[Peace-discuss] FW: MOX for Bombs in Japan

[Boyle, Francis A]

Go tell that to the Japanese Peace Movement!
Fab.

Francis A. Boyle
Law Building
504 E. Pennsylvania Ave.
Champaign IL 61820 USA
217-333-7954 (phone)
217-244-1478 (fax)
(personal comments only)

From: Brussel, Morton K
Sent: Monday, November 06, 2017 10:10 PM
To: Boyle, Francis A <fboyle at illinois.edu>
Cc: David Green <davegreen84 at yahoo.com>; C. G. ESTABROOK <carl at newsfromneptune.com>; Miller, Joseph Thomas <jtmiller at illinois.edu>; sherwoodross10 at gmail.com; peace-discuss at anti-war.net; a-fields at uiuc.edu; Hoffman, Valerie J <vhoffman at illinois.edu>; Joe Lauria <joelauria at gmail.com>; Peace-discuss at lists.chambana.net; peace-discuss-request at lists.chambana.net; Szoke, Ron <r-szoke at illinois.edu>; Arlene Hickory <a23h23 at yahoo.com>; Karen Aram <karenaram at hotmail.com>; abass10 at gmail.com; mickalideh at gmail.com; Lina Thorne <lina at worldcantwait.net>; chicago at worldcantwait.net; Jay <futureup2us at gmail.com>; David Johnson <davidjohnson1451 at comcast.net>; Mildred O'brien <moboct1 at aim.com>; Estabrook, Carl G <galliher at illinois.edu>
Subject: Re: [Peace-discuss] FW: MOX for Bombs in Japan

I will comment no longer on this issue; you are twisting in the wind, Francis, with sad but laughable arguments.


On Nov 6, 2017, at 9:39 PM, Boyle, Francis A <fboyle at illinois.edu<mailto:fboyle at illinois.edu>> wrote:

And by the way, the reason Japanese Peace Movement had me interviewed is because they know full well that their MOX Stockpile is used for weapons purposes. fab

Francis A. Boyle
Law Building
504 E. Pennsylvania Ave.
Champaign IL 61820 USA
217-333-7954 (phone)
217-244-1478 (fax)
(personal comments only)

From: Boyle, Francis A
Sent: Monday, November 06, 2017 9:30 PM
To: Brussel, Morton K <brussel at illinois.edu<mailto:brussel at illinois.edu>>
Cc: David Green <davegreen84 at yahoo.com<mailto:davegreen84 at yahoo.com>>; C. G. ESTABROOK <carl at newsfromneptune.com<mailto:carl at newsfromneptune.com>>; Miller, Joseph Thomas <jtmiller at illinois.edu<mailto:jtmiller at illinois.edu>>; sherwoodross10 at gmail.com<mailto:sherwoodross10 at gmail.com>; peace-discuss at anti-war.net<mailto:peace-discuss at anti-war.net>; a-fields at uiuc.edu<mailto:a-fields at uiuc.edu>; Hoffman, Valerie J <vhoffman at illinois.edu<mailto:vhoffman at illinois.edu>>; Joe Lauria <joelauria at gmail.com<mailto:joelauria at gmail.com>>; Peace-discuss at lists.chambana.net<mailto:Peace-discuss at lists.chambana.net>; peace-discuss-request at lists.chambana.net<mailto:peace-discuss-request at lists.chambana.net>; Szoke, Ron <r-szoke at illinois.edu<mailto:r-szoke at illinois.edu>>; Arlene Hickory <a23h23 at yahoo.com<mailto:a23h23 at yahoo.com>>; Karen Aram <karenaram at hotmail.com<mailto:karenaram at hotmail.com>>; abass10 at gmail.com<mailto:abass10 at gmail.com>; mickalideh at gmail.com<mailto:mickalideh at gmail.com>; Lina Thorne <lina at worldcantwait.net<mailto:lina at worldcantwait.net>>; chicago at worldcantwait.net<mailto:chicago at worldcantwait.net>; Jay <futureup2us at gmail.com<mailto:futureup2us at gmail.com>>; David Johnson <davidjohnson1451 at comcast.net<mailto:davidjohnson1451 at comcast.net>>; Mildred O'brien <moboct1 at aim.com<mailto:moboct1 at aim.com>>; Estabrook, Carl G <galliher at illinois.edu<mailto:galliher at illinois.edu>>
Subject: RE: [Peace-discuss] FW: MOX for Bombs in Japan

If you are not going to take the time to read these two  Testimonies under oath and subject to cross-examination by the Feds of two Experts on MOX  in United States Federal District, then you should stop impugning my integrity in favor of Wikipedia—pure guttersnipe! fab.


Francis A. Boyle
Law Building
504 E. Pennsylvania Ave.
Champaign IL 61820 USA
217-333-7954 (phone)
217-244-1478 (fax)
(personal comments only)

From: Brussel, Morton K
Sent: Monday, November 06, 2017 9:13 PM
To: Boyle, Francis A <fboyle at illinois.edu<mailto:fboyle at illinois.edu>>
Cc: David Green <davegreen84 at yahoo.com<mailto:davegreen84 at yahoo.com>>; C. G. ESTABROOK <carl at newsfromneptune.com<mailto:carl at newsfromneptune.com>>; Miller, Joseph Thomas <jtmiller at illinois.edu<mailto:jtmiller at illinois.edu>>; sherwoodross10 at gmail.com<mailto:sherwoodross10 at gmail.com>; peace-discuss at anti-war.net<mailto:peace-discuss at anti-war.net>; a-fields at uiuc.edu<mailto:a-fields at uiuc.edu>; Hoffman, Valerie J <vhoffman at illinois.edu<mailto:vhoffman at illinois.edu>>; Joe Lauria <joelauria at gmail.com<mailto:joelauria at gmail.com>>; Peace-discuss at lists.chambana.net<mailto:Peace-discuss at lists.chambana.net>; peace-discuss-request at lists.chambana.net<mailto:peace-discuss-request at lists.chambana.net>; Szoke, Ron <r-szoke at illinois.edu<mailto:r-szoke at illinois.edu>>; Arlene Hickory <a23h23 at yahoo.com<mailto:a23h23 at yahoo.com>>; Karen Aram <karenaram at hotmail.com<mailto:karenaram at hotmail.com>>; abass10 at gmail.com<mailto:abass10 at gmail.com>; mickalideh at gmail.com<mailto:mickalideh at gmail.com>; Lina Thorne <lina at worldcantwait.net<mailto:lina at worldcantwait.net>>;chicago at worldcantwait.net<mailto:chicago at worldcantwait.net>; Jay <futureup2us at gmail.com<mailto:futureup2us at gmail.com>>; David Johnson <davidjohnson1451 at comcast.net<mailto:davidjohnson1451 at comcast.net>>; Mildred O'brien <moboct1 at aim.com<mailto:moboct1 at aim.com>>; Estabrook, Carl G <galliher at illinois.edu<mailto:galliher at illinois.edu>>
Subject: Re: [Peace-discuss] FW: MOX for Bombs in Japan

I don’t know who qualified you as an expert of nuclear reactors and the nature of their fuels, nuclear physics or nuclear chemistry. Your  statements belie that qualification. I hope you don’t expect me, or anyone on this list, to read the transcript you presented, but I did scan it and noted nothing in technical detail there about the properties and use of MOX, certainly not for bombs.

Sorry,

—mkb


On Nov 6, 2017, at 8:38 PM, Boyle, Francis A <fboyle at illinois.edu<mailto:fboyle at illinois.edu>> wrote:

Well I have been qualified as an Expert on  MOX in United States Federal District Court. And I prohibit my law students from citing Wikipedia to me in any paper and advise them to never cite or quote Wikipedia to a Judge because Wikipedia is filled with so much pure, unadulterated BULL-TWADDLE. Fab.
Subject: Nuclear Proliferation/NPT/US Atomic Energy Law/MOX, etc.

1
1 IN THE UNITED STATES DISTRICT COURT
2 FOR THE WESTERN DISTRICT OF MICHIGAN
3 SOUTHERN DIVISION
4
5 ALICE HIRT; ANABEL DWYER;
CITIZENS FOR ALTERNATIVES
6 TO CHEMICAL CONTAMINATION;
KATHRYN CUMBOW; ROBERT
7 ANDERSON; DORIS SCHALLER
VERNON; and TERRY MILLER,
8
Plaintiffs,
9
v. CASE NO: 1:99-CV-933
10
BILL RICHARDSON, Secretary,
11 United States Department
of Energy; UNITED STATES
12 OF AMERICA; and UNKNOWN
PART(Y)(IES), named as
13 "John and Jane Doe" on
complaint,
14
Defendants.
15
____________________________/
16
* * * *
17
18 TESTIMONY OF GORDON EDWARDS and FRANCIS BOYLE
19 * * * *
20
21 BEFORE: THE HONORABLE RICHARD ALAN ENSLEN
United States District Judge
22 Kalamazoo, Michigan
April 7, 2000
23
24
25
KATHLEEN S. THOMAS, U.S. District Court Reporter
410 West Michigan Avenue, Kalamazoo, Michigan 49007
(616)385-3050

2
1 APPEARANCES:
2
APPEARING ON BEHALF OF THE PLAINTIFFS:
3
MR. KARY LOVE
4 977 Butternut Drive
PMB 128
5 Holland, Michigan 49424
6 MR. TERRY J. LODGE
316 North Michigan Street, Suite 520
7 Toledo, Ohio 43624-1627
8
APPEARING ON BEHALF OF THE DEFENDANTS:
9
MR. ROBERT I. DODGE
10 MR. CHARLES GROSS
U.S. Attorney's Office
11 330 Ionia Avenue, N.W., Suite 501
P.O. Box 208
12 Grand Rapids, Michigan 49501-208
13
14
15
16
17
18
19
20
21
22
23
24
25
KATHLEEN S. THOMAS, U.S. District Court Reporter
410 West Michigan Avenue, Kalamazoo, Michigan 49007
(616)385-3050

3
1 INDEX
2 WITNESS: Page
3 GORDON EDWARDS
Direct Examination by Mr. Lodge 4
4 Cross Examination by Mr. Dodge 17
Redirect Examination by Mr. Lodge 20
5
6
FRANCIS BOYLE
7 Direct Examination by Mr. Love 21
Cross Examination by Mr. Dodge 67
8 Redirect Examination by Mr. Love 82
9
10 EXHIBITS Rec'd.
11 Plaintiffs' Exhibit Number 1 87
Plaintiffs' Exhibit Number 2 87
12 Plaintiffs' Exhibit Number 3 31
Plaintiffs' Exhibit Number 5 87
13 Plaintiffs' Exhibit Number 6 87
Plaintiffs' Exhibit Number 11 87
14 Plaintiffs' Exhibit Number 12 87
Plaintiffs' Exhibit Number 13 87
15 Plaintiffs' Exhibit Number 14 87
16
17
18
19
20
21
22
23
24
25
KATHLEEN S. THOMAS, U.S. District Court Reporter
410 West Michigan Avenue, Kalamazoo, Michigan 49007
(616)385-3050

4
1 Kalamazoo, Michigan
2 April 7, 2000
3 at approximately 8:50 A.M.
4 EXCERPT OF PROCEEDINGS
5 TESTIMONY OF GORDON EDWARDS
6 MR. LODGE: We waive opening.
7 THE COURT: Okay. Good for you.
8 MR. LODGE: And we would call Gordon Edwards.
9 GORDON EDWARDS - PLAINTIFFS' WITNESS - SWORN.
10 COURT CLERK: Please state and spell your name
11 for the record.
12 THE WITNESS: My name is Gordon Edwards,
13 G-o-r-d-o-n E-d-w-a-r-d-s.
14 DIRECT EXAMINATION
15 BY MR. LODGE:
16 Q. Dr. Edwards, you previously testified in this proceeding
17 in an earlier motion hearing in December, 1999, correct?
18 A. That is correct.
19 Q. And what, just summarize for the Court, to refresh the
20 Court's recollection, what is your occupation or
21 profession?
22 A. I'm a professor of mathematics at Vanier College in
23 Montreal, and I'm also a consultant on nuclear issues for
24 both governmental and nongovernmental agencies.
25 Q. Are you affiliated with any nongovernmental entity in
KATHLEEN S. THOMAS, U.S. District Court Reporter
410 West Michigan Avenue, Kalamazoo, Michigan 49007
(616)385-3050

5
1 Canada regarding the purpose of which is to discuss
2 nuclear issues?
3 A. Yes, I'm the president of the Canadian Coalition for
4 Nuclear Responsibility, which is a federally incorporated
5 organization, since 1978.
6 Q. And how long and in what capacities have you served as a
7 consultant on nuclear issues?
8 A. I've served as a consultant since 1977 for a variety of
9 bodies, including Royal Commissions of Inquiry where I
10 have been retained to cross-examine expert witnesses, also
11 the auditor general of Canada when they were doing a
12 comprehensive audit of the Atomic Energy Control Board,
13 and most recently I was invited for January 2000 by the
14 Canadian Department of Foreign Affairs and International
15 Trade to participate in a small expert workshop on nuclear
16 weapons policies in Ottawa.
17 Q. And Dr. Edwards, have you had the occasion to read the
18 environmental assessment promulgated by the Fissile
19 Materials Office of the U.S. Department of Energy for the
20 Parallex Project?
21 A. Yes, I have, and have commented on that as well.
22 Q. We are here today on a proposed shipment of MOX plutonium
23 from Russia to Chalk River, Ontario, you understand that?
24 A. That is correct.
25 Q. What is your understanding as to the amount of the
KATHLEEN S. THOMAS, U.S. District Court Reporter
410 West Michigan Avenue, Kalamazoo, Michigan 49007
(616)385-3050

6
1 plutonium content of the MOX fuel rods, pins that would be
2 brought from Russia?
3 A. The MOX fuel contains 135 grams of weapons grade plutonium
4 as compared with the 119 grams that were in the American
5 shipment that proceeded in January.
6 Q. Now, Dr. Edwards, you indicated that the Canadian
7 Coalition was incorporated in approximately 1978?
8 A. That's right.
9 Q. Have you been active in nuclear issues since that time?
10 A. Even before that time, yes. I have been active
11 specifically on proliferation questions and
12 plutonium-related questions since 1975.
13 MR. LODGE: If I may approach.
14 THE COURT: Of course.
15 BY MR. LODGE:
16 Q. Showing you what has been marked for purposes of the
17 supplemental motion hearing as Plaintiff's Exhibit 1, I'm
18 going to also leave Exhibit 2 up here.
19 A. Yes.
20 Q. Have you ever conducted any investigation into the issue
21 of civilian population or work exposures to plutonium?
22 A. Only at the level of potential for damage, potential for
23 harm.
24 Q. What is Exhibit 1?
25 A. Exhibit 1 is a letter from Mary Measures, Ph.D., Director
KATHLEEN S. THOMAS, U.S. District Court Reporter
410 West Michigan Avenue, Kalamazoo, Michigan 49007
(616)385-3050

