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INTRODUCTION
I. THE NUCLEAR FUEL CYCLE AND
THE RISKS POSED BY PLUTONIUM
II. PREVENTING THEFTS OF PLUTONIUM
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A. Employee Security
III. RECOVERING STOLEN PLUTONIUM
IV. MANDATORY REVIEW OF THE CIVIL LIBERTIES
IMPACT OF PLUTONIUM RECYCLING
Since the beginning of the atomic age thirty years ago, the awesome power of nuclear weapons has been perceived as an unprecedented threat to human liberty as well as to human life. [1] Most speculation about life in this country in the aftermath of a nuclear attack assumes that personal freedoms would be sharply curtailed. [2]
On the other hand, the development of atomic power for peaceful purposes, primarily for the generation of electricity, has proceeded without much concern about its impact on civil liberties.
This peaceful coexistence
... Both the AEC [Atomic Energy Commission] and its critics agree that plutonium is one of the most dangerous substances in existence [15] due to its extremely high toxicity [16] and its potential for use in nuclear explosives. [17] Therefore any system which produces and uses large quantities of plutonium must adopt measures designed to prevent its appropriation by persons bent on destruction. [18]
Most discussions of this question deal with such ''safeguard'' measures in terms of their practicality, their economic costs, and their effectiveness in reducing the risk of theft or sabotage. [19] Less often taken into account is the inevitable impact almost all safeguards [will] have on the civil liberties of persons both within and without the nuclear power industry. [20]
Although safeguard procedures have existed in the private nuclear industry since its beginnings two decades ago without posing serious threats to civil liberties, [21] the existing safeguards system is conceded to be inadequate to deal with the risks posed by plutonium recycling [22] and stronger measures are clearly called for. [23]
It is thus appropriate that plutonium recycling be evaluated from a civil liberties perspective as well as from economic and environmental perspectives.
The argument will proceed in three stages.
Advance consideration of the civil liberties consequences of plutonium recycling is essential.
Where the civil liberties costs of governmental action are serious and foreseeable, as they are in the case of plutonium recycling, those costs must be taken into account before such action is initiated.
Exactly how serious are the civil liberties costs of plutonium recycling is the subject of the sections that follow. From that discussion should emerge a conclusion as to whether any of the alleged benefits of [plutonium] recycling are sufficient to justify its costs.
Fuel for nuclear reactors must be prepared, either by enriching natural uranium [36] ... or by artificially producing elements, such as plutonium, which can be used as reactor fuel by themselves. [37]
Since the technology and capital necessary to carry out large-scale preparations of reactor-grade or weapons-grade fuels from natural ores are not available to small private groups, [38] one can conclude that, but for the operation of the civilian nuclear power industry, the basic materials necessary to fashion nuclear weapons would not be available to such groups. [39]
Plutonium in accessible and transportable form is not produced until late in the reactor process....
The fission process in the reactor produces radioactive waste products, [42] plutonium, [43] and some unused uraniurn. [44] These materials may be separated from each other by chemical processes. [45] Prior to separation, however, the presence of the radioactive wastes effectively deters thefts of the [plutonium-bearing] material by requiring that it be handled in massive lead containers.
The plutonium, once recovered [or "separated"], is potentially useful as fuel for nuclear reactors. Until 1972, the practice was to transfer it to the military for use in fabricating nuclear weapons or to place it in long term storage. [46]
Currently ... the plutonium is left mixed with the other radioactive waste products. The present ... fuel cycle, [48] therefore, effectively removes from commerce all significant amounts of the plutonium which are produced. [49]
The proposal to recycle plutonium would decisively transform the current treatment of plutonium and vastly increase the opportunities for its abuse.
Under the proposal, relatively pure plutonium would be separated from the radioactive waste products and transferred out of storage to mixed oxide [MOX] fuel fabrication plants, [50] where it would be combined with ... uranium [51] to produce new fuel assemblies for use in ... reactors. [52]
This procedure would add to the nuclear fuel cycle several new stages in which plutonium would be present and vulnerable to theft: ... and
If plutonium recycling is implemented, private parties will be able to use stolen plutonium to vastly increase their power in relation to the rest of society.
Although the first atomic weapons were developed in great secrecy, the techniques for constructing crude nuclear weapons have become public knowledge in the intervening thirty years.... Since all the material, other than plutonium, needed to build a bomb is available from commercial hardware and chemical suppliers, [58] the present obstacle to the private construction of nuclear weapons is the unavailability of plutonium. [59]
The yield of a privately constructed nuclear weapon could be as much as a kiloton [equivalent to the explosion of a thousand tons of TNT], [60] and used resourcefully it could wreak havoc on a scale many thousands of times greater than that achieved by other acts of political violence in the past. [61]
An area contaminated by plutonium would be uninhabitable for an indefinite period of time. And most noteworthy, effective dispersal of plutonium in the air would not require the construction of a nuclear explosive; it could be achieved using conventional explosives or simply by relying on the wind. [64] Indeed, one could achieve this result by sabotaging a container of plutonium during shipment or storage; it would not even be necessary to steal it. [65]
Such persons could work with large quantities of plutonium for as long as it took to fabricate a nuclear weapon or dispersal device without being exposed to dangerous levels of radiation.
Plutonium is perhaps the most dangerous substance known to man. Since its half-life is 24,400 years, [68] it retains its hazardous characteristics over a period of time longer than the entire history of civilization.
Most importantly for legal analysis, the potential consequences of a single irresponsible use of plutonium are many times deadlier than those of any other dangerous acts that the law operates to deter. [69]
A serious question thus arises regarding what level of risk of such events our society is willing to tolerate and what sacrifices of personal freedom it is willing to demand in order to control that level of risk.
The question is complicated by the need to devise plutonium safeguard strategies sufficiently broad to anticipate and deal with the numerous types of persons seeking to acquire plutonium and the possible motivations for attempting to do so. [70] Most such persons would have the incentive and the means to keep their identities secret; [71] in the society at large, therefore, everyone would be a potential suspect and the basic presumption of innocence would be threatened. [72]
Since the motives and interests of these persons and groups vary widely, any attempt to spot them all in advance would probably fail. In the end, it is probable that no system of safeguards, however restrictive, will be entirely effective in deterring all thefts and sabotage attempts. It would be tragically ironic if society decided to surrender substantial individual liberties for security reasons and then experienced the very disaster it sought to avoid.
Nevertheless, if recycling is implemented, the need to safeguard plutonium against theft will create pressure for stringent security measures which courts and legislatures may find difficult to resist.
... Until quite recently, safeguards philosophy has centered around materials accounting, focusing on monitoring the flow of special nuclear material [such as plutonium] through the fuel cycle and detecting and accounting for missing materials. [79] Efforts are directed at minimizing the amount of material unaccounted for (MUF).
Since no system is precise enough to keep track of a substance down to the last atom, finite amounts of MUF must be tolerated. The AEC [Atomic Energy Commission] therefore has established limits of error (LEMUF) which must be observed; the [MUF] limit for plutonium is 0.5 percent. [80]
Exclusive reliance on materials accounting is clearly inadequate, however. [81]
... The AEC ... is seriously considering safeguard methods which would have profound effects on civil liberties.
