ARMS-D-Request@MIT-MC.ARPA (Moderator) (12/04/85)
Arms-Discussion Digest Wednesday, December 4, 1985 8:56AM
Volume 5, Issue 41
Today's Topics:
More Launch on Warning
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Date: Tue, 3 Dec 85 21:34:41 EST
From: Herb Lin <LIN at MIT-MC.ARPA>@MIT-MC.ARPA
Subject: P.S. A question and a copy of the Complaint
The fact that the SIOP includes LOW capabilities is contained in
Senate Committee on Foreign Relations, "Nuclear War Strategy", Top
Secret Heading on 09/16/80. Sanitized and printed on 02/18/81, page
18. This reference is cited in Ball, "US Strategic Forces",
International Security, Winter 82/83, page 38.
Herb
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Date: Tue, 3 Dec 85 21:34:45 EST
From: Herb Lin <LIN at MIT-MC.ARPA>@MIT-MC.ARPA
Subject: The ultimate deterrent
REPLY TO 11/23/85 15:18 FROM LIN@MIT-MC.ARPA: The ultimate deterrent
The military retains several sets
of missile release codes for use if the President is unavailable.
"Unavailable" may mean if there isn't time to reach him.
It can also mean if he is killed.
We agree that there can be no unequivocal warning in the response
time. Even supposing the President were to make the launch
decision based on seemingly clear warning of attack, my argument
re "competence" does have legal weight. There's a legal doctrine
called the nondelegation doctrine, which would prohibit Congress
from delegating its war-declaring powers, and a first nuclear
missile launch would be a de facto declaration of war.
There is a tension between the authority of the Congress to declare
war and the authority of the President over the armed forces as
Commander in Chief. I think we would both agree that the President
has the authority as C-in-C to set standing rules of engagement for
the military that it can fire if fired upon, i.e., military forces
have the right to defend themselves.
The operative question is whether or not LOW is analagous to these
defensive rules of engagement. In a sense they are, because LOW is a
way of thwarting an enemy attack. In a sense they are not, because
they thwart it not be destroying the incoming missiles. I don't know
how to settle this one.
However, Congress (Atomic Energy Act, 1946) authorized the
President (and only the President) the use nukes as he saw fit
to protect the nation.
But to my knowledge, it did not explicitly remove his legal right to
to delegate military authority as he saw fit.
Setting aside the challengable question
of the constitutionality of this delegation, can the President
predelegate launch authority to the military, or, more generally,
are there special standards to be applied to a first nuclear
launch decision.
LOW does NOT involve a predelegation of authority to the military;
CINCNORAD tells the President missiles are heading for US MM silos but
have not yet exploded, and the President then orders a launch of the
MM missiles affected. Arrangements for what should be done if the
President is killed or is unavailable may, but that's not the issue
you are dealing with.
There's a presidential "subdelegation" doctrine which spells out
under what conditions the President may delegate a decision.
What is the basis for this doctrine? Can you describe it, or provide
a citation?
It
must be only to persons appointed by Congress, and notarized in
the Federal register. This has not been done with nuclear
weapons release.
Two issues arise here. Appointed for that purpose? (You do know, I
believe that all flag rank officers are approved by Congress, so they
all have some defacto Congressional appointment.) Also, the Congress
does not appoint anyone; the Senate advises and consents on people the
President appoints.
It is principal of law a proper decision implies a standard of
competence which may vary with the circumstances under which that
decision arises. I allege that a first nuclear launch decesion based
on possibly erroneous computer data is constitutes, at law, an
improper delegation of decisionmaking responsibility.
Delegation of what by whom to whom? If you mean delegation of the
power of war-declaration by the Congress to the President, I would
reply that given "unequivocal warning of attack", then no one would
deny that the President had the power as CinC to respond without
explicit Congressional declaration of war. Indeed, the Congress
itself recognizes this fact in a much less stressing situation in the
War Powers Act, in which the President has some time in which he can
commit US *ground* troops and other conventional forces without
Congressional approval, recognizing that the President may not have
time to ask Congress for a declaration of war. If it is willing to do
it then, it can certainly be presumed to do it under a threat of much
greater time pressure.
