This is the transcript of a talk given by Elaine Scarry at the Nuclear Age Peace Foundation’s symposium “The Fierce Urgency of Nuclear Zero: Changing the Discourse” on October 25, 2016. The audio of this talk is available here. For more information about the symposium, click here.


Well, like all of you, I’m exhilarated and honored to be here. And my own emphasis is on the fact that key features of democracy are absolutely incompatible with nuclear weapons. The result of that is that during the nuclear age, these key features of democracy have simply been allowed to atrophy. In fact, they’ve come to seem ridiculous. But the good news is that were we to bring those key features of democracy back, we would be able to eliminate nuclear weapons, because they are mutually exclusive. And if you’re going to have these back in place, you can’t have the nuclear weapons.

So, we know that nuclear weapons cause profound injury to every living creature on earth and to the surface of the earth itself. As we heard yesterday, the new research on nuclear winter shows that if a tiny fraction of the current arsenal, not 1% but one one-hundredth of 1% is used, 44 million people will die on the first afternoon and 1 billion people will die in the first month. But in addition to that incredible physical injury, there is also, even before the weapons are used, a profound civic injury. Nuclear weapons have eliminated the right of self-defense. The right of self-defense isn’t just one right among many rights. It’s the right that underlies our constitution of any government, and it’s a right underlying many of our other rights.

For example, the right of free speech gives us many things. But one thing that it does is enhance our ability to defend ourselves. Nuclear weapons, of course, do not allow anybody in this country or any other country, with the possible exception of Switzerland that has an elaborate shelter system, to defend itself in any way. The second thing that we’ve really lost is the right of mutual aid. Any study of cities, even, for example, a recent study by Suzy Schneider and her colleague in the Netherlands showing what would happen if Rotterdam were hit with a Hiroshima-size bomb. It shows that the number of injuries is much greater than anyone can repair.

For example, they would expect 10,000 severe burn injuries just among survivors, and the Netherlands only has 100 burn beds. I first thought that was shockingly low. Mass General, which is a major hospital in Boston, has seven burn beds. So, there’s no resources for dealing with any kind of use of a nuclear weapon. As the Red Cross has said, “If even one city is hit, their worldwide resources can’t deal with it.” And the loss of mutual aid, I mean, that’s our… The texture, that’s the fabric of our relations with one another, knowing we could help one another, and that is gone.

As we know, the huge architecture, which is a genocidal architecture, it has no other purpose but this act of massacre, 90% of it, over 90% has been put in place by Russia and the United States. This is a chart made by a committee in Nagasaki. All the icons from the black-out on your left are Russia; all the icons on the black-out on your right are the United States. And as the legend tells you, you have to take each icon and multiply it by five, because there was no way of representing the actual numerical catastrophe that is there. And of course, this is the bulletin clock at the center of their graph, showing that it’s three minutes to midnight.

Now, the purpose of international law and national law is, of course, to prevent such injuries. But if people have lost the right of self defense, they’ve also lost the voice to make themselves heard. And just a quick reminder of that is the 1995 International Court of Justice case, in which 78 countries asked that nuclear weapons be declared illegal. And that included Islamic countries such as Qatar, and it included countries that didn’t yet have nuclear weapons, such as North Korea and India, both of whom said, “If you don’t declare them illegal, we have to get them.” And those countries called on all kinds of international protocols.

In our own country, in a joint statement of the Department of Defense and Department of State, as you probably know, argued that having nuclear weapons, threatening to use nuclear weapons, using nuclear weapons, and using nuclear weapons first does not violate the Geneva protocols, St. Petersburg, the Hague Conventions, the conventions against genocide. Yes, millions of people will die, but the intention, they argued, would not be to eliminate a religious or an ethnic group. It did not violate the conventions on ozone layer and the environment, etcetera, etcetera.

So, the laws are in place to address the fact that we as human beings, as public health physicians, have pointed out, are pretty good at narrative compassion. But we have a hard time with statistical compassion. It’s hard for us to understand numbers like billions and millions. International law and national law solves the problem of statistical compassion by saying, “It doesn’t matter whether you can empathize with these people or not. There’s certain injuries you’re not allowed to do. It doesn’t matter whether you can picture North Koreans or have any understanding of who they are. There’s certain things you’re not allowed to do.”

So, my own emphasis is on the national laws, which can be used hand-in-hand with the international laws and the other kinds of accords going on. And that’s in the book, ‘Thermonuclear Monarchy’. And essentially, it’s showing that the key provisions of our own constitution and of constitutions as they were understood in ‘Social Contract Theory’ by Hobbes and Locke, and even before that. Many centuries of thinking about contract are made primarily to be impediments on the act of going to war. Yes, constitutions have many phrases and many provisions, but the two key provisions in our own Constitution and in other constitutions are two brakes on going to war. The first one is the requirement for a Congressional declaration of war, and since the invention of nuclear weapons, we haven’t had a single Congressional declaration of war. Not in Korea, not in Vietnam, not in all our invasions of Panama, Haiti, former Yugoslavia, etcetera, and that’s not a coincidence.

