In Evie Toombes v. Dr. Philip Mitchell  EWHC 3506 the High Court has given renewed consideration to claims for, so called, “wrongful life”. Can a disabled person ever claim damages on the basis that they would not have been born but for the defendant’s negligence? The Court answered that question with a resounding “yes”.
Where a disabled child would not have been born but for the Defendant’s negligence, it is well established that their parent has a claim for the reasonable costs associated with the child’s disability . That is a “wrongful birth” claim: see Parkinson  EWCA Civ 530. However, the child cannot bring a claim for personal injury on the basis that, with competent advice, their mother would have chosen a termination. In McKay v. Essex Area Health Authority  2 All ER 771 the Court of Appeal affirmed the principle that a disabled claimant cannot sue for “wrongful life”. In Toombes the Court reconsidered the scope of that prohibition. Did it apply only to termination cases? Or did it extend to claims that, absent the negligence, a disabled person would never have been conceived?
Evie Toombes was born with a congenital developmental defect causing spinal cord tethering. Her mother had attended her GP for family planning advice. In breach of duty, her GP had failed to prescribe or give advice about folic acid. The claimant was conceived shortly after this consultation at time when her mother was not taking folic acid. She alleged that with competent care her mother would not have conceived when she did. A different child would have been conceived at a later date after her mother had been increasing her intake of folic acid. This child have been a “genetically different person” to the claimant. The disabled claimant would not have come into existence.
The defendant resisted liability on the basis that this was, in essence, a “wrongful life” case. It raised the same legal and policy objections which vexed the Court in McKay. It was, argued the defendant, “repugnant to the law” to allow the claimant to recover where the correct advice would have led to the conception of a different individual.
Mrs. Justice Lambert held that the issue was essentially one of statutory interpretation. In relation to “occurrences” which “affected either parent of the child in his or her ability to have normal, healthy child” the relevant provision was section 1 (2) (a) of the Congenital Disabilities (Civil Liability) Act 1976. The Act had to be construed in the light of the recommendations of the Law Commission from which the legislation had arisen.
The Judge held that a cause of action under section 1 (2) (a) involved three components:
1. A wrongful act; and
2. An “occurrence” as defined in the Act; and
3. A child born with disabilities.
There was no question that components 1 and 3 were made out. The crucial question was whether there had been an “occurrence”. The Defendant submitted that nothing had happened. There had been no change in the mother’s physiological state. However, the Court held that the Act did not require any change or alteration in the mother’s physiological state for there to be an “occurrence”. This was reflected in the provision in section 1 (3) that there was no need for the mother to have suffered an actionable injury for a lawful claim by a child for pre-natal injury. On the facts of the present case it was sufficient that in reliance upon negligent advice the claimant’s mother had sexual intercourse without the benefit of folic acid supplementation.
Lambert J held that she was not bound by the Court of Appeal’s decision in McKay. The Court emphasised that post-conception cases engaged important issues of principle and policy that were not engaged in pre-conception cases. As Stephenson LJ put it in McKay, in post-conception cases:“the only duty which either Defendant can owe the unborn child … is a duty to abort or kill her, or deprive her of that opportunity”.The Court observed that: “to impose such a duty towards the child, would … make a further inroad on the sanctity of human life which would be contrary to public policy”.Lambert J observed that a negligent failure to prevent a birth of an already conceived child engaged a “range of social and moral policy issues, not least the imposition upon the medical profession of a duty to advise abortion in possibly dubious circumstances”. However, claims based upon a wrongful act before conception raised no such difficulties.
Moreover, there was an important distinction between the relevant statutory provisions in pre- and post-conception cases. Post-conception cases fell under section 1 (2) (b), which were subject to an explicit rider that but for the index negligence the “child is born with disabilities which would not otherwise have been present”. The Law Commission had recommended including such a rider in post-conception cases to import the assumption that but for the negligence the child would have been born healthy (not that it would not have been born at all). However, no such rider applied in pre-conception cases (covered by section 1 (2) (a)). Lambert J held that this was a deliberate statutory distinction reflecting the different social and moral policy considerations in pre- and post-conception cases.
How does causation work in pre-conception cases? Is it sufficient that but for the defendant’s negligence the claimant’s parents would not have had sexual intercourse and the claimant would not have been conceived with disabilities?
Not according to Lambert J. There must be a sufficient causal link between the “circumstances of the sexual intercourse and the disability”. This test would not be satisfied where, for example, a child is born with a disability as a result of negligent but reassuring advice concerning their parents’ genetic status. In that situation the child’s disability has nothing to do with the “circumstances affecting intercourse”: the disability arises from the parents’ genetic status which is unaffected by the index negligence. In contrast, Evie Toombes’ disability resulted from the circumstances of her conception which took place in her mother’s folic acid deficient state.
Following Toombes, there is no longer any bar to “wrongful life” claims where it is alleged that but for the index negligence the disabled claimant would never have been conceived. The only real hurdle is the causation test affirmed by the court. But in the author’s view this is no more than a reflection of the statutory requirement that the negligence must “affect either parent … in his or her ability to have a normal healthy child”. If that ability has not been affected by the index negligence no claim will arise under the Act.
In practical terms, such claimants will no longer need to rely upon their parents bringing claims for “wrongful birth”. The central difference between such claims and “wrongful life” claims is that the mother’s claim is limited to her life expectation rather than that of the (much younger) claimant.
Whether this development is right in principle is likely to divide opinion. Detractors might object that Lambert J’s decision gives rise to an inconsistency. The bar on “wrongful life” claims may be justified on policy grounds. The equal sanctity of all human lives (including disabled lives) means that there should be no actionable “right to remain unborn”. That objection might be said to apply equally to pre-conception and post-conception claims for wrongful life. On the other hand, the value of disabled lives is not an attractive basis upon which to deprive disabled people of the right to compensation. Lambert J’s decision also has the merit of ensuring greater consistency between wrongful birth and wrongful life claims (at least in pre-conception cases). Whether the case goes further, and whether the appellate courts take the same view, remains to be seen.
In the United States, all eyes are on Pfizer and Moderna. The topline efficacy results from their experimental covid-19 vaccine trials are astounding at first glance. Pfizer says it recorded 170 covid-19 cases (in 44,000 volunteers), with a remarkable split: 162 in the placebo group versus 8 in the vaccine group. Meanwhile Moderna says 95 of 30,000 volunteers in its ongoing trial got covid-19: 90 on placebo versus 5 receiving the vaccine, leading both companies to claim around 95% efficacy.
Let’s put this in perspective.
First, a relative risk reduction is being reported, not absolute risk reduction, which appears to be less than 1%.
Third, these results reflect a time point relatively soon after vaccination, and we know nothing about vaccine performance at 3, 6, or 12 months, so cannot compare these efficacy numbers against other vaccines like influenza vaccines (which are judged over a season).
Fourth, children, adolescents, and immunocompromised individuals were largely excluded from the trials, so we still lack any data on these important populations.
But as conversation shifts to vaccine distribution, let’s not lose sight of the evidence. Independent scrutiny of the underlying trial data will increase trust and credibility of the results. There also might be important limitations to the trial findings we need to be aware of.
Most crucially, we need data-driven assurances that the studies were not inadvertently unblinded, by which I mean investigators or volunteers could make reasonable guesses as to which group they were in.
Blinding is most important when measuring subjective endpoints like symptomatic covid-19, and differences in post-injection side-effects between vaccine and placebo might have allowed for educated guessing. Past placebo-controlled trialsofinfluenza vaccine were not able to fully maintain blinding of vaccine status, and the recent “half dose” mishap in the Oxford covid-19 vaccine trial was apparently only noticed because of milder-than-expected side-effects. (And that is just one of manyconcerns with the Oxford trial.)
Neither Moderna nor Pfizer have released any samples of written materials provided to patients, so it is unclear what, if any, instructions patients were given regarding the use of medicines to treat side effects following vaccination, but the informed consent form for Johnson and Johnson’s vaccine trial provides such a recommendation:
“Following administration of Ad26.COV2.S, fever, muscle aches and headache appear to be more common in younger adults and can be severe. For this reason, we recommend you take a fever reducer or pain reliever if symptoms appear after receiving the vaccination, or upon your study doctor’s recommendation.”
There may be much more complexity to the “95% effective” announcement than meets the eye—or perhaps not. Only full transparency and rigorous scrutiny of the data will allow for informed decision making. The data must be made public.
Donald Trump has left the White House. We look back at his tumultuous four years in the Oval Office, judging the worst, and not so worst, things he did, and some thing he didn’t do.
Illustrations by Akira D., age 14, Sydney, Australia.
The Ten Worse Things
1.Mishandling the virus response.
Donald Trump entered the election cycle with a relatively healthy economy and he intended to run largely on that record. And then the pandemic hit. It was the beginning of election year and it threatened to unravel Trump’s strategy.
Clearly out of his depth, Trump at first tried to work with scientists, but the lockdowns that were required as a crude instrument to suppress the virus soon took an enormous economic toll, coming without government support for workers that have been common in other industrial democracies.
Trump inexorably moved away from this strategy and began promoting opening up the economy so that the nation approached numbers that he could again run on.
In this way he put his electoral prospects before the health of the nation as the pandemic spun out of control, making the U.S. by far the worst hit country in the world. His handling of the pandemic appears to have been criminally negligent.
2. Prosecuting Julian Assange.
While the Obama administration empaneled a grand jury and came close to indicting WikiLeaks publisher Julian Assange on espionage charges for publishing defense information that revealed prima facia evidence of U.S. war crimes, it pulled back, realizing that The New York Times published the same material and no reasonable argument could be made why it too should not be indicted.
The Trump administration, however, reversed this thinking and prosecuted Assange after he was expelled from his asylum at the Ecuador embassy in London and requested his extradition from Britain. Trump allowed his administration to cross a red line of press freedom in its quest to punish a journalist for revealing U.S. crimes and corruption.
Trump has imperiled the future of journalism.
3.Moving Israel’s capital to Jerusalem and recognizing stolen territory.
Successive U.S. administrations, despite their support for the State of Israel, never seriously contemplated moving the Israeli capital from Tel Aviv to Jerusalem—Trump came along. The status was long supposed to be left for final negotiations between Israel and the Palestinians.
Trump’s State Department also recognized Israeli sovereignty over the occupied Golan Heights, flying in the face of UN Security Council resolution 242 that the U.S. itself voted for.
The State Department also formally rejected its own 1978 legal finding that Israeli West Bank “settlements” were “inconsistent with international law.”
Trump’s orchestrated recognitions of Israel by Bahrain, Morocco and Sudan further enabled Arab abandonment of Palestine.
4.Ending the Iran Nuclear Deal and assassinating an Iranian general.
The most reckless single action during Trump’s term was to listen to his neocon advisers who talked him into allowing the assassination of Iranian General Qasem Soleimani at Baghdad airport on Jan. 3, 2020, risking a catastrophic war in the Middle East.
It followed numerous attempts by the Trump administration to provoke Iran, presumably into such a war. Trump’s first move on Iran was to pull out of the nuclear deal with Teheran in order to reimpose sanctions, which failed to provoke the uprising his advisers wanted.
Appointing Mike Pompeo, first as CIA director and then as secretary of state, and neocon supremo John Bolton as national security adviser, was one of Trump’s gravest errors, undermining the image he constructed of being a non-interventionist. Bolton and Pompeo were also masterminds of a years-long effort to bring down the elected government of Venezuela.
5. Bombing Syria on false pretenses.
On the night that Trump ordered a missile attack on Syrian territory he was hailed by liberal media, which had spent months delegitimizing him, as “presidential.” Fareed Zakaria said on CNN:
“I think Donald Trump became president of the United States last night. I think this was actually a big moment. For the first time really as president, he talked about international norms, international rules, about America’s role in enforcing justice in the world.”
The problem is that the evidence Trump acted on turned out to be doctored, as revealed by whistleblowers at the Organization for the Prohibition of Chemical Weapons (OPCW).
Trump repeatedly made false claims of victory over the Islamic State in Syria, when it was the Syrian Arab Army and its Iranian, Russian, and Hezbollah allies that were principally responsible for the fighting and defeat of ISIS. The assassinated Soleimani did more to beat ISIS than Trump ever did.
6. Scapegoating immigrants.
From the day in 2015 that Trump announced that he was running, blaming undocumented immigrants became a central feature of Trump’s rhetoric to wrongly blame them for the plight of American workers.
He also announced that day that he would build a border wall and make Mexico pay for it, prompting former Mexican President Vicente Fox to tweet: “Mexico is not going to pay for that fucking wall. #FuckingWall.” In the end Trump only extended parts of already existing barriers and Mexico didn’t spend a peso.
Though the Obama record on undocumented immigrants was a lot tougher, deporting more of them than Trump did, Trump removed many more who had spent as long as 20 years in the U.S. Trump also ordered families to be separated, which was rare in the Obama administration.
