Editor’s note: This post is the third in a three-part series entitled “Is it legal for the U.S. to attack Russia if Russia nukes Ukraine?” by Dakota S. Rudesill, Associate Professor at the Moritz College of Law at The Ohio State University. Image: photos_adil/stock.adobe.com
Part III: Alternatives to punitive U.S. military action against Russia for nuking Ukraine
This is the third and final installment of a three-part series that analyzes under U.S. law a potential U.S. military response against Russia if the Kremlin were to use nuclear weapons against Ukraine. Part I underscored that the risk of such a Russian nuclear attack is real and enduring, despite warnings to the Kremlin in fall 2022 from the Biden administration that seemed to suggest presidential U.S. willingness to use force against Russian forces in response. Part II explained why such a discretionary punitive U.S. attack, absent indication of an initiated or temporally imminent Russian attack on the United States, U.S. forces, or NATO allies, would not be legal under U.S. law unless authorized by Congress. Today’s concluding Part III will identify legal and readily available alternatives to U.S. kinetic retaliation. This post makes clear that Russia should expect that the U.S. response would impose on Russia a great cost for an atomic atrocity against brave, righteous Ukraine. A more extensive version of this analysis is forthcoming in The Ohio State Law Journal.
Available alternatives
Although Congress has not authorized, and therefore the president cannot initiate, war with Russia if Russia uses nuclear weapons against Ukraine, as things stand the president has a range of ready alternatives with considerable power to deter and punish. All should give Putin pause. They are all legal and could all be enhanced by the president or Congress. Some have surfaced in the public discussion, while others have not.
The first and easiest option is to continue to send warning signals to Russia, while maintaining some strategic ambiguity about what exactly the United States might do.
President Biden and his team can in good faith continue to threaten catastrophic consequences with as much or as little elaboration as they choose. Although senior administration officials have said they “have communicated to the Russians what the consequences would be,” they have probably left some ambiguity in these private conversations as well. And, even if the Biden administration agrees with the legal analysis I provided in Part II of this series, the president and his team—ideally with supportive statements from federal legislators—may still be as specific or ambiguous as they like in their public and private diplomacy. Specific or ambiguous threats could reasonably encompass any of the options I will list here. Alternatively, knowing that Congress could authorize force, U.S. officials could also threaten a limited but devastating military operation that could do any or all of the following: sink the remains of the Black Sea Fleet, clear the skies over Ukraine of Russian aircraft, or destroy Russian ground forces that are now dug-in in southern and eastern Ukraine and therefore sitting ducks for U.S. conventional precision weapons. In any event, credible U.S. threats can continue. U.S. government officials are under no obligation to clarify for the Kremlin exactly what actions they are willing to take under Article II presidential authority alone, how they plan to work the levers of American government, or how likely it is that Congress would actually pass a force authorization in response to a hypothetical Russian nuclear attack on Ukraine.
Diplomacy can also be combined with other overt and covert steps.
One of those is dramatically enhanced aid to Ukraine. President Biden’s current request for aid to Ukraine is stalled in Congress, a logjam likely broken by a Russian nuclear attack and images of dead, maimed, and traumatized Ukrainians. That package and other U.S. aid could includemore ammunition, better military gear (fighter aircraft and better weapons for them, advanced U.S. drones, more tanks, together with permission to use U.S. weapons in attacks deep into Russian territory), and expanded intelligence support (such as giving Ukraine information it needs to hit targets well inside Russia). Also possible are additional economic penalties (more seizures of Russian assets and accelerated expulsion of Russia from the global economy), and diplomatic initiatives (one thrust reportedly floated by administration officials as a response to a Russian nuclear detonation is pulling China, India, and other states throughout the world into the NATO-led diplomatic and economic response, worsening Russia’s increasingly debilitating isolation, on the theory that none of these states benefit from a world in which nuclear attacks become normalized).
Next up: three options involving use of force against Russia but not an overt U.S. military kinetic attack.
Let’s start with offensive cyber operations. Depending on the exploits USCYBERCOM and other agencies have and the effectiveness of attacks, U.S. cyber weapons could inferentially cause massive confusion, disruption, and damage to Russian computer networks and the systems that depend on them (military, intelligence, domestic security, political, and economic). Here, the president would be comfortably in Youngstown’s Category 1, because Congress has in a series of provisions over the past decade authorized use of cyber weapons against Russia in response to Russian predations against U.S. computer networks, our elections, and society. U.S. cyber offensives could be clandestine or overt and undertaken at a time and in a manner of the president’s choosing. As long as criteria and limits established in these statutory “Rules for the Government and Regulation of the [cyber] land and naval Forces” are observed (including compliance with the law of armed conflict and WPR), nothing prevents the president from including punishment of a Russian nuclear attack as one factor in planning cyber operations authorized by these provisions.
Next up is covert action. Here again in Youngstown Category 1, the president could under existing statute authorize a wide array of clandestine activities “to influence political, economic, or military conditions abroad” that the former KGB man running the Kremlin would find distasteful. These could be carried out inside Ukraine, inside Russia, or elsewhere worldwide. Based on the public record of past covert actions, activities here could include information operations, sabotage, paramilitary raids, assisting anti-regime elements within Russia, or other clandestine direct actions, perhaps involving Russians the CIA is actively trying to recruit in remarkably public fashion.
