this. so at that point as with any military order it doesn't matter the consequences of our nuclear weapons but it is the same principle. >> so there is a lot of human interaction between the presidential order when it is not evident to ask the questions to wipe out the facts we haven't gone through the process that is a proportional so even though the president has the authority there are limits even in this context.

>> i believe that's true and even if time is compressed there are circumstances that i could envision were i would have said the same thing which is great. stop. we need to resolve these issues and that process provides for that in that it is the interaction among human beings but that decision of authority resides with the president. >> thanks for your service. >> the person in your position. >> so the person put in your position how does this depict the work?.

>> i can tell you how it works for me. the secretary of defense is to recommend to the president's it to become the president's nominee those that move up to those defense mechanisms that this is not a political position typically that is based on merit?. >> it is not. and i would like to the khmer it as well in bad is

to pose to other witnesses that are in a position to select senior commanders. >> i can tell you from my vantage point in the pentagon with the national security console the process jaunt -- general taylor describes to look at various candidates with a four-star combat and command and under obama that were recommended for selection. >> typically in recent years the commanders of some of those combats and commanders were typically four stars on the second or third assignment. i've is not to take command that was my second four-star.

>> so to be a clear declaration of war that recipient of the attack would be proceeded that way. only congress can declare war. should congress require the president to seek authorization for the first use of nuclear weapons? why or why not?. >> if the united states wanted to initiate war with another nuclear state then you can see the use of nuclear weapons might be possible of war in the constitutional sense that war should be authorized. under attack from a nuclear state using nuclear weapons that is a different question and the president has the authority to respond with conventional or nuclear weapons but the hardest

question is that in between was senator johnson was getting and so what is imminent on the continuum?. >> how you define it?. >> the most obvious case we see a of missile on a launch pad or several missiles with good intelligence they will be launched at the united states that seems pretty clear case of evidence. then the continuing move down to where it is less imminent in more primitive attack. >> so to distinguish between scenarios so in those

settings that is a very limited time window to make that decision he alone would have that authority in making we all believe that this system would carry out the order that he gave. the electorate on election day chose him to make that decision. to say i am being greeted want something done but in that setting he requires the cooperation of a lot of people asking the questions that general taylor outlined what is the of context and the president alone could not affect the strike. he would require a lot of people cooperating to make the strike happen and asking the question that would slow down that process. so context matters greatly.

our experience is the president has asked for authorization witty is initiating a conflict and i believe in it that was that type of context he would expect to go to congress for authorization in that style. >> with that to person concept when that accidental or ballistic -- malicious launch a nuclear chain of command the only exception is the president would not make sense to require one other person sign off on a decision as a constitutional officers such as the vice president?.

>> there is an added in the of law with a current cases and this is a hard case. said to take away the president's authority to dilute that in some respect in a formal sense but i do think it would be rare there would not consult the vice president it is automatic in the system if there is considerable time or not that would occur. >> that would be very unusual if it didn't. >>. >> any law that you pass one to get past and difficult to implement.

and with that nuclear deterrent. >> and there are two different questions with that constitutional authority what the commander in chief is allowed and the other is that is that simple set of process and procedure that insure the authorized use remains of the most senior civilian authority and that accidental u.s. cannot occur. >> mr. chairman if thanks to all the of panelists to be here today i just want to follow up with of a written statement of those

principles of military aid distinction ever personality with decisions and legal advisor is are deeply involved with all steps of the crisis action prospect how the force is to be used as well as that decision to use force. so with a few observations and mr. mckeon you are the attorney on the panel so to me with that legal standard for a person to determine whether or not these legal principles have been satisfied. so is the standard that no reasonable person could conclude the order was necessary or proportional or is there another vehicle standard or is that left

strategically vague? what is the recourse if in fact, a military person decided not to move forward based on principle reasons grounded of military necessity and proportionality? so if they do what they are taught to make known their decision and refuses to obey that order what recourse does the commander in chief have in the wake of such a decision? and the last observation is that i am unaware as others are as well but that

discernment training and to apply those legal principles. so considering those legal questions in the defense seems to state with legal determinations. so with those contingencies to help sharpen the ability to apply the facts with those global circumstances so if you like to comment on those observations starting with mr. mckeon as the council president.

