ARMS-D-Request@MIT-MC.ARPA (Moderator) (12/13/85)
Arms-Discussion Digest Thursday, December 12, 1985 5:13PM
Volume 5, Issue 54
Today's Topics:
more on the launch on warning debate...
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Date: Tue, 10 Dec 85 17:02:41 EST
From: Herb Lin <LIN@MIT-MC.ARPA>
Subject: more on the launch on warning debate...
here are more excerpts from my discussion with Cliff.
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Date: Tue, 10 Dec 85 17:02:50 EST
From: Clifford Johnson <GA.CJJ at Forsythe>@MIT-MC.ARPA
Subject: [J.JPM: LOW Discussion]
REPLY TO 12/04/85 08:36 FROM LIN@MIT-MC.ARPA: [J.JPM: LOW Discussion]
Herb:
Thanks, you may wish to forward online version of oral argument to
Jim. The court was surprisingly firm towards Weinberger's attorney,
giving me a measure of hope for the second round.
The political question dcotrine was the grounds on which the case
was first dismissed by the District Court. The NInth Circuit
ocerturned this decision (didn't "reach" it) in dismissing the case
for want of jurisdiction. My briefs addressed therefore focused on
the political question doctrine, with extensive citations. It's
clear that the courts could act, if bold enough, but of course I
expect the catch-22 response that LOWC's a secret when/if I refile
alleging the thing exists rather than it's just a threat. It is
important to note that I'm not saying Congress can't authorize LOWC.
Cliff
****************** CAN A COMPUTER DECLARE WAR?
Below is the transcript of a court hearing in which it is was argued
by the Plaintiff that nuclear launch on warning capability (LOWC,
pronounced lou-see) unconstitutionally delegates Congress's mandated
power to declare war.
The Plaintiff is a Londoner and computer professional motivated to
act by the deployment of Cruise missiles in his hometown. With the
advice and endorsement of Computer Professionals for Social
Responsibility, on February 29, 1984, he filed a complaint in propria
persona against Secretary of Defense Caspar Weinberger seeking a
declaration that peacetime LOWC is unconstitutional.
The court comprised judges Ferguson, Norris, and Wiggins.
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT (San Francisco)
CASE 84-2495: Clifford Johnson, Plaintiff-Appellant
v.
Caspar Weinberger, Defendant-Appellee
Appeal from dismissal by the District Court July 18, 1984.
July 10, 1985
M O R N I N G P R O C E E D I N G S
THE COURT: I'll call the calendar as it's listed on the pink
sheet.
Johnson vs. Weinberger, you may begin.
MS. BRISSON: Good morning, Your Honor.
My name is Claudia Brisson. I'm the attorney for the plaintiff,
appellant Clifford Johnson in -- I am here appearing for oral
argument. Mr. Johnson has brought a complaint seeking delaratory
judgment that Launch on Warning Capability is unconstitutional.
THE COURT: I have to tell you and everybody else who will be
speaking today that the acoustics are terrible in this room. And
that is not a microphone. So everybody is going to have to speak up
loudly.
MS. BRISSON: All right. Thank you.
THE COURT: Sure.
MS. BRISSON: The issues before this court today are two.
One: Did the lower court error in ruling that Mr. Johnson's complaint
was not justiciable? And two: Does the plaintiff have a standing to
bring his complaint?
Before we address the issues on appeal, we must understand the
pleadings and proceedings below. The complaint seeks declaratory
judgment that Launch on Warning Capability is defined as "Any set of
procedures whereby the retaliatory launching of nuclear missiles may
occur both in response to an electronically generated warning of
attacking missiles, and prior to the conclusively confirmed commence-
ment of hostilities with any state presumed responsible for said
attack." Actual hostilities here means actual fighting, be it guns
or nuclear warhead. As such, the complaint is based on a factual
setting of peace in a time of peace. All facts pleaded in the com-
plaint must be deemed true for the purposes of the appeal.
Further, the defendant has not answered the complaint so that
not only must the facts be deemed true, but they remain uncontra-
dicted and undenied. This means that the implementation of Launch on
Warning Capability is openly threatened and certainly possible as
alleged in the complaint.
And secondly, the implementation of Launch on Warning gives rise
to a substantial probability of accidental nuclear war.
These facts plead concrete, imminent threat of injury not only
to the plaintiff but to all of us.
