The Public Safety Exception to Miranda Rights

By

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April 21, 2013

Boston cityscape at night — Panoramic view of Boston cityscape at Fan Pier Park at night, USA

The capture of the one of the Boston bombing suspects has given the country a crash course in exceptions to Miranda rights. Many people are not familiar with the “public safety” exception to the well known Miranda rule.

Miranda was the result of a long line of cases that bars the government from using the statements of a defendant made during a custodial interrogation, to prove the case against the defendant, provided the statements were made before the defendant was told of their rights to remain silent and to an attorney. See, Miranda v. Arizona, 384 U.S. 436, at 444 (1966). The goal of this “exclusionary rule” is to prevent unlawful police conduct.

The Miranda Court specifically held:

Accordingly we hold that an individual held for interrogation must be clearly informed that he has the right to consult with a lawyer and to have the lawyer with him during interrogation under the system for protecting the privilege we delineate today. As with the warnings of the right to remain silent and that anything stated can be used in evidence against him, this warning is an absolute prerequisite to interrogation. No amount of circumstantial evidence that the person may have been aware of this right will suffice to stand in its stead. Only through such a warning is there ascertainable assurance that the accused was aware of this right.

Miranda v. Ariz., 384 U.S. 436, 471-472 (U.S. 1966).

The 1984 case of New York v. Quarles, 467 U.S. 649 (1984) created the “public safety” exception to Miranda. The Supreme Court in Quarles held that “overriding considerations of public safety” could justify a failure to provide Miranda warnings before initiating custodial interrogation. 467 U.S. at 651.

The April 13, 2013 case US v. Hodge, addressed whether the public safety exception applied to a defendant who made statements about a pipe bomb. The Hodge court provided the following summary of the “public safety” exception to Miranda:

[Q]uestioning is permissible when “officers have a reasonable belief based on articulable facts that they are in danger.” United States v. Talley, 275 F.3d 560, 563 (6th Cir. 2001). Determining whether an officer’s belief was “reasonable” requires “consideration [of] a number of factors, which may include the known history and characteristics of the suspect, the known facts and circumstances of the alleged crime, and the facts and circumstances confronted by the officer when he undertakes the arrest.” United States v. Williams, 483 F.3d 425, 428 (6th Cir. 2007). As this is an objective standard, the court reviews the reasonableness of an officer’s belief de novo. Talley, 275 F.3d at 563.

United States v. Hodge, 2013 U.S. App. LEXIS 7848, at *14 (6th Cir. Mich. 2013).

The Williams court stated the following test for applying the Quarles exception to guns:

The police officer has to have a reason to believe:

(1) That the defendant might have (or recently have had) a weapon, and

(2) That someone other than police might gain access to that weapon and inflict harm with it.”

Hodge, at *14, citing Williams, 483 F.3d at 428.

The Williams test is phrased in mandatory terms, because “The public safety exception applies if and only if both of those two conditions are satisfied and no other context-specific evidence rebuts the inference that the officer reasonably could have perceived a threat to public safety.” Hodge, at *14.

The Hodge court rejected the Williams test as applying to a pipe bomb for the following reasons:

[I]n a case involving a bomb, the presence of third parties who can access the bomb is usually not a compelling consideration. Bombs are potentially unstable and may cause damage if ignored or improperly handled by the police. We therefore agree with the government that Williams should be limited to situations where the “weapon” in question is one that a person must physically handle in order for it to present a threat to officers.

Hodge, at *15.

The holding in Hodge was based on the types of questions asked by the police to the defendant: Was there “anything in the house that could get anyone there hurt” and questions after the defendant said a bomb was in the house. Hodge, at *17. The Court stated the following on the application of Quarles to the Hodges facts:

As to the first set of questions, Gandy and Pierce had a “reasonable belief” that there was a pipe bomb in Hodge’s house when they arrived to execute the search warrant. Banks, the named informant, claimed that Hodge possessed a pipe bomb that could “blow up the entire house” if detonated and that he intended to hurt police if confronted. The relatively limited inquiry Gandy and Pierce made was appropriately tailored to the information they possessed. Once Hodge admitted the bomb was in the home, the questions Gandy and Robinson asked him were all directed to obtaining information about the bomb’s construction and stability. Both Khalil and Spoerke deemed such questions acceptable even though there was no evidence that a third party could access the bombs. Accordingly, we conclude that the district court did not err in finding that Hodge’s statements about the bomb, as well as the bomb itself, were admissible under Quarles.

