The United States has published its Nuclear Declaratory Policy

By Isaac Kennen

On Thursday, October 27, 2022, the Biden Administration published the United States' National Defense Strategy (NDS), which includes the Nuclear Posture Review (NPR) and Missile Defense Review (MDS). A key portion of the NPR is the United States' nuclear declaratory policy, which, on pages 7 and 8 of the NPR, is stated as follows (emphasis in original):

Achieve U.S. Objectives if Deterrence Fails.  We will maintain a safe, secure, and effective nuclear deterrent and flexible nuclear capabilities to achieve our objectives should the President conclude that the employment of nuclear weapons is necessary. in such a circumstance, the United States would seek to end any conflict at the lowest level of damage possible on the best achievable terms for the United States and its Allies and partners. As part of Nuclear Posture Review implementation, the United States will update nuclear weapons employment guidance in accordance with the policy and strategy established by the President following publication of this report.

United States nuclear weapons employment guidance is approved by the President, and all nuclear plans are reviewed and approved by the Secretary of Defense. These plans are prepared with advice from the Chairman of the Joint Chiefs of Staff, among other senior officials. Legal advice is integral to the preparation of these documents and includes review of their consistency with the Law of Armed Conflict (LOAC), which is authoritatively stated for DoD personnel in the DoD Law of War Manual. Longstanding DoD policy is to comply with LOAC in all armed conflicts, however characterized, and the DoD Law of War Manual recognizes that "[t]he law of war governs the use of nuclear weapons, just as it governs the use of conventional weapons."  In addition, longstanding U.S. policy is to not purposely threaten civilian populations or objects, and the United States will not intentionally target civilian populations or objects in violation of LOAC.

Declaratory Policy.  United States declaratory policy reflects a sensible and stabilizing approach to deterring a range of attacks in a dynamic security environment.  This balanced policy maintains a very high bar for nuclear employment, while also complicating adversary decision calculus, and assuring Allies and partners.  As long as nuclear weapons exist, the fundamental role of nuclear weapons is to deter nuclear attack on the United States, our Allies, and partners.  The United States would only consider the use of nuclear weapons in extreme circumstances to defend the interests of the United States or its Allies and partners. 

The United States will not use or threaten to use nuclear weapons against non-nuclear weapon states that are party to the [Treaty on the Non-Proliferation of Nuclear Weapons (NPT)] and in compliance with their nuclear non-proliferation obligations. For all other states, there remains a narrow range of contingencies in which U.S. nuclear weapons may still play a role in deterring attacks that have strategic effect against the United States or its Allies and partners.

Declaratory policy is informed by the threat, assessed adversary perceptions, Ally and partner perspectives, and our strategic risk reduction objectives. We conducted a thorough review of a broad range of options for nuclear declaratory policy - including both No First Use and Sole Purpose policies - and concluded that those approaches would result in an unacceptable level of risk in light of the range of non-nuclear capabilities being developed and fielded by competitors that could inflict strategic-level damage to the United States and its Allies and partners. Some Allies and partners are particularly vulnerable to attacks with non-nuclear means that could produce devastating effects. We retain the goal of moving toward a sole purpose declaration and we will work with our Allies and partners to identify concrete steps that would allow us to do so.

Given the unique and long-lasting destructive power of nuclear weapons, nuclear declaratory policy statements are exceptionally important. Further, given the importance of the United States in international relations (even Russian President Vladimir Putin describes the United States as "a system-forming power"), our nuclear declaratory policy statement is, perhaps, the most important of its kind. 

As Dr. Anna Péczeli, senior fellow at the Lawrence Livermore National Laboratory's Center for Global Security Research (CGSR) and an affiliate of Stanford University's Center for International Security and Cooperation (CISAC), has explained:

Declaratory policy and public statements about the potential use of nuclear weapons serve many important roles. They provide an assessment of the security environment and inform the public debate. These statements also enhance deterrence messages, and signal towards adversaries, and reassure allies and partners. On the global level, U.S. declaratory policy has the potential to shape international trends and norms, influence nuclear proliferation, and it may also affect the policy decisions of other nuclear possessors.

- U.S. Nuclear Declaratory Policy 2021: The Renewed Debate about Sole Purpose and No-First-Use, Annotated Bibliography (February 2021)

America's nuclear declaratory policy statement comes at a time of exceptional complexity, and one with a heightened threat for nuclear miscalculation. This is especially true given the conflict in Ukraine and the escalating nuclear employment rhetoric offered by Russia in relation to that conflict. As the Brookings Institution noted earlier this month, Russian President Vladimir Putin "seeks to put a nuclear umbrella over the [Ukrainian] territories that Russia has seized." Specifically, on September 30, 2022, Mr. Putin vowed, pursuant to Russia's own nuclear declaratory policy, to defend the four illegally seized Ukrainian oblasts "with all the forces and resources we have." 

