[Senate Hearing 115-439]
[From the U.S. Government Publishing Office]







                                                        S. Hrg. 115-439

                         AUTHORITY TO ORDER THE 
                         USE OF NUCLEAR WEAPONS

=======================================================================

                                HEARING



                               BEFORE THE



                     COMMITTEE ON FOREIGN RELATIONS
                          UNITED STATES SENATE



                     ONE HUNDRED FIFTEENTH CONGRESS



                             FIRST SESSION



                               __________

                            NOVEMBER 14, 2017
                               __________



       Printed for the use of the Committee on Foreign Relations












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                 COMMITTEE ON FOREIGN RELATIONS        

                BOB CORKER, Tennessee, Chairman        
JAMES E. RISCH, Idaho                BENJAMIN L. CARDIN, Maryland
MARCO RUBIO, Florida                 ROBERT MENENDEZ, New Jersey
RON JOHNSON, Wisconsin               JEANNE SHAHEEN, New Hampshire
JEFF FLAKE, Arizona                  CHRISTOPHER A. COONS, Delaware
CORY GARDNER, Colorado               TOM UDALL, New Mexico
TODD, YOUNG, Indiana                 CHRISTOPHER MURPHY, Connecticut
JOHN BARRASSO, Wyoming               TIM KAINE, Virginia
JOHNNY ISAKSON, Georgia              EDWARD J. MARKEY, Massachusetts
ROB PORTMAN, Ohio                    JEFF MERKLEY, Oregon
RAND PAUL, Kentucky                  CORY A. BOOKER, New Jersey
                  Todd Womack, Staff Director        
            Jessica Lewis, Democratic Staff Director        
                    John Dutton, Chief Clerk        



                              (ii)        

  














                            C O N T E N T S

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                                                                   Page

Corker, Hon. Bob, U.S. Senator from Tennessee....................     1


Cardin, Hon. Benjamin L., U.S. Senator from Maryland.............     2


Kehler, General C. Robert, U.S. Air Force, Retired, Former 
  Commander, United States Strategic Command, Alexandria, VA.....     4
    Prepared statement...........................................     6


Feaver, Ph.D., Peter D., Professor of Political Science and 
  Public Policy, Duke University, Durham, NC.....................     8
    Prepared statement...........................................    10


McKeon, Hon. Brian, Former Acting Under Secretary for Policy, 
  U.S. Department of Defense, Washington, DC.....................    13
    Prepared statement...........................................    15

              Additional Material Submitted for the Record

Responses to Additional Questions for the Record Submitted to 
  General C. Robert Kehler, USAF (Ret.) by Senator Cory A. Booker    42


Responses to Additional Questions for the Record Submitted to Dr. 
  Peter Feaver by Senator Cory A. Booker.........................    43


Responses to Additional Questions for the Record Submitted to 
  Hon. Brian P. McKeon by Senator John Barrasso..................    44


Responses to Additional Questions for the Record Submitted to 
  Hon. Brian P. McKeon by Senator Cory A. Booker.................    44


Union of Concerned Scientists--Fact Sheet, ``Close Calls with 
  Nuclear Weapons'' (2015).......................................    46

                                 (iii)

  

 
                        AUTHORITY TO ORDER THE 
                         USE OF NUCLEAR WEAPONS

                              ----------                              


                       TUESDAY, NOVEMBER 14, 2017

                                       U.S. Senate,
                            Committee on Foreign Relations,
                                                    Washington, DC.
    The committee met, pursuant to notice, at 10:16 a.m., in 
Room SD-419, Dirksen Senate Office Building, Hon. Bob Corker, 
chairman of the committee, presiding.
    Present: Senators Corker [presiding], Risch, Rubio, 
Johnson, Gardner, Young, Barrasso, Flake, Cardin, Shaheen, 
Coons, Udall, Murphy, Kaine, Markey, and Merkley.

             OPENING STATEMENT OF HON. BOB CORKER, 
                  U.S. SENATOR FROM TENNESSEE

    The Chairman. The hearing itself will actually come to 
order. We thank General Kehler, Dr. Feaver, and Mr. McKeon for 
joining us today and for sitting through the business meeting 
over the last 15 minutes.
    A number of members on both sides of the aisle on and off 
the committee have raised questions about the executive's 
authorities with respect to war-making, the use of nuclear 
weapons, and, from a diplomatic perspective, entering into and 
terminating agreements with other countries. As I have 
mentioned publicly, this is one in a series of hearings where 
our committee will examine all of these issues. But today, it 
is 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 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 consequential of 
all. The Atomic Energy Act of 1946 and the subsequent 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 the Soviets developed massive numbers 
of nuclear weapons and the systems to deliver them to the 
United States, we planned for the unthinkable: How to get our 
missiles in the air within those few minutes before their 
warheads could hit us and possibly destroy our ability to 
respond.
    In that kind of scenario, there is 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 order, 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 of adversaries or reassurance of our allies, but 
I would like to explore, as our predecessors in the House did 
41 years ago, the realities of this system.
    I want to thank all of our distinguished witnesses and the 
members of this committee for 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 would like to turn to my friend and our 
distinguished ranking member, Senator Cardin.

             STATEMENT OF HON. BENJAMIN L. CARDIN, 
                   U.S. SENATOR FROM MARYLAND

    Senator Cardin. Mr. Chairman, thank you so much. I almost 
always, in a perfunctory way, thank you for holding hearings, 
but in this case, I really do believe this is a critically 
important discussion to have not just with ourselves in the 
United States Senate but with the American people.
    I must tell you, I am always amazed as to what subjects 
come up at town hall meetings that I hold throughout Maryland. 
Most of the subjects deal with the local economic or domestic 
issues. We do not normally get a lot of foreign policy 
questions at town hall meetings. But of late, I have 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 is fueled by comments made by President Trump 
in regard to North Korea. Quoting the President in 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, ``We 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.
    And that was developed because of the realities of the 
security of our country. The nuclear command-and-control system 
we have in place is the result of three factors.
    The first was the particular threat and challenge of the 
Cold War. For decades, the United States faced a nuclear-armed 
adversary in the Soviet Union with a large and capable nuclear 
force. The United States settled on a strategy of mutually 
assured destruction, which placed distinctive demands on our 
nuclear warfighting command-and-control system.
    The second and related factor is the law of physics. An 
ICBM launch from Russia to the United States would have about a 
30-minute flight time. There was not time to convene a special 
session of Congress or to have the type of consultations that 
would infringe upon our ability to have actually a deterrent. 
This means the President and his team have an incredibly short 
window to identify, assess, communicate, decide, and, if 
necessary, launch a nuclear force. There was no time for 
Cabinet meetings and 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 no warning time remains the driving force behind 
the current command-and-control architecture even today.
    The final factor behind the U.S. nuclear command-and-
control system rests with the fact that nuclear weapons, ever 
since their development, have also always been considered 
unique, not like any other military weapon. Starting under 
President Truman, the point was made crystal clear that the 
White House was in charge of the atomic bomb and its uses, not 
the military.
    Nuclear bombs were not a military weapon whose use would be 
controlled by the Armed Forces but a strategic weapon under the 
strict control of civilian and elected officials. The President 
as both our highest elected civilian official and Commander in 
Chief under the Constitution played a unique role with this 
unique weapon. The President and only the President assumed the 
sole and unchecked power to launch nuclear attacks.
    As President Truman said, ``You have got to understand that 
this isn't a military 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 differently from rifles and cannon and 
ordinary things like that.''
    Nuclear weapons remain unique, but today, we face a 
different question than the one we faced during the Cold War. 
Given today's challenges, we 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 Cold War, it 
may be 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 forward to hearing from our three very distinguished 
witnesses.
    I just would like to acknowledge Mr. McKeon's presence here 
as a former counsel to this committee under Senator Biden. It 
is nice to have him back before our committee.
    The Chairman. Thank you so much.
    Our first witness today is General Bob Kehler, commander of 
the United States Strategic Command from 2011 to 2013. Thank 
you for being back with us today, and thank you for your 
service to our country.
    Our second witness is Dr. Peter Feaver, professor of 
political science at Duke University. Thank you so much for 
being here today.
    Our third witness is Brian McKeon, the Acting Under 
Secretary of Defense for Policy during the Obama administration 
and once a staff member, as was mentioned, on this committee. 
Thank you for coming back.
    All of you are very familiar. If you can summarize your 
comments in about 5 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 it.

STATEMENT OF GENERAL C. ROBERT KEHLER, U.S. AIR FORCE, RETIRED, 
FORMER COMMANDER, UNITED STATES STRATEGIC COMMAND, ALEXANDRIA, 
                            VIRGINIA

    General Kehler. Thank you and good morning, Mr. Chairman. 
Good morning, Senator Cardin, distinguished members of the 
committee.
    It is my honor to appear today to discuss nuclear decision-
making. I am 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 better.
    At the outset, I must say that the views I express this 
morning are mine. I no longer represent the department or 
Strategic Command or the U.S. Air Force. I will try to bring 
the perspective of almost 4 decades of military service in 
senior military command to my remarks today, and much of that 
was in nuclear-related duty.
    Let me also add 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 interest of time, I would like to make just three 
brief opening remarks.
    First, as this 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 does not look to me like they are going 
to be gone from world affairs anytime soon. Russia and China 
are modernizing their forces as the basis of strategies 
designed to expand their positions at our expense and the 
expense of our allies.
    Russia frequently makes explicit nuclear threats to include 
the threat of nuclear first use. China will soon deploy 
ballistic missile submarines, opening a new chapter in their 
nuclear history. North Korea threatens our regional allies and 
forward-based forces, and is pursuing the capability to 
threaten the U.S. directly. North Korea has also threatened 
nuclear first use. Iran, of course, remains a country of 
interest.
    Other strategic threats like long-range conventional 
weapons, cyber weapons, and threats against critical space 
assets have emerged and can arrive at our doorstep quickly. But 
nuclear weapons remain important in the strategies 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 is an old saying that I have used 
many times over the years, that deterrence exists when an 
adversary believes they cannot achieve their objectives, will 
suffer unacceptable consequences if they try, or both.
    U.S. nuclear weapons prevent the coercive or actual use of 
these weapons against us and our allies, which is their primary 
purpose, constrain the scope and scale of conflict, compel 
adversaries to ponder the consequences of their actions before 
they act, and obviate the need for additional allies to acquire 
their own. No other weapon can replace the deterrent 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 capabilities that comprise the nuclear command-
and-control system.
    This is a system controlled by human beings. Nothing 
happens automatically. That system is designed to do two very 
important things. First, it is designed to enable the 
authorized use of nuclear weapons while preventing 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.
    The challenge of the Cold War, which is a short-notice, 
massive attack, while less likely today, I would agree, still 
exists. A colleague and mentor of mine has always said that 
when you are looking at an adversary, you have to look at 
capability and intent. The 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 
activity surrounding nuclear weapons are characterized by 
layers of safeguards, tests, and reviews.
    Finally, I think it is important to remember that the 
United States military does not blindly follow orders. A 
presidential order to employ U.S. nuclear weapons must be 
legal. The basic legal principles of military necessity, 
distinction, and proportionality 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 these 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 inviting me. I 
appreciate being here today, and I look forward to your 
questions.
    [General Kehler's prepared statement follows:]


      Prepared Statement of General C. Robert Kehler, USAF (Ret.)

