Executive Order 8807: How a Single Directive Monopolized Nuclear Armageddon Under the Executive
On the morning of August 9th, three days after the detonation of Little Boy above Hiroshima, Major Charles Sweeney was ordered to drop Fat Man on the second target city, Kokura. Japan had not responded to the first strike, and consequently, a second attack was deemed necessary. Ordained by President Truman, the city’s fate appeared sealed and the lives of its 130,000 residents wholly doomed. However, upon his arrival, Sweeney noticed that the city was enshrouded in a seemingly impenetrable bastion of clouds. He circled Bockscar high above the city for more than an hour with the bomb bay doors poised open, ominously dangling the aircraft’s plutonium payload. Sweeney waited for the clouds to dissipate for over an hour, but they never did. On that humid, summer morning, the unconscious forces of nature had intervened, reprieving the inhabitants of Kokura. Since he could not achieve a visual confirmation of the target city, he was forced to divert his course southward, to the alternate target of Nagasaki — where a total of seventy-five thousand would die instead. At 11:02, 40,000 in Nagasaki were vaporized in an instant, with the city’s mighty infrastructure completely razed. The earth, now blighted and irradiated, condemned even the survivors of the initial blast to an inescapable, painful death due to radiation poisoning. Despite the two nuclear detonations, the Japanese Minister of War urged his people to continue fighting. Japanese military tradition proscribed the act of surrender, condemning it to be as immoral as desertion. This code was so deeply embedded in the Japanese psyche that soldiers were known to swim out into the open sea to drown or even eviscerate themselves to avoid being captured alive. However, on August 14th, 1945, Emperor Michinomiya Hirohito countermanded his war minister’s decision, and Japan unconditionally surrendered. Indeed, in the face of defeat during battle, soldiers and civilians had emphatically leaped from cliffs in the emperor’s name, but in his formal declaration of surrender, Hirohito lamented that the enemy had indelibly shattered the precepts of war and, for the first time, used cruel bombs.
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America had mastered a new weapon, one which could mimic the fusion of our Sun’s infernal core and blast the Earth with winds stronger than Neptune’s. The casualties were numerous and global society had been irrevocably altered, for the world balked in the face of a weapon capable of wholly annihilating its creators. Many proclaim that the creation of atomic weaponry originated from the Manhattan Project, and while this is true, the United States’ initial push for the development of nuclear weapons can actually be traced back to Executive Order 8807 (herein referred to as EO 8807). This executive order formally established the Office of Scientific Research and Development — an agency tasked with researching nuclear fission for the purposes of weaponization. The order’s inceptive goal would eventually be realized, however the true gravity of EO 8807’s influence would reverberate throughout modern history, far past the climax of the war.
This paper argues that the specific language of EO 8807 empowered the Presidency to sequester the functions of the Office of Scientific Research and Development under his direct control, by minimizing oversight from Congress and the Judiciary. The implications of this directive brought the President far closer to ongoing nuclear research than the other two branches of government. Eventually, when the first nuclear weapons were finally constructed, the path already paved by EO 8807 allowed the presidency to wholly absorb the institution and assert a firm grip on their usage. While the president is the undoubted commander of the military, nuclear weapons are intuitively distinct from traditional weaponry like tanks, firearms or even conventional bombs — mainly due to their capacity to raze entire countries in seconds. Thus, in the special case of such a volatile weapon, many would agree that control should be diffused across a much larger sample of people, limiting the prospect of an impetuous strike. However, EO 8807 created a precedent which legitimized the domination of the nation’s nuclear stockpile by the president, a norm which would endure throughout American history. By the virtue of one executive order, the nature of American foreign policy would be irrevocably altered, and the executive would magnify its military strength far beyond the scope of any other nation. Not only did it engender a dangerous precedent of nuclear assault, EO 8807 inadvertently bestowed the might of America’s nuclear arsenal exclusively in the hands of one actor, the Commander in Chief.