7
1 of the Radiation Environmental Protection Division of the
2 Atomic Energy Control Board of Canada dealing with
3 quantity of plutonium that an atomic radiation worker or a
4 member of the public may inhale to reach their respective
5 maximum limits.
6 Q. And the date of that is September 30, 1999?
7 A. That is correct, about six months ago.
8 Q. And could you summarize what the inhalation, or what the
9 limits are for both workers and for public?
10 A. Yes. The maximum lifetime limit of exposure in the lung
11 for an atomic worker is approximately 1.4 micrograms, and
12 for the member of the public it's 0.1 microgram, and a
13 microgram being one one-millionth of a gram, so if we
14 translate this into grams, it would mean 1.4 grams would
15 be equivalent-- would be enough to give maximum
16 permissible doses to one million workers and ten -- one
17 gram would be enough to give maximum permissible doses to
18 ten million members of the general public. That's just
19 potential.
20 Q. Okay. And is that based on the -- or, I'm sorry. Have
21 you had occasion in connection with the proposed Russian
22 shipment of a 135 grams of plutonium and the American
23 shipment of 119 grams, to perform any computations as to
24 what the potential dispersion or exposure is?
25 A. Well, I would like to emphasize this is just arithmetic
KATHLEEN S. THOMAS, U.S. District Court Reporter
410 West Michigan Avenue, Kalamazoo, Michigan 49007
(616)385-3050

8
1 and does not take into account dispersion factors such as
2 wind velocity, any respiration rates, and so on. If we
3 just look at the theoretical potential, then with 119
4 grams, we are talking about the potential for 85 million
5 atomic workers to receive their maximum permissible
6 exposure, if that were able to be disseminated into all of
7 their lungs and 1,000,190,000 members of the general
8 public, so even though this is a very small amount of
9 plutonium, the potential for exposure, harmful exposure is
10 quite significant.
11 Q. All right. But so that implies you would have to have an
12 optimal dispersal?
13 A. This would be an impossibly optimal dispersal. This would
14 be assuming that the plutonium were distributed fully into
15 the lungs of all the people that I've mentioned.
16 Q. Are you aware of whether or not the American shipment was
17 delivered to Chalk River?
18 A. Yes, the American shipment was delivered to Chalk River.
19 It was taken to the border in what I believe was an SST, a
20 truck which was described as silver, and I believe it was
21 probably an SST, although I do not know for absolute
22 certainty about that, and then it was transported to the
23 Sault Ste. Marie airport where it was lifted by helicopter
24 accompanied by two other helicopters, and transported from
25 there to Chalk River.
KATHLEEN S. THOMAS, U.S. District Court Reporter
410 West Michigan Avenue, Kalamazoo, Michigan 49007
(616)385-3050

9
1 Q. You indicated that you were talking about an impossibly
2 optimal dispersal. Have you had the occasion to perform
3 any computations as to a very conservative prudent factor
4 to start with for dispersal?
5 A. Well, this is beyond my competence to really talk about
6 the details of how it might be dispersed, but if we just
7 assume for example 99.9 percent containment in the event
8 of a serious accident.
9 Q. Are you saying how much?
10 A. Suppose 99.9 percent of the material were successfully
11 contained and not disseminated in the environment and only
12 that small fraction was disseminated.
13 Q. Okay.
14 A. The potential again would correspond to, for atomic
15 workers in the case of the 119 gram shipment from the
16 States, it would be 85,000 maximum exposures and in the
17 case of the public, it would still over a million. Even
18 with 99.9 containment, in the event of an accident, you
19 still have the potential for over a million
20 overexposures. By the way, the 135 grams, the difference
21 between the 119 grams and the 135 grams from Russia
22 corresponds to potentially again 160,000 additional
23 maximum exposures for members of the public.
24 Q. How many for workers?
25 A. 11,428.
KATHLEEN S. THOMAS, U.S. District Court Reporter
410 West Michigan Avenue, Kalamazoo, Michigan 49007
(616)385-3050

10
1 Q. That's just --
2 A. That's just the differential between the two shipments,
3 just the added, going from 119 to 135 adds the potential
4 for another 11,000 worker overexposures or 160,000 public
5 overexposures. This, I believe, is why authorities take
6 such great care to emphasize the packaging in transport.
7 They realize that the potential is great for damage.
8 Q. Do your computations reflect an assumption respecting
9 whether or not the dispersion occurs as a result of an
10 accident or an attack?
11 A. No, we are talking about theoretical potential which is
12 the same regardless of how much or whether the material is
13 dispersed. In an accident, for example, we have
14 previously seen accidents that were analyzed for ground
15 transportation. I have not seen any computations or
16 analysis of accidents for air transport either from the
17 American side or from the Canadian side.
18 Q. Are you talking with respect to Parallex?
19 A. I'm talking with respect to Parallex.
20 If you had, for example, a violent crash and
21 fire of an aircraft, including a helicopter, then the
22 dispersal would cause a plume downwind, could cause a
23 plume downwind, and how much of that plutonium would
24 escape would be subject to analysis which is not, to my
25 knowledge, been performed.
KATHLEEN S. THOMAS, U.S. District Court Reporter
410 West Michigan Avenue, Kalamazoo, Michigan 49007
(616)385-3050

11
1 Q. Dr. Edwards, do you consider the plutonium in MOX fuel
2 form to be a weapons component?
3 A. Well, in the case of the Parallex project, as you know,
4 this 119 grams or 135 grams, there is not enough there to
5 make an atomic bomb. However, it has long been known that
6 you can make a very damaging radiological explosive device
7 which would simply disperse the plutonium in breathable
8 form. That means that if the plutonium were acquired by a
9 criminal organization or terrorist group they could make
10 an incendiary device which would make this available to be
11 breathed by members of the public and also cause very
12 long-lasting contamination of the environs where this
13 exposure would take place. I believe that it would be
14 incorrect to say that these, even this small Parallex
15 shipment, would not be attractive to terrorists or to
16 criminal organizations as a top -- as a target for theft
17 or diversion. It is true, of course, that this is weapons
18 grade material and had one, if one had sufficient weapons
19 grade material, one indeed can make a very powerful atomic
20 bomb from that.
21 Q. Have you seen any literature or other information in or
22 out of the record of this case that discusses the weapons
23 potential for plutonium?
24 A. Well, yes, it's certainly common knowledge that the -- in
25 fact, the U.S. Department of Energy acknowledges as much
KATHLEEN S. THOMAS, U.S. District Court Reporter
410 West Michigan Avenue, Kalamazoo, Michigan 49007
(616)385-3050

12
1 when they refer to the Russian plutonium, the Russian
2 weapons grade plutonium is continuing a clear and present
3 danger. It's long been known and recognized that
4 plutonium is the key ingredient of atomic weapons, so if
5 one talks about components of atomic weapons, the
6 plutonium is the essential component. Once you have the
7 plutonium, then you can acquire the other materials on the
8 open market that are necessary to build a bomb.
9 Q. How do you know that?
10 A. Well, it's been well known for a long time. For instance,
11 there was a study done, published in the Harvard Civil
12 Rights and Civil Liberties Law Review -- I could make that
13 available to the Court, if you would like -- in 1975 as
14 long ago as then, which says, "Since all the material
15 other than plutonium needed to build a bomb is available
16 from commercial hardware and chemical suppliers, the
17 present obstacle to the private construction of nuclear
18 weapons is the unavailability of plutonium."
19 But if we just turn to the study that was
20 commissioned and already on file, I believe, here at the
21 Court, a study that was commissioned by the Office of
22 Fissile Materials Management called the Red Team Report,
23 the Red Team Proliferation Vulnerability Report.
24 In their conclusions on Page 6-1, they have a
25 heading called Keeping Plutonium Inaccessible is the Key
KATHLEEN S. THOMAS, U.S. District Court Reporter
410 West Michigan Avenue, Kalamazoo, Michigan 49007
(616)385-3050

13
1 to Proliferation Resistance. So what is basically being
2 said here is plutonium is not just a component but the key
3 component of atomic bombs particularly in the context of
4 illicit groups.
5 Q. Dr. Edwards, could you explain for us Canada's role in the
6 reprocessing of plutonium?
7 A. Well, Canada's role in plutonium goes back to the World
8 War II Atomic Bomb Project. We had a secret laboratory in
9 Montreal which was manned by British, French and Canadian
10 scientists dedicated to developing methods for producing
11 and separating plutonium for weapons purposes as well as
12 civilian purposes, because even then it was anticipated
13 plutonium would have some civilian value. At the end of
14 the war -- incidentally, the first reactor in Canada was
15 built according to a military decision taken in
16 Washington, D.C. in 1944, to demonstrate this potential.
17 The reactor called the NRX reactor was built at
18 Chalk River and a plutonium reprocessing plant was built
19 as well. Plutonium was separated and Britain received its
20 first sample of weapons grade plutonium from Canada from
21 Chalk River just months before their first atomic test.
22 There was also an illicit transfer of plutonium
23 from Chalk River to Russia, which was so the first samples
24 of plutonium that both Britain and Russia received were
25 from Chalk River.
KATHLEEN S. THOMAS, U.S. District Court Reporter
410 West Michigan Avenue, Kalamazoo, Michigan 49007
(616)385-3050

14
1 Since that time, Canada, of course, has taken a
2 policy decision not to pursue a nuclear weapons option
3 itself, but they have, however, looked favorably on the
4 idea of reprocessing plutonium for civilian purposes.
5 They do not have a policy which is against the
6 reprocessing of plutonium in principle and nor do they
7 discourage their clients, their customers overseas from
8 reprocessing plutonium. And in fact, in Canada, there is
9 an open door policy towards reprocessing as a future
10 option.
11 We just concluded recently a ten-year
12 environmental assessment of the problem of high-level
13 radioactive waste disposal, and in all of the documents it
14 begins by saying, in the very first paragraphs, that by
15 nuclear waste disposal, we mean either spent fuel or
16 post-reprocessing waste. So this is very much a
17 theoretical opening and a policy opening for Canada to use
18 plutonium as a fuel.
19 Q. Showing you what has been marked as Supplemental Motion
20 Exhibit 2, can you identify that for the Court, please?
21 A. Yes. This appears to be an exchange from the British
22 Parliament, questions and answers having to do with
23 nuclear fuel, and the Secretary of State for Trade and
24 Industry is being asked about quantities of spent fuel
25 from Canada that have been contracted for reprocessing at
KATHLEEN S. THOMAS, U.S. District Court Reporter
410 West Michigan Avenue, Kalamazoo, Michigan 49007
(616)385-3050

15
1 Cello Field in England.
2 Q. And can you summarize your understanding of what the
3 response by the British Government was?
4 A. Yes. The response here is that a certain amount of
5 plutonium, a certain amount of spent fuel from Canada has
6 been reprocessed beginning in 1970, and that the plutonium
7 has been returned to Canada. I have personal knowledge of
8 the fact that at Chalk River they have maintained a pilot
9 plutonium fuel fabrication line since the 1970s, since
10 1970 and before, and that they have processed at Chalk
11 River approximately three tons, more than three tons of
12 MOX fuel from recycled civilian plutonium. This is part
13 of that, the plutonium that is here being referred to as
14 being recycled or reprocessed in Britain, that's part of
15 the total amount of plutonium that Canada has acquired for
16 the purposes of MOX fabrication.
17 I mentioned that Canada also does not discourage
18 client customers from reprocessing. This is in
19 distinction to the American policy. The American policy,
20 since the Carter administration, successive
21 administrations have maintained the policy of not only not
22 allowing reprocessing in the United States, but also
23 discouraging reprocessing in other countries insofar as
24 that is possible. Canada does not share this policy
25 completely. We do not reprocess in Canada but, on the
KATHLEEN S. THOMAS, U.S. District Court Reporter
410 West Michigan Avenue, Kalamazoo, Michigan 49007
(616)385-3050

16
1 other hand, we don't hesitate, it seems, to send our spent
2 fuel to other countries to get reprocessed so that we can
3 develop expertise in plutonium recycling.
4 Q. Does Canada have any relationship with the nation of Japan
5 respecting nuclear material?
6 A. Yes. Canada, as is probably known to the Court, is the
7 world's largest exporter of uranium. We are one of the
8 world's largest producers of uranium and the world's
9 largest exporter of uranium. We have bilateral agreements
10 with our customers as to the use of that uranium. Of
11 course, we have requirements that that uranium not be used
12 for military purposes. If a client customer such as Japan
13 who buys a good deal -- Japan purchases a good deal of
14 uranium from Canada. If a client customer wishes to
15 reprocess their spent fuel to recover plutonium, they do
16 have to get prior permission from the Government of
17 Canada, so when plutonium is reprocessed for the Japanese,
18 in the case where uranium from Canada is involved, the
19 Canadian Government gives their permission for that.
20 Q. Even if it is offshore from Canada?
21 A. Yes.
22 MR. LODGE: Thank you. I have nothing further.
23 THE WITNESS: Thank you.
24 Sorry.
25 MR. LODGE: Yes?
KATHLEEN S. THOMAS, U.S. District Court Reporter
410 West Michigan Avenue, Kalamazoo, Michigan 49007
(616)385-3050