If presidents know that, as Nixon said, “I can go into the next room, pick up a phone, and in 25 minutes 70 million people will be dead.” If presidents know they have that power, it can seem to them preposterous that merely to invade another country they have to go to Congress. As the elder George Bush said, “In order to kick Saddam Hussein out of Kuwait, I didn’t have to go to Congress and get some old goat’s permission.” That was a quotation from him.

Now, if you actually look at the… And the other provision that’s been made a mockery of in the nuclear age is the Second Amendment, which I hope I’ll get time to talk about, but I’m gonna be concentrating on Congress. If you look at the quality of deliberations in the five cases where the United States has had a declaration of war, which is the War of 1812, the War of 1846, the Mexican-American War, the 1898 Spanish-American War, and World War I and World War II, and contrast the quality of deliberation, which is extremely high, the quality of deliberation with the utter lack of deliberation in presidential decisions about going to war, you see why in addition to simply being law-abiding and being constitutional, it’s crucial that this provision be brought back. And we think of the Cuban Missile Crisis as a time when we came closest to nuclear war, but we know that in 1954 Eisenhower seriously considered using atomic weapons in the Taiwan Straits Crisis. He did so again in 1959 in Berlin. We know that JFK three times, according to Robert McNamara, came within a hair breath of all-out nuclear war. So not once, but three times.

We know that LBJ, that Lyndon Johnson considered using nuclear weapons against China to prevent China from getting a nuclear weapon. And Nixon has said that he considered using them four times. Now, what does considering mean? Does it mean a flash going through like a marquee that just goes and disappears? No. It means something much more serious than that. In Nixon’s case, the written record suggests that he sent 18 B-52s loaded with nuclear weapons over Russia towards Vietnam in a faint, but a very dangerous kind of bluff. There is much to say about the contrast between the quality of Congressional deliberations and the quality of presidential deliberations, starting with the fact that when Congress deliberates, it’s open to the public. When the president deliberates, we find out 30 years later. That’s why in the list enumeration I just gave you of presidential contemplation of nuclear weapons, I had to stop at Nixon, because we’re only going to get… There’s this big time lag. But I’m just going to concentrate on one because of the shortage of time.

The lack of dissent in any kind of presidential deliberation and the elaborate dissent in testing that goes on in Congress. Members of Congress consider themselves equal to one another. They are equal to one another. Therefore, they try to test each others’ arguments. Maybe they don’t always have great motives, maybe they’re just showing off. That’s fine. Whatever motive they have for coming up with an alternative explanation to test the reality of the proposition that that country over there did something so bad that we’re now going to go to war against them. There is no equivalent dissent in the presidential deliberations. I read through the papers of both the Taiwan Straits Crisis and the 1959 Berlin Crisis. Here’s the closest thing there was to an act of dissent in the first of those two deliberations, and I’m using the word ‘deliberation’, I should be using a different word. Because it’s not deliberation, for the simple fact that it’s a hierarchical structure, and hierarchical structures can be good for doing some things, like commanding an army once the war is underway. It’s not a good structure for determining whether you’re going to go to war.

The closest thing to an act of deliberation is Secretary of the Treasury Humphrey says, “I just want to ask a question. Are we going to have a hard time explaining to the American people why islands with names they don’t know like Quemoy and Matsu were so important that we dropped an atomic bomb?” Eisenhower immediately scolds him. “A mere look at the maps on the wall will convince you of the strategic importance of these islands, and of dissent.” Secretary Humphrey doesn’t say, “Yeah, but you said something simpler two weeks ago,” which Eisenhower had. Nobody else says, “I had kind of the same question,” and so forth. Now, if we fast forward to 1959, Eisenhower, I should say, in the ’54 Taiwan Straits Crisis, believed he would be impeached if he used an atomic weapon. He says repeatedly, “Because I would be going over the Congress without their consent, I could be impeached, but I’m willing to be impeached if I need to do it.”

By 1959, he seems to have decided that if he just invites a sprinkling of people from Congress to the meeting, maybe it’ll count as Congressional authorization. At any rate, the single moment that’s close to an act of dissent or an act of testing is Senator Fulbright saying, “I just want to make sure I understand what we’re saying here. Are we saying that the GDR could take out the roads in West Berlin and that we might begin to repair that road, and then an East German soldier might shoot a rifle at our repairman, and then we would drop an atomic bomb?” Eisenhower says, “We’re not exactly sure of the steps that would lead to the dropping of the atomic bomb, but we know that one thing is true, that once the crisis is underway, there’s no chance to stop and talk to the UN about it.” So in other words, he doesn’t say, “Senator Fulbright, have you lost your mind? Of course we will not use an atomic weapon against somebody firing a rifle.” He says, “We don’t exactly know the circumstances that will lead to that.”