7. Duping American workers.
Trump supporters backed their president because they believed his rhetoric that he was their champion who fought for their interests.
But he cut taxes for the rich; largely failed to bring back promised off-shore manufacturing jobs; failed to bring home working class soldiers from forever wars; deregulated business at workers’ expense; saw income inequality widen under his watch; did not support a rise in the federal minimum wage and horribly mismanaged a pandemic that has taken a much larger toll on front-line workers than on stay-at-home professionals.
8. Sending federal troops to put down rebellions.
Trump’s most thuggish side was on full display in his reaction to protests last summer over police killings of unarmed African-Americans. Last July he ordered federal troops in unmarked camoflauge uniforms to Portland, Oregon.
They pulled protestors into unmarked vehicles far from federal territory in what the ACLU called “kidnapping.”
“Authoritarian governments, not democratic republics, send unmarked authorities after protesters,” Sen. Jeff Merkley, a Democrat representing Oregon, reacted in a tweet. The Oregon attorney general sued to have the troops removed.
9. Denying climate change.
Trump is a climate change denier. “It’ll start getting cooler. You just watch… I don’t think science knows, actually,” he told California’s secretary for natural resources.
Trump pulled the U.S. out of the Paris Climate Accord (a less than robust agreement with no enforcement mechanism). He did more damage by a raft of executive orders deregulating fossil fuel industries. He reversed more than 100 rules protecting the environment, including 28 on emissions and air pollution, 12 on drilling and extraction and eight on water pollution.
10. Pardoning of war criminals.
While Trump denied a pardon to Assange, a journalist in prison for publishing accurate information about U.S. crimes, he issued a slew of pardons for his cronies. But even worse, he pardoned four Blackwater contractors who had been convicted of killing 14 unarmed Iraqi civilians in Baghdad. The UN said the pardons violated international law.
In 2019, Trump pardoned Navy Seal Eddie Gallagher, who had been convicted in the United States for posing for a picture with the body of an Islamic State teenager he had just killed with a hunting knife for no reason, according to testimony at his court martial.
Five Things He Didn’t Do
1.Conspire with Russia.
Despite four years and counting of Democratic Party propaganda about Trump conspiring with Russia to steal the 2016 election, a $32 million, 36-month investigation by Special Counsel Robert Mueller found no evidence of any conspiracy.
Shawn Henry, the head of the company CrowdStrike hired by the Democratic Party and Clinton campaign (while keeping the FBI away) to examine the DNC servers declared under oath to the House Intelligence Committee that no evidence of a hack was discovered.
Despite this, the Russiagate saga is still believed by millions of Americans, bolstered by Congressional studies that relied on intelligence briefings. Mueller and Henry were legally obliged to tell the truth. Intelligence agencies aren’t.
Another thing Trump didn’t do was force the declassification of Russiagate documents so we could learn more about how it was cooked up. (Nor did he declassify documents related to the JFK assassination, which he was legally enabled to do.)
2.Wind down wars.
On the campaign trail in 2016 Trump vowed to end America’s forever wars. When he entered the White House he inherited from Obama three wars involving U.S. troops in Syria, Iraq and Afghanistan, and drone wars in Pakistan, Yemen and Somalia.
Trump left the White House on Wednesday with those wars still ongoing. And he dramatically increased drone operations. In a bizarre exchange with a Fox News interviewer, Trump, speaking as though he were an observer rather than the president, said:
“Don’t kid yourself, you do have a military-industrial complex. They do like war… I said I wanted to bring our troops back home, the place went crazy. You have people here in Washington, they never want to leave. … Some day someone will explain it, but you do have a military industrial complex. They never want to leave. They always want to fight. No, I don’t want to fight.”
Some should have told him he had the final say in such things.
3. Start a new war.
While he didn’t end the wars he inherited, Trump did not start any new wars. He came close on Iran however, twice. The first time he said he was ten minutes away and stood down, no doubt with Bolton breathing down his neck. The second time was when he okayed the hit on Suliemani.
While he was too weak to end wars, he did show strength in not invading or bombing any new countries. Because of that alone, he was not as dangerous to the world as President George W. Bush for instance, who illegally invaded a nation that did not threaten the U.S., killing hundreds of thousands of civilians.
4. Push through diplomacy with North Korea.
Trump accomplished a historic, diplomatic breakthrough by becoming the first U.S. president to meet a North Korean leader. Unlike the positive reactions by Democrats to President Richard Nixon’s historic visit to China in 1972, Democrats in the Trump era vilified him for trying to bring peace to the Korean peninsula. Trump’s error was to give in to Bolton (his first error was to hire him) who scuttled the diplomatic foray.
5. Come up with a health insurance plan.
From the 2016 campaign trail to the last debate of the 2020 election Trump promised to deliver a health insurance scheme for the American people that would replace the “horrible” Obamacare. The only major change he made was to eliminate the “horrible, horrible, very expensive and very unfair, unpopular individual mandate” that required everyone to have insurance or pay a penalty. In age of pandemic, failing to provide affordable health care to all Americans was inexcusable.
* * *
Trump’s actions surrounding the events of Jan. 6 are still awaiting adjudication in a Senate impeachment trial and perhaps afterward in a court of law.
Joe Lauria is editor-in-chief of Consortium News and a former UN correspondent for The Wall Street Journal, Boston Globe, and numerous other newspapers. He was an investigative reporter for the Sunday Times of London and began his professional career as a stringer for The New York Times. He can be reached at email@example.com and followed on Twitter @unjoe
Concerned that Israel might be trying to attain nuclear capability, the U.S., in the mid-1960s, insisted on regular visits to Dimona. The visiting experts came away reassured of Israel’s intentions, but not everyone in the U.S. government was convinced.
In a recent op-ed piece in this newspaper, we revealed that Henry Kissinger, then a professor of government at Harvard University, at the conclusion of a private visit in Israel in January 1965, shared with U.S. diplomats in Tel Aviv his conviction “that Israel is already embarked on a nuclear weapons construction program.”
While the record of the discussion does not tell us what impact that observation had on Kissinger’s audience, much less how he had reached that conclusion, as contemporary historians, we know that the statement was in sharp contrast with the U.S. government’s uncertain state of knowledge of the Israeli nuclear program. While suspicions abounded, during this period the U.S. government never had definitive evidence, let alone conclusive proof, that Israel was seeking a nuclear military capability.
Other declassified U.S. documents from the period reveal that senior U.S. officials were puzzled about the state and future direction of the Israeli nuclear complex at Dimona. Suspicions notwithstanding, the most recent prior U.S. inspection at Dimona, on January 30, 1965 – only two days prior to Kissinger’s briefing at the embassy – reported that it found no “weapons-related activities” at the site, and also suggested that the Dimona complex was in a state of institutional slowdown and budget cuts, with morale among staff low.
To assess what the state of U.S. knowledge about Dimona was at the time, one must revisit the barely known U.S. visits to Dimona during the early- to mid-1960s. That requires drawing on a range of formerly classified documents, some of them made available only recently. Thus, it becomes possible to identify, in retrospect, the sources of the American errors in their assessment of the Dimona project. And err the Americans did.
When John F. Kennedy became president, in 1961, he made it a priority to have U.S. scientists visit the Dimona complex regularly to check suspicions that the Israelis aimed to develop nuclear weapons capabilities. As we detailed in Haaretz last year, such visits began in May 1961, but tensions over them began to grow in the spring and summer of 1963, when Kennedy engaged, first, Prime Minister David Ben-Gurion, and then his successor, Levi Eshkol, in a battle of letters intended to force them to accept visits of U.S. scientists to Dimona on a twice-yearly basis. By late summer 1963, Eshkol, who had become premier on June 26, agreed that U.S. scientists would have “periodic visits” to the Dimona plant.
When the U.S. team visited Dimona in January 1964, construction of most of the complex was either complete or near completion. Indeed, the reactor had reached criticality, with its nuclear fuel sustaining controlled chain reactions. That made the visit important for constituting a baseline for future evaluations. The one-day visit lasted about 11 hours. Subsequently, the U.S. Atomic Energy Commission reported to the U.S. Intelligence Board that the “team believes that all significant facilities at this site were inspected.”
The team’s overall assessment was consistent with the way their Israeli hosts characterized the site. Like its predecessors in 1961 and 1962, the 1964 team believed that the Dimona complex was designed to be an advanced national research and training center, civilian in nature, whose purpose – at least then – was to acquire expertise in all aspects of the nuclear fuel cycle. The rationale: Israel was preparing itself for the age of civilian-use nuclear power.
The U.S. team’s readiness to accept the Israeli story was already manifest in the first American visit to Dimona in May 1961. It was then that Israel provided both the rationale and the narrative for Dimona as a peaceful project. Manes Pratt, the center’s founder and director, presented it as an “interim stage” on Israel’s path toward nuclear power. The presentation of Dimona’s master plan as intended for peaceful use only was consistent with Ben-Gurion’s pledges, including one he personally conveyed to Kennedy two weeks later, during their meeting in New York. Ever since, the U.S. teams had continued to view Dimona as essentially a civilian-scientific enterprise, believing that, as the first team reported, following the 1961 tour, “nothing had been concealed from them.”
In 1964, then, the team’s bottom line was, just as it had been in 1961, that the site lacked the necessary facilities – for plutonium recovery and reprocessing – required for a weapons program. As the team put it, “Israel, without outside assistance, would not be able to produce its first nuclear device until two or three years after a decision to do so, that is, the time required to construct plutonium separation facilities and fabricate a device.”
While the 1964 team determined that Dimona’s mission was currently a peaceful one, it left with the impression “that the Dimona site and the equipment located there represented an ambitious project for a country with Israel’s capabilities.” The reference to “ambitious” reflected the Israelis’ open desire to gain self-sufficiency in virtually all aspects of the nuclear fuel cycle.
Nine months later, in late September 1964, the U.S. chargé d’affaires in Tel Aviv was instructed to meet Prime Minister Levi Eshkol, for the purpose of setting a date for the next U.S. visit to Dimona, which the State Department hoped would occur sometime in October. Perhaps trying to avoid an inspection altogether, Eshkol did not respond to the American requests and then bypassed the embassy altogether by dispatching a personal message to President Johnson – via a U.S. go-between, presidential adviser Myer (Mike) Feldman – requesting to postpone the next Dimona visit until after Israel’s upcoming planned election, in November 1965. Eshkol cited concerns that a leak of the visit would undermine his political standing. Somewhat jokingly, Eshkol told Feldman (or wrote to Johnson via Feldman) that “there is no possibility that the Dimona reactor could be converted to military purposes in so short a period of time.”
Eshkol’s request stirred suspicions in Washington. On October 23, National Security Advisor McGeorge Bundy directed the State Department, the CIA and the AEC to explore both the political and technical implications of the request. In a joint memorandum, those agencies did not accept Eshkol’s reasoning. Indeed, State Department officials saw it as a “pretext.”
A key question was whether the Israelis could use the two-year time lag – from January 1964 to January 1966 – to build the “missing link” that would be needed for production of weapons, i.e., a chemical separation plant for producing plutonium at the Dimona site. (Also called a reprocessing plant, such a facility is intended to take irradiated, or spent, uranium rods from a reactor and extract plutonium from them via a series of highly toxic chemical operations.) The technical analysts believed so, noting that the Israelis already had enough uranium on hand that if, during those two years, they operated the reactor at a “power level designed to maximize plutonium production, it could produce 6 to 12 KGs of plutonium.” That would have been enough to produce material for up to “two test devices.”
Shaping the U.S. technical assessment was the explicit – but erroneous – assumption that Israel lacked a chemical separation plant on-site. Creation of such a facility, so the assumption went, would require a new top-level political decision. Once such a decision had been taken, roughly another two years would be needed to build the plant. Thus, hypothetically, if Israel had started with such steps soon after the previous inspection, in January 1964, a plant could have been operational by about January 1966. The only way to determine whether the Israelis had taken any steps toward reprocessing plutonium would be through onsite inspection.
In 1961, President Kennedy learned directly from Ben-Gurion that Israel had plans to build “a pilot reprocessing plant” in three or four years to produce plutonium as a reactor fuel, but the Israeli leader had stressed that the Dimona complex was solely peaceful. At the time of the January 1964 visit, however, the Israelis told the U.S. team that they had delayed indefinitely the plans to construct the pilot plant, although they showed them the space at Dimona where it would have been built.
Given the concern that the Israelis could build a reprocessing plant in the absence of a U.S. inspection, the AEC-CIA-State memo led Undersecretary of State for Political Affairs Averell Harriman to conclude that an inspection should not be postponed. In a memo to Bundy, Harriman dismissed the credibility of Eshkol’s political argument, noting that Ben-Gurion had accepted a U.S. visit in 1961 and that deputy defense minister Shimon Peres was on board with Eshkol’s 1963 decision to allow visits. It is “our inability to fathom the argument for delay” that “heightens our security fears,” wrote Harriman. In contrast to Eshkol, who denied that Israel could “convert Dimona to military purposes in such a short time,” U.S. experts worried about exactly such a possibility. They considered a two-year period without inspections as “highly dangerous.”