    Chairman Corker, Ranking Member Cardin, and distinguished members 
of the committee, I am pleased to join you today to offer my 
perspective on the authority to order the use of U.S. nuclear weapons. 
The views I express today are mine and do not represent the Department 
of Defense, United States Strategic Command, or the United States Air 
Force.
    As I begin I want to thank the committee for helping to bring 
attention to these very important matters related to the credibility 
and effectiveness of the U.S. nuclear deterrent.
21st Century Security Environment
    The United States now faces far more complex security problems and 
greater uncertainty than it did during the Cold War. Threats to our 
security are diverse, can arrive at our doorsteps quickly, and can 
range from small arms in the hands of extremists to nuclear weapons in 
the hands of hostile foreign leaders. Yesterday's regional battlefield 
is becoming tomorrow's global battle-space where conflicts may begin in 
cyberspace and quickly extend to space.most likely before traditional 
air, land, and sea forces are engaged. Violent extremists continue to 
threaten us, and we must remain vigilant to prevent the intersection of 
violent extremism with weapons of mass destruction.
    Russia's and North Korea's explicit nuclear threats (to include the 
threat of nuclear first-use) remind us that nuclear weapons are not 
gone, and it appears they will not be eliminated from world affairs 
anytime soon. Russia and China are modernizing their nuclear forces as 
the basis of strategies designed to expand their positions at our 
expense and that of our allies. In addition, North Korea's nuclear 
capabilities now threaten our regional allies and eventually could 
threaten us directly. India and Pakistan threaten nuclear use in their 
disputes, and Iran will remain a country of interest as time passes.
    Despite significant differences from the Cold War, the ultimate 
paradox of the nuclear age is still with us--to prevent the use of 
nuclear weapons, the U.S. must remain prepared to use them.
Deterrence and U.S. Nuclear Weapons
    While the end of the Cold War allowed the U.S. to diminish the role 
and prominence of nuclear weapons in our defense planning and to 
dramatically reduce both the number of deployed weapons and the overall 
size of the stockpile, nuclear deterrence remains ``crucial to our 
nation's defense and to strategic stability''. Although no longer 
needed to deter a conventional attack from the massed armored 
formations of the now extinct Soviet Union and Warsaw Pact, nuclear 
weapons continue to prevent both the coercive and actual use of these 
weapons against the U.S. and its allies (their primary purpose), 
constrain the scope and scale of conflict, compel adversary leaders to 
consider the implications of their actions before they act, and (via 
extended deterrence) obviate the need for additional allies and 
partners to acquire their own. Nuclear weapons are only one of many 
important instruments that must be orchestrated for maximum deterrent 
credibility and effect in the 21st Century; however, today no other 
weapon can replace their deterrent value.
    To remain a credible deterrent tool, the U.S. nuclear force must 
present any would-be attacker with little confidence of success and the 
certainty of an assured response against his highest value targets. 
Therefore, the U.S. must continue to take the necessary steps to field 
a modern nuclear force that presents an adversary with insurmountable 
attack and defensive problems, demonstrates resolve and commitment to 
allied security guarantees, provides the president with a range of 
options to deal with crisis or conflict, and serves as an effective 
hedge against technical failures or geopolitical uncertainty. Central 
to this force is an upgraded nuclear command, control, and 
communications (NC3) system that ensures the president always remains 
linked to his critical advisors and the nuclear forces for positive 
control.
Nuclear Command and Control (NC2)
    US nuclear forces operate under strict civilian control. Only the 
President of the United States can authorize the use of U.S. nuclear 
weapons, and the President's ability to exercise that authority and 
direction is ensured by the people, procedures, facilities, equipment, 
and communications capabilities that comprise the Nuclear Command and 
Control System (NCCS). The NCCS has been designed with resilience, 
redundancy, and survivability to ensure that an adversary cannot hope 
to neutralize our deterrent by successfully attacking any of its 
elements and thereby ``disconnecting'' the President and other civilian 
and military leaders from one another or from the nuclear forces--even 
in the most stressing scenarios. These features enhance deterrence and 
contribute to crisis stability.
    NCCS capabilities and procedures are designed to enable the 
authorized use of nuclear weapons while also preventing their 
unauthorized, accidental, or inadvertent use. Operations and activities 
involving U.S. nuclear weapons are surrounded by layers of safeguards. 
While many of the specifics are highly classified, general methods 
range from personnel screening and monitoring to codes and use 
controls. In addition, sensors and communications links that contribute 
to nuclear decision making are specially certified, and tests and 
exercises are frequently held to validate the performance of both 
systems and people. Before I retired in late 2013, we had also begun to 
evaluate networks and systems for potential or actual cyber intrusions.
    Other factors contribute to the prevention of unauthorized, 
inadvertent, or accidental use. ``Today's triad of nuclear forces is 
far smaller and postured much less aggressively than its Cold War 
ancestor.'' Not only are the long-range bombers and supporting aerial 
tankers no longer loaded and poised to take off with nuclear weapons 
(unless ordered back into a nuclear alert configuration), but ballistic 
missiles are aimed at open areas of the ocean. Also, while the 
possibility of a massive surprise nuclear attack still exists (and must 
be deterred), decision time is longer in many other potential nuclear 
scenarios that may prove more likely in today's global security 
environment.
    As I mentioned earlier, the decision to employ nuclear weapons is a 
political decision requiring an explicit order from the President. The 
process includes ``assessment, review, and consultation (via) secure 
phone and video conferencing to enable the President to consult with 
his senior advisors, including the Secretary of Defense and other 
military commanders.'' Once a decision is reached, the order is 
prepared and transmitted to the forces using ``procedures.equipment, 
and communications that ensure the President's nuclear control orders 
are received and properly implemented.''
    The law of war governs the use of U.S. nuclear weapons. Nuclear 
options and orders are no different in this regard than any other 
weapon. Here, U.S. policy as articulated in the 2010 Nuclear Posture 
Review (NPR) provided important context regarding the consideration of 
U.S. nuclear use (i.e., extreme circumstances when vital national 
interests are at stake). The 2010 NPR also restated the ``negative 
security guarantee'' (i.e., the U.S. will not consider using nuclear 
weapons against any non-nuclear weapons state that is party to the 
Nuclear Nonproliferation Treaty and in compliance with their 
nonproliferation obligations). In addition, the legal principles of 
military necessity, distinction, and proportionality also apply to 
nuclear plans, operations, and decisions. Legal advisors are deeply 
involved with commanders at all steps of the deliberate and crisis 
action processes to offer perspective on how force is to be used as 
well as the decision to use force.
    The decision to use nuclear weapons is not an all or nothing 
decision. Over the years, successive Presidents have directed the 
military to prepare a range of options designed to provide flexibility 
and to improve the likelihood of controlling escalation if deterrence 
fails. Options are clearly defined in scope and duration and the 
President retains the ability to terminate nuclear operations when 
necessary.
    Military members are bound by the Uniform Code of Military Justice 
(UCMJ) to follow orders provided they are legal and come from 
appropriate command authority. They are equally bound to question (and 
ultimately refuse) illegal orders or those that do not come from 
appropriate authority. As the commander of U.S. Strategic Command, I 
shared the responsibility with the Secretary of Defense, Chairman of 
the Joint Chiefs of Staff, and other senior military and civilian 
leaders to address and resolve any concerns and potential legal issues 
on behalf of the men and women in the nuclear operating forces during 
the decision process. It was our duty to pose the hard questions, if 
any, before proceeding with our military advice. Nuclear crew members 
must have complete confidence that the highest legal standards have 
been enforced from target selection to an employment command by the 
President.
Conclusion
    Mr. Chairman, I applaud your and the committee's interest in these 
matters. However, I urge Congress to carefully consider the potential 
impacts to deterrence and extended deterrence that any potential 
changes to nuclear command and control might have. I also urge you to 
consider that conflicting signals can result in loss of confidence, 
confusion, or paralysis in the operating forces at a critical moment. 
Some of the lapses in discipline and performance we saw in the nuclear 
forces several years ago were attributed to conflicting signals 
regarding the importance of and support for the nuclear deterrence 
mission.
    Clarity and commitment regarding nuclear weapons, their continued 
foundational role in U.S. and allied defense strategy, and confidence 
in our nuclear command and control processes are as important now as 
they ever were during the Cold War. Deterrence credibility and national 
security demand it.
    Again, thank you for inviting me to offer my perspectives on this 
important topic.


    The Chairman. Thank you very much.
    Dr. Feaver?

  STATEMENT OF PETER D. FEAVER, PH.D., PROFESSOR OF POLITICAL 
   SCIENCE AND PUBLIC POLICY, DUKE UNIVERSITY, DURHAM, NORTH 
                            CAROLINA

    Dr. Feaver. Chairman Corker, Ranking 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 unintended consequences.
    I will make four points.
    First, at the heart of nuclear command and control is what 
might be called the always-never dilemma. For nuclear 
deterrence to work, we must have a high assurance that the 
country will always be able to present a credible nuclear 
strike capability to our adversaries even in the most dire 
scenarios. However, because even a single nuclear detonation 
would be so consequential and might trigger an escalatory 
spiral that would lead to civilization-threatening outcomes, we 
must also have a high assurance that there will never be an 
accidental or unauthorized of nuclear weapons.
    The challenge is that measures designed to improve the 
``always'' side of the equation can compromise the negative 
side, and vice versa.
    Pre-delegating the authority to use nuclear weapons and 
spreading that capability to do so to lower echelons may thwart 
an enemy's first-strike planning, for example, but it would 
increase the risk that a weapon might be used in an 
unauthorized fashion or by someone confused in the fog of 
battle.
    The history of nuclear command and control is a history of 
civilian and military leaders debating the proper balance 
between ``always'' and ``never.'' It is a history of occasional 
discoveries that the risks on one side or the other side of the 
ledger were greater than originally understood. And it is a 
history of improvements.
    Some, like permissive action links, PALs, which are coded 
locks that block detonation of a weapon without inserting the 
PIN code, and were pressed by far-seeing congressional 
advocates, these improvements may have helped forestall 
disaster.
    This brings me to my second major point. We must be willing 
to invest the requisite funds to keep our technology up to 
date. But in the nuclear command and control business, hardware 
is trumped by software, and software is trumped by wetware. 
Hardware refers to the technologies like the PALs I just 
mentioned. Software refers to the rules and procedures that 
govern how the hardware is used; for instance, the code 
management system that determines who has the PAL codes and who 
is authorized to release them. Wetware refers to the human 
element, the reliability of people involved in enforcing the 
rules, and the civil-military relations that form the political 
context in which the software and hardware operate.
    At the end of the day, what would matter most is the human 
element. Would the President's advisers be in a position to 
provide timely counsel? And would that counsel shape the 
President's decision? Would the various echelons in the chain 
of command recognize a valid authenticated nuclear use order as 
being legal, given the military's deeply ingrained training to 
refuse to implement any illegal order? Indeed, would 
subordinate elements of the command-and-control system do what 
they are supposed to do, no more and no less, but with 
appropriate judgment?
    This last point cannot be overemphasized. For decades now, 
it has been technically possible to build a nuclear command-
and-control system that would eliminate the human element 
altogether. Every generation of strategic leaders has 
understood that such a system would be foolhardy in the 
extreme. The human element introduces risks, to be sure, but it 
also introduces the opportunity to mitigate risks.
    This brings me to my third major point. The best reforms to 
nuclear command and control would be ones that maximize the 
opportunity for the human element to mitigate risks by 
maximizing time for deliberation and assessment. Of course, 
efforts to extend decision times must not run afoul of the 
always-never dilemma.
    I conclude with my fourth and final point. The time is ripe 
for a fresh look. Changes in communications technology and 
rapidly evolving cyber threats alone would justify a fresh 
examination. Threats that were warned about 5 years ago have 
become urgent realities today.
    And finally, our divisive political environment has raised 
new doubts about the effectiveness of all our branches of 
government to wield the power they possess responsibly. In that 
context, a thoroughgoing review of nuclear command and control 
could help shore up nuclear confidence in this area.
    Outside experts have suggested many possible improvements 
that are worth considering. For instance, there are a variety 
of proposals that involve requiring certifications by 
additional Cabinet officials of launch orders under certain 
circumstances. However, all of these proposals raise important 
constitutional questions about usurping the President's 
authorities.
    Because the actual operations of the current system are 
exceedingly complex, I would recommend great caution before 
legislating any particular fix. Nevertheless, I would recommend 
diligence and perseverance in oversight of the system to 
reassure our friends and to warn our enemies that the nuclear 
arsenal will function as it is intended.
    Thank you.
    [Dr. Feaver's prepared statement follows:]