Two broad classes of methods will be considered here:
Whatever means of safeguarding plutonium are adopted, human beings will have access to and responsibility for quantities of plutonium at many stages in the fuel cycle. [90] Moreover, the safeguard measures themselves, including materials accounting, will require human supervision.
Some means to insure that persons working within the nuclear power industry are not inclined to steal plutonium or subvert the safeguards system would therefore seem appropriate. [91]
... Having secured in 1974 the passage of an amendment to the Atomic Energy Act of 1954 which purports to grant it authority to investigate the ''character, associations, and loyalty'' of plutonium workers, [94] the [Atomic Energy] Commission is now prepared to establish "standards and specifications" [95] that will determine who can and cannot obtain such jobs.... [96]
... One area of concern involves the government's power to acquire information about a prospective employee in order to decide whether to hire him, or about an incumbent employee in order to decide whether to retain him. [98] Courts have been concerned with the effects of such investigations on the individual's freedoms of speech and association, [99] the right to be free from unreasonable searches and seizures, [100] and the right to privacy .101]
Another path of discussion is that of substantive due process, in which the courts have inquired whether certain justifications for dismissal or discipline of employees are constitutionally permissible. [102] In this area, protected constitutional rights must be balanced against the state's interest in hiring and retaining only persons who are "trustworthy" and "loyal." [103]
Finally, there is the path of procedural due process, which concerns the employee's right to notice and a hearing before the government may dismiss him. [104] In general, the decided cases favor the rights of the employee by erecting constitutional barriers to compelled disclosures of information, by demanding strong justification for discharges based on protected conduct, and by requiring procedural safeguards prior to dismissal.
The most serious civil liberties problems for nuclear industry employees will concern their due process rights not to be denied employment or fired for constitutionally impermissible reasons. [105]
Two kinds of cases may arise:
... Investigations of the character, associations, and loyalty of applicants for positions entailing access to restricted data are ordinarily made by the Civil Service Commission, [109] although either the President [110] or the AEC [111] may determine that the position is sufficiently sensitive that an FBI investigation of the applicant is required. [112]
... The AEC has promulgated regulations which establish substantive criteria for determining an applicant's access to restricted data. [114] Though certain of these appear to be at odds with judicially established due process requirements, [115] the AEC allows an individual to rebut any information which is derogatory to him [116] and provides that some aspects of the applicant's character or background are not conclusive for denial of access authorization. [117]
Until enactment of the 1974 amendments to the Atomic Energy Act, [118] however, the statute was silent on the power of the AEC to regulate access to plutonium and other special nuclear material, and the [Atomic Energy] Commission read the Supreme Court's decision in Schneider v. Smith [119] as indicating that a personnel background check program for plutonium workers would not be valid unless expressly authorized. [120]
... The underlying issue in Schneider -- whether the government can deny employment in sensitive positions to members of dissident groups -- will arise again in the nuclear power industry if plutonium recycling is implemented.
... The new statute amends section 161(i)(2) of the Atomic Energy Act of 1954 [128] so as to grant the AEC authority
to guard against the loss or diversion of any special nuclear material ... including regulations or orders designating activities ... that may be conducted only by persons whose character, associations, and loyalty shall have been investigated under standards and specifications established by the Commission.... [129]
While there is no doubt that this legislation "make[s] explicit the authority of the Commission to conduct a program for approval of persons to have access to, or control over, significant quantities of special nuclear material," [130] the question that must be addressed ... is what kind of program it authorizes.
The statute speaks of investigations of "character, associations, and loyalty"; so also in Schneider the Coast Guard Commandant was seeking to assess the "character and habits of life" of merchant seamen. [131] Since the AEC has not yet promulgated regulations under the new statute, it is not yet apparent whether it seeks to utilize the [same kind of] searching background inquiries [which the court] found in Schneider to be unauthorized. [132]
However, the contrast between the innocuous manner in which the AEC presented its statute to the Congress [133] and the extensive powers it feels it derives from it [134] raises questions about its intentions.
... Employees who express opposition to nuclear energy or nuclear industry policies or who associate themselves with dissident organizations may be regarded as untrustworthy custodians of plutonium by their employers and by the AEC. [135] Aspects of employees' private lives, such as sexual conduct or personal finances, may be used as grounds for dismissal or demotion. [136]
The excessive suspicion which some nuclear industry officials feel toward employees has recently received attention in the press. Workers at the Kerr-McGee nuclear fuel processing plant at Cimarron, Oklahoma, were required to take lie detector tests before being allowed to work; those who refused to take the tests were demoted and transferred to menial jobs. [137]
The workers were asked, among other things,
Whether an affirmative answer to any of these questions would support an inference that a worker was likely to attempt to steal plutonium is difficult to determine in the abstract. [139] However, in light of the disasters which could occur as a result of a plutonium theft, measures which even minimally increase the chances of preventing such thefts might seem justified and might be adopted by the AEC.
Insight into the likely substance of future security regulations in the nuclear industry and their effects on the rights of employees may be gained by examining the military security regulations governing access to nuclear weapons. Indeed, as a policy matter it is logical that security regulations in the civilian nuclear power industry should be no less stringent than those in the military nuclear weapons program. [140]
... A system like the military's, demanding an individualized determination of an employee's trustworthiness, might be preferable to one which made mechanical decisions based on a checklist of "reliability factors." On the other hand, a system based on discretion could easily be abused, and its decisions would be nearly impossible to review.
... The ultimate question is whether the courts will perceive the dangers of plutonium to be so overwhelming as to allow them to ... hold that the new statute authorizes the AEC to restrict the civil rights of plutonium workers in the interests of national security. At stake are the civil liberties of thousands [145] of civilian employees in the nuclear power industry.
Their claims to freedom from prying investigations and from restrictions on private associational activities confront the courts with a difficult dilemma.
In view of the enormous stakes involved, it seems likely that the courts will allow the AEC broad latitude in drafting its employee security regulations, to the extent of imposing a military order of rights and obligations on civilian workers in the plutonium industry. [151]
If plutonium is so dangerous that we must tolerate such serious restrictions on the freedoms of plutonium workers, then perhaps the decision to use plutonium is unacceptably costly in terms of our civil liberties.
Chief Justice Warren expressed a similar view in his opinion in the Robel case, in which he declared that
Indeed, plutonium recycling presents a double irony for our constitutional system: in addition to the civil liberties infringements which undermine the very purposes justifying the defense of the nation, there is the additional possibility that a thief or saboteur will slip through the security system anyway, no matter how strictly it is enforced, and thereby make the defense of the nation impossible.
Plutonium safeguards must seek to deter thefts by persons outside the nuclear power industry as well as by persons within it. The kinds of persons and groups who are regarded as likely to want to steal plutonium are numerous:
The Rosenbaum Report to the AEC recommended that nuclear safeguards be designed to deter a "maximum credible threat" consisting of an armed attack on a nuclear facility or transportation element by ''fifteen highly trained men, no more than three of which work within the facility or transportation company from which the material is to be taken." [154]
There are of course many ways for the AEC and the nuclear power industry to handle the possibility of a "maximum credible threat." Certainly they will want to make plutonium harder to steal, either by "spiking" it with highly radioactive materials [155] or by adding more concrete and armor to the facilities in which it is stored and transported. [156]
In addition, the number, training, and equipment of armed guards charged with protecting nuclear plants and transportation facilities could be significantly improved. [157]
These measures are designed to insure that, if an attack on a nuclear facility occurred, the attackers would be prevented from taking any plutonium. Equally important are measures that seek to prevent attacks from occurring at all or that provide advance information to authorities of the time and place of the attack. [158]
Even unsuccessful attacks could be catastrophic if the use of large amounts of force by either attackers or defenders caused damage to the nuclear facility and released dangerous radioactive material into the environment. [159]
These considerations suggest that information gathering through covert surveillance will probably be a major weapon in the arsenal of plutonium safeguards.