Preliminarily, factual considerations here are that we are liv-
ing in a time when the United States, Russia, other countries and
possibly terrorists may trigger the start of a nuclear war which
could end life as we know it here on earth. The 1980 Hart/Goldwater
report on recent false alerts from the nation's missile attack warning
system, which is attached to the complaint in the proceedings
below, tells us of the thousands of false alerts received by our
defense sensors each year. Quote, "All 3,703 of the routing missile
display conferences held in 1979 and through June 30, 1980, resulted
from actual pick up of warning sensors of some physical phenomenon or
reconfiguration of warning sensors. In addition to these inci-
dents, there is a possibility that a computer of a piece of communi-
cations equipment will transmit a false piece of information."
THE COURT: Counsel, it will help me decide the case if you'd
talk to me about Baker against Carr.
MS. BRISSON: Okay. Well, I could proceed to Baker vs. Carr.
I was going to discuss that in the context of its analysis in other
cases. In Baker vs. Carr __
THE COURT: Let's talk about the issue, not that case, the issue
of Baker vs. Carr.
MS. BRISSON: The first is a textually demonstrable constitu-
tional commitment of the issue to a coordinate political department.
In the cases of Mattola vs. Nixon, in Atlee vs. Laird, in Common-
wealth of Massachusets vs. Laird, this issue was not ruled to apply
to the challenges of the Vietnam War where the crux of the cases w
were: Did the president's war activities in Vietnam violate the con-
gressional power to declare war in that they had not declared war?
The end result of all those Vietnam War cases was that because there
was no conflict between the exectutive and the legislative branches
and there wasn't a consensus by the Gulf of Tonkin Resolution which
funded the activities that it was not justiciable, the court would
not intervene. The legislative had, in an implied way, approved the
president's activities. But derived, such as Mattola vs. Nixon and
Atlee vs. Laird, found the case justiciable and remanded to the lower
court for findings on the merits. And actually, even these cases
that refrained from deciding on appeal whether there was a judicial
issue, addressed the question of jusiciablility looked into what
congressional approval existed and really gave it a hearing on the
merits.
In the case of Launch on Warning, we do not have an explicit
congressional approval. We don't have any control by Congress as to
how the funds are being expended by the president except to the
extent that additional expenses today are being used to fund the
proposed Star Wars program. Yet what we have in existence right now
and how the president announces policies of threatening Launch on
Warning and how the Secretary of Defense also does the same is not
within the control of the Congress. We don't have any evidence to
consider on a consensus.
THE COURT: What is the relief the plaintiff seekds by his law-
suit?
MS. BRISSON: He seeks declaratory judgment that Launch on
Warning Capability should basically be renounced by the executive.
That Launch of Warning as an announcement of hostile threat and a
potential actuality is unconstitutional on the grounds that in atomic
(sic; a time of) peace, Launch on Warning unconstitutionally
surrenders Congress's power to declare war. Once, on the basis of
electronically received impulses of attacking missiles, set of
procedures go into effect and an actual launch is made to Russia or
whatever country is supposedly attacking, you have commenced the
nuclear holocaust. We can't do it. Yet it is openly threatened and
it might occur. Once you actually do that Launch on Warning, which
may even be on the basis of error, you've started a nuclear war
without a congressional declaration. We ask for a constitutional
analysis of what a nuclear war would be, requiring a congressional
declaration before we enter into a nuclear war in atomic (sic; a time
of) peace.
THE COURT Would the court's decree in this case be directed to
Congress to do something? Is that what you seek?
MS. BRISSON: We seek the declaration that the president's t
threat and the actual orders to set up procedures for Launch on Warn-
ing as an actual existence is unconstitutional and that once it
actually occured, it would occur before Congress could declare war.
THE COURT: I understand the premise. I'm just wondering where
we're going, if you want an injunction against the executive branch
from implementing what is now only a discussion?
MS. BRISSON: Yes. What is sought is a declaratory judgment,
not at this time an injunction. The plaintiff does not seek to, in
the lower court, prove what is actually in existence in terms of o
orders, sets of procedures to be followed, in terms of seeking an
injunction in those activities. What he wants is a declaration that
if this is ordered and if the proof had to be made, it is unconstitu-
tional. What he wants to prove if that it is threatened and that is
a public threat, that is public knowledge. If it is publicly threat-
ened and supposedly truly existing it is a set of procedures that w
will occur. Now, once you have the declaratory judgment, if those
members of the armed forces that are unconscientious about obeying a
judicial declaration feel ready to testify in an action for an
injunction, then an injunction could ensue on the basis of evidence
that could be presented. But Mr. Johnson does not seek to present
evidence by testimony of military persons of what orders they're
operating under right now. He seeks only on the basis of public
knowledge of what procedures are reported to be in existence, a
assuming that to be true. And at this time it's not denied.
THE COURT: I don't think I understand. You have no objection
that this is lawful? What would make it constitutional?