The problem I think you have to address (and have not yet done) is
what constitutes "unequivocal warning of attack". But you have to
show why the definition you choose (whatever it may be) is a problem
for the courts to decide rather than a technical judgment by the
President about what information he will deem adequate.
In other words, I think your approach is to say that the President is
not competent (I think I am using the term correctly here -- in its
legal sense -- maybe you need to provide me with a legal definition of
competence) to make the decision to launch on warning given that the
basis of his decision would be computer data that has some probability
of being erroneous. You would base this claim on the fact that such
an action would usurp the Congressional perogative to declare war.
However, you must address my objection, which is that your claim seems
to rely on the fact that computer data may be wrong. What if the data
were in fact guaranteed to be correct?
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Date: Tue, 3 Dec 85 21:34:51 EST
From: Herb Lin <LIN at MIT-MC.ARPA>@MIT-MC.ARPA
Subject: comments about Cliff's complaint.
Here are some comments on your note (Cliff's).
In the first complaint I complained of a "substantial
probability" of accidental nuclear war due to the "threat of
implementation of LOWC". I paralleled this in the brief by
addressing Pershing II deployments and Star Wars, both of
which threaten utterly-automatic retaliation at some future
date, justifying the use of "substantial".
Pershing II has zero LOWC in peacetime; SDI has no retaliation
capability at all. Please don't base your arguments on them -- I
think you will be totally shot down.
Had I addressed Minutemen, for which there is at this
time a continuous LOWC in operation, the court's may have
responded differently.
I don't know what it means to say that there is a LOWC "in operation".
They have always had the capability of being fired within a couple of
minutes or so of receiving the emergency action message. Is that what
you mean?
Bruce Blair agreed with me that the U.S. has a
"de facto" LOWC for Minutemen, which could execute decisionally
in "less than 15 minutes" in some contingencies.
NO. It has de jure capability, as described above. Rather, it is
Bruce's technical judgment that in order to ensure the utility of US
Minuteman missiles after the Soviets have initiated an attack on them,
the US would have to adopt a policy of launching them on warning of
that attack. BUT the President might also choose to ride out the
attack; that decision is his, and his alone (if he is not killed).
For example, he might decide to let the MM be destroyed; that is
certainly within his authority as CinC. Thus, in no way can it be
known in advance that the the missiles would in fact be launched on
warning.
There are "no procedural
barriers to a launch on warning" said Blair, and when discussing
the decisional chain, he reported the same basic procedures as in
Hart/Goldwater report, except that he hesitated, and then omitted,
the President himself, implying a realistic response would be
military rather than political.
If you mean that Blair says that the President would be bypassed in an
attack scenario, then I am very surprised; I worked with him
extensively this summer and he never made such a claim, though he had
many opportunities to do so. If this *is* true, then you have one
hell of a complaint which raises very very serious suspicions about
maintenance of civilian control over the military. I'm very skeptical
though.
He didn't seem to think there was much chance of an
accidental launch; I'm glad of that, but propose the allegation
that the probability is greater than zero. Could I take a poll
on that? I'm sure it's mathematically greater than zero, which
I believe triggers a declaratory judgment. If it became
"substantial", an injunction would be warranted.
What is a declaratory judgment? Why should p>0 mean that? Pls
explain.
Keep in mind that p>0 is too strict a criterion. If the probability
is such that one accidental launch can be expected in 10^10 years,
then no one will care. If rather it is one accident every 10 years,
then that's real trouble. It has to be quantified better than you
have done if you're trying to be intellectually respectable.
2. Herein, "launch-on-warning-capability" is defined to be any set
of procedures whereby the retaliatory launching of non-recoverable
nuclear missiles may occur both in response to an electronically
generated warning of attacking missiles and prior to the conclusively
confirmed commencement of actual hostilities with any
State presumed responsible for said attack.
You have to specify the chain of decision more precisely than this.
There is the National Command Authority between the launch and the
warning. To omit this is to leave yourself open to a broadside from
DoD. However, to include it substantially weakens your case.
5. The ESSENTIALLY autonomous character of launch-on-warning-capability
gives rise to a positive probability of accidental nuclear war due
to computer-related error.
Are you saying that it is autonomous because the time line is so
short? Or because the President acts on the basis of electronic
information? Or because you have omitted the President from the chain
of decision in (2). My point is that the use of LOW is NOT autonomous.
