 Today, we are very pleased to welcome Professor Stephen Dijkus who is a professor emeritus at Vermont Law School where he's been on the faculty for 44 years. He is the author or co-author of more than a dozen books, including National Defense in the Environment and author of many articles on environmental and national security issues. He was chair of the Environmental Law Section of the Association of American Law Schools and founding chair of the AALS Section on National Security Law. He was also the founding co-editor-in-chief of the Journal of National Security Law and Policy. His latest book, co-edited with Eugene Fidel at Yale and published last year, is called COVID-19 The Legal Challenges. In 2001, Professor Dijkus wrote an article for the Vermont Law Review entitled Nuclear War Still the Gravest Threat to the Environment. Now 20 years later, that is also the title of his talk. Please join me in welcoming Professor Stephen Dijkus. Well good afternoon. I'm sorry that I can't see you face to face or that we can't be meeting outside on this beautiful day, but I will do the best we can. I always like to begin my classes with a poem and I'll do that today. It's just a very short poem by Robert Frost. It's called It Bids Pretty Fair and it's set as a dramatic production. It goes like this. The play seems out for an almost infinite run. Don't mind a little thing like the actor's fighting. The only thing I worry about is the sun. We'll be all right if nothing goes wrong with the lighting and Robert Frost published several poems about nuclear war in 1947 along with this one. So he couldn't possibly have known anything about nuclear winter, yet that's exactly what this poem portends. Nuclear winter, some of you know, involves the explosion of a nuclear weapon at or near ground level. And depending on where it is, a lofting black carbon particles into the atmosphere where they would circulate and block sunlight around the world for years. The result would be again, depending on how many explosions and where the result could be drought and famine that might kill a billion people, that's billion with a B. In addition, again, depending on where the explosion took place, there would be immediate deaths from blasts, from fire, from ionizing radiation, deaths in my amount to millions. There would be longer lasting morbidity from radioactive fallout, longer still illnesses from cancer, genetic mutations. In the meantime, when the explosion occurred, almost every unprotected electrical device in the area and all the electric power grids would go down because of something called an electromagnetic pulse. You can imagine what the result of that would be. In 1996, in an advisory opinion from the International Court of Justice, the World Court, the court said this, quote, the destructive power of nuclear weapons cannot be contained in either space or time. They have the potential to destroy all civilization and the entire ecosystem of the planet, end quote. So we should be asking ourselves why we're still facing this threat 75 years after Hiroshima and Nagasaki. Well, we imagine that with the end of the Cold War, nuclear war would never happen, could never happen. That was wrong. It's also, it's just too hard to think about this. It's too frightening. It's certainly not polite dinner table conversation or, for that matter, lunchtime conversation. But here we are. All the, everything about nuclear war is extremely complex, hard to understand. And as a result, we've adopted, many of us have adopted a sense of resignation. Nuclear weapons cannot be uninvented. Everybody's got them. You just sort of have to hope for the best. Many in the government and in the military still think that we can deter a nuclear war by having faster, more destructive weapons than our potential enemies. And our allies in Meitou and the Far East depend on our promise. This is US policy. Depend on our promise to use nuclear weapons if they are attacked by Russian or Chinese conventional forces. And last, but not least, defense contractors spend millions, millions lobbying to build new nuclear weapons. There are other grave environmental threats, of course, prominent among them, a new coronavirus pandemic. We hope that we'll learn from our current experience. Climate change and overpopulation are both existential threats. We're busy now building renewable energy sources and engaging in family planning to try to avoid the worst effects of these. We're also working on adaptation. But nuclear war is different. It's what some call a black swan event. That is something that's unlikely to happen. But if it does, the consequences will be enormous. The only way to eliminate this threat is to eliminate the weapons themselves. And as you know, no adaptation is possible. So right now, there are about 14,000 nuclear weapons worldwide. Of these, about 3,600 nuclear warheads are deployed right now on ICBMs, submarines, aircraft, artillery. And half of these, about 1,800, are on high alert status. That is, they're ready for immediate use. What we now know is that the detonation of only a handful of these, maybe six or eight, could precipitate a nuclear winter and kill a billion people. Maybe many more. How are we responding to this as a nation? We're engaged, along with the Russians, in a program of what we're calling modernization. That is, we're building new ICBMs, new land-based missiles, new submarine-based weapons. In the process, we're slated to build, we're planning to spend about 1.2 trillion dollars, 1.2 trillion dollars on these new weapons over the next 30 years. Well, you might ask, how likely is a nuclear war? The answer is, it certainly can happen, and almost has on a number of occasions. The best possibility is by accident or mistake. There have been many, many near misses. US nuclear forces were placed on high alert a few years