                Prepared Statemenmt of Dr. Peter Feaver

    Chairman Corker, Ranking Member Cardin, and distinguished members 
of the committee: Thank you for the opportunity to discuss one of the 
most consequential issues this Committee could ever consider: The 
authorities and processes by which the United States might use its 
nuclear arsenal. For the sake of convenience, I will refer to this 
broad topic as ``nuclear command and control.''
    Civilian and military leaders have wrestled with nuclear command 
and control for over 70 years--and it has been one of the issues I have 
focused on in 30-some years of studying the theory and practice of 
American civil-military relations.
    My bottom line is simple: in the past Congress has played a vital 
role in pushing the Executive Branch to strengthen the nuclear command 
and control system and the time may be ripe for another close look. In 
the course of reviewing previous choices made, scrutinizing established 
procedures, and looking at old problems with fresh eyes, we may well 
identify areas for improvement.
    However, we must proceed with some caution. The topic is highly 
classified and thus hard to discuss in open session. It is also highly 
complex, with de facto operations hinging on crucial details that are 
hard for outsiders to assess with confidence.
    Above all, there are some fundamental dilemmas at the heart of 
nuclear command and control that mean there are no simple solutions. 
Context matters and every fix may have unintended second or third order 
effects that may only be understood after the system has been 
thoroughly exercised.
    I will make four brief points in my opening remarks and then look 
forward to answering your questions as best I can.
    First, at the heart of the nuclear command and control system is 
what might be called the always/never dilemma. For nuclear deterrence 
to work, we must have a high assurance that the country will always be 
able to present a credible nuclear strike capability to our 
adversaries, even in the most-dire scenarios. Otherwise, if others 
believe that some sort of massive or cleverly designed first strike 
could render our nuclear arsenal unusable, adversaries will have a 
powerful incentive to strike us first and early in any unfolding 
crisis.
    A significant portion of the nuclear command and control system is 
thus dedicated to ensuring that the President would have a viable 
nuclear option, even under very demanding time constraints, or even 
after the United States has suffered a devastating attack. We spend 
enormous sums of money making communications systems as robust as they 
can be and training all echelons of command to be ready to present the 
national command authority with executable options under any 
conditions. Design features that increase the risk of failure--that 
would cause the system to fail impotent, rather than merely fail safe--
could undermine deterrence.
    However, because even a single nuclear detonation would be so 
consequential and might trigger an escalatory spiral that would lead to 
civilization-threatening outcomes, we must also have a high assurance 
that there would never be an accidental or unauthorized use of nuclear 
weapons.
    A significant portion of the nuclear command and control system is 
devoted to safety and security measures designed to minimize these 
risks. U.S. nuclear weapons are equipped with environmental sensing 
devices that inhibit nuclear detonation unless the weapon experiences 
the exact sequence of physical effects--spin, gravity, change in 
altitude, etc.--that would be associated with an intended use, thus 
ensuring that the warhead will not detonate simply because it is 
dropped or bumped. Launch control processes involve complex 
authentication measures designed to validate that an order is 
authentically emanating from the national command authority and not 
some rogue element. During the later period of the Cold War, weapons 
that were deployed in remote settings close to potential battlefields 
had protective devices known as Permissive Action Links (PALs) that 
rendered the weapon inert so that anyone stealing it or trying to use 
it without proper authorization would be stymied.
    The challenge is that measures designed to improve the always side 
of the equation can compromise the never side and vice-versa. Pre-
delegating the authority to use nuclear weapons and spreading the 
capability to do so to lower echelons may thwart an enemy's first-
strike planning, for example, but it would raise the risk that a weapon 
might be used in an unauthorized fashion or by someone confused in the 
fog of battle.
    The history of nuclear command and control is a history of civilian 
and military leaders debating the proper balance between always and 
never. It is a history of occasional discoveries that the risks on one 
side or the other side of the ledger were greater than originally 
understood. And it is a history of improvements--some, like Permissive 
Action Links, pressed by far-seeing congressional advocates--that may 
have helped forestall disaster. Even though we never had a truly 
catastrophic nuclear accident it is now publicly known that there were 
far too many close calls. Accordingly, our nuclear commanders are wise 
to be ever-vigilant and open to reexamining existing procedures with 
fresh eyes.
    It is thus of vital national importance that our leaders, our 
adversaries, our allies, and our citizens have confidence that the 
nuclear command and control system continues to give due consideration 
to this always/never dilemma and that we have not inadvertently 
accepted too much risk of failure on either side. There is no single 
optimal solution. The right balance depends on the geostrategic context 
and advances in technology, among other factors, which is why we should 
never act as if the problem has been ``solved.'' On the contrary, it is 
a problem that must be managed on an ongoing basis, adjusting as 
appropriate with other changes.
    This brings me to my second major point: we must be willing to 
invest the requisite funds to keep our technology up to date, but in 
the nuclear command and control business hardware is trumped by 
software, and software is trumped by wetware. Hardware refers to the 
technology: for instance, permissive action links that block the firing 
mechanism until a proper code is inserted. Software refers to the rules 
and procedures that govern how the hardware is used: for instance, the 
code-management system that determines who has the PAL codes and who is 
authorized to disseminate them. Wetware refers to the human element: 
the reliability of people involved in enforcing the rules and the 
civil-military relations that form the political context in which the 
software and hardware operate.
    In the past, reviews of the command and control system uncovered 
hardware flaws that needed to be corrected--for instance, gaps in 
communications that could be fixed with more modern technology. But 
more often reviews identified software and wetware problems--for 
instance, discovering that rules were interpreted in a way that 
produced unintended effects or discovering that bureaucracies had 
resorted to understandable ``work-arounds'' to get around cumbersome 
procedures and, in the process, introduced uncertainties that were not 
properly understood by higher authorities. This latter process has been 
called the ``paradox of control:'' the more the higher levels of 
command seek to assert restrictive control of subordinate elements, 
even at the risk of making those subordinate elements incapable of 
doing their jobs, the greater is the incentive of those subordinate 
elements to establish ``work-arounds'' that the higher authorities may 
not be aware of or, if they are, may not fully comprehend.
    At the end of the day, what would matter most is the human element. 
Would the President properly understand his/her role and his/her 
options and wisely weigh the second and third order implications of any 
decision he/she made? Would the President's advisors be in a position 
to provide timely counsel and would that counsel shape the President's 
decisions? Would the various echelons in the chain of command recognize 
a valid authenticated nuclear use order as also being legal, given the 
military's deeply ingrained training to refuse to implement any illegal 
order? Would lower level operators, the proverbial ``button pushers,'' 
carry out their fateful assignment in light of what is now known about 
the risks of nuclear war? Indeed, would subordinate elements of the 
command and control system do what they were supposed to--no more and 
no less--but with appropriate judgment?
    This last point cannot be overemphasized. For decades now, it has 
been technologically possible to build a nuclear command and control 
system that would eliminate the human element in the launch sequence 
altogether. Every generation of strategic leaders has understood that 
such a system would be foolhardy in the extreme. The human element 
introduces risks, to be sure, but it also introduces the opportunity to 
mitigate risks.
    This brings me to my third major point. The best reforms to the 
nuclear command and control system would be ones that maximized the 
opportunity for the human element to mitigate risks by maximizing time 
for deliberation and assessment. The best reforms are ones that would 
increase the time that the President and his advisors would have 
available so as to make considered decisions incorporating the widest 
set of inputs, including, if possible, inputs from leaders in Congress. 
Of course, efforts to extend decision times must not run afoul of the 
always-never dilemma. Reforms that maximized decision time but rendered 
the nuclear arsenal unusable in a crisis or conventional conflict would 
undermine deterrence and could actually make a nuclear war more, not 
less, likely. Moreover, measures aimed at providing radical solutions 
at the hardware level risk being undone by workarounds at the software 
or wetware levels.
    Nevertheless, investments--even costly investments--in systems that 
buy more decision time in crises are likely among the wisest 
expenditures we can make. For instance, enhanced missile defenses may 
be a prudent option in light of the growing threat from North Korea--
one that gives the President more time to assess before reacting. And 
upgrading communications systems to ensure that the President will have 
immediate access to all of his/her relevant advisors even under 
demanding scenarios would be a prudent investment in national security.
    Earlier generations of strategic leaders found ways to improve the 
nuclear command and control system without exacerbating the always/
never dilemma and, speaking as a citizen, I would ask the current 
generation of strategic leaders to do the same. However, I would 
likewise caution that not every proposed reform would actually reduce 
nuclear risks.
    This brings me to my fourth and final point: the time is ripe for a 
fresh look. The Trump Administration is going through a Nuclear Posture 
Review right now and, presumably, the adequacy of the nuclear command 
and control system is a priority focus of that review. Changes in 
communications technologies and rapidly evolving cyber threats alone 
would justify a fresh examination. It is likely that the command and 
control system is overdue for some major (and expensive) upgrades. At 
the same time, the geostrategic environment today is markedly 
different. Threats that were warned about five years ago have become 
urgent realities today.
    North Korea is only the most vivid example of this; a 
confrontational Russia and an assertive China have dramatically changed 
our threat picture. The nuclear command and control system is likely 
facing new strains because of these developments. And, finally, our 
divisive political environment has raised new doubts about the 
effectiveness of all our branches of government to wield the power they 
possess responsibly. In that context, a thoroughgoing review of nuclear 
command and control could help shore up public confidence in this vital 
area.
    Outside experts have suggested many possible improvements that are 
worth considering. One proposal calls for clarifying the chain of 
command to ensure that lower-echelons know that any order to use 
nuclear weapons has been adequately vetted. Another proposed approach 
recommends requiring certifications by additional cabinet officials of 
launch orders under certain circumstances. Still another proposal calls 
for specifying certain scenarios that would require prior consultation 
with Congress before a nuclear use order would be deemed legal. All of 
these proposals raise important constitutional questions about usurping 
the President's authorities; I am not a lawyer but I will point out 
that the precise distribution of powers among the branches related to 
military decision-making has never been entirely clear, and so reforms 
that raise the hoary war powers issue, particularly in the nuclear 
area, are especially fraught. But there may be reforms that pass 
constitutional muster while also enhancing the ability of the President 
to wield his/her commander-in-chief powers in the most effective and 
responsible way possible. Finding those should be an urgent priority 
for this and other responsible legislative and executive bodies.
    Because the actual operations of the current system are exceedingly 
complex, I would recommend great caution before legislating any 
particular fix. Nevertheless, Congress can play an important role in 
strengthening nuclear command and control. Congress can stipulate that 
the NPR explicitly address these questions. Moreover, Congress will 
have multiple opportunities to give input through the authorization and 
appropriation process for the ongoing modernization of the nuclear 
arsenal.
    Above all, I would recommend diligence and perseverance in 
oversight of the system, to reassure our friends and to warn our 
enemies that the nuclear arsenal will function as it is intended.


    The Chairman. Thank you very much.
    Mr. McKeon?

 STATEMENT OF HON. BRIAN MCKEON, FORMER ACTING UNDER SECRETARY 
    FOR POLICY, U.S. DEPARTMENT OF DEFENSE, WASHINGTON, DC.

    Mr. McKeon. Mr. Chairman, Senator Cardin, members of the 
committee, thank you for your invitation to be here today. It 
is nice to be back in this room after spending so many years of 
my professional life working on the staff of this committee.
    I will digress briefly, Mr. Chairman, to say I am very 
impressed by how quickly you mustered a quorum, having spent 
numerous hours waiting and waiting and waiting for that magic 
10th Senator to show up.
    The Chairman. Thank you. It is one of the rare times that 
occurred.
    Mr. McKeon. Your efficiency is impressive.
    The Chairman. Thank you.
    Mr. McKeon. I will briefly address three questions and try 
not to duplicate my colleagues.
    First, who has the authority to employ nuclear weapons? In 
one respect, the answer is simple. The President does. As 
Commander in Chief of the Armed Forces under the Constitution, 
he has the sole authority within the executive branch for such 
a decision.
    Some authority in military operations is delegated to the 
Secretary of Defense and then further delegated to appropriate 
combatant commanders. The authority to use nuclear weapons, 
however, remains with the President. That is as it should be in 
a republic, given the gravity of the decision and the 
consequences of any nuclear use.
    It bears emphasis that the President would not make this 
decision by himself. The system for a decision is designed to 
ensure that the President consults with the National Security 
Council and his other senior civilian and military advisers, 
and I would expect that to occur in every case where the use of 
nuclear weapons is contemplated.
    That is hardly the end of the inquiry. The authority to 
employ nuclear weapons is closely intertwined with an equally 
momentous question: Who has the authority to take the country 
to war? Article I of the Constitution gives Congress the power 
to declare war, grant letters of marque and reprisal, and 
several other powers with regard to supporting and regulating 
the Armed Forces. To the President, Article II provides that he 
is the Commander in Chief of the Army and the Navy.
    The constitutional text structure and our history provide 
Congress with primacy in this sphere. This power is not merely 
limited to formal declarations of war, which Congress has not 
done since World War II, but to authorizing most uses of 
military force.
    To be sure, the President possesses the constitutional 
authority to defend against sudden attack or to preempt an 
imminent attack. But Article II does not give him carte blanche 
to take the country to war.
    In the modern era, Presidents of both parties have often 
made broad assertions of authority to take military action 
without prior authorization by Congress in a manner that the 
Framers would not have recognized. Nonetheless, we need not 
resolve this general debate to answer the specific question 
presented in today's world.
    In addition to the global terrorism challenge, our major 
potential adversaries today number on one hand: Russia, China, 
North Korea, and Iran. Three of these countries possess nuclear 
weapons, and the fourth has pursued such a capability. 
Therefore, conflict with these states could conceivably involve 
nuclear weapons use. Direct armed conflict with these countries 
would undoubtedly be war in the constitutional sense and, if 
initiated by the United States, would require authorization by 
the Congress.
    A recent executive branch opinion on the war power by the 
Office of Legal Counsel in 2011 supports this conclusion. It 
indicated that analysis of whether congressional authorization 
for use of military force is required would turn on examination 
of ``the nature, scope, and duration'' of the conflict, and 
that specific congressional approval would be necessary in 
cases of ``prolonged and substantial military engagements 
typically involving exposure of U.S. military personnel to 
significant risk over a substantial period of time.'' It is 
hard to imagine an armed conflict scenario with any of these 
countries that would not meet that test.
    The rapid advances of North Korea's nuclear and missile 
program, and the escalating rhetoric between the President and 
the North Korean leader, are no doubt foremost in your minds. 
In the North Korean context, the view that Congress would need 
to authorize a war is buttressed by the recent letter to your 
House colleagues by the vice director of the Joint Staff, Rear 
Admiral Michael Dumont, where he stated that a ground invasion 
would be required in order to locate and destroy all components 
of North Korea's nuclear weapons program.
    Given the high number of casualties that would occur in any 
conflict with North Korea, let alone during a ground invasion, 
no reasonable argument can be made that that would not be war 
in the constitutional sense.
    The President and his senior administration officials have 
stated that time is running out to address the North Korean 
challenge. And in August, the National Security Advisor 
suggested the possibility of a preventive war. Such a war is 
distinct from a preemptive strike in the face of impending 
attack, and would also require congressional authorization.
    For context on these two questions, I would answer a third: 
What is the current policy on use of nuclear weapons?
    In my prepared statement, I highlight several elements of 
the results of the Nuclear Posture Review in 2010 and the 
presidential employment guidance issued in 2013, which remain 
in place while the Trump administration completes the Nuclear 
Posture Review ordered by the President in January. General 
Kehler has described some of these elements as well in his 
statement.
    Most importantly, the 2010 NPR set forth a goal of reducing 
the role of nuclear weapons in the U.S. National Security 
Strategy, and it is important to understand there is nothing in 
the current guidance that compels the use of nuclear weapons in 
a high-end conflict.
    Finally, I would note the Obama administration did not 
adopt a formal policy of no first-use of nuclear weapons, 
although, in the final month of the administration, Vice 
President Biden gave a speech in which he said that, given our 
nonnuclear capabilities and the nature of today's threats, it 
is hard to envision a plausible scenario in which the first use 
of nuclear weapons would be necessary. He went on to say that 
he and the President were confident that we can deter and 
defend ourselves and our allies against nonnuclear threats 
through other means.
    In closing, thank you for the opportunity to be here, and I 
look forward to your questions.
    [Mr. McKeon's prepared statement follows:]


