1987 vs. The Constitution

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In interviews with experts and ordinary citizens, Bill Moyers explores the constitutional implications of workplace drug-testing, computer privacy, and executive power.


BATH IRON WORKS WORKER: Those men that wrote the Constitution way back then, I don ‘t think they had any kind of idea what life would be today.

BATH IRON WORKS WORKER: Who are they to own the Constitution? Nobody can do that. And how can they get away with this?

IRA GLASSER: It endows the government with a potential for mischievousness that the founders of this country were well afraid of, but that we have become used to.

EDWIN FIRMAGE: This modern technology means that the original presumption of peace rather than war is overwhelmingly more important than it was in the eighteenth century.

WILLIAM RAMSEY: We would be stressing the President to make a decision in probably five to ten minutes

EDWIN FIRMAGE: You can get to the point where you can’t get there from here. You can’t get back. Technology passes the point of law and government to put it all together again.

BILL MOYERS: In the next hour, the Constitution of 1787 tested by the issues of 1987. I’m Bill Moyers.

BILL MOYERS: Here in Philadelphia’ s Independence Hall, one wonders. If the framers of the Constitution were also in this room tonight, would they think the document they wrought had withstood the test of time? It is, after all, two hundred years old. And the world of 1987 is not their world. They created a government for thirteen states and four million people, separated from the center of world power by the time it took a sailing ship to cross the ocean. How could they imagine decisions made in a split-second or the vast concentration of power in public and private bureaucracies? In this broadcast we’ll look at two controversies today that are the kind that become tests of the Constitution. I think they would stagger even the wise and learned men who met in this room during that long, hot summer of 1787. How could they, sitting in this room, imagine this one?

BILL MOYERS: The war room of a superpower, operating in a world threatened by nuclear missiles that span continents in half an hour. The framers wanted to limit the executive’s power to go to war, to make that decision a matter for collective deliberation. The nature of twentieth century defense challenges that vision. Modern technology is testing other constitutional limits on power. How could the framers imagine the need to protect citizens from searches of computer records? And how could they foresee the growth of modern corporations, a new social force with tremendous power to affect individual liberties?

IRA GLASSER: They certainly didn’t imagine those huge concentrations of private power. They lived at a time when private power was enormously fragmented in a rural, agrarian society, when most people worked on, lived on or owned small farms, very small farms. And they did not imagine a time when private power would be so concentrated as it is today or would exercise such enormous power, where corporations, in some cases, were on the job?

BIW WORKER: I’ve been to two grievances already and they still won’t tell me who the witness was. But yet I’ve taken four tests since then because of the word of this guy telling me that I was smoking.

BILL MOYERS: Do you think it’s any business of the company’s what you do on your own time?

BIW WORKERS: No, no way.

BIW WORKER: If I wanna go home on a Saturday night and drink three cases of beer, alright? As long as I walk through that gate Monday morning and I’m not stumbling, I’m not impaired in any way; it’s none of their business.

BILL MOYERS: What about drugs though?

BIW WORKER: What about drugs?

BIW WORKER: The heart test doesn’t prove if you’re under the influence at the time of that test.

BIW WORKER: Exactly.

BIW WORKER: That’s why the test isn’t any good.

BIW WORKER: I think BIW is writing up their own constitution. That’s what I think.

BILL MOYERS: Have all of you been tested?

BIW WORKERS: Yes. Different tests.

BILL MOYERS: Do you really feel it’s an invasion of privacy?

BIW WORKERS: Yes. Of course it is. Totally.

BIW WORKER: It’s quite humiliating standing there and having the nurse watch you urinate in the cup.

JIM MACKIE: Paul had a female nurse go in with him.

BIW WORKER: No, I mean, you feel pretty terrible.

BIW WORKER: Jim saw a grown man sit and cry he was so embarrassed by being in for a test.

BIW WORKER: Some poor schnook goes in and that happens to him, that’s his whole life right there. I mean, the whole yard will know. I mean, little things around here, they spread fast. It’s just like a small, little town. Rumors, sometimes you have nothing and a rumor starts. Well, just a little thing gets blown all right out of proportion.

BILL MOYERS: Does that worry you, the fact that the confidentiality of these tests — ?

BIW WORKER: There’s no such thing as confidentiality at Bath Iron Works. In my opinion, there isn’t.

JIM MACKIE: One of the vice presidents and the head of their Employee’ s Assistance told us one day that confidentiality is a joke. And the vice president said that if he had to test a thousand people to get one guilty one, he’d do it.

BIW WORKER: That’s right.

BIW WORKER: So far they haven’ t produced any witnesses and they won’t. But I was guaranteed that I would never find out who told them, that I —

BILL MOYERS: The company told you that?

BIW WORKER: My assistant foreman told me that.

BILL MOYERS: What’d he tell you?

BIW WORKER: He said, “I guarantee you will never find out who it was .”

BILL MOYERS: What did you say?

BIW WORKER: I said, “I will find out.” It’s my constitutional right. I mean, if I’m arrested on a street and accused by somebody on the street of a crime, they have to produce that man or they gotta let me go. I don’t believe they have any different rights in there than they do on the streets.

