ARMS-D-Request@MIT-MC.ARPA (Moderator) (12/04/85)
Arms-Discussion Digest Tuesday, December 3, 1985 8:59PM
Volume 5, Issue 40
Today's Topics:
Is Launch on Warning Unconstitutional?
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Date: Tue, 3 Dec 85 20:45:39 EST
From: Herb Lin <LIN@MIT-MC.ARPA>
Subject: launch on warning
Cliff Johnson (GA.CJJ@SU-FORSYTHE) and I have engaged in extensive
discussions on this topic. Specifically, Cliff suggests that launch
on warning unconstitutionally usurps the Congressional perogative to
declare war because human being have no realistic opportunity to
verify erroneous computer warning of attack.
Cliff has agreed to allow our correspondence to be shared with the
ARMS-D readership; comments are welcomed.
The next few issues of ARMS-D will be devoted to this correspondence.
Herb Lin
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Date: Tue, 3 Dec 85 20:45:42 EST
From: Herb Lin <LIN at MIT-MC.ARPA>@MIT-MC.ARPA
I have looked at the question of the U.S. Launch On Warning policy
within the constraints of the unclassified literature. The point
centers on what is meant by the word "policy". It is a matter of
public record in Senate testimony that the U.S. maintains options for
doing LOW in the Single Integrated Operating Plan; it also has
preemptive options. But this is a far cry from saying that as a
matter of course the US would launch its missiles upon receiving
tactical warning of attack. That decision belongs to the President,
and there is NOTHING that says that the missiles go "automatically".
Moreover, the President as Commander in Chief can delegate his
authority without limit -- to some technical sergeant if he so
desires. This also suggests that he could delegate to some programmer
-- if he so desired -- the authority to program a computer to execute
his orders.
I have also spoken extensively with Bruce Blair, as well as others
both inside and outside the defense establishment. Blair is the only
analyst I have found that believes tha LOW is current national policy.
None of this should be taken to mean that I believe LOW would in fact
not happen; rather, it might or might not happen -- we have no way of
knowing in advance of the actual event.
Herb Lin
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Date: Tue, 3 Dec 85 20:45:46 EST
From: Clifford Johnson <GA.CJJ at Forsythe>@MIT-MC.ARPA
Subject: The ultimate deterrent
REPLY TO 11/22/85 06:29 FROM LIN@MIT-MC.ARPA: Cliff Johnson
Herb:
I don't know if this reply'll get there, which isn't quite
a redundant statement because it tells you something of the
uncertainty under which I'm operating ... which leads to my
point that, however small, there is a NONNEGLIGIBLE risk of
accidental launch. There's no procedural barriers.
By "NONNONEGLIBLE" is meant of such degree and significance
as to trigger the court's declaratory judgment. The crux of the
case is this ... IS THERE TIME FOR THE PRESIDENT OR HIS AGENTS
TO CONCLUSIVELY VERIFY A COMPUTERIZED ATTACK WARNING IN THE
NECESSARILY BRIEF WARNING PERIOD? I can't think of any scenario
where such a warning could be for sure - can anybody else?
Therefore, I allege, the executive is INCOMPETENT to respond, and
the decision to respond could not be taken without surrender of
mandated war powers. The decision would not have been political.
The legal crux is the question as to whether a mandated
discretionary decision can be preprogrammed. Does not a first
nuclear launch require real-time discretion, and, besides, you
can't program it to give certain warning of attack.
P.S. A Dream Away ... Fail-Armed
Incidentally, have you heard of Teller's launch on warning
theory? Missiles having launch procedure minimum times around
15 minutes, say, are clustered, each one begins a count-down
and aborts a minute from launch if it recieves the requisite
abort code. Because the count-downs are staggered, there's
always a proportion of missiles (Pershing II?) ready enough to launch
on warning. Now, there's a deterrent.
To: LIN@MIT-MC.ARPA
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Date: Tue, 3 Dec 85 20:45:50 EST
From: Herb Lin <LIN at MIT-MC.ARPA>@MIT-MC.ARPA
Subject: The ultimate deterrent
From: Clifford Johnson <GA.CJJ at Forsythe>
there is a NONNEGLIGIBLE risk of
accidental launch. There's no procedural barriers.
It depends on what you mean by accidental. Do you mean unauthorized
launch (in which the President does not order the launch) or a launch
in which the President has mistakenly ordered the launch? There are
certainly procedural barriers to unauthorized launches. There is no
formal procedural barrier to a flaky President.
The crux of the
case is this ... IS THERE TIME FOR THE PRESIDENT OR HIS AGENTS
TO CONCLUSIVELY VERIFY A COMPUTERIZED ATTACK WARNING IN THE
NECESSARILY BRIEF WARNING PERIOD? I can't think of any scenario
where such a warning could be for sure - can anybody else?
Therefore, I allege, the executive is INCOMPETENT to respond, and
the decision to respond could not be taken without surrender of
mandated war powers.
I don't think so. It is well known that decision makers ALWAYS
operate under time pressure and uncertainty of some sort, and there is
no legal precedent declaring the people making these routine (and
non-routine) decisions incompetent. I think you should think this one
through more carefully, because on the face of it, you're going to get
creamed in court.
The legal crux is the question as to whether a mandated
discretionary decision can be preprogrammed.
What does a "mandated discretionary decision" mean?
Does not a first
nuclear launch require real-time discretion?
It ought to, but no law mandates it.
Incidentally, have you heard of Teller's launch on warning
theory? Missiles having launch procedure minimum times around
15 minutes, say, are clustered, each one begins a count-down
and aborts a minute from launch if it recieves the requisite
abort code. Because the count-downs are staggered, there's
always a proportion of missiles (Pershing II?) ready enough to launch
on warning. Now, there's a deterrent.
