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Balkinization Symposiums: A Continuing List                                                                E-mail: Jack Balkin: jackbalkin at yahoo.com Bruce Ackerman bruce.ackerman at yale.edu Ian Ayres ian.ayres at yale.edu Corey Brettschneider corey_brettschneider at brown.edu Mary Dudziak mary.l.dudziak at emory.edu Joey Fishkin joey.fishkin at gmail.com Heather Gerken heather.gerken at yale.edu Abbe Gluck abbe.gluck at yale.edu Mark Graber mgraber at law.umaryland.edu Stephen Griffin sgriffin at tulane.edu Jonathan Hafetz jonathan.hafetz at shu.edu Jeremy Kessler jkessler at law.columbia.edu Andrew Koppelman akoppelman at law.northwestern.edu Marty Lederman msl46 at law.georgetown.edu Sanford Levinson slevinson at law.utexas.edu David Luban david.luban at gmail.com Gerard Magliocca gmaglioc at iupui.edu Jason Mazzone mazzonej at illinois.edu Linda McClain lmcclain at bu.edu John Mikhail mikhail at law.georgetown.edu Frank Pasquale pasquale.frank at gmail.com Nate Persily npersily at gmail.com Michael Stokes Paulsen michaelstokespaulsen at gmail.com Deborah Pearlstein dpearlst at yu.edu Rick Pildes rick.pildes at nyu.edu David Pozen dpozen at law.columbia.edu Richard Primus raprimus at umich.edu K. Sabeel Rahmansabeel.rahman at brooklaw.edu Alice Ristroph alice.ristroph at shu.edu Neil Siegel siegel at law.duke.edu David Super david.super at law.georgetown.edu Brian Tamanaha btamanaha at wulaw.wustl.edu Nelson Tebbe nelson.tebbe at brooklaw.edu Mark Tushnet mtushnet at law.harvard.edu Adam Winkler winkler at ucla.edu Compendium of posts on Hobby Lobby and related cases The Anti-Torture Memos: Balkinization Posts on Torture, Interrogation, Detention, War Powers, and OLC The Anti-Torture Memos (arranged by topic) Recent Posts JFK and the President as the “Decider”
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Thursday, April 01, 2021
JFK and the President as the “Decider”
Sandy Levinson
For the Symposium on Martin J. Sherwin, Gambling with Armageddon: Nuclear Roulette from Hiroshima to the Cuban Missile Crisis (Knopf, 2020). I begin
with an anecdote of sorts: In October
1962, I was a first-year graduate student at Harvard, in the department of
government. My aspiration at the time
was to become a “defense intellectual”; I had written my senior thesis at Duke
on aspects of nuclear deterrence theory, and one of my heroes, from afar, was
Morton Halperin, who at the age of 21 or 22, had become a recognized figure in
the esoteric world of “nuclear theorists.”
So one of the courses I was taking was a “seminar” with Henry Kissinger. The scare quotes are intentional, inasmuch as
it included something like ninety students, and each week featured a
guest. Kissinger was a notably
indifferent teacher (though I did have a wonderful “seminar section leader,”
George Armstrong Kelly). It was perhaps
overdetermined that by the end of the year, I had migrated toward what became
my lifetime vocation as a student of American constitutionalism under the
tutelage of Robert McCloskey. I have
often described myself as the happiest Harvard graduate student I’ve known, in
large part because of McCloskey, who was everything as a human being that
Kissinger most definitely was not. But
that is not the anecdote, however relevant it is to my personal biography. So
the book almost literally begins by emphasizing the importance of deliberations
and decisions by obscure (to us) Soviet officers, Captain 2d Rank Valentin
Grigorievich Savistsky, Brigade Chief of Staff Captain Vasily Alexandrovich
Arkhipov and political officer Ivan Semyonovich Maslennikov. Their names are worth spelling out because,
as Sherwin writes, we might owe the fact that we are alive today because they
collectively in effect disobeyed a command from on high that might well have
triggered nuclear war by attacking a U.S. Navy vessel. .