>> if you have a commander saying it was not of the goal order but that chain of command to that combat a unit commander in that secretary of defense to tell them to order the commander to do that and he still resisted and then to get a new commander with that constitutional crisis. and with that proportionality a distinction it isn't the instance very often although he may be more familiar.

>> it would be a judgment based on the combat commander all of them with 34 years of military service. >> and to be highly classified training regimens. and then to train. >> we certainly do train everybody in of military and

that occurs somewhere every day those nuclear forces wearing a uniform. and what is legal precedent i cannot answer that off the top of my head. and with that legal student is to determine proportionality and the necessity i cannot describe that off the top of my head but from a nuclear decisionmaking is that process. there are people involved in the process whereby a exhortation if the question of legality if this was something we had planned if they were addressed and resolved to the time it is part of the playbook we have already been through all of

that. with crisis action planning that happens faster by follow-through with the save legal standards to be applied. i always assumed it issues were raised at the most senior level we could resolve those issues than describe the chain of command. >> let me just pull back the cover for a moment the president of united states is so unstable and volatile that they could order a nuclear weapons strike so

with that exceptional nature and with that what we're having today. it with those that have announced and with the ways and the reasons into debt chain of command. with that particular order of the illegalities. and to evaluate if that is this is very or proportional. but let me ask a simple question. is one of the question is asked to determine if day order is legal is whether or

not if there is a declaration of war that allows for that military action to take place. is there that independent legal determination made that there was an operational declaration of war in the absence of the attack or imminent threat to?. >> are you asking me?. >> the authority to use force if there is is a declaration of war comes back to context from my perspective looking at the use of nuclear weapons said

to be in extreme circumstances so subsequent to that it was in various ways in various administrations over time with those extreme circumstances dealing with national interest i cannot go back to the site that authority granted in the past and what i could believe is the issue of strategic and spectacle warning had been addressed. and that's we were not on an shako shaky legal ground. >> so if there is legal authority as part of the decision making process

without predict -- with an order to carry out. >> one of the things they ask themselves is under what authority is this operation to require referring back that they could reach the judgment is the inherent authority with that commander in chief cause so with of legal staff throughout the chain of command so what would be the case it would be the president alone persuade the as single military officer alone on the other side there would be a large group of advisers and legally visors that is the important part of the context lost in the media coverage under this scenario that you describe the we have time to

decide this including many lawyers. >> id mr. mckeon the answer this to an extent but with the possession of a nuclear weapon capable of reaching united states constitute an imminent attack in your opinion? is that's an imminent attack?. >> i could not judge the legal test in most people's mind it would be a threat to national security especially if north korea headed is capable to reach the united states most would view that as a grave threat whether if that would be that legal test.

>> that mere possession i did not think met that test. . . . . we create doubt in their mind about the capability or willingness of the united states -- encouraging some of that you perhaps pursue the current capability if they come to doubt, our political ability to observe commitments making

the world more dangerous not less dangerous. i also think our adversaries are watching. i'll get that in a moment but i think if anyone out there thinks they can somehow get away with something because in politics immunized is prevent the commander-in-chief from acting expeditiously, that could also encourage miscalculation. particularly on behalf of people are isolated from the world, don't get a lot of information and never had anyone calling their wrong. and one person particularly in the. it concerns me in that regard. i don't think there's a debate about imminent attack were under attack. i think we all agree that the president of united states as a capability to quickly respond if we are under attack and/or under potential imminent attack. obviously there can be debate about it.i think it's also important for us and context of this new posture review to note the traditional cold war threat of a massive exchange between the us and the then soviet

union, is probably not likely in the short term. i think the likelier threats remain that the use of russia tactical battlefield weapons, to escalate in order to de-escalate a battlefield event, a terrorist organization comes into possession of a nuclear device or other weapon of mass destruction. then a rogue regime that doesn't have any of these safeguards were talking about. it is basically one guy who has a bad night, gets up and decides he wants to do something about it. these are things that is important to understand. i think the whole debate is about -- i think i want to touch on something that the warsaw pact tech. some is operative in the first gulf war. that is the notion of calculated ambiguity. and i believe it served us on both ends particularly on the new one when saddam hussein attempted to his biological and/or chemical weapons. one of the reasons my perhaps he did not pursue is because there is ambiguity about