17
1 THE WITNESS: Excuse me.
2 MR. DODGE: Not quite finished, Dr. Edwards.
3 THE WITNESS: You knew the time was short. I
4 was jumping the gun a little.
5 CROSS EXAMINATION
6 BY MR. DODGE:
7 Q. Good morning, Mr. Edwards. My name is Bob Dodge. We have
8 met once before back in December.
9 A. That's right.
10 Q. Just a few questions. You testified about the quantity of
11 plutonium that would be included in the Russian shipment.
12 A. Yes.
13 Q. Do you recall that?
14 A. Yes.
15 Q. You testified that it was 135 grams?
16 A. That's what was announced, yes.
17 Q. And how many ounces is that?
18 A. How many ounces is that?
19 Q. Yes.
20 A. I don't think in terms of ounces. I have to do the
21 conversion.
22 Q. Can you do the conversion?
23 A. I don't have the --
24 Q. If I told you that one ounce is 28 grams, does that sound
25 about right?
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1 A. I have no reason to doubt it. We are on the metric system
2 in Canada, we don't use ounces anymore.
3 Q. I understand. If I estimated 135 grams was approximately
4 five ounces, would you quarrel with that?
5 A. I would have no reason to quarrel with that.
6 Q. Now, you also testified about the amount of plutonium that
7 would have to be inhaled in order to exceed the maximum
8 permissible dose under Canadian regulations?
9 A. That is correct.
10 Q. And in your testimony, as I understood it, the assumption
11 you were making was that every single molecule of
12 plutonium that was in that sample would end up in
13 somebody's lungs; is that right?
14 A. That's right. It's calculating the theoretical
15 potential. It is not talking about a realistic scenario.
16 Q. Not only would all of the plutonium have to end up in
17 someone's lungs, but the plutonium would have to be evenly
18 divided so that each person got exactly the same amount of
19 plutonium, it's not all concentrated in one person, you
20 would have to take one-millionths of the sample, put it in
21 one person's lungs and put the next one-millionth in the
22 next person's lungs and so on?
23 A. That is correct.
24 Q. Do you have any idea, if you performed the same analysis
25 on this table, what sort of toxicity numbers you would
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1 get?
2 A. I have no idea of what that would be, no.
3 Q. Now you also talked about Canada's policies regarding
4 plutonium reprocessing.
5 A. Yes.
6 Q. Do you recall that?
7 A. Yes.
8 Q. Do you have any understanding of whether the plutonium in
9 the Parallex MOX samples will or will not be reprocessed
10 in Canada?
11 A. It will-- to the best of my knowledge, it will not be
12 reprocessed in Canada, although that option apparently is
13 not decided.
14 Q. What is the basis for that last?
15 A. Because Canada has a policy that at sometime in the future
16 they may reprocess.
17 Q. Do you have any understanding whether there is an
18 understanding between the Government of Canada and the
19 Government of United States or the Government of Russia as
20 to whether these particular samples will or will not be
21 reprocessed?
22 A. I do not, no.
23 MR. DODGE: Thank you very much.
24
25 REDIRECT EXAMINATION
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1 BY MR. LODGE:
2 Q. Dr. Edwards, the House of Commons question and answer, do
3 you know of any particular statistics on Canada's shipping
4 of spent fuel to British nuclear fields and fuels at Cello
5 Field?
6 A. I don't have those figures with me, I'm sorry. I could
7 supply them to the Court, if desired. I do have some
8 figures at my office at home, I don't have them here. But
9 we are talking -- if we are talking about three tons of
10 MOX being fabricated at Chalk River, then one could work
11 out approximately how much of that would contain
12 plutonium, how much plutonium would be contained assuming,
13 for example, three percent.
14 Q. Right.
15 A. And then one could reasonably suppose that the lion's
16 share of that would come from Cello Field. Now I have
17 figures on shipments from Cello Field, but I don't have
18 them here.
19 Q. My question is: Would you presume that the Atomic Energy
20 Control Board of Canada, or AECL of Canada, would make
21 public the fact that the spent MOX from Parallex were
22 being shipped to Britain for reprocessing? Would you
23 presume that would become public knowledge?
24 A. No, I would not assume anything related to plutonium would
25 become public knowledge in Canada. Canada has a very
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1 non-public attitude toward plutonium dealings. In fact,
2 the existing plutonium dealings in Canada including the
3 BNFL contracts is not public knowledge other than as it
4 has been raised in foreign countries such as in Britain or
5 by documents that have been leaked to nongovernmental
6 organizations. This is not something which Atomic Energy
7 of Canada Limited makes public.
8 MR. LODGE: Thank you.
9 MR. DODGE: No recross, Your Honor.
10 THE COURT: You may step down, Dr. Edwards.
11 Thank you.
12 MR. LOVE: Your Honor, if it please the Court,
13 the Plaintiffs would call Francis Boyle to the stand
14 FRANCIS BOYLE - PLAINTIFFS' WITNESS - SWORN
15 COURT CLERK: Please be seated and state and
16 spell your name for the record.
17 THE WITNESS: My name is Francis Boyle.
18 F-r-a-n-c-i-s B-o-y-l-e.
19 DIRECT EXAMINATION
20 BY MR. LOVE:
21 Q. Dr. Boyle, are you currently employed?
22 A. Yes, I am a professor of international law at the
23 University of Illinois College of Law in Champaign.
24 Q. How long have you been employed in that capacity?
25 A. 1978.
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1 MR. LOVE: Your Honor, may I approach the
2 witness?
3 BY MR. LOVE:
4 Q. Dr. Boyle, I'm showing you what has been marked as
5 Supplemental Preliminary Injunction Hearing Plaintiffs'
6 Exhibit 3 and ask you if you can identify that document.
7 A. It's a copy of my professional resume.
8 Q. Was this resume prepared at or under your direction?
9 A. Yes. I think it's current as of January 28th, 1999. I've
10 been kind of busy in the last year, haven't revised it.
11 Q. To the extent it's current through that date, does that
12 accurately reflect your experience, education, seminars
13 that you participated in, and articles that you've
14 authored?
15 A. Not seminars I've participated in, that would be too many
16 but, you know, the essence of my professional career and
17 articles-- significant teaching, consulting, practice.
18 I'm also a licensed attorney as well.
19 Q. If you would, give us a brief recitation of your
20 educational background?
21 A. I attended the University of Chicago where I studied
22 international relations with Professor Hans Morganthal who
23 is the mentor of Dr. Henry Kissinger at Harvard. I was
24 one of seven students in my class elected to Phi Beta
25 Kappa as a junior.
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1 I also did work in mathematical biology, winning
2 the award for the work I did in that area by the world's
3 leading geneticist now at Harvard.
4 I graduated in three years. From there I went
5 to Harvard Law School. I have a J.D. Magna Cum Laude from
6 Harvard Law School specializing in international law.
7 I also entered the Graduate School of Arts and
8 Sciences at Harvard in the Department of Government. I
9 have a Master's degree and a Ph.D. in political science
10 specializing in international relations, international
11 politics. This is the same Ph.D. program that produced
12 Henry Kissinger, Zabanya Brezenski (phonetic) and other
13 high level U.S. Government officials.
14 I was at the Harvard Center for International
15 Affairs for two years. Kissinger and Brezenski had been
16 there before me.
17 I spent two years teaching in the Harvard
18 College undergraduates international law organizations,
19 human rights. I practiced law with a Boston law firm for
20 a year at Bingham, Dana and Gould, where I did
21 international tax, and tax, and then finally in 1978 I
22 came to the University of Illinois. I went up for tenure
23 at the beginning of my third year, which I got, and I've
24 been tenured there since, you know, many years.
25 Q. Since undertaking your position at University of Illinois,
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1 have you specialized in any area with respect to
2 particular research, writing and international law?
3 A. Well, for the purpose of our proceedings today, yes. I
4 have been specializing an enormous amount on the nuclear
5 weapons, nuclear weapons policy, proliferation, arms
6 control. Going back to my studies with Professor
7 Morganthal 30 years ago so I've been involved in these
8 issues starting as a student since 1969 and continuously
9 until today.
10 THE WITNESS: Sorry, Your Honor, I have a bit of
11 laryngitis.
12 THE COURT: That's fine, no problem.
13 BY MR. LOVE:
14 Q. Dr. Boyle, if you would direct your attention to your
15 resume, I would like to touch on a few seminal points. On
16 the first page under teaching, the third entry down talks
17 about being a lecturer in Nuclear Weapons and
18 International Law, 21st Senior Conference on Nuclear
19 Deterrence at U.S. Military Academy at West Point in
20 1983.
21 A. Yes. This is a high level seminar run by the Pentagon,
22 not for the cadets, but for about 200 of the highest level
23 officials of the United States Government dealing with
24 nuclear weapons proliferation, nuclear weapons policies,
25 and I was asked to lecture to this conference, and I won't
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1 go through all the high level officials there, but sitting
2 right in front of me for my lecture was the three star
3 general in charge of war operations at the Pentagon, at
4 that time General Mahaffey. And I also note I had read
5 the independent expert's report on the MOX program
6 U.S./Russia of 1977, one of the U.S. independent experts,
7 Richard Garwin was there with me and he was also a
8 lecturer with me to this group, so I do know that Garwin
9 was involved in the Parallex MOX recommendations.
10 Q. With respect to the second to the last entry on Page 1 of
11 Exhibit 3, talks about "Lecture Tour of the Soviet Union
12 on Nuclear Weapons and International Law for Lawyers'
13 Committee on Nuclear Policy and Association of Soviet
14 Lawyers" in 1986. What was involved with that?
15 A. Yes. The former Soviet Union, their equivalent to the
16 American Bar Association was the Association of Soviet
17 Lawyers, and in conjunction with the Lawyers' Committee on
18 Nuclear Policy headquartered here, they decided to invite
19 one professor to go over to the Soviet Union and lecture
20 around the country for two weeks on various issues related
21 to nuclear weapons and international law, and both
22 organizations selected me for this purpose, so I went over
23 for two weeks and gave several lectures per day, Moscow,
24 Leningrad, Kiev to professors, lawyers, peace people,
25 whoever, news media on various aspects of nuclear weapons
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1 targeting doctrine as they relate to international law
2 and, in general, nuclear policies.
3 Q. If you would direct your attention, Dr. Boyle, to Page 2
4 under Practice, fifth entry down it says "Author,
5 Biological Weapons Anti-Terrorism Act of 1989, Public Law
6 Number 101-298 (1990) (adopted unanimously by both Houses
7 of Congress)," could you explain what that means, please?
8 A. Yes. Your Honor, we are dealing here with a treaty, the
9 Nuclear Proliferation Treaty-- Nonproliferation Treaty of
10 1968. That treaty has been implemented by Congress in the
11 Nuclear Nonproliferation Act of 1978, the Nuclear
12 Proliferation Prevention Act of 1994 and also recent
13 amendments in 1998 to deal with the India/Pakistan
14 explosions. I have direct personal experience on how you
15 take a treaty, an international treaty, and implement it
16 as a matter of United States Constitutional law by working
17 with Congress.
18 The Biological Weapons Convention of 1972 is a
19 treaty that is a total, not only arms control reduction
20 and elimination treaty for biological weapons, I gave a
21 lecture on Capitol Hill calling for legislation, domestic
22 legislation to implement this treaty, and this
23 recommendation was taken up by a group I work for called
24 the Council of Responsible Genetics. I'm on their
25 Advisory Board. I also serve as counsel to them, so
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1 pursuant to their request, I drafted the implementing
2 legislation, I authored it, how to implement this treaty.
3 And then we took it to members of the House and the Senate
4 and we shepherded it through the entire process dealing
5 with members of Congress, both Houses, including testimony
6 I prepared. At that point in time, the Reagan
7 administration was opposed to this implementing
8 legislation. I had to deal personally with their position
9 papers against it refuting these things.
10 Finally there was a change of policy when
11 President Bush came into office, to his credit, and they
12 supported the legislation. It finally was approved
13 unanimously by both Houses of Congress and signed into law
14 by President Bush in 1989. This legislation was called
15 the Biological Weapons Anti-Terrorism Act of 1989. It was
16 later amended in the anti-terrorism and effect Death
17 Penalty Act of 1996.
18 I thought I had drafted the most draconian piece
19 of legislation you could possibly imagine on biological
20 weapons, but there is always a loophole, Your Honor, so
21 Congress revisited this in 1996 to close some of the
22 loopholes that had not been apparent to me and the
23 scientists I worked with back in 19, starting in from '85
24 to about 1989. So I just cite this as having direct
25 personal experience with relationship between arms control
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1 treatise, reduction treatise and then how they are
2 implemented by Congress. I have done this myself. On
3 biological weapons and I'm still involved in that issue.
4 Obviously, I have not been involved in the
5 drafting of the implementing legislation for the Nuclear
6 Proliferation Treaty of 1968, there are three pieces, but
7 I have read and reviewed the implementing legislation. I
8 have an understanding how they relate to the
9 Nonproliferation Treaty and I also teach a course on this
10 subject, that is how international laws related to the
11 United States Constitution is implemented by Congress and
12 also carried out in the courts. I teach an entire course
13 just devoted to this subject.
14 Q. Dr. Boyle, you've had some experience practicing before
15 what was known formerly as the International Court of
16 Justice but currently the World Court; is that correct?
17 A. Yes, I have.
18 Q. Could you relate to the Court a summary of that
19 experience?
20 A. Well, I've advised governments with respect to either
21 actual or potential World Court litigation, some of that
22 is still attorney/client confidence that I'm not prepared
23 to discuss. What I am prepared to discuss are those
24 matters that are in the public record.
25 I did serve as counsel to Libya on the Lockerbie
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1 bombing case. It was my recommendation the--
2 unfortunately President Bush had about the sixth fleet
3 mobilized off the coast of Libya and was about to bomb
4 Libya that we filed a lawsuit at the World Court to stop
5 the bombing. We filed a lawsuit, Libya was not bombed.
6 Later on, I was General Agent for the Republic
7 in Bosnia of Herzegovina before the International Court of
8 Justice. In other words, I was their first ambassador to
9 the World Court for the Republic of Bosnia, Herzegovina,
10 and I sued Yugoslavia for committing genocide against the
11 Bosnian people. I won two cease and desist orders
12 overwhelmingly in favor of Bosnia against Yugoslavia.
13 Later on, I publicly advised -- I advised the
14 Bosnian Government to sue Britain for aiding and abetting
15 genocide against Bosnia, and President Izetbegovic
16 instructed me to sue Britain for a genocide against
17 Bosnia. That lawsuit was terminated under duress,
18 threatened them, so they withdrew from those proceedings.
19 Q. Dr. Boyle, with respect to your writings, if you would
20 direct your attention to Page 3 of Exhibit 3, the last two
21 entries at the bottom -- excuse me, the second to last
22 entries entitled Nuclear Weapons and International Law:
23 The Arms Control Dimensions, do you see that?
24 A. Yes. This was the lecture I gave to the West Point
25 Military Academy senior conference proceedings, which they
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1 did publish in their proceedings at West Point, and
2 actually under my books, I've just completed work on my
3 sixth book, which is entitled Nuclear Deterrence and
4 International Law. And right now it is sitting at Pluto
5 Press -- I guess that's appropriate for today's
6 proceedings -- Pluto Press in Britain. They have
7 expressed an interest in publishing it. They are
8 currently evaluating it. I do not have a contract on that
9 book, but I did get the e-mail just before I came here, so
10 I'll have to deal with that when I go back.
11 Q. With respect to your other publications, Dr. Boyle, I note
12 that on Page 4 you've got one entitled, about halfway
13 down, The Relevance of International Law to the "Paradox"
14 of Nuclear Deterrence.
15 A. That is correct.
16 Q. Can you tell us briefly what the subject matter is?
17 A. After I made the lecture at West Point, obviously the U.S.
18 military officials and others, we had a fairly vigorous
19 debate, let me put it that way. And that vigorous debate
20 between myself and these others led to this article that
21 was later published here in the United States and also
22 translated into Dutch, because the Dutch lawyers wanted it
23 to be available as part of the debate in Holland over the
24 deployment of the U.S. intermediate nuclear forces under
25 the Reagan administration, so they translated the whole
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1 thing into Dutch and it was published in the Netherlands.
2 MR. LOVE: Your Honor, I have no further
3 questions of Dr. Boyle with respect to qualifications, and
4 I tender him for voir dire to the U.S. Attorney's Office
5 subject to my motion to admit Plaintiff's Exhibit 3 into
6 evidence.
7 MR. DODGE: I have no objection to the admission
8 of the C.V.
9 THE COURT: Exhibit 3?
10 MR. DODGE: Exhibit 3.
11 THE COURT: You have no voir dire questions to
12 ask either?
13 MR. DODGE: Not with respect to that exhibit. I
14 may get into the resume on the cross.
15 THE COURT: That's fair enough.
16 Exhibit 3 is received.
17 MR. DODGE: Thank you, your Honor.
18 BY MR. LOVE:
19 Q. Dr. Boyle, in preparing for your testimony here today,
20 could you please outline for the Court -- I think you have
21 done so somewhat already -- some of the documents that you
22 reviewed and the source materials you looked at in
23 preparing your testimony today?
24 A. I have a pretty detailed knowledge about these things
25 generally. For example, when the Nuclear Nonproliferation
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1 Act first came out in 1978, I did read it, but in
2 preparation for this testimony today, I've gone back and
3 read the Nuclear Nonproliferation Treaty, the Nuclear
4 Nonproliferation Act, the Nuclear Proliferation Prevention
5 Act of 1994, the 1998 amendments. I have read a large
6 quantity of documents produced by the Department of Energy
7 on the Parallex Project. I have read the Environmental
8 Assessment dealing with the aspects of international
9 environmental law that have not been dealt with in the
10 Environmental Assessment, in my opinion, should have been
11 dealt with the Stockholm Declaration, which is not there,
12 and the World Court Advisory Opinion on 1996, I have an
13 article on it that. I didn't go back and read the whole
14 advisory opinion, but I reread the portions of the
15 article, and other scholarly sources that deal with this
16 question. There are other sources I did not have a chance
17 to review not directly related to proliferation per se.
18 But for example, in my opinion the EA should
19 have dealt with the UN Convention on the Law of the Seas.
20 It's not in there. There's been nuclear accidents
21 convention, it's not dealt with in there. There is the
22 Bowel convention on the International Transportation of
23 Hazardous Substance and Toxic Materials, that's not in
24 there. I identified those as further sources that should
25 be analyzed in my opinion, but I haven't had a chance to
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1 go back and review all of those sources.
2 Q. Dr. Boyle, did the types of materials that you've just
3 identified for the Court, are these the types of materials
4 that in your experience are relied upon by experts in the
5 field of international law in forming opinions as to the
6 legitimacy of governmental actions under internationally?
7 A. Yes. I also have experience reading environmental impact
8 statements. When the Pentagon produced the DEIS or the
9 biological defense research program, the Council for
10 Responsible Genetics asked me to evaluate this entire
11 thing -- it was an enormous document -- and submit formal
12 comments on it to the Pentagon, which I did do and they
13 did respond to. So this is the type of sources that
14 experts in my field would normally look at and review in
15 forming an opinion about Government behavior, and I have
16 done this before with respect to biological weapons.
17 Q. Dr. Boyle, I'm going to show you what has been marked for
18 identification as Plaintiff's Exhibit 4. Ask you to take
19 a moment to look at that and let me know when you've had a
20 chance to do so, please.
21 A. Yes. This is the treaty on the nonproliferation of
22 nuclear weapons, and as I've said, it has also been
23 implemented by Congress on the Nuclear Nonproliferation
24 Act of 1978, the Nuclear Proliferation Prevention Act of
25 1994 and also 1998 amendments.
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1 The critical point to keep in mind about this
2 treaty, Your Honor, is that Congress has passed
3 legislation expressing its understanding of what this
4 treaty means and what our obligations are under this
5 treaty. And this legislation is binding on the Department
6 of Energy, on the President, on the Department of State
7 and respectfully, Your Honor, on this Court. And what we
8 see, when you read through it all, is Congress has
9 decided, and prior to that the Atomic Energy Act as well,
10 that nuclear power, nuclear weapons, nuclear proliferation
11 is so important to the American people and our republic,
12 that they have decided to engage in micro management of
13 everything related to this subject and have pretty much, I
14 would not say completely eliminated, but whittled down
15 substantially any discretion that the executive branch
16 might have in this area. I have, as I said, I did read
17 the NPA back in 1978, but when you add in everything else,
18 what surprised me was how little discretion was left to
19 the executive branch with respect to nuclear
20 proliferation, nuclear weapons. In this area, they have
21 very little discretion.
22 Q. Professor Boyle, if you could, can you explain to the
23 Court what the implications are for Canada, Russia and the
24 United States under the Nonproliferation Treaty?
25 A. Well, my reading of both the treaty and in light of the
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1 Department of Energy documents describing Parallex and
2 MOX, the Red Team report, many other documents that I've
3 read, in my opinion, there are serious problems,
4 compliance problems for this entire project under Articles
5 I, II and III of the Nuclear Nonproliferation Treaty as
6 interpreted by the United States Congress.
7 The Article I deals with the obligations of the
8 United States and Russia. Each nuclear weapons State
9 Party to the Treaty, i.e. U.S. and Russia, undertakes not
10 to transfer to any recipient whatsoever, i.e. Canada,
11 nuclear weapons or other nuclear explosive devices, and we
12 have a problem here in that Congress has interpreted this
13 to mean components of nuclear weapons or nuclear explosive
14 devices; that is, Congress simply does not interpret this
15 to mean you can't hand over a bomb, but a component for a
16 bomb is prohibited. And here we are dealing with weapons
17 grade plutonium, which Dr. Edwards has already testified
18 can be and indeed is, in his opinion, a component for
19 either a nuclear weapon or a nuclear explosive device.
20 Okay?
21 So when you read the treaty in light of the
22 statutory scheme, in my opinion, there are serious
23 compliance problems here with Article I, which have not
24 been addressed in the EA. The DOE has not dealt with any
25 of these problems at all in the EA, indeed, they have
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1 basically said in one of their comments "Well, once we
2 give it to Canada, it's their problem," and that just is
3 an incorrect statement, in my opinion.
4 And it says "directly or indirectly," which
5 means also we, the United States, directly or indirectly
6 by encouraging and paying for the Russians to do this, you
7 see. So we are accountable for the Russian behavior
8 because we are working with them. And indeed, if we were
9 sued at the International Court of Justice -- let's
10 suppose something went wrong, Your Honor, and there was,
11 as Dr. Edwards testified, an aerial explosion in the
12 latest helicopter shipment and radiological dispersal of
13 plutonium that came across the border, killing Americans,
14 killing Canadians, others, if we were sued in World Court
15 over this, we would be found both jointly and severally
16 liable with Russia, with Canada, for any accident.
17 Likewise, this is followed up by both shipments on the
18 high seas of the plutonium. If there is an accident on
19 high seas, we could be sued at the World Court, the United
20 States, both ourselves and jointly and severally with
21 Russia and Canada over any accident here that might
22 happen. And that substantive liability could be based on
23 the U.N. Law of the Sea Convention. As I said, Your
24 Honor, I haven't had time to go through the environmental
25 provision of the Law of the Sea Convention, the Department
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1 of Energy didn't even bother, and in the EA they did not
2 look at this at all. They did not consider this, but it
3 certainly is something that has to be considered, that
4 they haven't looked at.
5 And then "not in any way to assist, encourage or
6 induce any non-nuclear weapon State to manufacture or
7 otherwise acquire nuclear weapons or other nuclear
8 explosive devices." Well, the problem here is Canada is
9 supposed to be a non-nuclear weapons state and says
10 "otherwise acquired nuclear explosive devices." Well, we
11 are giving them weapons grade plutonium, which again
12 Dr. Edwards has testified, and he is Canadian, is a
13 component of a nuclear weapons or nuclear explosive
14 device. And again, "or control over such weapons or
15 explosive devices." We are giving them weapons grade
16 plutonium. And if you look at how Congress has
17 interpreted this, they interpret it down to components,
18 they even talk about substances that they are trying to
19 regulate everything, and understand the 1978 legislation
20 was a very strict interpretation of what this treaty means
21 as far as the United States Government is concerned. And
22 I think we really need a comprehensive assessment here by
23 the Department of Energy as to whether or not any of these
24 transfers is consistent with Article I. Under the current
25 circumstances, they haven't bothered to look at any of the
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1 terms as defined by Congress, the applicability of the
2 Congressional legislation to the transfers.
3 Likewise, Article II, Your Honor, Article II
4 deals with the Canadian obligations, "Each
5 non-nuclear-weapon State Party to the Treaty undertakes
6 not to receive the transfer from any transferor whatsoever
7 of nuclear weapons or other nuclear explosive devices."
8 Again, the same analysis here needs to be done. This
9 weapons grade plutonium, in my opinion and Dr. Edwards'
10 opinion, is clearly a component of either a nuclear weapon
11 or nuclear explosive device. And Canada, according to
12 this language, has agreed not to receive this material.
13 And by the way, as Dr. Edwards correctly pointed out, Your
14 Honor, this was consistent United States policy, stopping