BILL MOYERS: But you guys are in sensitive, government work. You’re building the ships our Navy uses to patrol the seven seas.

BIW WORKER: We ‘ve been doing it now for a lotta years and we’ve never failed ’em yet. So I don’t see why for the past year, all this drug thing, everything’ s changed overnight. I mean, the whole world’ s gone crazy now.

BILL MOYERS: But what about the company’s right to a safe and productive workplace?

BIW WORKER: We ‘re the people that have more to lose. We’ re the ones that have tons and tons of steel hanging over our heads. And we would be the first ones, i f we thought there was something wrong, to get something done about it. Because that’s the way safety works in this facility. It doesn’t get squared away unless we do something about it.

BIW WORKER: You know, if they’re gonna continue with these urinalysis and drug tests or what have you, I believe they should test all the management first, okay? And if they’re not gonna do that, they might as well put a shop right outside the gate and give us clothes that are black and white striped, stamp the badge numbers on our foreheads and tie a chain and ball to our legs and tell us to go to work.

BILL MOYERS: But you are working for a company. I mean, it’s their territory, it’s their turf. Where does the idea come from that it’s an invasion of privacy?

JIM MACKIE: They wrote a Constitution a few years ago. They wrote one Constitution. Not two, one for private employers and one for public. There was one written for all of us. Just because we punch a time card doesn’t mean we leave the United States. Their lawyers like to tell us that when you punch your time card you have no reasonable expectations of privacy. Well, that makes me ill, to think that anybody can tell anybody in the United States that because I’m on their property that I don’t have rights. I still have rights. I’m still a human being. I’m not an animal. And I have rights. I don’t deserve to have somebody standing there, looking over my shoulder while I go to the bathroom.

BILL MOYERS: It doesn’t say anything about that in the Constitution, does it?

JIM MACKIE: Yeah, I believe it does. I believe we’re all affected and we ‘re protected from illegal searches and seizures. Fourth Amendment Fifth Amendment, you know, I believe is about being forced to give evidence against yourself. We’re granting a power to business that we don’t even grant to the police. So how can that be?

BILL MOYERS: Bath Iron Works began drug testing at the request of the Navy. The government, using its contracts with a private employer to help crack down on a social problem. In the complex world of 1987, it’s hard to say if responsibility for the national good stops at the company gate. And Jim McGregor, spokesman for Bath Iron Works, sees drug testing as the company’s social duty.

JIM MCGREGOR: I think it is far more than a safety issue. From my personal standpoint, my biggest support for workplace testing is deterrence, I can’t think of any more positive message to send to high schoolers and college kids these days than:

“If you want to stay in Maine, if you want to go to work at a Bath Iron Works or at the paper mills and make good money, that you’re gonna have to take the test.”

BILL MOYERS: How do you answer workers when they say their rights are being violated? Their right of privacy?

JIM MCGREGOR: Number one, society asks everyone, business to accept drug addiction, alcoholism, as diseases. In response to the charges — “What’s it any of Bath Iron Works’ business what I do in my off time?” business are being asked to assume a greater and greater and greater responsibility for the lives of their employees. Pension plans, company paid benefits, that sort of thing.

BILL MOYERS: Medical plans.

JIM MCGREGOR: Yuh. But when you talk about drugs, you’re talking about illegal drugs.

BILL MOYERS: Are you concerned about being the government’ s policeman?

JIM MCGREGOR: That bothers me a little. That’s one of the arguments that you hear made a lot. Okay, we accept the fact that there is a real problem in society. We know we’ve got to do something about it. But why should business be doing this? You either philosophically think it is a problem, like Newsweek magazine likened it to, a plague of medieval times, which I happen to think it is, and you are willing as a citizen to do something that may not be quite palatable – drug testing is not totally palatable to me – or you’re philosophically opposed to it from a strict constitutional But I think it’s the personal liberties that we as Americans have come to enjoy, I think that’s what’ s hitting us. We’ve come to enjoy so much freedom, we have built up so many protections around employees. And employees feel violated for some reason.

BILL MOYERS: Well, what about the Fourth Amendment?

It says, “The right of the people to be secure in their persons against unreasonable searches shall not be permitted.” Does the Constitution stop at that gate?

JIM MCGREGOR: No, it doesn’t. But if we think it’s okay for people to use illegal drugs anywhere in our society, we should repeal our drug laws.

IRA GLASSER: Robbery is a plague. And there’s much more of it than there is of drug use, but nobody suggests that we, for that reason, should do away with the Fourth Amendment and punish the innocent. There’s a curious belief that if you have a problem where you have certain people engaged in misconduct, what you do is you punish the people who are not engaging in that misconduct. And that that’s a solution. So if you have people who are committing crimes, what you do is you punish the innocent. And you have people who are using drugs, what you do is you punish the people who are not using drugs. That’s profoundly un-American. It is a profound violation of the value that was inherent in the Fourth Amendment. And yet it’s happening by 25 to 30 percent of the Fortune 500 private employers in a way that the Constitution cannot reach.

BILL MOYERS: You keep referring to the Fourth Amendment. Here it is. Read that for me.

