High-powered tasers are the new fad in law enforcement. They are becoming ever more prevalent even as their safety is increasingly in question. The proliferation of tasers in police departments across the country has led to unconventional uses. Among those hit by tasers are elderly people, children as young as one year old, people apparently suffering diabetic shock and epileptic seizures, people already bound in restraints, and hospital mental patients. Police used tasers against protesters at the 2003 Miami Free Trade Area of the Americas demonstration and against rowdy fans at the 2005 Fiesta Bowl. School systems are employing the weapons, with some officers carrying tasers even in elementary schools.
But doctors, reporters, and human rights groups have raised questions about the safety of the devices, which shoot two barbs designed to pierce the skin. The barbs are at the end of electrical wires carrying 50,000 volts. Last summer, The New York Times reported that at least fifty people had died within a short time after being hit with a taser. By November, when Amnesty International released its own report, that number had risen to more than seventy.
In February, Chicago police used the device against a fourteen-year-old boy, who went into cardiac arrest but survived, and a fifty-four-year-old man, who died. The Chicago Police Department, which had recently purchased 100 of the devices, decided not to distribute them until it had investigated the incidents.
The Department of Justice is conducting its own investigation into the safety of the devices. It has selected researchers at Wake Forest University and the University of Wisconsin to run independent taser studies.
Taser International, the biggest manufacturer of the weapon, denies that its product caused any deaths. The company insists that its products are safe. "The ADVANCED TASER has a lower injury rate than other nonlethal weapons and has had no reported long-term, adverse aftereffects," says the company website.
Early tasers, those used from the 1970s until the early 1990s, were lower wattage devices. "The original taser operated on only five watts and was followed by Air Taser on seven watts," says the November Amnesty International report.
William Bozeman, a medical doctor at the Wake Forest University department of emergency medicine, is investigating the safety of tasers for the Justice Department. "They've increased the amount of wattage that's delivered," he says. Above fourteen watts, he says, you get "electro-muscular disruption."
According to Taser International, that's the point. The "uncontrollable contraction of the muscle tissue" allows the taser "to physically debilitate a target regardless of pain tolerance or mental focus," says the company website. The tasers "directly tell the muscles what to do: contract until the target is in the fetal position on the ground."
Taser International introduced its "Air Taser" in 1994. Then, in 1998, "the company began Project Stealth: the development of the higher-power weapons to stop extremely combative, violent individuals who were impervious to nonlethal weapons." Project Stealth led to the M26, a taser with twenty-six watts of power.
In 2003, Taser International started selling an additional version of the twenty-six-watt taser, called the X26, which is light enough for police officers to carry at all times.
Police like tasers, sometimes for good reason. Greg Pashley, officer and spokesperson for the Portland Police Department, says the taser "is a tool that is effective in ending what could otherwise be a violent conflict without injuries. We're finding that time and again."
Many other officers add praise of their own. "It's increasingly a less lethal weapon of choice," says Scott Folsom, police chief at the University of Utah. "It doesn't have residual effects. It's proven to be a relatively safe and effective tool."
The Department of Justice is not the only governmental authority inquiring into tasers. On January 7, Taser International issued a press release that said the U.S Securities and Exchange Commission was investigating what Taser International described as "company statements regarding the safety" of the company's products. Arizona's Attorney General Terry Goddard is also investigating their safety.
Taser International did not respond to repeated requests for an interview. It eventually allowed The Progressive to submit a list of questions, but it never answered them. The company did, however, send several press releases by e-mail. One of those press releases concerned stories by AP and CBS about a study they said linked the taser to heart damage in pigs. The company disputed the news reports, saying, "TASER International is deeply concerned that CBS News and the Associated Press would publicize erroneous links between the TASER and heart damage conflicting with the study author's own assertions and relying solely on statistically insignificant readings."
In Portland, Oregon, police used a taser to shock a seventy-one-year-old blind woman four times on her back and once on the right breast. They also pepper-sprayed her and beat her.
On June 9, 2003, Eunice Crowder was home when a city official came to clean up her messy yard. When Crowder objected, he called the police. The Portland Oregonian reported that Crowder, who claimed to be hard of hearing, ignored police commands and tried to climb into a city truck to retrieve her possessions. The police claimed that when they tried to stop Crowder, she kicked at them. That's when they peppersprayed her and used the taser. Then they handcuffed Crowder's arms and yelled at her to stand up. "And she says, 'I bet you wouldn't yell at your mom like that,' " her lawyer, Ernest Warren Jr., told a radio station. One of the officers responded, "My mom is seventy-four." She said, "Well, I'm seventy-one."
In 2004, Crowder agreed to the $145,000 settlement from the city of Portland. The police department admitted no wrongdoing.
"We don't have age restrictions" for use of tasers, says Pashley of the Portland Police Department. But he says that policy is currently "under review."
Crowder wasn't the oldest person hit by a taser. The oldest one on record was 75-year-old Margaret Kimbrell of Rock Hill, South Carolina, who describes the electricity from the taser as traveling "all over your chest like a big snake or something worming to try to get out." Kimbrell says, "I prayed, 'Lord, Jesus, make it quicker.' I was waiting to die so the pain would go away." Police used the taser on Kimbrell when she refused to leave a nursing home and, the police claimed, tried to hit an officer.
Some of Taser International's own materials suggest that shocking senior citizens may pose a danger. In its November report, Amnesty International cites a "certified lesson plan" from the company that warns it is "not advisable" to use its high-power devices on someone who is pregnant or elderly.
A study of available medical literature commissioned by Taser International and available on the company's web site says that older people may have particular vulnerabilities. "Elderly subjects and those with preexisting heart disease are perhaps at an increased risk of cardiac complications and death following exposure to large quantities of electrical energy," wrote Anthony Bleetman of the University of Birmingham. "Since the elderly and heart patients don't often require to be subdued or controlled with a high level of force, then this is unlikely to pose a common problem."
Scientists and medical doctors have several theories, some of them conflicting, about how tasers affect bodies. Electricity near the heart can be dangerous, explains John Webster, professor emeritus in biomedical engineering at the University of Wisconsin, "because it might cause ventricular fibrillation." Webster and a team of University of Wisconsin researchers are investigating the taser's effect on the heart for the U.S. Department of Justice. While suggesting that the taser may be relatively safe for the heart, they speculate that an excess of potassium, produced when muscles contract violently but also produced by cocaine use, may be a key ingredient in the deaths associated with the device.
Many police departments say that use of tasers has reduced injuries and fatalities. The city of Phoenix saw a 54 percent drop in police shootings the year it began to use tasers. In 2003, Seattle, which also uses tasers, for the first time in fifteen years had no shootings that involved officers. That correlation has made tasers popular.
"As of October 2004, over 6,000 police departments in the United States and abroad had purchased TASER products," says the company website. "Over 200 police departments--including Phoenix, San Diego, Sacramento, Albuquerque, and Reno--have purchased TASER products for every patrol officer."
But Amnesty International says the tasers are making it too easy for the police to use excessive force. "Claims that tasers have led to a fall in police shootings need to be put into perspective, given that shootings constitute only a small percentage of all police use of force," says the November report. "In contrast, taser usage has increased dramatically, becoming the most prevalent force option in some departments. While police shootings in Phoenix fell from 28 to 13 in 2003, tasers were used that year in 354 use-of-force incidents, far more than would be needed to avoid a resort to lethal force."