Curiously, the AEC makes no mention at all of covert surveillance in its draft environmental impact statement. [160] However, the need for surveillance was clearly perceived by the authors of the Rosenbaum Report, who wrote:
It is not the AEC's business to conduct this sort of intelligence, but it is the AEC's business to see that those agencies of the United States Government which have intelligence gathering responsibilities, including the FBI, CIA, and NSA, focus their attention upon this particular threat to our national defense and security....
The AEC should establish a continual and strong liaison with the CIA, FBI, and other appropriate agencies, and should exert every effort to see that these agencies expend a level of resources on safeguards problems commensurate with the importance of the issue. [161]
This section examines whether the AEC has authority to engage in infiltration, wiretapping, and bugging and assesses the prospects for substantial invasions of privacy and chills of important constitutional rights in a plutonium economy.
Generally speaking, decisions of the Supreme Court allow virtually unlimited use of informers and infiltrators. [162] This result seems inconsistent with recent judicial insistence that personal privacy is the touchstone of the fourth amendment. [163]
It has been suggested that the lack of empirical data on the nature and extent of infiltration and the sense that infiltration is less offensive and less susceptible to abuse than electronic eavesdropping have produced a judicial preoccupation with eavesdropping at the expense of careful consideration of the use of informers. [164]
Whatever the reason, the courts have so far resisted attempts to challenge the use of informers on grounds that they chill rights of association and speech protected by the first amendment, [165] invade rights of privacy protected by the fourth amendment, [166] and violate the privilege against self-incrimination guaranteed by the fifth amendment. [167 ]
Consequently, an argument that it is constitutionally impermissible to use informers and infiltrators to safeguard against thefts of plutonium would probably not meet with success. The likelihood that informers will be used on a large scale for plutonium safeguards purposes appears great.
In addition to the Rosenbaum Report, [l68] even commentators who are critical of the widespread use of informers agree that they play a vital role in dealing with highly organized groups capable of committing serious crimes. [169] Given the legislative and judicial climate, it seems safe to assume that the AEC will ask other federal law enforcement agencies to send infiltrators into groups regarded as inclined to steal plutonium.
In 1967, after deciding that wiretapping was within the fourth amendment conception of a search, the Supreme Court suggested that Congress establish regulations for the use of wiretaps which would incorporate the procedural restrictions on searches required by the amendment. [l70]
Congress responded by enacting the Omnibus Crime Control and Safe Streets Act of 1968. [l71] Title III of that Act specifies circumstances in which the government may engage in wiretapping, bugging, and other "interception of wire or oral communication" [l72] and establishes procedures governing the use of such techniques.
Statutory authority to use wiretaps against suspected plutonium thieves may well exist under this Act.
... Thefts of plutonium are if anything even more intrinsically serious than thefts of classified information since the techniques for constructing nuclear weapons are now fairly widely known and the only thing standing in the way of private construction of nuclear weapons is lack of access to plutonium. [l76] Moreover, organized criminals may make nuclear theft one of their operations. [l77]
The use of wiretaps against potential nuclear thieves, though not expressly authorized, would seem to fit within even a narrow reading of the purpose of Title III.
... Federal prosecutors could argue that by wiretapping suspected plutonium thieves they were seeking evidence relating to conspiracies to commit sabotage, [l78] robbery and extortion, [l79] unlawful use of explosives, [l80] or thefts of goods from interstate commerce, [l81] all of which are grounds for wiretaps under Title III.
In some cases, the effect of using these provisions would be to alter the probable cause requirements for the wiretaps: the prosecutors would have to demonstrate knowledge not only of how the suspects intended to obtain plutonium but also of what the suspects planned to do with the plutonium.
... There are four standards which must be met:
(a) "probable cause for belief that an individual is committing, has committed, or is about to commit" one of the enumerated offenses;
(b) "probable cause for belief that particular communications concerning the offense will be obtained" through the wiretaps;
(c) failure of other "normal investigative procedures," or reasonable belief that they are "unlikely to succeed if tried or to be too dangerous"; and
(d) "probable cause for belief" that the facilities to be wiretapped are used by or owned by the person suspected of the offense. [l84]
These standards purport to meet the constitutional requirements of probable cause and particularity as established by the Supreme Court. [l85] By insisting on a ''specific person, specific offense, and specific place,'' they seek to limit the use of electronic surveillance to ''the most precise and discriminating circumstances, which fully comply with the requirement of particularity." [l86]
... Though in theory probable cause is determined by applying an exacting standard to the facts of each case, in practice only a perfunctory showing is usually required. [l90]
Thus, for example, it is not necessary to first use "normal investigative procedures" as long as it can be reasonably shown that they are unlikely to succeed or are likely to be dangerous. [l91] This requirement should be easy to meet in cases of suspected plutonium theft because of the clandestine nature of such activity and the immediacy of the danger to the public.
Courts are generally reluctant, in national security cases, to disturb the judgment of law enforcement officers. Not one of the 816 applications for wiretap warrants in 1971 was denied, and only five out of 860 were denied in 1972. [192]
Hence there is ample reason to believe that the government will be able to use freely the Omnibus Crime Control Act to authorize widespread wiretapping for plutonium safeguards purposes.
Even if ... the Omnibus Crime Control Act is held not to permit wiretapping of suspected plutonium thieves, or if a warrant cannot be obtained on the facts of a particular case, warrantless wiretapping of such persons may be permissible under the "foreign security" exception to the warrant requirement. [193]
The President's power to engage in warrantless wiretapping for the purposes of protecting the nation against action by foreign governments and their agents was expressly left open by the Supreme Court in United States v. United States District Court. [194]
In United States v. Butenko ... the court held that ... the government need not show that prior to undertaking the wiretaps it had probable cause to believe that actual criminal activity would be uncovered . [201]
The legality of warrantless wiretaps thus turns on the definition of "foreign security." In United States v. United States District Court, the Supreme Court suggested that wiretaps would be excluded from this category if they were directed at United States citizens having "no significant connection" with a foreign power. [202]
Read literally, this test would prohibit warrantless wiretapping of many domestic subversive or organized criminal groups. But in Zweihon v. Mitchell, [203] a district court held that warrantless wiretapping of the Jewish Defense League's headquarters in New York City was proper under the foreign security exception.