IRA GLASSER: “The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures shall not be violated and no warrant shall issue but upon probable cause supported by oath or affirmation and particularly describing the place to be searched and the persons or things to be seized.”

BILL MOYERS: You’re saying that applies to the workplace, or should?

IRA GLASSER: I’m saying that that principle should. This was not a principle that was developed by some Harvard Law School professors, you know, sitting in their ivory towers. This was the product of searing personal experience. They wrote that in because the early Americans, the colonists, all had the experience of having their homes busted into by the British soldiers and having their furniture torn up with bayonets and having their clothes searched and having their person searched because they were looking for violations of the Stamp Act. Even though most of the people searched were not involved in those crimes and there was no evidence to suggest that they were.

Of course, most of the people searched were the people who were against the Crown. Most of the people searched were the political activists. Again, the point that if you don’t have criminal evidence as the standard for allowing searches, the searches will be done based on politics. So they created this balance. You could search the person, you could go into their house and search, but you had to have good reason to do it. You had to have basis to believe that there was evidence of a crime and you couldn’t decide that yourself. You had to convince a judge, a third, neutral party. That’s what the search warrant process is. And that, as I said, was not invented by law professors. It was a solution to what had been a real problem in the colonies.

IRA GLASSER: What’s happening increasingly today is we are being told, “Oh, those were quaint values that worked in the eighteenth century in a rural, agrarian society when things were simpler. But our society is too complex, too dangerous now to permit those kinds of things .” So increasingly you get arguments like that as justifications for short-circuiting democracy and for abridging liberty. The attempt to adapt modern conditions to those eighteenth century values is an attempt that constantly comes up against the argument, “Oh, that worked then. It won’t work now.”

BILL MOYERS: But you know, I go through this document — I’ve been through it several times. There’s no mention of the word ‘privacy’ in here. But you’re talking about the value of privacy.

IRA GLASSER: Oh yes, there’s no question that when you have an amendment there that talks about prohibiting the government from coming in whenever it wants to your house, what are you talking about if not privacy? The Fourth Amendment is the privacy amendment. The word is a word that characterizes that, but that’s what the Fourth Amendment does when it says the government can’t come in. William Pitt said, you know, every poor person in his shack with his roof not fixed, the rain may enter, the wind may enter, but the King of England may not enter. That was the spirit behind the Fourth Amendment.

BILL MOYERS: And now you ‘re saying that we’ve tamed, to a considerable extent, the impulse of government to enter our private quarters, but there’s a whole new force out there in the private sector that represents an equal kind of threat to my privacy.

IRA GLASSER: That’s right. The Bill of Rights was an expression of a belief that people have certain rights. And it protected those rights against the government because it saw the government as the only danger to those rights. Today we know that there are other dangers. So we have to find other mechanisms, not the Constitution perhaps, but state laws, federal laws. We have to find other mechanisms to protect those rights.

LEGISLATOR: I think that everybody in this committee and in this room would agree that nobody —

BILL MOYERS: This spring, the Maine State Legislature struggled to apply constitutional values to the workplace. The Labor Committee called in union and company representatives in an effort to draft legislation that would limit drug testing by private employers.

JIM MACKIE: When they take me to a test, I’m in no way consenting to that test.

BILL MOYERS: The hearings sounded like a constitutional convention, as the legislators wrestled with the balance between the general welfare and individual rights, between power and liberty.

JIM MACKIE: I am not a person who believes that when I punch in in the morning, that you have the rights to my whole body and everything else that I may do ’til the time I get out. And what you ‘re sayin’ is just the opposite of that, is that you want to have the right or the power to test anybody.

COMPANY REPRESENTATIVE : All we want is the power to test, based on your criterion, Mr. Chairman, where there is probable cause to believe that there is substance abuse in the workplace.

STAFF AIDE: I think you have to get back to the basic question that we’re looking at. And that is, you know, for what purpose – and each time we get off in another area I think you have to get back to it — for what purpose are we overcoming people’ s rights? I mean, does the end justify the means?

BIW WORKER: You know, my civil rights were violated as far as I’m concerned. And if somebody — now they started doing this. They started testing people and if somebody doesn’t stop it or does something about it, they’re gonna go crazy with it.

BILL MOYERS: What do you mean ‘go crazy?’

BIW WORKER: They might even want to work on some other type of rights we have.

JIM MACKIE: If you can make somebody go into a room while you watch them and take a part of their physical being and analyze it, what’s down from there? I mean, everything else is pretty anti-climactic, isn’t it? I mean, they can do just about anything else they wanted to you. And to have the right to do that to you, you can’t stop them any other way.

BILL MOYERS: So where do you draw the line then, that’s what you’re saying.

BIW WORKERS: Yeah, that’s right.

BIW WORKER: We work hard. We make money for them. Why not treat us with a little respect more than they do now, you know?

BILL MOYERS: Steve, when you were in school, did you ever read the Constitution?

BIW WORKER: Well, you had to. I mean, I didn’t read it cuz I wasn’t really much of a rebel. I wasn’t afraid of somebody ruining my rights. That didn’t concern me. The only thing that concerned me was who was going to be my next date when I was in high school. I didn’t worry about — anything like I’m going through now. It’s a whole total different life.

