United States: Authorisation of the Use of Nuclear Weapons

The President of the United States is the sole authority for the use of nuclear weapons.  Options for employment and the launch codes are carried in a briefcase (known as “the Football”) by a military officer who is constantly with the President.  The issue has two elements:

·         Launch on Attack – warning of a launch is transmitted to the President and the Pentagon.  The President would then be formally advised of the options by the Secretary of State for Defense (SecDef) and the Commander of Strategic Command (Comd STRATCOM). A subsequent Presidential order to launch is passed to the SecDef for validation of authenticity and is then passed to the Comd STRATCOM to execute.  The only check on the employment of the weapons would be if the order would be deemed illegal under the Laws of Warfare. However, this is unlikely as this concern would have been raised with the President when advice and discussion of the options took place.

·         First Use – The United States retains the option of First Use as part of its deterrent policy.  However, such an event would be a deliberate planning option.

At present, prompted by animosity by some of President Trump, there is a debate in the United States on changes to the authorisation of the First Use of nuclear weapons.  However, the only formal proposal for changes was proposed in January 2017.  It was sponsored by Edward Markey (D-MA) in the Senate (S.200) and sponsored by Ted Lieu (D-CA) in the House (HR 669) and proposed no first use of nuclear weapons can be authorised unless it is permitted in the Congressional Declaration of War.

As an independent observer, I shall not comment on US constitutional issues or the reasoning behind the current debate.  However, before Congress contemplates any changes there are other issues that to be considered:

• ·         The submitted proposal, and ongioing debate, has not distinguished between strategic and non-strategic nuclear weapons.   Non-strategic nuclear weapons are of shorter range and lower-yield and would be employed for tactical use.
• ·         A Declaration of War that imposes constraints not only affects military options but also Interagency influence operations.  This cedes an advantage to the enemy, reduces the effectiveness of elements of national power and would be against US national interests.
• ·         The constraint would also have implications for any partners, whether NATO or another coalition, again limiting military and influence options.  It may also cause concern about US resolve among the partners.  This would be against the US national interest.
• ·         Similarly, it could also adversely affect relationships with nuclear-capable partners and therefore would also be against the national interest.
• ·         A requirement to return to Congress for any amendment or addition to a Declaration of War would negate timeliness and operational security.

In summary, despite changes in the global operational environment and future technologies (eg Hypersonic missiles), any changes to the current arrangements that reduce flexibility are likely to be detrimental to US national interests.

North Korea: The Art of the Deal?

Current, US activity is rooted in the Diplomatic, Informational, Military and Economic construct (including international pressure, military manoeuvres, sanctions etc).  The different messaging across the principal US players (Trump, McMaster, Mattis, Tillerson, Kelly and Haley) appears to be a synchronised campaign to create multiple dilemmas in Kim’s thinking and is geared to influence Kim that President Trump is willing (whether he is or not) to use military action, and that if that happens the Kim regime will be gone. Kim’s deterrence options are only relevant if the US, South Korea and Allies are perceived as unwilling to bear the cost.  The campaign seems to have worked with North Korean envoys around the world asking whether the US would use a military option as stated.  If deemed credible, such an assessment may even cause some senior figures to consider breaking with the regime at some point.  However, what is the strategy that lies behind this US activity?

On 15 November 2017, the Washington Post reported that President Trump asked South Korean President Moon, “Do you have to re-unify?”  Some have described this as insensitive, especially as President Moon is the son of North Korean refugees with family still in North Korea.  However, …

Although the situation is complex, the following are very basic assumptions of the desired national outcomes of North Korea, South Korea, China and the US:

• ·         North Korea – re-unification under the Kim regime whilst retaining nuclear weapons as a deterrent.
• ·         South Korea – re-unification as a de-nuclearised, capitalist democracy.
• ·         China – a stable peninsular that poses no challenges to China with no US military presence.
• ·         The US - a de-nuclearised North Korea that does not pose a threat to the US or its interests.

Despite these desired national outcomes, are there medium-term objectives that all parties could live with?