Hodge, at *17-18.

The tragedy in Boston is a live case. How a court rules will turn heavily on the facts and the types of questions asked of the defendant. With that stated, the result in Hodge should provide a court significant guidance in determining whether the public safety exception applies to a defendant who has not been advised of his rights to counsel and against self-incrimination.

I personally believe that there must be clear reasons for invoking the public safety exception to Miranda. Finding bombs left in public or in a home where a search warrant is being executed are two such reasons. To put it simply, bombs put lives at risk. There is nothing hypothetical about the danger.

However, trying to compel a defendant to name others, or questions of motive, might be a violation of the exception to Miranda in the eyes of some judges, because the interrogation is going beyond “overriding considerations of public safety” such as the location of a gun or bomb.

The 5^th Amendment right against self-incrimination and the 6th Amendment right to counsel are hallmarks of the United States legal system. We passed them as Constitutional Amendments as a testament to values we believe in as a nation. There is a substantial body of case law because our Constitution and Bill of Rights is what separates us from the police states of Nazi Germany or the Soviet Union we fought against during our finest hours of the 20^th Century. Moreover, the prose of Supreme Court Justice Black in Gideon is something no one should forget: The right of one charged with crime to counsel may not be deemed fundamental and essential to fair trials in some countries, but it is in ours. Gideon v. Wainwright, 372 U.S. 335, 344 (U.S. 1963). Informing someone charged with a crime of their Constitutional rights is not selectively applied depending on the crime committed; informing those charged with a crime of their rights is what makes us the United States. Deviating from Miranda should only be done with careful thought of the risks to public safety.

There will be much commentary in the days and months ahead on this case. Expect to hear precedents such as Miranda, Quarles and Hodge discussed by attorneys as this issue is resolved before a judge.

Howard Stern vs. his bosses – Why does Howard always lose?

By

Jessica_alegalgeek

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April 16, 2013

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Poor Howard. For a guy who’s been so successful, he sure has problems with his bosses. Stern’s battles with NBC were immortalized in Private Parts while anybody who listened to his last days on terrestrial radio knew how much he hated Les Moonves. And then he met satellite radio, moved to Sirius Radio, and lived happily ever after…for a while.

Everything seemed great at first. He could cuss and swear and do all kinds of crazy things (or have Richard and Sal do crazy things). He loved his boss, Mel Karmazin, and got paid a bunch of money. And he made Sirius very successful; so much so that it was able to essentially force a merger with its once dominant competitor, XM Radio.

And that’s when trouble began brewing in paradise. Howard claimed that, because of the additional XM subscribers, he was entitled to a $300 million performance bonus that had been part of his Sirius contract – a bonus that was triggered if Sirius added a certain number of subscribers. SiriusXM disagreed, stating that he was only entitled to that bonus if Sirius subscribers surpassed a certain benchmark, and that the XM subscribers should not be viewed as “Sirius subscribers.”

Howard and his agent filed suit. SiriusXM moved for summary judgment on Howard’s claims, arguing that, as a matter of law, Howard’s claims should be dismissed. And the court agreed, citing to the “clear, unambiguous language” of Howard’s contract.

So Howard appealed. And now he’s lost again. He’s obviously disappointed (that’s a lot of money left on the table). And, according to Howard himself on his show today, he’s frustrated with the legal system and feels that he never got his day in court.

But the truth is that Howard did get his day in court, even if it’s not the way he pictured it. Many people don’t realize that not all issues go to trial, with their judges, juries, witnesses, and dramatic gestures. Instead, those moments are reserved for factual questions. If the only issues that are disputed are strictly legal (in other words, a jury would never get to weigh in on the dispute because they are questions that are reserved for judges), then any party can move for summary judgment if it wants to. A summary judgment motion “is appropriate if, viewing all facts in the light most favorable to the non-moving party, no genuine issue exists as to any material fact, and the moving party is entitled to judgment as a matter of law.” BGC Partners, Inc. v. Refco Securities., LLC, 2012 WL 1255253, 2 (N.Y.Sup. 2012).