Although there was no showing that the JDL had any connection with any foreign government, the court found that its activities posed "a clear threat to this country's foreign relations" inasmuch as the Russian government had threatened harm to American citizens living in Moscow in retaliation for the JDL's activities in this country. [204]
Zweibon would apparently allow warrantless wiretapping of any domestic group if its activities created a risk of international repercussions. Many if not all conspiracies to steal and use plutonium would easily fit under this rubric.... [205]
... It is al least questionable whether the distinction between domestic and foreign intelligence gathering itself will survive. Although the cases do not say so expressly, one major basis for the distinction may be the difference in power between foreign and domestic organizations. [207] Whereas foreign governments may be the military equals of the United States, domestic radical groups are regarded as relatively impotent. [208]
This argument loses much of its force when nuclear weapons are available to private groups. [209] If the threat of private nuclear explosions brings about the demise of the foreign/domestic distinction, courts may extend the warrant requirement to all presidential intelligence gathering activities. [210]
What appears more likely, however, is that the expanding recognition of a foreign security exception to the warrant requirement, coupled with fears of attempted thefts of plutonium, will give rise to a new excuse for unsupervised wiretapping by the executive branch.
The urgent need to prevent thefts of plutonium will lead to loosening of standards for government conduct of covert surveillance. The government will probably take full advantage of the broad powers which the courts have allowed it in the use of informers and infiltrators. Moreover, the case for using wiretapping to uncover plots to steal plutonium is very strong.
At the same time, the authority of the government to engage in wiretapping against suspected plutonium thieves, under either the Omnibus Crime Control Act of 1968 or the foreign security exception, is less than perfectly clear. Congress at this point can choose to make explicit the government's statutory authority in this area, or it can allow the courts to expand the exceptions to the warrant requirement.
There are several reasons why the former course would be preferable.
Most importantly, consideration of an amendment to the Omnibus Crime Control Act will require Congress to confront a significant civil liberties cost of plutonium recycling. Case by case balancing by the judicial branch is likely to produce inconsistent and unsatisfactory results. [213]
If Congress decides to encourage plutonium recycling, it should also determine whether wiretapping is necessary to keep plutonium out of the wrong hands and what types of procedural safeguards should be required before resorting to such measures. These decisions should not be left solely to the AEC and the courts, since once plutonium recycling is implemented it may no longer be possible to argue that widespread wiretapping is not justified.
The public dangers of plutonium increase dramatically following a successful theft of the substance. [214] Restricting attention to theft-preventive safeguards would be irresponsible: careful consideration must also be given to the method that could be used to recover stolen plutonium before it could be used destructively. [215]
The urgency of recovering stolen plutonium will create great pressure on government officials to compromise civil liberties for the sake of public protection. Effective recovery might require such drastic measures as emergency area searches and the imposition of martial law.
The likelihood that the government will take such measures to recover stolen plutonium becomes apparent when one considers the implausibility of doing nothing in response to a nuclear threat.
Some commentators claim to see advantages in having the government declare, in advance, a policy of absolute refusal to negotiate with or meet any of the demands of the threatening parties. This solution avoids the choice about whether to accept civil liberties infringements in the face of a nuclear threat, and it has the virtue of certainty, but it also seems to guarantee that the threat will be carried out.
Not all acts of terrorism have an immediate blackmail purpose; some, perhaps even a majority, are intended merely to demonstrate the terrorists' power and resources and to instill fear and disarray into society. [217] Refusals to negotiate by the government would ring hollow in the face of nonnegotiable demands by terrorists, and irresistible political pressure on the government to take action would surely be mounted.
Whether or not the government chose to negotiate with the terrorists, it would surely use every possible means to locate and recover the plutonium.
The Atomic Energy Commission is reluctant to disclose its thinking regarding plans for recovering stolen plutonium. [218] ... However, the AEC concedes that improved recovery measures are needed and claims to have such improvements under consideration. [223] It is probable that certain measures which have serious civil liberties implications will be involved.
This section examines emergency searches and seizures and martial law in terms of both existing legal doctrine and the claims which might be made for their adoption in the event of a successful theft of plutonium.
Once a quantity of plutonium had been stolen, the case for literally turning the country upside down to get it back would be overwhelming. [224] Regardless of which federal agency is charged with the recovery operation, [225] it would probably seek to use measures which ordinarily would be regarded as violations of the fourth amendment.
In the few cases in which the local authorities thought that massive search programs were necessary and justifiable, the courts have held the line against invasions of the privacy of innocent people. [226] But experience with any substance as dangerous as plutonium is lacking, so existing precedents afford little guidance.
In view of the courts' tendency to "balanc[e] the need to search against the invasion which the search entails," [227] it is doubtful whether much judicial supervision of plutonium recovery measures could be expected. [228]
Plutonium is not likely to be significantly easier to locate than such nonradioactive valuable substances as gold and heroin. The same characteristics which make it nonhazardous on external exposure [229] also make it difficult to detect if it is kept well enclosed.
... The problem of recovering stolen plutonium or of locating clandestine nuclear weapons requires detection of plutonium at a distance and in buildings and containers rather than in the natural environment. For these purposes existing devices, such as Geiger counters, are unlikely to be of much use. [232]
Consequently, authorities searching for stolen plutonium will have to use those methods which traditionally have been regarded as most offensive to the fourth amendment. If the plutonium is located inside a building, they will have to enter the building and conduct a thorough search in order to find it. If it is in a car, they will have to search the interior of the car. [233]
Put simply, probable cause to conduct searches for plutonium will have to be sought in the usual manner; the substance itself does not ''radiate'' probable cause. [234]
The Supreme Court has taken the position that, apart from a few clearly delineated exceptions, [235] a warrant is essential to the validity of a search under the fourth amendment. [236]
By insisting on a warrant, the Court insures that the decision to conduct the search will be made in a deliberate and responsible manner by a person who is at least nominally free from arbitrary, subjective motivation. [237] More directly, the requirement decreases the chances for abuse by policemen by placing formal obstacles in the way of their conducting searches. [238]
The decision in Camara v. Municipal Court, [239] however, reasserted the view that advance ratification of a search by a neutral party might be dispensed with if it undermined efforts to protect the public from serious harm. [240]
The Court drew authority for this proposition from North American Cold Storage Co. v. Chicago [241] which upheld a state's power to seize and destroy unhealthy poultry without giving the owner notice and an opportunity to be heard. The opinion invoked the state's duty to protect the lives and health of its inhabitants, concluding that summary seizure of the food wa justified because it was "in itself a nuisance ... of the most dangerous kind." [242]
Since Comara, several courts have found that the existence of emergency situations or special circumstances justified dispensing with the warrant requirement. The absence of warrants did not invalidate searches where their purposes were
In each of these cases the courts felt that there was an identifiable public emergency, [246] and they did not stop to inquire whether or not it was practical under the circumstances to obtain a warrant.
... In view of the hazardous nature of plutonium and the seriousness of the threat, it may be expected that exigent circumstances will often eliminate the requirement for a warrant, and even where warrants are sought, they will probably be issued automatically.
The fourth amendment commands that "no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing !he place to be searched, and the persons or things to be seized." [248]
The emphasized passage is commonly taken to be the historical core of the fourth amendment: it codifies the framers' uncompromising opposition to the "general warrants" or "writs of assistance" under which they had suffered as colonists. [249]
The objection to general warrants parallels the objection to warrantless searches; both leave the decision whether to invade a particular person's privacy to the unsupervised discretion of the police officer. [250] One would therefore expect the Supreme Court always to hold invalid warrants that authorized searches of large areas or classes of people.