This kind of provision is absolutely crucial, and starting with the fact that there’s a clear set of sentences on the table that everyone understands is the focus of their deliberation. “Be it enacted by Senate and House of Representatives here assembled, we do hereby declare war.” There’s no equivalent set of sentences in the presidential deliberation, there’s no vote. There’s a conspicuous vote in the case of Congress, everybody has to give their name and vote. We know for all of history that Jeannette Rankin voted no against going to war against Germany and against Japan. The record will stand, there’s no kind of equivalent. And these… I’ll skip the right to bear arms right now, except to say that just as Congress has been made to look like a dead institution once it gave up this huge power, the most important power there is, as Justice Story said in the 19th century, the responsibility for going to war, so in the atomic age, the right to bear arms has looked like a kind of confused and disgraceful provision. The point of the right to bear arms is to say, “However much military power we have, whether zero or a great deal, it’s got to be equally distributed among all of us, because it is the whole population’s responsibility to ratify or not ratify the Congressional declaration of war.”

And if that seems like a militaristic provision, realize that it’s been something that has been celebrated by not only militarists like Mirabeau in the French Revolution, but by pacifists. Gandhi said, “Of all the evil deeds committed by England against India, the worst is the disarming of the population. Give us back our arms, and then we’ll tell you whether we’re going to use them or not.” And of course, Gandhi’s position at that point in his life would be, “We’re not going to use them.” But you don’t even have the power to insist on pacifism if you have no control over the military arsenal. And I said at the outset that… Oh, I should say that if you look at the Constitution, the only thing that requires this double location, other than war making, is constitution making. If you’re going to change the Constitution, you have to have the assembly voting, both houses, and then you have to have a ratification by the population. The same is true of constitutional law, you have to have the authorization from the Congress and then the ratification by the states.

And just to show you how this works, there have been over 5,000 amendments proposed in Congress and only 27 have passed, so it’s a tremendous impediment kind of structure. The Constitution does not want to impede the ratification of judges, it does not want to impede people going to the library, it does not want to impede people love making, it does not want to impede education. It wants to impede one thing, going to war, and we’ve just jettisoned the provisions that do that. And I mentioned at the outset that there are equivalent provisions in the constitutions of some of the other nuclear states, France, India and Russia, which I can come back to, and it’s also the case that when you go to social contract theory, you see these same two gates, the parliament and the population invoked as crucial.

This is a quotation that I very much like from Locke in the second treatise where he quotes, it’s nearly illegible there, Caligula saying that… I’m sorry, where he quotes an observation that Caligula wished that the people had but one neck, that he might dispatch them all at a blow, which is exactly the situation we’re in. “We’re not in a democracy, we’re not even in a governance structure if you’ve got an arrangement, an architecture that allows a tiny number of men in any country to dispatch all of civilization.” Now, that’s the theoretical part of my talk, and we agreed that he would give me a five minute warning, so I could just tell you the concrete part. So here’s the concrete part, and maybe you’ll think of better ways of making this concrete.

My brother, Joe Scarry, and I went to Congress in early September and met with 10 people, three of them in the House of Representatives, we met with the representatives themselves, and seven in the Senate. We asked for two things, first to have a formal hearing on presidential first use in the Congress. All of them were extremely receptive to that idea. They thought it was fresh and creative. We proposed that they actually bring in former presidents to testify, like Clinton and Carter and the two Bushes, etcetera, about how close they had come, etcetera. And there’s one big problem with it. As you may know, you have to be in the majority party in order to institute a formal hearing. So that will await the… With luck, we’ll have a Democratic House, and then it can be instituted. If that doesn’t happen, then they suggested that we could begin to work with some of the possible Republicans to see if they would initiate it.

The second thing we proposed was that they become part of a law case where Congressional plaintiffs would be litigants. And the legislative assistants of the Senators listened, I think, with interest. The people in the House didn’t just listen with interest, they jumped right on and said, “Yes, and could… ” And we had proposed we’d come back in December. “No, particularly if Trump gets elected, come back in November, let’s begin this.” And other people, Kennette Benedict from the Bulletin, former executive director has agreed to be part of this legal team. Owen Fiss, who is a constitutional lawyer at Yale, will be part of the legal team. I’m hoping some of you can suggest other people who would be helpful. Of course, the momentum for that is in part driven by the fear of Donald Trump, even though, as we heard yesterday there’s almost equal reason, or maybe equal reason to be afraid of Hillary Clinton.