Rather than reject Eshkol’s proposal outright, however, Harriman supported Ambassador Barbour’s proposed three-point compromise: 1) to have a U.S. visit in the next month or two, 2) “a waiver on the Israeli commitment [that the U.S. had assumed] of subsequent six-monthly visits until after the 1965 elections,” and 3) “an offer not to communicate the results of the visit to Nasser until after the November 1965 elections.”
On November 25, 1964, a presidential “oral message” based on Barbour’s compromise proposal was transmitted to the Tel Aviv Embassy. While politely acknowledging Eshkol’s domestic problem, LBJ reiterated the importance of “semi-annual visits,” alleging (incorrectly) that they had been agreed to by Eshkol. He suggested having the upcoming visit very soon – “in late November or early December” – but agreed to waive the date of the visit to follow that until after the November 1965 Israeli election. On or around December 6, Eshkol informed Barbour that he had set the weekend of January 30, 1965, for the date of the next visit. By way of explanation, Eshkol invoked his domestic political difficulties – his growing rift with Ben-Gurion – as a reason for the delay, adding, as if to reassure Washington that “We cannot build a nuclear weapon in two months.”
The State Department instructed Barbour to press for a well-defined protocol for the January visit. Besides a minimum of two days onsite, the U.S. team should have “full access” to the reactor and other facilities as well as their operating records. In addition, the team had to be able to “make independent measurements as may be necessary to verify production of reactor since previous visit.” Finally, the team should be able to “verify location and use [of] any plutonium or other fissionable material produced in reactor.” Such ground rules would have put the U.S. team in a far better position to learn what exactly was going on at Dimona.
But when Barbour presented the terms to Eshkol, the latter rejected them outright, arguing that they would put the visit on a new basis, making it look like an “inspection” and raise issues “of prejudice to Israeli sovereignty.” Refusing to agree to a full two days onsite, the Ambassador reported that Eshkol emphasized that the “visit must be fundamentally on same basis as previous ones, that is, team must be invited guests of Israel and not ‘inspectors.’” While this tied the hands of the U.S. inspectors, Washington did not push back.
The U.S. 1965 inspecting team comprised three senior government nuclear experts from the AEC and the Arms Control and Disarmament Agency: Ulysses M. Staebler, Floyd L. Culler and Charles McClelland. They received a briefing at the State Department on January 15, where they were told that their mission had both intelligence and diplomatic ramifications. With the apprehension about a prospective Arab-Israeli arms race, evidence that Dimona was for peaceful purposes could be used to reassure Egyptian president Nasser. The inspection could also put in perspective the varied reports about suspicious developments concerning the Israeli nuclear program, including that the complex had been “secretly expanded” since the 1964 inspection, Israel’s purchase of uranium oxide (yellowcake) from Argentina, and the departure of French technicians from the site, all of which U.S. intelligence took as facts.
The visit to Dimona took place on Saturday, January 30, 1965, a little more than a year after the preceding one. The scientific host of the team was the nuclear physicist Igal Talmi, who escorted the team during its entire three-day stay in Israel. According to the U.S. documents, the team also visited the Weizmann Institute, the small reactor at Soreq and the Negev Institute for Arid Zone Research. During the 10 hours that the team spent at the Dimona complex, they were joined by the director, Manes Pratt, as well. The visit was conducted under significant restrictions, even more severe than those of a year earlier. Not only was the time at Dimona cut to just one day, but unlike in the previous year, the inspectors could not continue the visit into Saturday evening. The Israelis cut short the visit in the late afternoon, preventing the inspectors from seeing the inside of all the buildings on-site.
Within five days, on February 5, 1965, the State Department sent National Security Adviser Bundy a preliminary draft of the team’s report, along with the Department’s take on the findings. According to the report, the team agreed by consensus that, despite the restrictions, “the visit provided a satisfactory basis for determining the state of activity at the Dimona Site.”
The fundamental findings were twofold and unanimous. First, the Dimona Nuclear Center was in a state of slowdown and uncertainty, if not in a real institutional crisis, as the Israeli government had recently suspended its earlier nuclear energy masterplan, pending certain decisions.
The context of the institutional slowdown, as explained to the American team, seemed to make sense. During Eshkol’s state visit in June 1964, President Johnson had invoked the idea that Israel join a “Water for Peace” project, a new joint venture through which the U.S. would provide Israel with a new type of low-enriched uranium reactor that could produce electrical power to be used for desalinization. It appeared that this could get Israel both a nuclear power reactor and a desalinization plant at half price. Putting that new plan into effect would require the suspension of the original Israeli nuclear power masterplan, which was based on natural uranium fueled reactors. Recall, Dimona was presented to the American teams as an interim step toward that nuclear vision. Thus, when in early 1965, the “Water for Peace” project was being studied, Israel had ostensibly slowed down or in some cases even suspended some of the anticipated research activity at Dimona.
The U.S. team was told (and shown) that several key components (“institutes”) of the Dimona complex were either still under construction, or had been, or would soon be, placed in a standby mode. The report cited Dimona director Pratt telling the team that “there is no approval of a research and development program or of a budget for the fiscal year starting in April 1965.” In effect, the very original rationale for the creation of Dimona as presented to the U.S. may have become obsolete due to the new interest in the “Water for Peace” desalination project. If Israel took that new path, Dimona would have to reinvent its raison d’être.
While the slowdown was real enough, its purpose was meant to enhance the basic Israeli cover narrative, namely, that Dimona was a civilian research center intended to support a broader and new nuclear power program. At the end, the “Water for Peace” project did not go anywhere, to a large degree because Israel could not reconcile Dimona with a large nuclear energy project and because Israel’s commitment to Dimona as a security project was much stronger than its interest in nuclear energy.
The second element of the U.S. team’s conclusions from the visit was that “nothing [at the Dimona site] suggests an early development of weapons program.” Like all its predecessors, the 1965 team determined that the Dimona complex lacked key technical components that would be required for a weapons program, most notably a reprocessing plant. Hence, the team’s judgment was that there was “no near-term possibility of a weapons development program at the Dimona Site.” Among the technical findings was that Israel did not have the facilities to process more than three tons annually of uranium and had “no capability …. to produce and recover [plutonium].”
Despite this, the AEC team urged continued vigilance. Notwithstanding the slowdown, the team remained impressed by the site’s potential, believing that it had “excellent development and production capability and potential that warrants continued surveillance at intervals not to exceed one year.”
The draft summary (the full report remains to be declassified) did not even hint at the possibility that the Israelis may have been concealing anything during the visit. Notably, the available documents show that this possibility – deception and concealment – had been raised in the interagency technical meeting in Washington that preceded that visit. Nonetheless, in retrospect, it appears that that is exactly what was going on during this inspection and the others. According to American journalist Seymour Hersh, in his 1991 book “The Samson Option,” prior to the Dimona visits, Israel implemented a large-scale deception operation that amounted to concealing the reprocessing plant under construction and continual misrepresentation of the reactor’s purposes.
In any event, the apparently encouraging findings of the inspection helped the State Department decide that the U.S. could accede to Eshkol’s request to postpone “the next agreed six-monthly inspection until after the parliamentary election in November this year.” While this phrasing was inaccurate, as Israel had never formally agreed to biannual U.S. inspections, it clearly reflected a certain sense of relief about Dimona. Nevertheless, the next paragraph indicates that a sense of uncertainty about Israeli intention lingered. It stated that “we [Department of State] remain concerned that Israel may have succeeded in concealing a decision to develop nuclear weapons.”
While the AEC inspectors appeared reasonably confident in their findings, they took it for granted that continued inspections were necessary. President Johnson, like President Kennedy before him, insisted on the AEC inspections as an essential tool for verifying Israeli leaders’ pledges that the Dimona complex was meant for peaceful purposes only.
Shaping the drive for inspections were lingering doubts about Israel’s ultimate intentions. As noted earlier, key officials pointed to warning signs, such as the yellowcake purchases, that the Israelis were up to something. Deputy Assistant Secretary of State for Near East and South Asian Affairs Rodger Davies, and science attaché physicist Dr. Robert Webber at the U.S. embassy in Tel Aviv, among others, suspected that Dimona was intended for military security, not scientific research, and that Israel may have secretly decided to develop a weapons capability. They had abundant circumstantial evidence to support those suspicions, but none of them seemed to have a clue about the missing link to weapons, the hidden chemical separation plant, although Webber raised the possibility that the Israelis had undertaken some such activity, somewhere. And he insisted that the AEC inspectors were greatly mistaken to discount Dimona’s potential as a military project. Whether either Webber or Davies was aware of Kissinger’s embassy briefing remains unknown, but knowledge of it would have doubtless increased their doubts.
Suspicions about how Israel would use the yellowcake persisted, not least because during the inspection Israeli officials treated questions about “procurement of uranium from abroad ‘outside the scope of the visit.’” Another source of concern was the discovery by U.S. intelligence that Israel had secretly contracted with a French aviation company, Marcel Dassault, for development and production of a two-stage, nuclear-capable, short-range ballistic missile.
The uncertain knowledge of the mid-1960s sharply contrasts with the more certain situation of the 1970s, by which time U.S. intelligence had concluded that Israel had nuclear weapons. That suggested that the AEC assessments of Dimona in the 1960s were incorrect, indeed altogether misleading. That became manifestly true in 1986 when the real secrets became publicly known through the revelations of whistleblower Mordechai Vanunu, which were confirmed by French sources and published in the London’s Sunday Times.
A key revelation in 1986 came from Francis Perrin, the French high commissioner for atomic energy from 1951 to 1970, who acknowledged to the Sunday Times that the Dimona nuclear complex had been conceived from the start as a complete and dedicated nuclear weapons infrastructure. It included a plutonium-producing reactor and a large underground chemical reprocessing plant for extracting weapons-grade plutonium from the reactor’s irradiated rods.
According to French journalist Pierre Pean, in his book “Les Deux Bombes” (Paris, 1982), the construction of the chemical reprocessing plant was completed, with some delays, as the final stage of the Dimona complex, around 1965. According to Pean, Israel started plutonium production in late 1965 or 1966. The reprocessing plant was the crown jewel of the entire Dimona project. We also know, from a document published last year by the authors of this article as part of an academic paper, that Prime Minister Eshkol shared with his senior cabinet colleagues in September 1963 how fearful he was that the reprocessing plant, then under construction, might be discovered by visiting American scientists. That did not happen. None of the nine AEC teams that visited the Dimona site between 1961 and 1969 was ever aware of the super-secret six-story underground facility.
From today’s perspective, more than half a century later, the question of why the United States failed to discover the secret plant right under its nose remains intriguing. We suggest that the prime reasons for that American failure were varied. First and foremost, U.S. intelligence failed to discover what exactly France – both its government and its industry – had agreed to supply to Israel. To be fair, it is not that the U.S. did not try, but the French would share only partial and misleading information with the Americans. French authorities supplied the Dimona package that they had made available to Israel, supported by ample technical assistance. Few in the French government, and no Americans, knew that the government-to-government deal, as published by Pean, tacitly allowed a reprocessing plant, supplied directly by the French firm Saint-Gobain, which specialized in chemical and nuclear-related products. While the CIA was familiar with Saint-Gobain’s work for the French nuclear program, whether it learned of its secret assistance to Israel prior to 1986 remains unknown.
In the absence of accurate and complete intelligence on the French role, the United States had to rely on the information that it could collect in Israel, whether openly or covertly. Here lies the second source of the U.S. failure: the political inability or unwillingness to ensure that the inspections were comprehensive enough to detect suspicious activities.
The policy and intelligence failures were intertwined. Washington viewed physical access to Dimona as essential both for verifying Israeli pledges about the plant’s civilian mission and for ensuring others that Israel did not change its declared course and go nuclear. In retrospect, however, this approach was too trusting, perhaps even naive. Unless the inspection visits were grounded in a firm protocol, Washington could not deter or prevent a determined state like Israel from going nuclear.
A related problem was that U.S. inspectors accepted too uncritically the Israeli claim that Dimona was a step in a plan to introduce nuclear power to Israel. After all, did an “interim stage” civilian nuclear project like Dimona really make sense, technologically and/or financially, for a small and resource-limited country like Israel? Was it sensible for a country that had recently inaugurated its first nuclear reactor (in Soreq) to initiate a larger nuclear project, described as an interim step, when it had not yet approved a comprehensive plan for nuclear power? The AEC scientists should have given that story a far more skeptical analysis.
Based on the declassified material available to date, one can summarize the American conventional wisdom in the mid-1960s as follows: If Israel decided to change course and to embark on nuclear-weapons production, it would need to build a chemical plant for the extraction of plutonium, and that would require a political decision. The U.S. was reasonably confident that it could detect such a decision, even if it was made in secrecy. This overconfident and somewhat naive working assumption was fundamental to U.S. thinking at the time.