• ·         The US has already publicly stated that its aim is a de-nuclearised North Korea that does not pose a threat to the US or its interests; not regime change.
• ·         China’s desired national outcome can be met if the US objective is met.
• ·         South Korea, without giving-up on its desired national outcome, may agree to a medium-term objective of a de-nuclearised North Korea that does not pose a threat.
• ·         The difficulty is North Korea.  Would they settle for a security guarantee from the US, backed by China, that they will not be attacked and there will be no attempt at regime change if they de-nuclearise?

In reaching the objectives outlined above, skilful negotiation (including inducements and pressure) will be required for North and South Korea to relent on their desired national outcomes.  Hence, President Trump and the re-unification question.  Indeed, following the President Trump meeting with President Xi last week, China announced that would be sending an envoy to North Korea.  And, it appears North Korea may be open to negotiation. Also on 15 November 2017, the Korean Workers’ Party newspaper opened with the position that North Korea would give up nuclear weapons when the US does as the US threatens the North Korean regime.

Is President Trump successfully practising the “Art of the Deal”? 

Warning: “Gray Zone” challenges

As actors use less traditional actions to influence the operational environment, the ability to warn of threats is becoming increasingly complex. This is making the task of the intelligence community much more difficult in providing warning.

The Operational Environment is: “A composite of the conditions, circumstances and influences that affect the employment of military forces and bear on the decisions of commanders.”[i]

Warning[ii] is the result of specialized intelligence analytical tradecraft, applied to all sources of information, to provide expert insight in order to prevent or limit damage to one’s national interests.  It is subdivided into strategic warning (before the hostile act is initiated) and tactical warning (the hostile act has been initiated).  In order that pre-emptive measures can be taken, it is important that the speed of warning is within the adversary decision-cycle.

“Gray Zone challenges are defined as competitive interactions among and within state and non-state actors that fall between the war and peace duality.”[iii]  Therefore, Gray Zone challenges are activities that occur before initiation of major combat operations.

Some Gray Zone challenges will be calculated, incremental activity to achieve an objective by each individual action, by an overt sponsor, and is designed to fall beneath the threshold of acceptable retaliation, e.g. island building by China in the South China Sea to increase territorial claims.  However, the majority of Gray Zone challenges will be covert.  The purpose of the activity and the linkage of the activity to its sponsor will remain hidden.  Political agitation, terrorist incidents and/or criminal acts will be conducted to appear as unrelated activity to each other and the sponsor, e.g. Russian troops without insignia in Eastern Ukraine were described as local patriots.  These activities are designed by the adversary to achieve the maximum progress towards the political desired outcome before conflict.

This is the strategic warning problem: Are incidents unrelated or are they part of a calibrated plan to influence the Operational Environment in favour of the adversary before the campaign design becomes apparent?  When is criminal activity by an organised criminal gang crime or something else?

“Hybrid Warfare incorporates a range of different modes of warfare including conventional capabilities, irregular tactics and formations, terrorism acts including indiscriminate violence and coercion, and criminal behaviour.”[iv]  This is the tactical warning problem.

Warning depends on correctly assessed intelligence from all-sources of information, including law enforcement.  An adversary usually wishes to achieve an element of surprise and Gray Zone activities support that objective.  Therefore, situational awareness and understanding of the Operational Environment and of potential adversaries (state and non-state) must be maintained to assess indications of change that could warn of signs of preparation, any change of intent for a hostile action, and the action itself.  But, care should be taken to detect a “fig-leaf[v]”, Denial[vi] and Deception[vii].

The already difficult task of warning for the Intelligence Community is becoming even harder.  It will need require concerted action in order to address this issue.

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[i] NATO (AAP-6).

[ii] Warning is not complete until it has been conveyed to the policy-maker/commander and been understood by them as warning intelligence.

[iii] US Special Operations Command (SOCOM) White Paper “The Gray Zone” dated 09 September 2015

[iv] Frank Hoffman, Potomac Institute of Policy Studies “Conflict in the 21^st Century: The Rise of Hybrid Wars” dated December 2007.

[v] A minor action that could be used as a justification for a larger action

[vi] Actions taken to prevent or impair intelligence collection.