A number of the stories in the Amnesty report involve police use of tasers on people who were already restrained, including two who were strapped to gurneys and on their way to, or already inside, hospitals. In one such case in Pueblo, Colo., "a police officer applied a taser to the man while he was restrained on a hospital bed, screaming for his wife," said Amnesty.
"That was a case where a rookie officer did not understand appropriate use of a taser," says Pueblo Police Chief Jim Billings. Although the incident involved a misunderstanding of policy, rather than maliciousness, he says, the officer received "a pretty heavy suspension."
Amnesty International wants the devices temporarily banned "pending a rigorous, independent, and impartial inquiry into their use and effects." The investigation should "be carried out by acknowledged medical, scientific, legal, and law enforcement experts who are independent of commercial and political interests in promoting such equipment," says the human rights organization.
In response to the Amnesty report, Taser International issued a press release accusing the human rights organization of being "out of step with law enforcement worldwide."
On Dec. 10, 2004, police in Pembroke Pines, Fla., used a taser on a 12-year-old boy who tried to stab another child with a pencil and then became combative with police. Commander Ken Hall, public information officer for the Pembroke Pines police, says the case "was looked at very closely, obviously because of the controversial nature" and found to be "within the parameters of our policy."
In November, a Miami-Dade officer shocked a twelve-year-old Florida girl who was playing hooky. At the moment he shocked her, she was running from him. Although Miami-Dade police did at the time consider tasers to be an appropriate weapon for use on children, the director of the Miami-Dade Police Department has raised questions about the event. "It was his opinion that that incident may not have been within our guidelines" because the girl was not posing a threat to herself or others, says Detective Juan DelCastillo, who handles media relations for the Miami-Dade police. The director is reviewing the incident.
Back in May, a nine-year-old runaway girl in Tucson, who was already handcuffed by police and sitting in a police vehicle, was shocked with a taser when she began to kick at the car and bang her head. The Pima County attorney general's office conducted an investigation of the incident and decided not to bring criminal charges against the officer who used the taser. "In all likelihood, the use of the taser prevented" the girl "from injuring herself any further," wrote David L. Berkman, the chief criminal deputy, in explaining his decision.
Even one-year-olds have been shocked, according to records Taser International supplied to the Associated Press. The company also told the San Jose Mercury News that its taser can be used safely on toddlers.
In October, in a widely reported incident, police in Miami shocked a six-year-old. The officers were dispatched to an elementary school where they encountered "a mentally-disturbed student bleeding and holding a piece of glass," says the police report. "Upon their arrival, the officers were confronted by a highly agitated and disturbed male bleeding and smearing blood on his face while clutching a piece of glass in his left hand." The officers tried to talk the boy into giving up the glass and tossing it into a wastebasket. The boy refused and "attempted to cut his leg with the shard of glass." The report says that officers then shocked the boy to keep him from hurting himself more extensively. The boy "dropped the glass and was subdued without further incident."
The officers shot the boy with the taser "for his own safety and to stop him from hurting himself," says DelCastillo of the Miami-Dade police. As for the appropriateness of shocking a six-year-old, DelCastillo says, "Our understanding is that there has been research" and that the taser causes "no aftereffects." He says there is "no reason that would cause harm to someone younger than an adult."
But the research is not nearly so clear-cut.
A scientist who tested some of the early tasers for the Canadian government recommended that the government ban the devices. Andrew Podgorski says his tests showed the devices could cause death. He says that children could be especially vulnerable.
The use of a taser on the six-year-old disturbed Rudolph Crew, superintendent of Miami-Dade schools. In a Nov. 16 letter to the police department, Crew wrote, "While I acknowledge the need of law enforcement officers on occasion to subdue and to restrain members of the public, I believe that certain tactics should never be used in dealing with young children--particularly within a school." Crew recognized that the student "was agitated and injured." But, he said, "Police officers have dealt with other children in this condition without resorting to a taser." Crew requested that the police department "refrain from deploying or discharging tasers against elementary school students in Miami-Dade County public schools" and that officers use the taser only as a "last resort" on older students.
Tony Hill, the Democratic whip in the Florida State Senate, was so concerned that he sponsored a bill that would prohibit schools from using tasers on schoolchildren.
"Every day here in Florida," says Hill, there are reports of "use of a taser on someone." But, he says, it was a group of tasings at schools near Palatka, Fla., that first made him wonder about the appropriateness of the weapon. "They all were African-American kids," he says. "That raised a red flag."
In early January, the Miami-Dade police revised their guidelines. The new policy "requires officers to consider factors such as age, size, and weight," in addition to other considerations, reported the Associated Press.
Crew and Hill are bucking a trend: the increasingly common use of tasers against students. Taser International says that 32 percent of the police departments it interviewed include tasers in local school systems, reported the Birmingham News.
In Birmingham, Ala., officers armed with tasers will soon patrol the hallways of many schools. Superintendent Wayman Shiver says he's OK with that.
"You have got to have something that the children fear," says Shiver, who has heard about people who were injured or who died after being hit with a taser. "We have to be in a position to control these schools by whatever means possible."
For Virginia Volker, a Birmingham School Board member, "whatever means possible," is too much. "It's easier for systems to say, 'Zap them, throw them out,' something technical, when there's not a technical fix," she says. "It's a human problem."
Like Shiver, Volker also talks about problems with fighting in the schools, but she opposes the taser. "It's treating the children as criminals," she says. "It doesn't address why the children are acting out."
In the South, electronic shocking devices have a disturbing precedent, says Volker. Back in the time of the civil rights marches, sometimes the police department would use cattle prods on protesters. "When I think of the taser," she says, "I think of that."
Dexter Massey is president of the PTA at Parker High School in Birmingham. He says he took a taser instruction course from the police academy, but he still has doubts about the device when it comes to kids. The trainers, he said, told him that the average shock from the taser is three seconds. "Who's to say how many seconds it takes to die?" he asks. "Got my drift?"
Taser International, which features the slogan "Saving Lives Every Day" on its web site, is also hawking tasers directly to consumers.
"Choose your citizen taser device," says the company. Calling them "home self-defense systems," the company says tasers are a "safe and effective defense" that is "easy to use" and has "no aftereffects or contamination." The company offers three different consumer models, including one with a 15-foot range. The police version, the M-26, has up to a 21-foot range. So, presumably, in a taser duel between a police officer and a consumer, the officer would win.
On Jan. 26, Jim Weiers, House speaker in the Arizona legislature, announced that he would propose a bill that would give police officers--and citizens--the upper hand against consumers who buy the tasers. It would allow the state's "police officers and ordinary citizens the use of lethal force in confronting people who threaten them with remote stun guns such as tasers," reported the Associated Press.
The consumer models sell for $399.95, $599.95, or $999.00.
What if Republican shenanigans tip the election? Many members of the media are looking at the dangers voting machines may pose to the integrity of the national election. Others are wondering whether voters may be disenfranchised by use of faulty felon lists, as happened in Florida in 2000. But there is another danger: Republicans may use a variety of tactics to suppress the vote of racial minorities in swing states. These tactics could determine control of the White House or the Senate.
In August, the Zogby International poll raised the number of battleground states from sixteen to twenty. In those states, notes John Zogby, "the pounding has been relentless."