Missing from the American intelligence analysis of the period were not only basic facts about the French role, but also a lack of understanding – and appreciation – of how far the Israelis would go in concealing their progress. It is worth recalling that Hersh, in “The Samson Option,” cited anonymous Israeli sources who told him that the visitors to the Dimona reactor were shown a fake control room that reflected misleadingly the reactor’s operations at the time. Even if the inspectors were not as trusting as they appeared to be, the available evidence does not suggest that they had any understanding that Israel was willing to undertake a sophisticated large-scale effort to conceal what it was doing.
The U.S. might have had a fighting chance to see through the concealment activities and ascertain Israel’s true intentions if it had been willing to wage a forceful political battle for a thorough inspection. A more accurate state of knowledge on the U.S. side might have been possible if the Israelis had been forced to accept the ground rules that President Kennedy had envisioned in his spring-summer 1963 series of letters to Ben-Gurion and Eshkol, and which were subsequently reiterated and expanded by the State Department in late 1964. The measures they called for included two days of full access to the Dimona facility, the opportunity to gather samples, and the ability to verify the use and location of any plutonium produced by the reactor. Such an extensive survey would have been similar to the International Atomic Energy Agency (IAEA) reactor inspection system that, beginning in the 1970s, became part of the Agency’s standard inspection protocol for enforcing the NPT and could have helped identify any suspect activities.
The Israelis rejected outright the possibility of thorough and rigid inspections. As noted earlier, Eshkol objected to the proposed ground rules as an intrusion on Israeli sovereignty. Indeed, Israel refused to consent to any fixed protocol – insisting that the arrangement was about “scientific visits” by friends, not “inspections” – and thus was willing to rely only on non-written past practice. Taking no for an answer, and effectively allowing its hands to be tied behind its back, the Johnson administration was unwilling to use its political leverage, which could have been considerable, and refrained from a battle royal with Eshkol and the Government of Israel. Whether President Johnson ever considered such a decision remains unknown. As important as nonproliferation was to Johnson and his advisers, in practice they often found it necessary, as they did in this instance, to balance it against other, no-less-important political, diplomatic, and security considerations.
Upon reflection, the U.S. failure to discover Dimona’s underlying secrets – that it was, as the authors of this artice have argued in the past, a military project and that there was a secret plutonium plant – was practically unavoidable. U.S. intelligence had not detected the scope of the French-Israeli deal. Policymakers avoided going to the mat for the sake of a comprehensive inspection. Moreover, Washington failed to understand Israel’s national security culture. That is, the U.S. government did not comprehend that Israel was so committed to the nuclear project that it was willing to wage a complex operation to see it through.
What Henry Kissinger told U.S. diplomats in 1965 – that Israel had a “nuclear weapons production program” – amounted to a prediction. In 1967, during the Six-Day War, with the U.S. still in the dark, Israel secretly assembled two nuclear explosive devices, just in case, an event reported five decades later by The New York Times.
It was in the following years that Washington began concluding that Israel had the bomb. President Nixon’s meeting with Prime Minister Golda Meir in September 1969 made the United States complicit in Israel’s policy of nuclear opacity. Thus, when Henry Kissinger became Nixon’s national security adviser, in January 1969, he was already aware of Israel’s alleged weapons program, which has remained as much an official secret in Washington as in Tel Aviv, although it remains the “worst kept secret.”
Avner Cohen is professor of nonproliferation studies at the Middlebury Institute of International Studies at Monterey (MIIS) and the author of “Israel and the Bomb.” William Burr, a Senior Analyst at the National Security Archive, George Washington University, directs its Nuclear Documentation Project.
Much ink has been spilled about apprehensions in Israel and the West that Iran could develop nuclear weapons, prompting calls in American, Israeli, and now even Arab circles for the application of military force to stop the mullahs. Yet, there is another, more immediate nuclear-related danger to the Jewish state that has received far less attention: the possibility that Israel’s adversaries could use more easily acquired conventional weapons to force a deadly release of radioactivity from Israel’s plutonium-production reactor at Dimona.
In Middle Eastern tit-for-tat, the concern generated currency when the London Sunday Times reported in late 2007 that Israel went on “red alert” 30 times as anxiety grew that Damascus would retaliate against Dimona for Israel’s September 6 strike on a suspected Syrian nuclear site. On Israeli state television, a commander of a Patriot air defense missile battery stated, “Every civilian aircraft en route from Cairo to Amman, or from Jeddah to Cairo and vice versa, which deviates even slightly from its route, sets off an alarm and risks a missile being fired.”
Israel’s fear reflects the Middle East’s unique history: since World War II, the only military strikes on nuclear facilities have taken place in the region. In 1980, Iranian aircraft attempted to destroy Iraq’s Osirak reactor but missed the mark, hitting adjacent structures. In June 1981, Israel finished the job in a dramatic cross-regional raid. During the Iran-Iraq war in the 1980s, Iraqi aircraft mounted multiple attacks on Iran’s two partially constructed power reactors at Bushehr. In 1991, during the Persian Gulf War, the United States bombed a small Iraqi research reactor at Tuwaitha, and Saddam Hussein launched several Scud-B rockets toward Dimona. In 2003, a U.S.-led coalition invaded Iraq to halt its presumed nuclear, chemical, and biological weapons programs.
Yet, in no case did these raids on nuclear facilities cause radiological consequences. Either the plants were still under construction (Osirak and Bushehr), had radioactive elements removed prior to the strike (Tuwaitha), or the attacker simply missed the mark. The outcome of a successful strike on the decades-old Dimona reactor could be different. Today, multiple factors may drive Israel’s adversaries to hit the plant: its perceived centrality to Israel’s nuclear weapons program, revenge for Israeli strikes on neighboring states, Dimona’s symbolic significance as one of the Jewish state’s most valued assets, and, most disturbingly, an attack to intentionally release the radioactive contents of the plant as a weapon of war or terrorism.
This raises a question: given the likely and serious consequences of a successful attack for Israel’s public health, economy, and society, should Israel close Dimona? Does the centrality of the reactor for Israel’s nuclear arsenal argue otherwise? On balance, shutting down or mothballing the Dimona reactor would reap both important security and political benefits.
“I want to thank the Arms Control Association … for being such effective advocates for sensible policies to stem the proliferation of weapons of mass destruction, and most importantly, reduce the risk of nuclear war.”– Joseph Biden, Jr. Senator January 28, 2004
Radiological Consequences of an Attack on the Dimona Reactor
Situated in a relatively remote desert at the Negev Nuclear Research Center, the Dimona reactor, also referred to as IRR-2, lies approximately 25 kilometers west of Jordan, 75 kilometers east of Egypt, and 85 kilometers due south of Jerusalem. Dimona is a heavy-water-moderated, natural-uranium-fueled reactor. Although the International Atomic Energy Agency (IAEA) estimates its power at 26 megawatts thermal (MWt), most independent analysts believe that in the mid-1970s Israel upgraded the installation to generate between 70 and 150 MWt. That output makes it not only the region’s largest reactor for the moment-once Iran’s Bushehr atomic power plant goes online, it will have more than 20 times the power-but the sole evident producer of plutonium and tritium for nuclear weapons.
Although Israel neither confirms nor denies its atomic arsenal, experts generally accept that it has been a nuclear-armed state for several decades. Its first prime minister, David Ben-Gurion, inaugurated the enterprise to compensate for the country’s strategic vulnerability, a fledgling army, and the West’s unwillingness to enter into a formal alliance to defend Israel’s survival. Estimates of the nuclear arsenal range from 75 to 200 weapons, comprising bombs, missile warheads, and possibly tactical weapons. Since it went into operation in the mid-1960s with initial French assistance, the reactor has produced plutonium and tritium for these nuclear weapons, which Israel has fabricated in a nearby underground chemical separation plant and a nuclear component fabrication facility.
To model the consequences of a successful missile attack on the installation, the U.S. Department of Defense’s Hazard Prediction and Assessment Capability code (HPAC) was utilized. Described as a counterproliferation and counterforce modeling tool, HPAC estimates the effects of hazardous material discharges and of the use of weapons of mass destruction, including casualties. HPAC’s Nuclear Facility model calculates the properties of radioactive material released during incidents at nuclear reactors and related facilities. For Dimona, HPAC provides an input data file that lists the reactor core inventory of radioactive materials (fuel and fission products) for each MWt of operating power.
Given the uncertainties in the precise operating power of Dimona, separate HPAC calculations were performed assuming the reactor generated 26, 70, or 150 MWt, although the lower power level of 26 MWt would have produced only plutonium for a few dozen nuclear warheads over Dimona’s lifetime, a figure well below Israel’s presumed weapons inventory. To estimate the radionuclide release from a military strike, the first day of the April 26, 1986, Chernobyl Unit 4 accident served as a model, as characteristic of a catastrophic incident involving an explosion, fire, and the bypass of containment (Chernobyl Unit 4 did not have a containment structure). The consequences were scaled to the much smaller release Dimona could emit. It was hypothesized that a military strike could breach the reactor’s containment dome, which is visible in ground photographs and satellite imagery; disperse the heavy water surrounding the reactor core; and create explosions and fire involving the nuclear fuel elements, ejecting radioactive material into a puff carried away from Dimona by prevailing winds.
In a military strike, like a reactor accident, two key radionuclides, iodine-131 and cesium-137, would constitute important components of the public impact of elevated cancer risk. Although a short-lived element with an eight-day half-life, iodine-131 poses unique, early health concerns because it concentrates in the thyroid. Cesium-137, with a 30-year half-life, poses a longer-term “ground shine” risk to populations resident or working in contaminated zones. The risk increases with the concentration of the element.
Of the many release scenarios HPAC could generate, three are displayed to communicate a reasonable range of outcomes. The chosen maps also illustrate the broad impact of different reactor power levels and seasonal prevailing winds. In general, estimates show that large populations could receive acute low doses within the first 24 hours, at or below the average total annual dose from natural background radiation and medical procedures. Nevertheless, these low doses slightly increase the cancer incidence. Closer to the Dimona reactor, the release could generate substantially higher doses, risking the health of the nearby communities and the thousands of workers at the site, in addition to the emergency response teams who, at Chernobyl, bore the brunt of the most acute radiological impacts.
Figure 1 (see print edition) characterizes a November attack on the reactor operating at 150 MWt carrying the radioactive plume in the northwesterly direction over the city of Dimona (a community of 30,000 inhabitants) and then toward Beersheba before scattering toward Israel’s heavily populated coastal plain housing approximately four million inhabitants. Statistically, this scenario could generate several hundred cancers above the expected natural rate for the exposed population. In a scenario exhibiting lesser impacts, were the reactor operated at only 26 MWt, an August attack would produce a narrower plume concentrated within Jordan’s thinly populated south. Finally, in a February attack with the reactor generating 70 MWt, contaminants would settle in the West Bank. This scenario predicts the maximum number of excess cancers, exceeding 600 at the 70 MWt level and 1,000 at 150 MWt level, because of the more concentrated populations and collective doses that population would receive.
Given the secrecy shrouding Dimona, the maps and table provide rough probabilities that change with the input of different variables. Not factored into the calculations are such complicating but unascertainable factors as the age of the fuel (fresh fuel will have a lower buildup of radioactive elements, and as a matter of course, Dimona may not accumulate two-year-old fuel similar to that that blew apart at Chernobyl); reductions in the quantity of iodine-131 in the reactor core were the plant shut down for weeks prior to an attack; operations at very low power to produce tritium; or the possibility that an attack would so fracture and scatter the reactor core that the absence of concentrated fires would diminish the release. Nor, due to the absence of data, do the calculations include the potentially significant contributions that could come from on-site spent fuel and high-level waste from reprocessing or separated plutonium. The modeling does suggest that were the Jewish state’s adversaries bent on affecting the greatest number of Israelis, they would take advantage of late fall winds. To wait for winter would risk contaminating Palestinian communities in the West Bank.
In sum, because of Dimona’s relatively small size and remote location, only in the worst cases are populations in the hundreds or more found to be at risk, distributed over a large fraction of the Israeli and Palestinian population. Israeli authorities have recognized the jeopardy to communities near Dimona in response to reactor accident concerns, particularly the vulnerability of the thyroid to iodine-131. To address the problem, they have distributed potassium iodide tablets to the nearby towns of Aruar, Dimona, and Yerham to block the absorption of iodine-131.
Risk and Response
These findings suggest that a successful strike on an operating Dimona reactor that breached containment and generated an explosion and fire involving the core would present effects similar to a substantial radiological weapon or dirty bomb. Although consequences would represent only a small fraction of the Chernobyl release, for Israel, a country the size of New Jersey with a population of some six million, the relative economic dislocation, population relocation, and immediate and lingering psychological trauma could be significant.