“Trapped in a floundering Project 641 Soviet submarine, [Savitsky] will
be driven before sunset to a decision that, if executed, is certain to trigger
the nuclear war that Khrushchev and Kennedy are striving to prevent” (p.
10). But, of course, he chose otherwise. The very title of his book, including the
reference to “nuclear roulette,” captures the extent to which we may indeed be
simply the playthings of the gods, who might, as Gloucester suggests in King
Lear, simply “kill
us for their sport.” That that
ultimately did not occur in 1962 was not at all preordained. Though one might
focus on decisions made by the two key actors, John F. Kennedy and Nikita
Khrushchev, it is almost completely mistaken to believe that they in fact truly
controlled decisions made by multiple officials—their names known only to
specialists, if at all—across the world. Tolstoy knew this, and Sherwin
demonstrates it. Our futures were at
least as much in their hands. Indeed,
especially in the case of Kennedy, much of his time was necessarily spent
fending off the advice of the purported “wise men” he had called together to
form the EXCOM (the extra-constitutional “executive committee”) that met in the
White House over the now-fabled “thirteen days” (the title, of course, of
Robert Kennedy’s self-serving memoir of the episode). It is probably hyperbolic to describe some of
those “wise men” as unbridled lunatics, though Curtis LeMay comes close; it is
not, however, hyperbolic to describe many of them, including, say, Dean
Acheson, as recklessly inclined to go to war in Cuba, come what may, in order
to demonstrate American resolve against Soviet adventurism and, of course, to
make up for the undeniable fiasco that was the Bay of Pigs as almost the
inaugural episode of the Kennedy presidency. There
can be little doubt that Kennedy emerges as basically the hero of the tale that
Sherwin tells, not least because, as already suggested, many of the people he
surrounded himself with were decidedly less than inspiring in their zeal to
confront the Red Menace in Cuba with a show of force, come what may. Indeed, Kennedy was undoubtedly the big
winner of the affair, wiping out the image of feckless ineptitude that accompanied
the Bay of Pigs and then his disastrous encounter with Khrushchev in Vienna in
June, 1961, which may have encouraged the Soviet premier to embark on his
adventurism in Cuba. Sherwin
quotes Kennedy as saying, on October 16, 1962, at the very beginning of the
fateful “thirteen days,” that “After all, this is a political struggle as much
as military” (p. 204). He was referring,
no doubt, to the Cold War between the United States and the Soviet Union. But the reality is that Kennedy was also
deeply engaged in a domestic political struggle as well. Presidents rarely do well in mid-term
elections, which were coming up less than a month later, in November, 1962, and
Republicans, led by Senator Kenneth Keating of New York, were relentlessly
attacking Kennedy as basically a weak president in terms of standing up to the
Soviet challenge. Having narrowly won
the presidency in 1960, Kennedy had good reason to fear his prospects in 1964,
especially if the GOP were to nominate someone like New York Governor Nelson
Rockefeller, not yet tainted with his divorce and remarriage to Happy
Rockefeller. Sherwin justifiably
concentrates on the monumental great-power politics signified by Kennedy and
Khrushchev, but no one should be unaware that both leaders had to worry about
domestic politics as well. One might
well believe that Kennedy would have been re-elected in 1964, even if
Rockefeller had been the candidate instead of Goldwater, in part because of the
plaudits he won after his perceived triumph in Cuba, when, to quote Dean Rusk,
Kennedy’s resolution ostensibly caused Khrushchev to “blink.” Khrushchev, on the other hand, paid for his
willingness to appear the victim of Kennedy’s humiliation not with his life, as
might have been expected in the “old days” of Stalinism, but, most certainly,
with his job, from which he was ousted in 1964. What we do know is that Kennedy
remained a favorite of the American public, and Sherwin’s book is evidence of
the hold he continues to possess with regard even to historians who are
unafraid, as evidenced in Sherwin’s earlier books on the dropping of the atomic
bombs on Hiroshima and Nagasaki and on Robert J. Oppenheimer, to offer probing
criticisms of America’s highest leaders.
