A common criticism of the Constitution is that it is merely an ancient document that was relevant in the 18th century; but has long since become obsolete.
The heart of the issue is that all the operating systems in modern combat aircraft are increasingly controlled by computers; “cyber systems.” In the case of our latest strike fighter, the F-35, 90% of its operations are controlled by computers. Where the pilots of earlier generation aircraft would, for example, pull the “stick” back, and a cable attached to the control surfaces would cause the nose of the aircraft to rise and the plane would climb, the F 35 pilot pulls back his stick, and a signal is sent to a computer which then sends a signal to a servo mechanism, and finally the nose rises. It's hard to tell the difference from outside the plane, but inside it's a whole new way of flying and fighting.
A critical element in the automation system is the active, electrically scanned array (AESA) radar system. Earlier radars send out a burst of microwave energy, and sense when part of the beam is reflected back to the receiver on the aircraft. It doesn't tell you much except that something is out there in a particular direction at a particular distance. The new AESA radars put out a highly sophisticated beam simultaneously in many directions, and use sophisticated computing systems to analyze all the little variations in the reflected beams that it receives. It can tell the pilot - and the control systems in the aircraft - all sorts of things about the objects it hits. And then it controls the airplane’s flight controls, its weapons systems, its life-support systems for the pilot, and so on.
But it also offers a new vulnerability: our sophisticated enemies are now able to sense when their equipment is targeted by an AESA radar beam, and their own cyber warfare equipment can create return beams with computer code in them that can deceive or take over the computer information and control systems in our aircraft.
In the Aviation Week article the idea was explained further by referring to the modern automobile, and the computer systems that serve our needs and wants as we drive. The writer tells us: “The modern car has processors that manage the entertainment system, locks, automatic brakes, fuel injection and warning systems. They are set up to take messages from the driver with no expectation that someone else would hack into the car's network.”
“The real vulnerability is the lack of a secure architecture… There's no signed digital certificate or a white list of who to accept commands from.”
There is even the possibility to feed data into the car through its satellite receivers: “Think of being locked in your car on a hot day with full heat blowing while being blasted by the music you hate most. The CarShark software package that demonstrates the capability was created by university students and professors.… The CarShark code enables unauthorized access to turn off the brakes while in motion, change speed indications, and lock the doors…”
The idea that your car can today be taken over in this manner is horrifying enough. The problem is, we know that various potential enemies are already working on such programs to attack our combat aircraft.
So - how does this have anything to do with the Constitution of the United States?
Well, we are talking about a system that gives its owner-operator tremendous powers and choices in how he conducts his affairs, whether it is a combat aircraft system serving the needs of its pilot; or a Constitution serving the needs of the People. And the danger is that some entity with opposed interests will take over the system and use the powers in that system to harm the persons it is supposed to serve.
What are the systems that were designed into the Constitution so that the powers given to the new government when United States were founded would not be taken over and used to defeat the liberties of the people?
The first principle in the design of the Constitution was the “separation of powers.” Three types of power systems were envisioned - legislative, executive, and judicial - and a separate branch of government was created to perform each of these separate functions. A great deal of power was also left to the states, and the final authority was reserved in the people. Duties are passed from one branch to another, and there are significant restraints that each branch can place upon the others, but no branch has total control over the whole system.
The second principle that restrains the operation of the United States government, and limits the opportunity for a hostile takeover, is the concept of “enumerated powers.” Even with all the power that the structure of the federal government has, the founding idea was that it was only permitted to act in certain areas of concern to the people. The People, who had the authority to delegate, allowed themselves to delegate only some governing powers - they could have granted more powers, but protected their liberty by judicious self-restraint. All the other functions of the society were to be dealt with by individuals, states, or other organizations not affiliated with the government.
And those are exactly the ideas that today's military systems designers have revived to deal with the latest threats of electronic warfare.
In order to prevent any signals penetrating our aircraft’s systems through their radar or other portals, today's designers are implementing what our founders would call “separation of powers” and “enumerated powers.”
The idea of “separation of powers” is described in the Aviation Week article: “Compartmentalization is another option for protecting networks on combat aircraft. Planners isolate functionality such as flight control, weapon and mission systems. ‘We actually have a history of making sure critical functionalities are independent,’ says Maybury. [The Air Force scientist contributing to the article] ‘But we have to assume that adversaries might get into our systems, so that is why we are looking at resilient systems that can detect a problem…[The goal is] future systems that are more self-aware of their capabilities and limitations and knowing when they should be doing certain tasks.’”
The “enumeration of powers” idea is also clearly expressed: “’At the software level, I said I won't allow it to do certain things,’ says Maybury. ‘So I've contained the threat because I’ve minimized my own privilege.’”
“Systems are being studied that allow no one absolute authority over a network, but that also avoids over compartmentalization. ‘I'm the equivalent of a three-star general, but I can’t install iTunes on my computer,’ says Maybury. ‘I'm happy with that. Ultimately there's an advantage to giving away some of our personal control. You use fractionated authority so that no one has absolute power’”
In our modern aircraft, designers have enabled the pilots to delegate their powers to onboard computers and accomplish more things than previous generations dreamed of. In doing this, it has become evident that someone with hostile interests can gain unauthorized access to the computer, take away the control from the pilot, divert him from his mission, and even destroy him.
In the design of the United States government, the founders envisioned a way that the people could increase their security and liberties by delegating powers to a new central government that would serve their needs most effectively. They foresaw the threat that this government could be taken over by men who would try to harness its powers to serve their own ends, to the destruction of the security and liberties of the people.
Yet, in both cases, the fundamental concepts necessary to keep control of delegated powers is the same. You only delegate those powers that you must, and you retain the remainder, performing all the tasks that you can outside the central system you have designed. And within the system you designed, you break up the powers into functional sub-systems – or branches - that operate semi-independently, so that none can completely take over and begin to abuse the powers you have delegated to them.
It may be a gut-wrenching disappointment to those Sophists who think themselves so far advanced beyond the thinking of our founders, to discover that the latest technological survival concepts are the exact same governing concepts that our founders identified in creating our nation and its Constitution.
But, to those of us who have always seen that the principles in the Constitution are timeless and effective, it is a satisfying opportunity to once again sit back, smile, and quietly state “I told you so.”
Hal Rounds——
Bio and Archives
Hal Rounds is a resident of Tennessee. Born in California, his undergraduate degree was in Economics from the University of California at Santa Barbara. He is an Air Force veteran of the Viet Nam war, working with munitions including rockets, bombs and, later, nuclear weapons. During a career in air express he attended law school and entered practice. He is presently a member of the bar of the Supreme Court of Tennessee, and the Supreme Court of the United States.