Israel has not been unmindful of these challenges. From the outset of its nuclear program, it acted to reduce the dangers. It placed the reactor in the Negev. It placed critical facilities for manipulating nuclear material in deeply buried cells. It heavily defended the installations with anti-aircraft and missile defenses. For some years, however, a hubris crept into the evaluation of the plant’s vulnerability. Following decisive military defeats of its neighbors in past wars, some Israeli advisers disdained their ability to strike the plant. For example, in May 1984, after I published a book about the consequences of military attacks on nuclear power plants, an Israeli intelligence officer came to the United States to inquire about the book’s conclusions regarding reactor vulnerability as Israel planned a nuclear power plant. The officer belittled the peril, arguing that no Arab air force had ever overcome Israeli air defenses and none ever would.
At that time, history provided odd support. Although Soviet reconnaissance aircraft flew over the reactor in May 1967 without incident, during the June 1967 war, Israel shot down one of its own Ouragan jet fighters when it strayed over the facility. In 1973, Dimona’s defenders downed a wayward Libyan civilian airliner heading for the reactor, killing 108 people. The 1991 Gulf War upset whatever solace Israel could take from the past. Iraqi Scud missiles rained on Tel Aviv, and one came close to striking Dimona. Hezbollah’s bombardment of northern Israel in 2006 further demonstrated the country’s vulnerability to crude rocket attack. Although Israel’s Arrow ballistic missile defenses, which surround Dimona today, may be superior to the Patriot system that failed in 1991, Syria’s more advanced Scuds and Iran’s Shahab-3 rocket present a more capable challenge than Saddam’s projectiles.
Furthermore, interest in “taking out” the installation, which reached an early pinnacle during Gamal Abdel Nasser’s Egypt in the 1960s, has now renewed. Following Israel’s September 2007 strike, Syrian legislator Mohammad Habash said, “If Syria feels threatened by Israel, it will be hard to stop our missile operators from responding to the Israeli aggression by attacking the Dimona nuclear reactor.” Iranian General Mohammad Baqer Zolqadr remarked in 2004 that “[i]f Israel fires one missile at Bushehr atomic power plant, it should permanently forget about Dimona nuclear center, where it produces and keeps its nuclear weapons, and Israel would be responsible for the terrifying consequence of this move.” The March 2008 announcement by Israeli defense officials that Hezbollah had acquired rockets with the range to hit the plant raised further concerns that Dimona continues to be in the crosshairs of Israel’s enemies.
The Costs and Benefits of Shutting or Mothballing Dimona
Given mounting regional tensions and the capacity of Israel’s adversaries to strike Dimona, does prudence dictate closure of the plant? Certainly Israel would sustain costs. Its capacity to produce weapons-useable plutonium and tritium would end. Absent an enrichment program or nuclear-weapon design improvements, closure would freeze the total size of the Israeli nuclear arsenal based on its current inventory of plutonium. Israel’s supply of tritium, which is a radioactive isotope of hydrogen with a half-life of 12.5 years, would decrease, but that element could be produced in an accelerator.
Israel could manage these challenges and take advantage of substantial benefits by closure. Dimona has produced all the plutonium Israel’s armed forces could possibly utilize. The numbers of nuclear weapons in the arsenal, even if the weapons were not tritium boosted, suffice to destroy any collection of adversaries multiple times over and are therefore sufficient for deterrence. Closure would eliminate a radiological hostage and a reactor, which is among the world’s oldest and which has already suffered minor mishaps, that Israel should shut because it is nearing the end of its life expectancy of safe operation.
In addition, Israel could derive political and strategic benefits. It could demand compensatory security guarantees from the United States and NATO. More broadly, in the public relations war, it could claim that closure marks a step toward a regional fissile material cutoff treaty in the effort to demonstrate its commitment to reducing regional nuclear tensions.
Alternatively, the Jewish state could mothball the plant, removing all radioactive elements from the site while keeping the facility in cold standby in the event circumstances required a restart.
Israel may conclude that avoiding the squeeze a shutdown would impose on weapons production outweighs the environmental threat posed by a successful attack. It may bank on the effectiveness of its defenses, the ineffectiveness or poor accuracy of enemy munitions, or the reluctance of adversaries to risk contamination of Arab populations in Jordan and the West Bank. It may also take solace from the failure of adversaries to effectively attack the plant in past conflicts. Were Israel to anticipate a strike, it could shut the plant and, as Iraq did in 1991, remove the “hot” material to a safe location. A shutdown alone could reduce the inventory of iodine-131.
Public banter about striking Dimona and Iran’s nuclear plants raises a host of other troubling questions. Looking to the future, should atomic installations expand through the Middle East-Iran’s Bushehr power reactor will be the first to fire up, possibly later this year-Israel’s neighbors will see in the mirror their own reactors’ vulnerability to military attack. Like Israel, they may take comfort in reactor defenses. Additionally, similar to India and Pakistan, they could replicate the 1990 treaty that the South Asian adversaries negotiated forbidding attacks on nuclear sites.
Nonetheless, such an accord, defenses, or mutual vulnerability acting as a deterrent to attack would not provide a guarantee that plants will be immune from military or even terrorist strikes in such an unstable part of the world. This ought to raise the question whether the planned growth of plants, many orders of magnitude larger than Dimona, should go forward. Until the region resolves its political differences, nuclear energy planners ought to take a second look. In the meantime, Israel would do well to reflect whether, given its own reactor vulnerability, keeping Dimona operating is worth the risk. I believe it does not.
The Radiological Dangers of an Israeli Attack on Iran’s Nuclear FacilitiesBennett RambergIn a region where an “eye for an eye” has defined adversarial relations for millennia, it merits examining what response Israel could exact for an attack on Dimona. Although Syria has the capacity to strike the plant, which it has threatened to do, Syria’s proximity to the Jewish state makes it an easy target for reprisal. Given Israel’s September 2007 attack on Damascus’s suspected nuclear site, Israel would have to apply any revenge on Syria to other, non-nuclear targets.Iran, Israel’s most capable adversary, is another matter. Clearly, a successful blow on Dimona by Iran or Hezbollah surrogates would generate an Israeli public outcry for revenge even were Tehran’s attack in response to Jerusalem’s destruction of Iran’s enrichment facilities.Although Iran operates several small nuclear research reactors, two larger plants would dominate the attention of Israel’s military planners, the 40-megawatt thermal heavy-water reactor at Arak and the 1,000-megawatt electric Russian-supplied nuclear power plant at Bushehr. The Arak installation shares many of Dimona’s features as a dedicated plutonium generator but is years away from completion. Obviously, were Israel to strike before the plant commenced operations, as it did in the 1981 bombing of Iraq’s Osirak reactor, no radiological consequences would ensue.Bushehr is quite another matter. The plant may go critical in a matter of months. It is evidently a nuclear power plant, the first of many Iran plans to build over the next decades. Nonetheless, some warn that it could serve as a plutonium mine for nuclear weapons despite the inefficiency of civil-reactor plutonium for bombs. Iran could have such an option once its enrichment program is up and running. At that point, it could rely on its own fuel rather than its current practice of relying on Russian fresh fuel. Moscow has insisted that it will only provide such fuel if the spent fuel and its plutonium content is remitted back to Russia.Relying on its own fuel would allow Tehran to conduct reprocessing without international encumbrance, unless it violated International Atomic Energy Agency safeguards. This risk could also make Bushehr a target for Israeli military action.Given Bushehr’s size and some recent analyses concluding that Israel has the capacity to destroy any Iranian nuclear plant, the radiological releases from Bushehr’s destruction could approach the scope of Chernobyl. Fortunately, however, the plant’s remote location along the Persian Gulf coupled with prevailing northwesterly winds would carry the most concentrated radioactive plumes south into lightly inhabited parts of Iran and the waters of the gulf, likely limiting public health impacts.Still, as one of the most valued assets in Iran’s economy and one that could contaminate vast regions of the Iranian countryside and beyond, Tehran could not treat the plant’s loss lightly. Arguably, the radiological mutual hostage relationship in which Israel and Iran would find themselves could discourage attacks. India’s decision not to strike Pakistan’s nuclear weapons complex, fearful that retribution would include attacks on its civil nuclear sector, and the subsequent agreement the two countries negotiated provides a precedent that Israel and Iran should consider.ENDNOTES1. Victor Gilinsky, Marvin Miller, Harmon Hubbard, “A Fresh Examination of the Proliferation Dangers of Light Water Reactors,” Nonproliferation Policy Education Center, October 2004.2. Whitney Raas and Austin Long, “Osirak Redux? Assessing Israeli Capabilities to Destroy Iranian Nuclear Facilities” International Security, Vol. 31, No. 4 (Spring 2007).3. George Perkovich, India’s Nuclear Bomb (Berkeley, CA: University of California Press, 1999).
Lessons From Chernobyl for DimonaBennett RambergThe 1986 Chernobyl accident marks the most significant release of radiation from a nuclear reactor mishap to date. The radiological consequences of a successful military strike on Dimona, a reactor with an output of well under 5 percent that of the Soviet plant, would pale in comparison. Still, because a successful attack could generate harmful radiological contamination, Israel could learn much from how the Soviet Union and successor states coped with the tragedy.Similar to Chernobyl, the heaviest radiological consequences likely would fall within the immediate vicinity of Dimona, although downwind hotspots could emerge. At Chernobyl, Soviet emergency responders performed heroically, but they were ill prepared to deal with the disaster. Many hours elapsed before authorities provided radioiodine blocking tablets to nearby populations. That interval increased the number of thyroid cancers. The additional 40 hours it took authorities to evacuate the nearby community of Pripyat and the weeks it took to remove 100,000 inhabitants residing in more distant but heavily contaminated zones added to the problem.Still, postmortem analyses concluded that what evacuation did occur “substantially reduced radiation exposures and the radiation-related health impacts of the accident.”Israel can learn from this finding. It should have in place sheltering and evacuation protocols for all potential radiological impact zones. Future national civil defense exercises, such as the April 2008 exercise that tested the country’s response to a missile and chemical weapons attack, must include the radiological risks presented by Dimona. Also, authorities should consider a much wider distribution of radioiodine blocking tablets beyond the communities near the plant.Contaminated foodstuffs, particularly radioiodine-laced milk that impacts the thyroid of its principal consumers-children-posed an additional problem during and following the Chernobyl releases. Israel must prepare to address this and other contaminated-produce risks by stocking food, e.g., powdered milk, in secure warehouses for distribution. Replicating Chernobyl, agriculture will require monitoring for years. In time, natural processes such as rain and soil migration will concentrate radionuclides in some areas and remove some elements from others. Human intervention will help. Land and urban reclamation, along with population relocation and medical monitoring, proved costly in the former Soviet states, running into the hundreds of billions of dollars. The relatively small radionuclide release Dimona could generate should make meeting Israel’s challenge and costs somewhat more bearable.Finally, the failure of Soviet public officials to tell the public the truth about Chernobyl marked one of the most grievous errors in the handling of the accident. The result contributed to a rate of long-term psychosomatic illness three to four times greater than unaffected control groups. The sense of victimization and associated depression continues to be the largest lingering impact on the broadest population. Israeli authorities could reduce needless fears by educating citizens that Dimona is no Chernobyl and that they are well prepared to manage the radiological challenge that destruction of the country’s nuclear reactor may pose.ENDNOTES1. Chernobyl Forum, “Chernobyl’s Legacy: Health, Environment and Socio-Economic Impacts,” IAEA/PI/A.87 Rev.2 / 06-09181, April 2006, p. 7.2. Evelyn Bromet et al., “Psychological and Perceived Health Effects of the Chernobyl Disaster: A 20-Year Review,” Health Physics, Vol. 93, No. 5 (November 2007), pp. 516-521.
Bennett Ramberg served in the Department of State in the George H. W. Bush administration and is author of Nuclear Power Plants as Weapons for the Enemy: An Unrecognized Military Peril (1984).
1. Uzi Mahnaimi, “Israel on Alert for Syria Airstrike,” The Sunday Times (London), November 11, 2007.
2. For the history of the use and contemplation of force to halt nuclear weapons programs from World War II to the present, including in the Middle East, see Bennett Ramberg, “Preemption Paradox,” Bulletin of the Atomic Scientists, July/August 2006, pp. 48-56.
3. Leonard Spector, Nuclear Ambitions: The Spread of Nuclear Weapons 1989-1990 (Boulder, CO: Westview, 1990), pp. 190, 208-209.
4. Burrus M. Carnahan, “Protecting Nuclear Facilities From Military Attack: Prospects After the Gulf War,” American Journal of International Law, Vol. 86, No. 3 (July 1992), p. 524, fn. 1, 5.
5. “Iraq Says It Aimed Missiles at Israeli Reactor, Says Allies Face Defeat,” Associated Press, February 17, 1991; “The Gulf War: Nuclear Plant Is Targeted by Iraq,” The Guardian (London), February 18, 1991.