               Prepared Statement of Hon. Brian P. McKeon

    Mr. Chairman, Senator Cardin, members of the committee, thank you 
for inviting me to address important questions regarding the authority 
to employ nuclear weapons. I bring to this issue experience both as a 
lawyer--as chief counsel for the Democratic members of this committee 
for 12 years--and as a policymaker in the Executive Branch, with 
service in three different national security positions in the White 
House and the Defense Department during the Obama administration, where 
I was regularly engaged in nuclear weapons policy matters. My position 
in the Defense Department ended on January 20 of this year; I speak 
only for myself and not the Department.
    I commend you for examining this issue, as well as the broader 
question of war powers, as you did last month with the Secretaries of 
State and Defense, and in June with outside witnesses.
    I will briefly address three questions.
    First, who has the authority to employ nuclear weapons? In one 
respect, the answer is simple: the President does. As Commander in 
Chief of the armed forces under the Constitution, he is the sole 
authority within the Executive Branch for such a decision. Some 
authority in military operations is delegated to the Secretary of 
Defense, and then further delegated to the appropriate combatant 
commanders. The authority to use nuclear weapons, however, remains with 
the President. That is as it should be in a republic, given the gravity 
of the decision and the consequences of any nuclear use.
    It bears emphasis that the President would not make this decision 
by himself. The system for decision is designed to ensure that the 
President consults with the National Security Council and his other 
senior civilian and military advisers, and I would expect that to occur 
in every case where the use of nuclear weapons is contemplated. If the 
order is given, the chain of command runs from the President to the 
Secretary of Defense to the Commander of U.S. Strategic Command in the 
case of strategic weapons, and, in the case of non-strategic weapons in 
Europe, to the Commander of U.S. European Command; the Chairman of the 
Joint Chiefs is not in the chain of command. If time and circumstances 
permit, I would also expect any President to consult with leaders of 
key allies, particularly in the region of potential conflict.
    That is hardly the end of the inquiry. The authority to employ 
nuclear weapons is intertwined with an equally momentous question: who 
has the authority to take the country to war?
    The members of this committee well understand the basic 
constitutional framework, given your jurisdiction over the war power 
under the Senate rules. Article I of the Constitution gives Congress 
the power to declare war, grant letters of marque and reprisal, and 
several other powers with regard to supporting and regulating the armed 
forces. To the President, Article II provides that he is the Commander 
in Chief of the Army and Navy.
    In my view, and the view of many respected scholars, the 
constitutional text, structure and our history provide Congress with 
primacy in this sphere. This power is not merely limited to formal 
declarations of war--which Congress has not done since World War II--
but to authorizing most uses of military force. To be sure, the 
President possesses the constitutional authority to defend the country 
against sudden attack, or to pre-empt an imminent attack. But Article 
II does not give him carte blanche to take the country to war.
    In the modern era, presidents of both parties have often made broad 
assertions of authority to take military action without prior 
authorization by Congress, and have given a narrower reading to the 
Declaration of War clause, in a manner the Framers would not have 
recognized.
    Nonetheless, we need not resolve that general debate to answer the 
specific question presented in today's world. In addition to the global 
terrorism challenge, our major potential adversaries today number on 
one hand: Russia, China, North Korea and Iran. Three of these countries 
possess nuclear weapons; the fourth has pursued such a capability. 
Therefore, conflict with these states could conceivably involve nuclear 
weapons use. Direct armed conflict with these countries would 
undoubtedly be ``war'' in the constitutional sense, and if initiated by 
the United States, would require authorization by the Congress. Quite 
apart from the legal requirement, as a matter of politics and policy, 
any President should want the Congress, as the body directly 
representative of the American people, to provide its support--to join 
in the decision and the responsibility for such a national commitment 
of blood and treasure.
    A recent Executive Branch opinion on the war power--by the Office 
of Legal Counsel in 2011 regarding the military operation in Libya--
supports this conclusion. It indicated that analysis of whether 
congressional authorization of a use of military force is required 
would turn on examination of the ``nature, scope, and duration'' of the 
conflict, and that specific congressional approval would be necessary 
in cases of ``prolonged and substantial military engagements, typically 
involving exposure of U.S. military personnel to significant risk over 
a substantial period [of time].'' It is hard to imagine an armed 
conflict scenario with any of these countries that would not meet this 
test.
    The rapid advances of North Korea's nuclear and missile program, 
and the escalating rhetoric between the President and the North Korean 
leader, are no doubt foremost in your minds. In the North Korean 
context, the view that Congress would need to authorize a war is 
buttressed by the recent letter to your House colleagues from the Vice 
Director of Joint Staff, Rear Admiral Dumont, where he stated that a 
ground invasion would be required in order to locate and destroy all 
components of North Korea's nuclear weapons program. Given the high 
number of casualties that would occur in any conflict with North 
Korea--let alone during a ground invasion--no reasonable argument can 
be made that this would not be ``war'' in the constitutional sense.
    The President and senior administration officials have stated that 
time is running out to address the North Korean challenge, and in 
August, the National Security Adviser suggested the possibility of a 
preventive war. Such a war--as distinct from a pre-emptive strike in 
the face of an impending attack against the United States--would also 
require congressional authorization.
    For context on these two questions, I would answer a third: what is 
the current policy on use of nuclear weapons? The Trump administration 
is working on a Nuclear Posture Review ordered by the President last 
January. For now, my understanding is that the policy set by the Obama 
administration continues to obtain.
    That policy is set forth in the report of the Nuclear Posture 
Review (NPR) in 2010 and presidential employment guidance issued in 
2013. While the specific guidance to the commanders is classified, the 
NPR report is unclassified, and the Defense Department submitted an 
unclassified summary of the employment guidance to the Congress in 
2013. A few elements of these documents bear highlighting.
    The 2010 NPR set forth a goal of reducing the role of nuclear 
weapons in the U.S. national security strategy, and stated that, among 
other things:

   The United States would only consider use of nuclear weapons in 
        extreme circumstances to defend the vital interests of the 
        United States or its allies and partners.
   The United States will continue to strengthen conventional 
        capabilities and reduce the role of nuclear weapons in 
        deterring non-nuclear attacks, with the objective of making 
        deterrence of nuclear attack on the United States or our allies 
        and partners the sole purpose of U.S. nuclear weapons.
   The United States updated the longstanding ``negative security 
        assurance'' by stating that it will not use or threaten to use 
        nuclear weapons against non-nuclear weapons states that are 
        party to the Nuclear Non-Proliferation Treaty and in compliance 
        with their nuclear non-proliferation obligations.

    Additionally, the employment guidance directed the Department of 
Defense to:

   Conduct deliberate planning for non-nuclear strike options to 
        assess what objectives and effects could be achieved through 
        such options.
   Examine further options to reduce the role that Launch Under Attack 
        plays in U.S. planning, while retaining the ability to do so if 
        directed.

    Finally, the Obama administration did not adopt a formal policy of 
``no first use'' of nuclear weapons, although in the final month of the 
administration, Vice President Biden gave a speech in which he said 
that given our ``non-nuclear capabilities and the nature of today's 
threats, it's hard to envision a plausible scenario in which the first 
use of nuclear weapons would be necessary.'' He went on to say that he 
and President Obama were ``confident we can deter--and defend ourselves 
and our Allies against--non-nuclear threats through other means.''
    In closing, I am grateful for this opportunity to appear before you 
today. I look forward to your questions.


