It’s Debatable: Is the use of nuclear weapons immoral?

In this week's "It's Debatable" segment, Rick Rosen and Charles Moster debate the morality of the use of nuclear weapons. Rosen is the retired Glenn D. West Endowed Research Professor of Law at the Texas Tech University School of Law and a retired U.S. Army colonel. Moster is founder of the Moster Law Firm based in Lubbock with seven offices including Austin, Dallas, and Houston. 

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About 78 years ago, on July 16, 1945, mankind officially unleashed the nuclear genie in the bottle by igniting the first ever atomic bomb in the Jornado del Muetro desert in New Mexico. The product of the most brilliant physicists ever assembled known as the Manhattan Project, the so-called “gadget” actually worked. Incredibly, the founder of the nuclear feast – J. Robert Oppenheimer bet a fellow scientist ten bucks that it wouldn’t work. He was wrong.

At the time, 425 people watched in awe and disbelief as the equivalent of 25 Kilotons of TNT rose into a multicolored mushroom which literally created a false dawn. Many fell to their knees, others were elated, some described the hell unleashed on Earth as a religious experience of sorts. Oppenheimer uttered the famous words from the Bhagavad Gita – “Now I am become Death, the Destroyer of Worlds.”

Oppie was right. On Aug. 6, 1945, the United States under President Harry S Truman’s directive, detonated the second atomic bomb over the Japanese city of Hiroshima, instantly vaporizing tens of thousands of people including a young girl whose ghostly image was captured as a shadow against incinerated flesh. My sense is that she was skipping when the blast hit. All told (excluding subsequent radiation deaths) – 126,000 civilians were killed and 20,000 soldiers not including 12 allied prisoners of war.

The nuclear bombing of Nagasaki which occurred on Aug. 9, 1945, killed approximately 226,000 civilians including 160 enemy soldiers and 13 allied prisoners of war.

Critically, ole “Give em Hell” Harry Truman had no moral dilemma whatsoever in approving the use of nuclear weapons on the civilian populations of Hiroshima and Nagasaki. This was indelibly illustrated by his reaction to a White House visit after the devastation by none other than J. Robert Oppenheimer haunted by regrets who informed Truman that he had “blood on his hands”. Harry sent Oppie packing as he was summarily escorted from the Oval Office and commented that he never wanted to see that “crybaby ever again.”

It is patently immoral to use weapons of mass destruction such as nuclear weapons to target civilian populations. The tragic import of Truman’s decision to drop the atomic bomb on Hiroshima and Nagasaki was to legitimize the use of nuclear weapons to target civilian populations. Although civilians were certainly slaughtered in large numbers while accompanying the conventional bombing of ostensibly military targets during both WW-I and WW-II, particularly as exemplified by the fire bombing of Dresden by the Allies, never had a decision been made to target civilians exclusively as approved by Truman. In fact, the historic records make clear that Oppenheimer and company specifically advised on how to configure the atomic blast in such a way as to inflict the most pain, suffering, and death on the resident Japanese populations. The comparatively small number of enemy combat deaths buttresses this conclusion.

The tired rationalization for the use of the atomic bombs is that the devastation led to the almost immediate surrender of Japan and the millions of deaths which would have resulted had the war continued unabated. This, however, is a false extrapolation as the calculus is based entirely on the anticipated death of military personnel – not civilians. As callous as this might sound, wars result in military casualties which are expected.

This distinction is critical and the central point of this debate. Notwithstanding the legitimate goal of reducing the potential military casualties in WW-II, it is a false equivalence to throw defenseless women and children into the equation. The use of nuclear weapons to target civilian populations was a War Crime in WW-II and must be branded the same today.

Oppenheimer was right that he had blood on his hands and that all of us had “become death” from that fateful moment which lit up the New Mexico desert skies.

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I agree with Charles about the terror unleashed by the development and use of nuclear weapons; however, the nuclear “genie” is out of the bottle. The question is “what now?”

In 1996, the International Court of Justice issued an advisory opinion on whether the threat or use of nuclear weapons in any circumstance is permitted under international law. The Court did not find that international law proscribes the threat or use of nuclear weapons per se. It did hold that the principles of international humanitarian law applied to the use of such weapons, specifically (1) the protection of the civilian population and civilian objects and the prohibition of the use of weapons incapable of distinguishing between combatants and non-combatants, and (2) the prohibition on causing unnecessary suffering to combatants by using certain weapons. The Court observed that, “in view of the unique characteristics of nuclear weapons … the use of such weapons in fact seems scarcely reconcilable with respect for the requirements of the 1aw applicable in armed conflict.” But the Court noted that it “did not have a sufficient basis for a definitive conclusion as to whether the use of nuclear weapons would … be at variance with the principles and rules of law applicable in armed conflict in an extreme circumstance of self-defense, in which a state’s very survival is at stake.” Nor did the Court ignore the “policy of deterrence”—the threat of mutually assured destruction if a nation employed nuclear weapons.

The Defense Department’s position is that “nuclear weapons are lawful weapons for the United States. [The] law of war governs the use of nuclear weapons …. [N]uclear weapons must be directed against military objectives, [and] attacks using nuclear weapons must not be conducted when the expected incidental harm to civilians is excessive compared to the military advantage expected to be gained.”