Another option for bringing force to bear on the Russian bear would be to encourage Americans on their own initiative to go to Ukraine and fight against the invaders Ukrainians, aptly term “Orcs.” Generally, the Neutrality Act of 1794 as amended bars Americans on their own accord from joining foreign wars in which the United States is not a belligerent, joining foreign militaries, or launching their own private military expeditions. As I have explained, however, the statute has an exception if Americans first leave the United States. During World War II and at other points in history, the U.S. government quietly encouraged Americans to leave the country to join foreign forces to fight authoritarians, or at least did not object to their doing so. The executive branch could do this nudge-wink routine again. Or Congress could pass a bill introduced in the last Congress that would waive the Neutrality Act regarding service on the Ukrainian side in this war. Other incentives might be provided as well to facilitate defense of Ukraine by volunteers from ranks of American veterans who have gained combat experience over the past two decades in Iraq, Afghanistan, and elsewhere.
A final potential alternative to a U.S. kinetic strike on Russian forces is direct military intervention by U.S. NATO allies. One option would be deployment of a non-U.S. NATO force into Ukraine not to fight Russia but to fortify a defensive line or demilitarized zone and prevent further Russian advances. Another would be U.S. NATO allies using force against Russia on their own.Of course, that could carry much the same escalation risk as a U.S. military strike, due to the U.S. commitment to defend its NATO allies. But, at least in theory, it is an option short of an overt kinetic attack by the United States.
Russia should remain deterred from a nuclear attack on Ukraine
Of course, President Biden may not actually be limited to the alternatives to a U.S. conventional attack on Russian targets that I have just outlined. Congress could authorize force. And the president may well act on his own Article II authority if Russia nukes Ukraine.
In that regard, I want to be clear: readers in Russia should have zero confidence that the Biden administration agrees with my conclusion in Part II of this series that the president cannot order military strikes on Russian targets without congressional authorization. I think I am right, but recall mention in my last post of how the Justice Department hedges a bit on this question. The president and his lawyers could reasonably disagree with me. I have not spoken with anyone in the Biden administration about this matter or about reported table-top exercises in 2022 that gamed out potential Russian nuclear moves and U.S. responses. I speak only for myself.
In short, to the extent that the Kremlin is scared and deterred by the Biden administration’s warnings to date, it should stay scared and deterred.
There are many other reasons, as well, for Russian strongman Vladimir Putin not to reach for his nuclear “button.” China and other states that still work with Russia have cautioned him against nuclear use. If he disregarded those warnings, Russia’s isolation would only grow. And a nuclear attack could badly backfire at home: such a terrifying move could heighten worries of nuclear war and anxiety about Putin’s judgment and mental state. That in turn could fuel civil unrest, and even motivate his half-wrecked military to remove him. Finally, a nuclear attack on Ukraine is a strategic dead end. The Ukrainian response to date to the Russian invasion and the British response to Nazi terror bombing are data points that suggest only fiercer Ukrainian resolve. Indeed, a Russian nuclear attack would underscore the war’s mortal stakes and Russia’s hideous imperial brutality. For its part, after crossing the nuclear threshold and not seeing Ukrainian capitulation, Russia could well be out of options. Because the prevailing winds are west to east, Putin could not keep pounding Ukraine with nuclear weapons without massive radioactive fallout risk to Russian troops in eastern Ukraine, to Russian territory and civilians, and to erstwhile friends Iran and China, whose continued help Russia needs desperately. Nor could such a “Mad Vlad” keep pushing the nuclear button without further driving up risk of his removal or assassination by alarmed domestic or foreign actors.
Conclusion
I could not be more sympathetic to Ukraine’s plight, more admiring of its resistance to an invasion of conquest launched to re-subjugate Ukraine to Russian domination, or more supportive of expanded U.S. aid to Ukraine. Russian nuclear use would only further underscore the monstrousness of Russian war aims and methods, the righteousness of the Ukrainian cause, and the urgency of continued and expanded global support for Kyiv.
Those are moral and policy thoughts. They are distinct from the legal question of whether the president could—without congressional authorization and without clear indication of an impending follow-on Russian armed attack on U.S. territory, forces, or allies—launch a U.S. military assault on the military of a peer nuclear power that has attacked a third party not in NATO. I think the answer to that question is plainly “no.” Thankfully, ready legal alternatives exist.
Our Constitution and the rule of law, like the futures of our nation and human civilization more generally, depend on the constitutional conscience of decision-makers and their advisors. Ethos and integrity matter here more than formal processes, more than the textually undefined constitutional terms “declare War” and “Commander in Chief,” and much more than textually absent concepts such as anticipatory self-defense. By all indications, President Biden is a person of deep constitutional conscience. It is my hope that he would agree with my analysis of the use of force framework as applied, and—absent an initiated or temporally imminent attack from Russia—look to alternatives to an overt U.S. military attack on Russian military units or territory should Russia carry out an atomic atrocity against Ukraine.
Dakota S. Rudesill is an Associate Professor of Law at the Moritz College of Law at The Ohio State University. You can find his scholarship here at SSRN and follow him on Twitter/X.
An earlier version of this blog post misstated when the Biden administration issued warnings to the Kremlin. It was in fall 2022, not last fall.