6. The IAEA provides multiple citations establishing Dimona’s operating power of 26 MWt. For example, see IAEA, Safe Decommissioning for Nuclear Activities: Proceedings of an International Conference (Vienna: IAEA, 2003) (held in Berlin, October 14-18, 2002). Megawatt thermal (MWt) refers to the thermal or heat output of a reactor in contrast to megawatt electric (MWe), which measures the electrical output from the reactor.
7. For a discussion of the range of values for Dimona’s thermal power and implications for plutonium production, see David Albright, Frans Berkhout, and William Walker, Plutonium and Highly Enriched Uranium 1996: World Inventories, Capabilities, and Policies (Oxford: Oxford University Press, 1997), pp. 260-263.
8. The Bushehr nuclear power plant is a 1,000 MWe, 3,000 MWt light-water-moderated, light-water-cooled power reactor. See G. Raisali et al., “Calculation of Total Effective Dose Equivalent and Collective Dose in the Event of a LOCA in Bushehr Nuclear Power Plant,” Radiation Protection Dosimetry, Vol. 121, No. 4 (2006), pp. 382-390.
9. Research reactors elsewhere in the Middle East include Algeria’s reactors at Es Salam (15 MWt) and Nur (1 MWt); Egypt’s ETRR-1 and ETRR-2 at the Inshas Complex (2 MWt and 22 MWt, respectively); Iran’s research reactors at the Esfahan Nuclear Technology Centre (.03 MWt) and Tehran Nuclear Research Center (5 MWt); Israel’s IRR-1 at Soreq Nuclear Research Center (5 MWt); Libya’s IRT-1 at the Tajoura Nuclear Research Center (10 MWt); Morocco’s MA-R1 at the National Center for Science and Engineering (2 MWt); Syria’s SRR-1 Reactor in Dayr al-Hajar (0.03 MWt); and Turkey’s ITU-TRR at the Technical University of Istanbul (0.25 MWt). See IAEA, “Nuclear Research Reactors of the World,” http://www.iaea.org/worldatom/rrdb/.
10. For an excellent history of Israel’s nuclear weapons program, see Avner Cohen, Israel and the Bomb (New York: Columbia University Press, 1998).
11. Robert S. Norris, Hans M. Kristensen, and Joshua Handler, “Israeli Nuclear Forces, 2002,” Bulletin of the Atomic Scientists, September/October 2002, pp. 73-75.
12. For a comprehensive description of the weapons activities at the Negev nuclear research center, see Frank Barnaby, The Invisible Bomb (London: I.B. Tauris, 1989), pp. 24-45.
13. To estimate the magnitude of a radiation release following an attack on Dimona, the fractions of various radionuclides released during the first day of the Chernobyl accident were multiplied by the Dimona core inventory of radionuclides assuming the 26 MWt, 70 MWt or 150 MWt power levels. Radiation releases from Chernobyl Unit 4 occurred over a 10-day period before the reactor fire was extinguished. During this period, 20 percent of the core inventory of iodine-131 was released along with 13 percent of the cesium-137 inventory. On the first day, beginning with two explosions involving the reactor core, 5.1 megacuries (MCi) of iodine-131 and 0.6 MCi of cesium-137 were emitted, accounting for 8 percent of the iodine-131 and 4 percent of the cesium-137 core inventory. For the Dimona calculations, iodine-131 releases of 1.7 percent, 4.4 percent, and 9.4 percent of the Chernobyl releases were estimated for Dimona operating powers of 26 MWt, 70 MWt and 150 MWt, respectively. Cesium-137 releases of 0.2 percent, 0.4 percent, and 1.1 percent of the Chernobyl releases were estimated for Dimona operating powers of 26 MWt, 70 MWt and 150 MWt, respectively. Other categories of reactor-core radionuclides were also scaled accordingly from Chernobyl to Dimona. The calculations also assume the reactor’s discharge occurs over a one-hour period (one surmises that Israeli emergency response and fire-fighting at the Negev Nuclear Research Center would be more effective than the Soviet response at Chernobyl). Once the radioactive source term is calculated by the HPAC system, HPAC’s atmospheric dispersion model calculates the path of the radiation plume from the site, the degree of contamination, and doses to exposed populations based on historical weather and population databases in the code. The radiation dose for a 24-hour exposure to the plume was then tallied (the duration of evacuation or sheltering may be more or less rapid).
14. Frank von Hippel, communication with author, April 2008.
15. The Chernobyl accident has generated much debate about the extent of its consequences. Current documentation finds that several thousand often treatable thyroid cancers dominated evident physical impacts, apart from the 28 people who perished from acute radiation syndrome at the time. However, the mental health effects may have impacted the most people by increasing the rates of serious depressive anxiety and unexplained physical symptoms by 100-300 percent as compared to control groups. Projections out to 2065 suggest that Chernobyl will generate tens of thousands of additional cancers across Europe and the former Soviet states resulting in fatalities that could exceed 15,000. In addition, combating the accident, evacuation, relocation, cleanup, and lost productivity cost hundreds of billions of dollars. Future costs include construction of a new protective structure. Chernobyl Forum, “Chernobyl’s Legacy: Health, Environmental and Socio-Economic Impacts,” IAEA/PI/A.87 Rev2/06-09181, April 2006; Elizabeth Cardis et al., “Estimates of the Cancer Burden in Europe from Radioactive Fallout From the Chernobyl Accident,” International Journal of Cancer, No. 119 (2006), pp. 1224-1235; Evelyn Bromet, et al., “Psychological and Perceived Health Effects of the Chernobyl Disaster: A 20-Year Review,” Health Physics 93 (5), November 2007, pp. 516-521.
16. Isabella Ginor and Gideon Remez, Foxbats Over Dimona, (New Haven: Yale University Press, 2007), p. 124.
17. Ibid., p. 122-133; David Horovitz, “Russia Confirms Soviet Sorties Over Dimona in ’67,” Jerusalem Post, August 23, 2007.
19. Ahron Bregman, A History of Israel (New York: Palgrave Macmillan, 2003), p. 146.
20. Ginor and Remez, Foxbats Over Dimona, pp. 30-31, 38, 123.
21. “Syrian MP Threatens Attack on Dimona,” Jerusalem Post, December 24, 2007.
22. “Iran Warns of Preemptive Strike to Prevent Nuclear Attacks,” Agence France-Presse, August 18, 2004.
23. “Defense Officials: Hizbullah Has Rockets That Can Reach Dimona,” Jerusalem Post, March 27, 2008.
24. For elaboration, see Bennett Ramberg, “Defusing the Nuclear Middle East,” Bulletin of the Atomic Scientists, May/June 2004, pp. 45-51.
25. Mordechai Vanunu told the London Sunday Times in September 1986 that Dimona, which normally stored high-level waste in liquid form above ground, had the capacity in an emergency to pipe the material into storage tanks in the bottom floor of the six-story underground reprocessing plant. Barnaby, Invisible Bomb, p. 38.
“In our COVID–19 Brave New Normal, let us not ignore the warnings of the past and the historical events through which totalitarian regimes came to flourish. A totalitarian medical technocracy is now being forced upon us. Let us be courageous, let us be brave. We have to do this for our children and grandchildren. If we do not, they will never forgive us and we will never be able to forgive ourselves.” ALSO SEE:
23 die in Norway after receiving Pfizer COVID-19 vaccine – officials | 15 Jan 2021 | Twenty-three people died in Norway within days of receiving their first dose of the Pfizer COVID-19 vaccine, with 13 of those deaths — all nursing home patients — apparently related to the side effects of the shots, health officials said. Common reactions to the vaccine, including fever and nausea, “may have contributed to a fatal outcome in some frail patients,” Sigurd Hortemo, chief physician at the Norwegian Medicines Agency, said in a Friday statement… While officials aren’t expressing serious concern [!?!], they are adjusting their guidance on who should receive the vaccine. The news comes just over a week after officials reported the deaths of two nursing home residents after they received the Pfizer jab.
Healthy doctor dies two weeks after getting Pfizer COVID-19 vaccine| 07 Jan 2021 | Two weeks after getting a first dose of a Pfizer COVID-19 vaccine, a 56-year-old doctor in South Florida died this week, possibly the nation’s first death linked to the vaccine. Health officials from Florida and the Centers for Disease Control and Prevention are investigating what role, if any, the vaccine played in the death of Dr. Gregory Michael, a Miami-Beach obstetrician who, his family says, was in otherwise good health. Michael received his first dose of Pfizer’s COVID-19 vaccine on Dec. 18 at Mount Sinai Medical Center, according to a Facebook post from his wife, Heidi Neckelmann. Three days later, small spots began to appear on his feet and hands and he went to the emergency room at Mount Sinai, where he has worked in private practice for 15 years, according to his personal website.
A Nursing Home had Zero Coronavirus Deaths. Then, It Vaccinates Residents for Coronavirus and the Deaths Begin | 10 Jan 2021 | James T. Mulder wrote Saturday on syracuse.com that until December 29, there had been no coronavirus deaths at The Commons on St. Anthony nursing home in Auburn, New York. December 29, when deaths of residents with coronavirus began occurring at The Commons, is also seven days days after the nursing home began giving coronavirus vaccinations to residents, with 80 percent of residents having been vaccinated. Over a period of less than two weeks since December 29, Mulder relates that 24 coronavirus-infected residents at the 300-bed nursing home have died. Mulder’s article notes: “The nursing home began vaccinating residents Dec. 22. So far 193 residents, or 80%, and 113 employees, or less than half the staff, have been vaccinated. The nursing home plans to do more vaccinations Jan. 12.”
Novavax bosses cash out for $46 million with COVID-19 vaccine trials still under way | 11 Jan 2021 | Top executives at U.S. pharmaceutical company Novavax Inc aren’t waiting to see how well [or if] their COVID-19 vaccine works before they reap the financial rewards. Chief Executive Stanley Erck and three of his top lieutenants have sold roughly 46 million of company stock since the start of last year, according to a Reuters review of securities filings, capitalizing on a near 3,000% rally in Novavax shares fueled by investors betting on the success of the shot under development. Erck cashed out 8.7 million over the course of 2020, eclipsing the 2.2 million in shares he sold in the previous five years. The stock sale amounts to more than 20% of his vested stake in Novavax, or less than 10% if stock options that are yet to vest are counted, according to the review of the filings, an analysis by compensation consultant Farient Advisors LLC and a company spokeswoman.
COVID ‘detention camps?’ State government proposal revealed | 09 Jan 2021 | A New York State-sponsored proposal that demands detention camp for anyone identified as a “case, contact or carrier” of a contagious disease… The New York State Assembly bill in question is called Bill A416and is sponsored by a Democratic member of the New York State Assembly, N. Nick Perry. As of January 4, 2021, the bill has been introduced to the 2021-2022 Legislative Session and is currently in front of the Assembly Health Committee. Bill A416, in summary, “[r]elates to the removal of cases, contacts, and carriers of communicable diseases that are potentially dangerous to the public health.” The bill would allow officials to: 1) Approve detentions unilaterally (but require a court order within 60 days of confinement) 2) Require detainees to submit to medical examinations and/or complete an “appropriate, prescribed course of treatment, preventative medication or vaccination,” which would be legally enforceable so long as officials procure a court order
55 People Died in US After Receiving COVID-19 Vaccines – Reporting System –In some cases, patients died within days of receiving a COVID-19 vaccine. | 16 Jan 2021 | Fifty-five people in the United States have died after receiving a COVID-19 vaccine, according to reports submitted to a federal system. Deaths have occurred among people receiving both the Moderna and the Pfizer-BioNTech vaccines, according to the reports. The reporting system, the Vaccine Adverse Event Reporting System (VAERS), is a federal database. The system is passive, meaning reports aren’t automatically collected and must be filed. VAERS reports can be filed by anyone, including health care providers, patients, or family members.
UK Police Chief: ‘Now Is Really Not the Time’ for Freedom of Speech, Right to Assembly | 16 Jan 2021 | The chief constable of Dorset Police has urged lockdown protesters to accept that “now is really not the time” for freedom of speech and the right to assembly. Chief Constable James Vaughan was speaking after the controversial arrest of two women for, seemingly, being recorded leaving home more than once and “sitting on a bench,” in an incident the police now allege was “stage-managed” by lockdown protesters, as one of the women is a Covid sceptic — although she denies any pre-planning. “We appealed to them [the protesters] last weekend to say: ‘Look guys, we respect your right to freedom of speech and right to assembly but now is really not the time, it is too dangerous. Please don’t come, we have got other things we need to do,'” said the chief constable in comments to TheTelegraph.
We are in unprecedented times. Not because of the deadliest virus known to mankind, but because we have never been attacked with such ferocious psychological methods as is deliberately being done today by our UK and Scottish governments; measures to coerce us, manipulate us, to scare us, to shame us, and to make us shame other people for not following orders pertaining to COVID–19 measures.
