excerpts from an article
published in the

Harvard Civil Liberties
and Civil Rights Law Review

by Russel W. Ayres

Volume 10, Number 2,
Spring, 1975

The text of this article
has been reformatted
and   shortened   but
not otherwise altered



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 between the civilian nuclear power industry and civil liberties interests may be profoundly disturbed by the expanded use of the man-made element plutonium.

... 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.

  1. First, a brief account of the elementary scientific principles of nuclear reactors and nuclear fuel cycles will be presented in order to show how terrorists or criminals might steal and use small quantities of plutonium to cause unprecedented destruction. [24]

  2. Next, the importance of preventing thefts of plutonium and recovering it swiftly if it is stolen will be shown to justify a range of extraordinary safeguard measures.

    • Stringent security programs designed to insure the loyalty of civilian employees having access to plutonium [25] and wiretapping and other forms of covert surveillance designed to monitor the activities of suspected terrorists [26] may seem necessary in order to prevent thefts of plutonium.

    • Citywide search and seizure campaigns [27] and temporary declarations of martial law [28] may be required to recover stolen plutonium before it is used to cause harm.

  3. Finally, since each of these measures would seriously compromise the civil liberties interests of large numbers of people, it will be concluded that those interests ought to be weighed heavily before the decision to allow plutonium recycling is made.

Advance consideration of the civil liberties consequences of plutonium recycling is essential.

An important social cost of plutonium recycling, this Comment will argue, will therefore be the loss or diminution of basic civil liberties....

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:

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]

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.

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.

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:

Measures for recovering plutonium following a successful theft will be considered in the next section.