And, I must admit, I am persuaded by the book that we do have
reason to be grateful for Kennedy’s “grace under pressure,” to cite the
Hemingway quote that many of the Kennedy partisans were prone to use. One might well believe that almost any other
“leader,” including his Vice President Lyndon B. Johnson, one of the Cuba hawks
at the EXCOMM sessions, would have made worse ultimate decisions and perhaps
taken us into World War III.. But it is also true that I remain
something of a Kennedy and Cuban Missile Crisis “revisionist” even after
reading Sherwin’s monumental account.
Everyone seemed to agree that the missiles posed a vital threat to
American national security inasmuch as it would obviously take far less time
for a missile fired from Cuba to reach Washington, let alone Miami, than one
fired from the Soviet Union itself. But,
as I was learning during my brief career as a “defense intellectual,” so
what? If in fact the United States had a
secure “second-strike capability,” as Robert McNamara assured Kennedy we had,
then the relentless logic of deterrence, summarized in the acronym MAD
(mutually assured destruction) assured that any first-strike by the Soviet
Union, whether initiating in the Soviet Union or in Cuba, would be met with a second
strike by the United States that would obliterate the U.S.S.R. The missiles in Cuba did nothing at all to
weaken the second-strike capacity of the U.S.
From one perspective, then, the so-called “crisis” was all about
political “optics,” i.e., the ability of the Soviet Union to place its missiles
within 90 miles of Key West. Surely that
was unacceptable politically. But the
affirmative answer speaks requires that we ignore a certain notion of military
“reality.” And, even more to the point,
it requires one to ignore another political-military reality, much noted by
Sherwin, that the United States has with some insouciance placed its own
Jupiter missiles in Turkey, very near the Soviet border. Turkey, of course, had become part of the
NATO alliance as part of the effort to encircle the Soviet Union and prevent
any adventurism in Europe. And the
placement of threatening missiles very near the U.S.S.R. was conducive to the
strategy of containment. Cuba, of course, was (correctly)
viewed as having become a communist enclave because of the revolution led by
Fidel Castro in 1959. There is no
evidence that it was sparked by the Soviet Union, and historians continue to
debate whether a different, and more enlightened policy, by Presidents
Eisenhower and Kennedy, might have prevented the disastrous turn in Cuban-U.S.
relations even after Castro’s rise to power.
But, obviously, Kennedy had acquiesced in Eisenhower’s (and the
C.I.A.’s) decision to try to remove Castro by military force, and the result
was the Bay of Pigs. At that point,
Castro understandably sought protection from the Soviet Union, and the
U.S.S.R., understandably or not, was willing to offer such protection. Thus the placement of the nuclear missiles
and, just as importantly, the presence on the ground of Soviet military
officers who would necessarily be killed should the Americans attack. Just as American soldiers in Europe and Korea
were, in effect, “trip wires” against Communist aggression, so could Soviet
personnel become such trip wires in Cuba, preventing repetition of the Bay of
Pigs. Needless to say, such “rationalist”
accounts of the reality of the situation were unlikely to save the day against
Keating’s attacks, and Kennedy’s acquiescence in the missile emplacement would
have instantly been compared to Munich.