BILL MOYERS: Did you ever think of the Constitution in such personal terms as I’ve heard you describe it tonight? That when those founders wrote it two hundred years ago they had you in mind?

BIW WORKER: No, no. I think it’s a totally different type of life. Those men that wrote the Constitution way back then, I don’t think they had any kind of idea what life would be today.

BILL MOYERS: Life today means life with modern technology. Microchips are testing the Constitution in ways the founders could not imagine, living in a world when a letter took weeks to travel from Boston to Charleston. Computers now drive the engines of business and they’ve given industry and government a new kind of power over personal information about you and me. All sorts of details about our lives, from credit reports to criminal histories, are now transformed into electronic data. Computer technology used by federal agencies like the FBI and the Internal Revenue Service means the government knows more about us than ever before. So the threat to privacy comes now from another source. This worries Bill of Rights defenders like Ira Glasser.

IRA GLASSER: In the eighteenth century, everybody’ s personal papers were in their house or in their place of business. The Fourth Amendment prohibits the government from searching your house or your place of business without a warrant. Well, most of our personal papers are not at our houses anymore or our places of business. They’re on computer disks. I think most of our papers are in the custody of third parties – banks, insurance companies, medical insurance, your employer. If you want to find out something about somebody, just look at their cancelled checks and their credit card receipts. Now if you kept those at home the government couldn’t search. But because someone else is keeping them, the government can go and get them merely by subpoena. You don ‘t know about it and they don’t need a warrant.

Now one of the things that happens is that the Supreme Court has been asked to extend the Fourth Amendment protections to third party custodians of your personal papers. The Supreme Court has declined to do that on the grounds that the Fourth Amendment only protects your house and your place of business. It doesn’t protect these other places. So now we have a Fourth Amendment which continues to protect the places where the information used to be kept, but the information has flown the coop. It isn’t there anymore. All that information is out there, floating. And anybody can plug into it. It was one thing when all that information was fragmentary and it got lost. But now the information is persistent. It persists over time and it persists over space. It doesn’t go away whether it’s accurate or not. It doesn’t go away whether it’s relevant or not. And it follows you everywhere. And even if it’s on a lot of different computers, i f you could link those computers up with something like a social security number, all of a sudden overnight you have a national dossier.

BILL MOYERS: But isn’t that happening — ?

IRA GLASSER: It is happening.

BILL MOYERS: Do you think that anyone envisioned that the social security number would become a chief , if not the chief, identifier of human beings in our society?

IRA GLASSER: Not only did — yeah, well, they did envision that and they prohibited it. I mean, that was one of the big objections in Congress to the creation of the social security number in the first place. There were people in Congress who said at the time, this is gonna end up being the universal identifier, a kind of a concentration camp number that everybody gets at birth and it’s gonna make it possible for the government to do great mischief. And over time what happened is that more and more uses of the social security number that were unrelated to the administration of the social security program, were authorized by Congress. And more and more uses began to be legitimized. You apply for college, they want your social security number. You apply for a loan, they want your social security number. You try to open up a bank account, they want your social security number.

BILL MOYERS: What’ s wrong with it being an identifier? I mean, it does make things more efficient. It gives you a ready imprimatur, no matter where you go. It enables you to save time in tracking down information. What’s wrong with that?

IRA GLASSER: Because it’s a key to all the details of your life that it is nobody’s business to know.

BILL MOYERS: And they can go fishing in waters that are not their own.

IRA GLASSER: That’s right. And when the government has that power, it endows the government with a potential for mischievousness that the founders of this country were well afraid of , but that we have become used to.

BILL MOYERS: The potential for arbitrary action was the subject of much debate in this room two hundred years ago. The framers were especially worried about the overbearing executive branch and what James Madison called the executive’s propensity to war. Experience with the kings of England had taught the men who debated here to beware a single man with the power to decide for war and no need to consult the people or their representatives. So they wrote in Article 1, Section 8: “The Congress shall have power to declare war.” It’s called the war power clause and Thomas Jefferson congratulated the framers on their vision. He said they had chained the dog of war. The battles were fought then with horses and wooden ships, before the United States was a world power in a nuclear age. No provision of the Constitution seems more outdated in the world of 1987 than the war power clause. Consider the fact that since World War II, there’s been no declaration of war by Congress. Not one in the last four decades .

BILL MOYERS: The Korean War was fought with no declaration of war. The State Department said the President, as Commander-in-Chief, can use the armed forces to protect American foreign policy interests. In 1962, the Cuban Missile Crisis brought the United States to the brink of nuclear war, and the critical decisions were made secretly in the White House, not on Capitol Hill. There was no congressional declaration of war against North Vietnam. President Johnson persuaded Congress to pass the Gulf of Tonkin in Resolution, authorizing him to repel an attack on a US destroyer. He used it as a blank check to go to war in Vietnam.

PRESIDENT LYNDON JOHNSON: This resolution stands squarely within the four corners of the Constitution of the United States. This resolution confirms and reinforces powers of the presidency.