Before Camara, the Court held fairly closely to this view. The particularity requirement was interpreted functionally, so that warrant was valid if it allowed the officer "with reasonable effort [to] ascertain and identify the place intended." [251] But a warrant could not lawfully authorize the search of a large area when the affidavit provided probable cause only with respect to a smaller included area. [252] A similar requirement was imposed regarding the objects to be seized. [253]
However, in Camara and its companion case See v. Seattle, [254] the Court drew back from its previous adherence to the particularity requirement. [255] These cases involved searches of residential commercial buildings by municipal officials who were seeking to enforce fire, health, and building codes.
The officials argued that effective enforcement required a statistical rather than an individual probable cause standard for conducting the searches.
Justice White writing for the majority, agreed [256] .... In reaching that conclusion he made three observations.
It might be said that Camara, despite its language, does not totally subvert the purposes of the fourth amendment particularity clause. By insisting on a prior warrant in municipal search cases, it commands a degree of neutral supervision of law enforcement officers' behavior which limits their power to act arbitrarily. [261]
It is not clear, however, how much comfort could be derived from this rationalization in the face of a citywide search for plutonium in which unprecedented numbers of people would suffer invasions of privacy. If the central purpose of the fourth amendment is to set limits on the discretionary conduct of the police, [262] then that amendment requires a prospective inquiry into whether the licensing of plutonium use will lead to increased police power.
Attempts to supply fourth amendment legitimacy for plutonium searches after the decision to allow recycling is made must ultimately fail.
To the extent that traditional doctrinal guarantees of privacy are swept away in the face of a plutonium threat, the decision whether to accept the risks and burdens of plutonium recycling ought to take into account, in advance, the strains which it will place on the fourth amendment.
Little in the way of judicial supervision of police conduct in searching for plutonium appears to be in prospect; [263] in particular it does not appear that widespread area search programs would either be declared unlawful [264] or enjoined. [265]
Although broad, highly offensive searches for stolen plutonium would be constitutionally "justified" in the sense that courts would probably uphold them, there would nonetheless be a sense that important constitutional interests had been sacrificed. By examining alternative characterizations of the fourth amendment which seek to legitimate searches for plutonium, one can conclude that the amendment itself commands a forward-looking review of the effects of plutonium recycling on individual privacy.
One such alternative would rely on a theory of consent suggested in part by United States v. Biswell. [266] There the Court held that a warrantless search of a locked storeroom of a firearms dealer as authorized by the Gun Control Act of 1968, [267] did not violate the fourth amendment. The Court found that the invasion of the dealer's privacy was justified since "[w]hen a dealer chooses to engage in this pervasively regulated business and to accept a federal license, he does so with the knowledge that his business records, firearms, and ammunition will be subject to effective inspection." [268]
The use of the term "chooses" suggests that the dealer's decision to enter the firearms business functions as a substitute for the magistrate's decision to authorize the search of his premises. In a sense, he assumes the risk of being searched; because he contributes to an increased level of general risk in society, it is deemed fair to impose this burden on him. [269]
Use of this theory to justify area searches for plutonium would quickly dissolve into question-begging, however.
The argument would have to be that society, by engaging in plutonium recycling and thereby raising the general level of danger, has accepted any losses of privacy which might become necessary in order to minimize the risk. But warrantless searches and area searches with or without warrants are indiscriminate: one would be faced with the problem of deciding whether the persons who objected to them had or had not constructively assented to the inconvenience.
The only way to break out of the circle would be to insist that the decision to tolerate the police practices required for the recovery of plutonium be a unanimous one by all of the people.
Another alternative, perhaps more in keeping with the view of the fourth amendment as a regulator of police conduct, would have search and seizure guidelines for use in plutonium threats laid down in advance by legislation.
... While there may be something to be said for the legislative approach as a means of dealing with day-to-day police practice in nonemergency periods, [271] such an approach in times of emergency, where drastic measures seem to be called for, does not satisfactorily respond to the complaint that the rules approved by the legislature involve large scale privacy invasions.
Moreover, the fourth amendment is not founded solely on notions of how police conduct ought to supervised; it also contains substantive judgments about what kind of police conduct ought to be permitted at all.
Citywide searches have traditionally been regarded as high on the list of disfavorable practices. [272] Therefore the proposal for advance legislative rule-making for search and seizure programs in plutonium theft cases fails to legitimate the infringement of civil liberties inherent in the security requirements of plutonium recycling. [273]
In the end it appears that there is no way to read the fourth amendment which would not result in its virtual elimination in plutonium recovery situations.
Concern about supervision of police conduct is ultimately based upon concern for privacy, and there is very little that either courts or legislatures could do to protect privacy if a citywide search for a hidden nuclear weapon became necessary. [274]
If the substantive limits imposed by the fourth amendment on the process of law enforcement are to be respected, the question of whether the benefits of using plutonium are worth the costs of getting it back if it is stolen must be addressed at the outset. [275]
Recovery of stolen plutonium, as has been shown, would be a matter of the highest priority. It would become even more urgent if the thief announced that he had constructed a nuclear explosive or dispersal device and intended to use it. [276]
Although intensive searches for the missing plutonium or weapons would no doubt continue, the government might feel additional compulsion to extend more general military control over the activities of civilians. [277]
The agency conducting the recovery operation would need broad powers to eliminate any obstacles placed in its path, deliberately or unwittingly, by citizens. It would want the ability to discourage and punish interference with its operations, to carry out evacuations if they became necessary, and to deal with people who might take advantage of the prevailing disorder to commit other crimes, such as looting.
It might be thought necessary to bypass the civilian law enforcement system and authorize the military to arrest and try those thought to stand in the way of the speedy recovery of plutonium.
Few Americans of the present generation have experienced the rigors of martial law. Since World War II, when the Hawaiians [278] and the West Coast Japanese-Americans [279] were subjected to military rule, no domestic emergency situation has required a declaration of martial law. [280]
The term "martial law" describes the substitution of military for civilian authority when emergency conditions demand more flexible, less procedure-bound exercise of governmental power. [281] Under martial law the military takes over the job of law enforcement and assumes power to arrest, try, and confine civilians charged with crimes. [282] These activities may or may not be assisted by suspension of the writ of habeas corpus. [283] The mere use of troops to preserve or restore order may fall short of martial law, however. [284]
This section will examine the possible consequences of a decision to invoke martial law in the face of a plutonium threat. [285]
The Supreme Court has been preoccupied with the limits of military jurisdiction for over a century, and its decisions serve to illuminate some of the stakes involved.
From the individual's standpoint, all phases of a coordinated military effort to recover stolen plutonium, from the courtroom to the streets, represent threats to liberty.
To a people grown accustomed to life under civilian rule, martial law will seem a great price to pay, even to prevent the destruction of a city.
Most commentators believe that martial law may exist even without a declaration: "It [is] the emergency which call[s] it forth, not the fact of the proclamation, which justifies the extraordinary measures taken." [286]
Nevertheless, the imposition of martial law is ordinarily preceded by a declaration; [287] mobilization of the military must come from the executive by virtue of his authority as commander in chief. As a practical matter, the enforcement of martial law will be difficult unless the public is informed of the decision.
The question whether an executive declaration of martial law is conclusive upon the courts has had a long and unsettled history in the Supreme Court.