Under contemporary international law, the attacks on Hiroshima and Nagasaki were patently unlawful—both cities had military objectives, but the harm to the civilian population was grossly excessive. But that was not the law in 1945. The debate about whether President Truman should have ordered the nuclear attacks on Japan has become a cottage industry. The traditionalist view is the bombings avoided a land invasion of Japan, which would have resulted in the loss of hundreds of thousands of American and Japanese lives. Revisionists believe the bombings were unnecessary: Japan would have surrendered even without an invasion. Both arguments are counterfactual: we simply don’t know what would have happened had Truman chosen another path.

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I read Rick’s rejoinder several times and cannot determine how he comes out on this topic. The same result applies to the institutions he references – the International Court and Department of Defense (DOD). Unfortunately, as is typical of bureaucratic determinations – the answer is as clear as mud – or should I say – nuclear waste – when it comes to any guidance afforded by the above entities.

Although the advisory opinion of the International Court concludes that “on view of the unique characteristics of nuclear weapons…the use of such weapons in fact seems scarcely reconcilable with respect to the requirements of the law applicable in armed conflict” – it leaves open a massive exception for self defense when the survival of a nation is at stake or the principle of deterrence.

The DOD determination is no better as it weighs the potential damage to civilian populations vis-à-vis the military objective to be achieved. Talk about double-speak.

Although the above declarations offer little guidance, they both consider the terrifying power of nuclear weapons and the necessity of avoiding the death of innocent civilians.

Having studied nuclear weapons and its international effects as a graduate student back in 1980 (and thereafter), I am intimately familiar with the destructive power of these weapons. I will state definitively that there is no possible way to limit the destruction to exclusively military targets. Any use of the weapons would instantly vaporize millions of innocent people. Those who were not murdered upon impact would perish in the coming days from radiation sickness.

To be more specific, the immediate impact of a nuclear weapon on a major city such as NY or Moscow would result in an intense fireball of superheated radiation hotter that the surface of the Sun’s 15-million-degree core. The blast area would extend out with a radius of approximately 15 miles. Anyone in the bullseye would be instantly killed. Those outside this area for another radius up to thirty miles would encounter a blast of radiation at hundreds of miles per hour.

The obvious result is that millions would die notwithstanding the military intention of destroying a narrowly defined area. It is inherently impossible to restrict the deadly effects of any use of nuclear weapons. This topic is extensively discussed in my recent book, So Far (2021 – Amazon Books).

There is no debate that the use of these weapons is immoral. I would also add that given the inability to limit the destructive capability of nuclear weapons, no possible beneficial military goal could ever be achieved.

Logically, the use of nuclear weapons cannot ensure the survival of any nation which possesses them. The only possible consequence of such usage would be to obliterate the civilian population of the nation which launched the first strike. I would posit that the massive death of such innocents (for purposes of revenge) is itself per se immoral.

Consequently, the only remaining question is whether the mere possession of these weapons will result in deterrence. Having studied this question, my rejoinder is that such deterrence is theoretically possible for a short time until it is toppled by mistake, miscalculation, or simply insanity. Deterrence will ultimately fail. We may be watching that play out in Ukraine.

Accordingly, as jarring as it may sound in the present international climate, the U.S. must do everything in its power to reduce the risk of nuclear accident and renew efforts to prohibit the use of these weapons of mass destruction.

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Charles’ first essay dealt with the horrors of nuclear war and the assertion that Truman was wrong in using atomic bombs. I agree with the first argument; the second is mere conjecture. Moreover, as lawyers we must acknowledge reality: nuclear weapons exist and neither their possession nor use against military objectives is unlawful. To target civilians, however, is both unlawful and immoral.

I recognize the terror of the threat of nuclear war. During the Cuban Missile Crisis in October 1962, I was a ninth grader at West Miami Junior High School, which sat adjacent to what was then the only north-south expressway in the city. I vividly remember watching military convoys moving south on the expressway and conducting “duck-and-cover” drills under our classroom desks. We knew that our desks could not protect us from a nuclear attack. We were frightened.

Importantly, the nation’s military doctrine does not encourage the use of nuclear weapons. Instead, “[t]he highest US nuclear policy and strategy is to deter potential adversaries from nuclear attack of any scale.” In other words, “US nuclear weapons and the associated capabilities needed to conduct nuclear operations are essential to an effective deterrent.”

Charles posits that deterrence will “ultimately fail.” He may be right. For example, rogue states like North Korea and Iran might initiate a nuclear conflict. But absent a strong, credible U.S. nuclear deterrent, the likelihood is heightened—these nations would have much less to lose from using nuclear weapons.

Charles asserts that “the U.S. must do everything in its power to reduce the risk of nuclear accident and renew efforts to prohibit the use of these weapons of mass destruction.” I do not disagree, but this statement does not change the equation. Unless nuclear-capable nations have a “Kumbaya” moment in which they suddenly destroy their nuclear arsenals, such efforts will certainly fail.

And the likelihood of worldwide nuclear disarmament is as remote as my chances of becoming the starting middle linebacker for the Miami Dolphins (a team I have followed since its inception), that is, none, nada, zip, zilch, zero.

I do not mean to be flip. I do not take the threat of nuclear conflict lightly; indeed, the threat seems to be growing. But I firmly reject the notion that the nation’s possession of nuclear weapons and its ability to use them as a deterrent are immoral. At present, they are the only means to prevent such a horrific conflict.

This article originally appeared on Lubbock Avalanche-Journal: It’s Debatable: Is the use of nuclear weapons immoral?