15 proliferation of this type of material for any reason
16 going back to the Carter administration. We are seeing a
17 major dramatic change here in United States
18 nonproliferation policy, and that policy, Your Honor,
19 going back to the Carter administration, is enshrined in
20 law by Congress in the Nuclear Nonproliferation Act of
21 1978. So again, in my opinion, I believe these issues
22 likewise need to be addressed by the Department of
23 Energy. They have not been addressed in the environmental
24 assessment at all.
25 "Or control over such weapons or explosive
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1 devices, directly or indirectly." Well, again, we are
2 giving Canada, either ourselves in the first shipment or
3 indirectly by means of the Russians in the second
4 shipment, control over a component for a nuclear weapon or
5 a nuclear explosive device. That's very clear they are
6 getting it. And according to the EA, we are trusting
7 their good intentions. There is no assurance in the EA
8 that this weapons grade plutonium is subject to
9 international safeguards. No. Despite the fact that
10 Congress has made it very clear that any transfer, and
11 Congress also made it clear in the legislation that they
12 are against any transfers of this type of stuff to other
13 States. But if there are any transfers at a minimum there
14 have to be absolute guaranteed protections on
15 international assurances to make sure it is not misused,
16 and you will note in the EA it says nothing about it.
17 There are no assurances about anything.
18 Now, "to manufacture or otherwise acquire
19 nuclear weapons or other nuclear explosive devices; and
20 not to seek or receive any assistance in the manufacture,"
21 etcetera, etcetera.
22 Article III then deals with the safeguard
23 requirements; that is, if there are transfers of materials
24 for peaceful purposes, and you know you can obviously,
25 Your Honor, you can read this yourself. There must be
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1 safeguards. Under the supervision of the International
2 Atomic Energy Agency, the Environmental Assessment says
3 nothing at all about these safeguards. Nothing. It isn't
4 in there.
5 Apparently we have to rely on not even
6 statements by Canada that what we are transferring there,
7 what we are encouraging the Russians to transfer are
8 somehow going to be safeguarded despite the fact that
9 Article III says that there must be safeguards, and we
10 simply don't have them.
11 Q. Dr. Boyle, I'm going to show you what's been marked for
12 identification as Plaintiff's Exhibit 5 and ask you to
13 take a look in the upper right-hand corner, and after
14 you've had a moment to review that, let me know, please.
15 A. Yes. This is an article I had read in preparation for my
16 testimony here today, from the Toronto News.
17 Q. Based on your experience and expertise, Dr. Boyle, is this
18 the type of information that an international law scholar
19 could rely on in formulating opinions about the state or
20 nationally?
21 A. Well, here is stating comments by Mr. Tom Clemens, head of
22 the Washington-based Nuclear Control Institute. It's a
23 recognized organization dealing with nuclear policies, and
24 certainly experts in my field would rely upon statements
25 produced by the Nuclear Control Institute and, indeed,
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1 prior to my testimony today, I did read several documents
2 produced by the Nuclear Control Institute just in the
3 normal course of preparing, yes. An expert in my field
4 would rely on this.
5 Q. Dr. Boyle, my recollection is you testified this appeared
6 in the Toronto --
7 A. News.
8 Q. -- News and it --
9 A. The Globe and Mail, which is, you know, it's sort of like
10 the New York Times here in the United States, a newspaper
11 of public record, so again, it's not like a tabloid or
12 something like this.
13 Q. Plaintiff's Exhibit 5, Dr. Boyle in the right-hand column
14 attributes some comments to a Sunni Locatelli purportedly
15 a spokeswoman at the Atomic Control Board. Do you see
16 that?
17 A. Yes.
18 Q. What if anything is the significance, based on your
19 experience as expertise, of considering published reports
20 attributed to spokespersons for governmental entities in
21 formulating use of international law?
22 A. Yes. There is a decision by the International Court of
23 Justice in the nuclear test cases dealing with nuclear
24 explosions 1974, stating that the Court can rely upon
25 official statements made by Government officials acting
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1 within their scope of authority and certainly Locatelli
2 here is the spokeswoman of the Atomic Energy Control
3 Board. So basically, I would be able to take this
4 statement and file it at the World Court and they would
5 find the statement could be, would be attributable to the
6 Canadian government, and Canada would be bound by this
7 statement.
8 Q. What does that article, Plaintiff's Exhibit 5, attribute
9 to Miss Locatelli?
10 A. She can't reveal how much fissile material Canada has. We
11 aren't able to give out that information under our
12 security regulations. Ms. Locatelli said Canada believes
13 it should come under the IA/EA guidelines because it
14 doesn't operate its own reprocessing facilities. I think
15 Dr. Edwards just pointed out that isn't correct. But even
16 if it were correct, it does come under IA/EA, and we need
17 to know, the United States Government under the NPT, under
18 the Congressional implementing legislation, we have to
19 know how much fissile material Canada has.
20 And basically, we are just taking their,
21 whatever their word is for it, and in my opinion, that's
22 unacceptable. We have to know how much material they have
23 and what they are doing with it, and what she's saying
24 here is "Well, we are just not going to tell you." And
25 you will note in the EA, the Department of Energy has
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1 taken the same position. One of the comments made was
2 "Well, what is Canada doing," and the response of the DOE
3 is well, that is Canada's problem, once it leaves here we
4 are no longer responsible. The treaty and statutory
5 regime make it clear that's not the case. We are
6 responsible for our plutonium, wherever it goes. And
7 Congress has made it clear even if we do give it up, we
8 have to have absolute international safeguards as to what
9 is going to happen with our plutonium. And the same would
10 apply if we are encouraging Russia to ship weapons grade
11 plutonium to Canada. We have an obligation to make sure
12 that it's safeguarded and that it can be accountable and
13 accounted for. And what Ms. Locatelli here is saying
14 "Well, sorry, we are just not going to tell you." Again,
15 this raises serious problems in my mind that have not been
16 dealt with by the Department of Energy as to compliance
17 with the IA/EA safeguards regime, which is absolutely
18 required under Article III of the NPT and also required
19 under the Nuclear Nonproliferation Act. Indeed, if I
20 remember correctly, the 1994 implementation, Your Honor,
21 Congress said that transferring of unsafeguarded plutonium
22 is an act of international terrorism as far as Congress is
23 concerned.
24 So and that would trigger a whole host of other
25 provisions of the federal code dealing with international
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1 terrorism, so we really need to know what is going to
2 happen to our plutonium when it gets up into Canada, and
3 to make sure there are safeguards and it is accountable
4 and there is an explanation here.
5 Now Mr. Clemens then said that, in his opinion,
6 Canada has 40 kilograms of plutonium, it's really not
7 accounted for or accountable for by anyone, and that
8 basically makes Canada a de facto nuclear weapons state.
9 I would agree, assuming that they do have the 40 kilograms
10 of plutonium, and I take it you know Mr. Clemens -- I had
11 e-mail correspondence with Mr. Clemens about this matter.
12 He feels that they do have it and that his group, the
13 Nuclear Control Institute, will be making this evidence
14 available soon. He told me it is not yet -- he is not yet
15 prepared to make it public, but they will be going public
16 with it soon.
17 In my opinion, if that is the case, they have 40
18 kilograms of plutonium, that's enough to make five bombs,
19 and that makes Canada a de facto nuclear weapons state
20 under the NPT and, in my opinion, would be inconsistent
21 with the NPT. There is a potential here for Canada being
22 in violation of the NET. We need to know that. Congress
23 has sanctions in there in the implementing legislation for
24 non-nuclear weapons states being, moving into a position
25 where they are de facto nuclear weapons states in
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1 violation of the NPT.
2 It's clear Congress interprets our obligations
3 under the treaty to mean that a non-nuclear weapons state
4 simply cannot go off, assemble all the components for a
5 bomb, have one here, one there and one there, and then
6 say, oh but we are not a nuclear weapons state because we
7 haven't assembled the bomb.
8 Again, Congress made it very clear, no. Indeed,
9 in one of the pieces of legislation, Congress indicated
10 that it was also concerned with a facto nuclear weapons
11 states that an end run around the NPT, and the
12 Congressional regime applicable to it. Again, I regret to
13 report I haven't seen any of these issues dealt with by
14 the Department of Energy in the Environmental Assessments
15 and, indeed, when they were asked about it, they just said
16 this is now Canada's problem. Wondered-- United States
17 law of the NPT, it is not Canada's problem alone, it is
18 our problem because it's our plutonium and it's Russian
19 plutonium that we are paying to send up to Canada.
20 Q. Professor Boyle, based on the representations of Miss
21 Locatelli on behalf of Atomic Energy Control Board of
22 Canada that they don't believe they are subject to the
23 IA/EA guidelines, what if any impact would that have on
24 the United States' responsibility under the Nuclear
25 Nonproliferation Treaty of 1978?
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1 A. It's very clear, Your Honor, the NPT and the Congressional
2 implementing legislation that we ourselves cannot ship
3 weapons grade plutonium there or engage in the Russians to
4 ship weapons grade plutonium unless there are absolutely
5 safeguards by the IA/EA that, to make sure that there is
6 no diversion. And again, Miss Locatelli is indicating
7 there is a high amount of uncertainty as to what is
8 happening with the Canadian plutonium. We simply don't
9 know. In the EA, there are no guarantees given by the
10 Department of Energy as to what is happening to plutonium
11 up in Canada.
12 Q. You may have testified to this, Dr. Boyle, and I apologize
13 if I missed it, but are Russia, Canada and the United
14 States all signatory partis to the Nonproliferation
15 Treaty?
16 A. Yes. We are all parties. There are about 182 or 183
17 states that are parties. The United States and Russia are
18 nuclear weapon states, parties to the convention, that is,
19 we are permitted to have nuclear weapons and nuclear
20 components, etc. Canada is designated a non-nuclear
21 weapons state. And they are supposed to preserve this
22 stative or statement. Yet according to the Nuclear
23 Control Institute, they have enough plutonium up there to
24 at least manufacture five bombs. So somehow this has to
25 be explained and accounted for in order for them to
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1 continue their non-nuclear weapons state status under the
2 NPT, so again, the Nuclear Control Institute is raising
3 very serious compliance problems and potentially serious
4 violation of the NPT by Canada, and there are severe
5 sanctions in the United States laws enacted by Congress
6 under the Simplemen legislation, Your Honor, in the event
7 a state that is a non-nuclear weapons state moves to
8 become a nuclear weapons state. And again, none of this
9 has been addressed by the Department of Energy in the
10 environmental assessment that I'm aware of, either in the
11 environmental assessment or elsewhere.
12 Q. Dr. Boyle, could you advise the Court, if you would, as to
13 what the ramifications legally are of being a signatory
14 party to an international treaty such as the
15 Nonproliferation Treaty?
16 A. Yes. Your Honor, of course, the basic rule of Pacta Sunt,
17 P-a-c-t-a-s-u-n-t, Servanda, S-e-r-v-a-n-d-a.
18 The other point -- there are two other points,
19 however, that must be kept in mind in interpreting any
20 treaty and especially the NPT. First, the treaty must be
21 interpreted in good faith. And again, the question here
22 with Canada maintaining 40 kilograms of plutonium is
23 whether or not this is a good faith interpretation
24 implementation of the NPT by Canada.
25 Second, the treaty must be interpreted in
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1 accordance with its object and purpose, and that in this
2 case the NPT is to stop nuclear proliferation. And again,
3 this entire program, the Parallex program, in my opinion,
4 seems to defeat the object and purpose of the NPT, which
5 is to stop nuclear proliferation.
6 The third point to keep in mind is that this
7 treaty has already been interpreted by Congress and
8 implemented by Congress. And Congress is agreeing with
9 what I'm saying here, Your Honor, and I'm agreeing with
10 what Congress is saying. Congress has made it very clear
11 that they do not want to see any type of nuclear
12 proliferation or programs that encourage nuclear
13 proliferation. And we are now seeing a drastic departure
14 from the policy enacted in Congress pursuant to the NPC
15 back in -- the NPT back in 1978 in the Nuclear
16 Nonproliferation Act, and we have seen no change in the
17 legislation by Congress to authorize or approve this
18 drastic change. And again, I agree with what Dr. Edwards
19 said from his Canadian perspective, my American
20 perspective, the Parallex MOX project is a drastic change
21 in encouraging proliferation of nuclear weapons components
22 and there has been no direct approval, change of statutes
23 or whatever. So again, this, in my opinion, raises very
24 serious problems under the Nuclear Nonproliferation Treaty
25 as interpreted in good faith and in accordance with its
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1 object and purpose not only for Canada, but the United
2 States and Russia. And in my opinion, we should have a
3 full study of all these issues by the Department of Energy
4 before there is any further movement on this project.
5 The implications here are enormous. They could
6 be catastrophic, and I personally would like to see a full
7 scale investigation analysis so that I could evaluate it
8 myself before anyone goes ahead with this project, but of
9 course that, you know, that's my personal opinion. I know
10 that's for you, Your Honor, to decide.
11 Q. Dr. Boyle, what if anything is the requirement or
12 obligation of the United States to interpret the
13 Nonproliferation Treaty in good faith? I think you
14 testified that Canada has that obligation. Does the
15 United States have a similar obligation?
16 A. Yes. And as a matter of fact, here Congress has
17 interpreted our obligation under the NPT and, in my
18 opinion, Congress has interpreted our obligations under
19 the NPT in good faith and also in accordance with the
20 object and purpose of this treaty. Congress interpreted
21 this by means of the Nuclear Nonproliferation Act of 1978,
22 the Nuclear Proliferation Prevention Act of 1994 and the
23 1998 amendments to do with the India-Pakistani
24 explosions. So in my opinion, Congress did interpret this
25 treaty in good faith and in accordance with its object and
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1 purpose and it appears to me the Department of Energy is
2 off there on their own with no express authorization from
3 Congress pursuing a policy here that defeats the object
4 and purpose of the NPT.
5 Q. By that, you are referring to the Parallex project?
6 A. Yes.
7 Q. With respect to the Congressional implementation of the
8 NPT in the '78, '94 and '98 acts, what if anything is the
9 role of the Department of State and/or Department of
10 Energy with respect to interpreting those obligations?
11 A. Yes. Your Honor, it's very clear from the treaty related
12 to the statutory scheme. Treaties deal with international
13 law and foreign relations. Therefore, they are normally
14 negotiated and concluded by the Department of State and
15 then they are handed over to the Senate Foreign Relations
16 to the Senate for advice and consent. It is the State
17 Department that traditionally has always had the sole and
18 exclusive role here in the United States with respect to
19 nonproliferation policy, not the Department of Energy.
20 The Department of Energy has always been treated as a
21 technical agency, technical consultant. The policy is
22 formulated by the State Department. There had been, again
23 going back to the Carter administration, United States
24 Arms Control and Disarmament Agency, Your Honor, set up by
25 Congress to deal precisely with these issues. They were
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1 the ones given the authority to deal with proliferation
2 and nonproliferation policies negotiate these agreements,
3 etcetera. Senator Helms in the latest did not like act,
4 he concluded it was super numerator morgue or something so
5 he passed legislation terminating the Arms Control
6 Disarmament Agency and transferring all functions to the
7 Department of State today. But if you read the
8 Congressional implementing legislation, they make it very
9 clear that the lead role played on proliferation and
10 nonproliferation policy is the Department of State, not
11 the Department of Energy, and the Department of State
12 should consult with the Department of Energy. At times
13 the Department of Energy is given authority to have its
14 input to the Department of State, but it's the Department
15 of State that makes nonproliferation policy, not the
16 Department of Energy.
17 Q. In your review of the environmental assessment prepared by
18 the Department of Energy in January of '99, Dr. Boyle,
19 regarding the Parallex Project, is there any indication
20 that the Department of Energy consulted with the
21 Department of State? And if you don't mind, I direct your
22 attention to Page 41 of Plaintiff's Exhibit 12 previously
23 admitted and ask you to refer to that.
24 A. Yes. They had a list here of agencies consulted. Your
25 Honor, over here on Page 41, it says agencies consulted
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1 during the preparation of this analysis: Atomic Energy of
2 Canada, Canadian Atomic Energy Control Board, U.S.
3 Department of Transportation, U.S. Nuclear Regulatory
4 Commission. They do not consult with the Department of
5 State and, in my opinion, and also in the opinion of
6 Congress, if you read through all the implementing
7 legislation, I know, Your Honor, as I understand it, you
8 are a conscientious Judge so I'm sure you are going to do
9 this, you'll see that they have to deal with the
10 Department of State. And the main problem with this EA is
11 they have not dealt with the Department of State, they
12 have not dealt with the nonproliferation issues, they have
13 not dealt with the Nonproliferation Treaty, they have not
14 dealt with the 1978 Act, they have not dealt with the 1994
15 Act, they have not dealt with the 1998 Act. All that is
16 expressly required by Congress. So again, in my opinion,
17 for some reason the Department of Energy has just decided
18 to go out there on its own and completely either ignore or
19 violate the Congressional statutes and procedures for
20 dealing with proliferation and nonproliferation issues.
21 Q. Dr. Boyle, to your knowledge, has the Department of State
22 retreated at all from the U.S. commitment to the
23 Nonproliferation Treaty as implemented by Congress through
24 the legislation you've indicated?
25 A. No, and as a matter of fact, Madeline Albright was just
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1 out in India-Pakistan with President Clinton. As you
2 know, President Clinton stated that today India-Pakistan,
3 the Indian subcontinent is the most dangerous place on the
4 face of the earth because of the proliferation problem,
5 and they both have nuclear weapons now, and the dispute
6 over Casmir.
7 President Clinton then was just lectured in the
8 Indian Parliament publicly by the speaker of Parliament
9 for making the statement, but I think it's a fair and
10 accurate statement. Madeline Albright followed this up
11 with another statement reiterating our commitment to
12 nonproliferation and, specifically with respect to India
13 and Pakistan, that this was the policy of the United
14 States Government, and also tying this into the integral
15 importance of safeguards.
16 And again, that is a fair and accurate statement
17 of the policy being pursued by the President and the
18 Secretary of State that is charged under the legislation
19 and the Constitution to deal with these matters. There is
20 a complete and total disconnect here between what the
21 President and Secretary of State are saying and what the
22 Department of Energy is planning to do here in the
23 environmental assessment.
24 Q. Dr. Boyle, I'm going to show you what has been marked as
25 Plaintiff's Exhibit 11 and ask you to take a minute to
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1 review that and let me know when you have had a chance to
2 do so, please.
3 A. Yes. This is an account of the Secretary of State
4 Albright's statement on April 2, as recently as April 2
5 dealing with our proliferation policies. And let me draw
6 a few things to your attention. United States regards
7 proliferation anywhere as our Number 1 security concern.
8 So again, she's pointing this out and she is the cabinet
9 officer with the authority to deal with these matters, not
10 the Secretary of Energy. We continue to seek universal
11 adherence to the NPT neither India nor Pakistan are
12 parties to the NPT. And here is crucial points: The
13 limits in our ability to cooperate with India and Pakistan
14 are a matter of U.S. law, as well as our international
15 obligations, all right? So Secretary Albright is pointing
16 out we have United States law that deals with
17 proliferation and this United States law -- of course,
18 she's not a lawyer -- but the U.S. law is the Nuclear
19 Nonproliferation Act, the Proliferation Prevention Act and
20 the '98 amendments as well as the Atomic Energy Act. So
21 there's a very comprehensive legislative scheme here as
22 well as our international obligation she points out.
23 There are international treaties here, and in particular
24 the most important one being the one she just referred to,
25 the Nonproliferation Treaty, and she is aware of that.
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1 Unfortunately, it does not appear that the Department of
2 Energy is aware of it or is concerned about it in the
3 least bit, at least as reflected in the environmental
4 assessment, they have not dealt with any of these issues
5 in environmental assessment nothing, none.
6 Q. Dr. Boyle, based on your experience and investigations
7 study, are you aware of whether or not India and Pakistan
8 have Canadian CANDU reactors?
9 A. As I understand it, they've got reactors from the Indian
10 Nuclear Bomb Project was a serous reactor, Canada, India
11 and United States, right. And Pakistan has a CANDU
12 reactor, right. And just the other day, the New York
13 Times reported the smuggling of substantial quantity of
14 nuclear materials out of the former Soviet Union towards
15 Pakistan that was recently intercepted in Kazakhstan, I
16 think. So I think this is a very serious problem. And I
17 don't see how this Parallex MOX -- it's only going to
18 compound the problem. These countries are doing
19 everything they possibly can. And here I would also add
20 in Israel is not a party to the NPT. There are other
21 states that have CANDU reactors, it has already been
22 reported in the professional literature, Your Honor, that
23 Japan too is a de facto nuclear weapons state in violation
24 of the NPT. And as Dr. Edwards already reported, they
25 have gotten a good deal of their nuclear material from
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1 Canada.
2 So, we see -- Canadian reactors that are what,
3 in South Korea, Taiwan, states that are interested in
4 getting nuclear weapons. Clearly Taiwan wants them, South
5 Korea wants them. And you know, not that I can speak for
6 these governments, but it seems to me they have made a
7 decision the best way to get a weapon is to do it the way
8 the Indians did. We get a Canadian CANDU reactor, then we
9 start getting in whatever material we can get from, for
10 example, this MOX program. They will get plutonium and
11 then they can make a bomb, they can assemble a bomb.
12 As for the ease of assembling a bomb, Your
13 Honor, when I was a student at Harvard there was a very
14 bright student at MIT who, as a class project, assembled a
15 bomb. He had everything there except the plutonium.
16 That's how easy it is to assemble an atomic bottom, and he
17 brought it down there and, if I remember correctly, in
18 central square at MIT, and just showed it to everyone.
19 Even a bright student at MIT can assemble a bomb, that's
20 how easy it is to do. And what we see on these states
21 that say they are non-nuclear weapons states is an effort
22 to get a CANDU reactor and do what the Indians do use the
23 CANDU reactor, then they just need to get hold of the
24 plutonium, and Parallex MOX is going to give them access
25 to this plutonium if it gets in circulation.
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1 Q. Dr. Boyle, you've testified in some depth as to the
2 Nonproliferation Treaty and the implementation by Congress
3 indicating Congress' intent to prohibit even components,
4 parts of nuclear weapons to be covered by the U.S.; is
5 that correct?
6 A. Congress has interpreted the NPT, as I said, in good
7 faith, and to achieve its object and purpose and they have
8 interpreted to mean components that is clear of nuclear
9 weapons or nuclear explosive devices and there are other
10 areas in legislation where they even break it down to
11 items or substances that could be used for nuclear weapons
12 or nuclear explosive device, so Congress is aware of this
13 problem of a state becoming a de facto nuclear weapons
14 state and somehow trying to assemble components, items and
15 substances to be used for a nuclear weapon in order to
16 circumvent the treaty. So again Congress has interpreted,
17 I think, the treaty properly.
18 Q. Are you familiar in the course of your research with the
19 DOE's stockpile of stewardship program?
20 A. I am, yes.
21 Q. Are you familiar with their use in that program of
22 subcritical amounts of weapons grade plutonium?
23 A. Yes. Right now the Department of Energy is engaging in
24 what are known as subcritical tests. A subcritical test
25 is using -- they just did one this week, I think I gave
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1 you the press release on it, and they are consistently
2 doing this.
3 A subcritical test uses a subcritical amount of
4 plutonium, which is under the -- it was eight kilograms.
5 And they are exploding it in order to test, verify and
6 develop the next generation of U.S. nuclear weapons. So
7 what we see the Department of Energy doing here is the
8 subcritical tests, in my opinion, would constitute it's
9 not a nuclear weapon, but it is a nuclear explosive
10 device. Now, there is nothing illegal with, under the NPT
11 with us having a nuclear explosive device, because we are
12 a nuclear weapons state party, but again, it creates
13 problems other states are now mimicking our behavior.
14 Russia is doing the same thing, France and Britain say
15 they are going to do the same thing. If we give weapons
16 grade plutonium to Canada, Canada could be doing the same
17 thing. Or the Russians give their weapons grade plutonium
18 to Canada, Canada could be doing the same thing, and other
19 states could be doing the same thing. So again, I think I
20 have serious concerns here, but I want to point out the
21 DOE is already engaged in the subcritical tests which are
22 clearly nuclear explosive devices. So it just doesn't
