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Legal Experts Advise Mattis on Limits to Presidential War Powers

WASHINGTON, D.C. --  A bipartisan group of experts--including former Members of Congress and scholars of both constitutional and international law--today sent Defense Secretary James Mattis a letter underscoring the limits on the power of a president to order a nuclear strike absent congressional approval. These limits have taken on increased urgency in recent days, as rhetoric between the United States and North Korea continues to escalate.

During a question and answer session at a speaking engagement last month, Admiral Scott Swift, commander of the U.S. Pacific Fleet, invoked the principle of civilian control when stating he would comply with a hypothetical order from the president to carry out a nuclear strike against China. However, as the letter emphasizes, that mindset is flawed: "the principle is about limiting the role of the military, not enhancing the authority of civilian leaders; it is not meant as a blanket validation of all orders that may come from a Commander-in-Chief." Crucially, save for a narrow set of defensive actions, the Constitution assigns Congress the power and responsibility to decide on war.  The international law of war further proscribes permissible uses of force. 

"In these perilous times, it is vital for the military chain of command to be reminded of their obligations--not only to follow orders, but, when necessary, to question an order that is clearly unlawful," said David Skaggs, a former Marine Corps officer and Member of the House Intelligence and Appropriations Committees, who co-chairs The Constitution Project (TCP) War Powers Committee. U.S. law, including the Uniform Code of Military Justice, obliges officers to refuse unlawful orders.
Skaggs was joined on the letter by five other members of the TCP War Powers Committee: former Congressman Mickey Edwards (R-OK), who also co-chairs the Committee; former Library of Congress constitutional law specialist Louis Fisher; Fletcher School of Law and Diplomacy professor Mike Glennon; George Washington University Law School professor emeritus Peter Raven-Hansen; and Don Wallace, Jr., chairman of the International Law Institute at Georgetown University Law Center.

Read the letter here.

About The Constitution Project ®

Created out of the belief that we must cast aside the labels that divide us in order to keep our democracy strong, The Constitution Project brings together policy experts and legal practitioners from across the political spectrum to foster consensus-based solutions to the most difficult constitutional challenges of our time through scholarship, advocacy, policy reform and public education initiatives. Established in 1997, TCP is based in Washington, D.C.