back when NORAD misread its radar and saw the moon rising over Norway as an incoming nuclear attack. Other alerts have been prompted by a bear climbing a fence in Minnesota, a number of times by computer operators misreading training programs as signaling actual attacks, and you remember just a couple of years ago, the entire state of Hawaii was alerted to an incoming nuclear attack for about 20 minutes. Again, the result of misreading a training program. Well, that's not the only risk. In 1974, when Richard Nixon was facing impeachment, he was drunk much of the time, and the Secretary of Defense and Secretary of State instructed the chain of command that they should only respond to orders from the president if they came through the two of them, the two secretaries. Last year in 2020, you remember that Donald Trump underwent treatment for COVID-19. He was treated for several days with a drug called dexamethasone, which makes some patients paranoid and delusional and creates feelings of euphoria and invulnerability. Just imagine the possibilities. The bottom line here is that we've been extremely lucky so far, but we don't know how long our luck is going to hold. Something that a nuclear war could be limited. Bear in mind that one of the immediate effects of any nuclear attack will be loss of communications because of electromagnetic pulse. That'll make it difficult or nearly impossible for the president to know what's going on. Key aspect of our deterrence policy is that we're ready to launch on warning. That is, whenever we have information about an incoming attack, the idea is that we need to be able to use it or lose it. That is, if we don't launch our nuclear weapons before the enemy weapons arrive to destroy them, then we won't be able to retaliate. Incidentally, we'll only have minutes, like 10 minutes to decide whether to launch. Part of our modernization policy is to create new so-called tactical nuclear weapons. Farmer Secretary Mattis said repeatedly, however, that there's no such thing as a tactical nuclear weapon. They're all strategic. That's because the effects of their use would be to likely to escalate into a general nuclear war and the strategic implications are therefore obvious. Something that a missile defense program might protect us. Well, so far, the success of U.S. testing of its missile defense program, now 30 years old, the success rate of our tests is only about 50 percent. All of those tests have been conducted under tightly controlled conditions, unrealistic because they didn't involve the use by an enemy of avoidance tactics. Incidentally, the ballistic missile defense program of the United States has provoked a new arms race, as it predictably would China, for example, which long relied on a minimum deterrent strategic force of about 20 odd weapons has now grown that number to more than 200. Just what you do if you need to overcome a first strike from an enemy like the United States. So in light of all this, in light of the profound threat to the human environment from a U.S. nuclear weapon, you might ask whether the Defense Department or DOE has ever prepared an environmental impact statement as required by NEPA. The answer is, apparently not. Even if an EIS like this were classified, we need to know that it's been done. It might, after all, influence U.S. strategic planning. That's the point of NEPA, after all. In 1996, the International Court of Justice issued an advisory opinion on the legality of nuclear weapons. It noted that there are two treaties, two 1997 treaties, Protocol I to the Geneva Accords and the Environmental Modification Treaty. Both of these prohibit the use of weapons or methods of warfare that might be expected to cause, and I'm quoting here, widespread long-term and severe impacts to the environment. That, of course, is precisely what nuclear weapons would do. But the court found that the each state's sovereign right of self-defense trumps any environmental concerns and the application of these two treaties. Nevertheless, nevertheless, the court said, ironically, in any sort of war, the law of armed conflict always applies. In that law, the law of war requires that any use of force be necessary. That is, that it be critical to the accomplishment of a legitimate military objective. That is, that there be no reasonable alternative. Next, the law of war requires distinction in the use of force. That is, that any attack distinguished between military targets and non-combatant civilian targets, something that nuclear weapons, of course, can never do. And the law of war requires proportionality in the use of force. That is, you can't use a hammer to kill a mosquito. All states exercising their inherent right of self-defense, the court said, must comply with these principles. But of course, they couldn't. The court recognized this in a way. It said that it could not, that the use of nuclear weapons would generally be, I'm quoting again, generally be contrary to the rules of international law applicable in armed conflict. But then it went on to say that although every state must comply with these rules, it could not say, the court said, it could not say that the use of a nuke would be illegal if a state found in what he called an extreme circumstance of self-defense, in which it's very survival would be at stake. That state wanted to use a nuclear weapon in an extreme circumstance of self-defense in which it's very survival would be at stake. In other words, in other words, it might be okay for a weak state that believes rightly or wrongly that if faces an existential threat, it might be okay for that state to launch a nuclear weapon to stop an enemy invasion with even with conventional forces. We need to be thinking here about states like North Korea, Pakistan, Iran. Incidentally, the United States claims that it could and would use