Summary judgment motions are often used in such cases as Howard’s, where the issue is whether a contract has been breached. A breach of contract dispute requires the court to interpret the contract, and the general rule followed in New York and most states is that where the language of a contract is clear, unequivocal, and unambiguous, then the contract is to be interpreted by its own language. See R/S Associates v. New York Job Development Authority, 98 N.Y.2d 29, 32, 771 N.E.2d 240, 242, 744 N.Y.S.2d 358, 360 (N.Y. 2002). The underlying rationale for this principle is that when parties write down an agreement in a clear, complete document, then the words that they use in that contract should be enforced according to the contract’s own terms. See id. The only time extrinsic evidence (a.k.a. “evidence outside the four corners of the document”) will be considered by the court is if a term is ambiguous (e.g., subject to more than one meaning).

The reasoning behind this principle is sound. If the parties hammer out a written agreement (and, in the case of Howard’s agreement with Sirius, there were surely teams of lawyers on both sides), then one party shouldn’t be able to come back later and say, “Well, I don’t care what the words of the written contract say, I actually meant Y when I said X in the contract.” On the other hand, if the parties goof up and use a term that can be interpreted in multiple ways, then the courts will allow the parties to introduce evidence (e.g., testimony, emails, drafts of the contract) to show what each side meant when they used that term.

So back to Howard’s complaint that he never got his day in court…summary judgment motions are a party’s “day in court” for strictly legal questions, such as interpreting contract language. To deny parties a right to resolve legal issues upfront, before incurring all of the expenses required to gear up for a full trial (including discovery on a bunch of factual issues that wouldn’t even matter because of the legal issues that either trump them or make them moot), would be a waste of the court’s time and parties’ resources (although, as a litigator, that would mean more work for me).

The ultimate question in Howard’s case isn’t whether he got his day in court – it’s whether the court (and, now, the appellate court) were right to find that “Sirius subscribers” was an unambiguous term, such that factual disputes regarding its meaning were irrelevant. As a staunch Howard fan I’m afraid I have to recuse myself from that discussion, because there’s no way I can be impartial. Baba booey!

Magnum PI: Renters Rights & Contracts in Paradise

By

Josh Gilliland

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April 13, 2013

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Hawaii. Fast cars. Beautiful women.

Internal monologues.

And one always broke Navy SEAL.

Magnum, PI was one of the definitive shows of the 1980s. The stories focused on doing what was right and highlighted the honor of those who served in the United States military.

It also raised many legal issues….like was Thomas Magnum a tenant or guest on Robin Masters’ estate, “Robin’s Nest”?

In the first episode of Magnum PI, Magnum is staying in Robin Masters’ guest house, driving the [awesome] Ferrari 308 GTS and serving as the head of security of the estate. This was an unpaid position that included Magnum testing the security systems of the property. Other duties included rescuing the daughter of one of Robin’s friends in Italy and helping with security of Robin’s mansion in England (in different seasons). Would these services constitute rent for staying at the Robin’s Nest?

Under Hawaiian law, a “landlord and tenant may agree to any consideration, not otherwise prohibited by law, as rent.” HRS § 521-21. Additionally, if there is not a written rental agreement between the parties as to the tenancy of a lease, the tenancy is a month to month lease. HRS § 521-22.

The unwritten security services for staying in the guest agreement between Robin Masters and Magnum appear to form a rental agreement. However, there is one structural problem with this agreement: No written document, meaning the lease could be unenforceable under the statute of frauds. HRS § 490:2A-201. However, since there was contract performance by Magnum in his security duties, this arguably would eliminate the statute of frauds issue. See, Shannon v. Waterhouse, 58 Hawai’i 4, 5-6, 563 P.2d 391, 393 (1977).

If Magnum was a valid tenant, this would mean Magnum could exclude others from entering the guest house. However, Higgins virtually never knocked before entering the guest house, which arguably would violate the renter’s rights to have uninterrupted use of the property.

This Reminds Me of One Time…

Magnum frequently entered into oral contracts with Higgins.

The contracts usually included specific use of Robin’s Nest, such as use of the tennis courts, wine cellar, cars and other parts of the property.

These oral contracts were arguably lease modifications that present statute of frauds issues.

However, since both Higgins and Magnum were men of honor that performed their promises, the performance would remove any enforceability issues for the lack of a written document.

The Island Hoppers

Magnum called on his friend TC for helicopter flights in numerous episodes.

These flights, agreements for payment and repairs for small arms fire, should have all been in writing.

One episode had TC’s “tab” up to $800 for all the flights.