Zogby was referring to negative ads, but the sanctity of the vote is also taking a pounding. In some states, Republicans are threatening to conduct widespread vote challenges in heavily minority areas. In others, recent events suggest that poll workers may wrongly turn away voters. In still others, new laws passed or enforced by Republicans have erected hurdles to trip up the minority vote. And on Election Day itself, say advocates, Republicans may direct numerous tricks at Democratic districts in an effort to confuse or frighten voters.
Here's a rundown of what's happening in several swing states.
On the ballot in Arizona this November is a Republican-authored referendum called Protect Arizona Now or Proposition 200, which would do several things, including requiring proof of citizenship for anyone registering to vote. Steve Gallardo, a Democratic state legislator from Arizona, worries about what some supporters of that initiative might do. "There's a lot of rumors... that they want to stand out in front of polling places and report voters-anyone they feel is here illegally and is voting in our elections," he says. "Our fear is they're going to intimidate Arizona citizens, U.S. citizens who are brown-skinned. Imagine going up to the poll and seeing a man standing there with a gun and asking if you're a citizen. Are you not going to turn away?"
The Arizona attorney general's office acknowledges that it has heard similar rumors.
Does Protect Arizona Now plan to make an appearance at the polls? "I really don't know what we're going to do," says Kathy McKee, the founder of Protect Arizona Now. She says she's worried about fraud.
"In our state, a person can register to vote from a computer in their home, mail in their registration, and they have not shown their face in public, much less their identity," says McKee. Lots of people, she says, are "coming across our borders illegally and getting jobs, which is a felony. Why would they hesitate to vote?" McKee and other Protect Arizona Now members say that voter fraud is already high in the state and is bound to rise in the close election. The voter registration drives targeting the state have piqued their anger. "There are several groups from around the country that have just besieged Arizona," says McKee. "Project Vote Smart, which really disappointed me. The infamous Southwest Voter Registration Project, Moving America Forward, New American Freedom Summer, the Urban Institute. They have been in this state only targeting Hispanic voters. That's the most racist thing I've ever heard."
On September 7, primary day, two gentlemen came to Tucson Precinct 30, says a poll worker there named Ross (who does not want his last name mentioned). "They were both very intimidating and forceful looking," he says. "They said they were checking polls to see if illegal aliens were voting. They said their organization's name was Truth in Action." The men, says Ross, told him they believed that "Mexicans are coming to vote because it's really easy."
"They were making the runs on all kinds of polls," says Aurora Duron, AFL-CIO Tucson coordinator of the My Vote-My Right Campaign.
Russ Dove is editor of tianews.com, the website of Truth in Action, which supports Protect Arizona Now. He says he visited five polls on September 7. As a door-to-door campaigner for Proposition 200, Dove says he heard "verbal evidence from individuals on the street who said, 'Yes, illegal immigrants are voting.' " Dove says he is "bent on discovering" how many are doing so.
On the day I contact Dove, he is a little out of sorts. The AFL-CIO, he says, has accused him of intimidating voters. "Why would someone who supports the Constitution and wants to exercise his rights as a citizen intimidate U.S. citizens?" he asks. "What they're saying is that they know there are illegals voting."
On primary day, Dove says he sported "a black T-shirt with 'U.S. Constitutional Enforcement' on the back" and the image of a badge on the front. "I wear a tool belt," he says. On primary day, that belt carried tools, a camera, and a video recorder. Dove says he used the camera to take "some photographs of the polling places." He used the video recorder to film "all the conversations I had." Dove says that more people want to monitor polls in November. "After the AFL-CIO threw their fit," he says, people started wanting to get involved. "They said, 'Let's get the T-shirts printed up and let's go," he says.
"The only people we will bother are people who are in violation of the law," says Dove. For instance, if he sees "a busload of Hispanic individuals who didn't speak English and who voted," he plans to follow that bus to make sure they aren't voting more than once.
The state that started it all in 2000 is no stranger to controversy this election. In July, The Miami Herald revealed that the state issued faulty felon purge lists containing the names of 48,000 people it said were ineligible to vote. Among these were 2,100 who actually were eligible voters. Many of these people were African American Democrats. The list of 48,000 also contained only sixty-one Hispanic names. (Because of Florida's large Cuban population, the Hispanic vote in Florida is predominantly Republican. The Florida African American vote, on the other hand, tends to be heavily Democratic.)
In mid-August, New York Times columnist Bob Herbert revealed that the state was investigating get-out-the-vote drives among blacks in Orlando by sending armed police officers into the homes of citizens who had filed absentee ballots. Most of these citizens were African American, and many were elderly.
And in Florida's late August primary, representatives from People for the American Way saw poll workers turn back registered voters who neglected to bring their IDs. "Under Florida law," noted The New York Times, "registered voters can vote without showing identification."
But there's a lot more going on in the state, according to Alma Gonzalez, spokeswoman for the Voter Protection Coalition in Florida and special counsel to the American Federation of State, County and Municipal Employees. "We keep hoping that they've learned from 2000," but early indications are that they haven't, she says. "When some of our members have gone to early voting or to register to vote, they're being asked if they're citizens of the United States." Gonzalez says she has heard from "about half a dozen people, all of them in South Florida," who approached the polls as part of the early election only to be asked their citizenship. And it's not poll watchers who are asking, says Gonzalez. It's "the poll workers, the duly deputized election officials."
Registered voters, Gonzalez points out, have already attested to their citizenship in their registration forms. "They cannot ask you your citizenship at the polling place. It's unlawful," says Gonzalez. "When that question is asked of you" based on your skin color or the fact that you have an accent, "it is not intended to ensure that you're complying with the law. It's intended to suppress voters." And, even though public attention to the faulty felon voter purge lists led the Florida government to say belatedly that it would not use them this time, the word has traveled slowly. "We are still getting reports from people when they go to vote in different parts of the state," says Gonzalez. "Apparently, there are still inaccuracies."
Then there's the provisional ballot crisis. In Florida in 2000, many people who attempted to vote found that they were not on the rolls, even though they had registered. This is the reasoning behind the provisional ballot requirement in the federal Help America Vote Act. If a voter is wrongly removed from the rolls in the future, he or she should be able to file a provisional ballot. Most states interpret this part of the act as allowing provisional ballots as long as the voter files them in the correct county. Florida is a little different. Rather than the correct county, voters must submit their provisional ballots to the correct precinct. "This will disenfranchise thousands and thousands of voters," says Gonzalez.
So the AFL-CIO is suing Florida Secretary of State Glenda Hood, along with two election supervisors from areas of Florida that have seen some of the largest population increases, and some of the most marked changes in precinct lines. The precinct requirements "impermissibly abridge the right to vote," the AFL says.
How intentional is all this on the part of Florida officials? "They're all intentional," Gonzalez says. "People didn't do these things in their sleep." Then she qualifies the point, saying the real question is, are they intentionally trying to suppress voter turnout? "I'm not going to make that allegation," she says. "I know what the result is." And, she points out, under the Voting Rights Act, the issue is not whether you intended to disenfranchise people, but what is the result. "These election schemes and the conduct of these officials are undermining" the rights of people to vote.
Michigan is the state that Jon Greenbaum, director of the Voting Rights Project for the Lawyers' Committee for Civil Rights Under Law, mentions as a potential trouble spot. On July 16, the Detroit Free Press quoted John Pappageorge, a Republican state representative from Troy, Michigan, who said, "If we do not suppress the Detroit vote, we're going to have a tough time in this election cycle." Detroit is 83 percent African American.
