Mark Milley
Chairman of the Joint Chiefs of Staff General Mark Milley speaks during a briefing on September 1, 2021 at the Pentagon in Washington. (AP Photo/Susan Walsh)

Revelations of actions taken in the waning months of the Trump administration by General Mark Milley, chairman of the Joint Chiefs of Staff, have triggered what the political scientist and Washington Post contributor Daniel Drezner has called “a full-on freakout” in the “foreign policy community.” Most of the hyperbole has focused on phone conversations between Milley and his Chinese counterpart, General Li Zuocheng of the People’s Liberation Army, in which Milley assured Li that the United States was not preparing a military strike against the PRC.

But some, including Florida Republican Senator Marco Rubio, in a letter to President Biden, have accused Milley also of “interfer[ing] with the procedures by which the civilian commander-in-chief can order a nuclear strike.” Rubio wrote, “Even more egregiously,” Milley “purportedly instructed officials not to take orders without his involvement and forced them to take an oath to that effect.” Unfortunately, Rubio’s version misconstrues both what Milley did and how Bob Woodward and Robert Costa report his actions in their new book, Peril. In CNN’s account of the book, the purpose of Milley’s meeting was to remind senior military officials of the importance of following established decision-making process regarding the use of nuclear weapons:

Speaking to senior military officials in charge of the National Military Command Center, the Pentagon’s war room, Milley instructed them not to take orders from anyone unless he was involved. “No matter what you are told, you do the procedure. You do the process. And I’m part of that procedure,” Milley told the officers, according to the book. He then went around the room, looked each officer in the eye, and asked them to verbally confirm they understood.

The Pentagon has reportedly confirmed the accuracy of this report.

For two reasons, it seems unsurprising that even usually level-headed journalists are asking questions about Milley’s interaction with other officials. First, Milley himself has repeatedly featured in other circumstances as a central figure in stories about adherence to protocol under Trump. Along with former Defense Secretary Mark Esper, Milley helped in what retired Lieutenant Colonel Alexander Vindman called “gaming the [military] promotion process” to ensure that Trump’s misogyny would not deprive Generals Jacqueline Van Ovost and Laura Richardson of well-earned nominations for promotion to four-star command. More notoriously, his appearance in Trump’s infamous June 2020 photo-op walk across Lafayette Square prompted Milley to issue an extraordinary public apology. Since James Comey’s ham-handed handling of the investigation of Hillary Clinton’s emails, the public has become appropriately wary—here I am again quoting Vindman—of powerful men “convinc[ing] themselves that they are indispensable and serve as the only guardrail to more egregious abuses of power,” only to help trigger unwanted consequences. It is hardly surprising that outsiders wonder whether Milley had fallen prey to that pathology. But it is just as important to understand why, in this case, that seems unlikely.

More than reflecting concern about Milley personally, suspicions of possible misconduct in the meeting that Peril reports are likely fueled by a dangerous misunderstanding of the constitutional presidency—by the idea that for federal officials to insist on fidelity to bureaucratic decision-making process amounts to insubordination. The Constitution directly vests in the president a roster of weighty powers. As chief executive, the president is empowered to supervise a sprawling civilian and military bureaucracy that Congress, by statute, has authorized to make and implement policies regarding virtually every aspect of American life. Moreover, the Constitution directly assigns to the president the role of “Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States.” Thus, ultimate executive responsibility for critical decisions across the national security domain will almost always rest with the president because either the Constitution or Congress puts it there. But the president’s position atop the executive branch does not render any less important the specific decision-making processes that either Congress imposes on the executive branch or the executive branch has itself designed in order to guide the exercise of presidential power.

The connections between well-designed process and sound decision making are widely understood. As the national security scholar Dakota Rudesill has explained in his writing about the National Security Council, “Better decisions tend to come from including the right people at the right time, evaluating the best information and advice, allowing a variety of experts and institutional perspectives to be heard, identifying and testing assumptions, evaluating and refining alternatives, presenting several high-quality options for decision, and implementing a clear decision.”

But these procedural constraints, which the bureaucracy imposes on itself, are not just practical—they amount to a kind of “internal administrative law” that ensures fidelity to statute and the Constitution. Observance of such constraints is thus essential to the legitimacy of so much discretionary power. The leading administrative law scholar Jerry L. Mashaw made this argument decades ago based on his studies of the Social Security Administration. Self-imposed nonjudicial constraints on Social Security adjudication, he asserted, such as enlarging the fact-finding role of doctors and vocational experts, would enable the bureaucracy to make more “persuasive claims [that it is providing] an acceptable system of administrative justice.” Mashaw advanced his position in the context of a massive program of administrative adjudication regarding Social Security disability claims, where giving each of the many thousands of claimants the proverbial fair shake is the central, daunting challenge. But the quest for legitimacy is surely no less essential regarding decisions to use nuclear weapons.

