Rocky Flats nuclear plant.

WASHINGTON, DC -A color slide of the distinctive mushroom-shaped cloud produced by a nuclear explosion flashed on the screen as L.D.Y. Ong began his presentation -the eighth technical paper of the morning. Several of the seventy scientists and engineers sandwiched into the darkened hotel meeting room grumbled as four more examples of the same awesome sight appeared before them.

"Cookie" Ong, a policy analyst for the Nuclear Regulatory Commission, noted that there had been about seven thousand incidents of terrorism worldwide in the past dozen years. These grim pictures, he explained, might serve a simple but persuasive incentive in carrying on the fight against the ultimate form of terrorism and violence: nuclear destruction.

The listeners, composed almost entirely of people from the nuclear industry, seemed to feel that they needed no such obvious reminder of their solemn mission. The attendees at this three-day symposium in San Francisco last summer were all "safeguarders," members of the little-known Institute of Nuclear Materials Management. The 23-year-old professional organization is composed of more than seven hundred specialists from the U.S. and other principal western nations. Together these plant managers, security officers, researchers, government officials, consultants and suppliers form the heart of the system used to prevent the theft, diversion or sabotage of nuclear weapons or the uranium and plutonium from which they could be manufactured.

Each year, the members of the institute quietly meet to discuss the latest developments in their exacting field. This year the low-key gathering took place without attracting the attention of the local press or the vigilant California antinuclear activists. Among the ninety formal presentations were such esoteric topics as "Generic Physical Protection Logic Trees" and "Gamma-Ray Measurements for Simultaneous Calorimetric Analysis." However obtuse, these titles really added up to straightforward agenda for staying a couple of steps ahead of potential adversaries who might want to acquire a nuclear weapon.

Though most of the sessions focused on complex technical matters, a few were devoted to political and social concerns: reversing the dismal state of the nuclear-power industry and countering its critics. "Can It Be Put Back Together Again?" asked a vice president of General Electric, a supplier of power reactors, in an address to the gathering. Later, a panel of utility executives and a public-relations consultant to the industry offered advice on "Shaping Public Attitudes Toward Nuclear Power."

The participants generally agreed that their industry has been victimized by the emotional tactics of the antinuclear movement, particularly attempts to link nuclear power with the specter of atomic warfare. By presenting illustrations of weapon tests, Cookie Ong mildly offended part of his audience, as though he had made an obscene gesture in church. These calculated theatrics were only one way in which his message ran against the grain of the prevailing attitude in the nuclear community. For the past two years, Ong, who is sympathetic to the aims of the nuclear industry, has been conducting a "one-man crusade" to re-examine the basic assumptions underlying the current approach to protecting the country's nuclear material.

"I go to institute meetings and read all about the development of expensive, highly complex [protective] systems," he explained afterward at his office in Washington. "And I wonder in aggregate what it buys us in the real world."

No longer strictly a safeguarder himself, Ong works directly for the five nuclear regulatory commissioners. Based in the NRC offices four blocks from the White House, he is part of a small staff that advises the panel on the full range of issues surrounding nuclear facilities. In the past few years the commission has been faced with a handful of troubling incidents around the country, which suggest that the laws covering the misuse of nuclear material may have been inadequate. Cookie Ong is asking whether the nation has the legal sanctions on the books to deal appropriately with those convicted of nuclear theft.

Increasing Reliance On Hardware

Immediately after World War II nearly all of the special nuclear material (jargon for the radioactive substances that could be fashioned into weapons) remained under the control of the military. Security in those days was largely an extension of the secretive wartime measures that enshrouded the development of the atomic bomb. The goal of postwar security precautions was to prevent, through the use of conventional classification procedures, Eastern Bloc nations from obtaining information about nuclear weapons. Nuclear theft or terrorism were not pressing issues.

In 1954 President Eisenhower launched the Atoms for Peace program, which encouraged the development of a private nuclear-power industry and facilitated peaceful nuclear applications abroad. The U.S. could not realistically maintain a stranglehold over nuclear technology forever, so Eisenhower offered to assist foreign countries with peaceful nuclear projects in return for commitments to nonproliferation and international inspection of their facilities.

As the possession of special nuclear material spread beyond the military, new safeguards became necessary. The far-reaching Atomic Energy Act of 1954 established the ground rules for the emerging domestic private nuclear industry. The legislation set up a system of licensing private use of nuclear material, and it proscribed harsh criminal penalties, including even capital punishment, for diverting the substances from their licensed purpose.

At first, there were few regulations covering security systems and other protective measures to be employed by licensees. The Atomic Energy Commission reasoned that the smaller quantities of material then in the private sector had a high intrinsic value. The agency concluded that the licensees would take adequate precautions to protect their inventory because of the possibility of sizable financial loss.

As the quantity of nuclear material in private hands has grown, the government's initial reliance on intrinsic value and deterrence has given way to technological solutions. Since the mid-1960s, the serious business of safeguards increasingly has become an exercise in regulatory requirements. The government has taken the lead in developing sophisticated security systems and mandating their use. The highly specialized papers delivered at the: San Francisco conference are evidence of the dominance of this approach to safeguards today.

Cookie Ong is suggesting that it might be time for "dusting off old values" and getting back to basics in the overall system, especially by re-emphasizing tough criminal penalties as a deterrent to malevolent acts. "If you ask ten safeguarders about the penalties now in the Atomic Energy Act," he said, "I doubt if many could tell you what the law provides." And if professionals in the field don't know the situation, how are potential diverters or saboteurs likely to know what kind of sentences they are facing?