Pappageorge later told the Associated Press that he was not advocating suppression of the black vote but that "you get it [the Detroit vote] down with a good message."
Cecelie Counts, AFL-CIO director of civil, human, and women's rights, says she thinks Pappageorge was acknowledging the truth the first time around. "That is the political reality in most of these swing states," she says. Democrats "can't win Ohio or Michigan or Pennsylvania without the African American vote, without a tremendous African American vote." And, she says, by using census numbers, Republican strategists "can pinpoint places" where minority voters are likely to influence an election. "They know it's Detroit. They know it's Kansas City and St. Louis. They know it's Las Vegas."
In late April, the Republican Party of Michigan announced that it hoped to recruit 1,000 poll watchers to monitor elections. The party told the Detroit Free Press that it planned to assign 300 of those to Oakland County, home of Pontiac, which is heavily minority. Why? The Republicans claimed that they had evidence that some people there had voted up to four times under different names. But even Republican Oakland County Clerk G. William Caddell doubted the allegation. "Last night was the first I'd heard of any problems," Caddell told the paper. "I want to be a good party person, but I haven't heard about this, and none of my local clerks have reported problems."
"We know there is going to be an aggressive effort to have poll watchers" across the country, including in Pontiac, says Greenbaum. "A poll watcher can be very intimidating." He says poll workers can confront voters with questions like, "What's your name?" or "What are you doing here?" or imply that the voters shouldn't be voting.
At issue is whether the poll watchers "are making accusations" that are based on real reasons or whether they're trying to slow down the lines "and impede voters, so less polling gets done," says Greenbaum.
Michigan is no stranger to aggressive poll watchers. In the 1999 election, a group calling itself Citizens for a Better Hamtramck went to the polling centers in Hamtramck, Michigan, and approached people who appeared to be Arab. "As people were standing outside waiting to vote, this group took it upon itself to ask people to prove they were citizens," says Laila Al-Qatami, communications director for the American-Arab Anti-Discrimination Committee. "They were asking voters to step aside and say an oath of citizenship, even if they were capable of producing a U.S. passport." The group, says Al-Qatami, humiliated people, prohibited people from entering and voting and broke the law. The U.S. government filed a lawsuit that claimed violations of the Voting Rights Act. As part of an agreement resolving the suit, the U.S. Justice Department sent election monitors to Hamtramck between 2000 and 2003.
The secretary of state of Missouri, Matt Blunt, is running for governor on the Republican Party ticket. "This gentleman has a vested interest in suppressing the black voter turnout in this state," says John Hickey, executive director of the Missouri Progressive Vote Coalition.
"That is a ridiculous statement," says Spence Jackson, spokesperson for Blunt. "It is directly because of Matt Blunt's leadership that we have provisional balloting in our state." Because of Blunt, says Jackson, "thousands of voters have been given the opportunity to vote when they otherwise would not have had it." Provisional ballots allow voters who lack IDs, or whose names don't appear on the rolls, to cast votes. But the version Blunt introduced, concedes Jackson, requires that voters file any provisional ballots in the correct precinct-a demand that prompted a lawsuit from the Democratic Party and some citizens of Kansas City.
The suit claims that the new federal Help America Vote Act supersedes the older state law. It also alleges that toll-free help lines were so jammed during the August primary that many voters were unable to find out their correct polling site.
Other ominous problems cropped up that day. "In Democratic districts, which also happened to be predominantly African American, there were polls that opened late, like 10 a.m. instead of 7 a.m., which is a real problem for working people," says Counts of the AFL-CIO. "The hours weren't extended during the evening." Counts also says that "people who showed up without ID were turned away from the polls and not given /provisional ballots," even though that's what the law required.
The ID requirement, says Hickey, is a new law aimed at the black vote. It requires voters "to present the picture ID, unless the election official recognizes you." Where are they going to recognize you? asks Hickey. In small towns and rural areas, which, he points out, are majority white. In urban areas, says Hickey, it's more likely that poll workers won't recognize you, especially in areas that are poor and where people move frequently. "That means you need a picture ID in the city and not the country. The city's black. The country's white."
The new law amounts to "a sophisticated effort to suppress the vote," says Hickey. And he says the Republicans have given thought to this strategy. "OK, if we can shave off 1,000 black votes here and 500 black votes there, that's how" we're going to win. "It is disproportionately excluding poor and minority voters, and that is exactly why the Republicans passed that law after they took over the legislature."
In late August, Gary Peck, executive director of the ACLU of Nevada, met with the registrars from the Reno and Las Vegas areas. Peck says the registrar of Washoe County, which includes Reno, "noted that he had received calls" from people identifying themselves as members of the Republican Party. These Republicans, according to Peck, said "they intended to be out at polling places to challenge voters."
The registrar of Washoe County is Daniel Burk. "An official of the Republican Party" came to his office one day with a small group, he says. The official asked how to launch a "full-scale program for challenging voters who come to the polls." Burk says he informed the Republicans that vote challenges should be used narrowly, when one voter with personal knowledge of another calls attention to a problem.
"One said, 'Well, we were thinking of a wider scale use of it. We were thinking of challenging lots of voters,' " says Burk. It was the way they looked at each other, he says. "I began to wonder, what are they up to? I just told them I wouldn't tolerate it. The process isn't designed for one party challenging another."
Burk worked as a registrar in Oregon for eighteen years before he came to his position in Nevada seven years ago. "I have never in all those twenty-five years had a person challenge another person," he says.
The revelations, says Peck, are "consistent with reports people are getting all around the country. Republicans have a national strategy of going out and challenging voters" come November 2. "Our concerns are utterly nonpartisan," says Peck. "It's the integrity and fairness of the election." Although Nevada law does allow for voter challenges when a challenger has personal information about a voter's citizenship or place of residence, "it becomes problematic when people are using this strategically, in a partisan way." For instance, he says, "it would certainly be improper if they picked out the names of Latinos."
Juventino Camarena, a field representative for the Painters Union, is registering voters and keeping an eye out on voter protection issues as part of the My Vote-My Right campaign of the AFL-CIO. He is worried. "The people have been thinking what happened in Florida couldn't happen in Nevada," Camarena says. "Now, we're seeing little tactics here and little tactics there. There are all kinds of ways to confuse a person so bad that he takes it to his heart that it's so difficult, and I'm doing it for what? I've seen it in Mexico since I was a little kid. That's why I took it to heart to stop it. They're suppressing the right of the voter."
In August, a group comprised mostly of Republicans filed a suit claiming that people who were registering for the first time through a third party voter registration group, such as ACORN, should have to show IDs when they voted. The group said it was worried about voter fraud. Democrats said the Republicans were trying to disenfranchise voters.
"The plaintiffs are not able to demonstrate any fraud whatsoever," Luis Stelzner, an attorney, said while arguing against the ID requirement, according to the Associated Press. "The only thing we've heard from them is a vague fear of fraud." (Two plaintiffs in the suit who said that they were concerned about voter registration fraud admitted that they knew of no instances of the crime.) On September 7, Robert Thompson, a state district judge, refused to issue an injunction to force people to show IDs at the polls. "The eleventh-hour request by the plaintiffs creates a risk of substantially disrupting the public voting process, which far outweighs any potential harm to the plaintiffs," wrote Thompson in his decision.