From the start, Mr. Putin has cast his "special military operation" as being a conflict that extends well beyond Ukraine's besieged borders. He has characterized the conflict as being essentially a clash with the United States.  When first announcing the invasion of Ukraine on February 24, 2022, the Kremlin characterized that act as being necessary under Russia's right to act in self-defense (citing article 51 of the United Nations Charter) against what it views as "fundamental threats against our country." He lamented "the expansion of NATO to the east, moving its military infrastructure closer to Russian borders" but insisted "the problem, of course, is not NATO itself - it is only an instrument of U.S. foreign policy." Mr. Putin's speech asserted that Russia was merely responding actions by the United States which, through NATO, have inspired a feeling of "anti-Russia hostil[ity]" in "territories adjacent" to the Russian Federation.  In his February speech, Mr. Putin characterized his conflict as being against "the entire so-called Western bloc, formed by the United States in its own image and likeness[.]"

In a September speech, Mr. Putin declared that the seized Ukrainian obasts of Donetsk, Luhansk, Zaporizhzhia, and Kherson were now part of Russia, "forever," and he vowed that the Russian state would "defend our land with all the forces and resources we have[.]" Again, Mr. Putin characterized his country's aggression as actually being defensive in nature, and part of a broader struggle against "neocolonialist plans" by a "Western hegemony" determined to "create a Washington-Seoul-Tokyo military-political chain[.]" He specifically denounced "the deployment and maintenance of hundreds of military bases in all corners of the world, NATO expansion, and attempts to cobble together new military alliances[.]" He asserted that his fight was against a United States that has "occup[ied] Germany, Japan, the Republic of Korea and other countries" and which intends "to weaken its rivals, to destroy nation states." Mr. Putin characterized America's Allies and partners as mere "vassals" in thrall to "extremely aggressive propaganda[.]"

Most recently, in a speech delivered before the (Putin controlled) Valdai Discussion Club on October 27, 2022, Mr. Putin again characterized his country's invasion of Ukraine as being actually part of a broader conflict against "the West." In particular, Mr. Putin complained that, in his view, "the West, in recent years, and especially over the last months, has taken several steps towards escalation. . . . They are fueling the war in Ukraine, organizing provocations around Taiwan, [and] destabilizing the world food and energy markets."  

While at Valdai, Mr. Putin again rattled his nuclear saber as regards the war in Ukraine, asserting that, under its nuclear declaratory policy, Russia is authorized to employ its nuclear weapons "to protect its sovereignty, territorial integrity and to ensure the safety of the Russian people." The Russian leader duly denied that his country had any specific plans to use nuclear weapons in Ukraine, but repeated the Russian Defense Ministry's previous claim, from October 23, 2022, that Ukraine was preparing to explode a "dirty bomb" on its own soil, an attack which would then supposedly be attributed to Russia. In a joint statement issued on October 23, 2022, the governments of the U.S., France, and the United Kingdom rejected the "transparently false allegations the Ukraine is preparing to use a dirty bomb on its own territory" and retorted that the whole allegation was a "pretext for escalation by Russia."

Russia's framing of its aggression as being part of a broader global struggle against the United States, coupled with its escalating nuclear rhetoric, provides the principal context for the United States' nuclear declaratory policy. In that light, there are two key observations to be made about America's new nuclear declaratory policy statement:

First - the "fundamental role" of America's nuclear arsenal is to deter nuclear attack, but that is not the arsenal's only role. 

The trigger for the use of nuclear weapons by the United States is the occurrence of "extreme circumstances." The 2018 iteration of our nuclear declaratory policy, published by the Trump Administration, provided this definition of "extreme circumstances": 

Extreme circumstances could include significant non-nuclear strategic attacks. Significant non-nuclear strategic attacks include, but are not limited to, attacks on the U.S., allied, or partner civilian population or infrastructure, and attacks on U.S. or allied nuclear forces, their command and control, or warning and attack assessment capabilities.

