Senate hearings on the legal structure by which a nuclear first strike could conceivably be lost have come with assurances from Stratcom commanders both past and present that they would defy “illegal” orders from the president to do so. This may not be the case, however.
This has been an increasingly serious concern because of the talk of the US conducting a nuclear first strike against North Korea. The generals, however, maintain they’d have to refuse such an order if it was in violation of the laws of war.
Experts are warning, however, that this is unlikely to actually be the case, and that there is little incentive to refuse such an order, and much to lose. This is particularly true because while Congress has not authorized nuking North Korea, they haven’t expressly forbidden it.
Even though it’s not the way the law is intended to work, recent unauthorized wars have shown presidents have pretty much limitless war-making power unless Congress is willing to exercise a check on it, which they generally haven’t been.
Past examples of US personnel committing war crimes on presidential orders, including recent examples of torture, suggest that those “just following orders’ not only don’t face punishment, but tend to be promoted for their complicity.
This would be even truer in the case of a nuclear first strike, because as the hearings have shown there is not a well-established legal process through which to order such an attack, and barring explicit Congressional action forbidding a nuclear first strike, legality is murky enough to support doing almost anything.