    The Chairman. I thank all three of you for that outstanding 
testimony. As usual, I am going to reserve my time for 
interjections and turn to our ranking member.
    Senator Cardin. Let me also thank all three of you not just 
for your appearance here today but for your service to our 
country on these very difficult issues.
    I am going to preface my question with my strong belief 
that there is not a military solution to the crisis in North 
Korea, that any military option carries unbelievable risk 
factors, whether it be conventional or the use of nuclear 
weapons.
    And I hope that the President's trip to Asia has produced 
the openings to urge a diplomatic surge that will recognize 
that both China and the United States should be looking for 
off-ramps to this crisis, and they have a lot in common, and 
China can change the equation in North Korea.
    So I hope that is where we are heading, because the use of 
any military option has extreme risks.
    So this is not a hypothetical discussion. What concerns me 
is that the President may be getting military options, and the 
use of conventional weapons could lead to an extreme number of 
casualties in Japan or in South Korea. So there may be a 
discussion about whether a nuclear first-strike could prevent 
that from occurring or have less of a chance of that occurring. 
So this is not a hypothetical discussion.
    So, General, I was particularly impressed by your statement 
which says, in addition, the legal principles of military 
necessity, distinction, and proportionality also apply to 
nuclear plans, operations, and decisions.
    So how is the President legally restrained, if at all, on 
the use of a nuclear first-strike as a result of the orders 
that are there under command that it must be proportional or 
that there is a distinction that requires this military 
necessity? Is there any real restraint on the President on 
choosing a nuclear first-strike in a circumstance in North 
Korea?
    General Kehler. Senator, I think there are. I think there 
are always legal constraints when any military option is being 
considered.
    There has been a longstanding debate about nuclear weapons 
and morality and legality, and where nuclear weapons fit in all 
of that, given that things changed in August 1945. And there 
has been, I think, a longstanding policy view from the United 
States that nuclear weapons are not inherently illegal. They 
can be used illegally. The question is under what circumstances 
and situation.
    And what I can tell you is that when I was involved as the 
commander of STRATCOM in preplanning options that we are 
ordered to do--every President has directed the military to 
preplan some options, more as time has passed for additional 
flexibility, et cetera, et cetera--we involved our legal 
advisers in every step of that process.
    Senator Cardin. Let me interrupt you there.
    So there is discussion taking place at the National 
Security Council level with legal advisers, with military 
advisers. And the advice is that, under the guidelines on 
proportionality and necessity, that this is not appropriate for 
use of a nuclear first-strike.
    Is there action that can be taken by those advisers if the 
President overrules that decision and says, no, we are going 
with a nuclear attack?
    General Kehler. Other than to state their view about the 
legality of the move, the President retains constitutional 
authority to order some military action. The military, you 
would be in a very interesting constitutional situation, I 
believe, because, again, the military is obligated to follow 
legal orders but is not obligated to follow illegal orders.
    The question about the legality----
    Senator Cardin. Who would make that judgment on behalf of 
the operational command under DOD?
    General Kehler. Well, that is one of the things that would 
be on the plate of the commander of Strategic Command. I always 
believed that that was on my plate, that ultimately it is very 
difficult----
    Senator Cardin. So let me just drill down on this. If you 
believe that this did not meet the legal test of 
proportionality, even if ordered by the President of the United 
States to use a nuclear first-strike, you believe that, because 
of legalities, you retain that decision to disobey the 
Commander in Chief?
    General Kehler. Yes. If there is an illegal order presented 
to the military, the military is obligated to refuse to follow 
it.
    Now the question is just the one that you described. It is 
the process leading to that determination and how you arrive at 
that. I would concede to you that that would be a very 
difficult process and a very difficult conversation.
    But in the scenario that you are painting here, I would 
also argue that there is time for that kind of a deliberate 
conversation on these matters.
    Senator Cardin. And just to complete this cycle, part of 
this is that the protocols that have been established under 
executive orders on the use of nuclear that require the 
proportionality that you are talking about. Another is the 
inherent responsibility of military command to follow only 
orders that are lawful. Am I reading that correctly?
    General Kehler. Yes, that is correct.
    Senator Cardin. So there are two different sets, because 
you may very well be getting opinions from the White House that 
this is legal, but you would have to make your own independent 
judgment based upon history and based upon following only legal 
orders.
    General Kehler. Yes.
    Senator Cardin. Thank you.
    The Chairman. I am going to use my first interjection here.
    So in the event someone in your former position received an 
order that you knew had not been vetted through the National 
Security Council, for instance, that discussions had not taken 
place, that you just got a call out of the blue, things were 
tense in a particular area and you received that order, would 
you consider that to be legal or not legal?
    General Kehler. I never felt, Senator, that I had to vet 
orders through the National Security Council. I felt, as a 
military senior leader, that I had three obligations. One 
obligation was to provide my military advice. One obligation 
was to raise any concerns that I had; if they happened to be 
legal concerns, to raise those concerns. And then the third 
obligation that I had was related to the legality of the order, 
either follow a legal order or refuse to follow an illegal 
order.
    I had legal advisers myself. I fully expected that we would 
involve the Secretary's legal advisers, the chairman's legal 
advisers. Where DOD took that from there was sort of their 
issue to take.
    But this, I would certainly have been in consultation with 
the Secretary of Defense and the chairman.
    The Chairman. Senator Johnson?
    Senator Johnson. General, I want to continue down this line 
of questioning.
    From my standpoint, there are really two basic scenarios, 
the scenario when we are under imminent attack, or there is an 
attack that is imminent, and then one where it is more 
preemptive, where there is time. You said there is always going 
to be time. There may not always be time, correct?
    General Kehler. I did not mean to suggest that there would 
always be time. I agree with that.
    Senator Johnson. So when the President would determine that 
we are under the threat of almost an imminent attack, he has 
almost absolute authority, correct?
    General Kehler. Yes. Context matters here and--yes.
    Senator Johnson. So is there any process to assess 
``imminent'' at that moment?
    General Kehler. So I am a former commander, not a lawyer, 
so----
    Senator Johnson. I am an accountant, so----
    General Kehler [continuing]. So let me just say this, to 
try to shed some light on this. Context matters here. If, in 
fact, in a range of scenarios where nuclear weapon use is 
possible, or there is a potential for nuclear weapons use, U.S. 
policy has helped us clarify over the years under what 
circumstances we might expect to use nuclear weapons.
    So, for example, the 2010 Nuclear Posture Review said, 
``extreme circumstances when vital national interests are at 
stake.'' As a commander, I had that in my mind as a context for 
nuclear weapons.
    And if we had tactical warning that an attack was underway, 
then we were into a playbook, basically, that had been vetted 
for its legal viability, et cetera, et cetera, et cetera.
    Senator Johnson. So we somewhat defined ``imminent.'' 
Obviously, if you see radar saying this is a launch, that is 
obviously imminent.
    General Kehler. Right.
    Senator Johnson. What if it is right before?
    General Kehler. Well, there is also the conditions where 
you might have strategic warning, where we have solid warning 
that something will happen.
    Senator Johnson. That is already game-planned out, in terms 
of what strategic warning is that would say it is imminent?
    General Kehler. Well, it is not precisely defined, but I 
think it would be certainly one of those matters under 
consideration.
    Tactical warning, by the way, carries with it some amount 
of time urgency either for the survival of the decision-maker 
or for a decision about what to do in terms of responding. 
Strategic warning is not as time urgent. And so more time gets 
introduced into these scenarios as you go from the most extreme 
stressing scenario back to the left.
    Senator Johnson. So that is the next scenario, where it is 
more strategic, and you have time.
    Let's say you get a presidential order to launch, but you 
are in the position and you know that you have not followed the 
process. It has not been properly vetted. In that case, in your 
position, you believe that is an illegal order?
    General Kehler. No, I believe you have to determine whether 
that is a legal order.
    Senator Johnson. But you believe that is your 
responsibility. You have the authority to say----
    General Kehler. Yes.
    Senator Johnson.--this is not legal because we have not 
followed the steps. We have not gone through the process.
    General Kehler. I would have said, ``I have a question 
about this,'' and I would have said, ``I am not ready to 
proceed.''
    Senator Johnson. And then what happens?
    General Kehler. Well--[Laughter.]
    General Kehler. As I say, I do not know exactly. 
Fortunately, we have never--these are all hypothetical 
scenarios. I mean, they are real in terms of----
    Senator Johnson. We are holding a hearing on this, so.
    General Kehler. Exactly. This is the human factor in our 
system. The human factor then kicks in. It is what Dr. Feaver 
said. There is a human element to this.
    And at that point, I think, as with any military order--it 
does not matter, really. The consequences are higher if it is 
an order on nuclear weapons, but it is the same principle on 
any order.
    Senator Johnson. So the point is there is a lot of human 
intervention between a presidential order when there is time, 
it is not imminent, to really ask the questions, to lay out the 
fact that we have not gone through this process, this is not 
well thought out, it is not proportional. So we can have a 
little comfort that even though the President has the 
authority, there are limits to that even within this context, 
when there is time.
    General Kehler. I believe that is true. And even if time is 
compressed, there are circumstances that I could envision where 
I would have said the same thing, which is, ``Wait. Stop. We 
need to resolve these issues,'' or we need to address this 
question, or whatever.
    And the process provides for that in that it is ultimately 
an interaction among human beings. The decision authority 
resides with the President, however.
    Senator Johnson. Thank you for those answers. Thanks for 
your service.
    General Kehler. Yes, sir.
    The Chairman. Let me just, before we move to the next, the 
person who is in your position, it is a Senate-confirmed 
position, is that correct?
    General Kehler. Yes, sir. That is right.
    The Chairman. And typically, the person that is put in your 
position is recommended by the military? How does it typically 
work?
    General Kehler. Well, I can tell you how it worked for me. 
The Secretary of Defense, in my case, the Secretary of Defense 
interviewed a number of candidates, decided on a candidate to 
recommend to the President. There was a process that was gone 
through there at some level. And I became the President's 
nominee to the Senate. And then you all----
    The Chairman. Most of the people who ended up being in 
these positions, are they people that have moved up through the 
defense mechanisms solely? This is not a political position, 
typically? It is a position that is based on merit?
    General Kehler. It is not a political position, and it is a 
position that is based on, I believe, experience, and I would 
like to think merit as well, but certainly experience. 
Certainly, there are a lot of factors that go into selection 
for senior command.
    That is a great question I think for you to pose to other 
witnesses who have been in the position to select senior 
commanders. I was the beneficiary of that selection.
    Mr. McKeon. Mr. Chairman, I can tell you, at least from my 
vantage point in the Pentagon, but also as chief of staff to 
the National Security Council, the process General Kehler 
describes is the process. The Secretary and the chairman huddle 
and look at various candidates from the services for the four-
star combatant commands.
    Under President Obama, he personally interviewed most of 
the candidates who were recommended for selection.
    General Kehler. And typically, Mr. Chairman, in recent 
years, the commanders of some of the combatant commanders have 
been typically four-stars on their second or third assignment. 
So I was not a first-time four-star when I was nominated to 
take command of Strategic Command. That was my second four-star 
assignment.
    The Chairman. Thank you.
    Senator Udall?
    Senator Udall. Thank you, Mr. Chairman.
    I thank all the witnesses for being here today.
    The first use of U.S. nuclear weapons would appear to be a 
clear declaration of war. Certainly, the recipient of a U.S. 
nuclear attack would perceive it that way. Under the U.S. 
Constitution, only Congress can declare war.
    Should Congress require the President to seek authorization 
for the first use of nuclear weapons? Why or why not?
    Mr. McKeon, why don't we start with you?
    Mr. McKeon. Senator, as I laid out in my opening statement, 
it is my view, certainly, if the United States were to initiate 
a war with another nuclear state, and we conceive that the use 
of nuclear weapons might be possible, that is war in the 
constitutional sense that Congress should authorize.
    If we are under attack from a nuclear state using nuclear 
weapons, that is a different question, and the President would 
have the authority under Article II to respond, whether with 
conventional or nuclear weapons.
    The hardest question is the in-between question, and what 
Senator Johnson was getting at. Where do you define imminence 
on the continuum?
    Senator Udall. How do you define it?
    Mr. McKeon. Well, it would be very fact-specific, to give 
you a bit of a lawyer's dodge. But kind of the most obvious 
case is we see a missile on a launchpad or several missiles on 
several launchpads, and we have good intelligence that they 
intend to not test them but launch them at the United States. 
That seems like a pretty clear case of imminence.
    Then you would move down a continuum away from that to 
where it becomes less imminent and looks more like a preventive 
attack.
    Senator Udall. Dr. Feaver and General?
    Dr. Feaver. What I would say is distinguish between 
scenarios where the military wake up the President versus 
scenarios where the President is waking up the military.
    Where the military wakes up the President and warns him 
that there is about to be an attack or that we are experiencing 
attack, in those settings, the President has a very limited 
time window to make a decision. He would make a decision. He 
alone would have the authority to make the decision. And I 
think we all believe that the system would carry out the order 
that he gave. The electorate on Election Day chose him to make 
that decision.
    But in the other context where the President is waking up 
the military, maybe in an extreme funk, saying, ``I am angry, 
and I want something done,'' in that setting, he requires the 
cooperation of a lot of people who would be asking exactly the 
questions that General Kehler outlined. ``What is the context? 
Why is this?'' And the President alone could not affect the 
strike. He would require lots of people cooperating with him to 
make the strike happen, and they would be asking the questions 
that would slow down that process.
    So the context matters greatly for this.
    Our experience is that the President has asked for 
authorization when he is initiating a conflict. That is what 
President Bush did in 2002. And I believe that if there was 
that kind of context, the President would expect to go to 
Congress for authorization for something in that style.
    Senator Udall. Now per the U.S. Air Force instruction, the 
two-person concept is designed to prevent an accidental or 
malicious launch of nuclear weapons by a single individual. In 
the nuclear chain of command, the only exception to this rule 
is the President.
    Would it not make sense to require at least one other 
person sign off on a decision to launch a first strike; for 
example, a constitutional officer such as the Vice President?
    Mr. McKeon. Senator, there is an adage in the law that you 
may be familiar with that hard cases make bad law, and this is 
a hard case. And I think taking away the President's authority 
as Commander in Chief or diluting it in some respect by 
requiring him to go to another constitutional officer in a 
formal sense, I am not sure that is a wise course.
    I do think, as I said, it would be a rare case where the 
President would not consult with all of his senior advisers, to 
include the Vice President. It is just automatic in the system, 
whether there is considerable time or not, that that would 
occur. It would be very unusual if it did not.
    Senator Udall. Do you all disagree or agree with that?
    Dr. Feaver. I do not disagree. I think any law that you 
pass that raises constitutional questions will be very 
difficult, one, to get passed, and, two, very difficult to 
implement.
    You want to make sure that you don't propose a legislative 
fix that undermines the nuclear deterrent and, thus, 
compromises the effectiveness of why we have nuclear weapons.
    General Kehler. And I agree with both of my colleagues. 
There are two different questions really at work here. One is a 
question of constitutional authority and what the Commander in 
Chief is allowed to do as the Commander in Chief. And the other 
is a principle, and a set of processes and procedures, that 
ensure that the authorized use remains at the most senior 
civilian authority, and that unauthorized or accidental use 
cannot occur.
    Senator Udall. Thank you, Mr. Chairman.
    The Chairman. Thank you.
    Senator Young?
    Senator Young. Thank you, Mr. Chairman.
    I thank all our panelists for being here today.
    General Kehler, I just want to follow up on what has been 
much discussed here. In your written statement, you indicate, 
``The legal principles of military necessity, distinction, and 
proportionality also apply to nuclear plans, operations, and 
decisions. Legal advisers are deeply involved with commanders 
at all steps of the deliberate and crisis action processes to 
offer perspective on how force is to be used, as well as the 
decision to use force.''
    So a few observations, and I will give you, General, and 
you, Mr. McKeon, since you are the attorney on the panel, an 
opportunity to respond to any you like.
    Number one, it is unclear to me what the legal standard is 
for a person to determine whether or not these legal principles 
have been satisfied. So is the standard that no reasonable 
person could conclude that the order was necessary or 
proportional? Or is there some other legal standard? Or is that 
left strategically vague?
    The second observation is it is unclear what the Commander 
in Chief's recourse would be if, in fact, a military person 
decided not to move forward with these orders based on 
principled reasons that are grounded in the legal principles of 
military necessity and proportionality. That is, what if a 
military person regards the order as illegal, decides to do 
what we are taught in the military--make known their decision 
and refuses to obey that order? What recourse does the 
Commander in Chief then have in the wake of such a decision?
    And then the last observation is that I am unaware of, and 
perhaps most others are as well, but I am unaware of any sort 
of what I will call discernment training; that is, the training 
of our military personnel to be able to apply these legal 
principles to different circumstances, to different military 
contingencies.
    Considering legal questions in advance, to me, seems 
distinct from making firm legal determinations in advance. And 
going through a series of wargames or contingencies could help 
sharpen one's ability to apply the facts of different 
complicated, global circumstances to these legal principles.
    So with that, if you would like to comment on any of those 
observations, why don't I start with Mr. McKeon as the 
counselor present?
    Mr. McKeon. Senator Young, on the second question about the 
legal recourse, if you had a commander saying that he did not 
believe it was a legal order, the chain of command runs from 
the President to the Secretary to the combatant commander. The 
chairman of the Joint Chiefs is not in that chain of command.
    I suppose probably the first recourse would be to call the 
Secretary of Defense to tell him to order the commander to do 
it. Then if the commander still resisted, you either get a new 
Secretary of Defense or get a new commander. But you would have 
a real constitutional crisis on your hands, if that occurred.
    I am unaware that there is a strict legal standard like 
``no reasonable person'' on the judgment of proportionality and 
distinction, because it is not an instance that would get 
litigated very often, although General Kehler may be more 
familiar with the UCMJ cases than I am, because I am not a DOD 
lawyer. I was a lawyer in this committee.
    It would be a judgment based on senior military officers 
like the chairman who would be in the conversation, and the 
combatant commander, and their legal advisers, all of whom 
would have had between 30 and 40 years of military service and 
experience, and understand how to make these assessments.
    I think that is the best answer I can give you on it.
    Senator Young. Thank you.
    General, do you have anything to add? And also, perhaps you 
could answer the question--of course, these would be highly 
classified training regimens, and if you prefer, you could 
brief me in a classified setting--about our ability to train 
people to discern when proportional, necessary orders have been 
ordered.
    General Kehler. We certainly do train everyone in the 
military on what we collectively call the law of armed 
conflict, and that training occurs probably somewhere every 
day. It includes the nuclear forces. It includes everyone 
wearing a uniform. So this is not a foreign concept to people 
who wear our uniforms.
    In terms of what is legal precedent here, I, frankly, 
cannot answer that off the top of my head. I don't know. And 
what the legal standard is for determining distinction, 
proportionality, and military necessity, I cannot describe that 
off the top of my head either.
    What I can say is that, for nuclear decision-making at the 
highest level, it is a consultative process, and there are 
senior people involved in that process.
    Where my expectation always was, if there was a question 
about the legality--first of all, if this was something we had 
planned, then those issues have been addressed and resolved 
prior to the time that the plan becomes part of a playbook that 
says, ``Hey, you can pick this one,'' because we have already 
been through all of that for this or this or this. And there 
are many options that have been preplanned.
    If we were doing crisis action planning, we would do the 
same thing. We would follow through. That happens faster, but 
we would follow through with the same thing. The same legal 
standards would be applied.
    I always assumed that, if issues got raised at the most 
senior level, that we would be able to resolve those issues. 
And then as was described, the chain of command is operative 
here.
    The Chairman. Thank you. Thank you both very much.
    Senator Murphy?
    Senator Murphy. Thank you, Mr. Chairman, for convening this 
hearing. This is fascinating.
    Thank you all for being here today.
    Let me just pull back the cover for a minute from this 
hearing. We are concerned that the President of the United 
States is so unstable, is so volatile, has a decision-making 
process that is so quixotic, that he might order a nuclear 
weapons strike that is wildly out of step with U.S. national 
security interests. Let's just recognize the exceptional nature 
of this moment in the discussion that we are having today.
    I want to maybe pin together some of the questions that 
have been asked here in a little bit more pointed form. We have 
been talking about the ways and the reasons that an individual 
in the chain of command may decide to refrain from carrying out 
a particular order because of its illegality. I think Senator 
Young raised some very good concerns around the difficulty of 
evaluating whether a particular order is necessary or 
proportional.
    But let me just ask a simple question. Is one of the 
questions that is asked in determining whether an order is 
legal whether or not there is a declaration of war that allows 
for that military action to take place? Would there have to be 
an independent legal determination made by those in the chain 
of command that there was an operational declaration of war, in 
the absence of an attack or an imminent threat?
    General Kehler. Senator, you were looking at me. Are you 
asking me?
    Senator Murphy. Sure.
    General Kehler. Great. So the authority to use force and 
whether or not there is a declaration of war comes back to 
context here.
    At least from my perspective, I always viewed the use of 
nuclear weapons as fitting in with our declaratory policy, 
which is that we would be in extreme circumstances. And it was 
described pretty well. It was described in the last Nuclear 
Posture Review. But subsequent to that, it was described in 