whether or not that would trigger a us nuclear response. and i think we can all foresee with that conflict would have looked like when they have deployed biological and/or chemical agents that he had in his possession. enter -- and could potentially have used. the notion that adversaries should have doubt in their mind about whether or not the unisys retains the right to strike first, should they either use a weapon of mass destruction and or move in a dangerous direction. it is speculated -- calculated ambiguity still -- >> i believe that enhanced our deterrents to our son got in the mind of an adversary about under what conditions we would use a nuclear weapon. >> senator, i agree and i go further to say that president obama, who is no fan of clear

weapons and who moved us back on the nuclear threat index in the 2010 nuclear posture review, nevertheless, left in place calculated ambiguity on a scenarios. and his rewriting of this was taken to mean we would not threaten countries who work attacking us with nonnuclear weapons but a close reading of what he was decided left in place enough ambiguities to have this effect that you described. that was for a president was openly hostile to nuclear weapons. >> yes. that is the answer to question. >> the last point in the 42nd avenue left i want to touch on is the notion of if it is legal you have a right and i think we all understand what that means. if military officials are ordered to go in and kill everybody, it clearly violates the law that governs our

conflict. i think there is also danger in that regard here. we have to be careful how we talk about that as well. we cannot have a bunch of bunko lawyers that basically or activists up and down the chain that decides they're going to disobey any order that they disagree with. we can foresee for something that could spin out of control. and ultimately in this republic, we have elections and one of the things that 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. it is that people are aware of the issue but i think we need to be careful and talk about that component. thank you. >> i agree, i just want to say is i think we are here for open comment. i cannot agree more that both our adversaries and those who are our friends, that we need to be careful in how we discussed this. we do not want any of them to fear that somehow the ability to make decisions that benefit our country and them for disc benefit them if they are acting

against us is being taken away. i could not agree more. >> senator. >> thank you, mr. chairman. thank you for having this very important hearing. i requested that several weeks ago and i just think it is important that you have such an important discussion questions are as important to us national security as the question of presidential authority to use nuclear weapons. not only to deter our defend against nuclear attempt but also to start a nuclear war. nuclear weapons for deterrence, not fighting, launching of the weapons first would be an unprecedented act of aggression and in war. where any nuclear strike will have retaliatory strengths and more causing unimaginable deaths, 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 irrational mind. i fear that in the age of trump, the cooler heads in strategic doctrine that we once relied upon seemed less reassuring than ever. in other areas of government the constitution system of checks and balances ensures that the president does not have sole power to make extreme decisions without some level of national defense is papered on the presidents 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 secretary james mattis or rex tillerson. even general kelly, the chief

of staff cannot control the president twitter tensions. as a result, many americans share my fears of the presidents bombastic words could turn into nuclear reality. the effect 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 presidents authority to launch a first use nuclear strike without congressional authorization. the founding fathers leave that congress had an integral role in any decision to start a war in today, more than ever, it is imperative that congress reassert that constitutional authority. is the president legally required to consult the approval from anyone else before ordering the launch of a nuclear weapon? >> senator, in the context of you described, in the absence

of an attack or an imminent attack, then the constitution requires him to come to congress to get the authority. >> does a protocol for the president to launch a nuclear weapon change if we are under nuclear attack or deciding to launch a first use strike? >> it is different when we are not under attack. two very different questions. >> if we are not undetected present would have the authority to defend the country. and there is no distinction between his authority to his conventional nuclear weapons in response to such an attack. >> is the informal process by which anyone in the chain of command from the secretary of defense down to the submariner or airmen actually initiating a launch sequence that may object to or legally refuse to carry out a presidential order or launch a nuclear weapon? >> well general has described the officers in the chain of command, senior officers in 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, 23-year-old air force officer sitting in a launch control center from having to make a quick decision that is really the four stars and the secretary that need to bear that. >> because disobey such an honor would be considered a violation of federal law in a uniform under the united states code on the uniform code of military justice. in your testimony, you say that in august, the national security advisor, 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 weapons to hit the nuclear weapons system in known locations, in north korea, as