(Something missing.)
MS. BRISSON: It would basically throw out one part of Mr.
Johnson's argument, and that would be the removal of the -- well,
violation of Congress's power to declare war will be a moot point
under the rules of the Vietnam War cases. But the second point is --
and the basis of the argument -- is that it violates the constitut-
tional vestiture of the power in the executive to wage war by
delegating his power to a computer. And he argues it's an
unconstitutional designation of power, removing his ability to exercise
discretion.
THE COURT: Could Congress cure or not cure you objection?
MS. BRISSON: No. It would cure the objection of Article 1.
THE COURT: Congress could not cure all of your objections?
MS. BRISSON: Right. It could only cure the (not cure the
Commander-in-Chief objection).
THE COURT: It would be absolutely impossible in any circum-
stance to do what you're complaining about. Would there be any
circumstances in which there could be a nuclear strike by the United
States? Are there any circumstances in which you would accept a
nuclear strike on the United States?
MS. BRISSON: Well, the plaintiff does not want to accept any
nuclear strike but only -- we don't want to concede the problem.
THE COURT: I'm not talking about your personal theories, I'm
talking about your legal.
MS. BRISSON: Our legal theory defines itself within a specific
set of facts. And the facts are, there are not actual hostilities.
And that a Launch on Warning occurs prior to the confirmation of
actual hostilities. So we have no war. We are in the __
THE COURT: If there was war, then you would have not objection?
MS. BRISSON: Right. If there was a war, the complaint is no
longer applicable. We've defined Launch on Warning to be a set of
procedures occuring prior to any actual hostilities. And we are in
a time of peace.
THE COURT: As I read the complaint, you are not alleging that
a Launch on Warning Capability exists at this time, are you?
MS. BRISSON: Oh, we are.
THE COURT: That it exists at this moment? Or are you just
alleging that funds are being spent on the development of a Launch on
Warning Capability?
MS. BRISSON: No. We allege that it is openly threatened and
certainly possible.
THE COURT: Well, that's kind of conclusionary. I'm talking
about in fact. I suppose anything is possible, Counsel, but I have
to have something more concrete than that in terms of your factual
allegations. It is my understanding, from reading your complaint--
and would you correct me if I'm wrong -- that you're alleging that
this capability is being developed and at some point may be imple-
mented.
MS. BRISSON: Yes, it is.
THE COURT: But it is not implemented at this time.
MS. BRISSON: No. The complaint ulimately alleges and I think
that amendment may be necessary below, that Launch on Warning is in
existence. The capability is there. The set of procedures is really
a policy, and orders. And we have the equipment and the way they're
going to run this equipment is a matter of procedure and orders by
the executive.
THE COURT: Would it make any difference to yo whether the
missiles which are launched on warning are designed to intercept or
alternatively designed to impact the hostile country?
MS. BRISSON: Yes, it does make a difference. The complaint
is applied to retaliatory missiles not anti-ballistic missiles. He
speaks about your cruise and stategic missiles that are aimed to
destroy and kill rather than intercept of blow up something.
THE COURT: And I take it that you're not against any missile,
that any form of interception, even the Star Wars concept would be
permissible, and not subject to the rule that you're attempting to
enunciate?
MS. BRISSON: Right, yes. The Star Wars concepts are really not
within the scope of the declartion that he seeks.
THE COURT: All right.
MS. BRISSON: Thank you.
THE COURT: Thank you, Ms. Brisson.
MR. PENROSE: May it please the court, good morning. My name is
John Penrose. I'm an Assistant United States Attorney in San
Francisco representing defendant, Secretary Weinberger.
The issue, of course, in this matter is not whether Launch on
Warning Capability is the dumbest idea since the Dred Scott decision,
but rather whether the issue should be before this branch of govern-
ment at all. It is clearly proper for the District Court to have
dismissed this matter preliminarily under the political question
doctrine because it fails to clear virtually any of the tests set out
in Baker vs. Carr, which I think both sides agree is a seminal case
on what the political question doctrine actually means.
Of the tests --
THE COURT: I thought that the prosecution (sic; Constitution)
was clear that only Congress can declare war. That's not a political
question. That's a constitutional issue.
MR. PENROSE: Your Honor, I don't think that the issue presented
here is a declaration of war.
THE COURT: Well, indirectly it is. She says that Congress can
only declare war and certain acts that may take place by the execu-
tive exceed the executive's constitutional rights.