other various ways by the United States, various 
administrations over time, that we would be in some kind of 
extraordinary or extreme circumstances, and we would be dealing 
with national interests that are at stake here.
    I can't go back and recite authority that has been granted 
in the past to respond with nuclear weapons, but my belief, and 
I could be wrong here, was that this issue of strategic and 
tactical warning had been addressed in prior epochs, and that 
we were not on shaky legal ground if we were talking about 
response to strategic or tactical warning.
    Senator Murphy. But the question as to whether there is 
legal authority is part of the decision-making process 
regarding the legality of a particular order that the chain of 
command is being asked to carry out?
    General Kehler. Sure.
    Senator Murphy. Dr. Feaver, do you agree?
    Dr. Feaver. Right. One of the things that the officers will 
ask themselves is, under what authority are we conducting this 
operation? That would require referring back to, what are the 
authorities?
    They could reach the judgment that it is the inherent 
authorities in Article II of the Commander in Chief clause. So 
you would require a legal judgment, and there are legal staffs 
throughout the chain of command.
    What would be the case, though, is it would not be the 
President alone persuading a single military officer alone on 
the other side of the telephone. There would be a large group 
of advisers and legal advisers weighing in on this. And that is 
an important part of the context that is sometimes lost in the 
media coverage. There would be a lot of people under the 
scenario that you described, not imminent, not waking the 
President up, but we have time to decide this. Many, many 
people would be weighing in, including many lawyers.
    Senator Murphy. I think Mr. McKeon answered this to an 
extent, but I will ask you, Dr. Feaver. Would the possession of 
a nuclear weapon capable of reaching the United States 
constitute an imminent attack, in your opinion? The simple 
possession of a weapon, a nuclear weapon capable of hitting the 
United States, does that constitute an imminent attack?
    Dr. Feaver. I am not a lawyer, and so I could not judge 
whether that would meet the legal test. I think it would, in 
most people's minds, constitute a grave threat to U.S. national 
security. Particularly if it was a North Korean nuclear warhead 
atop a North Korean missile that was capable of reaching the 
United States, I think most Americans would view that as a 
grave threat to our national security. Whether that would meet 
the legal test of imminence would require a legal judgment. I 
will defer to counsel on my right.
    Senator Murphy. Mr. McKeon?
    Mr. McKeon. Senator, the mere possession of a nuclear 
weapon I do not think would meet that test. I think there would 
be time required for congressional authorization, if the 
decision were taken that the mere possession of a nuclear 
weapon by a state such as North Korea was unacceptable to U.S. 
national security interests.
    They have a nuclear weapon today. We know that much.
    Senator Murphy. Thank you, Mr. Chairman.
    The Chairman. Senator Rubio?
    Senator Rubio. Thank you, Mr. Chairman.
    Thank you all for being here. I want to say at the outset 
this is an important conversation, but one we should tread 
lightly on. Our allies who rely on U.S. defense assurances are 
watching, and if we create doubt in their minds about the 
capability or the willingness of the United States to live up 
to those commitments in any way, and I am not claiming that is 
what anyone is doing, I think it could have repercussions that 
are significant, including encouraging some of them to perhaps 
pursue their own deterrent capability. If they come to doubt 
our political ability and/or willingness to live up to our 
commitments, we are actually making the world more dangerous, 
not less dangerous.
    I also think our adversaries are watching, and I will get 
to that part in a moment. But I think if anyone out there 
thinks they can somehow get away with something because the 
politics of the United States would prevent the Commander in 
Chief from acting expeditiously, that could also encourage 
miscalculation, particularly on behalf of people that are 
isolated from the world, don't get a lot of information, and 
have never had anyone tell them they are wrong or no. And I 
have one person, in particular, in North Korea that concerns me 
in that regard.
    I don't think there is any debate about imminent attack or 
under attack. I think we would all agree that the President of 
the United States has to have the capability to quickly respond 
if we are under attack and/or under potential imminent attack. 
Obviously, there could be some debate about it.
    I also think it is important for us, in the context of this 
new posture review, to know that the traditional Cold War 
threat of a massive exchange between the U.S. and the then-
Soviet Union is probably not likely in the short term. I think 
the likelier threats remain the use of Russian tactical 
battlefield weapons to escalate in order to de-escalate a 
battlefield event, a terrorist organization that comes into 
possession of a nuclear device or some other weapon of mass 
destruction, and then a rogue regime that does not have any of 
these safeguards that we have talked about. It is basically one 
guy who has a bad night and gets up and decides he wants to do 
something about it. So these are things that it is important to 
understand.
    I think this whole debate is about first use, and I want to 
touch on a topic that was first innovated during the Cold War 
in the context of an overwhelming conventional advantage the 
Warsaw Pact had, but we also saw it operative in the first Gulf 
War, and that is the notion of calculated ambiguity.
    I believe it served us in both instances, particularly in 
1991, when Saddam Hussein was perhaps tempted to use biological 
and/or chemical weapons. One of the reasons why perhaps he did 
not pursue it was that there was calculated ambiguity about 
whether or not that would trigger a U.S. nuclear response. And 
I think we could all foresee what that conflict would have 
looked like had he deployed biological and/or chemical agents 
that he had in his possession and could have potentially used.
    Is calculated ambiguity still an important concept in the 
21st century, the notion that adversaries should have doubt in 
their mind about whether or not the United States retains the 
right to strike first should they either use a weapon of mass 
destruction and/or move in a dangerous direction? Is calculated 
ambiguity still useful and still operative in this set of 
threats that we now face?
    General Kehler. Senator, I believe that it enhances our 
deterrence to have some doubt in the mind of an adversary about 
under what conditions we would use a nuclear weapon.
    Dr. Feaver. Senator, I agree. And I would go further and 
say that President Obama, who was no fan of nuclear weapons and 
who moved us back on the nuclear threat index in his 2010 
Nuclear Posture Review, nevertheless left in place calculated 
ambiguity in precisely these scenarios. And his rewriting of it 
was taken to mean we would not threaten countries who were 
attacking us with nonnuclear weapons. But a close reading of 
what he decided left in place enough ambiguity to achieve 
precisely the deterrent effect you described. And that was from 
a President who was openly hostile to nuclear weapons.
    Mr. McKeon. Yes, is the answer to your question.
    Senator Rubio. The last point in the 40 seconds I have left 
that I just wanted to touch on is this whole 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 into a 
village full of civilians and kill everybody, that clearly 
violates the law that governs armed conflict.
    I think there is also some danger in that regard here, and 
we have to be careful in how we talk about that as well. We 
cannot have a bunch of bunker lawyers that basically--or 
activists up and down the chain who decide that they are going 
to disobey any order that they disagree with. I mean, we can 
foresee where something like that can 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. 
So it is good that people are aware of this issue, but I think 
we need to be very careful when we talk about that component of 
it.
    Thank you, Mr. Chairman.
    The Chairman. I agree. I just want to say, I don't think 
you were here for my opening comments, I cannot agree more that 
both for our adversaries and those who are our friends, that we 
need to be careful in how we discuss this. We do not want any 
of them to fear that somehow the ability to make decisions that 
benefit our country and them, or disbenefit them if they are 
acting against us, is being taken away. I couldn't agree more.
    Senator Markey?
    Senator Markey. Thank you, Mr. Chairman, and thank you for 
having this very important hearing. I requested this several 
weeks ago, and I just think it is so important that you have 
such an important discussion, because few questions are as 
important to U.S. national security as the question of 
presidential authority to use nuclear weapons not only to deter 
or defend against a nuclear attack but also to start a nuclear 
war.
    Nuclear weapons are for deterrence, not warfighting. 
Launching nuclear weapons first would be an unprecedented act 
of aggression and war. Whether limited or massive, any first-
use nuclear strike would devolve into retaliatory strikes and 
war, 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 the 
rational mind.
    I fear that in the age of Trump, the cooler heads and 
strategic doctrine that we once relied upon as our last best 
hope against the unthinkable seem less reassuring than ever.
    In other areas of government, our Constitution system of 
checks and balances ensures that the President does not have 
sole power to make extreme decisions without some level of 
national consensus. But on the President's sole authority to 
start a nuclear war, even in the absence of a nuclear attack 
against our country, no one can tell the President no, not 
Secretaries Mattis or Tillerson. Even General Kelly, the 
President's chief of staff, cannot control the President's 
Twitter tantrums.
    As a result, many Americans share my fear that the 
President's bombastic words could turn into nuclear reality. 
The fact that any American President has the unilateral ability 
to start a nuclear war is why I have introduced legislation 
cosponsored by 13 of my Senate colleagues to restrict any 
President's authority to launch a first-use nuclear strike 
without congressional authorization.
    The Founding Fathers believed that Congress has an integral 
role in any decision to start a war. And today more than ever, 
it is imperative that Congress reassert that constitutional 
authority.
    Mr. McKeon, is the President legally required to consult 
with or receive approval from anyone else before ordering the 
launch of a nuclear weapon?
    Mr. McKeon. Senator Markey, in the context that you 
described, in the absence of an attack or an imminent attack, I 
think the Constitution requires him to come to Congress to get 
that authority.
    Senator Markey. Does the 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?
    Mr. McKeon. Those are two different questions.
    Senator Markey. Two different questions.
    Mr. McKeon. If we are under attack, the President would 
have that authority under Article II to defend the country, and 
there is no distinction between his authority to use 
conventional or nuclear weapons in response to such an attack.
    Senator Markey. Is there a formal process by which anyone 
in the chain of command, from the Secretary of Defense down to 
the submariner or airman actually initiating the launch 
sequence, may object to or legally refuse to carry out a 
presidential order or launch a nuclear weapon?
    Mr. McKeon. Well, as General Kehler has described, the 
officers in the chain of command, the senior officers and the 
Secretary, could raise objections, if they believe the order is 
illegal.
    I think the system is designed to protect the first or 
second lieutenant, 23-year-old Air Force officer sitting in the 
launch control center from having to make that grave decision. 
It is really the four-stars and the Secretary who need to bear 
that burden.
    Senator Markey. Because disobeying such an order would be 
considered a violation of Federal law under the United States 
Uniform Code of Military Justice.
    So in your testimony, Mr. McKeon, you say that, in August, 
the National Security Advisor, Mr. McMaster, suggested the 
possibility of a preventive war, which would require 
congressional authorization.
    In other words, if there had been a decision that was being 
made by the President to use nuclear weapons, maybe small 
tactical nuclear weapons to hit the nuclear weapons system in 
known locations in North Korea as part of a 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?
    Mr. McKeon. Yes, correct.
    Senator Markey. So when General McMaster talks in those 
terms, ``preventative war,'' and that is I think what most 
people are most concerned about, this question of the President 
actually using them as part of that kind of scenario, there is, 
in your opinion, a constitutional responsibility for Members of 
Congress to have to have voted on that before such a nuclear 
war is commenced by the United States.
    Mr. McKeon. Correct. And in my view, the President would 
lack the authority. We had hearings not on this committee but 
in the Judiciary Committee before the Gulf War in 1991 when I 
was working for Senator Biden, then the chairman of that 
committee. One of the witnesses, Harold Koh, who was later the 
legal adviser in the State Department, said something that 
stuck with me ever since, which is: Silence has a sound. If the 
sound from Congress is silence, then the answer is no.
    Senator Markey. Well, the sound of silence has finally 
ended since 1976 to today on this issue. And I think, Mr. 
Chairman, that you deserve much praise for having this very 
important discussion. Thank you.
    The Chairman. Thank you so much for your interest in the 
topic and for pursuing this for so many years.
    Senator Kaine?
    Senator Kaine. Thank you, Mr. Chair. I also want to thank 
you for having this hearing.
    I have a strong belief that under administrations of both 
parties, and under Congresses of both parties' leadership, 
there has been a significant kind of creeping abdication of 
power in the war, peace, and diplomacy space from Congress to 
the President. There are Article II powers that are very 
important with respect to being the Commander in Chief, and 
also with respect to the conducting of diplomacy. But there is 
also very strong congressional prerogatives in the power to 
declare war, but also in the powers to oversee treaties and 
other diplomatic matters.
    And in recent years, I think this committee has started to 
pull some of that power back to this end of Pennsylvania Avenue 
in important ways. That is what the Iran Review Act did. 
President Obama at that time was asserting an ability to do 
this deal with Iran on the nuclear program without seeking a 
vote of Congress, and we felt that no congressional imprimatur 
was very unwise, and we pulled that back.
    We have done that with respect to Russian sanctions, and 
the current administration tried to pull back a little bit of 
the oversight responsibility.
    I have been engaged in an effort with colleagues, and the 
chair has recently held a very important hearing on the 
question on the 9/11 authorization, whether it still applies to 
military operations against other nonstate terrorist 
organizations and Al Qaeda.
    And I view this hearing as much the same way, trying to 
make sure we all share an understanding of what current 
protocols are, but then ask ourselves whether Congress is 
taking the steps we need to, to make sure that we are not 
abdicating the article and responsibilities that we were 
granted by Madison and the other Founders in 1787.
    General Kehler, I was really interested in your testimony 
about, just from a military standpoint, as somebody who was the 
head of STRATCOM, as a leader, your thought about an order, if 
a President gives an order and you would grapple with whether 
or not you viewed it to be lawful.
    The question of legality and lawfulness starts with the 
Constitution. You and we take oaths to the Constitution, not to 
a flag, not to a President, not to a party. We take an oath to 
the Constitution. So clearly, if you thought an order violated 
the Constitution, I assume that was incorporated in your 
testimony.
    But I wonder about your thought about internal protocols. 
If it is more than just the Constitution, but you were to feel 
that an order to use a nuclear weapon, say, violated internal 
protocols that had been agreed upon in the military either with 
respect to proportionality or some procedural protocol, is that 
the kind of, just using it as a hypothetical, would that be the 
kind of thing that might make you decide, ``No, I cannot 
execute on that order?''
    And then I am interested in understanding whether there is 
a widely shared view of what this line between a lawful order 
and an unlawful order would be.
    General Kehler. Senator, this issue about legality of 
orders exists at every level of command no matter whether the 
order is to use nuclear weapons or whether to use some other 
kind of weapon, perform some other kind of operation.
    The principle remains the same. In order for our military 
to follow the orders of the civilian leaders, then those orders 
have to be two things. There are a couple tests. One test is 
that it has to come from someone who has command authority. 
Second, it has to meet the legal tests of the law of armed 
conflict.
    So issues about the extent of presidential authority, et 
cetera, et cetera, are really 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, though, when these issues are in military 
decision-making, I always had a legal adviser by my side. I 
think you would find that commanders across-the-board these 
days have legal advisers by their sides. The Secretary of 
Defense and people who would be part of a conference having a 
conversation about nuclear decisions, legal advisers would be 
part of that conversation. And certainly, my experience with 
this has been that legal advisers are not reluctant to raise 
their hand and say, before we go further, here are the things 
that you need to consider about legality.
    I think Brian's points about at what point do we need 
Congress to weigh in, et cetera, et cetera, while they might 
not be at the fingertips of every military commander, they are 
certainly discussed in the military legal profession.
    So I was never concerned that I would not have the 
appropriate legal adviser at hand and that legal concerns would 
not be part of that conversation.
    Senator Kaine. Dr. Feaver, I am about out of time, but if 
you would like to answer, that would help me.
    Dr. Feaver. So the military has an obligation to follow 
legal orders, and there is a presumption that the orders that 
come through the chain of command and from competent authority 
are legal. But those orders are simultaneously vetted by the 
legal advisers, as General Kehler said.
    But as Senator Rubio pointed out, that 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 are legal.
    And when there is an extraordinary order, like an order to 
launch a nuclear weapon, that would require a lot of attention 
and would galvanize attention.
    The second point I would make is you may, Chairman, want to 
have lawyers back to talk about the legal authorities that are 
extant now regarding conflict on the Korean Peninsula. We are 
still under armed hostilities, just in an armistice, from the 
first Korean War, and there have been multiple U.N. Security 
Council resolutions, all of which provide some legal basis for 
U.S. action. And I am not a lawyer to adjudicate those, but I 
am sure that the DOD lawyers are looking at those issues.
    Senator Kaine. Thank you, Mr. Chairman.
    The Chairman. Thank you.
    General Kehler. Sir, may I add one more thing? I know the 
Senator is out of time.
    The Chairman. Yes.
    General Kehler. If I was not getting legal input, I was 
asking for it. And my obligation, my responsibility, as the 
commander of 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, I spent a lot of time in a 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 
a legal target or not a legal target. I was relying on people 
above me in the chain of command to carry that out. And my view 
as the commander of Strategic Command was that was my 
responsibility to do.
    The Chairman. If I could go back, Dr. Feaver, what was your 
last admonition to me?
    Dr. Feaver. It was not an admonition but a suggestion, sir.
    The Chairman. I took it as an admonition. [Laughter.]
    Dr. Feaver. There have been many questions about what would 
be the legal authority for U.S. military action on North Korea, 
particularly with regard to nuclear weapons. While it 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 I am not a lawyer, so I am suggesting 
that lawyers be consulted on what is the legal basis that is 
already existing because of prior U.N. Security Council 
resolutions that authorized the first Korean War, which is not 
over, it is just in a ceasefire, and then subsequent U.N. 
Security Council resolutions regarding North Korea's illegal 
nuclear program.
    The Chairman. Very good.
    Yes, sir?
    Mr. McKeon. Can I just comment briefly on Senator Kaine's 
issue? Four-star generals are not shrinking violets, and I can 
recall a circumstance, I will not identify the commander, and 
it was not a nuclear issue, where a combatant commander was 
looking down the road and seeing a scenario where he saw he was 
going to get some order, and he was wondering whether that 
would be a legal order. And he started asking questions months 
in advance of the Office of General Counsel in OSD.
    So obviously, it is a human system, and the human system 
can break down, but people don't get to be four-star generals 
unless they are strong individuals.
    The Chairman. Thank you.
    Senator Risch?
    Senator Risch. Thank you, Mr. Chairman.
    First of all, I want to thank all three 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 uttered here this morning in this 
hearing is going to be analyzed in Pyongyang. 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 that our discussion here today is not as practical 
as it is academic. 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, moved 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.
    So I want to make sure that Pyongyang understands that this 
talk about lawyers and this talk about standards and 
proportionality and all the other things that 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 is 
going to 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 experts that he has 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, et cetera, 
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. So I want everyone to 
understand how this works.
    And it isn't a gray situation. It isn't a situation where 
lawyers are going to get involved, and they are going to argue 
about proportionality and all these other standards we talk 
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.
    The Chairman. I think that is the reason we are having the 
hearing. Thank you. Thank you so much.
    Senator Merkley?
    Senator Risch. Mr. Chairman, I have a few minutes left. Let 
me respond to that.
    I agree with that, and I think we should have the hearing. 
But the problem you 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 clouded by arguments of an army of 
lawyers on each side arguing what is proportional and what 
isn't.
    Now, you can argue whether that is right or wrong, but 
those are the facts on the ground.
    The Chairman. I think that is correct. And I don't think 
there is any question. And one of the reasons we have passed 
some of the pieces of legislation that we have through the 
years, whether it is the Iran review act, or whether it is the 
Russian sanctions bill we just passed, is that, through the 
years, there is no question there has been a tremendous tilt to 
the executive branch, and certainly still is, as it relates to 
war, there is no question.
    But that is the purpose of the hearing, and I think it has 
been a good one to ferret out some of these issues and cause us 
to think more fully about what happens during these periods of 
time.
    Senator Merkley?
    Senator Merkley. Thank you, Mr. Chairman.
    Dr. Feaver, I believe you said something to the effect 
that, in the case where you have time to consider a response, 
the cooperation of many 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 who 
cooperates in order for that briefcase to be utilized?
    Dr. Feaver. I can't 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, fear it would be. It requires the President to 
work with military aides who are attending him and who have 
possession of the materials that he needs. And it requires 
personnel at all levels of echelon command all the way down to 
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.
    Senator Merkley. In the context, you put the condition 
``when you have 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 short order to an 
assault, is it still the case that you have to have the 
cooperation of strategic commanders to execute an order?
    Dr. Feaver. Yes, but in those settings, that is where the 
military is waking up the President, because they are the ones 
who are monitoring the intelligence picture. They are the ones 
who are getting the warning that a missile launched against the 
United States is about to happen.
    So they are already cooperating by waking up the President, 
advising him or her of the situation, and presenting them the 
range of options. So I would code that as cooperating with the 
President in order to give the President the options of making 
a decision.
    Senator Merkley. Those are the types of scenarios that 
really give people nightmares. There have been over a dozen 
such scenarios of false alarms where there were folks on both 
sides, the Russian side and the American side, that have been 
extremely worried that a major attack was underway with minutes 
to spare.
    I would like to enter in the record an article that details 
more than a dozen such events. There is the famous moonrise 
incident in 1960. There was the training video error of 1979. 
There is a case when Boris Yeltsin actually activated the 
nuclear briefcase in response to a nuclear research missile 
being launched by the Norwegians.


