Preempting Preemption: Nuclear First-Use and the Role of Congress
Schultz, Jeffrey L., Kennedy School Review
A preemptive nuclear strike by the United States using "bunker-buster" nuclear weapons to eliminate a rogue state's weapons of mass destruction (WMD) would be unconstitutional without congressional authorization. Only Congress can authorize such an attack, which would violate international law. Customary international law requires that true preemption, a form of self-defense, be proportional to the threat. The Constitution's use of force framework is wise: Congress is given ultimate lawmaking power (including the power to override international law if conflicting) and the specific power to declare war because it is the most democratic branch, best able to engage in wide-ranging debate and deliberation that takes note of constituent opinion. Though the president speaks with a "unitary voice" for the nation in diplomacy, Congress oversees his foreign policy and national security strategy. Congress has ultimate authority to decide how to fund and deploy the nuclear arsenal and the coordinate authority to decide when and how such weapons ought to be used. Unless proportionately responding to repel a sudden attack, the president must obtain authorization from Congress--ideally through a legislative scheme, but, failing that, by obtaining approval of a standing consultative committee of key congressional leaders--before using even low-yield nuclear weapons to eliminate a rogue state's WMD. This position reflects constitutional imperatives and the custom and usage between the branches during the nuclear age. While unwieldy, this approach might result in a continuous adjustment of U.S. national security strategy through a process of negotiation and consultation between the political branches. Indeed, it appears to be the only workable trade-off between democratic and constitutional legitimacy and efficiency and functionalism concerns, and is far preferable to continuing to muddle through a "zone of twilight" with respect to U.S. nuclear posture in a dangerous and unstable time.
Introduction: Iraq Sets the Stage
By signing on to the war in Iraq, the U.S. Congress endorsed the first application of the Bush administration's ambitious new doctrine of preventive war. The joint resolution by Congress endorsing the president's proposed action has been referred to as a "blank check." (1) Some in Congress may have been willing to defer to the president's initiative out of solidarity or apathy, while others may have been counting upon the UN Security Council to endorse the campaign against Saddam Hussein and therefore grant it political legitimacy and international legality, taking the responsibility away from Congress. (2)
Unlike the passive Congress, the British Parliament engaged in vigorous debate on the legality and merits of the war in Iraq, with Prime Minister Tony Blair delivering a speech in defense of the war described by one commentator as "magnificent." (3) Senator Robert C. Byrd fulfilled his accustomed, lonely role as champion of Congress's prerogatives, lamenting in a 19 March 2003 Senate floor speech, "When did we decide to risk undermining international order by adopting a radical doctrinaire approach to using our awesome military might?" The Bush administration, Byrd complained, "had made the world a more dangerous place by flaunting the nation's superpower status and asserting a new doctrine of preemption without international sanction." (4)
The preemption doctrine to which Senator Byrd was alluding is contained in President George W. Bush's National Security Strategy, (5) but somehow escaped detailed scrutiny from a Congress that "never really gave the doctrine a lot of thought." (6) Despite holding several hearings to consider the work of the Hart-Rudman U.S. Commission on National Security, (7) review U.S. national defense strategy options, (8) and authorize the fiscal year 2003 defense budget, (9) the 107th Congress focused on the War on Terrorism, homeland defense, ABM Treaty withdrawal, the proposed national missile defense system, and a host of other topics, while for the most part overlooking the preemption doctrine contained in the National Security Strategy and classified Nuclear Posture Review. …