WHAT’S AN ILLEGAL ORDER? The nation’s top U.S. nuclear commander weighed in this weekend on what would happen if President Trump were to order an “illegal” nuclear attack on another country. Speaking on a panel over the weekend at the Halifax International Security Forum in Nova Scotia, Air Force Gen. John Hyten said he would push back if the order was not in compliance with the law of armed conflict. “If you execute an unlawful order, you will go to jail. You could go to jail for the rest of your life,” he said.
“I think some people think we’re stupid. We’re not stupid people. We think about these things a lot. When you have this responsibility, how do you not think about it?” Hyten said, when asked about last week’s congressional testimony by a former U.S. nuclear commander that military officers have a responsibility not to carry out an illegal order from their civilian superiors. “The way the process works is it’s simple,” Hyten explained. “I provide advice to the president, he will tell me what to do, and if it’s illegal, guess what’s going to happen? I’m going to say, ‘Mr. President, that’s illegal.’ And guess what he’s going to do? He’s going to say, ‘What would be legal?’ And we’ll come up with options of a mix of capabilities to respond to whatever the situation is, and that’s the way it works. It’s not that complicated.”
ACTUALLY IT’S A LITTLE MORE COMPLICATED: The real question in that scenario is what constitutes an illegal order? At the Halifax Forum, Hyten ticked off the factors that need to be considered: necessity, distinction, proportionality, unnecessary suffering, and said they applied equally to small arms and nuclear weapons. Hyten says over his 36 years in uniform the law of armed conflict has been drilled into him, with the most famous example of an unlawful order being the destruction of the village of My Lai during the Vietnam War, in which more than 500 people were slaughtered.
But at last week’s Senate Foreign Relations Committee hearing, Sen. Marco Rubio warned against military attorney’s second-guessing the commander in chief in a crisis. “I think we all understand … you can’t have military officials ordered to go on to a village full of civilians and kill everybody. That clearly violates the law that governs armed conflict,” Rubio said. But on the other hand, “We cannot have a bunch of bunker lawyers … or activists up and down the chain who decide that they’re going to disobey any order that they disagree with.”
DEPENDS ON WHO’S WAKING UP WHOM: There’s another way to think of it, offered Duke University professor Peter Feaver at last week’s hearing. “What I would say is distinguish between scenarios where the military wake up the president versus scenarios where the president’s waking up the military. Where the military wakes up the president and warns him that there is about to be an attack, where they were 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’s waking up the military, maybe in an extreme funk saying, ‘I’m 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 [Gen. Robert Kehler] outlined. What’s 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’d be asking the questions that would slow down that process. And so the context matters greatly for this.”
PATRIOTS TO POLAND: The State Department has approved a possible sale of advanced Patriot missile batteries to Poland. Price tag: $10.5 billion. The decision authorizes the sale to Poland, a NATO ally, and is expected to be completed before the year’s end. Poland is expected to buy Raytheon PAC-3 missiles, along with 16 launchers, and long with associated radars and spare parts, in order to bolster its missile defense against Russia.
Trump touted the Patriot system this month when it successfully shot down a missile fired into Saudi Arabia from Yemen. And on its website, Raytheon claims Patriots intercepted more than 100 tactical ballistic missiles in combat since 2015, the year the Saudi-led war against Iranian-backed Houthis began.
WITHER THE INF TREATY? Poland’s desire for more robust missile defenses comes as NATO has accused Russia of violating a Cold war-era treaty banning short and intermediate range missiles with a secret deployment of a new land-based cruise missile. So far, U.S. efforts to convince Russian President Vladimir Putin to admit to the flagrant violation and return to compliance with the 1987 Intermediate-Range Nuclear Forces Treaty have failed. Deep in the Defense authorization bill just passed by Congress are the seeds of what could be the eventual demise of the treaty: $58 million for the U.S. to design a similar Ground Launched Cruise Missile or GLCM. Designing the missile would not violate the INF, but producing it would. Critics, such as U.S. Pacific Commander Adm. Harry Harris, have another big problem with the 30-year-old arms treaty. It doesn’t apply to China, which is free to develop all sorts of land-based missiles with a range of 300 to 3,400 miles. Read more at the Washington Examiner.
