At 9:00 am HST (4 hours, 21 minutes ago), the hearing for Walter Wagner's appeal of the September 2008 dismissal of his federal lawsuit against DOE, NSF and purportedly other entities began. It ended at 9:25 HST.
Prior to being dismissed it was whittled down considerably from the grand design. The US Attorney expressed doubt that Sancho remained part of the case.
This was alluded to at the hearing.
The Swiss mission expressed their position that nothing like lawful service was performed on CERN,
This was alluded to at the hearing.
and Wagner seemed oblivious to the point raised that the treaty that establishes his ability to serve CERN puts limits on how it is done.
And again at the hearing.
Will Wagner show up? Will Sancho show up? Will the US Attorney show up
Yes to all three.
If Wagner and Sancho both show up, will their mutual understanding of how time is allocated in the hearing agree with that of the panel of 3 judges?
The were allowed 10 minutes to speak with that time to be shared between them. They used, by the wall clock, close to 18 minutes.
Will Wagner emphasize the "Dollarz iz teh onleez moniez" argument?
Surprisingly not. Nothing in my memory or notes suggests he addressed the central question of whether NEPA even applies to construction and operation of the LHC.
What questions will the judges have for Wagner?
Many of the same ones I have, cousin.
Does the complete absence of a physical model (not just a laundry list of named ideas) agreed upon by the plaintiffs mean the case was filed prematurely and therefore has no Article III standing?
The lead judge asked if these disaster scenarios are speculative. Wanger said certainly not, quoted some statement for a poorly cited source that actually said LHC Disaster was highly speculative, and then repeated, to my surprise, the famous "fifty-fifty" claim as from
The Daily Show.
Does the actual operation of the Large Hadron Collider mean that the asked-for-remedy is now unachievable and therefore moot? (US use of term. The UK usage may be nearly opposite in meaning.)
Walter Wagner actually started off his time with a geography lesson, a distorted description of the quench failure and set back which he portrayed as a serious "accident" and then went on to try to claim that his case isn't moot because if the court gives different relief than what was asked they could still mess up the US side collaboration while the LHC is working at "half power".
Notes from Honolulu
7:52 Arrival at 1132 Bishop Street, a red-stone-faced business tower in the middle of Honolulu's downtown area, distinguished largely from other business districts by the large numbers of tropical trees and plants in evidence. A black, blacked-out SUV with US Government license plates drives past me to enter the parking garage. Perhaps a Judge and/or US Marshal.
7:57 On the 6th floor, the question is where is the hearing. None of the signs exactly match the wording in the court papers. But Suite 601 "United States Courts Ninth Circuit" is a good bet on this deserted floor. After loitering about, I reach out to check the door.
8:00 Room still locked, an unrelated US Attorney appears. She brings her daughter in tow.
8:02 When asked why I was here, I point out on a list of hearings that I'm for Sancho vs. D.O.E. although I expected Walter Wagner to appear. At that moment, from around the corner of the elevator foyer comes Walter Wagner with Luis Sancho in tow. (From his appearances on Hawaiian news video and
The Daily Show I recognize Wagner on sight.) Awkward! Introductions are had. Wagner seems upbeat.
8:10 Another US Government Attorney spreads the rumor in the hallway that they thought they spotted a judge. Wagner and Sancho have wandered off.
8:12 A US Marshal arrives, verifies the door is locked, and sets to waiting with the rest of us. Eventually he wanders off. Even the bathroom doors of this floor are locked. We chat with the (well known) Marshal. Apparently he is being rotated to San Francisco and those of us with the knowledge of the area describe the 9th circuit's courthouse's relation to other San Francisco landmarks.
8:20 With the Marshal having left to check on progress, I have a break to review a page of notes.
8:22 Wagner and Sancho return with 3 US Marshals from the elevator foyer. The Marshals unlock the door revealing a security center and begin to setup behind the again-closed door. Wagner and Sancho wander off as they are not needed at this time.
8:25 Wagner is still pushing his "this case was not likely to be heard in Honolulu" hypothesis to anyone that will listen.
8:27 Wagner seen shaking hands with thin short man from Washington with the least papers of any US Attorney. This turns out to be John Arbab, handing the case for the DOE and NSF.
8:29 Door opens. Security screening and check-in begins.
??? A Timeless void without internet access or clocks. We have to give up electronic noise makers and cameras to get past security. Then, fortuately, I notice a tiny clock on the rear of the courtroom.
8:37 Wanger and Sancho seated. Bailiff was seen explaining to Sancho how time works in the courtroom. "Surely," I thought, "This could not be the first that they've heard of this?"
8:40 With nothing to do, Wagner gets up and steps into the audience area to approach the (teenage? I dunno, I'm old) daughter of the first US Attorney mentioned. Bleagh. 気持ちは悪い。Apparently Wagner wants to act fatherly and ask if the young woman feels like following in her mother's footsteps and pursue law.
8:41 OK, there really isn't anything to do right now. I don't know enough about furniture to describe the 3-seat bench and the plain-if-modern-looking accouterments of the courtroom. Looks like a medium grain wood or veneer, stained cherry. Lots of rounded corners and few decorations.
There is a central podium with a microphone, a fancy countdown clock (which can be controlled by the bench) and green, yellow and red lights.
A large silver on black seal of the 9th circuit is on the back of the court, behind the judges.
Above the entrance to the court, and therefore not in a position to easily be kept track of by the audience or attorneys is a tiny, low-contrast analogue clock, labeled in Roman numerals. It may be the second most ornate thing in the courtroom.
8:44 John Arbab (Mr. Skinny in this courtroom) is seated at the US Government side. Oh, yeah, baby. It's on.
