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Email to Senator Daines on Prior Authorization for Nuclear First Strike

Updated: Feb 21, 2020

Please see, below, an email I sent to to Senator Steve Daines on 30 April 2017. I requested him to support S. 200, which prohibits the President from first-strike firing a nuclear missile before Congress declares war.

Dear Senator Daines,

Would you please support S. 200? It prohibits the President from firing nuclear weapons at any nation before Congress declares war against that nation.

Living in Montana will soon put us in reach of the People’s Republic of North Korea’s nuclear arsenal. While Kim Jong Un will first fire at cities, striking Seattle would not only kill millions of American citizens, it would strike Montana as the winds would carry the radiation and nuclear fallout east.

The United States Constitution gives Congress the power “To declare War . . . .” Article I, Section 8, cl. 11. Although it also designates the President the “Commander in Chief of the Army and Navy of the United States,” Article II, Section 2, cl. 1., the preamble declares that the Founding Fathers established the Constitution only to “provide for the common defence.” No Founding Father intended the United States to make a first strike.

In the Federalist Papers, James Madison recognized the Constitution assigned the Legislative Branch responsibility for “[s]ecurity against foreign danger . . .” Federalist 41. He specified that “[t]he powers requisite for attaining [that security] must be effectually confided to the federal councils.” Id. That rational contrasts with Alexander Hamilton’s description of the Commander in Chief role. Hamilton’s statements refute the possibility that the President would have power to start a war.

He explained that the Constitution gave the President command over the military because “the direction of war most peculiarly demands those qualities which distinguish the exercise of power by a single hand. The direction of war implies the direction of the common strength . . . .” Federalist 74 (emphases added). Thus, the Founding Fathers made clear that only Congress could declare war, and the Constitution limited the President’s Commander-in-Chief powers to executing Congress’s directions.

But you need not follow my analysis for this proposition. The War Powers Resolution of 1973 already recognizes these limits. Pub. L. No. 93-148 (codified at 50 U.S.C. 1541). There, Congress stated: “It is the purpose of this joint resolution to fulfill the intent of the framers of the Constitution of the United States and insure that the collective judgment of both the Congress and the President will apply to the introduction of United States Armed Forces into hostilities, or into situations where imminent involvement in hostilities is clearly indicated by the circumstances, and to the continued use of such forces in hostilities or in such situations.” Id. § 2(a).

In the War Powers Resolution, Congress already prohibited the President from starting wars. 50 U.S.C. § 1541(c). S. 200 further clarifies that it also prohibits first-strike nuclear attacks.

Your people are afraid of the situation developing on the Korean Peninsula. I am afraid of the devastating consequences of nuclear war with the People’s Republic of North Korea. When humanity obtained the power to destroy all life on earth, its people assigned its governments a duty to preserve that life. The people of the United States lived in fear of mutually assured destruction for decades as it and the U.S.S.R. built massive nuclear arsenals. The whole world cheered when the U.S.S.R. dissolved into the Russian Federation. Recent developments have reignited fears.

Although North Korea could not destroy all of the United States, even one nuclear strike could kill millions of American citizens and rain radiation over thousands of square kilometers. If the winds are right, a strike on Seattle would bring nuclear fallout to my home town of Whitefish.

Would you please fulfill your Constitutional role in securing the nuclear peace that held during the Cold War? Would you please support S. 200?


Jared S. Pettinato

Update 4 May 2017

Senator Daines sent this response letter. Apparently, he does not understand the bill or my letter. He states that he opposes a nuclear “first use policy.” But this bill just requires Congress to declare war before the President can make a nuclear strike. I sent him this email today:

Dear Senator Daines,

I felt dismayed when I read your May 2, 2017, letter to me. It reflected an inaccurate understanding of S. 200 and my email. Those inaccuracies undermine my confidence in you as my representative because I expected more care and precision from a person whom Montana trusted with your responsibilities–especially on the topic of nuclear war.

In your letter, you stated that you opposed a “no first use policy” for nuclear weapons. You misunderstand S. 200. That bill does not prohibit nuclear first-strikes. It narrowly only requires Congress to declare war before the President can issue a nuclear first strike. It requires Congress and the President to follow the order of operations the Constitution defines. The Constitution requires Congress to declare war before the President can implement his or her Commander-in-Chief responsibilities.

Now that I have clarified how S. 200 operates it, will you please support it?

I would appreciate your help protecting Montana’s citizens and the Constitution that you swore to protect.

Sincerely, Jared S. Pettinato

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