6. Said probability surrenders both the power of
Congress to declare war and the ability of the President to command
the Armed Forces, and launch-on-warning-capability is therefore
doubly repugnant to the Constitution.
I see your first point (but disagree with it) and am puzzled by your
second. How does LOW subvert the President's CinC powers?
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Date: Tue, 3 Dec 85 21:34:58 EST
From: Clifford Johnson <GA.CJJ at Forsythe>@MIT-MC.ARPA
Subject: A "nonnegligible" probability
REPLY TO 11/23/85 19:41 FROM LIN@MIT-MC.ARPA:
Herb:
Many thanks for the detailed responses.
Re the "predelegation" issue. First, predelegation is an
established procedure outside of LOWC. I believe in Korea (when
China was threatening involvement) and elsewhere, military
commanders have been authorized to use nukes if certain
contingencies arose. Such authorization is "predelegation". On a
day-to-day basis, the military retains the ability to use nukes, at
its discretion, if the President is unavailable. This prevents or
deters "decapitation". On a day-to-day basis, this could permit LOW
by the military without Presidential intercession. In a real
warning, isn't it the case that military staff would be, DE FACTO,
in charge? Have you read how MacNamara was told to shut up when he
tried to personally run the Cuban blockade?
Perhaps in "blue-sky" peacetime you are right that the President's
order would be sought. But what of a sudden confrontation or alert,
as happened after Reagan's "bombs drop in 5-minutes" joke? Can the
President tell the military to LOW if they don't have time to
connect up with him? (Perhaps this is the case now?)
Re the legal issues raised by my case, if you give me a
mailing address I should send some stuff. In fact the legalities
have been very carefully worked out, and the Ninth Circuit panel
of judges clearly indicated that LOWC was likely illegal absent
Congressional authorization - the judges seem to have told me that
I have to prove it exists rather than that it's a threat, if they
are to formally declare this. The material I can send will also
cover the Subdelegation Act (1951).
If the computer data could be "guaranteed correct", I agree that
my case MIGHT fail. It's important to realize though that I'm not
challenging the advisability of LOW, I'm merely saying that it's
an act of nuclear=unlimited war, therefore must be expressly
authorized by Congress if it's to be activated.
When you say "Pershing II has zero LOWC" and Star Wars doesn't
exist and I shouldn't base my arguments on them, you are repeating
what I acknowledge ... that's why I've been kicked out the first time
around, because I highlighted futuristic dangers for which accident
is "substantial". I must now address the Minutemen only, but the
probability of accident is accordingly reduced to "nonnegligible".
Yes, I have already replaced "positive" by "nonnegligible" in the
proposed complaint.
As you can see, I have very carefully worded the definition of
LOWC to embrace human activated retaliation, and to include
procedures that leave LOW undecided until the event. It is
because of the careful wording that I have a case. I don't have to
specify the chain of command in this definition, that would come
later, in proving the case, not in the complaint, which alleges
only "ultimate" facts.
A declaratory judgment is a statement by the court that LOWC
is unconstitutional, without an injunction (an order) directing
Weinberger to comply. The presumption is that Weinberger, if now
at fault, would comply without an order; it's just that the law
is undecided at this time.
I say ESSENTIALLY autonomous because the executive must rely
on elctronic information wihtout the ability to verify it. The
surrender of C-in-C powers comes from delegating decisions to an
error-prone machine. No two ways about it, in 1980 a single
flakey chip's malfunction ordered U.S. nuclear forces into high
states of alert. That's a surrender of C-in-C authority if ever
there was.
My case isn't based on this, but t'was Aristotle wrote that
"the excellence of an army lies both in its general and in its
order; but chiefly in him, for the order depends upon him, and
not he upon its order". (Metaphysics)
Cheers, Cliff
To: LIN@MIT-MC.ARPA
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Date: Tue, 3 Dec 85 21:35:28 EST
From: Herb Lin <LIN at MIT-MC.ARPA>@MIT-MC.ARPA
Subject: A "nonnegligible" probability
From: Clifford Johnson <GA.CJJ at Forsythe>
Re the "predelegation" issue. First, predelegation is an
established procedure outside of LOWC.