nuclear weapons to stop an invasion of its NATO allies by conventional Russian forces. At the end of its decision in 1996, the World Court urged all states to engage in complete nuclear disarmament, as those states promised to do in the Nuclear Non-Proliferation Treaty. In 2017, the United Nations put out its treaty on the prohibition of nuclear weapons. Under that treaty, each non-nuclear state promises never to develop, test, produce, or otherwise acquire nuclear weapons, and current nuclear states would promise to get rid of theirs. All this would take place with very intrusive inspection programs. The United States, like the other nuclear states, has refused to sign this treaty. It insists that the elimination of all nuclear weapons is unrealistic. This is our words unrealistic and unverifiable, ignoring the fact, for example, that the 1993 Chemical Weapons Convention includes an exquisitely detailed and highly effective inspection regime. The United States says deterrence will continue to keep the peace. Well, we might hope so. The treaty, incidentally, is now in force ratified by more than 50 non-nuclear states, but not by yet by any nuclear ones. In January of this year, the Federation of Americans sign has moved the hands of its doomsday clock to just 100 seconds, a minute and 40 seconds before midnight, midnight marking nuclear apocalypse. That's the closest it's been in 75 years. So what to do about all this? Well, one thing is to learn more about this threat. A good place to start is a marvelous book published last year by Fred Kaplan called The Vom, President's Generals in the Secret History of Nuclear War. Here's that book. You might also want to subscribe to the free website of the Federation of American Sinus. This is a reliable source of information about a nuclear war. And as a lawyer, as a public citizen, help educate the public, your neighbors, about the nature and the gravity of this threat. Let them know about the false promises of U.S. deterrence policy and ballistic missile defense. Let them know about the role of defense contractors in perpetuating our reliance on these weapons. Tell them about the expense and explain to them that there are alternatives, the most important being elimination of these weapons. We're best equipped to do this as lawyers, to expose the facts, to interpret them for the public, to work for changes in policy, to help elect officials who are committed to eliminating this threat. If we fail to eliminate nuclear weapons and we allow this gravest environmental threat to continue, then we may need to follow the instructions on that 1960s era duck and cover poster. You know the one I'm talking about. It says, in the event of a nuclear attack, place your hands behind your head, put your head between your knees, and kiss your ass goodbye. So thanks very much for listening to this dreadful talk, lunchtime talk on such a beautiful day. I'd be glad I answered any questions. Thank you, Professor Dicus. Indeed, not the most uplifting talk, but we've sort of become accustomed to such things in the past year and a half, I'd say. Okay, so for our listeners, we have a few minutes to ask some questions. And as a reminder, if you're watching on our website live stream, click on the icon at the bottom of the video, and that will bring up the chat box where you can add questions. Or if you're watching on our Facebook live stream, add your question to the comment box below, and we'll try to get through as many questions as possible. First question is, and you gave a couple of suggestions toward the end of your talk about ways that people could become more informed about these topics, but you know, the nature of national security is that it's cloaked in secrecy. And it can be a very difficult topic for the public to get information about, you know, many public interest requests have exceptions for national security. And the public is often left to kind of read between the lines in terms of presidential meetings, like the recent one with Putin and Russia. And what are ways that the public can track and interpret that what's going on in terms of these signals internationally? Well, secrecy has always been an issue, especially in this area. It's always been hard to find out exactly what's going on. During the Trump administration, for example, the government stopped its policy of publishing information about our inventories of nuclear weapons. But you know, it's also been really difficult over many years to get relevant facts about what's going on with the environment more generally. So it's, we've had to work hard to find out about pollution, about planning for various environmentally destructive activities that might be permitted by the government or there might be a might go on without the government's permission. Regarding nuclear weapons, however, there is a huge body of information that is public, that is accessible on sites like the Arms Control Association. These mostly try to play it straight, although they, like me, are interested in eliminating nuclear weapons because of the threat they pose. So the bottom line here is that a little bit of digging will yield a lot of information and make it clear, I think, to everybody how great this threat is and how it might be abated. Thank you. We recently saw the effect that hackers can have on the distribution of energy through the hacking of the gas pipeline recently where the utility had to pay off the hackers in order to continue the distribution of energy. How are governments protecting against hacking into nuclear weapons, but also is there a concern over hacking into nuclear plants for energy? Well, what a great question and a scary one. I hope that nuclear power plants and I hope especially that the nuclear weapons chain of command is more secure than the colonial pipeline and more secure than the office