MR. PENROSE: Well, Your Honor, clearly the executive has the
power to fight the words (sic; wars) that are limited, or that is, to
commit military forces to combat in conflicts that are limited in
time and scope. And I believe the War Powers Act -- for example, to
pick one out of the air -- provides a procedure by which the
president is empowered to commit forces for a period of time, that
within that p period of time if he intends to go beyond the time
limit, he must m make a report to Congress, and Congress essentially
must ratify what he has done where he must withdraw those forces.
But the fact remains that he can commit forces for a limited scope of
time. It is a sad fact --
THE COURT: Is (sic; I agree the executive has the power to
fight wars that are limited, but would) the launching of a missile
with nuclear warheads be limited military action?
MR. PENROSE: It would be limited, I think Your Honor, in time,
yes. I don't think that --
THE COURT: It would be very limited in time for everyone.
MR. PENROSE: And I don't think that anybody envisions, who
seriously considers the question -- God forbid that nuclear war
should ever start -- but if it did, that it would be preceded by
resolutions, deliberation, a formal declaration of war by the houses
of Congress.
THE COURT: I'm not sure you're really dealing with the appell-
ant's basic theory, which is that with kind of capability that there
could be an act of war by this country without any decision being
made by anyone. That in effect, the decision whether to strike would
be turned over to a computer and no human being will be involved in
that decision. So the decision to implement this capability is in
itself a decision to engage in nuclear combat, if something happens
beyond the control of anyone, of any governmental leaders. And
that's effectively a declaration of war, and the president has
taken that without the approval of Congress. That's the theory, as I
understand it.
MR. PENROSE: Your Honor, I'm not sure that is the theory, but
I'm also not sure of Your Honor's question.
THE COURT: Well, the question is, if that theory is a valid
theory, then doesn't the implementation of this system require the
approval of Congress?
MR. PENROSE: The implementation of the Launch on Warning Cap-
ability would necessarily have the approval of Congress, because
Congress is funding whatever research and procurement is involved in
acquiring that capability, if in fact the executive and the military
are acquiring that capability.
THE COURT: There's 20 million cases on the books. The constit-
ution says, merely because Congress appropriates money is not con-
gressional approval of anything. Now the question really is, what is
your definition of politics? The Court should not engage in pol-
itical affairs? The declaration of war is a political question?
MR. PENROSE: Yes, Your Honor, I believe it is.
THE COURT: What's your definition of a political question?
MR. PENROSE: My definition of a political question is: Does
it meet any of the tests set up by Baker vs. Carr? Is it an issue
referred by the consititution to a coordinate political department by
a textually demonstrable commitment within the constitution? I
believe this case clearly is. We're dealing here with military, dip-
lomatic affairs.
THE COURT: It says only Congress can declare war. You talk
about anything which is strict interpretation is that, or anybody e
else. It says only Congress.
MR. PENROSE: Your Honor, I respectfully submit that their case
does not present an issue concerning Congress's power to declare war.
The plaintiff's theory says, concedes in fact, that the president has
the power to launch missiles. And that their theory is that it is
somehow repugnant to the consititution that the president should be
able to launch missiles before incoming missiles have actually been
confirmed as impacting on United State's soil or alternatively, that
the president has, under certain circumstances, delegated to com-
puters or some sort of electronic sensors the decision to signal the
launch of the American missiles. But plaintiff's theory does not
attack the president's essential authority to launch the missiles
under certain circumstances absent the declaration of war. That
issue is not presented in this case, I submit to Your Honor.
It would seem to me that to answer your earlier question, which
is, what is a political, question from the standpoint of the Secr-
retary, that as I did say the first standard of Baker vs. Carr here
is not cleared by the plaintiff. And the first standard is, have
military and diplomatic affairs clearly been referred by the con-
stitution to the executive and the legislature? The answer there is
clearly yes, and the answer there also is that the matter of a Launch
on Warning Capability is clearly that of a military and diplomatic
affairs nature.
THE COURT: Counsel, is it the Government's position in this
case that Article 3 does not confer upon the judicial branch the
power to decide the question whether the president has made a dec-
laration of law (sic; war) unconstitutionally?
MR. PENROSE: I'm sorry, Your Honor?
THE COURT: This question is presented to an Article 3 court:
Has the president unconstitutionally declared war without the app-
proval of Congress? Does Article 3 give the federal judiciary the
power to address that constitutional question?
MR. PENROSE: I believe Article 3 gives the court the power to
decide whether or not the president is in fact causing the nation to
wager war without a declaration by Congress, yes.
THE COURT: And that's because of the judicial branch's power of
judicial review, wouldn't you say? That goes back to Marbury versus
Madison.
MR. PENROSE: I believe it would, Your Honor.