True; and I believe it is legal, or at least I have not found any
information saying that it was not.
military
commanders have been authorized to use nukes if certain
contingencies arose. Such authorization is "predelegation". On a
day-to-day basis, the military retains the ability to use nukes, at
its discretion, if the President is unavailable. This prevents or
deters "decapitation".
I guess I don't understand this point; is this the subject of your
complaint? I didn't think so, but I'm not sure now.
On a day-to-day basis, this could permit LOW
by the military without Presidential intercession. In a real
warning, isn't it the case that military staff would be, DE FACTO,
in charge?
NO. The chain of information is that CINCNORAD -- who is in charge of
providing warning information -- informs the President; CINCSAC is in
on this notification. The President makes the decision about what to
do. If the President is not available, then we have a problem, but I
don't think that's the focus of your complaint.
You may ask -- couldn't Looking Glass send the launch order?
Mechanically, there is nothing to prevent Looking Glass from doing so.
But a whole variety of institutional procedures would block his order
-- ask Bruce about this one. The question is analagous to a "mad
President", only here you are talking about a "mad general" who is
under specific orders to not do anything unless he knows the President
is dead. For your scenario to work you have to find a way of making
Looking Glass think the President is dead, and everyone else who is in
the chain of command believe that as well, when in fact the President
is not dead.
Have you read how MacNamara was told to shut up when he
tried to personally run the Cuban blockade?
Yes. But he did finally assert control.
Perhaps in "blue-sky" peacetime you are right that the President's
order would be sought. But what of a sudden confrontation or alert,
as happened after Reagan's "bombs drop in 5-minutes" joke? Can the
President tell the military to LOW if they don't have time to
connect up with him? (Perhaps this is the case now?)
I can't believe that even Reagan would do that. But even if he has
(and I would be VERY upset and scared if he had), I think it would
still be legal. Dumb, but legal.
I don't understand what you mean by a sudden confrontation or alert.
Nothing happened after the 5 minute joke. What else might you have in
mind? After the assasination? Yes, there's a problem in that case.
But there has to be SOME method of preventing decapitation from
disarming the US.
Re the legal issues raised by my case, if you give me a
mailing address I should send some stuff.
Herb Lin
Center for International Studies
292 Main Street
6th Floor
Cambridge, MA 02142
In fact the legalities
have been very carefully worked out, and the Ninth Circuit panel
of judges clearly indicated that LOWC was likely illegal absent
Congressional authorization - the judges seem to have told me that
I have to prove it exists rather than that it's a threat, if they
are to formally declare this. The material I can send will also
cover the Subdelegation Act (1951).
I look forward to seeing this. I'm no lawyer, but on the basis of
what I've seen (e.g., in Nuclear Times), I think the 9th Circuit is
flaky; I'd really like to see their reasoning.
If the computer data could be "guaranteed correct", I agree that
my case MIGHT fail. It's important to realize though that I'm not
challenging the advisability of LOW, I'm merely saying that it's
an act of nuclear=unlimited war, therefore must be expressly
authorized by Congress if it's to be activated.
So you're saying that the analog to "fire when fired upon" is faulty?
(I agree with you, but I want to understand your case.)
Have you been in touch with Jeremy Stone at the Federation of American
Scientists?
I say ESSENTIALLY autonomous because the executive must rely
on elctronic information wihtout the ability to verify it. The
surrender of C-in-C powers comes from delegating decisions to an
error-prone machine. No two ways about it, in 1980 a single
flakey chip's malfunction ordered U.S. nuclear forces into high
states of alert. That's a surrender of C-in-C authority if ever
there was.
No way. Not even the Hart/Goldwater report makes this claim. I don't
think U.S. nuclear forces changed alert level at all; rather, they
took steps to ensure the forces would survive if there were an attack.
That is within the perogative of every military commander, and in fact
Hart/Goldwater allege that SAC behaved quite properly.
No strategically significant decision was made on the basis that chip.
It was a source of information. What you are saying could as easily
be said about a conspiracy of military officers who agreed that they
call the President and lie about whether or not Soviet missiles were
attacking. What differentiates them? In the case of the conspiracy
he has no way of verifying it either. Yet that conspiratorial
capability has been around for years.
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End of Arms-Discussion Digest
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