However, since TC performed the flights, he would be entitled to payment from Magnum for services rendered.

Why Oral Contracts?

It is a surprise that a billionaire author would not have an attorney write up a lease agreement with a renter acting as his chief of security. However, perhaps because Robin had such honor and prestige, the idea of not performing simply was not the behavior of those he befriended. Regardless, the only compensation for employment being a place to stay and a car to drive might be a great deal for Robin, but might violate some employment laws.

Doctor Who: An Adventure in Cyber-Security & Identity Theft

By

Josh Gilliland

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April 1, 2013

1

The new season of Doctor Who opened with questions about the impossible girl who died twice. The Bells of Saint John also offered excellent examples of cyber-security, computer forensics and social media investigations for all the lawyers on the planet.

New Form of Identity Theft

The story involved the villain “uploading” the souls of WiFi users who clicked on an unknown WiFi connection.

This rendered the body lifeless, with the souls trapped in an online purgatory known as the “data cloud.”

What legal issues can we we surmise from such wrongdoing?

First, never click on an unknown WiFi Connection.

It can subject you to other individuals accessing your data.

This unauthorized access brings us to the first possible legal issue: Identity Theft.

“Identity Theft” under California law is defined as follows (other states and countries have similar provisions):

(a) Every person who willfully obtains personal identifying information, as defined in subdivision (b) of Section 530.55, of another person, and uses that information for any unlawful purpose, including to obtain, or attempt to obtain, credit, goods, services, real property, or medical information without the consent of that person, is guilty of a public offense, and upon conviction therefor, shall be punished by a fine, by imprisonment in a county jail not to exceed one year, or by both a fine and imprisonment, or by imprisonment pursuant to subdivision (h) of Section 1170.

Cal Pen Code § 530.5

Would uploading someone’s soul to be trapped in an unholy cloud sever count as identity theft? While every byte of someone’s life is literally being stolen, it is not being taken with the intent to defraud to acquire a good or service. However, this act would still be considered an “unlawful purpose” because it would be a very unique form of kidnapping and murder.

The upload of a person would be a form of kidnapping, because it is the forcibly detainment of a “person” in online storage. This would be a untested reading of California Penal Code § 207, because the body of the person is normally taken in a kidnapping.

Despite the soul surviving in the data cloud, the human body dies after the upload. This opens up murder and wrongful death claims against the Great Intelligence and fellow co-conspirators in the cyber-kidnapping conspiracy. Additionally, there could be attempted murder charges for those who were downloaded back to their bodies.

A Note On Computer Forensics

The Bells of Saint John showed the uploading of a human soul in a matter of minutes. The bandwidth and processing speed must have been alien to have been done so quickly. While I am not a computer forensic expert, I have seen the byte-by-byte capture of a 500GB hard drive take several hours.

Scientists have estimated based on the number of neurons combinations in the brain that the human brain’s memory storage capacity is around 2.5 petabytes of information (1 million gigabytes is equal to one petabyte or 13.3 years of HD-video).

Capturing the content of the human mind, let alone the soul, would require an extreme amount of processing power and WiFi bandwidth to upload a “soul” in a matter of minutes. Greg Kipper, computer forensic expert and author of Augmented Reality: An Emerging Technologies Guide to AR, estimated to collect 2.5 petabytes over WiFi, it would take weeks, if not months. As Greg said, it would be like “pouring the ocean through a straw” for just the raw data.

Social Media Investigations

Social media is a hot topic in eDiscovery, with the issues covering everything from privacy rights to profile preservation. Clara Oswald, the new companion, provided an excellent example of social media investigation to identify the corporate “villain” in the story. The investigation included hacking into the corporate webcams to take photos of users and matching the faces on social media sites to see who the individuals listed as their employers. While most private eyes do not break anti-hacking laws to take webcam photos, the character of Clara Oswald brilliantly demonstrated how to use social media to identify a key fact in a dispute. In most cases, the issue can be anything from photos in a worker’s compensation case showing a purportedly injured person water skiing to trademark infringement to when someone “checked in” at a location.

I have a feeling it was not Steven Moffat’s intent to write an episode about social media investigations (which would also be awesome on Sherlock). However, the episode was a wonderful example for attorneys on how social media can be used in a lawsuit to prove a party’s knowledge or location when an incident occurred.

Where will the 50th Anniversary of Doctor Who take us legally? Who knows, but Chapter 11 may cover the Rule Against Perpetuities.