part of a preventative nuclear war, it is your opinion that the president would have to come to the united states congress in order to receive congressional approval. is that correct? >> correct. >> so when general mcmaster talks in those terms, preventative war, then 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 on the judiciary committee in 1991

when i was working for senator biden and the chairman of that committee. one of the witnesses was later the legal advisor said something that stuck with me ever since, which is, silence has a sound. the sound from congress is silent and the answer is no. >> yes wellness center silence has finally ended since 1976 to today on this issue anything mr. chairman, they deserve much praise for having this very important discussion. thank you. >> thank you for your interest in the topic and for pursuing this for so many years. senator. >> thank you, mr. chairman. i also want to thank you for having this. i have a strong belief that under initiations of both parties and in the congress is a book party leadership, there has been a significant creeping application of power and the dips will -- also with respect

to conducting diplomacy. there is also very strong congressional -- in the power to declare war but also to oversee treaties and other diplomatic matters.in recent years, i think this committee has started to pull some of the power back to this in some ways and that is what the iran review act did. president obama at the time was a sitting ability to do this deal with iran on the nuclear without seeking the vote of congress and we felt that no congressional -- was very unwise. pulled it back to me did that with respect to russia sanctions in the current administration tried to pull back.there was recently a important hearing about the 9/11. and i viewed his hearing is the same with her trying to initially share an

understanding of what current protocols are but then ask ourselves whether congress is taking the steps we need to make sure we are not advocating the article and responsibilities were granted by madison and others. just from a military standpoint, as a leader, your thoughts about an order, if the president gives an order and he would grapple with whether or not you viewed it to be lawful. the question of legality and lawfulness starts with the constitution. we have taken an oath to the constitution so clearly, if he thought in order violated the constitution, i assume that was incorporated in your testimony but i wonder about your thought about internal protocols.if it is more than just the constitution but you were to feel that in order to use a

nuclear weapon say, by that internal protocol that had been agreed upon in the military. with respect to proportionality or procedural protocol, is that the kind of using it as a hypothetical, would that be kind of the thing that might make you decide, no, i cannot execute on that water and i am interested in understanding if there is a widely shared view of what this line between lawful order and unlawful order would be. >> excuse me senator. the, this issue about legality of orders exist at every level of command. no matter what the order is to use nuclear weapons or whether to use some other kind of weapon, perform some other 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. a couple of tests. one test is that it has to come from someone who has command

authority. and second, it has to meet the legal test of the law of our constitution. so issues about the extent of presidential authority, etc. our real constitutional issues for all of you to hammer out and then provide to the military. that is the way i think that works. and then second, when these issues are in military decision-making, i always had a legal advisor by my side.i think you'd find the commanders across the board these days, have legal advisors by their side. secretary of defense and people who would be part of a conference having a conversation about nuclear decisions, legal advisors would be part of that conversation. and certainly, my experience with this has been that legal advisors are not reluctant to raise their hand and say, before we go further, here are the things you need to consider

about legality. i think brian's points about at what point do we need congress to weigh in, etc. while they may not be at the fingertips of every military commander, they are certainly discussed in the military legal profession. and so, i was never concerned that i would not have the appropriate legal advisor at hand and that legal concerns will not be part of that conversation. >> came about unattended if you like to answer that. >> the military has an obligation to follow legal orders. and there is a presumption that the orders that come through the chain of command are from competent authority legal but those orders are simultaneously embedded by the legal advisors as general kelly said. but as senator rubio pointed out, it does not mean that every order that comes down is

an opportunity to discuss and debate between the chains of command. there is a presumption that the orders aren't legal. and when when there is an extraordinary order like in order to launch a nuclear weapon, that would require a lot of attention. and it would galvanize attention. the second point i would make is, you may want to have lawyers back to talk about what are the legal authorities that are now regarding conflict on the korean peninsula. we are still in under arms hostility -- there been multiple un security council resolutions all of which provide some legal basis for action. i'm not a lawyer to adjudicate those but i'm sure that the dod lawyers are looking at those issues. >> thank you, mr. chair. >> man and one more thing to this? i know the senator is out of time. >> if i was not getting legal input, i was asking for and my

obligation, my responsibility as the commander strategic command was to clear up any of those concerns on behalf of the operating forces, they are not in a position really to make a legal determination with an order that is given to them. so for example, spent a lot of time and missile launch control center over my early parts of my career. i had no way to know whether the target that i was being told to strike was illegal or not target i was relying on people above me in the chain of command to carry that out. my view is the commander strategic command was, that was my responsibility to do. >> if i can go back. what was your last admonition to make?>> is not an admonition but a suggestion. >> i took it as an admonition.