23 have to be a bomb to be regulated by the NPT.
24 Q. Dr. Boyle, in the scope of your experience and research,
25 have you become acquainted with the International Court of
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1 Justice opinion regarding nuclear weapons in 1996?
2 A. Yes. As a matter of fact, I was part of the effort
3 originally to try to get that advisory opinion from the
4 World Court.
5 Q. If you would explain briefly what the significance, if
6 anything, of that World Court decision on the Parallex
7 project is, in your opinion?
8 A. Well, Your Honor, the World Court was asked by the United
9 Nations general assembly to give an opinion on the entire
10 question of nuclear weapons and international law. It's a
11 very long decision with many separate decisions in the
12 sense I've written an article here, Mr. Love might want to
13 provide it to you, going through all of it. But in this
14 opinion, there are two critical components that are
15 relevant to the Parallex MOX project and, of course, the
16 EA has not dealt with either, let alone the World Court
17 opinion, and the World Court opinion in this area
18 enunciates the rules of international law that are binding
19 on the United States Government, binding on Canada,
20 binding on Russia. The one component of this opinion
21 deals with the environmental-- international environmental
22 law applicable to nuclear weapons, and you will note in
23 the EA, the DOE does absolutely nothing at all with
24 international environmental law applicable to this
25 transaction because it is an international transaction,
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1 they're shipping plutonium from the States up to Canada
2 and from Russia over to Canada. So international
3 environmental law is involved, and the DOE has done
4 nothing at all about it.
5 And Mr. Love, I think you have the exact
6 language there. You want to provide that to me, the exact
7 ruling of the Court on the international environmental law
8 that would apply?
9 MR. LOVE: Your Honor, we have tendered what I'm
10 going to show Dr. Boyle as Plaintiff's Exhibit 14, a copy
11 of the World Court opinion to both the Court and counsel
12 previously.
13 BY MR. LOVE:
14 Q. Dr. Boyle, I'm going to show you what has been marked as
15 Plaintiff's Exhibit 14 and ask you to take a look at that
16 and let us know when you've had a chance to do so and what
17 it is.
18 A. Right, this is the World Court advisory opinion. It's so
19 long, I'm going to have to get my notes on it, excuse me.
20 I think, Mr. Love, I gave you my notes last
21 night on the relevant provisions of the opinion, the
22 relevant paragraphs.
23 Q. While I'm looking for your notes, could you direct your
24 attention to Paragraph 27, please?
25 A. Right. What we need are the paragraphs here.
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1 Right. Yes, I have Paragraph 27.
2 Your Honor, here the World Court unanimously
3 adopted Principle 21 of the Stockholm Declaration of 1972,
4 which everyone would say today is a basic principle of
5 international environmental law, which the EA has not
6 bothered to deal with. And it basically says states have
7 a duty "to ensure that activities within their
8 jurisdiction or control do not cause damage to the
9 environment of other states or areas beyond the limits of
10 national jurisdiction." That's a basic principle of
11 international environmental law. It goes back to the
12 Stockholm Declaration of 1972. It has direct relevance
13 here to this entire project. You've got international
14 shipment of plutonium, it's going over the high seas if it
15 goes by boat from Russia. That also triggers the Law of
16 the Sea Convention that they have not dealt with. They
17 haven't dealt with the Stockholm Declaration, and they
18 have not dealt with this recent ruling by the World Court
19 as to obligations under international law. If you read
20 the EA when they are asked this question, they said "Once
21 we give to Canada, that's their problem." Well, again,
22 that isn't a correct statement of international law. It
23 is our problem.
24 The second important point of the ICJ opinion,
25 and there are other sections here dealing with the
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1 environment -- and I know we have a limited amount of
2 time, I'm not going to go through it all -- deals with the
3 interpretation of the Nuclear Proliferation Treaty.
4 This is an international treaty, the World Court
5 also has authority to interpret the Nuclear
6 Nonproliferation Treaty, and they have interpreted the
7 Nuclear Nonproliferation Treaty.
8 Mr. Love, could you give me -- I identified a
9 paragraph for you, I think it's 102.
10 Q. I believe you are looking for Paragraph 102?
11 A. 102, right.
12 Q. May also want to take a look at Paragraph 99.
13 A. 99 and 102, right.
14 The World Court, in the same advisory opinion,
15 has also dealt with the NPT and the obligation of Article
16 VI of the NPT, "Each of the parties to the treaty
17 undertakes to pursue negotiations in good faith on
18 effective measures relating to cessation of the" -- "in
19 good faith on effective measures relating to cessation of
20 the nuclear arms race at an early date and to nuclear
21 disarmament, and on a treaty on general and complete
22 disarmament under strict and effective international
23 control." And they have interpreted this provision, NPT
24 Article VI, which we are a party to, by the way, to have a
25 dual obligation, two components here: One, we must pursue
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1 negotiations on nuclear disarmament as a matter of good
2 faith.
3 Recently, I regret to report the U.S. Ambassador
4 to the Conference on Nuclear Disarmament sponsored by the
5 United Nations has said "We are not going to pursue
6 nuclear disarmament negotiations." In my opinion, that
7 puts us in breach of NPT Article VI, certainly as
8 interpreted by the World Court. We have an obligation to
9 pursue nuclear disarmament negotiations and we have just
10 said we are not going to do it. The Ambassador said "We
11 are going to pursue instead a treaty on the cutoff of
12 fissile materials such as what is at stake here, but we
13 are not going to pursue nuclear disarmament negotiations."
14 Well, Your Honor, it does seem to me that that is a
15 violation of NPT Article VI and is certainly not meeting
16 the requirements of Article VI as interpreted by the World
17 Court. We must pursue these negotiations in good faith.
18 And then the second component of the obligation
19 is we must achieve a precise result. Nuclear disarmament
20 in all its aspects. And again just recently the U.S.
21 Ambassador to the Council of Nuclear Disarmament under the
22 auspices of the UN said "We are just not going to do it."
23 The reason why this creates serious legal problems is that
24 the non-nuclear weapons states went along with the entire
25 Nuclear Proliferation Treaty on the assumption that the
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1 nuclear weapons states would engage in good faith
2 negotiations leading to nuclear disarmament. If we are
3 not engaging in negotiations leading to nuclear
4 disarmament and publicly say we are not going to do it,
5 this in theory could give the non-nuclear weapons states,
6 all 175 of them, grounds to argue the material breach of
7 the NPT and pull out of the NPT and to engage in nuclear
8 armament. Now I'm not recommending that and indeed I
9 certainly would not recommend that to anyone, but it is a
10 very serious concern if we are not engaging in these
11 nuclear disarmament negotiations, which we are not
12 currently doing.
13 Q. Dr. Boyle, could you briefly summarize for the Court why
14 the International Court of Justice opinions, if at all,
15 are binding on the U.S.?
16 A. This opinion per se is listed as an advisory opinion. So
17 it is -- we are not party to the lawsuit. As you know,
18 some courts can give advisory opinions. Your Honor, you
19 can't give an advisory opinion, but there are courts in
20 the United States that some states courts have authority
21 to give advisory opinions as well as contentious
22 opinions. The World Court has both. They have authority
23 contentious opinion and an advisory opinion. This was not
24 a contentious case. If it were a contentious case, we
25 would be bound by it, like the Lockerbie case, like the
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1 Bosnia cases that I was involved with, those were
2 contentious cases. This was an advisory opinion, however,
3 in this advisory opinion, with these unanimous rulings by
4 the World Court on these points, the World Court made it
5 clear that these rules are customary international law.
6 And rules of customary international law bind the United
7 States Government. The Paquete, P-a-q-u-e-t-e, Habana,
8 H-a-b-a-n-a, decision by the United States Supreme Court
9 customarily international law binds the United States and
10 the United States courts. And technically, this is
11 federal common law. So the, Your Honor, this Court should
12 take into account the World Court rulings on these two
13 points on international environmental law and how the NPT
14 should be interpreted.
15 The rest of the opinion, which is quite lengthy
16 and I had written about elsewhere -- if you are interested
17 in reading my article, you can, but it's not really
18 relevant or terribly germane to the issues here, but
19 certainly, the section on international environmental law
20 and their interpretation of the NPT is relevant. I think
21 they enunciate rules of customary international law. I
22 also have reached the same conclusions myself in my own
23 scholarly research before the World Court did, but I think
24 most experts would agree with the rulings of the World
25 Court on these two points, it's requirements of
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1 international environmental law and the interpretation of
2 the NPT.
3 And again, the DOE's environmental assessment
4 has not taken any of this into account. They have not
5 taken into account the rules of international
6 environmental law, which they should do, and they have not
7 taken into account anything about the NPT.
8 Q. Dr. Boyle, based on your review of the NPT, the Nuclear
9 Nonproliferation Acts of 1978, 1994, and 1998, the
10 International Court of Justice opinion, and the
11 declarations by the Department of State regarding the U.S.
12 position with respect to the Nonproliferation Treaty
13 commitments we have made, do you have an opinion as an
14 expert in international law as to whether the foreign
15 policy of the United States would be violated by the
16 shipment of MOX from Russia to Canada funded by the U.S.
17 DOE?
18 A. Well, again, I agree with everything Dr. Edwards said.
19 Your Honor, this is a major change in United States
20 nonproliferation policy going back at a minimum to the
21 Carter administration and the adoption of the Nuclear
22 Nonproliferation Act, it seems to me completely
23 inconsistent with the treaty, with the Act, the 1978 Act
24 and 1994 Act and the 1998 Act. So yes, this is a major
25 change in policy that potentially is illegal under the
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1 sources. And I would really like to see the Department of
2 Energy comprehensively address all of these issues so we
3 could see what is their authority to do this. Besides
4 their own ipse dixit. I would like to see the authority.
5 I don't see it in any of the sources I've read before for
6 them to unilaterally engage in this major change in policy
7 that seems to be inconsistent with the Treaty, the '78
8 Act, the '94 Act and '98 Act, yes.
9 MR. LOVE: Your Honor, I have no further
10 questions of this witness. Thank you.
11 CROSS EXAMINATION
12 BY MR. DODGE:
13 Q. Morning, Mr. Boyle.
14 A. Morning.
15 Q. I would like to turn your attention back to your C.V.,
16 which I think is Exhibit 3. Do you have that in front of
17 you?
18 A. Sure.
19 Q. Just to round out a few items on the second page, about
20 halfway down you testified that you were counsel to Libya
21 in connection with the bombing of the Pan Am flight over
22 Lockerbie, Scotland.
23 A. That is correct. I should point out that matter is being
24 peaceably resolved now by the United States and Libya
25 because of my efforts.
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1 Q. And you've also served, going up now the fourth item from
2 the top of that page, since 1987 you served as a legal
3 advisor to the Palestine Liberation Organization?
4 A. That is correct, and I was also the legal advisor to the
5 Palestinian delegation for the Middle East Peace Talks
6 convened under the auspices of President Bush, yes.
7 Q. And two items down from there said you were counsel
8 related to House Resolution 86 in the 102nd Congress
9 dealing with the impeachment of former, then President
10 George Bush?
11 A. Yes. Congressman Henry G. Gonzalez of Texas reached a
12 decision that President Bush going to war violated
13 numerous provisions of the Constitution and international
14 law. You can find them there in House Resolution 86. And
15 he asked me, because of my knowledge and expertise to
16 serve as counsel to them on these matters, and I did serve
17 as counsel free of charge, that is correct.
18 My service to the Palestinian Delegation in the
19 Middle East Peace Negotiations is there in '91 and '93, as
20 I said, President Bush was the one who convened those
21 negotiations, and yes, even though I did set out with
22 Congressman Gonzalez on this issue, President Bush did
23 sign my Biological Weapons Anti-terrorists Act of 1989,
24 which is --
25 Q. He apparently didn't hold your efforts against you
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1 personally.
2 A. Pardon me?
3 Q. Sounds like he didn't hold it against you personally.
4 A. I don't think he did, no. I'm a lawyer and a law
5 professor and I'm a professional, but he had no problems,
6 President Bush had no problems with my Biological
7 Anti-Terrorism Act. It was approved unanimously by both
8 Houses of Congress.
9 Q. Moving on to the third page, second item from the top of
10 the page, you worked as a consultant in 1993 on
11 Independence for the State of Hawaii. I would assume for
12 Hawaii to become an independent nation?
13 A. That is correct. The State of Hawaii-- the Hawaiian
14 Sovereignty Advisory Commission is an agency of the State
15 of Hawaii. And they were charged under the law by the
16 State of Hawaiian law to investigate all alternatives for
17 the native Hawaiian people. One of the alternatives that
18 needed to be investigated was whether or not the native
19 Hawaiian people should establish their own independent
20 nation state. And I was retained by the State of Hawaii
21 then to advise them on this because of my experience doing
22 the same work with the Palestinians. I advised them on
23 the creation of their state and the peace talks with
24 Israel based on a two-state solution, and the Palestinian
25 state today has diplomatic recognition now by about 125
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1 states, and currently has de facto UN membership, and I
2 did the legal work on that, so the State of Hawaii
3 retained me to come out and advise on the establishment of
4 an independent nations state, and the State of Hawaii paid
5 my expenses and a modest fee for this work, yes.
6 Q. Moving on to the Nonproliferation Treaty, you testified
7 about Article I. Do you recall that?
8 A. Yes.
9 Q. And as I understood your testimony, your view is that the
10 fuel rods at issue in the Parallex Project, in your view,
11 should be treated as components of a nuclear weapon; is
12 that right? Explosive device?
13 A. No. What I said was weapons grade plutonium should be
14 treated as a component of either a nuclear weapon or a
15 nuclear explosive device.
16 Q. What about -- I mean, the Parallex test involves shipment
17 and then irradiation of fuel rods; is that correct?
18 A. Right.
19 Q. And is it your view or is it not your view that those fuel
20 rods constitute components of nuclear weapons or explosive
21 devices?
22 A. My viewpoint is what I said, that weapons grade plutonium
23 is a component of a nuclear weapon or nuclear explosive
24 device.
25 Q. You didn't answer my question. Do you understand the
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1 question?
2 A. Well, I've given my answer.
3 THE COURT: No, you haven't answered his
4 question. He asked you question, if you don't know the
5 answer, say so. He asked you a very specific question
6 about rods.
7 BY MR. DODGE:
8 Q. In fact, the question has to do with your view, if you
9 have one, whether the fuel rods at issue in the Parallex
10 test program constitute components of nuclear weapons or
11 explosive devices.
12 A. If they contain weapons grade plutonium, they would be or
13 could be components of nuclear weapons or nuclear
14 explosive devices.
15 Q. Well, these fuel rods do contain plutonium; is that right?
16 A. As I understand it, it's in there, yep.
17 Q. So in your view, does that make the fuel rods components
18 of nuclear weapons or explosive devices?
19 A. Again, my testimony is that the weapons grade plutonium
20 clearly is either nuclear -- is a component of a nuclear
21 weapon or a nuclear explosive device, and the reason I
22 give that testimony is based on my reading of the
23 Congressional legislation, Congress has taken the position
24 that weapons grade plutonium or plutonium, in general, is
25 a component of a nuclear weapon or nuclear explosive
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1 device. Congress does not deal with the fuel rods, they
2 dealt with the plutonium.
3 Q. I want to make sure I understand your testimony clearly.
4 Is it your testimony, is it your view that any
5 plutonium would qualify as a component of a nuclear
6 weapons or nuclear weapon or explosive device under the
7 treaty?
8 A. My testimony today is the weapons grade plutonium involved
9 in this project is a component of a nuclear weapons or
10 other nuclear explosive device. I believe weapons grade
11 plutonium is what is involved in this project.
12 Q. I asked you a different question. The question was a
13 broader one. Is it your view or not your view that all
14 plutonium would qualify as a component of a nuclear weapon
15 or explosive device under Article I?
16 A. It appears Congress has taken that position, yes, and they
17 have stringently regulated plutonium in all forms. And I
18 also note that the United States Government has exploded a
19 nuclear weapon --
20 THE COURT: The question is: Is it your
21 opinion? He is asking four or five times now, could you
22 answer that?
23 THE WITNESS: But Your Honor, my opinion is
24 based on --
25 THE COURT: In courts -- I know you are a
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1 professor -- we answer the questions of the lawyer, not
2 what we want to talk about. He asked you seven or eight
3 questions, none of which you've answered. I would ask you
4 simply listen to the lawyer's question and answer it.
5 THE WITNESS: Yes, Your Honor.
6 BY MR. DODGE:
7 Q. Do you understand the question?
8 THE COURT: Ask it again for the fifteenth time,
9 ask it again.
10 BY MR. DODGE:
11 Q. Is it your view that all plutonium constitutes a component
12 of nuclear weapon or explosive device under Article I of
13 the treaty?
14 A. It can.
15 Q. It can?
16 A. Yes. Yes.
17 Q. Is it your view across the board that plutonium, whether
18 weapons grade or not, if it's present in a fuel rod for
19 a-- destined for a civilian nuclear reactor would qualify
20 as a component of a nuclear weapon explosive device?
21 A. It could.
22 Q. Do you know whether as a general matter the signatories of
23 the Nonproliferation Treaty have interpreted, whether any
24 signatory has interpreted Article I to ban transport of
25 fuel rods containing plutonium?
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1 A. Congress has strictly regulated plutonium, yes, and there
2 is legislation on the books saying "We, Congress,
3 interpreting our obligations under the NPT, are against
4 international transport of plutonium," yes.
5 Q. Has Congress passed any legislation prohibiting the
6 transport of nuclear fuel rods containing any plutonium?
7 A. In what I have reviewed for my testimony here today, I
8 have not seen in the '78, '94 or '98 Act that Congress has
9 prohibited transport of fuel rods.
10 Q. In fact, fuel rods are transported across national
11 boundaries all the time; is that not correct?
12 A. They are transported.
13 Q. In fact, fuel rods containing plutonium are transported
14 across national boundaries all the time, isn't that
15 correct?
16 A. If they are subject to-- they are supposed to be subject
17 to safeguards, yes.
18 Q. Well, that gets us to another point of your earlier
19 testimony regarding whether the fuel rods particularly at
20 issue in the Parallex Project are or are not subject to
21 IA/EA safeguards in Canada. Do you recall that testimony?
22 A. Yes.
23 Q. Do you have personal knowledge whether Canada, the
24 Government of Canada has taken a position on whether the
25 U.S. Parallex fuel rods, which are now in Canada, whether
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1 those fuel rods are now subject to IA/EA safeguards?
2 A. I have not seen any evidence because of the recentness of
3 the movement of the shipments.
4 Q. If I told you that the position of the Government of
5 Canada is that those fuel rods are, in fact, subject to
6 IA/EA safeguards, would you have any basis to quarrel with
7 that?
8 A. The statement by Ms. Locatelli does call into question the
9 validity of these assertions, yes.
10 Q. Miss Locatelli was generally speaking of Parallex fuel
11 rods, was she?
12 A. Speaking about plutonium in general, right.
13 Q. I take it you didn't speak personally to Miss Locatelli?
14 A. No, I did not.
15 Q. About this or any--
16 A. But I did speak with Mr. Clemens of NCI by e-mail and he
17 has similar concerns to me.
18 Q. Okay. And did you speak to the newspaper reporter, Martin
19 Mittelstaedt, who quoted Ms. Locatelli?
20 A. No, I did not.
21 Q. Whether his quotes accurately reflect what she said or not
22 is not something you would be qualified to testify about;
23 is that right?
24 A. Well, I note The Globe and Mail is a newspaper of public
25 record and I would be able to rely on that in the World
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1 Court for sure, yep.
2 Q. But newspaper reporters are human beings?
3 A. Newspaper reporters make mistakes, sure. But again, the
4 World Court, for example, the nuclear test cases did rely
5 on statements made by Government officials as normally
6 reported in reputable news media sources. They have
7 different standards of evidence, the World Court, than
8 they do here in United States District Court.
9 Q. Now you've also relied on this article, Plaintiff's
10 Exhibit 5, I guess too, in support of your opinion that
11 Canada is in possession of 40 kilograms or up to 40
12 kilograms of plutonium; is that right?
13 A. This is a statement by Mr. Clemens, and I have had e-mail
14 correspondence with him about it.
15 Q. Do you have any personal knowledge whether --
16 A. No.
17 Q. I'm sorry, I didn't finish my question.
18 A. I did answer your question.
19 THE COURT: He hasn't finished asking it; you
20 couldn't possibly answer his question when he hasn't
21 finished asking it.
22 THE WITNESS: Sorry.
23 BY MR. DODGE:
24 Q. Do you have any personal knowledge of whether Canada, in
25 fact, has 40 kilograms of plutonium?
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1 A. I do not have personal knowledge, no. I'm relying on the
2 statement by Mr. Clemens.
3 Q. Mr. Clemens, does Mr. Clemens have personal knowledge
4 whether Canada has 40--
5 A. As I understand, Mr. Clemens does. From my e-mail
6 correspondence with him, he does.
7 Q. Has he seen that plutonium?
8 A. Pardon me?
9 Q. Has he seen it?
10 A. He didn't tell me what his sources of evidence are, but he
11 did tell me that they will be making it public soon.
12 Q. So he thinks he has -- he thinks he has evidence to
13 support that conclusion and whether that evidence holds
14 any water or not, we really can't tell, can we?
15 A. Well, again, as an expert, if the NCI is making the
16 statements, I think they are significant and they need to
17 be dealt with, and certainly by the Department of Energy.
18 THE COURT: That was not -- excuse me, that was
19 not his question.
20 Would you repeat your question, please?
21 BY MR. DODGE:
22 Q. The question is: Mr. Clemens believes he has reason or he
23 has evidence to support his conclusion that Canada has 40
24 kilograms of plutonium, but as far as anybody in this
25 courtroom knows, that evidence may or may not hold water,
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1 we just don't know, correct?
2 A. I'm not evaluating the evidence, and Mr. Clemens said the
3 evidence will be produced, so at that point I will review
4 the evidence and formulate a formal opinion.
5 THE COURT: Do you want to ask it again or just
6 want to give up?
7 MR. DODGE: I think that -- I think the point is
8 established to the extent I need to, Your Honor.
9 BY MR. DODGE:
10 Q. Now, you testified earlier that it's up to the State
11 Department, not the Department of Energy to interpret
12 United States treaty obligations; is that right?
13 A. I testified that it is the State Department that is in
14 charge of nuclear proliferation policies, that's what I
15 testified, and not the Department of Energy, yes.
16 Q. Okay. Is it your view that it's -- maybe I misunderstood
17 what you testified earlier. I thought I heard you say
18 that interpreting whether or not the U.S. is complying
19 with Nonproliferation Treaty in particular, that pertinent
20 authority on that would be the State Department, not the
21 Department of Energy; is that a fair statement?
22 A. I've also testified that the State Department has the lead
23 role in the United States Government with respect to
24 interpretation of treatises as well.
25 Q. Do you know what the State Department's position is on
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1 whether the Parallex test program is or is not compliant
2 with Article I of the Nonproliferation Treaty?
3 A. Well, that's why I read the Environmental Assessment, to
4 see if you had talked to the State Department here, and
5 they hadn't, so I have not seen any statement by the State
6 Department as to what their position is, no.
7 Q. The Environmental Assessment is not the only document
8 that's been generated in the course of the Parallex
9 Project, you understand that?
10 A. That is correct, and I have read a good deal of the
11 documentation, but I still have not seen an expression by
12 the Department of State on this issue.
13 Q. Okay. Do you know whether or not the State Department was
14 involved at any level in the Parallex Project?
15 A. There probably were discussions somewhere in there.
16 Q. Do you know?
17 A. Myself personally?
18 Q. Yes.
19 A. I don't know for sure.
20 Q. Do you know one way or the other whether the State
21 Department has a view on whether the Parallex Project is
22 consistent with our treaty obligations under Article I of
23 the NPT?
24 A. I have not seen any expression by the State Department on
25 this issue.
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1 Q. If I told you the State Department has taken the view that
2 the Parallex Project is entirely consistent with our
3 obligations under Article I, would you have any basis to
4 quarrel with that?
5 A. I haven't seen it.
6 MR. LODGE: Objection, Your Honor.
7 THE COURT: If he hasn't seen --
8 MR. DODGE: Withdraw the question, Your Honor.
9 THE WITNESS: I would like to see it and
10 evaluate it myself, sure.
11 BY MR. DODGE:
12 Q. You also testified about dangers of nuclear proliferation
13 relating to countries such as Taiwan and Korea that are
14 not currently nuclear weapons states, but would like to
15 acquire nuclear weapons, do you recall that testimony?
16 A. Yes.
17 Q. Is it correct that the MOX program, the Parallex Program
18 does not contemplate the shipment of any fuel rods to any
19 country other than Canada?
20 A. Not at this stage, but eventually it does appear there
21 will be mass circulation of this material, yes, down the
22 line.
23 Q. And the basis for that is what exactly?
24 A. The quantities. If the test works out, the quantity we
25 are talking about coming from Russia.
KATHLEEN S. THOMAS, U.S. District Court Reporter
410 West Michigan Avenue, Kalamazoo, Michigan 49007
(616)385-3050