- 2018 Nuclear Posture Review Report (p. 21)

Senior officials in the United States, and other countries, have also asserted that "extreme circumstances" could include the use of chemical or biological weapons, or a terrorist attack. Former U.S. Secretary of State James A. Baker III, for example, described one such interaction he had with Iraqi government officials prior to the start of the Iraq War:

I then made a point 'on the dark side of this issue' that Colin Powell had specifically asked me to deliver in the bluntest possible terms. 'If the conflict involves your use of chemical or biological weapons against our forces,' I warned, 'the American people will demand vengeance. We have the means to exact it . . . This is not a threat, it is a promise. If there is any use of weapons like that, our objective won't just be the liberation of Kuwait. but the elimination of the current Iraqi regime. and anyone responsible for using those weapons would be held accountable.' The President had decided, at Camp David in December, that the best deterrent of the use of weapons of mass destruction by Iraq would be a threat to go after the Ba'ath regime itself. He had also decided that U.S. forces would not retaliate with chemical or nuclear weapons if the Iraqis attacked with chemical munitions. There was obviously no reason to inform the Iraqis of this. In hopes of persuading them to consider more soberly the folly of war, I purposely left the impression that the use of chemical or biological agents by Iraq could invite tactical nuclear retaliation.

- James A. Baker III (U.S. Secretary of State); The Politics of Diplomacy—Revolution, War and Peace, 1982-1992 (New York: Putnam's Sons, 1995), at 359 

Similar statements regarding the willingness to use nuclear weapons in response to an attack using weapons of mass destruction have been made by the British:

The UK is prepared to use nuclear weapons against rogue states such as Iraq if they ever used 'weapons of mass destruction' against British troops in the field. . . . They can be absolutely confident that in the right conditions we would be willing to use our nuclear weapons.

- Geoff Hoon, UK Defence Secretary, UK 'prepared to use nuclear weapons,' BBC, March 20, 2002 

And the French (who, in addition to expressing a willingness to respond with nuclear weapons to the use of weapons of mass destruction, have also expressed a willingness to do so in response to terrorist attacks):

The leaders of states who would use terrorist means against us [France], as well as those who would envision using . . . weapons of mass destruction, must understand that they would lay themselves open to a firm and fitting response on our part. . . . This response could be a conventional one. It could also be of a different kind. . . . Against a regional power, our choice is not between inaction and destruction. . . . The flexibility and reaction of our strategic forces allow us to respond directly against the centers of power . . . all of our nuclear forces have configured in this spirit.

- French President Jacqes Chirac, Chirac: Nuclear Response to Terrorism is Possible, Washington Post, January 20, 2006 

In this light, the Biden Administration's adoption of the "extreme circumstances" doctrine as opposed to limiting U.S. nuclear use to a No First Use or a Sole Purpose doctrine is not unusual. It was likely a difficult political decision, nonetheless. The matter was likely made difficult by the fact that President Biden himself expressly campaigned in favor of adopting a Sole Purpose policy when he was running for President, and the Sole Purpose doctrine is baked into the Democratic Party's national platform, where it is stated as: "Democrats believe that the sole purpose of our nuclear arsenal should be to deter - and if necessary, retaliate against, a nuclear attack."

Accordingly, abandoning Sole Purpose was likely a unique political challenge for President Biden. But it was the right decision. Rejecting No First Use and Sole Purpose policies makes good sense given our current security environment. 

As the Nuclear Posture Review states, on page 11, it is essential that the U.S. arsenal be postured vis a vie the Russian Federation "to deter theater attacks and nuclear coercion of Allies and partners[.]" The key to achieving that effect, and thereby preventing the conflict in Ukraine from metastasizing throughout Eastern Europe, is for the United States to, as the Nuclear Posture Review puts it, ensure "the credibility of our nuclear forces to hold at risk what adversary leadership values most."  Only by maintaining a credible capability to come to the aid of our Allies and partners against nuclear or non-nuclear attack can we achieve the Nuclear Posture Review's objective of reducing Russian "confidence in both initiating conventional war against NATO and considering the employment of non-strategic nuclear weapons in such a conflict." 

Just the same, as the Nuclear Posture Review notes, again on page 11, it is important to make sure that the Peoples Republic of China understands "that the United States will not be deterred from defending our Allies and partners, or coerced into terminating a conflict on unacceptable terms." The Nuclear Posture Review anticipates that China could, in the future, as its nuclear arsenal deepens, be tempted to adopt a policy of nuclear coercion and limited nuclear first use. The best way to prevent, or mitigate the effect of, such a development is to ensure that U.S. nuclear declaratory policy allows us to similarly leverage our nuclear weapons in a manner that offers the most deterrence and assurance possible. 

