Foreign Relations of the United States, 1961–1963, Volumes VII, VIII, IX, Arms Control; National Security Policy; Foreign Economic Policy, Microfiche Supplement

274. Memorandum from Gen. Taylor to President Kennedy, July 2¹

July 2, 1962

In connection with considerations of NATO MRBMs, Berlin contingency planning and similar matters, many questions have arisen with regard to the transfer, release and use of U.S. nuclear weapons. For my own guidance, I asked a member of my staff, Major William Y. Smith, to research these matters and give me a paper setting forth the authority of the President and SACEUR/CINCEUR with respect to them. The resulting paper reaches the following conclusions:

I. The President

1. The President has authority to transfer U.S. nuclear weapons to allies in the event of hostilities, for release and use under such procedures as the President “deems necessary in the interest of national defense.”

2. Although the language of the Atomic Energy Act is not definitive on the point, the Executive Branch has agreed that the legislative history makes clear the view of Congress that the President does not have authority to transfer nuclear weapons to allies in peacetime, except by treaty, or an Executive agreement approved by a majority vote of each house of Congress.

3. The President may define in advance of the event certain contingencies under which he will delegate to a U.S. military commander authority to release nuclear weapons for use by U.S. forces.

4. The President, in time of peace, may make nuclear weapons available for use by a U.S. military commander while withholding the actual decision to use them.

5. a. For U.S. forces assigned to NATO, the President will release nuclear weapons to CINCEUR for use as directed by SACEUR on the authority of NAC or NATO member governments.

b. For non-U.S. NATO forces to which SACEUR has allocated U.S. nuclear weapons under NATO war plans, the President, in releasing nuclear weapons to CINCEUR, in effect authorizes CINCEUR to transfer the weapons to NATO members for use as directed by SACEUR on the authority of NAC or NATO member governments.

c. Exact procedures to be followed under a and b above in reaching a NAC decision to use nuclear weapons have never been officially defined.

II. SACEUR/CINCEUR

1. In any war in which NATO is engaged, CINCEUR, upon receiving authority from the President, will transfer certain nuclear weapons in U.S. custody to non-U.S. NATO forces, and will release others to U.S. forces. Both categories of weapons would be used as directed by SACEUR.

2. In time of war, SACEUR receives from the North Atlantic Alliance the authority to engage in military operations, and from the U.S. President, via CINCEUR, the transfer of all or part of the weapons allocated for SACEUR use.

3. Thus, if a selective use of nuclear weapons were necessary in support of Berlin contingency planning, the President would release nuclear weapons to CINCEUR for employment by SACEUR as directed by NAC or by NATO member governments.

III. Multilateral NATO Nuclear Force, or a European Nuclear Force

1. Without legislative changes or an international arrangement (as defined in the Atomic Energy Act), the maximum support the U.S. presently could give to a multilateral NATO nuclear force under the law would seem to be agreement beforehand to transfer to NATO, under certain contingencies in the event of hostilities, U.S. nuclear weapons allocated for NATO use. The decision to use the weapons then would be in the hands of the NAC or NATO member governments, and the U.S. President would have only the same degree of participation in that decision as the other heads of government.

2. Without legislative changes or an international arrangement, the maximum support the U.S. could presently give an independent European deterrent force would be agreement to transfer to the force, under specified contingencies in the event of hostilities, some U.S. nuclear weapons, and to abstain from any attempt to control the use of the transferred weapons.

The author of this study has done a conscientious job in arriving at the conclusions enumerated above but, by its nature, the study has no official validity. If you feel that it is important to establish these points in a more formal manner, I suggest that the Smith study be referred to Secretaries Rusk and McNamara for formal processing.

Maxwell D. Taylor

1. Delegation of authority in the transfer, release and use of U.S. nuclear weapons. Secret. 3 pp. Kennedy Library, National Security Files, Meetings and Memoranda Series, Taylor 6/62–8/62.