Doctor Who: An Adventure in Cyber-Security & Identity Theft

By

Josh Gilliland

-

April 1, 2013

0

The new season of Doctor Who opened with questions about the impossible girl who died twice. The Bells of Saint John also offered excellent examples of cyber-security, computer forensics and social media investigations for all the lawyers on the planet.

New Form of Identity Theft

The story involved the villain “uploading” the souls of WiFi users who clicked on an unknown WiFi connection.

This rendered the body lifeless, with the souls trapped in an online purgatory known as the “data cloud.”

What legal issues can we we surmise from such wrongdoing?

First, never click on an unknown WiFi Connection.

It can subject you to other individuals accessing your data.

This unauthorized access brings us to the first possible legal issue: Identity Theft.

“Identity Theft” under California law is defined as follows (other states and countries have similar provisions):

(a) Every person who willfully obtains personal identifying information, as defined in subdivision (b) of Section 530.55, of another person, and uses that information for any unlawful purpose, including to obtain, or attempt to obtain, credit, goods, services, real property, or medical information without the consent of that person, is guilty of a public offense, and upon conviction therefor, shall be punished by a fine, by imprisonment in a county jail not to exceed one year, or by both a fine and imprisonment, or by imprisonment pursuant to subdivision (h) of Section 1170.

Cal Pen Code § 530.5

Would uploading someone’s soul to be trapped in an unholy cloud sever count as identity theft? While every byte of someone’s life is literally being stolen, it is not being taken with the intent to defraud to acquire a good or service. However, this act would still be considered an “unlawful purpose” because it would be a very unique form of kidnapping and murder.

The upload of a person would be a form of kidnapping, because it is the forcibly detainment of a “person” in online storage. This would be a untested reading of California Penal Code § 207, because the body of the person is normally taken in a kidnapping.

Despite the soul surviving in the data cloud, the human body dies after the upload. This opens up murder and wrongful death claims against the Great Intelligence and fellow co-conspirators in the cyber-kidnapping conspiracy. Additionally, there could be attempted murder charges for those who were downloaded back to their bodies.

A Note On Computer Forensics

The Bells of Saint John showed the uploading of a human soul in a matter of minutes. The bandwidth and processing speed must have been alien to have been done so quickly. While I am not a computer forensic expert, I have seen the byte-by-byte capture of a 500GB hard drive take several hours.

Scientists have estimated based on the number of neurons combinations in the brain that the human brain’s memory storage capacity is around 2.5 petabytes of information (1 million gigabytes is equal to one petabyte or 13.3 years of HD-video).

Capturing the content of the human mind, let alone the soul, would require an extreme amount of processing power and WiFi bandwidth to upload a “soul” in a matter of minutes. Greg Kipper, computer forensic expert and author of Augmented Reality: An Emerging Technologies Guide to AR, estimated to collect 2.5 petabytes over WiFi, it would take weeks, if not months. As Greg said, it would be like “pouring the ocean through a straw” for just the raw data.

Social Media Investigations

Social media is a hot topic in eDiscovery, with the issues covering everything from privacy rights to profile preservation. Clara Oswald, the new companion, provided an excellent example of social media investigation to identify the corporate “villain” in the story. The investigation included hacking into the corporate webcams to take photos of users and matching the faces on social media sites to see who the individuals listed as their employers. While most private eyes do not break anti-hacking laws to take webcam photos, the character of Clara Oswald brilliantly demonstrated how to use social media to identify a key fact in a dispute. In most cases, the issue can be anything from photos in a worker’s compensation case showing a purportedly injured person water skiing to trademark infringement to when someone “checked in” at a location.

I have a feeling it was not Steven Moffat’s intent to write an episode about social media investigations (which would also be awesome on Sherlock). However, the episode was a wonderful example for attorneys on how social media can be used in a lawsuit to prove a party’s knowledge or location when an incident occurred.

Where will the 50th Anniversary of Doctor Who take us legally? Who knows, but Chapter 11 may cover the Rule Against Perpetuities.

Veronica Mars: awesome show…spotty legal record

By

Jessica_alegalgeek

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March 29, 2013

0

The recent Kickstarter campaign for a Veronica Mars movie inspired me to go back and start rewatching the show again from the beginning. It’s the first time I’ve done this since it was canceled and it’s fun to watch everyone now, knowing who Lily’s murderer turned out to be in the end. I’m also enjoying watching the development of Dick Casablancas, the best d-bag ever put on the small screen.