(That analogy, of course, applied to Vietnam, would ultimately wreck
Lyndon Johnson’s presidency. As Daniel
Ellsberg argued, no American president could afford to be seen as having
appeased Communist tyranny, let alone lost an actual armed conflict.) Balkinization generally focuses on
legal or constitutional questions rather than questions of “pure history.” So why should Sherwin’s book be of immense
interest to constitutional lawyers as well as more general readers (all of whom
should find the book absolutely riveting)? The answer is simple: The EXCOMM was, if not “unconstitutional”
(which it probably was not, given our tolerance of presidential “kitchen
cabinets” from the earliest days), then, at the very least
“extra-constitutional.” That is, at no
time during the thirteen days, did the President of the United States seemingly
feel a necessity to take into his confidence, and seek the advice, of elected
senators and representatives charged by the Constitution, among other things,
with deciding whether or not to embark on war.
Nor, of course, was there any public debate about whether “we” really
would all rather risk death rather than accept the existence of missiles in
Cuba. One might believe that this
allocation of authority is especially important with regard to a conflict that
might, if things go wrong, destroy what we like to think of as human
civilization. Ted Sorenson once wrote
that Kennedy had suggested, during the Crisis itself, that there was a
one-in-three chance that the U.S. “blockade” of Cuba, itself an act of war
under much conventional legal theory, would eventuate in a nuclear exchange
between the United States and the Soviet Union.
One might regard any such risk-taking as insane. But if one is a procedure-oriented lawyer, as
most lawyers are in fact are, one might independently believe that such a
decision ought not be left to a single United States President, even one who
has surrounded himself with ostensibly “wise” advisors (which Kennedy arguably
did not, save for Adlai Stevenson, a figure much derided by many Kennedyites
but a strong and admirable presence in Sherwin’s account). So it is not simply that the Crisis
can be viewed as one of the origin points of our belief in a truly imperial
presidency defined, in part, by a willful ignorance of what Congress might want
to say about matters of potential life and death. It also becomes an origin point, more
practically speaking, of our willingness to accept lying as a presidential
prerogative. That is, it appears clear
that two important reasons for the Soviet capitulation were, first of all, a
guarantee by the United States that it would not in fact repeat the attempt to
invade Cuba. Fidel Castro could be
assured of at least a certain amount of security against American intervention,
which in fact turned out to be the case.
Instead, he had to worry about mad C.I.A. assassination plots, and the
Cuban people had to endure a now-half-century-long embargo that certainly
diminished their standard of living.
Second, though, were back channel assurances that the Jupiter missiles
in Turkey would in fact be withdrawn, as they were. But, as Eric Alterman demonstrated in a book
presidential lying, Kennedy solemnly assured the American public that the
Soviet withdrawal was the result of the disciplined show of force by the
President and not attributable to backroom deals in which the U.S. itself made
import concessions. He was lying. Our willingness to overlook this aspect of
the crisis, and its denouement, is far more serious than our willingness to overlook
the extent to which Kennedy might well be described as a sex addict. One might be glad that Kennedy
became president instead of Richard Nixon.
One might focus on certain achievements of the Kennedy Administration,
such as the founding of the Peace Corps, as genuine long-term contributions to
both the world and to the United States itself inasmuch as it generated a cadre
of youngsters who knew much more about the world—and its privations—than did
their elders. Many of them devoted their
own lives to making the world—and the U.S.—better, undoubtedly inspired by
Kennedy’s rhetoric. But Sherwin’s book, for all of its
success in making us grateful that Kennedy, and not other American politicians
of the time, was President, also provides less reassuring lessons. John Kennedy, in his own way, was a powerful
transformative agent of our inchoate Constitution and of our understanding of
the role that a president would play in our collective lives. A full understanding of this aspect of the
Kennedy presidency would have to include emphasizing his charismatic
personality, his ability to use news conferences—not to mention the 1960
televised presidential debates—to his advantage, and what his widow Jacqueline
Kennedy identified (and helped create) as the “Camelot” aspect of the Kennedy
era. We live with them still, including,
most importantly, our willingness all too often to accept George W. Bush’s
self-description as the “decider” with regard to great issues of war and
peace. No self-respecting constitutional
order should put such power in the hands of one person, however charming they
might be. But it has most certainly
happened, and JFK is a major explanation.
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