The fraud allegations may be the least of the problems. Reyna Juarez, the administrative director of Revisioning New Mexico, a social justice organization connected to the International Association of Machinists and Aerospace Workers, says that in 2000 her organization received reports that the immigration patrol showed up near some New Mexican polling sites. "Down south, they have the migra trucks that sit outside and scare people away," she says. "Not necessarily right outside the polls but in the neighborhood of the polls, so you see these enormous lime-green trucks."
South Dakota is hardly a swing state in the common sense, since George W. Bush is set to win here by a landslide. But the state is seeing a rough Senatorial race. The Republicans have targeted Senate Minority Leader Tom Daschle for removal. And one tool is a new law that requires all voters to show ID at the polls and get all absentee ballots notarized.
During the 2002 election, Democratic Senator Tim Johnson won his seat by only 524 votes. He had strong Native American support. Republicans weren't happy about that. "In South Dakota, the common tactic is to allege voter fraud," particularly when the Democrats win, says Bryan Sells, staff attorney with the ACLU Voting Rights Project. "Usually it's called 'Indian voter fraud.' In fact, I can't recall a case of someone alleging 'non-Indian voter fraud.' The idea is, whether true or not, you create the sense" that Native American voters are not to be trusted.
After investigating fifty charges of fraud following that 2002 election, State Attorney General Mark Barnett, a Republican, said, "There was no widespread fraud and the election results are valid. No one stole the election."
Nonetheless, Republicans introduced legislation that Sells characterizes as "voter suppression." The legislation requires South Dakotans to show a picture ID in order to vote or else write up an affidavit. And, if they vote by absentee ballot, they need to get it notarized. The legislation, he says, will make it "harder to vote at the polls, harder to register, and harder to vote by absentee ballot," especially for people on reservations. "I don't know if you've ever been to a reservation, but there aren't a lot of notaries around."
Among Native Americans in South Dakota, there is a widespread belief that the legislation is aimed at them. "They decided, we got to do something to slow down the Indian vote," says Alfred Bone Shirt, a plaintiff in one of the five recent voting rights lawsuits the ACLU has filed in the state. "The bottom line of it all is racism." Jesse Clausen, who has been active in many voter registration drives, puts it another way. "In the summer of 2003, the South Dakota State Senate passed new laws to keep Native American people from voting," Clausen says. "Indian people living in poverty might have higher priority on other things than spending $8 to get their driver's license." Clausen points out that many people on the reservations don't have cars.
During a special election held on June 1, the effect of the new law on the Native American vote started to show. "People would go in and say, 'Well, I don't have an ID,' and [poll workers] would let it be known that if they didn't have an ID, they should turn around and leave," says Clausen.
Poll workers weren't supposed to do that. According to the law, they were supposed to give voters who lacked IDs an affidavit. Once signed, the affidavit would allow people to vote. Jason Schulte, executive director of the Democratic Party of South Dakota, says that, "mostly on or near reservations," people who forgot to bring their IDs "were not told about the affidavit scenario." Daschle himself says he "heard from countless voters who experienced difficulty when attempting to vote."
"Indians were disproportionately affected by the ID requirement," says Sells, adding that there were just more hurdles for Native Americans to leap.
Is this intentional on the part of the Republicans? Sells doesn't hesitate. "Yeah," he says. "In South Dakota, anyway. I don't for a minute suggest that Republicans have the suppression market cornered, but that's how it operates in South Dakota."
Additional efforts to suppress the vote are bound to happen in the last week of the campaign and on Election Day itself. Then, it will be almost impossible to remedy the situation.
Jim Gardner, communications director for the Missouri Democratic Party, describes some of the tactics that he says have happened in his state during past elections: "Videotaping people as they're coming into the polling place. Parking near a polling place in a Crown Victoria with a couple of guys in dark suits.... A whisper campaign that everyone trying to vote who has outstanding traffic tickets will be arrested." Gardner, who says the party had reports of such occurrences in 2000, says the Missouri Democrats have also heard stories in past elections of people handing out flyers in Democratic precincts that say, "Don't forget to vote on Wednesday, November 4," when the election is Tuesday, November 3.
If groups start trying to suppress the vote a month out from the election, says Greenbaum of the Lawyers' Committee for Civil Rights Under Law, "it gives people like us plenty of opportunity to react." Whereas, if voter suppression happens just before or the day of the election, "it's actually more likely to be effective." Greenbaum's organization faxed me a series of signs that have appeared in Democratic precincts on or near election day. One sign, which appeared in Baltimore in 2002, is entirely in capital letters. "URGENT NOTICE," it reads. "COME OUT TO VOTE ON NOVEMBER 6th. BEFORE YOU COME TO VOTE MAKE SURE YOU PAY YOUR
- PARKING TICKETS
- MOTOR VEHICLE TICKETS
- OVERDUE RENT
AND MOST IMPORTANT
A second sign, this one from 1996, uses a tiny font to inform prospective voters that they may get into trouble when they walk into the booth. "Thanks to advances in computer technology Voting Machines can now be equipped with computers inside. The computers can be connected to a phone line to Federal State, and Local government agencies to instantly check if a voter is:
- A NON-CITIZEN
- Wanted on Criminal or Traffic Warrants or Parole or Probation violations
- Is behind on child support payments
- Is cheating on Welfare, Food Stamps, AFDC, Section 8 or Medicaid by earning money 'off the books'
- Has defaulted on government-backed student loans
- Has failed to file income taxes for two or more years."
In late August, People for the American Way and the NAACP released a report entitled, "The Long Shadow of Jim Crow: Voter Intimidation and Suppression in America Today." "In every national American election since Reconstruction, every election since the Voting Rights Act passed in 1965, voters-particularly African American voters and other minorities-have faced calculated and determined efforts at intimidation and suppression," says the report. However, it describes recent voter suppression tactics as "more subtle, cynical, and creative" than "the poll taxes, literacy tests, and physical violence of the Jim Crow era."
Jim Crow is still casting a very long shadow.
On June 16, the commission charged with investigating the events of September 11 announced that Al Qaeda's early attack plans had included "unidentified nuclear power plants." You might think the Bush Administration would respond by doing all it could to prevent a terrorist-triggered disaster at these plants.
Think again. The Bush Administration is actually relaxing the fire safeguards there.
Instead of insisting that the plants have heat-protected mechanical systems in place that will shut down reactors automatically in case of fire, which is the current standard, the Bush Administration would actually let the power companies rely on workers to run through the plants and try to turn off the reactors by hand while parts of the facilities are engulfed in flames.
"The result could be catastrophic," says a March 3 letter from Rep. Ed Markey (D-MA), and Rep. John Dingell (D-MI), to Nils J. Diaz, chairman of the Nuclear Regulatory Commission (NRC). "This would assign reactor personnel the duty of rushing directly to the shutdown equipment located throughout the reactor complex to shut down the reactors manually, and would potentially take place in station areas affected by smoke, fire, and radiation and possibly under attack by terrorists."
Inside the NRC, the idea of people dodging flames and possibly high radiation areas to try to avert a meltown has raised some eyebrows. In a September 2003 meeting, one member of a panel on reactor fire safety repeatedly pointed out that relying on humans to do work in dangerous conditions and under stress was asking for trouble. It's difficult to prepare operators, said Dana Powers, a member of the Fire Protection Subcommittee of the Advisory Committee on Reactor Safeguards. "How do you do that?" he asked. "How do you simulate smoke, light, fire, ringing bells, fire engines, crazy people running around?"