    [The information referred to is located at the end of this 
transcript.]


    Senator Merkley. And it is those cases that give people 
great worry.
    And part of the point of a nuclear triad, and this has not 
been mentioned today, so I wanted 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 you did not have to make a decision within a couple 
minutes. You had assured retaliation with at least two legs of 
the triad that were more survivable.
    Can I just get a response as to whether that is a 
reasonable analysis?
    Dr. Feaver. I think that is, Senator. And that is precisely 
why no previous strategic leader decided to put in place an 
automated response. They always wanted a human in the loop.
    And in the cases 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 technology 
so more people can be brought in, updating other aspects of the 
command-and-control system, so that there is time for the human 
element to make the assessments necessary to reach the right 
decision.
    We have had too many close calls over the course of the 
Cold War, but they were avoided in the end by wise human 
decision.
    Senator Merkley. In some cases, yes--well, I won't go into 
details.
    So in the 2010 Nuclear Posture Review, is it not the 
position of the United States that we essentially are saying we 
would not use a nuclear first-strike against and a Non-
Proliferation Treaty participant who does not have nuclear 
forces?
    Dr. Feaver. I had written an op-ed in the New York Times 
about this at the time. That is how it was covered in the 
media, but when you read it closely, I believe it still leaves 
wiggle room, in particular because it says those countries in 
compliance with their Non-Proliferation Treaty obligations. And 
it leaves opaque who determines whether they are in compliance.
    I inferred from that opacity that 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.
    Senator Merkley. Part of the reason for the discussion over 
no first use is because it creates more confidence among other 
nations that are nuclear-armed not to perceive a false attack 
by the United States, as occurred in the 1995 case in which 
Yeltsin activated their nuclear briefcase.
    Do you see any value, or do any of you three see any value, 
in strengthening the perception that the U.S. by policy would 
not utilize nuclear weapons in a first strike?
    Dr. Feaver. I do see some value from such an assurance, but 
I also see some costs. And I think that is why every previous 
administration, including President Obama who might have been 
expected to adopt a no-first-use policy, chose not to at the 
end adopt a blanket no-first-use policy. I doubt that this 
administration would either.
    If President Obama could not be convinced that it was worth 
the risks, I doubt that President Trump would be.
    Senator Merkley. There is a longer conversation about the 
pros and cons of that, but I am out of time.
    Thank you, Mr. Chairman.
    The Chairman. Thank you so much.
    Senator Shaheen?
    Senator Shaheen. Thank you, Mr. Chairman. Thank you for 
holding the hearing.
    And thank you, gentlemen, for being here today.
    Dr. Feaver, in your written testimony, you said that even a 
single nuclear detonation would be so consequential, it might 
trigger an escalatory spiral that would lead to civilization-
threatening outcomes.
    Can I just ask if everybody on the panel agrees with that?
    General Kehler. I would agree with it in principle, I 
think. 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, although we have in place----
    Senator Shaheen. Absolutely, and that is what helps 
contribute to the deterrence factor.
    General Kehler. It does. But we have in place means to try 
to control it, if deterrence ever fails.
    Senator Shaheen. Mr. McKeon, do you agree with that?
    Mr. McKeon. I agree with Peter's statement.
    Senator Shaheen. I think it is that statement that is so 
concerning and certainly gives me pause and others pause, and I 
think is one of the reasons for the hearing. When 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 what 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 Senator Cardin has said, who has not 
seemed to be willing to accept advice on an issue, many issues 
affecting power. While I agree with Senator Risch's comment 
that if the United States is threatened, we want the President 
to act, I want 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, contributes to 
the concern about whether we are in a situation where we need 
to look at, in Congress, a first nuclear strike policy and 
banning that.
    So you talked about the importance of calculated ambiguity, 
Senator Rubio raised that, and the importance of that in 
enhancing deterrence and making war less likely. Can you 
imagine a policy that would both limit the President's 
authority to use nuclear weapons and, at the same time, not 
weaken the deterrence value of our nuclear arsenal?
    Mr. McKeon. In thinking about this hearing, Senator 
Shaheen, I have struggled to come up with constructs that make 
sense, and it is hard to develop a principled way to constrain 
the Commander in Chief's power within the executive branch.
    As I said earlier, I think hard cases make bad law, and I 
think if we were to change the decision-making process in some 
way because of a distrust of this President, I think that would 
be an unfortunate precedent for future Presidents. And I say 
that as somebody who worked in this chamber for 20 years and 
feels strongly about congressional powers in this sphere.
    Senator Shaheen. Dr. Feaver?
    Dr. Feaver. I think that 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 delimit the 
scenarios, so it would set aside the reprisal, the launch-
under-attack scenarios. And then just where there is plenty of 
time, then specifying various protocols for authenticating an 
order, for validating that the order is legal and things like 
that.
    Each of these proposals raises important questions about 
Article II, and so they would have to be closely vetted. But I 
think there are proposals like that that could be examined, and 
it might improve.
    However, there are some things that unambiguously would 
help, and 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 for the reason you 
said, Senator, that an accident or unauthorized use would be so 
catastrophic, it is an investment worth making.
    Senator Shaheen. General Kehler?
    General Kehler. Senator, we have 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. And when 
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 overall deterrent.
    As unfortunate as it is, the big paradox of the nuclear age 
is still here. I said that in my written testimony. In order to 
prevent their use, which is the objective here, we have to be 
prepared to use them.
    And for us to presuppose all of 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 for all 
the reasons that were raised today.
    It has implications for the deterrent. It has implications 
for extended deterrence. And it has some 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 have done throughout the Cold War and beyond. I would just 
urge you to be very 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. It certainly accounts for tactical warning that an 
attack is underway, and we have preplanned options, and the 
vetting has been done. It accounts for the potential for using 
before an adversary weapon has been used.
    Senator Shaheen. And I appreciate that, and certainly hear 
the caution that each of 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 that there is 
not a miscalculation on the part of our aggressors who would do 
us harm about what the real intent here is?
    Mr. McKeon. I fully agree with you on that, Senator. The 
statements the President makes through his Twitter account no 
doubt cause concern and confusion on the other side of the 
Pacific.
    They don't have a constellation of satellites to see where 
we are moving our forces. When he says an armada is coming, 
that obviously has to give them some pause.
    And people may say, ``What he says on his Twitter account 
does not matter. We have policies. We have leadership of the 
national command authority. The Secretary and the chairman, 
they will take care of it.'' That does not compute in Kim Jong 
Un's mind, that what the President says does not matter.
    So I would be very worried about a miscalculation based on 
continuing use of his Twitter account with regard to North 
Korea, as I understand you are.
    Senator Shaheen. Thank you.
    Thank you, Mr. Chairman.
    The Chairman. Thank you.
    So, as I understand it--first of all, this has been, from 
my perspective, a great hearing, very balanced, I think, 
obviously, informative after 41 years of not having a hearing 
on this topic. And I appreciate all those, including CRS, that 
somewhat encouraged us to do so, if, in fact, you feel like you 
did.
    I think Mr. McKeon and General Kehler, basically, you are 
saying you don't see any legislative changes that ought to be 
made at this time. I think that is where you both are.
    And, Dr. Feaver, I think what you were saying was really 
not legislative changes as it relates to the power that the 
Commander in Chief has. You are talking about other types of 
more pragmatic changes as it relates to just the decision tree, 
is that correct, after the command has been given?
    Dr. Feaver. I would be very wary of legislative fixes, 
because there are second- and third-order effects that are hard 
to anticipate. And the history of the nuclear command-and-
control system is discovering that changes that have been made 
and well-intentioned on one level producing an unexpected 
result in another aspect.
    So I would be wary of legislative fixes, but that does not 
mean I would not review them. I think there are good proposals 
out there. And 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 Senators are channeling some concerns that the 
public has about this. And reviewing and then deciding not to 
make a change, a legislative fix, would go some distance to 
reassuring the public.
    The Chairman. There is another component.
    I will let you go ahead.
    Mr. McKeon. Just to comment on what you said, Mr. Chairman, 
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 to continue to step forward and 
make the case for the constitutional imperative.
    In both the Gulf War in 1990-1991 and even the Iraq War in 
2002, the executive branch was rather grudging in agreeing to, 
acceding to a congressional vote and authorization. George W. 
Bush either before or right after said something disparaging 
about: I don't need some old goat in Congress to go to war 
against Iraq.
    So the institutional instinct in the executive branch will 
always be, ``We can do this under Article II.'' And you will 
need, as a political body, to continue to assert your rights to 
make the case that we have discussed.
    The Chairman. Thank you.
    General Kehler. Sir, I agree with the points that have been 
made. I would not recommend any legislative changes at this 
point as well, but I would recommend a couple of things that I 
know are being openly talked about by my colleagues who are 
still wearing uniforms.
    And one of those is we can always do a better job, I think, 
in training our people who are involved in these processes in 
terms of where the safeguards are. And the point I was trying 
to make this morning about raising the legality issue is to 
remind everybody that the military does not blindly follow 
orders, and 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 that I would do is, it is time to invest, I 
know this committee does not have jurisdiction, but it is time 
to invest in the nuclear command-and-control and communications 
system. It has suffered from a lack of investment for too long, 
and I think it is very important that Congress be on board to 
modernize that system as a high priority, as well as the 
forces.
    The Chairman. If I could, that coincides with what I wanted 
to close with.
    When we did the New START Treaty, I was part of a group on 
our side of the aisle that approved the treaty. And I am glad 
that I did, by the way. It was the right thing to do. As part 
of that, we pushed the administration toward modernization.
    Would all three of you agree that to have--our nuclear 
arsenal is coming down. We want to make sure that these 
weapons, in many cases created 50, 60 years ago, we want to 
make sure that, if they are called upon to be used, they will 
actually do the things they are intended to do.
    Would all three of you agree that continued modernization 
of our nuclear arsenal is something that protects our Nation 
and ensures that, in the terrible event they are ever 
necessary, we have the capability of delivering?
    General Kehler. Yes, I do.
    Dr. Feaver. Yes. People who are worried about a nuclear war 
should be in favor of reasonable modernization measures that 
will provide greater safety and security in our existing 
system.
    Mr. McKeon. Mr. Chairman, I would use the word 
``recapitalization'' of both the warheads and the platforms of 
the triad.
    On the latter, all the platforms of the triad are aging out 
simultaneously, and there are plans in place to replace them 
over the next decade, and I know that will be an expensive 
proposition that will be well-debated. But if the policy 
decision is made to maintain a triad, then those investments in 
those platforms will need to be made.
    The Chairman. I would just say this for the American 
people. Many of us have visited the facilities where these are 
modernized and developed, and it is amazing that some of the 
guidance systems that have been in existence are not much more 
sophisticated than the tubes on a black and white television. 
And we need to continue to invest and make sure we are using 
the proper technology, so, in the unfortunate case of them 
being utilized, they will actually be there for us. And other 
countries are aware of our need to modernize also.
    So with that----
    Senator Markey. Mr. Chairman, may I just for a minute 
interject?
    The Chairman. You may.
    Senator Markey. Thank you. Thank you, Mr. Chairman.
    Again, I want to divide this question for the committee 
between an imminent attack on the United States where the 
President has the authority to protect our country, that is and 
should be the case, from a President launching a preemptive 
nuclear war against another country. And I think that is really 
what is of the most concern to the American people, that no one 
human being should ever have that power.
    So from my perspective right now, given what General 
McMaster said about the potential for a preventive war, that 
means that there could be plans in place right now in the White 
House given to the President to launch a preemptive war against 
North Korea using American nuclear weapons without consulting 
with, informing Congress whatsoever, by aggregating that power 
to the executive branch in clear violation of the United States 
Constitution--in clear violation of the United States 
Constitution.
    And so to the extent to which we are having this 
discussion, and there is legislation that is pending before 
Congress to ensure that Congress reasserts its authority to 
ensure that a nuclear war has not begun in the name of the 
United States by this President or any President, I think that 
is a legitimate constitutional prerogative that we should be 
reasserting.
    I don't think that we should be trusting the generals to be 
a check on the President. I don't think we should be trusting a 
set of protocols to be protecting the American people from 
having a nuclear war launched on their behalf. I don't think we 
should be relying upon a group of individuals to be resisting 
an illegal order when they have all pretty much been hired by 
the President to have the jobs they have.
    There is going to be a homogeneity inside of that decision-
making process, Mr. Chairman, that does not, in fact, offer 
real resistance if the President absolutely insists on his way. 
That is just the reality of it.
    So I agree with Mr. McKeon that it should be the 
congressional prerogative to declare a nuclear war. I think 
that is something that we should just continue here to explore, 
given the assertions made by the National Security Advisor.
    And I would think that our other two witnesses would agree, 
that if there is a preemptive nuclear war which is being 
considered, that Congress does have the constitutional 
responsibility, although it has been left, as Mr. McKeon said, 
in ambiguity. An atmosphere of ambiguity in President after 
President has been created around whether or not they are going 
to defer to our authority.
    So this is the hearing. This is the place. I am glad that 
you are kicking it off. But I don't think that the assurances 
that I have received today will be satisfying to the American 
people. I think they can still realize that Donald Trump can 
launch nuclear codes just as easily as he can use his Twitter 
account without a check and balance the United States Congress 
would be seeking and constitutionally responsible to exercise.
    So I think this has been a historic hearing, and I hope 
there is more to follow.
    Thank you, sir.
    The Chairman. Thank you.
    I thank each of you for being here. Again, I cannot imagine 
having a more balanced panel, a more sober panel. I think this 
was edifying for members of the committee but also the American 
public. We thank you for that. We thank you for your service to 
our country and being here and your previous service in other 
ways.
    And I think you know there are typically follow-up 
questions.
    First of all, I will say to committee members, we will 
close that process at the close of business on Thursday.
    To the extent you could answer those fairly promptly, we 
would appreciate it.
    The Chairman. I think you have contributed greatly to the 
national debate and dialogue today, and we thank you very much 
for that.
    The Chairman. And with that, the meeting is adjourned.
    [Whereupon, at 12:09 p.m., the hearing was adjourned.]