[vii] Actions taken to influence an actor as to the wrong adversary course of action

Debating a new Authorisation for the Use of Military Force (AUMF)

The deaths of four US soldiers in Niger on 04 Oct 17 has reignited the debate over replacing the 2001 AUMF that states: “That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons in order to prevent any future act of international terrorism against the United States by such nations, organizations, or persons." 

Over the years a growing body of opinion contended that while the 2001 AUMF authorized military action against Al Qaida (AQ), the Taliban and others associated with the 11 September 2001 attacks against the US, it did not cover action against: AQ-I (which did not exist until 2004) and became ISIS, or any other actors that have emerged.  In 2002, the Iraq-specific AUMF gave President Bush authority to “defend the national security of the United States against the continuing threat posed by Iraq” (implying the state of Iraq (use of the word “by”), as opposed to non-state actors operating in and from Iraq.  However, the White House always countered that both gave the necessary authorization for global counter-terrorism operations.

However, on 20 Jan 15, in his State of the Union address, President Obama appeared to undermine this position and said: “And tonight, I call on Congress to show the world that we are united in this mission by passing a resolution to authorize the use of force against the Islamic State of Iraq and the Levant (ISIL).”

In an interview with Gen Dempsey on 22 Jan 15 (then Chairman of the Joint Chiefs of Staff), he endorsed the passing of a new AUMF but made three important points

·         “.. all options should be on the table, and then we can debate whether we want to use them.  But the authorization should be there.”

·         “It shouldn’t constrain activities geographically, because IS knows no boundaries [and] doesn’t recognize any boundaries – in fact it’s their intention to erase all boundaries to their benefit.”

·         “Constraints on time, or a “sunset clause”, are not necessary.  “I think the nation should speak of its intent to confront this radical, ideological, barbaric group and leave that open until we can deal with it.”

However, on 28 Jan 15, Rep. Adam Schiff (D-CA), the Ranking Member on the House Intelligence Committee, introduced a draft AUMF that:

• ·         Limited authority to the territory of Iraq and Syria.
• ·         Did not give authority for the deployment of ground forces in a combat role.
• ·         Terminated the authority after three years.

The 2001 AUMF was not replaced.

Alongside Secretary of State Tillerson, in testimony before the Senate Foreign Relation Committee on 29 Oct 17, Secretary of Defence Mattis, in relation to a new AUMF, said:

• ·         “[The President has] authority under the Constitution to take action to deter and prevent acts of international terrorism against the United States.”
• ·         “it lies firmly within any president’s constitutional authority and responsibility as the elected commander-in-chief to designate who presents a threat to our country.”
• ·         “Though a statement of continued Congressional support would be welcome, a new AUMF is not legally required to address the continuing threat posed by al-Qaida, the Taliban and ISIS.” 

Similar to Gen Dunford’s comments in 2015, Mattis believes that:

                                

• ·         The two AUMFs should not be repealed and that they give the authority for operations against al-Qaida, the Taliban, and ISIS.
•            Second, that a new AUMF cannot be time-restricted, “We cannot put a firm timeline on conflict against an adaptive enemy who would hope that we haven’t the will to fight as long as necessary,” “… we are more likely to end this fight sooner if we don’t tell our adversary the day we intend to stop fighting.”

·        Finally, that a new AUMF cannot be geographically constrained, “This is a fight against a transnational enemy, one that does not respect international borders and does not place geographic limits on their areas of operations. So, necessarily, to defend our country, we must be prepared to swiftly engage this global enemy in conjunction with our allies and partners.”

Swift, unambiguous bi-partisan support for a new AUMF that is not constrained by time, space or means is likely to:

• ·         Demonstrate to the US public, allies, partners, neutrals and adversaries that the US is united in its desired outcome; and,
• ·         Give support to all DoD and intelligence agency partners involved.

However, an extended debate resulting in a constraining, ambiguous AUMF, or no replacement at all, is likely to:

• ·         Undermine confidence from the US public, allies and partners;
• ·         Undermine morale in the DoD and its intelligence partners; and,
• ·         Give confidence to the adversaries, and be exploited by them for further recruitment and support.

Second-order affects should also be considered, for example: how would the North Korean or Iranian regimes perceive the process and outcome, and what could they do to exploit it.

Let’s see.