But he forced the Air Force to face the question. We couldn't ignore the problem any longer. Although, as it turned out, we couldn't solve it, either.
If you think Hering's question is a relic of the Cold War, consider the situation now. Say you're a missile crewman today (remember, they're still down there, both the missiles and the "Missileers," no longer just missilemen), all briefed and ready to launch. Let's say you're at F.E. Warren Air Force Base in Wyoming, the place where some mysterious glitch caused 50 missiles to go offline last October. You know the missiles stopped talking to base. Stopped responding to all commands. And you've read about the way the Stuxnet computer worm demonstrated an ability to insinuate itself into the actual control systems of nuclear facilities in Iran and turn them to its own ends.
And you get a launch order. It looks like it's the real thing, it's all "authenticated." It directs you to retarget your "de-targeted" missiles and then tells you to get ready to launch. Should you entertain doubts? You know most of your fellow missileers (really, didn't someone in the Air Force realize how much this would sound like "Mouseketeers" in a Strangelovian way?) will follow orders and fire. If you don't fire it won't make much of a difference, a few million fewer dead among what will probably be tens of millions minimum. (The number of deaths that might result from a nuclear strike has been the subject of controversy. It might vary depending on conditions such as the height of the blast, but a minuteman missile carries a warhead at least 12 times the power of the Hiroshima bomb, which killed—again it's in dispute—around a 100,000 people in the first few days and many more over the years from radiation sickness and cancers. And a recent Scientific American study of the possible effects of a "small" nuclear war—say, between India and Pakistan—concluded that in addition to the immediate effects, the ash-shroud kicked up into the atmosphere by the blasts would chill and kill enough crops worldwide to starve 1 billion more people.)
Should you question the order to launch such an attack, not knowing for sure it doesn't come from a president off his meds? Or a cyberworm disguised as a president?
Do you have the right to question? Do you have the duty, under the Nuremberg precedent in international law, which denies a "just-following-orders" defense for genocide?
One would think so, since our policy of nuclear deterrence—a legacy of the Cold War—is based on threatening genocidal retaliation to prevent genocidal attack. Indeed, even if a retaliatory attack would be entirely pointless—indeed morally obscene—it's one that we're committed to carry out 24/7.
In the book I wrote, I focus on the astonishingly unexamined morality of retaliation that Maj. Hering-type questions open up. One of the most surprising discoveries I made was in my conversation with Moshe Halbertal, the Israeli military ethicist who said no—no nuclear retaliation is morally acceptable. I found myself in agreement. And you, dear reader, would you question such an order, like Hering or Halbertal, or just carry it out? Would you kill 20 million people to carry out a threat that failed?
There's no question the president now has just as much authority as he had then. You should read then-Vice President's Dick Cheney's declaration about the president's unchallengeable power to launch nuclear missiles whenever he sees fit.
Here's what Cheney told Fox News: "The president of the United State is now, for 50 years, is followed at all times, 24 hours a day, by a military aide carrying a 'football' that contains the nuclear codes that he would use and be authorized to use in the event of a nuclear attack on the United States. He could launch a kind of devastating attack the world's never seen. He doesn't have to check with anybody. He doesn't have to call the Congress. He doesn't have to check with the courts. He has that authority because of the nature of the world we live in."
There was a fascinating debate among constitutional law specialists on the Volokh Conspiracy blog following the Cheney statement, and, alas, from my reading of the cases cited, there was no definitive judicial limit to his power as commander in chief to avow he had no time to consult Congress for a declaration of war. No one could come up with a definitive constitutional refutation of this. If a president said he had intelligence of an imminent nuclear attack there was no provision requiring him to prove it to anyone else. Congress couldn't defund a missile once in flight. (Well, it could, but lawmakers would have better things to do at that point—i.e., run for the hills.)
In other words, what Richard Nixon said still holds true: Any president could, on his own, leave a room, and in 25 minutes, 70 million (or more than that) would be dead. Not likely but in the new, more unstable, multi-polar nuclear age we've entered, Maj. Hering's question about the instability or sanity of the president himself remains valid, as does the larger sanity question: Can any order to kill 20 million with the twist of a wrist be sane?
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Maj. Hering, I should emphasize, did not ask his question because he was some kind of peacenik or a pacifist. You wouldn't have seen him at a Jackson Browne no-nukes concert in the '80s. He had done multiple tours of duty in Vietnam, doing dangerous Air Rescue Service work, flying copters into live-fire zones to pick up the wounded and the dead. He hoped to make the Air Force his lifetime profession and was expecting a promotion to lieutenant colonel when he asked his Forbidden Question.
He asked his question, he later told the Air Force Board of Inquiry that heard his appeal, because his fidelity to his oath as an officer required him to carry out only "lawful orders." The Air Force maintained that the information he sought, about how he'd know a launch order was lawful, was beyond his "need to know."
To which Maj. Hering replied, in an interview, "I have to say, I feel I do have a need to know, because I am a human being." Yes!
"It is inherent in an officer's commission that he has to do what is right in terms of the needs of the nation despite any orders to the contrary," he went on. "You really don't know at the time of key turning, whether you are complying with your oath of office."
It was only by accident that I came upon Maj. Hering's story. I was flipping through the inside news pages of the New York Times back at the height of the Cold War and saw the following headline:
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