Good Monday morning and welcome to Jamie McIntyre’s Daily on Defense, compiled by Washington Examiner National Security Senior Writer Jamie McIntyre (@jamiejmcintyre), National Security Writer Travis J. Tritten (@travis_tritten) and Senior Editor David Brown (@dave_brown24). Email us here for tips, suggestions, calendar items and anything else. If a friend sent this to you and you’d like to sign up, click here. If signing up doesn’t work, shoot us an email and we’ll add you to our list. And be sure to follow us on Twitter @dailyondefense.
HAPPENING TODAY: Deputy Secretary of Defense Pat Shanahan welcomes Afghanistan’s Acting Minister of National Defense Lt. Gen. Tariq Shah Bahrami to the Pentagon at 1:30 p.m.
TOO SILENT, TOO DEEP: The U.S. Navy and NASA are assisting in an international effort to track down an Argentine navy submarine with 44 crew members that has been missing for several days.
The lost vessel, the ARA San Juan, has been out of radio contact since Wednesday somewhere around the southern tip of South America in the Atlantic Ocean. However, late Saturday, the Argentine Defense Ministry said it detected several failed “satellite calls,” likely from the missing submarine, providing some hope that it would soon be found.
The Navy said Saturday that Undersea Rescue Command was deploying its San Diego-based rescue assets to the area, due to arrive on Sunday. This follows the arrival of two aircraft that were sent Saturday to assist with in the search — a Navy P-8A Poseidon multi-mission maritime aircraft and a NASA P-3 research aircraft.
THINGS THAT GO BUMP IN THE SEA: A U.S. destroyer sustained minor damage after a collision with a tugboat near Japan, according to 7th Fleet. The USS Benfold, which is a guided-missile destroyer, had been participating in a scheduled towing exercise in Sagami Wan, a bay south of Tokyo, on Saturday when a Japanese tug boat lost propulsion and drifted into the U.S. ship, 7th Fleet said in a statement.
No injuries were reported and minor damage was done to Benfold, including scrapes on its side. While the tug boat is being towed to a port in Yokosuka, Benfold remains at sea on its own power.
LOOK, UP IN THE SKY, IT’S A…: The Navy has grounded an aircrew over “wholly unacceptable” behavior after aviators drew a what appeared to even the most casual observer to be penis in the sky with jet exhaust over Washington state on Thursday.
“The American people rightfully expect that those who wear the Wings of Gold exhibit a level of maturity commensurate with the missions and aircraft with which they’ve been entrusted,” said Vice Adm. Mike Shoemaker, command of Naval Air Forces. “Naval aviation continually strives to foster an environment of dignity and respect. Sophomoric and immature antics of a sexual nature have no place in naval aviation today. We will investigate this incident to get all the facts and act accordingly.
“This event clearly stands in stark contrast to the way our aviators and sailors are performing with utmost professionalism, discipline and excellence from our carrier flight decks and expeditionary airfields around the world today.”
THE RUNDOWN
AP: Syria: IS Militants Defeated In Last Major Stronghold
New York Times: After Huge Truck Bombings, U.S. Steps Up Attacks Against Somali Militants
Politico: U.S. Military Builds Up In Land Of ‘Black Hawk Down’ Disaster
AP: Trump era sparks new debate about nuclear war authority
Military Times: US troops lack support despite expanding mission in Africa
Air Force Times: The Air Force is throwing money at pilots to stay. Fewer and fewer are interested.
Stars and Stripes: North Korea on track to deploy 1st ballistic missile sub, US think tank says
Politico: U.S. military builds up in land of ‘Black Hawk Down’ disaster
New York Times: U.S. Marine Involved in Deadly Crash on Okinawa
Navy Times: War zone deaths are up for the first time in six years
Defense News: Trump’s hurricane relief request adds $1B to fix military facilities
Army Times: Earning it: A complete history of Army berets and who’s allowed to wear them
Calendar
MONDAY | NOV. 20
12 p.m. 1201 Pennsylvania Ave. NW. Is Lebanon Saudi Arabia’s new zone of confrontation with Iran? hudson.org
TUESDAY | NOV. 21
10 a.m. 529 14th St. NW. U.S. policy on Iran and the way forward after IRGC terror designation with former Sen. Joe Lieberman and Gen. Chuck Wald, former deputy commander of U.S. European Command. press.org
2:30 p.m. 1775 Massachusetts Ave. NW. Kings and presidents: Whither the special relationship with Saudi Arabia? brookings.edu
