Clifford J. Johnson v. Secretary of Defense Caspar Weinberger

Appellant, a resident of California, alleges that the implementation of United States strategic defense policy, specifically Launch on Warning (“LOW”), is unconstitutional. Appellant asserts that LOW relies on “error-prone[d]” computers for its implementation, thus increasing the likelihood that nuclear missiles will be launched prior to a positive, human identification of a nuclear attack on the United States. He asserts that LOW deprives him of due process and that LOW deprives the President and Congress of their constitutional prerogatives regarding commencement and conduct of war.

I

Appellant alleges that implementation of LOW threatens his life and property without just compensation, thus violating his Fifth Amendment right to due process. He asserts that LOW “usurps Congress’ power to declare war,” and the power of the President to order the use of nuclear weapons.

The district court had jurisdiction under 28 U.S.C. § 1331 (1982). On April 29, 1987, the district court dismissed the action as a nonjusticiable political question. A motion to alter or amend judgment was denied on June 17, 1986. Appeal is timely taken and we have jurisdiction under 28 U.S.C. § 1291…