Chief Justice Taney, in a case growing out of Dorr's Rebellion in Rhode Island in 1842, thought that the governor enjoyed unreviewable discretion to call out the militia. [288] Two years later he retreated, concluding that such discretion could not be left unexamined if exercised in an arbitrary manner. [289] By the end of the Civil War the Court had confirmed the latter view. [290]
At the outset of the twentieth century, however, Justice Holmes returned to the position that an executive declaration of emergency is conclusive, asserting that "[p]ublic danger warrants the substitution of executive process for judicial process." [291]
The decision, which arose out of a declaration by the governor of Colorado that labor violence had created a state of insurrection, was subsequently confined to its facts by Sterling v. Constantin. [292] That decision announced the rule that while the executive enjoys unreviewable discretion to determine whether an emergency exists, his decisions as to how to use military force in dealing with it are subject to judicial scrutiny. [293]
The standard imposed, that the decisions to use force must be made "in good faith and in the honest belief that they are needed, [294] is the prevailing one today.
In a case challenging Governor Rhodes' use of National Guardsmen at Kent State in 1970, the Court, applying Sterling, held that "a declaration of emergency by the chief executive of a state is entitled to great weight but it is not conclusive." [294]
Judicial review of the imposition of martial law may depend on the context in which the question is raised. It is highly unlikely that a court will prospectively enjoin the executive during the early stages of an emergency. [296]
Courts are ordinarily reluctant to put restraints on the government's ability to restore order, especially where the executive is acting on information not available to the courts. The threatened use of a plutonium bomb or dispersal device is as serious a danger as any in which a declaration of emergency has been upheld.
Though the suggestion is made that the courts use a "less restrictive alternative" test, [297] it is doubtful that courts will entertain much confidence in their ability during the early stages of an emergency to weigh the costs and benefits of alternative responses to the nuclear threat better than the chief executive.
A related proposal, that the courts apply strict scrutiny to executive decisions made "quickly, under severe pressure, or on the basis of incomplete information," [298] is also of little help. The argument will surely be made that it is precisely under those circumstances that the executive ought to be freed from worry about whether his decision will be undone by a court.
Finally, the lack of judicial power to enforce an injunction against the executive declaration of martial law would probably be a decisive argument against the issuance of such an injunction at the outset of an emergency.
The prospects for postemergency review of the declaration of martial law are somewhat better. The question would probably arise in the context of a suit for damages by an injured civilian [299] or a habeas corpus action by a person held in military custody. [300]
Once the emergency had passed, the courts would have the benefit of hindsight, better information, and their own historical competence to adjudicate questions of civil and criminal liability. It may be argued that postemergency relief is the only available compromise between individual rights and the demands of public safety in the event of a nuclear threat; nevertheless, the significant civil liberties costs of martial law should not be overlooked.
Throughout most of the nation's history, the federal judiciary has jealously guarded the right of civilians to be tried for crimes in civil courts with constitutionally enforced procedural safeguards.
The strongest statement of this protective attitude is found in the landmark case of Ex parte Milligan. [301] Milligan, a civilian citizen of Indiana during the Civil War, was arrested, tried, convicted, and sentenced to death by a military commission for conspiracy against the United States government. [302]
In considering his petition for habeas corpus, [303] all nine justices of the Supreme Court found that Congress had not authorized the trial of civilians by military commission. In addition, a majority of five went further and declared that Congress lacked the constitutional power to do so.
Martial law, they held, "can never exist where the courts are open, and in the proper and unobstructed exercise of their jurisdiction." [304] Moreover, martial law "cannot arise from a threatened invasion. The necessity must be actual and present; the invasion [must be] real, such as effectually closes the courts and deposes the civil administration." [305]
It may be that the Milligan "open courts" doctrine is an unnecessary dictum in an otherwise correct decision based on statutory construction. [306]
However, the Supreme Court reaffirmed the doctrine in the 1946 decision Duncan v. Kahanamoku. [307] The Court held that Section 67 of the Hawaiian Organic Act [308] did not authorize military trials of civilians in Hawaii when, eight months after the Pearl Harbor attack, the courts had reopened and were functioning.
Justice Black's majority opinion rested squarely on construction of the Act, but he quoted with approval the Milligan court's establishment of constitutional limitations on military jurisdiction. [309] Justice Murphy, concurring, expressly approved the "open courts" doctrine and would have held the military trials in Duncan unconstitutional. [310]
The rule that emerges from Milligan and Duncan is that civilians [311] residing in peaceful zones where civil courts are functioning are guaranteed a civil trial.
The question is whether courts will continue to believe that the strict standards of Milligan are appropriate in the nuclear age. Professor Fairman has argued forcefully that modern society cannot afford the "open courts" doctrine:
But perhaps the question should be whether our perception of the threat posed to the social order by twentieth century terrorists has the same significance as a nineteenth century person's perception of the threat posed to his social order by nineteenth century rebels; the fact that Milligan might not be regarded as extremely dangerous in today's world does not mean that he was not so regarded in Indiana during the Civil War.
Ultimately this argument appears overly refined. To the extent that a nuclear threat to an urban center risked the destruction of lives and property and of governmental, economic, and social institutions, [315] the government would be acting irresponsibly in failing to take any measures required to prevent the threat from being carried out.
Thus, despite the fact that martial law may be imposed in degrees and gradations, [3l6] halfway measures would likely prove insufficient. [317] Citizens subjected to temporary detention [318] and even trial by military commissions [319] would be deprived of basic procedural safeguards provided in the Rill of Rights [320] and one of. the nation's most cherished traditions would be overthrown.
One way to mitigate these hardships would be to provide for review by the civil courts of the detention of civilians by military commissions after the emergency had ended. By suspending the writ of habeas corpus during the nuclear emergency, [321] the government could give the military the power to detain persons who were obstructing the search and recovery operation or who were violating curfew orders or other regulations promulgated by the military to ensure civil order. After the emergency had passed, restoration of habeas corpus would allow federal courts to review convictions imposed by military commissions.
There is little doubt that federal courts have jurisdiction to hear petitions for habeas corpus from civilians held by military commissions. [322] The scope of that jurisdiction is quite clouded, however. Since the Supreme Court's decision two decades ago in Burns v. Wilson, [323] it has been unclear whether allegations of denial of constitutional rights may be heard by federal courts considering habeas corpus petitions from court-martial convictions. [324]
At least some lower courts continue to adhere to the old rule [325] that only the jurisdiction of the court-martial over the petitioner and the offense charged may be questioned by habeas corpus. [326] In the case of military commissions the scope of habeas corpus review is even less certain since the few decided cases have involved challenges only to the jurisdiction of the military commission over petitioner. [327]
If habeas corpus review of. convictions imposed by military commissions is limited to questions of jurisdiction, then such review is useless where martial law has been declared since by definition the military has trial jurisdiction over civilians. However such a constricted scope of habeas corpus review is dictated neither by the constitution nor by statute. [328]
Although the courts appear free to adopt a broader scope of review, if the imposition of martial law in the event of a nuclear threat is contemplated, a provision that federal courts can review the merits of convictions imposed by military commissions as well as their jurisdiction should be enacted by Congress. [329]
The responsibility for recovering stolen plutonium will almost certainly be a federal one and will probably devolve on the federal armed forces. [330] The case for using federal troops in such a situation is a strong one, based on their superiority over local law enforcement agencies in terms of manpower, equipment, and training. [331]
Presidential authority to order federal troops to perform recovery operations is well established by constitutional [332] and statutory [333] law, and it is difficult to conceive of a successful challenge to the decision to use troops. [334]
A large-scale federal military presence in an area, whether or not it is accompanied by a declaration of martial law, carries with it possibilities for substantial infringements of liberty. Neither the existing standards governing the use of deadly force by soldiers against civilians [335] nor the remedies available to injured civilians [336] would be adequate in the face of a plutonium crisis.