BILL MOYERS: Consider other instances since Vietnam of US military involvement overseas. From the support for armies in Central America, starting with El Salvador, to the surprise invasion of Grenada in 1983, to the recent military actions against Libya.

PRESIDENT RONALD REAGAN: When our citizens are abused or attacked anywhere in the world on the direct orders of a hostile regime, we will respond, so long as I am in this Oval Office.

BILL MOYERS: In all cases the President stood accused of acting without sufficient consultation of Congress. The Founding Fathers’ purpose, to chain the dog of war, is the title of a book by constitutional scholar Edwin Firmage. He’s an expert on the war powers clause and a man convinced the framers’ vision is in jeopardy.

EDWIN FIRMAGE: What the Constitution demands is that Congress initiate war, whether they term that a declaration or simply a resolution. Congress shall decide for war. And up until Korea, congress was the sole determiner of this as far as our history was concerned. The Barbary pirates to the Indian tribes to border crossings into Mexico and Canada, civil war, Congress was in the driver’s seat. And every president recognized it. And every presidential apologist recognized it. But it was with Korea and then Vietnam that we began, not only occasionally to go to war in an executive fashion, but to defend it as being the norm. It is with Korea and then Vietnam that many — that a number of presidential spokesmen came to argue for a power in the executive to determine for war. And they based it usually upon the commander-in-chief clause.

BILL MOYERS: What do you think happened? Why did there come this sudden change, this enormous shift in the focus of war, from the Congress to the President? What happened in Korea and Vietnam?

EDWIN FIRMAGE: Well, I think the changes have been three major ones historically. First of all, the Great Depression put a great need upon us to have expeditious, quick decision, firm decision, a great emergency. Secondly, World War II. Again, you had the aggrandizement to the President of power that had been thought to be congressional. And, thirdly, I would say the Cold War, maybe the most important of them all. A condition of war in our mind, a zealousness that sweeps out of its way impediments of law and government as being too slow, too cumbersome, encrusted with the past.

BILL MOYERS: Didn’t James Madison, who’s considered by many the author of the Constitution, didn’t James Madison write that the executive can enter a war undeclared by Congress when a state of war has been produced by the conduct of another power?


BILL MOYERS: Doesn’t that apply in this world?

EDWIN FIRMAGE: Yes, yes, it surely does apply in this world. If , in fact, we are attacked or in some other way war is put upon us, the President needs no authorization from Congress. The President can respond. In fact, the original draft was that congress was to decide for war. They changed it to ‘declare war’ simply to insure that the President have the power to respond to surprise attack. But it didn’t mean that Congress would declare war and the President could make it but not declare it. It meant the decision for war had to be that of Congress. And if they didn’t decide for war, with one exception, there wasn’t a war. And that one exception was a surprise attack upon the United States.

BILL MOYERS: War is so ultimate, we have to think very, very long and hard about when to invoke it in the defense of the country.

EDWIN FIRMAGE: I think the framers realized, and I would surely concur, that there are times when war is necessary. But the enormous bias has to be against it. And the force of government, the status quo, has to be against it. And that is the fundamental assumption of the war clause, that the normal condition is peace and not war. It’s hard for our generation even to conceive because we ‘ve known nothing but war.

BILL MOYERS: And you think it makes a difference when that war has been openly declared, the legislative, representative process has said, this is so —

EDWIN FIRMAGE: It’s a stop, look and listen function. It’s the same reason we sign contracts. Where in ancient times we ‘d spit or throw barleycorn over our shoulders. The chance to say, “Wait a minute. This isn’t simply saying Sally, I’m gonna buy you a comb tomorrow if you ‘re a good girl.” You ‘ve signed a deed and you put a stamp on it, you ‘ve made it official and you say, “Wait a minute. This is a rather awesome act. “I will think about this.” And the war clause gives us not only a chance to make this formal act and make it more awesome, but to have deliberative debate. To say is this wise and not have one person doing this.

You ‘ve seen a president, I’ve seen a president harried, haggard, painfully human, up 24, 48 hours, making decisions, when they shouldn’t be making decisions. You just improve your chances greatly if you ‘ve got 400 people or 500 or 550 people representing a broad cross section of the country saying, should we do this? Should we not do this?

BILL MOYERS: But wasn’t their view of the world, with all due respect to the founders, wasn’t their view of the world limited? They envisioned no entangling alliances between this country and foreign powers their vision emerged when the world was vastly different, when the Soviet empire was not a factor, when nuclear weapons didn’t even exist. How can a small, eighteenth century document like this be relevant in the realities of the world that you and I live in today as far as war and peace are concerned?

EDWIN FIRMAGE: Well, I think there’ve been a number of very meaningful changes. Nuclear weapons and ICBM delivery systems are surely the preeminent example. But, nevertheless, the presumption against war, I think, has maintained itself as being at least as necessary now as before.

BILL MOYERS: So that’s what you keep coming back to, this presumption against war is —

EDWIN FIRMAGE: Of course, of course. How does modern technology make war any more enticing? What is there about nuclear weapons that makes war more to be desired? I say it cuts exactly the opposite. This modern technology that can incinerate a city in a second or put us in a nuclear winter for a year means that the original presumption of peace rather than war is overwhelmingly more important than it was in the eighteenth century.