                              ----------                              



              Additional Material Submitted for the Record

     Responses to Additional Questions for the Record Submitted to
    General C. Robert Kehler, USAF (Ret.) by Senator Cory A. Booker

    Question 1.  In a crisis the National Command Authority and the 
President are going to be under enormous pressure. The President is 
going to make a decision that depends on information from the military 
that comes from sensors and satellites. There are documented cases and 
I am sure many undocumented ones of incorrect information regarding the 
launch of missiles reaching White House officials.

   How reliable are the early warning systems and can they be hacked 
        or fooled into giving false information?
   What is the process for interpreting the information and in what 
        time frame?

    Answer. The Integrated Tactical Warning and Attack Assessment (ITW/
AA) system is composed of satellites and ground-based radars that 
monitor and report on missile launches and other events around the 
world every day. The system and its human operators are tested and 
certified to extremely high standards and I was always highly confident 
in the information being reported. Air-based threats such as bombers 
and cruise missiles are detected and reported via a separate system.
    Warning information is presented to operators and command centers 
in real time as it is received. Senior commanders and civilian leaders 
are quickly brought into the discussion if a threat is indicated and, 
ultimately, a wide range of response options can be considered and 
implemented by the President. Response times can range from 
approximately 30-40 minutes for an ICBM from the Eurasian land mass, to 
less than 15 minutes for an SLBM from the Atlantic or Pacific oceans. 
Cruise missile threats pose additional problems.
    Cases of ``incorrect'' information are extremely rare and always 
result in thorough investigation and corrective action. In those rare 
cases I'm familiar with, human operators recognized the problems and 
intervened with appropriate corrections long before the point where 
offensive actions were even considered. While the ITW/AA system is 
designed to operate through various kinds of deliberate attacks, 
adversaries are deploying new threats like cyber and anti-satellite 
weapons that must be considered. Assessments of these new threats were 
underway when I retired.

    Question 2.  During the hearing you emphasized that officers are 
taught not to obey any illegal order, and that a military response must 
be legal, necessary, and proportional.

   Can you cite specific instances in the past 50 years where American 
        officers refused to carry out what they considered an unlawful 
        order, and what were the results?

    Answer. I am not personally aware of any specific instances in the 
past 50 years where American officers were intentionally issued 
unlawful orders. I am aware of many cases where legal discussions 
occurred, and issues were raised and resolved before orders were 
issued. The military planning and execution system includes legal 
review at all phases from planning through implementation. American 
forces derive their authority to act from a variety of sources 
including law (a collection of laws typically referred to as the Law of 
Armed Conflict), policy, and regulation. Commanders and civilian 
leaders take great care to ensure that orders are legal before they are 
issued, and military members are trained and re-trained on their 
responsibilities regarding those orders. It is essential that military 
members at every level understand the review process and have trust and 
confidence in the chain of command.

    Question 3.  In deciding whether to use nuclear weapons, either as 
a first strike or in response to an imminent or ongoing attack, my 
understanding is that the President will choose from a set of prepared 
options and responses. In terms of whether or not the response would be 
legal, you seemed to indicate that if the response option had been 
prepared in advance, then it would also have undergone legal review.

   If the president simply chooses one of these options, would there 
        be any legal review at all?

    Answer. Every scenario is different and context matters. All 
options either developed in advance of or during a crisis or conflict 
undergo legal review. However, in my view, additional legal discussion 
would be appropriate if the actual scenario is completely different 
than those considered during the planning process.



                               __________


     Responses to Additional Questions for the Record Submitted to
               Dr. Peter Feaver by Senator Cory A. Booker

    Question 1.  Communications are key to the process if the United 
States is responding to an imminent threat or attack. At several points 
information or orders need to be communicated between the military 
authorities or between the White House and military authorities. You 
noted how important it is to keep the technology up to date.

   How secure is the communications network to ensure that accurate 
        and reliable information is able to flow to and fromthe 
        decision-makers and those carrying out the orders?

    Answer. Ensuring the reliability and security of the communications 
network should be a top priority for both the executive-led Nuclear 
Posture Review as well as any congressionally led oversight and review 
of nuclear command and control. Of course, communications security and 
reliability have already been high priorities for nuclear operations 
for decades, but the advance of telecommunications technology and the 
emergence of cyber threats from a range of adversaries collectively 
justify a fresh look.
    The communications network can be disaggregated into different 
stages for assessment purposes. One stage involves communications 
related to conveying indications and warnings of external threats as 
inputs to the decision-making team. The security and reliability of 
this part of the system can vary somewhat with geography and timing; if 
key principals are on travel or otherwise hard to reach, and if an 
attack is imminent, it may not be possible to reach all of the key 
advisors in time.
    Another stage involves conveying the President's orders to the 
strategic headquarters responsible for nuclear operations. This stage 
is probably the most secure and most reliable.
    A third stage involves conveying those orders from strategic 
headquarters to the various platforms that could carry out a nuclear 
strike. The security and reliability here varies somewhat with the 
platform involved. During the Cold War, one of the most demanding 
scenarios involved assuring communications with the submarine force 
even in the event that the United States suffered a devastating first 
strike.
    A careful review may identify upgrades to the system to improve the 
security and reliability during any or all of these stages.



                               __________


       Responses to Additional Questions for the Record Submitted
            to Hon. Brian P. McKeon by Senator John Barrasso

    Question 1.  It has now become clear that the executive branch had 
information pertaining to Russia's potential (now publicly-confirmed) 
INF violation during Senate consideration of New START.

   Did you participate in the decision-making process to not inform 
        the U.S. Senate of that potential violation during Senate 
        consideration of New START?
   If so, please describe that decision-making process and the 
        rationale supporting that decision.

    Answer. I respectfully disagree with the premise of your question. 
I was not part of, and would have opposed, any effort to withhold 
information from the Senate while it undertook its important 
responsibility to consider the New START Treaty.
    The administration's commitment to ensuring that the Senate had 
relevant information about Russian activity was demonstrated in 
September 2010. A day or two prior to the consideration of the Treaty 
in the Committee on Foreign Relations, the intelligence community (IC) 
briefed me and other senior White House officials on an issue of 
concern related to Russia and arms control. We urged in the IC 
representatives to promptly brief the committee staff, which they did. 
As you may recall, Senator Risch made a general reference to the issue 
during the committee markup of the Treaty on September 16, 2010. 
Director of National Intelligence Clapper also addressed the issue 
during an all-senators briefing on the National Intelligence Estimate 
on the Treaty later that month.
    The Obama administration formally declared the Russian Federation 
in violation of the INF Treaty in 2014. It made that declaration public 
in the annual report on ``Adherence to and Compliance with Arms 
Control, Nonproliferation and Disarmament Agreements and Commitments,'' 
pursuant to section 403 of the Arms Control and Disarmament Act (22 
U.S.C. 2593a), which was issued by the Department of State in July 
2014. The report covered compliance in calendar year 2013 to such 
agreements and commitments.
    The detailed bases for that determination, including when the 
Executive Branch first concluded that there may be a potential treaty 
violation, is classified. I am no longer a government official, and do 
not possess an active security clearance, so I am unable to provide 
that information to you. I would refer you to the Office of the 
Director of National Intelligence, and the Departments of State and 
Defense, for further information.

    Question 2.  In your prepared remarks you said, ``the Obama 
administration did not adopt a formal policy of `no first use' of 
nuclear weapons.''

   Why wasn't a no-first-use policy adopted?

    Answer. Department of Defense lawyers advise me that I am unable to 
answer this question, as it would reveal information that is considered 
to be internal deliberative process.
    For a general statement of the policy, I refer you to the 
discussion of the negative security assurance set forth in the report 
of the 2010 Nuclear Posture Review, particularly pages viii and ix.



                               __________


       Responses to Additional Questions for the Record Submitted
           to Hon. Brian P. McKeon by Senator Cory A. Booker

    Question 1.  The chain of command for information about an attack, 
the consideration of options, and the orders pertaining to the 
potential or actual use of American nuclear weapons, runs to and from 
the President. However, beyond this there are disagreements in the open 
literature as to how the chain of command functions and the role of key 
actors, such as the Secretary of Defense.

   Please outline for me the chain of command and advisory structure 
        for me, starting with the first detection of a launch, through 
        the U.S. launch of a weapon and tell me what DoD or other 
        procedural or decision memos or documents contain this 
        information.

    Answer. The military chain of command is set forth in Title 10, 
United States Code, section 162(b). It reads:

    ``(b) Chain of Command. Unless otherwise directed by the President, 
the chain of command to a unified or specified combatant command runs--
          ``(1) from the President to the Secretary of Defense; and
          ``(2) from the Secretary of Defense to the commander of the 
        combatant command.''

    By law, the Chairman of the Joint Chiefs of Staff is not in the 
chain of command, and does not exercise military command over the Joint 
Chiefs or any of the armed forces. (10 U.S.C. 153(c)). The Chairman is 
the principal military adviser to the President, the National Security 
Council, the Homeland Security Council and the Secretary of Defense (10 
U.S.C. 151(b)(1)). In addition, the Joint Staff typically transmits 
detailed military orders to the combatant commander, consistent with 10 
U.S.C. 163(a)(1).
    For nuclear employment, the cognizant combatant commander for 
strategic weapons would be the Commander, U.S. Strategic Command. For 
use of U.S. non-strategic nuclear weapons based in Europe, it would be 
the Commander, U.S. European Command.
    As I stated in my testimony, I would expect that in any scenario, 
the President will consult with the National Security Council, and his 
other senior civilian and military advisers, about nuclear employment. 
The membership of the Council is set forth in statute (section 
101(c)(1) of the National Security Act of 1947, 50 U.S.C. 3021(c)(1)). 
At a minimum, I would expect the President to consult with his chief of 
staff, the National Security Adviser, the Secretaries of State and 
Defense, the Chairman of the Joint Chiefs of Staff, and the cognizant 
combatant commander.
    I am unable to provide further information about the decision-
making process and applicable directives or memoranda, as this 
information is classified. I am no longer a government official and do 
not possess an active security clearance. I would therefore refer you 
to the Department of Defense for further information. Some unclassified 
information about the Nuclear Command and Control System (NCCS) is 
available in the ``Nuclear Matters Handbook 2016,'' published by the 
Deputy Assistant Secretary of Defense for Nuclear Matters, and 
available at this link (the information on the NCCS is contained in 
chapter 6):

          https://www.acq.osd.mil/ncbdp/nm/nmhb/index.htm



                               __________

              Union of Concerned Scientists--Fact Sheet, 
              ``Close Calls with Nuclear Weapons'' (2015)



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