>> there were many questions about what would be the legal authority for us military action on north korea particularly with regards to nuclear weapons. and riley would certainly be politically advisable that the president go to congress to get new authorization for any new hostilities, it is at least possible, and not a lawyer so i'm suggesting that lawyers be consulted on what is the legal basis that is already existing because of prior un security council resolutions that authorized the first korean war which is not over. it is just any cease-fire. that subsequent un security council resolutions regarding north korea's illegal nuclear program. >> very good. >> yes, sir? >> i would like to comment, four-star generals are not shrinking i can recall a circumstance, i will not identify the commander and it was not a nuclear issue. where combatant commanders looking down the road and

seeing the scenario where he saw he was going to get some order and he was wondering whether that would be an illegal order and he started asking questions months in advance of the office of general counsel in osd. so i everything is a human system, the human system can break down. but we have people delighted to be four-star generals unless they are strong individuals. >> thank you. senator. >> thank you, mr. chairman. thank all of you for your thoughtful analysis of the issues here. i do want to state for the record however, that every single word that has been ordered this morning in this hearing is going to be analyzed in pyongyang. and they are going to look very carefully at how we, the american people, view this. and for those who are doing the analysis, i want to underscore our discussion here today from jen for is not as practical as

it is. we all have strong ideas about the power of the first branch congress and the second branch, the president and the military. the constitution was written in a day when things were much different than they are today. much slower than they are today. every time that the president has used force, he has been backed by the american people and by congress. i want to make sure that pyongyang understands that this talk about lawyers in this talk about standards and proportionality and all the other things we all talk about, is not a discussion that is going to take place in the heat of battle in today's world. these decisions have to be made in moments and it is not going to be made by courts or by lawyers or by congress. it will be made by the commander-in-chief of the american forces.

and he is going to do that as you pointed out, in all likelihood with the expert that he is surrounded himself with. but nonetheless, he will make that decision and pyongyang needs to understand that they are dealing with a person who is commander-in-chief right now who is very focused on defending this country and he will do what is necessary to defend this country. so lest anyone be confused as most people would be, and i have sat through scores of hours of arguments about the power of the commander-in-chief, the power of congress, etc. from a very practical standpoint, the president of the united states is going to make this decision and he is going to make it quite quickly if he has to. and so i want everyone to understand how this works. and it is not a grave

situation, is not a situation where lawyers are going to get involved and argue about proportionality and all of these other standards we talked about. unfortunately, we live in a world that is full of realistic decisions that have to be made. and they will be made. thank you, mr. chairman. >> at that that is the reason you're having the hearing., thank you so much. >> mr. chairman i have a few minutes left let me respond to that. i agree with that and i think we should have a hearing but the problem i have with that is there are legitimate disputes over the power of the president and the power of congress when it comes to this sort of thing. i want everyone to understand, particularly those in pyongyang that these are pragmatic decisions that have to be made and will be made and they are not going to be crowded by arguments of an army of lawyers on each side arguing what is proportional in what isn't. you can argue with it being right or wrong.

but that is the fact. >> i think that is correct and i do think there's any question in one of the reasons we have had some of the pieces of legislation that we have through the years, with it as i ran view act, or the russian sanction bills that we just passed. through the years, there's no question that there is a tremendous tilt to the executive branch and certainly still is and will always as related to work, there's no question. but that is the purpose of the hearing and i think it has been a good one to think more fully about what happens during these periods of time. senator. >> thank you, mr. chairman. doctor, i believe that you said something to the effect that indicates we have time to consider in response, corporation may strategic commanders is required to

execute an order. is that more or less accurate? >> does that essentially sustain the vision that there has to be a person between the president and the nuclear briefcase? incorporates in order for that briefcase to be utilized? >> i cannot speak in open session about the particularities but i will say that the system is not a button that the president can accidentally lean against on the desk and immediately cause missiles to fly. as some people in the public i think are fear it would be. it requires the president to work with military aid to attending him and have possession of the materials that he needs and it requires personnel at all levels of command of the redoubts of the missile silo to carry out an order.the president by himself cannot press a button and cause missiles to fly. he can only give an authenticated order.