Under the imminent threat of a nuclear detonation, military forces might feel compelled to adopt a policy of shooting first in cases where suspected terrorists appeared to be on the verge of large-scale violence. This attitude might extend to cases where other citizens were frustrating military attempts to locate the weapon and restore order.
The existence of a shoot-first attitude on the part of the authorities charged with protecting plutonium has already been reported. [337]
An effective recovery program might also require formal prohibitions on certain movements of civilians.
Curfews have been used in the past during urban riots, apparently with success. [338] They aid law enforcement authorities in their efforts to end the emergency by thinning traffic in the streets and by reducing the amount of "ordinary" crime. [339] They also serve to protect the citizenry from mob violence. [340]
While courts have ordinarily upheld curfews despite the restrictions they impose on freedom of movement and assembly, [341] there might be serious difficulties with curfews in a nuclear threat situation.
Enforcement of a curfew would entail publicizing the existence of the nuclear threat with the possible result of encouraging panic. [342] People might regard the curfew as an effort to keep them trapped within the threatened area.
Presumably the government would evacuate the threatened area immediately as part of its response to the threat, but lingering fears, based on uncertain information about the destructive possibilities of the nuclear explosive and about its location might lead to widespread resistance to the curfew. The potential for violent social disorder would be correspondingly enhanced.
Finally, it is necessary to realize that the operating time for execution of the recovery program may be extremely short. The discussion heretofore has assumed a period of perhaps several days during which federal troops, aided by martial law and curfew restrictions, would carry out the search for the stolen plutonium, the nuclear explosive, or the dispersal device.
But it is entirely possible that the person or group making the threat may give the government only a few hours in which to respond. In such a case the government would be compelled to use every means at its disposal to locate the source of the threat.
Searches based on the scantiest information or on no information at all as well as brutal interrogations of persons suspected of having knowledge of the identities and whereabouts of the threatening parties or the nuclear device would be inevitable. Such desperate measures would go far beyond the sorts of emergency powers which have been upheld or even considered in the past, and would approach the establishment of tyranny.
Given the extraordinary impact that plutonium recycling may have on civil liberties, it is worth inquiring whether the AEC has a legal duty to consider that impact in making its decision about recycling. It is at least clear that the Commission has a duty to consider potential environmental effects of using plutonium.
Since the enactment in 1969 of the National Environmental Policy Act (NEPA), [343] all federal agencies have been required to assess the environmental impact of contemplated action and to prepare statements describing such impact and weighing alternative courses of action. [344] The AEC's draft environmental impact statement on plutonium recycling was prepared in satisfaction of this requirement. [345]
As this Comment has demonstrated, however, the circulation of plutonium in private commerce threatens to poison the legal as well as the natural environment. Once the recycling of plutonium commences on a large scale, the courts may be committed to upholding the legality of safeguards that seriously infringe important constitutional rights.
If these rights are to be protected they must be fully considered in the process of deciding whether to license plutonium recycling at all. Such an accounting would require the AEC to structure the regulation of recycling so as to minimize the need for safeguards that infringe civil liberties and to take the public position that the economic benefits derived from recycling more than offset the program's civil liberties costs.
This Section will develop the argument that NEPA requires the same concern for civil liberties as it requires for the physical environment: that is, that the AEC's environmental impact statement must include a detailed discussion of the civil liberties impact of plutonium safeguards.
Since the values protected by the first and fourth amendments are identical in kind to the values reflected in federal environmental policy, a construction of NEPA that compelled respect for the latter but not for the former in federal decision making would be anomalous.
The basic command of NEPA is procedural rather than substantive; federal agencies are directed "to the fullest extent possible" to tailor their policies and regulations to the environmental policy set forth in the Act. [346] That policy is highly anthropocentric: protection of the earth's air, water, and plant and animal life is encouraged, not because these natural objects have inherent rights to remain unspoiled, but rather because their preservation promotes human values such as physical and psychological well-being. [347]
The statute itself incorporates this view at several points. Its declared purpose is "to promote efforts which will prevent or eliminate damage to the environment or biosphere and stimulate the health and welfare of man"; [348] it purports to recognize "the critical importance of restoring and maintaining environmental quality to the overall welfare and development of man"; [349] and it requires the preparation of environmental impact statements in the case of "major Federal actions significantly affecting the quality of the human environment." [350]
Perhaps the strongest statement urging a humanistic construction of NEPA was made by one of its principal sponsors, Senator Jackson:
An environmental policy is a policy for people. Its primary concern is with man and his future. The basic principle of the policy is that we must strive, in all that we do, to achieve a standard of excellence in man's relationships to his physical surroundings. [351]
Further evidence of the anthropocentric nature of federal environmental policy is the fact that NEPA's protection extends to manmade as well as natural objects. One section of the Act creates a responsibility in the federal government to "preserve important historic, cultural, and natural aspects of our national heritage, and maintain, wherever possible, an environment which supports diversity and variety of individual choice." [352] This section has been applied to restrain federal action that threatened to destroy historical landmarks [353] or alter the aesthetic appearance of their surroundings. [354]
Unlike mountains and streams, which arguably deserve protection whether or not there are people around to appreciate them, [355] historic buildings and other human artifacts are objects of environmental concern solely because of their value for people.
The inclusion of historical and cultural items as subjects of environmental concern under NEPA makes sense only if federal environmental policy is concerned with values that preserve and improve the quality of human life.
The values embodied in the environmental policy declarations of NEPA are embodied as well in the Bill of Rights. [356] Illustrations of this point may be found in NEPA itself, in its legislative history, and in its application to actual controversies.
For example, the statutory command that federal agencies seek to "preserve important historic [and] cultural . . . aspects of our national heritage" [357] could be read to encompass a concern for civil liberties. Most Americans would agree that their constitutional rights are an important historical and cultural aspect of their heritage.
Another clause of that section, requiring the government to "maintain, wherever possible, an environment which supports diversity and variety of individual choice," [358] seems particularly addressed to the first amendment. [359]
One of the environmental evils that Senator Jackson believed would be attacked under NEPA was "crowding, congestion, and conditions within our central cities which result in civil unrest and detract from man's social and psychological well-being." [360] This remark suggests that federal environmental policy should be concerned with threats to personal privacy, a concern that is also reflected in the fourth amendment. [361]
The Second Circuit, echoing Senator Jackson, has held that the construction of a federal detention center and drug maintenance facility could lead to increased crime in the neighborhood and expose passersby to drug addicts and drug pushers, thereby sufficiently affecting the quality of the human environment so as to require the General Service Administration to prepare an environmental impact statement under Section 102(C) of NEPA. [362]
If NEPA requires the government to try to avoid creating conditions in which peoples' privacy and dignity would be subject to assaults from private individuals, it should also require avoidance of the creation of conditions in which peoples' constitutional rights would be subject to assaults from the government. [363]
It would appear, then, that the AEC's draft environmental impact statement on plutonium recycling, which contains no discussion at all of the civil liberties effects of plutonium safeguards, is seriously deficient under NEPA standards. In seeking to remedy this deficiency, the AEC should keep in mind two provisions of NEPA particularly relevant to the civil liberties issues raised by plutonium.