So why is the NRC proposing to relax the fire safety standard? Amazingly, because many nuclear power plants have not been abiding by current regulations to put up proven fire barriers. Rather than demanding better fire safeguards or insisting that nuclear power companies at least abide by the current ones, the NRC wants to let them off the hook. It's as if car drivers were regularly going 90 mph, so the government raised the speed limit to 90.
"It appears that after discovering that many reactor licensees were out of compliance with the automatic safe-shutdown fire regulations, the commission has decided to gut these regulations rather than force nuclear power plant operators to comply with them," says the Markey and Dingell letter. The NRC made its decision, according to Markey, "at the behest of the nuclear industry."
Current regulations require plants to maintain two sets of electrical circuitry that enable the reactor to shut down automatically in an emergency. These cables either must be encased in proven fire-retardant materials or must be separated by a distance of 20 feet with no combustible materials in between. That way, if one electrical system burns up, the plant can turn itself off, even if the fire is so destructive that no staff members are left to do that work.
The NRC introduced a proposed rule change on November 26, 2003, the Wednesday before Thanksgiving. It said that, instead of putting in fire barriers, nuclear plants could rely on personnel to turn the plant off by hand in the event of a fire that threatens the reactor. The rule change may go into effect as early as next spring.
The rulemaking started after the NRC met with the Nuclear Energy Institute (NEI), an industry group, which admitted that many of its members did not have the required safeguards in place. "NEI indicated that the use of unapproved operator manual actions in the event of a fire is pervasive throughout the industry," noted William D. Travers, then the NRC's executive director for operations, in describing the proposed rule to the commissioners. (Procedures for shutting down a reactor by hand are called "operator manual actions.")
Faced with resistance from industry, the NRC found itself in a predicament. "A concerted enforcement effort," wrote Travers, "creates a prospect of significant resource expenditure without clear safety benefits." He warned that the NRC could be flooded with requests for exemptions from the rules.
Fires are not uncommon at nuclear power plants. "Typical nuclear power plants will have three to four significant fires over their operating lifetime," says a 1990 NRC document. "Fires are a significant contributor to the overall core damage frequency."
Fire itself will not blow up a reactor, say critics and industry representatives alike. But if the electrical cabling burns and the pumps that cool the reactor core become disabled, the core could begin to overheat, and the reactor could melt down. Millions of people could then be exposed to radiation.
Shearon Harris nuclear power plant sits about twenty-two miles south of Raleigh, North Carolina, in one of the fastest growing population centers in the United States. So I give Progress Energy, the company that runs the plant, a call. "Fire protection is such a mundane issue," says Rick Kimble, manager of general communications for the company. And he suggests that I shouldn't worry about fires at nuclear reactors because the facilities, built of concrete and rebar, are unlikely to burn and are designed to shut down automatically. Nevertheless, he sets up a meeting with me at the plant's visitors center, a common field-trip destination for local school groups. He says I'll be able to see "images of the plant, basics of how the plant works, cutouts showing the amount of concrete and steel rebar." He even recommends a hotel. I tell him I will make a plane reservation now that I have a confirmed meeting with him.
But the following week, several days before I am scheduled to fly out, Kimble calls to say that our meeting is cancelled. No one from the plant will meet with me. And, unlike the school kids, I am not welcome at the Shearon Harris visitors center. Fire prevention, says Kimble, is an industry-wide issue. "We don't think we should be singled out," Kimble explains. Anyhow, he says, "there would not be a catastrophic fire in a nuclear plant." That's because nuclear fuel is not flammable. Even if there was a meltdown, it would be contained, says Kimble.
"That's a ludicrous statement," replies David Lochbaum, nuclear safety engineer for the Union of Concerned Scientists. "Browns Ferry was also made out of concrete and steel."
One day in 1975, some workers were checking a seal on the secondary containment building at the Browns Ferry nuclear plant in Alabama. They accidentally started a fire. The fire "was in the insulating material around the cables. It was in a cable tray," says Craig Beasely, a communications specialist at the plant. The fire began in a part of the plant Beasely calls "the cable spreader room," which he defines as "the place where the cables come together." The fire lasted "about seven hours," says Beasely. Some of the cables that caught fire, he confirms, "did control some cooling" to the reactor core.
"Temperatures as high as 1500°F caused damage to more than 1600 cables routed in 117 conduits and twenty-six cable trays," says a draft report by the Sandia and Brookhaven Laboratories. "Of those, 628 cables were safety related, and their damage caused the loss of a significant number of plant safety systems."
A 1976 paper by the Union of Concerned Scientists was entitled "Browns Ferry: The Regulatory Failure." Observing that the fire rendered all safety equipment inoperative and that thick smoke, loss of control over the reactor, and "inadequate breathing apparatuses" interfered with the operators' attempts to save the plant, the paper sums up the event in these words: "TVA nuclear engineers stated privately to the authors that a potentially catastrophic radiation release from Browns Ferry was avoided by 'sheer luck.' "
Company protests to the contrary, Shearon Harris merits attention. The most recent NRC fire inspection describes more than 100 manual action shutdown procedures that, in case of fire, would send personnel out to turn off the plant and prevent a meltdown. "We've not seen any numbers higher than that," says Paul Gunter, director of the Reactor Watchdog Project for the D.C.-based Nuclear Information and Resource Service.
The NRC's 2002 Triennial Fire Inspection of Shearon Harris describes some of these operator manual actions. One, the NRC says, involves "excessive challenges to operators," including "exposure to smoke that would leak past the door and to the fire brigade who would be opening the door, entering the narrow [15 inches wide] energized electrical cabinet, and using a metal screwdriver inside the cabinet and seven feet above the floor with poor visibility and poor labeling. . . . Operators may not be able to start the auxiliary feedwater pump."
Jim Warren, executive director of the Durham-based NC WARN (North Carolina Waste Awareness Reduction Network), characterizes the procedure this way: "Get the step ladder and go up in the closet in the darkness, and hope you don't fry yourself."
The inspection noted that one operator "may be required to complete as many as thirty-nine manual actions." The inspection found nine fire safety violations altogether. In a March 2004 presentation the government made at an annual assessment meeting on the Shearon Harris reactor, the NRC described these "fire protection issues" as "potential significant findings."
Nevertheless, the NRC inspection did not come down hard on Shearon Harris. "The finding was of very low safety significance because of the low fire initiation frequency," it said. That is, the NRC doesn't think a fire is likely.
Kimble says the reactor has dealt with the violations. "We have made corrections, done everything that has been suggested by the NRC," he says. But Warren is not so sure. "Absent any evidence from Progress [Energy], either in person or documented, that they have corrected those problems, I'm left to assume that they're still there," he says.
Papers released as part of a Freedom of Information Act request reveal that some fire violations at Shearon Harris have gone on for years, either without correction or with corrections that the NRC later determined were inappropriate.
In April, the plant informed the NRC that the fire barriers were missing entirely from cables that power twenty-one valves used to control the flow of cooling water to the reactor core. The plant informed the NRC that it would take two years to fix the problem. The violations date back to 2002.