81
1 Q. Well, let me be more specific about this. Has the United
2 States, any spokesperson for the United States Government
3 proposed in connection with the Parallex Project to send
4 fuel rods to any country other than Canada?
5 A. The United States?
6 Q. Right.
7 A. No.
8 Q. Has the Government of Russia proposed, in connection with
9 the Parallex Project, to send fuel rods to any country
10 other than Canada?
11 A. Well, they are talking about massive quantities of weapons
12 grade plutonium being circulated into this program and the
13 independent team of experts by Russia and the United
14 States have made that quite clear they are talking tons of
15 this stuff.
16 Q. Well, again, you didn't answer my question there,
17 Professor. I asked you whether the Russian Government has
18 proposed sending fuel rods to any country other than
19 Canada. Your answer only dealt with volumes, it didn't
20 address where. That was my question.
21 A. Right. There might have been discussions on Germany or
22 some of the European states have there -- there have been
23 discussions and proposals, but it's just at that stage
24 now, yes.
25 Q. But Russia has not, to your knowledge, proposed sending
KATHLEEN S. THOMAS, U.S. District Court Reporter
410 West Michigan Avenue, Kalamazoo, Michigan 49007
(616)385-3050

82
1 fuel rods to Korea?
2 A. There is an international market here, sure, it could be
3 sold anywhere.
4 THE COURT: No, he didn't say could have. He
5 said: Did they propose it?
6 THE WITNESS: I have not read that right now
7 Russia is proposing sending this to Korea.
8 BY MR. DODGE:
9 Q. Same question with Taiwan.
10 A. I have not read that Russia is proposing to send this to
11 Taiwan.
12 MR. DODGE: No further questions at this time,
13 Your Honor.
14 THE COURT: We will take a 15-minute recess.
15 COURT CLERK: All rise.
16 This court is in recess.
17 (At 10:54 a.m., recess.)
18 THE COURT: Okay. What is next?
19 MR. LOVE: Brief redirect, Your Honor.
20 REDIRECT EXAMINATION
21 BY MR. LOVE:
22 Q. Professor Boyle, did you receive any recognition or
23 rewards from Bosnia for your efforts on their behalf?
24 A. While I was never paid a penny, but President Izetbegovic
25 and Vice President Gonich (phonetic) held a ceremony at
KATHLEEN S. THOMAS, U.S. District Court Reporter
410 West Michigan Avenue, Kalamazoo, Michigan 49007
(616)385-3050