"If I knock over a bank, I wouldn't be surprised if I could get up to 20 years in prison under federal law," he continued. "The most I could get for the more unthinkable crime of stealing a nuclear weapon or the material to make one is probably ten years. That doesn't add up."

While the Atomic Energy Act now sets a maximum penalty of life imprisonment for such offenses (the death penalty was removed in 1969), this sentence is only possible in cases where the government can prove intent to either willfully injure the United States or to secure an advantage for a foreign nation. Proving such an intent could be extremely difficult, so, as a practical matter, the maximum penalty is ten years.

The discussion of potential sentences is entirely theoretical, however, because no one has ever been convicted or even brought to trial under the act. In the one certain case of nuclear theft to date, prosecutors elected to proceed under the federal extortion laws instead of the Atomic Energy Act largely because of the longer maximum sentence. The theft occurred at General Electric's nuclear fuel fabrication plant in Wilmington, North Carolina, in January 1979. A temporary employee removed two canisters of slightly enriched uranium, a total of 140 pounds, and demanded $100,000 for the return of the material. By convicting the culprit of extortion, the government was able to obtain a 15-year sentence instead of the ten years that might have been imposed for nuclear theft.

Finding Loopholes The Hard Way

On one hand, the lack of precedent under the Atomic Energy Act may indicate that the existing law is working as intended to deter unlicensed activity. On the other hand, it may indicate that the law is an awkward instrument for dealing with these difficult cases. The evidence of possible inadequacy is broader than the issue of maximum penalties. Three other incidents in the last few years have drawn attention to loopholes and oversights in the legal protection of the nuclear power industry.

  • In May 1979 two employees training to become reactor operators poured a caustic substance on stored fuel rods at Virginia Electric and Power Company's Surry Plant near Williamsburg, Virginia. Under the Atomic Energy Act, it wasn't a federal crime to sabotage nuclear facilities unless there was proof of intent to obstruct the national defense. The two were ultimately convicted in state court, not a federal court, for destruction of part of the electrical grid and sentenced to two years in jail. Similar laws appear on the books in only a handful of states.
  • In July 1978 a device that appeared to be a bomb was discovered in a machine shop at Florida Power and Light Company's Turkey Point nuclear plant south of Miami. The gadget turned out to be a dud, part of a hoax devised by an employee. Because no overt threat had been made, officials could not find a basis for prosecution. The perpetrator was fired.
  • In November 1979 an NRC investigation verified reports of harassment and intimidation directed at quality-control inspectors on Houston Lighting and Power Company's South Texas Project, a reactor under construction near Bay City, Texas. Construction workers and their supervisors, under pressure to expedite the slow-moving project, threatened inspectors who complained of inferior workmanship. The incident revealed that there was no legal prohibition against interference with nuclear inspectors in the performance of their duties. Several employees were fired or transferred by the contractor on the job. Although the inspectors on this project were not involved in safeguards work, the case highlighted the fact that even security inspectors lacked legal protection.

Since the Surry and South Texas incidents, Congress has moved to correct the legal deficiencies they revealed. In June 1980 the lawmakers enacted amendments to the Atomic Energy Act sought by the nuclear-power industry and its federal regulators. It is now a federal offense to sabotage a reactor or interfere with a nuclear inspector.

Although the immediate problem has been remedied, several questions remain: How did these legal loopholes exist for so long? Are there any other loopholes that could cause problems in the future, particularly in the safeguarding of nuclear weapons?

As disturbing as the legal deficiencies may appear, the people who guard the nation's nuclear arsenal contend that there is no reason for alarm. They insist that the standards of protection accorded to nuclear weapons and bomb-grade materials are considerably higher than the protective measures applied to reactor fuel, where the dangers stemming from theft or diversion are relatively small. The director of security for one nuclear weapons plant characteristically described the sanctions for invading his territory as "swift and severe." In part, the weapons facilities are in a stronger legal position to deal with threats because the weapons components also are protected by the laws covering classified information as well as special nuclear material. But ultimately, most of the people in this line of work do rely upon the law to perform a safeguards function. Guards at the weapons plants have a clear government mandate to use deadly force to protect the materials entrusted to them, so they don't view jail sentences as much of a deterrent to potential adversaries -at least not compared to their firepower.

The aim of those safeguarding the weapons is to see that a theft never occurs, not to punish the wrongdoers after the unfortunate fact. "I'm in the preventive maintenance business," explained Michael Von Grey, a former U.S. Treasury agent and veteran of the nuclear Navy who now oversees compliance with security regulations at the weapons plants and administrative facilities operated by the U.S. Department of Energy. Once a college football player, Von Gray frequently resorts to football metaphors in discussing the security apparatus which he monitors. "If you lose a step, like a cornerback," he said, "you're out of business." In all the years that the Department of Energy and its predecessor agencies have been fabricating weapons, he boasted, their defense has been perfect: "unbeaten, untied and unscored upon."

Of course, Cookie Ong is familiar with the results of heavy reliance upon guards and guns in the nuclear weapons program, where he spent ten years of his career. The perfect record of the safeguarders, he says, may be more attributable to a lack of serious attempts against them rather than an unpregnable defense. He's also familiar with the contention that stiff penalties may be irrelevant to the fanatically dedicated terrorists who might try to steal a nuclear weapon. But he points out that tougher penalties, unlike more hardware, don't really cost anything. Besides, he says, "let the potential adversary make the judgment" about their additional value in the total realm of safeguards.