We have been warned previously by many who suffered totalitarian communism in Eastern Europe. We were warned for many decades that such a moment would come to the West if we were not vigilant enough; unfortunately, it seems that our watchfulness has failed and our liberty has been stolen.
We have a lot to learn from history and from the great Russian writer and critic of Soviet communism,Alexander Solzhenitsyn, especially in our present era of the COVID–19…
“We found, in particular, that institutions regularly put their own reputations or political interests before child protection”.
– The Independent Inquiry into Child Sexual Abuse
Theatre director and neurologist Dr Jonathan Miller, when directing King Lear, drew parallels with a famous scene in the film “The Third Man”, starring Orson Welles.
Welles’ character, Harry Lime has been diluting antibiotics in post-war Vienna, making big money, but at the expense of children dying from under-treated infection.
In the relevant scene, Lime takes a visitor to the top of a giant ferris wheel, and surveying the people far below, asks whether they would care if one of those dots stopped moving.
Miller makes the point that to commit these unspeakable acts, Lime has first to see others incorrectly – as little people, ants, dots. In Lear, Miller argues that a blinded character takes the opposite journey, retrieving his emotional insight by falling, by coming back down to the scale of ordinary folk.
Today’s report from the Independent Inquiry into Child Sexual Abuse makes this contrast all too clear. Perpetrators preyed on children. Others knew of it but did nothing, or shielded perpetrators from action. Some criminals were even rewarded with honours.
This can only happen because the perpetrators, and those who protected them, see the victims, if they see them at all, as “little people”; expendable, worthless, even blameworthy.
Reputation trumps safety
Today’s coverage makes clear that institutions repeatedly put reputation before the safety of the most vulnerable.
The report’s recommendations include protection for whistleblowers, but we already know this doesn’t work.
My own whistleblowing case at the Court of Appeal proved that Alder Hey bosses had lied about incidents and investigations where children had died. But those bosses have got away with it, because judges have refused to read the redacted half of the Royal College of Surgeons’ investigation; and decided instead that bosses were genuine in making false statements to protect reputation.
Failure to investigate
The BBC makes a further point about today’s reports from the Inquiry:
One thread runs through all of its work – a failure in the past to take action when abuse came to light.
For those of us working in the NHS, this is all too familiar. After my whistleblowing, Alder Hey bosses have had to admit on oath that several safety issues still haven’t been investigated to this day. Yet senior managers who failed to investigate face no consequence – even at the Court of Appeal.
Today’s reports illustrate why our bid for a Supreme Court challenge to the Court of Appeal decision is so important.
We cannot allow institutions to falsely deny serious incidents where children have died or been injured and then, when caught, claim this as a PR strategy in their defence.
Otherwise, we sit back and allow again that reputations for big people are worth more than life for little ones.
Iran refutes US secretary of state’s claims in final days of Trump administration as ‘warmongering lies’.
US Secretary of State Mike Pompeo said on Tuesday al-Qaeda has a new home base in Iran, though he offered no evidence in a speech in Washington, DC, a claim Iran immediately rebuffed.
Pompeo said al-Qaeda had centralised its leadership inside Tehran and that deputies of leader Ayman al-Zawahiri are currently there.
He added that ties between Tehran and al-Qaeda began to vastly improve in 2015, when the Obama administration, along with France, Germany and Britain, were finalising the nuclear deal Joint Comprehensive Plan of Action (JCPOA), a landmark accord signed that saw Iran limit its nuclear enrichment in exchange for a lifting of international sanctions.
Shia-ruled Iran and predominantly Sunni al-Qaeda have long been considered foes in the region, and while there has been reporting of al-Qaeda operatives using Iranian territory, claims of heightened coordination have previously been met with scepticism within the intelligence community and Congress.
“Al-Qaeda has a new home base. It is the Islamic Republic of Iran,” Pompeo said in a speech at the National Press Club.
“I would say Iran is indeed the new Afghanistan – as the key geographic hub for al-Qaeda – but it’s actually worse,” he said. “Unlike in Afghanistan, when al-Qaeda was hiding in the mountains, al-Qaeda today is operating under the hard shell of the Iranian regime’s protection.”
The secretary of state, who will leave office on January 20 when President Donald Trump’s term ends, also urged more international pressure on Tehran, but stopped short of calling for military action, saying: “If we did have that option, if we chose to do that, there’s a much greater risk in executing it.”
Iranian foreign minister Mohammad Javad Zarif swiftly accused Pompeo of “warmongering lies” in a tweet denouncing the claims.
From designating Cuba to fictitious Iran “declassifications” and AQ claims, Mr. “we lie, cheat, steal” is pathetically ending his disastrous career with more warmongering lies.
No one is fooled. All 9/11 terrorists came from @SecPompeo‘s favorite ME destinations; NONE from Iran.
Pompeo’s statements could represent an escalation in the US’s ability to use force against Iran.
US legislation, the 2001 Authorisation of Use of Military Force (AUMF), allows US forces to pursue al-Qaeda anywhere in the world, meaning Pompeo’s claim could allow the Trump administration to say it already had Congressional approval for an attack on Iran under that authorisation if al-Qaeda were proved to be on Iranian territory.
The US Congress, following the January 2020 assassination of Iranian Major General Qassem Soleimani, passed a resolution that would have required the president to seek Congressional authorisation before taking military action against Iran, which Trump vetoed in May.
Trita Parsi, an executive vice president of the Quincy Institute for Responsible Statecraft, a think-tank in Washington, DC, called Pompeo’s statements “very unconvincing”.
“I think the question we have to ask ourselves is, if Pompeo actually has any conclusive evidence of any form of an Iran-al-Qaeda alliance, why did he wait until the eight last days of his term to put this forward?” he told Al Jazeera.
“This is a person that has been pursuing a strategy of crushing Iran for the last four years,” Parsi added. “It would have done him well to put this down right away in order to further justify maximum pressure.”
The Trump administration has taken an antagonistic approach towards Tehran since taking office in 2017, pursuing a “maximum pressure” sanctions campaign after withdrawing from the nuclear deal.
Most recently, the US accused Iran of violating the Chemical Weapons Convention by supplying the late Lybian ruler Muammar Gaddafi with chemical weapons.
Several incidents have brought Tehran and the US to the brink of conflict during Trump’s term, including the assassination of Soleimani and tensions surrounding the Strait of Hormuz, a Persian Gulf waterway that serves as a vital shipping route in the region.
The US flew B-52 bombers over the Gulf three times in December, in what the Trump administration called a deterrence measure to keep Iran from retaliations on the anniversary of the US assassination of Soleimani.
With just eight days left in office for President Donald Trump, experts have voiced concern that the outgoing president may take “reckless” actions against Iran that could threaten the incoming administration of President-elect Joe Biden, who hopes to rejoin the nuclear deal and bring Iran back to compliance.
“What this appears to be is a desperate effort by him to try to reshape facts in order to serve his political purpose, which right now is to make sure that the Biden administration cannot undo the damage that Pompeo and Trump have done to us relations,” Parsi said.
Al-Qaeda operative killed
Pompeo also announced on Tuesday that al-Qaeda’s Abu Muhammad al-Masri, who is accused of masterminding the 1998 bombings of two US embassies in Africa, had been killed in Iran on August 7.
It was the first official confirmation of the killing, which Pompeo said “points to” coordination between al-Qaeda and Tehran.
In mid-November, the New York Times published a story, citing unnamed US intelligence sources, that said al-Masri was killed by Israeli agents along with his daughter after living in Iran for years.
Iran’s foreign ministry rejected the claims at the time, saying US media shouldn’t fall prey to “Hollywood-style scenario-making by US and Israeli officials”.
The ministry also accused the US of “Iranophobia” amid the “maximum pressure” campaign Trump.
Pompeo on Tuesday also announced new sanctions on several Iranian officials and a $7 million reward for information on an al-Qaeda member he said was believed to be in Iran identified both as Muhammad Abbatay or Abd al-Rahman al-Maghrebi.
Professor of Politics Keith Whittington argued as follows:
“Impeachments are to protect the republic from dangerous officeholders…”
“(T)he ability to disqualify a former officer who has been demonstrated to have committed grave abuses of office in the past might be valuable.”
Not according to Law Professor Ross Garber arguing that constitutional language limits impeachment to current office holders, saying:
“Impeachment could only happen while Trump is in office, not after he leaves.”
Nothing in the Constitution permits impeachment of a former president. Yet nothing rules it out.
According to Findlaw.com:
If a former US president or other office holder was impeached and convicted by a Senate two-thirds super-majority, “it’s a near certainty that (his) person would take the case to the courts.”
“It’s also likely that the case would make its way to the Supreme Court, where justices would probably all be thinking about calling in sick for the next six months.”
The ostensible purpose of impeaching and convicting a former US president would be to prevent that person from holding office again — along with imposing maximum humiliation as a convicted felon, rightfully or wrongfully.
In 1876, House members impeached William Belknap, President Ulysses Grant’s war secretary — after he resigned from office.
A Senate trial months later failed to reach a required super-majority, Belknap thus acquitted.
Given an equally divided US Senate today with 50 Republicans and 50 Dems, if Trump is impeached as president or private citizen, conviction by Senate super-majority would seem highly unlikely.
Acquitting Trump would defeat the Pelosi/Schumer-led Dems from wanting him prevented from running again for president.
Humiliating him more than already would also be defeated, along with seeking to label him a convicted felon.
According to former chief White House ethics lawyer Richard Painter, Trump could be impeached based on the Belknap precedent.
Under the Constitution’s Article II, Section 4:
“The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.”
Law Professor Jonathan Turley argued that by “seeking (Trump’s) removal for incitement, (Dems) would gut not only the impeachment standard but also free speech, all in a mad rush to remove Trump just days before his term ends,” adding:
Dems want Trump removed for “his remarks to supporters” they falsely claim led to last Wednesday’s Capitol Hill violence.
“(His) address d(id) not meet the definition for incitement under the criminal code.”
“It would (or should) be viewed as protected speech by the Supreme Court.”
“Trump never…called for violence or riots” in his speech or tweets.
“(H)e urged his supporters to march on the Capitol to raise their opposition to the certification of electoral votes and to back the recent challenges made by a few members of Congress.”
He told the crowd of supporters “to peacefully and patriotically make your voices be heard.”
His public remarks were willfully distorted by Dems and their media press agent.
Smelling blood in the water, they want Trump impeached as president or after his term expires.
Turley: “There was no call for lawless action by Trump.”
He “call(ed) for a legitimate protest at the Capitol.”
“(V)iolence was not imminent…”
“(T)he vast majority of (Capitol Hill) protesters were not violent before the march, and most did not riot inside the Capitol.”
“Like many violent protests in the last four years, criminal conduct was carried out by a smaller group of instigators.”
Undemocratic Dems want Trump impeached and removed from office “for remarks (permitted) by the First Amendment.”
“It would create precedent for the impeachment of any president (who rightfully or wrongfully is) blamed for violent acts of others…”
In 1918, Eugene Debs publicly opposed the WW I draft — his First Amendment right.
Yet he was wrongfully arrested, charged with sedition, convicted, sentenced and imprisoned.
The Supreme Court unanimously upheld the constitutional breach, what Turley called one of its most “infamous” rulings, adding:
Dems today “are now arguing something even more extreme as the basis for impeachment.”
“Under their theory, any president could be removed for rhetoric that is seen to have the (undefined) ‘natural tendency’ to encourage others to act in a riotous fashion.”
“Such a standard would allow for a type of vicarious impeachment that attributes conduct of third parties to any president for the purposes of removal.”
At the same time, Dems urged anti-Trump elements to publicly protest.
“(T)here needs to be unrest in the streets,” said Biden’s VP Kamala Harris, adding:
“(T)here needs to be unrest in the streets.”
“(P)rotesters should not let up” even when some marches turn violent.
The obvious double standard needs no elaboration.
According to Pelosi/Schumer-led Dems, Trump’s “guilt is not doubted and innocence is not deliberated,” said Turley.
“This would do to the Constitution what the violent rioters did to the Capitol and leave it in tatters.”
On Sunday, Pelosi said the following:
“If we do not receive unanimous consent” for invoking the 25th Amendment to remove Trump, legislation (to do it will) be brought up (in the House on) the following day.”
“We are calling on (Mike Pence) to respond within 24 hours.”
“Next, we will proceed with bringing impeachment legislation to the floor” of the House.
With less than 10 days remaining in office, Pelosi defied reality, calling Trump “an imminent threat.”
Pence reportedly opposes invoking of the 25th Amendment.
Calls to his office by Pelosi and Schumer weren’t answered by staff, nor did Pence return them.
Removing Trump by invoking the 25th Amendment requires consent by the vice president and a majority of cabinet members.
According to Dem House Majority Whip James Clyburn:
“Let’s give…Biden the 100 days he needs to get his agenda off and running, and maybe we’ll send the articles (of impeachment to the Senate) sometime after that.”