83
1 the Bosnian presidency with a-- awarded me full-fledged
2 citizenship in the Republic, a diplomatic passport and
3 visa and a declaration and they put the ceremony on
4 television, so that was very nice. So technically I'm a
5 Bosnian citizen too.
6 Q. Dr. Boyle, with respect to your work on the Hawaiian
7 independence that Mr. Dodge asked you about, has there
8 been any action by the President or Congress, to your
9 knowledge, with respect to that?
10 A. Yes. In 1993 Congress passed a statute signed into law by
11 President Clinton formally apologizing to the native
12 Hawaiian people for destroying their kingdom and stealing
13 their land. The legislation at the end provides for a
14 process of reconciliation and reparations, and how this is
15 going to be dealt with, and I'm still currently involved
16 in those matters.
17 Q. Dr. Boyle, there should be a document up there marked
18 Plaintiff's Exhibit 13. Do you see that?
19 A. Yes, I have it here.
20 Q. Now, this is entitled a Nonproliferation Arms Control
21 Assessment of Weapons Usable Fissile Material Storage and
22 Excess Plutonium Disposition Alternatives, dated January,
23 1997 authored by the United States Department of Energy,
24 correct?
25 A. Yes.
KATHLEEN S. THOMAS, U.S. District Court Reporter
410 West Michigan Avenue, Kalamazoo, Michigan 49007
(616)385-3050