On Executive Orders: A Dynamic Directive:
Before expounding the ramifications of EO 8807, it is pertinent to first examine the general utility of an executive order and the breadth of power which it unilaterally affords. Given that authority is vested in a single actor as opposed to a bilateral assembly, the Executive Branch has traditionally enjoyed a greater degree in policy-making freedom compared to its legislative and judicial counterparts. Thus, much of the executive’s potency is determined by the radiance of the president’s individual character. As William Howell noted in his prolific Power Without Persuasion, executive power is measured by each president’s skill, reputation, and prestige — coalescing in their unique ability to individually drive legislative agendas through Congress, bargain with bureaucrats, and breed loyalty within their specific administrations. Furthermore, such manifestations of governmental actions are only circumscribed by the efficacy of a President’s own charisma. Fittingly, for a branch vested with such political agility, its leader brandishes one of the government’s most obscure, yet versatile weapons — the executive order.
While there exists no statutory basis for the executive order, and consequently no legal definition, it can be generally said that executive orders are "intended to direct or instruct the actions of executive agencies or government officials, or to set policies for the executive branch to follow.” The potential applications of these directives are quite vast, and presidents have utilized this inherent elasticity to prescribe a wide range of policy ordinances, from the enduring policies of the New Deal to the forced desegregation the military. The executive order itself originated from a rather loose interpretation of Article II of the Constitution. Traditionally, presidents have maintained that the specific language of this article grants the executive express power to legislate any action necessary to preserve the vitality of the nation, so long as it does not contravene the provisions specific to the Constitution — and the Judiciary has largely upheld this interpretation, allowing this tool’s utility to augmented as the role of the President evolved. However, the scope of a president’s executive order is not limited to merely galvanizing policy directives to influence the agendas of subservient agencies. Historically, the equivocal nature of the executive order has also empowered the presidency to conquer new institutions under the domain of the executive or fasten its command over preexisting ones. The saliency of this capacity was highlighted by George Bush’s flurry of executive orders in the wake of the September 11th attacks, which consolidated and greatly expanded the executive’s jurisdiction over domestic terrorism. Indeed, the dynamism intrinsic to the executive order has allowed presidents to rapidly mobilize significant policy changes with minimal external intervention. However, this degree of policy-making autonomy has also alarmed critics to the potential profligacy of such a political device, since the obviation of abuse is contingent solely on the prudence of the incumbent.
Implications of a Lone Executive:
The unilaterality accorded by an executive order offers a considerably more efficient and fluid avenue for policy-making than the conventional route of pushing legislation through Congress. However, this boon to quick executive action also mirrors the directive’s greatest controversy. Indeed, concerns regarding the executive order’s partisan utility often question whether such a potent policy-making directive should be monopolized solely by a single actor. One of the most troubling aspects of the executive order is that it empowers the executive to circumvent traditional congressional procedure, especially in instances of severe gridlock. Such action undermines the basic need for bipartisan cooperation, intrinsic to the system of checks and balances, and it may even beguile the temptation for inimical abuse. The enormity of this possibility is even more compelling when considering some of the presidency’s more egregious executive orders. A conspicuous example of this is EO 9066, which authorized the indiscriminate incarceration of Japanese-Americans during World War II, despite their status as citizens. Fortunately, such extreme cases are rare given the democratic accountability of the office, however, even on a basic level, the degree of autonomy ingrained in the executive order can increase the chance of unanticipated repercussions. This latter concern is a far more realistic threat, for the dearth of intervention from other the branches magnifies the potential of this outcome. Executive Order 8807, the subject of this essay, is a prime example of this consequence, for its immediate purpose was clear and perhaps even necessary, however, its latent implications would redefine the role of the Commander in Chief and potentially endanger the security of the globe.
Executive Order 8807:
On August 2nd, 1939, President Roosevelt received the Einstien-Szilard Letter, urging the United States to develop a nuclear program, lest Nazi-Germany develop atomic bombs first. Persuaded by the urgency of the situation and the preeminence of the letter’s writers, Roosevelt signed Executive Order 8807 which formally created the Office of Scientific Research and Development (herein abbreviated as OSRD). The specific language of the order legislated that “There shall be within the Office for Emergency Management of the Executive Office of the President, the Office of Scientific Research and Development, at the head of which shall be a Director appointed by the President. The Director shall discharge and perform his responsibilities and duties under the direction and supervision of the President… [the Director of OSRD shall] initiate and support scientific research on the mechanisms and devices of warfare with the objective of creating, developing, and improving instrumentalities, methods, and materials required for national defense”. The specific language of the order entitled the president to independently appoint the head of OSRD, ensuring an intimate and confidential relationship between the office and the executive. This enabled OSRD to deviate from the typical mold of a governmental agency, both in its structure and authorizations. Firstly, the office was allowed to bypass traditional systems of congressional budgeting, for it was permitted to demand funding directly from the Congressional Appropriations Committee, significantly increasing its budget ceiling. Secondly, since it was under the direct scrutiny of the president, OSRD enjoyed an unprecedented level of autonomy in its research and in its acquisition of independent contracts and new patents.