8:45 Bailiff re-enters. Lays out paperwork for lead judge.
8:47 Sancho is amusing himself by turning back and forth in the provided swivel chairs. More people enter the audience.
8:50 Clerk begins layout of paperwork at the judges' seats. Bailiff calls for check-in of remaining attorneys.
8:57 A rush to fill the room. WW still seems excited and upbeat.
9:00 We start...
Wagner gives geography lesson (Arbab from Washington, CERN in Switzerland, suit filed in Hawaii) -- is he still whinging that the appeal is not being heard in San Francisco? Wagner gives story about LHC "accident." (Scare quotes deliberate.) Wagner gives testimony from the podium that LHC is only operating at "half energy" which, he says, makes his case is not moot provided that you assume that he works with quantitative models.
Judge One asks why this is a US problem. WW confirms 10% contribution to LHC. (Is he dropping the "dollarz" argument??) Wagner claims that two "experimental chambers" will shut down if further funding is withheld. Wagner claims US "Patriot Act" gives US authority to intervene.
Lead Judge severely questions if Wagner believes judges are literally going to order the troops to seize Swiss soil. The Lead Judge thinks it is unlikely that they have right to order military strikes. Wagner seems to back-track, leaving reporter confused as to his whole theory of law.
Wagner says that there is no NEPA review, and that's want he wants. He's not even saying that LHC can't pass a NEPA review.
8:05 Sancho begins by claiming NEPA gives authority and he wants to make four points. (I really don't know that he delimited his points at all, and I was left confused.) LHC is an "experimental weapon," says Sancho. Huh? "Supernovas" are bad, the very emotional Sancho tries to convey. Sancho claims standard science is on his side. Huh?
Judge Three asks what judges can do. Sancho nearly explicitly wants a political solution, and accuses
them (unclear if politicians, real scientists, or just CERN) of lying.
The Lead Judge addresses the Doctrine of Standing which leaves Sancho sort of flat-footed. Wagner steps up. Wagner states simply that they have standing because he is a citizen and Sancho is a resident of the US. The Lead Judge scoffs at this. Wagner goes on to say that they have standing because they imagine that LHC might kill them. The Lead Judge asks if this is all speculation. Wagner responds that it is by no means speculation and that there is a 50%-50% chance.
Sancho, who can't rub two legal sticks together, knows Wagner is speaking with a forked tongue, elbows Wagner aside and insists there is no speculation. Einstein, claims Sancho, says we will destroy the Earth.
Wagner then claims to quote someone (with improperly inserted commentary) saying something that suspiciously sounds like Wagner's source is saying, in a roundabout fashion, that LHC can't kill us via stranglets.
Well, that took us well-beyond Sancho and Wagner's 10 allocated minutes. And that time was time that they were supposed to argue and then re-argue their side. Now it's the Government's turn.
8:14 The Lead Judge jokes about the excess of time spend since after all this case concerns the End of the World and Einstein said time is relative. Chuckles all around.
Arbab begins addressing (US Constitution Article III) Standing by saying there are clear and serious standing issues including Redressibility and Causation. (i.e. What the US cannot do is actually stop LHC from operation, and so any court order will not have the desired effect as stated in the suit.) CERN is not even a defendant of this case, Arbab summarizes.
Judge One wants to know what is the US involvement. Arbab says DOE and NSF funded a very small amount. Judge Three quibbles that Arbab should say small percentage rather than small amount, since $0.55 billion is not trifling. Arbab sticks with the claim that percentage is what matters in case law in determining that this is not a "Major Federal Action."
Judge One directs for more from Arbab who says DOE has in the past (FY 2008) allocated funds to the detectors (he does not use Wagner's language of "experimental chambers", perhaps because he thinks the term is suspect), but that that US doesn't control LHC operation as given by Strauss' statement.
Neither plaintiff has standing, says Arbab. In addition, NEPA -- the only law cited in this case -- is not applied unless the LHC is a Major Federal Action.
And CERN, the only people who can switch the LHC off, is not a defendant.
Wagner then requests 1 minute to rebut, and is given 3.
Wagner says CERN is not only a defendant but CERN defaulted. The Lead Judge steps on this claim and says CERN was not properly served. Wagner flounders around and mutters that they can always correct that in the future if this case is reinstated.
Wagner states, with again nothing in the record, that US funding is integral to the operation of LHC. Without US-operated detectors, Wagner claims, operating the LHC would be pointless. (This would seem to contradict the claims made by Sancho that the LHC is an "experimental weapon.") But, Judge Three points out that the US does not have a finger on the on/off button. Wagner stumbles and repeats the hollow claim that if the US withdraws, the LHC would not continue to operate.
Sancho elbows Wagner out of the way to give a rambling statement which seems predicated that the US 9th Circuit could go back in time and unspend the $0.5 billion dollars.
Wagner returns to close with "we don't know what the outcome of NEPA will be" and admits that if NEPA is done he might have nothing to complain about but he nevertheless insists that NEPA procedures be done.
The Lead Judge then questions Wagner where he went to school. After a fuzzy CV (better ones are online by third parties) the Lead Judge states that he had (correctly) suspected a Berkeley connection was in there somewhere. Wagner was nonplussed. And then turned nasty and tried to assert authority in determining what was best for all America by claiming without basis (Wagner's genre of choice) that he had served the US Government since before the Lead Judge had. OUCH. Compared to Wagner's fooling around with clerical duties in a hospital somewhere in the late 1970's -- a career he left behind, the Lead Judge was serving his country since 1941. While not as cut-and-dried as Orly Taitz's calling a judge a traitor in filings made to that judge, this might be a gambit "that will live in infamy."
9:25 It is OVER. And now we go back to the waiting game.