BILL MOYERS: More important maybe, but how realistic when that eighteenth century phrase confronts nuclear age technology? Here in the Colorado Rockies, cut into a granite mountain near Colorado Springs, there’s a military complex of the kind the war power clause did not contemplate. Nor Thomas Jefferson when he praised the framers for chaining the dog of war. This is the headquarters of the North American Aerospace Defense Command, NORAD. And it is here in Cheyenne Mountain, far from the deliberative chambers of Congress that a chain of decisions leading the United States into nuclear war might begin. Deep inside the mountain, the men and women of NORAD live each day with the possibility of nuclear attack, the chance that these blast doors might close for real.

MALE VOICE: We ‘re waiting on information on Whiskey 011.

BILL MOYERS: Here in the control room, officers are on duty round the clock, scanning the screens for signs of an enemy attack. Early warning systems pick up signs of a missile launch anywhere in the world and track aircraft approaching the North American continent.

MALE VOICE: Northeast, there’s China Air from San Francisco to Shanghai.

BILL MOYERS: Even commercial flights from communist nations are monitored. The NORAD alert system relies on computer technology. Computers analyze the warning signals for the officer in charge here. He must make the decision – false alarm or real? On a given day, that man could be Vice Admiral William Ramsey, Deputy Director of the United States Space Command.

WILLIAM RAMSEY: This entire complex is here for one purpose and that is to answer the question, is North America under attack? We strive to provide the President and the national command authorities information on which they can make a decision within four minutes.

BILL MOYERS: Four minutes?

WILLIAM RAMSEY: Four minutes. We detect an event and we determine, based on the information that we gather by our satellite systems, by our radar systems, what the character of the event is. Has it generated into an attack?

BILL MOYERS: Your father was in the Navy in the Second World War, wasn’t he?

WILLIAM RAMSEY: He was, indeed.

BILL MOYERS: Could you imagine him sitting here looking at all of this?

WILLIAM RAMSEY: No, not at all. I didn’t imagine myself sitting here looking at all of this. I mean, nuclear power, computer technology, they’ve all sprung up in our lifetimes and during my career. We were grease pencil and Plexiglas when I started. And now what took us minutes, sometimes hours to digest, we do in seconds. We have people who are on these scopes that can look at that right now and tell you exactly what each one of those symbols stands for. Right there you see one of our space displays, if you can see through here.

BILL MOYERS: Oh yes, I can see now.

WILLIAM RAMSEY: And what we’re showing there is the Soviet space station mirror. And that’s its current trace and where you see it flashing, that’s where it actually is at this particular time.

BILL MOYERS: Walk me, step by step, through the scenario if, in fact, you had a report of an incoming missile.

WILLIAM RAMSEY: We would see initial indications in this command center in about 60 seconds.

BILL MOYERS: Sixty seconds.

WILLIAM RAMSEY: In about 60 seconds.

BILL MOYERS: At what point does the President come into the picture? Four minutes? Six minutes? Seven minutes?

WILLIAM RAMSEY: I think it depends very much on the world situation. If we have progressed through perhaps the spectrum of instability, confrontation, approaching the brink, we would obviously be all straining forward in the fox hole, ready to charge. And we would bring the President on board very soon. We would be stressing the President to make a decision in probably five to ten minutes.

BILL MOYERS: So the technology of the nuclear age can stampede the decision, with little room for debate on whether and how to respond. The policy of deterrence assumes a nuclear attack would be met with massive retaliation. And the President is empowered by the Constitution to respond to a sudden attack. But what if the information is limited or wrong? A false alarm? Computer error? Does the constitution authorize the President to start a nuclear war by mistake? And if political leaders, including the President, depend on the calculations of computers, are they following a course programmed by technology, a script not written by the Constitution? That’s the opinion of Bruce Blair, a former missile control officer who has become a respected defense analyst specializing in issues of command and control.

BRUCE BLAIR: Unfortunately, the severe destructiveness of nuclear weapons has put us in the position where we can’t afford to ride out a full attack. We can’t afford to wait and see exactly what kind of attack has been mounted against us. The person who works over here and is charged with responsibility for telling the President what’s going on doesn’t see the number of war-heads coming at us. If he determines that the satellite has just seen an SS-18 launched from a complex in the Soviet Union, he relies on a computer to guess how many warheads that missile is lofting against us. And then the computer adds them all up, tallies them up, and passes that information along to the decision makers, who are looking at really guesstimates. He can’t tell the President precisely where those warheads, those weapons, are going to land in this time frame that we’re talking about. He doesn’t know what the damage to our military facilities is or is going to be or the death and destruction wrecked upon our society.

BILL MOYERS: What does all this say to you?

BRUCE BLAIR: The NORAD Commander can’t even tell the President whether the attack was deliberate, accidental or unauthorized.

BILL MOYERS: Doesn’t the situation you describe really mean that the political leaders have no time to deliberate or even to decide, frankly, how to respond to an apparent missile? He would simply have to, in the vernacular, push the button and let everything fly in response to a programmed scenario?