Since the scourge of war demanded a heightened level of security, OSRD was enshrouded in secrecy, and its tasked research was largely insulated from the public’s gaze. The agency masqueraded as an outlet for miscellaneous military research, fronting novel developments in radar systems, proximity fuzes and hand-held weaponry, however, the office’s primary goal was indisputably to facilitate the development of a nuclear weapon. Deep within its most classified confines was the beating heart of the organization — the S-1 Executive committee, consisting of illustrious scientists like Ernest O. Lawrence, J. Robert Oppenheimer, and Harold Urey. This committee enjoyed the largest chuck of OSRD’s funding, and it was specifically tasked with researching nuclear fission. Indeed, the S-1 laid the groundwork for atomic weaponry, and it would later evolve into the historic Manhattan Project.
The Grave Imputation of Annihilation:
EO 8807 has largely been discarded from the annals of history, given the overt eminence of other contemporary executive orders. The specific provisions of the order were relatively straightforward, and its immediate scope was more restrained than some previous directives, however, when analyzing its underscored implications, it becomes increasingly indisputable that this decree played an eminent role in magnifying the presidency’s nuclear capacity. By absorbing OSRD under the absolute control of the president, EO 8807 created a norm of the executive independently overseeing all aspects of nuclear research. After the creation of atomic weaponry, this trend was largely left intact, and the president inherited direct jurisdiction over any potential launch. This potential was ultimately acted upon in Japan, further legitimizing a precedent for nuclear use by the president. The advent of the Cold War further cemented this convention, and the United States eventually formalized this system.
Indeed, EO 8807 had profound implications for the nature of power, for it laid the foundation for the presidency to eventually annex the nation’s entire nuclear arsenal under the executive’s domain, while simultaneously creating a precedent for its use. This outcome was neither anticipated, nor was it prescribed in the text of the order, however it bears grave implications for the potential of nuclear annihilation. The unforeseen consequences of EO 8807 catalyzed an overt change in the puissance of the president, by imbuing a single actor with an undue monopoly over the nation’s entire nuclear stockpile. The scope of this change also represented a dynamic restructuring of the balance of power between the three branches within the government. Nuclear deterrence now became a far more poignant tool for diplomacy than a threat of conventional war, allowing the executive to continually supersede Congress in international peacemaking and coercion, even after the passage of the War Powers Resolution in 1973.
In many ways, the issues spawned by EO 8807 mirror the same issues of unilaterality intrinsic to the executive order, itself. Both institutions vest a significant degree of political autonomy in a single actor, allowing an individual’s disposition and personal beliefs to determine policy change. The executive is inherently a more volatile institution than its counterparts, given the president’s status as a lone actor. As a result, the specific temperament of a president will often determine his proclivity to use of nuclear weapons. Instead of a discussed, bipartisan decision, nuclear weapons have the potential to be discharge due to one individual’s miscalculation or vexation. Luckily, such an event is yet to occur, but the potential of an irrational president is too serious of a possibility to simply ignore. Thus, the current system is both terrifying and unstandardized, especially when acknowledging a nuclear weapon’s capacity for destruction.
In the months leading up to the 2016 presidential election, an assemblage of over 50 national security advisors from former conservative administrations — ranging from Nixon to Bush — jointly signed an open letter addressed to the American populace. Its contents denounced Donald Trump as an individual with “dangerous qualities”, unfit to helm the might of the United States’ nuclear arsenal. Unbridled power of nuclear weaponry is a frightening though regardless of the incumbent president. Excluding the President, every other link the chain of command leading to a nuclear strike has fail-safes to prevent accidental launches or deliberate misuse. To name a few, the “two-person rule” requires a bipartite authentication of any nuclear launch order, and the Pentagon mandates a series of stringent mental, physical and emotional evaluations, which all nuclear weapons personnel are required to routinely pass in order to even come near a nuclear weapon. There is no similar restraint or filter on the president’s ability to order a strike. He possesses the authority to vanquish an entire continent without even consulting another opinion. The unilaterality of the executive order itself, combined with the specific structure of EO 8807, allowed for a fraught convention in which the necessity of discourse was overridden by the need for a quick response in the event of a nuclear attack upon the United States. Regardless of whether the latent outcomes of EO 8807 were contrived or accidental, such a system cannot stand. Times have changed, and so have the nature of our international conflicts. The U.S. is no longer under a constant threat of nuclear assailment as it was during the Cold War. In the modern era, the road to peace demand a new change in the United States’ nuclear command— the complete excision of one person’s unilateral ability to eradicate the human race.