As explained in a 2019 report by the nonprofit Nuclear Threat Initiative, “The internal executive branch authorities and procedures by which the United States may use nuclear weapons have developed over decades, primarily during the Cold War.” The precise details of what is called the Nuclear Command Control System are classified. The Pentagon, however, maintains a public Nuclear Matters Handbook, which explains that the NCCS has two components. One component focuses on nuclear weapons safety, security, and incident response. The other, nicknamed “NC3,” comprises the framework for “Nuclear Command, Control, and Communications,” and presumably covers the decision-making process to which Milley was referring.

The handbook offers a blunt statement of NC3’s dependence on sound process: “NC3 requires rigorous procedures and processes to support the President and the Secretary of Defense in exercising command authorities in the areas of situation monitoring, decision-making, force direction, force management, and planning to direct the actions of the people who operate nuclear systems.” These “rigorous procedures and processes” involve whoever is the chairman of the Joint Chiefs of Staff (or CJCS, as the chairman is known in this abbreviation-saturated domain): “The President bases this decision [to use nuclear weapons] on many factors and will consider the advice and recommendations of senior advisors, to include the Secretary of Defense, the CJCS, and CCDRs [Combatant Commanders].” In reminding other senior officials of his involvement in this process, Milley was breaking no new ground. He was not inserting himself into the process; for Trump or anyone else to exclude him would have been the violation.

Remarkably enough, there is no statutory framework to guide the existing decision-making system for the use of nuclear weapons. The national security scholar Rebecca Ingber has documented how frequently Congress in other areas seeks to manage by statute the executive branch’s internal decision-making processes involving foreign affairs. Process controls imposed by statute “include familiar tools such as agency design and procedural requirements, but they also include the designation and reassignment of decision makers within the executive branch.”

Yet the procedures and processes designed to ground a president’s decision to use nuclear weapons are currently the product entirely of presidential executive orders, directives, memoranda, and letters. Each president, to be sure, is free to revise a predecessor’s handiwork. Such revisions, however, are themselves undoubtedly the consequence of extensive internal deliberation, presumably involving the National Security Council. A president arbitrarily shredding existing practices in favor of a wholly ad hoc process would be undermining his or her own legitimacy.

Senators Chris Murphy, a Democrat from Connecticut, Mike Lee, a Republican from Utah, and Bernie Sanders, an Independent from Vermont, have proposed a National Security Powers Act of 2021 that would replace the 1973 War Powers Resolution with what looks to be a more robust set of constraints on all unilateral deployment of military force by the president, including force “deployed remotely.” Although the bill never mentions nuclear weapons explicitly, its terms would seem to require advance statutory authorization for the launch of a nuclear attack except to repel a sudden attack on the United States or to counter the immediate threat of such an attack. This would be consistent with a proposal by the law professors Bob Bauer and Jack Goldsmith in their widely noted 2020 book, After Trump: Reconstructing the Presidency. They suggest that Congress specifically declare that any use of nuclear weapons—unless it is a response to a sudden attack or another extreme circumstance—would amount to an act of war that only Congress could authorize.

A contrasting approach proposed by Dakota Rudesill, my colleague at Ohio State, would focus instead on structuring decision making within the executive branch. Except in the most exigent circumstances, Rudesill’s proposed Nuclear Forces Control Act would require presidential consultation with Congress—and would assign specific high-level executive officials to provide counsel to the president and to make reports to Congress essentially substantiating the reasonableness and legality of the findings the president would have to make in order to lawfully deploy nuclear force.

Embodying some such framework for decisional responsibility in statute would be a salutary legislative move. But any such statute, no less than the current tapestry of executive directives, would depend for its efficacy on norms of accountability and on the operation of conscience among key individuals within the executive branch, including the president. Federal courts would surely find “non-justiciable”—that is, beyond the power of courts to resolve—any dispute over whether the requisite advising, certifying, and consulting in fact occurred prior to a deployment of nuclear weapons. But judicial enforcement is not the point; what turns process into law—whether directed by Congress or designed by the executive branch on its own—is recognition by those tasked with participating in the process that their conscientious involvement is obligatory and not merely at the president’s sufferance.

When Milley testifies on September 28 to the Senate Armed Services Committee, he will undoubtedly be asked in detail about the headline-drawing events that Woodward and Costa have reported. The issues implicated in those events surrounding the health of military-civilian relations are serious—perhaps never more so than in the wake of a chief executive whose performance exposed what Bauer and Goldsmith call “the presidency’s vulnerability to dangerous excesses of authority and dangerous weaknesses in accountability.” If it turns out, however, that Milley was merely reinforcing his colleagues’ allegiance to the executive branch’s own clear rules for nuclear decision making, he was not insubordinate. He was faithfully executing the law.

Peter M. Shane

Peter M. Shane is the Jacob E. Davis and Jacob E. Davis II Chair in Law Emeritus at Ohio State University and a Distinguished Scholar in Residence at the New York University School of Law. His forthcoming book is Democracy’s Chief Executive: Interpreting the Constitution and Defining the Future of the Presidency. Follow Peter on Twitter at @petermshane