Where did you hear about this?
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Date: Tue, 3 Dec 85 20:45:53 EST
From: Clifford Johnson <GA.CJJ at Forsythe>@MIT-MC.ARPA
Subject: The ultimate deterrent
REPLY TO 11/23/85 15:18 FROM LIN@MIT-MC.ARPA: The ultimate deterrent
First, it seems to me there may be no procedural barrier to a
military launch without Presidential decision. This is called
"predelegated" authority. 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. There
seems no procedural bar to a purely military launch on warning,
supposing that the executive has made clear the acceptability
of this kind of release.
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.
However, Congress (Atomic Energy Act, 1946) authorized the
President (and only the President) the use nukes as he saw fit
to protect the nation. 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.
There's a presidential "subdelegation" doctrine which spells out
under what conditions the President may delegate a decision. It
must be only to persons appointed by Congress, and notarized in
the Federal register. This has not been done with nuclear
weapons release.
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. Or, perhaps
more directly, it compromises IN PEACETIME the fundamental
mandate that "the Congress SHALL have power to declare war" and
"the President SHALL be C-in-C of the Armed Forces". These
constitutional war powers were framed, Wilson recorded, "to make
certain that nothing but our national interest can draw us into
war". I'll grant there is undecided legal theory in my action,
but I have gotten support from some top constitutional lawyers
on the issue; and even if unsucessful in court, the action would
hopefully highlight dangers and prompt movement towards such
safeguards as risk reduction centers.
I heard Teller's launch on warning theory from William Perry, who
was the Livermore labs. PR man until he "resigned".
Many thanks for the feedback, I need all I can get, especially
criticism.
Cliff
To: LIN@MIT-MC.ARPA
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Date: Tue, 3 Dec 85 20:45:58 EST
From: Clifford Johnson <GA.CJJ at Forsythe>@MIT-MC.ARPA
Subject: P.S. A question and a copy of the Complaint
REPLY TO 11/23/85 15:18 FROM LIN@MIT-MC.ARPA: The ultimate deterrent
P.S. Can U identify the Senate testimony that says LOW is part of
SIOP? (I'm waiting for what I understand is substantial LOW
testimony held this Sept. 26 by the House Gov't Operations
Committee.)
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".
Had I addressed Minutemen, for which there is at this
time a continuous LOWC in operation, the court's may have
responded differently. However, for Minutemen, there is
clearly a lower probability of accident. In order to write a
complaint to meet the court's concerns, I propose the below
complaint. 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. Moreover,
the Hart/Goldwater report spells out the procedureses whereby
such a decision could be taken. 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.
When I challenged him to describe an "unequivocal warning",
or under what circumstances a launch on warning might occur,
he seemed to think it would happen where there were some
sensors not working, or doing funny things, since in a
realistic attack, electronic warfare was certain, at least.
He said, though, that it wasn't possible for all sensors to
be working and for the U.S. not to be under attack - but
changed his mind when I pointed out what he'd just said would make a
perfect alert something to be distrusted.
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.
I'm sending this out for your information, support, criticism,
etc., etc. (I hope I got Blair's quotes perfect, it's easy to
make a mistake.). I take the court's decision very positively.
They did give a "hot" oral hearing in which two of them argued
that as alleged, LOWC was an act of nuclear=unlimited war,
thus requiring Congressional authorization. It wasn't the right
complaint to take a formal declaration on, is what they said.
I haven't yet taken the decision to refile, am still pondering.
It needn't be me to carry it on, though the momentum's there
now, especially given Arthur S. Miller's supporting analysis.
Advice welcome.
Cheers, Cliff
FIRST COUNT
1. JURISDICTION:
The first count arises under the Constitution of
the United States at Article I, # 8, Clause 11, which provides
that "The Congress shall have Power ... To declare War"; and at
Article II, # 2, Clause 1, which provides that "The President
shall be Commander in Chief" of the Armed Forces.
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.
3. Defendant has implemented and is now operating
launch-on-warning-capability.
4. Launch-on-warning-capability is now subject to a response time
so short as to preclude the intercession of COMPETENT judgment by
the President or by his agents.
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.
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.
7. The life and property of Plaintiff are jeopardized by
launch-on-warning-capability.
WHEREFORE, Plaintiff prays as hereinafter set forth.
SECOND COUNT
8. JURISDICTION.
The second count arises under the Constitution
of the United States at Article III, # 2, Clause 1, which
provides that "The judicial power shall extend to all Cases ...
arising under ... the Laws of the United States, and Treaties",
judgment being sought under:
(a) the United Nations Charter (1946) at Article 2, Part 3, which binds
the United States to settle peacetime disputes "in such a manner that
international peace and security, and justice, are not endangered",
and the North Atlantic Treaty (1949) at Article 1, which reaffirms
the same binding provision; and
(b) under 42 U.S.C. # 4332 (A) and (B), which require systematic
and scientific decisionmaking regarding actions which may impact
man's environment.
9. Plaintiff incorporates by reference paragraphs 2, 3, 4, 5,
and 7 herein.
10. Said probability endangers international peace and
security, and therefore a launch-on-warning-capability violates both
the United Nations Charter and the North Atlantic Treaty, which are
currently and constitutionally in effect.
11. Said probability constitutes a threat to the environment
of man, and so a launch-on-warning-capability is prohibited by virtue
of the systematic and scientific regard required by 42 U.S.C. #
4332 (A) and (B), which are currently and constitutionally in effect.
.f2 WHEREFORE,
Plaintiff prays that this court declare that
launch-on-warning-capability is unconstitutional and grant such other
and further relief as this court deems fit and proper.
To: PARC-CSLI!CHAPMAN@PARCVAX
To: LIN@MIT-MC.ARPA
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End of Arms-Discussion Digest
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