- "Text of Hirohito's Radio Rescript." The New York Times. August 15, 1945. Accessed December 04, 2018. https://www.nytimes.com/1945/08/15/archives/text-of-hirohitos-radio-rescript.html.
- Sweeney, Charles W., James A. Antonucci, and Marion K. Antonucci. War's end: an eyewitness account of America's last atomic mission. New York: Avon Books, 1997.
- Howell, William G. Power without Persuasion: The Politics of Direct Presidential Action. Princeton University Press, 2003. http://www.jstor.org/stable/j.ctt15hvxnf
- Daley, Tad. Apocalypse Never: Forging the Path to a Nuclear Weapon-free World. New Brunswick, N.J.: Rutgers University Press, 2010.
- Funk, William F., and Richard H. Seamon. Administrative Law. 5th ed. New York: Wolters Kluwer Law & Business, 2016.
- Nelson, Michael. "Executive Orders." In The Presidency A to Z, edited by Gerhard Peters and John T. Woolley, 223-27. 5th ed. Thousand Oaks, Calif.: CQ Press/ SAGE, 2013.
- Kennedy, Joshua B. "“‘Do This! Do That! and Nothing Will Happen”: Executive Orders and Bureaucratic Responsiveness." American Politics Research 43, no. 1 (2014): 59-82.
- Exec. Order No. 8807, 3 C.F.R. (1941).
- Wellerstein, Alex. "Patenting the Bomb." Isis 99, no. 1 (2008): 57-87.
- Daniels, Roger. "Milestones in California History: Executive Order #9066 (Feb. 19, 1942)." California History 70, no. 4 (1991). http://www.jstor.org/stable/25158587.
- Sanger, David E., and Maggie Haberman. "50 G.O.P. Officials Warn Donald Trump Would Put Nation's Security 'at Risk.'" The New York Times, August 8, 2016, national edition, Politics section. Accessed December 7, 2018. https://www.nytimes.com/2016/08/09/us/politics/national-security-gop-donald-trump.html.
 Tad Daley, Apocalypse Never: Forging the Path to a Nuclear Weapon-free World, (New Brunswick, Rutgers University Press, 2010), 240.
 Daley, Apocalypse Never, 5.
 “Text of Hirohito's Radio Rescript." New York Times. August 15, 1945, https://www.nytimes.com/1945/08/15/archives/text-of-hirohitos-radio-rescript.html (accessed December 4, 2018).
 William G. Howell, Power Without Persuasion, (Princeton, Princeton University Press, 2003), 175-176.
 William F. Funk and Richard H. Seamon, Administrative Law, (New York, Wolters Kluwer Law & Business, 2016), 65.
 Michael Nelson, "Executive Orders." In The Presidency A to Z, ed. Gerhard Peters and John T. Woolley, (Thousand Oakes, CQ Press, 2013), 223.
 Howell, Power Without Persuasion, 2.
 Joshua B. Kennedy, “Do This! Do That! and Nothing Will Happen”: Executive Orders and Bureaucratic Responsiveness, (American Politics Research, 2014), 60.
 Roger Daniels, Milestones in California History: Executive Order #9066 (Feb. 19, 1942), (California History, 1991).
 Exec. Order No. 8807, 3 C.F.R. (1941).
 Alex Wellerstein, Patenting the Bomb, (Chicago, Isis, 2008), 65.
 Wellerstein, Patenting the Bomb, 66.
 Ibid., 66.
 David E. Sanger and Maggie Haberman, "50 G.O.P. Officials Warn Donald Trump Would Put Nation's Security 'at Risk,'" The New York Times, August 8, 2016, https://www.nytimes.com/2016/08/09/us/politics/national-security-gop-donald-trump.html.
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