While in office or after his term expires, House impeachment and/or Senate conviction of Trump for constitutionally allowed speech would risk crossing a rubicon from what remains of the rule of law to tyranny.
Future presidents, other government elected and appointed officials — along with virtually Americans — could face a similar fate ahead by the unconstitutional standard called for by Pelosi and Schumer.
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Award-winning author Stephen Lendman lives in Chicago. He can be reached at firstname.lastname@example.org. He is a Research Associate of the Centre for Research on Globalization (CRG)
His new book as editor and contributor is titled “Flashpoint in Ukraine: US Drive for Hegemony Risks WW III.”
As the vaccinations against COVID-19 begin to be administered, it is worth revisiting recent judicial approaches in vaccination disputes concerning children in both public and private law proceedings.
In the very recent case of Re H (A Child) (Parental Responsibility: Vaccination)  EWCA Civ 664 the Court of Appeal considered whether the routine vaccination of healthy children in care was a matter which a local authority can properly consent to and arrange pursuant to its powers under s.33 Children Act 1989 or whether, where a parent opposes it, the issue is of such magnitude, seriousness or gravity that it necessitates an application to the High Court for leave to invoke its inherent jurisdiction. Whilst the case concerned only public law proceedings under Part IV of the Children Act 1989, the Court also took the opportunity to comprehensively review the position in private law proceedings under Part II of the 1989 Act.
In Re H, both care and placement orders had been made in respect of the child in question and the parents objected to the child receiving routine vaccinations in line with the father’s belief that neither the court nor the state could take decisions in relation to the child. The local authority made an application to the High Court and Hayden J ruled that the local authority could use their powers under s.33 (3) of the Children Act 1989 to consent to vaccinations and, in the event he was wrong, he would make the order under the Court’s inherent jurisdiction. Given this decision was contrary to a previous decision by McDonald J, who believed the decision was of such gravity the local authority could not properly use their powers under s.33 (3), Hayden J gave permission to appeal.
On appeal, Lady Justice King delivering the lead judgment observed “… it cannot be said that the vaccination of children under the UK public health programme is in itself a ‘grave’ issue in circumstances where there is no contra-indication in relation to the child in question and when the alleged link between MMR and autism has been definitely disproved.” Accordingly, the Court held that the local authority with a care order could appropriately use s.33 (3) CA 1989 and arrange and consent to a child in its care being vaccinated where it is satisfied that it is in the best interests of an individual child, notwithstanding the objections of parents. Whilst the Court acknowledged that parental views regarding immunisation must be taken into account, the matter should not to be determined by the strength of the parental view unless that view has a real bearing on the child’s welfare.
The fundamental difference between an immunisation dispute in private as opposed to public law proceedings, is that in private law proceedings, as neither parent has primacy over the other, the parties have no option but to come to court to seek a resolution when they cannot agree.
However, in public law proceedings when there is a care order in place, having been determined or conceded that pursuant to s.31 (2) CA 1989, the child has suffered or is likely to suffer significant harm attributable “to the care given to him or her not being what it would be reasonable to expect a parent to give” it is against that backdrop that the parent of a child in care holds parental responsibility. Parliament has specifically, and necessarily, given the local authority that holds the care order, the power under s.33 (3)(b) to override the views of a parent holding parental responsibility.
The Court of Appeal was not persuaded by the submission advanced on behalf of Counsel for the parents, namely that to allow the local authority to consent to the immunisations would amount to a disproportionate breach of their fundamental rights under Article 8 ECHR.
King LJ concluded her judgement with the following:
It cannot be doubted that it is both reasonable and responsible parental behaviour to arrange for a child to be vaccinated in accordance with the Public Health Guideline, but there is at present no legal requirement for a child to be vaccinated;
Although vaccinations are not compulsory, scientific evidence now establishes that it is generally in the best interests of otherwise healthy children to be vaccinated;
Available evidence supports the Public Health England advice that vaccinations are in the best interests of children and society as a whole;
The evidence with respect to MMR vaccinations overwhelmingly identifies the benefits to children;
Subject to any credible development in medical science or peer reviewed research to the opposite effect (along with the instruction of a jointly instructed expert), the proper approach to be taken by a court where there is a disagreement as to whether the child should be vaccinated is that the benefit in vaccinating a child in accordance with Public Health England guidance can be taken to outweigh the long-recognised and identified side effects;
Whilst parental views must always be taken into account, the matter is not to be determined by the strength of the parental views unless the view has a real bearing on the child’s welfare; and
Whilst the Court did not reach a definitive conclusion on whether, in private law proceedings, a dispute between the holders of parental responsibility over childhood vaccinations should require judicial adjudication, it stated, albeit strictly obiter, that it would be difficult to foresee a case in which a vaccination approved for use in children, including vaccinations against COVID-19, would not be endorsed as being in a child’s best interests, absent a credible development in medical science or peer-reviewed research evidence indicating questioning the safety and/or efficacy of the vaccination or a well evidenced contraindication specific to the child in question.
M v H and P and T  EWFC 93
The High Court was concerned with determining whether it was in the best interests of P (6 years of age) and T (4 years of age), to be vaccinated in accordance with the NHS vaccination schedule. The application for a specific issue order under s.8 of Part II of the Children Act 1989 requiring the children to be vaccinated was brought by the father of the children, M. The Guardian supported the father’s application.
The father’s application initially concerned the MMR vaccine, but ahead of the hearing he widened the scope to include each of the vaccinations currently on the NHS vaccination schedule, the vaccinations required for future travel abroad and vaccination against the coronavirus responsible for causing the COVID-19 infection. However, Mr Justice McDonald chose to define his decision to whether it was in the children’s best interests to receive each of the vaccines currently included on the NHS vaccination schedule, including the MMR vaccine. McDonald J was at pains to explain that he was not prepared to make a specific issue order in relation to any COVID-19 vaccination although he went so far as to state “it is very difficult to foresee a situation in which a vaccination against COVID-19 approved for use in children would not be endorsed by the court as being in a child’s best interests, absent peer-reviewed research evidence indicating significant concern for the efficacy and/or safety of one or more of the COVID-19 vaccines or a well-evidenced contraindication specific to that subject child.”
Although the mother was invited to make an application for a jointly instructed expert pursuant to Part 25 of FPR 2010, she did not and in any event, it was not deemed necessary where the vaccinations had been approved and recommended by the relevant public health authorities. Indeed, the father submitted it was appropriate for a parent to be guided by the recommendations of NHS and Public Health England in deciding whether or not to vaccinate the children.
The mother based her objections upon information she had gathered online, including material from an American paediatrician and an American nephrologist. She made the following submissions: vaccination is not inevitably immunisation, it does not prevent a person from carrying the disease, that as her children had the benefit of a strong immune system so that she did not see them as being in an “at risk” category for complications from childhood diseases, further research was required into the efficacy and probity of vaccinations for children generally, that the recommendations of Public Health England are falling behind the science, that the side effects of the vaccines are more detrimental to children than the diseases they are vaccinating against, that the children should be tested for their natural immunity before the court decides upon this issue, that a specific issue order requiring the children to be vaccinated would amount to an unnecessary and disproportionate breach of the children’s right to a private and family life under Art 8 of the ECHR, and finally that this particular case is distinguishable from previously reported authorities, in particular from the Court of Appeal decision of Re H (A Child: Parental Responsibility: Vaccination)  EWCA Civ 664 (cited above) as that case concerned public law proceedings.
Parental responsibility is defined in s.3 (1) of the Children Act 1989 as “all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and to his property.” It is axiomatic that such rights are inseparably connected with a parent’s obligation to meet the welfare needs of his or her children. In Re D (A Child)  EWCA Civ 315, Lord Justice Ryder as he then was, reiterated that the concept of parental responsibility concerns an adult’s responsibility to secure the welfare of their child, which is to be exercised for the benefit of the child and not the adult.
S2(7) of the Children Act 1989 permits each holder of parental responsibility to act alone and without the other, but one party does not have priority over the other. Where there is a dispute over the exercise of parental responsibility regarding vaccination, that dispute should be determined by a court (per Thorpe LJ in Re C (Welfare of Child Immunisation)  2FLR 1095 and per Theis J in F v F(MMR Vaccine)  EWHC 2683 (Fam) “As neither parent has primacy over the other, the parties have no option but to come to court to seek a resolution when they cannot agree.”
McDonald J to the opportunity to reiterate the conclusions of the Court of Appeal in Re H with respect to the vaccination of children generally and whilst he took into account the mother’s strongly held views, he did not attach determinative weight to them. Accordingly, the court found that it was in the best interests of the children to make a specific issue order pursuant to s.8 of the Children Act 1989 requiring each child to be given the vaccines as specified in the current NHS vaccination schedule. In addressing the mother’s assertions that the vaccinations would infringe the children’s fundamental human rights, the Judge found that the vaccination was “sufficiently important” to justify the limitation of a fundamental right.
In Re C (Welfare of Child: Immunisation)  EWCA Civ 1148;  2FLR 1095, Thorpe LJ sitting in the Court of Appeal reminded the parties that “Where more than one person has parental responsibility for a child, each of them may act alone and without the other (or others) in meeting that responsibility.” However, the apparent freedom of each to act alone is not, however unfettered. As the then President said in Re J  1FLR 57: “There is in my view, a small group of important decisions made on behalf of a child which, in the absence of agreement of those with parental responsibility, ought not to be carried out or arranged by one parent carer although she has parental responsibility under s.2 (7) of the Children Act 1989. Such a decision ought not to be made without the specific approval of the court.” In this case, the important decision was one of circumcision but the Court of Appeal in Re H added that the “hotly contested issues of immunisation are to be added to that small group of important decisions”.
In re B (A Child: Immunisation)  EWFC 56, HHJ Clifford Bellamy, sitting as a District Judge of the High Court, ordered the immunisation of a five year old child with the combined diphtheria/tetanus/pertussis/polio vaccine, the MMR vaccine and the influenza vaccine against the father’s wishes in private law proceedings. In this matter, an eminent expert had been instructed and concluded that for the child in question, there were no contra-indications which militated against the child being vaccinated. The Judge summarised the recent judicial approaches with more than a hint of frustration: “… this is now the sixth occasion when the court has had to determine whether a child should be vaccinated in circumstances where a birth parent objects. On each occasion that court has concluded that the child concerned should receive the recommended vaccine (save that in Re C and F (Children) Sumner J decided that the older child, aged 10, should not have the HIB vaccine, because the danger for her had passed, or the Pertussis vaccine, because there was no approved vaccine for a child her age). With respect to the vaccines with which I am concerned, in the absence of peer-reviewed research evidence indicating significant concern for the efficacy and/or safety of one of those vaccines, it is difficult to see how a challenge based on efficacy or safety would be likely to succeed.”
In the unusual private law matter of Re M (Children) (Specific Issue Order: Guardian’s Application to Enforce)  EWFC 49 before HHJ Rogers, sitting as a Judge of the High Court, the children’s guardian (originally appointed under Rule 16.4 because of “very grave difficulties over child arrangements”) applied to enforce an order providing for the immunisation of two children. The question for the court was did the guardian have locus, and if he did, was it within the proper exercise of his powers to seek enforcement or should he, as mother’s Counsel asserted, just simply draw the issue to the Court’s attention in a neutral manner?
Axiomatically, it is usually the party obtaining an order in his or her favour who seeks to enforce an order not complied with. However, this unusual scenario where enforcement is brought by a third party who does not hold parental responsibility, required the Judge to consider Rule 16.4 whereby a guardian can be appointed in exceptional Private Law matters.
The Court found that whilst it was probable that the guardian had locus to enforce the order, that locus should not be invoked. Parents were urged to take decisions for their own children and the court or local authority were only to become involved if an intervention into family life was justified and proportionate. In care proceedings, the test for intervention is that the child is or is likely to suffer significant harm. Quite apart from the fact that the Threshold was not crossed, the Court found that it would be “wholly artificial” and a “wholly improper device” to use an interim care order in this matter, and in any event, this would not be a proper route to enforcement.
Further, the court was mindful that it was most undesirable and unrealistic to impose the obligation to vaccinate the child upon the unwilling parents – who, for example, would take the child to the clinic for vaccination?
Whilst the Judge shared the Guardian’s view that it was in the children’s best interests for them to be vaccinated and chose to leave the declaratory relief to this effect in his judgement, he did not take any steps to order enforcement of the original order and dismissed the Guardian’s application for enforcement.
In public law proceedings (where under s.33(3)(b) Children Act 1989, the local authority have the power to override the views of the parents) and private law disputes it is certainly difficult to foresee a case in which a vaccination approved for use in children, including vaccinations against COVID-19, would not be endorsed as being in a child’s best interests, absent a credible development in medical science or peer-reviewed research evidence indicating questioning the safety and/or efficacy of the vaccination or a well evidenced contraindication specific to the child in question.