THE COURT: You're not taking the position that this court has
no Article 3 power to decide whether in an actual case of controversy
the president is or is not acting in compliance with the constituu-
tion?
MR. PENROSE: I'm not saying that this court, presented with the
case in controversy with the appropriate facts, that it would not h
have constitutional authority to decide that issue.
THE COURT: So there must be some prudential limitation on that
power that you were asking us to exercise in this case.
MR. PENROSE: Certainly, Your Honor, the courts have the power
to adjudicate separation of powers questions. And if the executive
was going beyond the power vested in it by the constitution to
engage in military affairs in the form of a protracted war which went
beyond the boundaries of the War Powers Act and went beyond the b
boundries of Article 3 military power, and in the face of resting
Congress which refuse to declare war and maintained the declaration
was constitutionally required for the continued prosecution of that
war, I can not say to this court that in no such case would the c
courts have jurisdiction to resolve the issue. But that's not what
I'm saying here.
THE COURT: I hate to interrupt you, but since you interrupted,
I've just had a musing about this suggestion that the rule is one for
all times and all places.
Let's suppose we were back (at Pearl Harbor) in 1940 or thereabouts
and a large n number of aircrafts, foreign aircrafts owned by a
nation which in the United States had great tension at the moment,
flew over our soil and they were identified as bomber aircrafts. You
understand that the constitution would require that the bombs be
dropped on our soil; t that Congress be convened to consider that
event before the president could order interceptors in the air to
shoot at the airplane? Do you understand the constitution may
require that?
MR. PENROSE: I understand the constitution would not require
that.
THE COURT: And in response to that event, which may have
occurred, that the constitution limits the power of the Commander in Chief
to take out the field from which the aircrafts were launched on
foreign soil without convening Congress?
MR. PENROSE: The constitution would not so limit the executive
in that situation.
THE COURT: Now, those may be highly unrealistic examples in the
modern world, but what we have alleged in the complaint is that
missiles may exist which can travel the distance from their point of
launch to the U.S. in a matter of minutes. And that because of that
brief time span, there isn't an opportunity for human judgment to
react to the events, (and that the executive branch were studying
some form of computer printout to read the event. Machines can make
mistakes and) we are not perfect. That's the one part of the lawsuit
I tend to accept at face value. And that we may in fact respond to a
nonattack. In short, we'll start the war rather than defend
ourselves. That's the fear of everybody. Now, I gather that this is
based on some constitutional mandate that the executive b branch is
precluded from studying the issue, and if funded by Congress, from
implementing the technology to carry out such plan.
MR. PENROSE: That is plaintiff's theory, Your Honor.
THE COURT: That's mandated by the Constitution of the United
States.
MR. PENROSE: That is clearly and inescapably (what the
Plaintiff is saying), Your Honor. That a submarine-launched missile
laying off of Washington, D.C. would lob a missile in, it would
impact in three minutes this year, maybe 90 seconds next year, and
that the constitution would prevent the executive and the legislative
from working together to build some sort of a capability which might
at least give rise to a consideration on the part of hostile foreign
powers that the United States nevertheless could respond to this
so-called decapitaiton type of attack. That's the plaintiff's
theory.
THE COURT: I think this may be beyond my capability which r
really raises the political question issue, but I would think that
the presence of the technology to respond would be a powerful deter-
rent from shooting in the first place.
MR. PENROSE: I should think so exactly, Your Honor, and I
believe Judge Ferguson raised the issue in discussing the matter with
plaintiff's counsel of the first strike capability or policy. And as
I understand it, it is the United States' policy not to say that they
will never make the first strike.
Now, the reasons for that are widely discussed, widely disagreed
about, and are defended in part on the proposition that this leaves
uncertainty in the minds of hostile foreign powers as to what our
intentions actually might be in certain strategic and tactical
advantages and safeties that we otherwise wouldn't have.
THE COURT: Well, we should never, I think, lose sight of the
fact that judges and politicians ultimately wage war. Machines wage
war and they are capable of error. I think the problem here, if t
there is a problem, is the plaintiff's concern that the machines are
not perfect. They're fallible. Well, that's the truth with respect
to every machine we use, including automobiles and whatever.
MR. PENROSE: Yes. Your Honor, I will take your comment a mo
moment ago as a cue to get to the second standard of Baker vs. Carr
which I think is clearly --
THE COURT: Your time is up, Mr. Penrose.
MR. PENROSE: I will wrap it up, Your Honor. Clearly this case
presents lack of a judicially discoverable, managable standard for
resolving the lawsuit.
THE COURT: We understand your position.
MR. PENROSE: Thank you, Your Honor.
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End of Arms-Discussion Digest
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