which others would follow and then cause missiles to fly. >> in the context, you put the condition when you have the time to consider a response. so when you do not have the time to consider a response there has been a lot of conversation here today about reacting on the short order of an assault. is it still the case that you have to have the corporation of strategic commanders to execute an order? >> yes. but in the settings, that is where the military is waking up the president. because they are the ones who had been monitoring the intelligence picture. they are the ones getting the warning that a missile launch against the united states is about to happen and so they are already incorporating buying waking up the president, advising him or her of the situation and presenting them the range of options. i would code that is cooperating with the president in order to give the president

the options of making a decision. >> those are the types of scenarios that really give people nightmares. in the have been overdone since of scenarios of false alarms where there were folks on both sides, russian and american sent have been extremely worried that a major attack was underway. i would like to enter into the record, an article that details more than dozen such events. there is the famous moonrise incident in 1960, a training video in the next 79, in case when transport response a nuclear research being watched by the norwegians. it is those cases that give people great worry. part of the point of a nuclear triad this has not been mentioned today so want to make sure it is mentioned. part of the point was to have forces that could survive an initial attack, submarines and

bombers that carry weapons. so that we did not have to make a decision within a couple of minutes. he had a short retaliation with at least two letters of the triad that were more survival. can i just get a response as to whether that is a reasonable analysis? >> i think it is tender.it is precisely why no previous strategic leader decided to put in place an automated response. he always wanted a human in the loop and in the case that you mentioned, and others, it was a human assessment that concluded this was not real. we have time to wait. and that is why i would support and advocate for anything that can be done to extend that time. whether through better missile defense, more hardened communications technologies, so more people can be brought in

time updating other aspects of the command-and-control system. so that there's time for the human element to make the assessments necessary to reach the right decision.there are too many close calls over the course of the cold war. but they were avoided in the end by wise human decision. >> in some cases, yes. i will not go into details. in the 2010 nuclear posture review, is it not the position of the united states that we essentially us and we were not using nuclear first strike against a non-appropriation treaty participant who does not have nuclear forces? >> i written in the new york times about this. this is how it was covered in the media but when you read it closely, i believe it still leaves little room in particular because it says, those countries in compliance with their nonproliferation treaty obligations and it leaves opaque, who determines whether they are in compliance.

i inferred from that that it was the white house would determine whether they were in compliance. which is a loophole that gives the president the strategic ambiguity that he might wish for deterrence purposes. >> part of the reason for the discussion over no first use is because it creates more companies among other nations that are nuclear arms. not to perceive a false attack by the united states as occurred in the case in 1995 in which yeltsin activated the nuclear briefcase. do you see any value or any value in strengthening the perception that the us by policy would not utilize nuclear weapons in a first strike? >> i do see some value from such insurance but i also see some cost. i think that is why every previous administration, including president obama who might have been expected to

adapt in no first use policy, chose not to at the end adapt a blanket no first use policy. i doubt that this administration would either. president obama couldn't be convinced that it was worth the risks, i doubt that president trump would be. >> there's a lot of conversation at the pros and cons of that but that i am out of time. >> thank you. >> thank you for being here today. doctor, in your written testimony said that even a single nuclear detonation would be so consequential and can trigger an escalatory spiral that would leave the civilization threatening outcomes. can i just ask everyone on the panel agrees with that? >> i would agree with it in principle i think. one of the, one of the

deterrence features of course that has been with nuclear weapons since the beginning, is the high-risk that any nuclear use will not be controlled. or could not be controlled. >> absolutely. and that is what helps contribute to the deterrent factor. >> it does. but we have emplacements to try and control it if deterrence ever fails. x mr. mccann do you agree with that? >> i agree. >> i think it is that statement that is so concerning and certainly gives me pause and others pause and i think it's one of the reasons for the hearing. we have an administration where the national security advisor has suggested that we can have a preventative war on the korean peninsula when the president has said that he has asked our military leadership to come up with plans to address the north korean