BRUCE BLAIR: What you see happening over here in the event of a detection of a Soviet attack, and happening in the Pentagon and practically everywhere else in our military establishment, is a drill. A fire drill, which allows virtually no reasoning to take place. It’s an enactment of a prepared script with the President, hopefully or ultimately, choosing what option within that script to go with. But there is very little real meaningful choice involved here. Deterrence actually fails, we want someone to have time to sort out a little bit what’s happened and try to embody our societal values, our reformulated national security interests, and God knows, they would be changed if deterrence actually fails. Someone has to sort out all these issues. It takes time and political time; moral time is more than a few minutes. It’s more than ten minutes; it’s more than fifteen minutes or thirty minutes. It’s even more than a day. This policy that implicitly evolved in our organizations, in our operational posture is one that just makes absolutely no sense. It’s evolved in a way that’s escaped almost entirely democratic controls.

EDWIN FIRMAGE: Here ‘s where Congress has to come into play in a far more sophisticated way than simply deciding whether we’re gonna move an army from place A to place B. If you get into certain kinds of strategy, to where you predetermine certain kinds of acts, we will use nuclear weapons in this situation or that, and then begin going down a road that will make that final decision almost inevitable, Congress should be in that chain. If you decide upon a weapons system that not only takes Congress out of the loop of decision, but perhaps the President too, Congress should be in on that decision. If not, they are not doing their duty. And a president who goes down that road without congressional assent, I think, is violating his oath of office.

BILL MOYERS: But isn’t Congress inherently granting the Commander-in-Chief the power to use weapons that it funds and provides him?

EDWIN FIRMAGE: I don’t think ‘inherently’ is a word I like in this setting. Congress may be negligently doing this. The President possesses no such inherent right\and the Congress should do nothing that would appear to give him such a right. If we make a decision to deploy weapons that will have six minutes time from our forward European bases to the Soviet Union, they must go to a launch on warning system that will take any human decision maker out of the loop of decision. We can put ourselves, in other words, beyond the scope of law and government to save us.

BILL MOYERS: Some people say that is, in fact, what a nuclear war would be. A full nuclear exchange would put us beyond the pale. This document —

EDWIN FIRMAGE: Of course, of course. The virtue of this document is in stopping us short of that and providing alternatives for resolving disputes short of that. Once that has happened, all law and government is destroyed. One of the major impediments to that is the system of government that says, chain the dog of war. You do not give a monarch or an executive, by whatever name, the power to go to war. It is something we deliberate and we debate and we do openly. Exception the right to respond quickly to surprise attack upon this country. If you allow the exception to grow and grow and grow, of course, you eat up the rule. And that’s the threat. If, in fact, the Soviet Union were to strike us with a massive salvo of nuclear weapons, there is simply no doubt that the President can respond. The nature of that response is far more difficult, that is, we can question as to what he should do in a given situation. What he should be allowed by law to do in a given situation. Need it follow that if there is an act of war by the Soviet Union or some other, let’s say some other nuclear state in ten years’ time, that our President should be allowed to use nuclear weapons in response? I think not. If he can stop those missiles, wonderful. If he can contain the violence aimed at it, aimed at us, by violence of his own, the Constitution allows it. Does the Constitution allow him to carry the war to the homeland of another state necessarily? Not necessarily. Perhaps, but the general issue would be proportionality to what was done. And the ability to contain the original aggression against us.

BILL MOYERS: Or against an ally. Suppose, for example, that the President wanted to use tactical nuclear missiles to respond to an attack on Western Europe by conventional forces of the Soviet Union – tanks, artillery, infantry. That would be what’s called a first use of nuclear weapons by the United States. Does the Constitution give the President authority to launch those missiles, to start a nuclear war?

EDWIN FIRMAGE: If it’s not approved by Congress, I don’t believe so. Because I believe this is an ideal example of moving down a certain technological trail that removes Congress and, for that matter, probably human decision maker from anything like real choice, any weapons in Europe or any selective use of ICBM’s, I think the chance to constrain that is terribly low. We like to think that we blunder into human situations so we can blunder out. Unhappily, that’s usually true. But we can get to the point where you can’t get there from here. You can’t get back, you can’t repent. You pass the point of doing that. Technology passes the point of law and government to put it all together again. I don’t know where that point is. The irony is that we will know it only retrospectively, we can look

BILL MOYERS: Doesn’t our commitment to NATO, the North Atlantic Treaty Organization, assume or even promise that an attack on Europe will be considered by us as an attack on us?

EDWIN FIRMAGE: That’s part of the wording of the think the extent to which this assumes history have been delegated to experts. From the very beginning, the discovery of nuclear weapons, to the that a Congress at the time is not in place and acting, such a treaty reading would be unconstitutional. No Congress can delegate the war making power to another and, or bind a Congress not yet in session or a people perhaps not yet born to fighting that war.

BILL MOYERS: Are you familiar with the proposal by the Federation of American Scientists to have Congress pass a law, a statute, making it unlawful for the President to launch a first strike use of nuclear weapons during a conventional war abroad until he had obtained the permission and approval and collaboration of a special committee designated by Congress?