of management and budget and a number of other government offices that have been hacked in the last year. The fact is that cyber intrusions are a really, really very serious threat. We know, for example, we know this. The FBI has told us that Russia has implanted malware in the control systems of our electric grids and that, at least until recently, all that stood between us and a nationwide blackout was a political decision to pull a trigger. So it's not hard to imagine, in line of the hacking we know about recently, that the same kind of peril awaits in the control of the nuclear weapons chain of command. All the more reason to work toward the elimination of a threat like this that could be set off without our intent or corrupted somehow by our enemies. That's deeply disturbing. So what similarities or differences have you found in terms of the policies or politics around biological warfare as compared to nuclear warfare? What have been some of the findings of your work, your research regarding COVID-19? Well, in 1925, all the nations of the world agreed in the Hague conventions that they would outlaw the use of biological weapons that in the wake of World War I. And I think that agreement grew out of an appreciation of both the horror of the use of weapons like that, also the potential that they held for getting out of control that is for the use of contagious pathogens that might trigger a pandemic like the one we're wearing currently. And also the fact that however effective these weapons might be in defeating an enemy that there were alternatives that made their use unnecessary or at least optional. So all that together I think convinced us to agree as we did later on in a specific convention dealing with biological weapons to agree that they shouldn't be used again and wouldn't. Whether and to what extent nations continued to prepare for the use of such weapons, we don't know. That's a discussion for another day. But nuclear weapons seem somehow to be different although all the same questions might be asked about them. We seem to be locked in to a competition with our potential enemies now that the nuclear genie is out of the bottle now that a lot of states have nuclear weapons now that the technology is widely available. And for other reasons that I suggested earlier not least the average of nuclear weapons defense contractors who make billions in profits off these weapons. We seem to have gotten locked in, baked in to a posture where we just don't know quite how to get rid of these weapons safely. Thinking about the 2017 United Nations Treaty on the Elimination of Nuclear Weapons, it's not hard to imagine an agreement among the nuclear states that would have each of them reduce their inventories of nuclear weapons stepwise over a period of time with very intrusive inspections to make sure that everybody is playing by the same rules. That would eventually lead us to the elimination of all weapons or at least to get us down to a level where there'd be so few that they wouldn't threaten all of humankind. But we just haven't been able to do that yet. We haven't been able to break the old habit of asserting U.S. superiority and reorganizing our strategy to find other ways to defend ourselves. Thank you. A question from the audience regarding your anecdote about President Nixon's inebriated state prior to stepping down and to the perils presented by our most recent president, wondering whether Congress has authority to require some kind of system like that in Nixon's case. What are the constitutional implications? Well, it's a good question. First of all, the irrigation of authority by the two secretaries in the Nixon case was obviously unconstitutional. They weren't given that authority either by Congress or by the president. It's only because the context in which all that occurred that they might have actually succeeded in stopping a crazy order from Nixon to set off a nuclear war. The Constitution in the 25th Amendment provides a mechanism for a president who is impaired somehow as Trump may have been last year to hand off the responsibilities to the president, to the vice president. In this case, Trump refused to pass the nuclear football off to Mike Pence. Whether Congress could require a handoff like that is, I think, unclear, given the ambiguity of Article II, which addresses the president's powers as commander-in-chief. And even if Congress undertook to do that, which I doubt it will, the questions about criteria for the handoff, that is, when and under what circumstances the president might be forced to surrender the nuclear football, would be imagining such criteria is daunting. So I don't see any of that happening, frankly. And once again, I think the ultimate protection against a rogue president or an incompetent or inebriated or ill president who might do something crazy and irreversible is to get rid of the tools that might allow him to do that for her. Thank you. Has the US signed on to any accord such as those you described that recognize the destruction of nuclear weapons on the environment? The United States is a, excuse me, is a party to the Environmental Modification Treaty of 1977. It is not a party to the protocol of one of the 1977 of the Geneva Conventions, although it has accepted the part of that protocol, that treaty that I mentioned as reflecting customary international law. Nevertheless, the United States has been clear that it regards nuclear weapons as not covered by those provisions. Okay, thank you. Well, we are just about out of time, so I think we'll end right there and wrap up today's talk. Thank you again, Professor Dijkus, for your really interesting presentation, and thank you to our viewers for joining us today. Our next Hot Topics talk will be right here on June 22 at noon Eastern Time, and we hope you can join us then. Thanks, everyone.