84
1 Q. Was this among the documents that you reviewed in
2 preparing your testimony?
3 A. I did not have -- I did not get this entire document until
4 Monday, so I did not have a chance to review the entire
5 document, but I have reviewed the excerpts you gave to
6 me.
7 Q. Now Mr. Dodge asked you-- for the record, Your Honor, the
8 excerpt only contains Pages 106 and 107-- Mr. Dodge asked
9 you about your testimony about the possibility of future
10 shipments of MOX to Taiwan and Korea. Do you remember him
11 asking you about that?
12 A. Yes.
13 THE COURT: He didn't ask what the possibility
14 is, he asked if there were plans by Russia or the United
15 States to ship to those two nations. That was the
16 question.
17 MR. LOVE: Okay.
18 THE COURT: And the answer was no. Not are
19 there possibilities. I know the witness thinks there are
20 possibilities, that won't help me any. I understand
21 that.
22 BY MR. LOVE:
23 Q. In fact, Dr. Boyle is it true that in this document the
24 DOE indicates there are possibilities such as you
25 testified about?
KATHLEEN S. THOMAS, U.S. District Court Reporter
410 West Michigan Avenue, Kalamazoo, Michigan 49007
(616)385-3050

85
1 A. Yes.
2 THE COURT: I accept that. You are wasting my
3 time. There are possibilities.
4 BY MR. LOVE:
5 Q. Dr. Boyle, if you would, I direct your attention to the
6 large document that's in front of you. This is
7 Proliferation Venerability Red Team Report, Plaintiff's
8 Exhibit 28, and introduced in the prior hearing.
9 A. Yes, and I read this entire report prior to my testimony
10 here today.
11 Q. I'm going to ask you, if you would, to direct your
12 attention to Page 6-1, the conclusions to that report.
13 A. Yes.
14 Q. And again, this is a document that was produced by Sandia
15 Laboratories for the Department of Energy?
16 A. That is correct.
17 Q. Directing your attention to the first conclusion, under
18 the conclusion, keeping plutonium inaccessible is the key
19 to proliferation resistance, do you see that?
20 A. Yes. It says quite clearly, all plutonium from all stages
21 of all alternatives can be made weapons usable should
22 sufficient material be successfully removed. And I should
23 point out that is the position Congress takes under the
24 Nuclear Nonproliferation Act of '78, the Act of '94 and
25 the '98, all plutonium can be made weapons usable.
KATHLEEN S. THOMAS, U.S. District Court Reporter
410 West Michigan Avenue, Kalamazoo, Michigan 49007
(616)385-3050

86
1 Q. In your view, is that conclusion by the Sandia Lab in this
2 Red Team Report consistent with your testimony?
3 A. Yes.
4 Q. Now, Mr. Dodge asked you if there was transport of
5 plutonium across boundaries all the time. My notes
6 reflected you said yes. Do you remember that testimony?
7 A. I said there was some, yes.
8 Q. Is there routinely transportation of weapons grade
9 plutonium shipped across boundaries all the time by the
10 United States?
11 A. No. No.
12 MR. LOVE: No further questions.
13 MR. DODGE: No recross, Your Honor.
14 THE COURT: You may step down.
15 THE WITNESS: Thank you, Your Honor.
16 Your Honor, did you have any questions?
17 THE COURT: No, I don't.
18 THE WITNESS: Thank you.
19 THE COURT: You've exceeded your time so I take
20 it you have no more witnesses.
21 MR. LOVE: Your Honor, I have no more witnesses
22 but at this time I would like to move our Exhibit 5,
23 Exhibit 7, Exhibit 11, Exhibit 12, Exhibit 13, Exhibit 14
24 and Plaintiff's Exhibit 2 and Exhibit 1 into evidence.
25 MR. DODGE: No objection, Your Honor.
KATHLEEN S. THOMAS, U.S. District Court Reporter
410 West Michigan Avenue, Kalamazoo, Michigan 49007
(616)385-3050

87
1 THE COURT: 5, 7, 11, 12, 13 and 14, 1 and 2 are
2 received.
3 MR. LOVE: Thank you, Your Honor. We have
4 nothing further.
5 THE WITNESS: Here are the exhibits. Where do
6 you want them?
7 MR. LOVE: I'll take them here.
8 (Hearing continued; reported, not requested
9 transcribed.)
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
KATHLEEN S. THOMAS, U.S. District Court Reporter
410 West Michigan Avenue, Kalamazoo, Michigan 49007
(616)385-3050

88
1
2
3
4
5 REPORTER'S CERTIFICATE
6
7 I, Kathleen S. Thomas, Official Court Reporter for the
8 United States District Court for the Western District of
9 Michigan, appointed pursuant to the provisions of Title 28,
10 United States Code, Section 753, do hereby certify that the
11 foregoing is a true and correct transcript of proceedings had
12 in the within-entitled and numbered cause on the date
13 hereinbefore set forth; and I do further certify that the
14 foregoing transcript has been prepared by me or under my
15 direction.
16
17
18
19
20 __________________________________
21
Kathleen S. Thomas, CSR, RPR-1300
22 U.S. District Court Reporter
410 West Michigan Avenue
23 Kalamazoo, Michigan 49007
24
25
KATHLEEN S. THOMAS, U.S. District Court Reporter
410 West Michigan Avenue, Kalamazoo, Michigan 49007
(616)385-3050

Francis A. Boyle
Law Building
504 E. Pennsylvania Ave.
Champaign, IL 61820 USA
217-333-7954 (voice)
217-244-1478 (fax)
fboyle at law.uiuc.edu<mailto:fboyle at law.uiuc.edu>
(personal comments only)




Francis A. Boyle
Law Building
504 E. Pennsylvania Ave.
Champaign IL 61820 USA
217-333-7954 (phone)
217-244-1478 (fax)
(personal comments only)

From: Brussel, Morton K
Sent: Monday, November 06, 2017 7:56 PM
To: Boyle, Francis A <fboyle at illinois.edu<mailto:fboyle at illinois.edu>>
Cc: David Green <davegreen84 at yahoo.com<mailto:davegreen84 at yahoo.com>>; C. G. ESTABROOK <carl at newsfromneptune.com<mailto:carl at newsfromneptune.com>>; Miller, Joseph Thomas <jtmiller at illinois.edu<mailto:jtmiller at illinois.edu>>; sherwoodross10 at gmail.com<mailto:sherwoodross10 at gmail.com>; peace-discuss at anti-war.net<mailto:peace-discuss at anti-war.net>; a-fields at uiuc.edu<mailto:a-fields at uiuc.edu>; Hoffman, Valerie J <vhoffman at illinois.edu<mailto:vhoffman at illinois.edu>>; Joe Lauria <joelauria at gmail.com<mailto:joelauria at gmail.com>>; Peace-discuss at lists.chambana.net<mailto:Peace-discuss at lists.chambana.net>; peace-discuss-request at lists.chambana.net<mailto:peace-discuss-request at lists.chambana.net>; Szoke, Ron <r-szoke at illinois.edu<mailto:r-szoke at illinois.edu>>; Arlene Hickory <a23h23 at yahoo.com<mailto:a23h23 at yahoo.com>>; Karen Aram <karenaram at hotmail.com<mailto:karenaram at hotmail.com>>; abass10 at gmail.com<mailto:abass10 at gmail.com>; mickalideh at gmail.com<mailto:mickalideh at gmail.com>; Lina Thorne <lina at worldcantwait.net<mailto:lina at worldcantwait.net>>; chicago at worldcantwait.net<mailto:chicago at worldcantwait.net>; Jay <futureup2us at gmail.com<mailto:futureup2us at gmail.com>>; David Johnson <davidjohnson1451 at comcast.net<mailto:davidjohnson1451 at comcast.net>>; Mildred O'brien <moboct1 at aim.com<mailto:moboct1 at aim.com>>; Estabrook, Carl G <galliher at illinois.edu<mailto:galliher at illinois.edu>>
Subject: Re: [Peace-discuss] FW: MOX for Bombs in Japan

I think this is wrong. MOX fuel is mainly used for fuel in nuclear power reactors, not to make bombs. Japan had/has many nuclear reactors. A fairly intelligible discussion is found in wikipedia, under "MOX nuclear”.

—mkb



On Nov 6, 2017, at 4:40 PM, Boyle, Francis A via Peace-discuss <peace-discuss at lists.chambana.net<mailto:peace-discuss at lists.chambana.net>> wrote:



This was a very lengthy interview I gave in Japan courtesy of their peace and anti-nuclear movement. It was heavily censored. My basic point was that Japan was using MOX to  make bombs and that my best estimate was that Japan probably had as many bombs as PRC, which would be in the area of 500. So when the details of the disaster at Fukushima came out, it was clear to me it was one of their leading bomb complexes.

Fab.

Francis A. Boyle
Law Building
504 E. Pennsylvania Ave.
Champaign, IL 61820 USA
217-333-7954 (phone)
217-244-1478 (fax)
(personal comments only)

From: globenet at yahoogroups.com<mailto:globenet at yahoogroups.com> [mailto:globenet at yahoogroups.com]
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Cc: 'Hiroshi Taka'; 'Gensuikyo'; 'Akira Kawasaki'; oheyeran at yahoogroups.com<mailto:oheyeran at yahoogroups.com>; asia-pacific_demil_mdg-request at lists.riseup.net<mailto:asia-pacific_demil_mdg-request at lists.riseup.net>; 'Coleen Rowley'; 'Douglas Roche'
Subject: [globenet] MOX for Bombs in Japan




Francis A. Boyle
Law Building
504 E. Pennsylvania Ave.
Champaign, IL 61820 USA
217-333-7954 (phone)
217-244-1478 (fax)
(personal comments only)

<Outlook.jpg>

Francis A. Boyle
Law Building
504 E. Pennsylvania Ave.
Champaign, IL 61820 USA
217-333-7954 (Voice)
217-244-1478 (Fax)
(personal comments only)


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