The argument that NEPA requires government agencies to consider the civil liberties implications of proposed admittedly a novel one, [367] but its underlying motivation should not be overlooked. If NEPA does not in fact provide authority for compelling the AEC to issue a "civil liberties impact statement" regarding plutonium recycling, then Congress should act to prohibit the licensing of recycling until such a statement is forthcoming. [368]
Commitment of this country to a course of action which would leave constitutional rights forever at the mercy of the need for national security should not be undertaken without full public exploration of the interests at stake.
To prevent dangerous quantities of plutonium from falling into the hands of criminals and terrorists and to insure the safe and speedy recovery of plutonium if it is stolen would require fundamental alteration of the legal framework established to protect individual rights. Virtually everyone in society would be called on to make sacrifices of personal liberty in order to assure effective safeguards.
Both within and without the nuclear industry, individuals would be confronted with governmental demands that they curtail their expectations of privacy and their exercise of associational and expressive rights for the greater good of public safety.
A basic objection to theft-preventive safeguards is that they would require individuals to distort their assessment of their own role in society.
For example, civilian employees of the nuclear power industry who would have to comply with stringent new security regulations [369] might come to believe that they were more like soldiers than civilians in light of the background checks that they would have to undergo to secure employment and in light of the limitations on their off-the-job activities that they would have to observe to retain employment. [370]
Similarly, people outside the nuclear power industry would wonder whether they were the subjects of covert government surveillance. [371] The result would be a chill on first amendment rights and an increase in the general level of suspicion in society.
Post-theft recovery measures would create a situation approaching civil war, with the government arrayed against the perpetrators of the nuclear threat and with innocent citizens caught in the middle.
Although emergency measures like widespread ransacking of homes and buildings, [372] detention of resisters and offenders by the military, [373] and restrictions on assembly and movement [374] would hopefully be temporary, they are nonetheless drastic departures from the rule of law as it has come to be understood by the people of this country.
Throughout this Comment, reference has been made to the unprecedented difficulties posed by plutonium in the context of legislative and judicial decision making. This challenge to the legal system's competence to adjust social interests in public safety with individual interests in civil liberties may be the most significant social cost of plutonium.
It is instructive to consider that, while the Anglo-American legal system is approximately ten centuries old and the United States is about two centuries old, the hazardous lifetime of plutonium is hundreds of centuries. [375]
With the passage of time and the increase in the quantity of plutonium in existence will come pressure to eliminate the traditional checks the courts and legislatures place on the activities of the executive and to develop a powerful central authority better able to enforce strict safeguards. Alongside the prospects for diminished individual liberties in a plutonium economy must be placed the possible substitution of an authoritarian ''nuclear priesthood'' for the traditional institutions of law enforcement. [376]
It is thus virtually impossible to construct a compelling affirmative case for plutonium recycling in the face of the civil liberties objections to it. Although in the present era one would not lightly urge rejection of a promising source of energy, it is instructive to consider Dr. Weinberg's characterization of the choice involved:
We nuclear people have made a Faustian bargain with society. On the one hand we offer ... an inexhaustible source of energy....
... But the price that we demand of society for this magical energy source is both a vigilance and a longevity of our social institutions that we are quite unaccustomed to. [377]
--Russell W. Ayres
An important social cost of plutonium recycling, this Comment will argue, will therefore be the loss or diminution of basic civil liberties....
Plutonium recycling would therefore greatly increase both the amount of plutonium in commercial circulation [55] and the number of different opportunities for successful acquisition of it. [56]
mixed oxide fuel fabrication plants, [53]
and fabrication of mixed oxide fuel,
Unfortunately, the hazardous nature of plutonium does not render it immune from theft. Despite its extraordinary toxicity, plutonium may be handled with relative ease without using heavy shielding. [66] Although care must be taken to keep it enclosed in airtight containers, [67] these may be light enough to be transportable by an individual or a small group of people without special equipment.
II. PREVENTING THEFTS OF PLUTONIUM
Measures for recovering plutonium following a successful theft will be considered in the next section.
potential thieves outside the nuclear industry.
A. Employee Security
In seeking to protect the rights of employees ... the courts have failed to articulate a rule in which the sensitivity of the job is a factor in the decision. [106] The advent of plutonium recycling, however, will involve far greater numbers of employees than ever before in critical positions in the nuclear fuel cycle, ranging from teamsters to nuclear physicists. The courts may then be forced to alter their perspective, and regulatory draftsmen may be required to seek more precise and rational standards for employee security.
2. Recently Enacted Legislation
in "anti-nuclear activities," and
with another plant employee. [138]
The result must be fundamental tension between judicial skepticism about the rationality of security clearance guidelines [149] and judicial reluctance to err on the side of the employee when a mistaken decision in his favor could have serious destructive consequences. [150]
[the] concept of "national defense" cannot be deemed an end in itself, justifying any exercise of legislative power designed to promote such a goal.... It would indeed be ironic if, in the name of national defense, we would sanction the subversion of one of those liberties -- the freedom of association -- which makes the defense of this nation worthwhile. [152]
It would be equally ironic if the subversion of civil liberties were sanctioned by a decision to utilize a hazardous new source of energy.
B. Covert Surveillance
radical and terrorist groups, and
The first and one of the most important lines of defense against groups which might attempt to illegally acquire special nuclear materials to make a weapon, is timely and in depth intelligence. Such intelligence may involve electronic and other means of surveillance, but its most important aspect is infiltration of the groups themselves.
In light of the great risks involved in even a slight breach of nuclear security, this rather startling recommendation may well be adopted by the AEC. 1. Informers and Infiltrators
2. Wiretapping
3. Warrantless Wiretapping under
the "Foreign Security" Exception 4. Summary
The warrant may be a minimal safeguard, but it is one worth insisting on.III. RECOVERING STOLEN PLUTONIUM
A. Emergency Searches and Seizures
From such language it appears to follow that Camara authorizes the search of an entire neighborhood for plutonium in the wake of a theft. [260]
When one considers certain characteristics of modern war-- mobility on land, surprise from the air, sabotage, and the preparation of fifth columns -- it must be apparent that the dictum that "martial rule cannot arise from a threatened invasion" is not an adequate definition of the extent of the war power of the United States. [312]
His view that martial law is justified by "public necessity" [313] -- a more general test than "open courts" -- finds nominal support in the cases [314] and would surely be urged on behalf of military authorities attempting to deal with a nuclear threat. Implicit in this argument is a belief that terrorists armed with a nuclear device are far more dangerous to society than the less well-equipped rebels of the Milligan era.
CONCLUSION
It is surely within reason to demand that all other sources of energy be proven unworkable or unacceptable and to demand significant long term reduction in the consumption of energy before implementing an energy program with such dire effects on law and liberty.
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