Retired Gen Robert Kehler, commander of US Strategic Command (StratCom) from 2011 to 2013, told the Senate committee that he would have refused to have carried out a nuclear first strike on presidential orders, if he believed it did not meet the requirements of proportionality and necessity under the law of armed conflict.
“I would have said: I’m not ready to proceed,” Kehler said.
“Then what happens?” he was asked.
“I don’t know,” he replied. “It would be a very interesting constitutional situation, I believe. The military is obligated to follow legal orders but is not obligated to follow illegal orders,” Kehler said, adding that he always made sure he had legal advisers at hand when he was at Strategic Command. “If there is an illegal order presented to the military, the military is obligated to refuse to follow it. The question is the process leading to that determination and how you arrive at that. I would concede to you that would be a very difficult process and a very difficult conversation.”
Ed Markey, a Democratic senator from Massachusetts who is sponsoring legislation that would limit the president’s authority to launch a first nuclear strike, said he was not reassured by Kehler’s arguments.
“I don’t have confidence that a military chain of command would reject an order by the president to launch nuclear weapons in a preventative nuclear war situation.”
Arms control experts, however, expressed doubt that lawyers would always be involved in the decision.
“The system is designed entirely for speed, not deliberation,” said Stephen Young, a senior analyst at the Union of Concerned Scientists. “Certainly in the case of responding to an incoming attack, the lawyers are not involved. It is not clear it would be any different for a nuclear first strike, despite Gen Kehler’s statements.”
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