regime. it suggests that we are talking about is a nuclear war, a first strike. and certainly, the potential for that to escalate as everyone has suggested, is very difficult to even contemplate. and i think one of the challenges is that we are dealing with a president as the senator cardin has said that has not seen or has not seem to be willing to accept advice on an issue, many issues affecting power. while i agree with the sinners comment that they know states is threatened, love the president to act, what the president to act in a way that acknowledges input from a lot of experts.

and not to act based on a twitter post and the anxiety that that produces, i think contribute to the concern about whether we are in a situation where we need to look at in congress, a first nuclear strike policy in banning that. >> so, you talked about the importance of calculated ambiguity. senator rubio raised that. and the importance of that and enhancing deterrence and making war less likely. can you imagine a policy that would both limit the presidents authority to use nuclear weapons and at the same time, not weaken the deterrence value of our nuclear arsenal? >> thinking about this hearing, sender we struggle to come up with constructs that make sense and it is hard to develop a

principal way to constrain the commander-in-chief power within the executive branch is this an earlier time i think our cases make bad law and i think if we were to change the decision-making process in some ways because of a distrust of this president, i think it would be an unfortunate precedent for a future president msa that some who worked in this chamber for 20 years. i feel strongly about congressional powers and in this sphere. >> doctor. >> i think there are proposals that are floating out there that are worth looking at. there is a group of academics like myself who study this issue and we have been kicking around various proposals that would limit the scenarios so it would not set aside the reprisal, the launch of your tax scenarios and then just where there's plenty of time

then specifying various protocols for authenticating in order for validating that the orders legal and things like that. each of these proposals raises important questions about article 2. answer they would have to be closely vetted. i think they're proposals like that that can be examined and might improve. however, there are some things that unambiguously would help. that is, modernizing the technology in the command and control system which is overdue in some areas for upgrade. these are very expensive but precisely before the reason that you sent center that an accident of an unauthorized use would be so catastrophic it is in investment worth making. >> general. >> we talked about a lot of potential scenarios this morning. my view on this is, it is not possible to envision all of the scenarios in advance. we try to come up with ways to

place limits on various scenarios, my concern would be that we are creating some detriment to the oral deterrent as unfortunate as it is, the big paradox of the nuclear age is still here. i said that in iran testimony. in order to prevent the use, which is the objective care. we have to be prepared to use them. and for us to propose all the scenarios under which we would want to somehow limit the power of the commander-in-chief, i would just urge you to be very cautious here fro the reasons that were raised today. it has implications for the deterrent it has implications for extended deterrent and it has implications if these just remain unresolved issues, it has implications for our own military men and women. and the confidence and trust that they place in the chain of

command. so certainly, i believe we always get better by having these conversations and debating and doing all the things that we've done throughout the cold war and beyond. i would urge you to be cautious about suggesting changes to this particular system. again, my perspective from my view was that the process accounts for the kind of scenarios that we have been talking about today. certainly accounts for tactical warning that attack is underway and we have preplanned options and the vetting has been done. it accounts for the potential for using before -- >> i certainly hear the caution you are giving us. but doesn't it also suggest that it is important for the

commander-in-chief to also be cautious in how he talks about this issue. so there's not a miscalculation on the part of our aggressors who would do us harm about what the real intent here is. >> fully agree with you on that senator. the statements the president makes to his twitter account, no doubt cause concern and confusion on the other side of this. they do not have satellites to see where we are moving our forces. he says in our mind is coming, obviously it has to give them some pause. he says on the twitter account of the matter, we have leadership of the national command authority. secretary and the chairman. they will take care of it. it doesn't compute in

conjunctions mind and with the president says doesn't matter. so i would be very worried about a miscalculation based on continuing use of the twitter account regard to north korea as i understand you are.>> thank you, mr. chairman. >> let me understand, from my perspective of a great hearing from a very balanced and informative, 41 years of not having a hearing on this topic. i understand all of those including crs that somewhat encouraged us to do so. if in fact i may feel that you did. i think that mr. mccann and the general basically, you're saying you don't see legislative changes that ought to be made at this time. i think that is where you both are and doctor, think what you are saying was really not legislative changes as it