EDWIN FIRMAGE: Yes, I am. And I think on the whole that is wise and good. I think the use of nuclear weapons is so vital that Congress is derelict in their duty if they do not forbid the first use of nuclear weapons. Once nuclear weapons are introduced, either in the form of intermediate or medium or theatre range weapons or any selective use of ICBM’s, I think the chance to constrain that is terribly low. We like to think that we blunder into human situations so we can blunder out. Unhappily, that’s usually true. But we can get to the point where you can’t get there from here. You can’t get back, you can’t repent. You pass the point of doing that. Technology passes the point of law and government to put it all together again. I don’t know where that point is. The irony is that we will know it only retrospectively. We can look back and say, “Twenty years ago was the point and I can see it’s been all hell since that time.”

BRUCE BLAIR: All of these questions of nuclear weapons, all the major questions of nuclear weapons in our history have been delegated to experts. From the very beginning, the discovery of nuclear weapons, to the development of the hydrogen bomb, to Truman’ s decision to produce nuclear weapons in mass quantities, to the decision of Eisenhower and Truman to transfer custody over all of these nuclear weapons, to the military from the Atomic Energy Commission, a civilian agency. Many of the decisions are made implicitly. They’re not even recognized or perceived as issues that involve policy choice. Launch on warning, I think, is one of them. We evolved procedures of launch on warning. There was never at any point in time a decision to adopt a posture of launch on warning. It just evolved.

BILL MOYERS: Our ability to do something technologically has enabled us to do it politically.

BRUCE BLAIR: That’s right.

BILL MOYERS: But isn’t that the system the Constitution established that the President assumes the office of Commander-in-Chief and, implicitly, can make these decisions?

BRUCE BLAIR: And we may well have bumped up against an inherent limit on democracy in the case of nuclear weapons. Democracies perhaps just can’t deal well with questions of such enormous complexity in their technical dimensions, in their political and moral dimensions. Perhaps.

EDWIN FIRMAGE: The restraints of law are important. They were given to us in the eighteenth century in a way that, I think, don’t always apply today. Many aspects of the Constitution, I don’t think, are relevant in our day. There are slave clauses, slavery is clearly recognized. The women and the vote. So many things in the original understanding don’t bear today. And it is not enough simply to say the eighteenth century founders said and therefore. A terribly important component has to be in that. And that is what has present technology done to the eighteenth century idea? In this case, twentieth century technology has said the original idea, in the case of the war clause, that war was to be accord and peace was to be valued and peace was the norm and war was the aberration, is more powerful today and more appropriate today than the founders could have ever contemplated.

BILL MOYERS: Where do you see the Constitution being tested in these areas in the next 25 years?

EDWIN FIRMAGE: I think our ability to deal with radical change will test us to the limit. As I look to they gave us a great deal to think about how to debate reasons for the kind of situation we think that world war, depression and cold war have put us into a state of perpetual crisis.

And I think that is undergirded by a changing technology that changes so swiftly that any national leader and any document is put to a test that seems superhuman. When you and I were young, or particularly in the days of our parents and grandparents, the technological change occurred more or less between world wars. Time has, literally, speeded up. In our time it’s four and a half years now in terms of complete technological change. Can this document, struck in the eighteenth century, shepherd us through a time of such enormous change? I simply don’t know. I would be Pollyanna to say I think that it will do so and do so wonderfully well. I think we couldn’t have a better structure of government to operate with. My fear is not that the Constitution will prove to be inadequate to this, but rather that the human actors under it, meaning us, in effect, because we ‘re responsible for the quality of that leadership, will not be able to meet the challenge. I think the structure is there if the human factor can rise to that.

BILL MOYERS: Our search for the Constitution began here, where the framers drafted and signed it. But it doesn’t end here. They didn’t intend to imprison us in their world or in this room. So they left us a Constitution subject to every generation’s challenge. As we apply or contest it, we make it our own. The framers, themselves, quarreled over its meaning soon after they left here. They would hardly expect less of us. That, for me, connects this 1787 document to the issues of 1987. You won’t find drug testing, computers or nuclear weapons mentioned in the Constitution. The framers made no effort to tell us what to do about the various crises of human affairs that inevitably would test us. But gave us a great deal to think about how to debate and reconcile our conflicts. This, this is the letter of the law.

The spirit of it goes far beyond what is strictly required by the letter. It bids us, above all, not to deal arbitrarily with each other. Let me read you what Walter Lippman said about all this some years ago: If the sovereign, himself, may not act willfully, arbitrarily, by personal prerogative, then no one may. His ministers may not. The legislature may not. The majorities may not. Individuals may not. Crowds may not. The national state may not.

BILL MOYERS: This, he said, is the higher moral commitment to liberty and dignity, the supremacy of the spirit of the law. I know. These men were, themselves, arbitrary and unjust in their treatment of women, blacks and Indians. But the spirit is no less exacting because the flesh is weak. And many of the men here knew succeeding generations might one day do better than they in perfecting both union and justice. Like a soft, steady backlight, the spirit of this Constitution illuminates the letter on the page No issue we face today, however new, strange or threatening, is unapproachable in its glow. I’m Bill Moyers.

This transcript was entered on April 27, 2015.

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