As I rewatch the show I’m also amazed at the fact that, while the sheriff and his deputies are always around, there appears to be very little concern for the letter of the law. Just in watching the first few episodes again I’ve already “issue-spotted” several acts that seem highly questionable and should certainly expose people to liability, including:

Vandalism. There’s a lot of vandalism all around, but Logan smashing in Veronica’s headlights is a particurally clear example of property destruction. On a side note, now knowing how Logan’s dad punished him, I felt really bad for him when he talked about getting in trouble with his father after the bong was found in his locker.

Bullying: Poor Wallace was taped naked to the school flag pole and not one school official reacted, despite the fact that enough time had passed that there was a huge crowd gathered around him. Nor did the school ever follow up and expell or suspend Eli. So much for zero tolerance policies.

Evidence tampering: Veronica actually started a fire (or a smoke-out of some sort) in the evidence room at the police station…and then had a firefighter switch out actual evidence that was to be used in a criminal trial for another videotape (that also showed possibly criminal – and certainly unethical – behavior by certain police officers). That’s huge and all she got was a dirty stare from the sheriff.

And these are only a few examples…just from the first disk I received from Netflix! There are more as the show goes on and while I understand that the law can’t be applied too strictly in Hollywood, the almost complete lack of a balanced legal system is a bit problematic. But, even with that legal thorn in my side, I still forgive VM because she is my favorite detective, her dad is probably only second to Spy Daddy in fatherly awesomeness, and I cannot wait for the movie to finally happen!

Could President Nixon Really Blow Up Great Britain in Dr Who Prisoners of Time?

By

Josh Gilliland

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March 26, 2013

0

There really is no Hallmark Card for ordering a nuclear attack on an ally country because of an alien invasion. That is exactly what [the fictionalized] President Richard Nixon did in the third issue of the comic book Doctor Who Prisoners of Time celebrating the 50th Anniversary of Doctor Who.

And what surely will give people pause on realpolitik, it worked. The aliens threw up their “hands” and left Earth because of the oncoming nuclear attack.

So, could the [fictional] President Nixon simply order a nuclear attack on Great Britain? First, let’s understand the basic facts of the story.

Prisoners of Time is perhaps the only “all Doctor” story we will see for the 50th Anniversary of Doctor Who in 2013.

The story so far has focused on the first three Doctors.

There is a hooded villain with weathered skin wearing a Vortex Manipulator kidnapping the Doctor’s different traveling companions.

I suspect that the final story will have all the Doctors saving all of the traveling companions from whoever the villain is (It might be the Valleyard given the personal nature of the kidnappings, but the Master or another classic villain are possibilities).

The third issue of Prisoners of Time had members of UNIT taken over by Remoraxians, who were trying to flood the planet with rain storms, causing the oceans to rise. A CIA Agent helping the Third Doctor tells President Nixon of a failed rescue, thus Nixon orders the attack on Great Britain to save the Earth.

The US Constitution, Article I, gives the Congress the power to declare war. Article II of the Constitution names the President at the Commander-in-Chief of the military. In 1973, after Vietnam and the Tonkin Gulf Resolution, Congress passed the War Powers Act over President Nixon’s veto. The relevant part of the Act states:

Presidential Executive Power as Commander-in-Chief; Limitation The constitutional powers of the President as Commander-in-Chief to introduce United States Armed Forces into hostilities, or into situations where imminent involvement in hostilities is clearly indicated by the circumstances, are exercised only pursuant to (1) a declaration of war, (2) specific statutory authorization, or (3) a national emergency created by attack upon the United States, its territories or possessions, or its armed forces.

There is still debate whether Congress could limit Presidential power, which has not yet been litigated (the debate about using Drones in Libya without Congress authorization highlights the issue is still alive).

As to our story, there is no mention of President Nixon consulting Congress other than ordering the bombers (most likely B-52’s) to conduct a nuclear attack on Great Britain. However, the attack arguably was legal under section three of the quoted War Powers Act passage, because the Remoraxians had attacked the United States, and the rest of the planet, with a weather attack. This created national emergency, enabling the President to order an attack without Congressional authorization….and ironically help save the world.

Spoiler: They did turn the bombers around and did not nuke England. Good thing Nixon did not launch ICBM’s.