relates to the power that the commander-in-chief has. you are talking to other types of more pragmatic changes as it relates to just the decision tree, is that correct? after the command has been given? >> be wary of legislative fixes because there second and third order effects are hard to anticipate.and the history of the nuclear command and control system is discovering that changes that had been made and well-intentioned at one level producing an unexpected result and another aspect. so do wary of legislative fixes but it doesn't mean i wouldn't review them. i think there could proposals out there. part of the value is reassuring the american public that they have a nuclear arsenal that is well-maintained and well guarded against unauthorized use. i think the senders are channeling some concerns that the public has about this and reviewing and then decided not to make a change legislative fix would go some distance

reassuring the public. >> there's another component but go ahead. >> i am wary of the legislative change on the decision-making process. but the larger conversation we have had in this hearing about the war power, really falls on you and your colleagues here in this body that continue to step forward and make the case for the constitutional imperative. in both the gulf war in 1990, 91 and the iraq war in 2002. the executive branch is rather -- in acceding to a congressional vote and authorization. george h. w. bush you do before and after said something disparaging about some old goat and congress going to war against iraq. the institutional instinct the -- we can do this under article 2. you will need as a political body, to continue to serve your

rights and make the case that we discussed. >> thank you. >> i agree with the point that have been made. i would not recommend any legislative changes at this point as well. but i would recommend some things that i know are being openly talked about. by my colleagues were still wearing uniforms. one of those is, we can always do a better job i think in training our people involved in the processes in terms of the, where the safeguards are. the fact that the point of trying to make this morning about raising the legality issue is to remind everyone that the military does not blindly follow orders. that is true with nuclear orders as well. i think that should be a reassuring piece for the american public and it ought to be reassuring to our allies and our adversaries as well. the final thing i would do is, it is time to invest. none of this committee does not have jurisdiction but it is time to invest in nuclear

command and control and communications system that has been, it has suffered from a lack of investment for too long. i think it is very important that congress be on board to modernize that system as a high priority as well as the forces. ... >> >> woodall preview agree

that continued to honor the nuclear arsenal is something that insurers that what is necessary to have that capability to deliver?. >> people should be in favor of those measures with greater safety and security. >> i would use the word recapitalization with the of platforms of the triad those are ag now simultaneously and there's no plans in place to replace those of the decade that would be an expensive proposition with that decision is made in those investments will need to be made.

and the guidance systems that have been an existence but not more sophisticated they of the tubes on the black-and-white television. we need to continue to invest using the proper technologies. other countries are the need to modernize. so to talk about the imminent attack on the united states of the president having the authority to attack and that should be the case with the late president launching a pre-emptive against day other country but that is

concerning so given with general mcmaster said about the potential so with those plans in place right now in the white house given to the president to launch a pre-emptive launch against north korea with american nuclear weapons without consulting or informing congress whatsoever. this is in clear violation of united states shouldn't -- of the united states constitution and to ensure that congress asserts its authority to ensure that the

nuclear war has not been begun in the name -- of the name of the united states by this president or any president this is a legitimate constitutional prerogative. i don't think we should be trusting the generals and with this protecting so those resisting those illegals is the decision making process. it does offer real resistance that is just the

reality of it have to declare a nuclear war with those assertions made by the national security adviser that if there is a pre-emptive nuclear war to have that constitutional responsibility with the ambiguity with president after president would defer to our authority. i am glad you are kicking this soft but and i think

the assurances i have received today will be satisfying to the american people. i think they can realize that donald trump can launch nuclear codes as easily as he can use the twitter account without the checks and balances of the united states congress without that constitutional exercise. this is a historic hearing and i hope there's more to follow. >> thanks to each of you for being here for i cannot imagine having a more balanced federal we think you for your service it with those of follow-up questions and have those submitted by the close of business on

thursday and a user those probably we would appreciate it for a you have contributed greatly to the national debate and the dialogue today and we thank you very much. the meeting is adjourned. [inaudible conversations] [inaudible conversations]

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