So I keep my plane ticket. I decide to get a look at the cooling tower and a feel for the evacuation zone, the ten-mile radius surrounding Shearon Harris.
I drive in a downpour, on an afternoon when tornadoes lift the roofs in nearby towns, to the hotel Kimble suggested.
The hotel sits in Apex, a town with the slogan "the peak of good living," though there are no mountains, or even hills, in sight.
Warren and I drive around the zone, seeking a view of the reactor. We pull over at Jordan Lake, where we get a glimpse of the tower, its feet in the trees and its head in the clouds. Aesthetically, it's a graceful structure, a triumph of modern design out in the woods. "That cooling tower is over 600-feet tall," says Warren.
Jordan Lake is a popular weekend destination for people in the Triangle region. Below the parking lot where we stand is a dam. The U.S. Army Corps of Engineers controls the inflow and outflow of water, says Francis Ferrell, a Corps engineer who wanders out to the parking lot to meet us. "We actually have a contingency plan" in case of a nuclear emergency, he says. "We're supposed to go out on the lake and tell people," obtain geiger counters after a rendezvous on Highway 64, and report back measurements. "I think our boss is trying to get that taken out of our job descriptions," he says. "That would be fine with me."
We drive to the other side of Shearon Harris to the front entrance, where we get out and walk on the road, stopping short of the "Private Property" signs. But the guards notice us, jump into their truck, and drive up to inform us that we can't stand there, that we need to cross the highway. The guards are armed. When Warren tells them I am a reporter, they tell me to call the PR office. Then they sit in their truck, watching, until we turn the car around and leave. "At least we know they're paying attention," says Warren.
A 2003 study put out by Orange County, North Carolina, which is near Shearon Harris, determined that "total evacuation [of the six-county region along the Interstate 40/85 corridor] would take 5.8 days, assuming that all interstate lanes would be directed for outbound traffic."
"I reconcile myself that I may lose everything," says Judy Hogan, a writer, teacher, and activist who lives in Moncure, just a few miles from the plant. "For a while, I was keeping my unpublished books on disks in the trunk of my car because that would be my biggest loss." Now that she owns a truck, she keeps the disks in a briefcase in her bedroom. In that room, Hogan also has a tone alert radio, which she says Progress Energy gave to her because she lives within five miles of the plant. The radio, she says, will sound an alarm for bad weather, as well as for nuclear emergencies.
In 2003, partly in response to anxieties about terrorism at nuclear power plants, the state of North Carolina made potassium iodide (KI) available to people living near nuclear reactors. Hogan went to the local school to get them. She digs out her foil-wrapped pills (each person gets two) from her purse.
Two information sheets accompany the pills. One of these describes potassium iodide as "an over-the-counter medication that can protect one part of the body – the thyroid – if a person is exposed to radioactive iodine released during a nuclear power plant emergency." The sheet says to take one tablet per twenty-four hour period, and it adds an admonitory note: "Remember . . . taking KI is not a substitute for evacuation. Leave the area immediately if you are instructed to do so. Do not take KI unless public health officials tell you to take it."
The other sheet is entitled, "Frequently Asked Questions About a Radioactive Emergency." It begins, "Radiation is a form of energy that is present all around us. Different types of radiation exist, some of which have more energy than others."
Kimble is right. Fire safety is an industry-wide issue. And Shearon Harris is not the only plant with a long list of violations.
For instance, in Hutchinson Island in Florida, a March 2003 Fire Protection Baseline Inspection of the St. Lucie Power Station found that "many local manual operator actions were used in place of the required physical protection of cables for equipment relied on for SSD [safe shutdown] during a fire, without obtaining NRC approval for these deviations from the approved fire protection program. This condition applied to all areas that were inspected."
Rachel Scott, nuclear communications manager for Florida Power and Light, says that this inspection "pointed up an industry-wide" practice, where reactors "have been implementing manual actions" against NRC regulations. So, says Scott, the NRC decided "to allow the licensees to substitute manual actions, as long as the manual actions were feasible." The NRC, says Scott, "did determine that the manual actions" at St. Lucie Station "were feasible," meaning "that they could serve safe shutdown." Scott says the plant has not put in fire barriers or separated the cables, but is instead waiting for the new regulation to take effect.
At another Florida reactor, this one in Citrus County, a Triennial Fire Protection Baseline Inspection in July 2002 discovered, according to a "Briefing Summary," that not only did the Crystal River plant use "a significant number of local manual actions" instead of automatic shutdown, but that the plant's fire plan neglected to give adequate consideration to some of the practical difficulties of shutting a nuclear power plant down by hand. The omissions included, in the NRC's words:
* Complexity of the new local manual actions.
* The number of manual actions and time available for completion.
* Availability of instruments to detect system/component mal-operations.
* Human performance under high stress.
* Effects of products of combustion on operator performance.
* Available manpower, timing, and feasibility of local manual actions.
Mac Harris, communications supervisor for the Crystal River site, which is run by Progress Energy, says that the above problems eventually received a green, non-cited violation. "Green is considered very low safety significance," he says. The Crystal River Plant, he says, "dealt with the identified issues" by making "some revisions in the fire protection plan," a process it completed in May.
The Nuclear Information and Resource Service obtained these records, and those from Shearon Harris, through a Freedom of Information Act request. The records of fire safety violations are still coming in, says Gunter. "I'm told that when we're done, the stack will be ten feet tall," he says. "That's how widespread the noncompliances are."
A March press release by Markey's office provided "a partial list of reactors that are out of compliance with NRC fire protection regulations." Here are the reactors:
Arizona: Palo Verde Units 1,2,3
Arkansas: Arkansas Nuclear One Units 1,2
California: Diablo Canyon Units 1,2
Florida: Crystal River, St. Lucie, Turkey Point 3,4
Louisiana: River Bend
Mississippi: Grand Gulf
Nebraska: Fort Calhoun
New Jersey: Oyster Creek
North Carolina: Shearon Harris 1, McGuire Units 1,2
Pennsylvania: Beaver Valley 2
Tennessee: Sequoyah Units 1,2, Watts Bar
Texas: Comanche Peak 1,2
At Davis-Besse, the Ohio nuclear reactor with a history of safety troubles that sits twenty-five miles from Toledo, fire protection is a problem.
Phil Qualls, an NRC senior fire protection engineer, sent an e-mail to Dennis Kubicki, a former colleague who had worked on a report on safety at Davis-Besse. Qualls said he went over that 1991 report, and that it contains "some pretty outrageous stuff. Things like . . . complete manual actions" instead of the fire barriers required by law, "and a variety of fire protection issues." He warns Kubicki, "your name is on this document. The s___could hit the fan hard and you may hear questions about it (or the s___ may be soft and you never hear about it, too)."
The report, which identifies Kubicki as a "principal contributor," declares numerous fire issues at Davis-Besse "acceptable." For instance, previous safety inspectors had expressed concern that a manual action might cause reactor cooling problems because of delays in getting the equipment to work. The report determines that these problems "are not safety significant as long as no unrecoverable plant condition will occur." It defines "unrecoverable plant condition" as "the loss of any shutdown function(s) for such a duration as to ultimately cause the reactor coolant level to fall below the top of the reactor core and lead to a subsequent breach of the fuel cladding." In other words, as long as the reactor does not reach a point where it threatens to melt down, no problem.