Using our nuclear arsenal to deliver assurance to our Allies and partners that we would employ those weapons in their defense, in "exceptional circumstances," is preferable to having those Allies and partners develop their own nuclear arsenals. For example, as Dr. Tanya Ogilvie-White explained in a Chatham House research paper from 2020, in "the years following the Cuban missile crisis" Australia deprioritized its pursuit of "an independent nuclear weapons capability" and opened its doors to U.S. military facilities enabling "extensive intelligence collection, ballistic missile early warning, and submarine and satellite-based communications" in return for a promise from the United States to provide an extended nuclear deterrent "umbrella." Such arrangements benefit the world by preventing the proliferation of nuclear weapons, and they also benefit the United States by providing military capabilities that are essential to defending against threats that have a global reach.

Second - the United States has conditioned the use or threatened use of nuclear weapons on compliance with the Law of Armed Conflict. 

As the International Court of Justice (ICJ) has held, it is settled law that it is not per se unlawful to use or threaten to use nuclear weapons:

There is in neither customary nor conventional international law any comprehensive and universal prohibition on the threat or use of nuclear weapons as such[.]

- Legality of the Threat or Use of Nuclear Weapons, International Court of Justice Advisory Opinion, I.C.J. Reports 1996, p. 226, paragraph 105(2)(B)

However, the use of nuclear weapons, and the threat to use nuclear weapons, remains subject to the Law of War principles of necessity, distinction, and proportionality. [See Legality of the Threat or Use of Nuclear Weapons, ICJ Advisory Opinion, I.C.J. Reports 1996, p. 226, paragraphs 41-43, 78, 95-97, 105(2)(C), and 105(2)(D), see also Written Statement of the U.S. Government before the ICJ, 20 Jun 1995, paragraph III.C; see also Written Statement of Russian Federation before the ICJ, 19 June 1995, p. 18].

There are several aspects of the United States' new Nuclear Posture Review, including its declaratory policy statement, that concern the application of LOAC and warrant further discussion. The assertion that the United States would only employ nuclear weapons in "extreme circumstances" speaks to the principle of necessity, averring that, in the absence of such an extreme circumstance, the United States would not employ or threaten to employ nuclear weapons. The assertion that the United States would "seek to end any conflict at the lowest level of damage possible on the best achievable terms for the United States and its Allies and partners" also speaks to the principle of necessity, averring that the United States would seek to cause no more harm than is necessary to achieve the end of a conflict on the best achievable terms.

Similarly, the assertion that the United States will "not purposely threaten civilian populations or objects, and the United States will not intentionally target civilian populations or objects" speaks to the principle of distinction. The former Senior Policy Advisor to the Secretary of Defense, Dr. Matthew Kroenig, recently spoke about this promise to target only legitimate military targets when he testified before the Strategic Forces Subcommittee of the Senate Armed Services Committee on June 16, 2021:

The United States practices counterforce nuclear targeting. Other countries, such as China, are believed to practice counter value targeting. . . . The United States plans to use its nuclear weapons only against legitimate military targets, such as: enemy nuclear forces and bases, command and control nodes, and leadership sites. The United States practices counterforce targeting for legal, ethical, and strategic reasons. [A] . . . counterforce targeting strategy helps the United States remain in compliance with the Law of Armed Conflict, which requires countries to distinguish between military and civilian targets. 

In summary, the new United States nuclear declaratory policy statement reflects an effort to account for the current threat environment, and particularly a Russian threat that has employed escalating nuclear rhetoric and perceives itself to be in a conflict with "the West" generally, and the United States specifically. The declaratory policy prioritizes ensuring that the American nuclear arsenal continues to be postured to deliver an extended deterrence umbrella to our Allies and partners, which is an essential part of the bargain we strike with those Allies and partners in return for access to bases, infrastructure, and information that is critical for the "integrated deterrence" efforts that protect the American Homeland. The nuclear declaratory policy, and the Nuclear Posture Review more broadly, also seeks to continue binding the use or threatened use of nuclear weapons to the requirements of international law, and particularly the law of armed conflict. Doing so offers our best hope of containing, and mitigating the effects of, a nuclear engagement should the unthinkable happen. And, of course, it was likely politically difficult for a President from the Democratic Party to maintain the "exceptional circumstances" standard when the Democratic Party's platform rejects it. We should be glad for those efforts by the Administration to maintain the path of its predecessors - it is the path with the best chance to deter the sort of strategic miscalculation that could lead to tragedy.