"It's a big caveat to say, 'as long as no unrecoverable plant condition will occur,' " says Gunter of the Nuclear Information and Resource Service. "How do they know?"
Gunter blames the NRC for what he says is a dangerous regulatory change. The government agency, he says, is "more interested in protecting the financial interest of the industry than in protecting those electrical cables."
For its part, the NRC says it is doing all it can to keep the reactors safe. "The prescriptive rules" requiring physical fire barriers "didn't allow for flexibility," says John Hannon, NRC branch chief in the office of nuclear reactor regulation – the part of the NRC that is responsible for fire protection programs. "The rules were so inflexible they [the plants] sometimes had trouble meeting them." So, he says, even from the day the rules were written, the NRC gave out exemptions "for alternative means of shutting the plant down that were safe and reliable. Many of these were operator manual actions."
Then, in the 1990s, as the NRC inspected plants to make sure they had adequate fire protections, the commission discovered "a lot of plants were using manual actions and had not come to us for exemptions," Hannon says. So the NRC decided it was "prudent for us to initiate a rule making for that, to codify acceptance criteria to make it clear" what is acceptable.
The NRC claims that all of this can be done safely. "We're seeking the health and safety of the public," says Hannon. "We don't want a plant damage event to occur that would cause a radioactive release." The NRC, he says, takes "fires very seriously." And he says the new rule will be an improvement on the status quo. "If we leave it the way it is now, we have plants out there that wouldn't meet the criteria," he says.
"Rather than bring the industry into conformance with the code, the NRC brought the code into conformance with the industry," says Gunter.
Jerry Brown worked as a consultant to the nuclear industry for twenty-two years, until 1998. His specialty was fire and radiation penetration seals, critical safety components to nuclear reactors.
To exchange old rules "for new regulations to say that we don't need these redundant shutdown systems is criminal," he says. "You could have a runaway reactor with no ability to shut it down." Brown blames the NRC, which he says has a history of treating "fire safety in such a negligent way."
Brown, who says he is "absolutely" concerned about terrorism in connection with fires at a nuclear plant, gives a grim warning. "A nuclear power plant can kill a million people," he says. "There are more fire barriers in a nursing home than in a nuclear power plant. That doesn't make sense to me."
Like many stories, this has several beginnings. Here is one: On a hot day in August, 1983, just before my senior year of high school, I walked into the Army recruitment office in Appleton, Wisc. The purpose of my visit was practical. I wanted to go to college.
The recruitment officer was a smoker. The fumes had stained the walls of his office, or maybe the plaster had actually been painted that color. The place was warm. I remember that I was dressed in a wool skirt my mom had made and that I should not have worn wool in August. The officer asked a few questions, talked a great deal, was respectful and told me I would be a "good recruit." I was susceptible to this praise.
I remember a few other things. One was that my incipient patriotism took a running leap as he described how I might serve my country. There was a familial component to this emotion. My father and his brother were both Air Force men. My cousin had made a career as a Navy SEAL, something all of us looked on with pride.
I was interviewing for the Army Reserves, and the recruiter described the money the government would give me, enough to pay for four years of university. In return, after I graduated, I would serve full time in the Army for two years. I would be an officer. It was the money, though, that made my blood rush. I wanted it. I wanted an education. And I wanted to get one without causing my family pain.
A few weeks later, school started up again, and I learned that none of my friends was considering military service. Peer pressure won. I didn't join up.
The recruiters hadn't finished with me, though. They called my house more than once during my senior year. Even after I entered college, they kept phoning. When I wasn't home on break, my parents took the calls. Together, we turned down the Army perhaps a dozen times, in both flush periods and on days when money for my education was hard to come by.
Over the years, I have come to see this decision, however arbitrary, as pivotal and defining -- one of those choices that determine a life.
Some of my college classmates were in ROTC. They ended up going to the Middle East for the first Gulf War. After we graduated, I heard about their experiences in the desert and on leave. Always, just as on the day when I first saw them in uniform, I heard a bell sound in my brain. I sometimes felt I was witnessing my other life -- the one I turned down.
I heard that bell sound again as I reported and wrote this article.
Across the country, in small towns and big cities, the families of our National Guard and military Reserves are having trouble paying the bills. Many are barely treading water. Some go under.
Many households of Reservists -- 30 percent, according to a 2002 Pentagon estimate -- lose income when activated. In 2002, the U.S. Department of Defense also surveyed the spouses of Reservists who had been activated. Out of the 30 percent who said they had lost household income, the Pentagon survey indicated, half had monthly decreases of between $500 and $2,000 per month. Another 23 percent forfeited in excess of $2,001 monthly.
Poor pay and economic strife are conditions the Reserves and National Guard share with others in the regular military. "Lower-ranking enlisted people qualify for food stamps. It's not how we're used to thinking about government employees, but there it is," says Kathleen Gilberd, co-chair of the Military Law Task Force of the National Lawyers Guild. "Active duty pay has traditionally not been enough to help people get by." Extreme financial crises set in when service people are deployed because they then have no opportunity to get a second job to supplement their income.
But Reservists and National Guard members are especially hard hit. "The ones who do experience income loss, it's usually a significant income loss," says Shirley Calhoun, spokeswoman for the National Military Family Association. Many have good-paying jobs in the civilian world. But in the military ranks, the same people may not yet have made officer, "so they are at a lower pay level," says Calhoun.
Part of the problem is the loss of overtime pay. In California, many members of the National Guard are in law enforcement or in corrections, says Steven Maloney, the family assistance manager for Operation Ready Families with the California National Guard. They are used to working overtime for "ten, fifteen, twenty hours a week," says Maloney. "That can be a big chunk of change." When a corrections or police officer is deployed, the overtime pay disappears. "It's a shock to the system upon deployment."
For people who own their own businesses -- and there are many such people in the Reserves and the Guard -- deployment can also take a toll. "If you're a doctor, lawyer, or dentist" in private practice "and you walk away from your job," you are going to lose business, says Master Sergeant Retired Michael Cline, executive director of the Enlisted Association of the National Guard of the United States. "A client isn't going to wait for you to return to get his teeth pulled. He's going to another dentist." For those who run businesses like contracting or trucking, the results can be equally devastating. "You go buy a $100,000 truck to drive down the highway and that truck sits in the driveway, you still got to make payments on that truck."
Many members of the Guard "suffer a considerable amount of financial loss," says Cline. "There's not a day goes by that I don't get a request" for financial help "to pay the mortgage, make a car payment, buy food, pay the electric bill. Yesterday, I had four of them come across my desk."
Cline knows of several instances where families have found themselves forced into bankruptcy.
"You wouldn't believe the horror stories we have," he says. Just the other day, he says, a "guy's car got repossessed."
At the debate of Democratic Presidential contenders shortly before the New Hampshire primary, Senator John Kerry brought up the subject. "All across this country there are families right now, all of us have talked to them, who are suffering greatly because the Guards and Reserves have been called up. They are overextended," he said. "The troops of the United States of America are overextended. Their deployments are too long. The families are hurting at home because they lose money from the private sector when they're called up and they get paid less in the military and nobody makes it up to them."
Kathy Cruz is a bankruptcy attorney in Hot Springs, Arkansas. The state is home to the 39th Infantry Division of the Arkansas National Guard.
That division left Hot Springs in October to serve eighteen months total, twelve of these in Iraq. Already, Cruz's office has accumulated some clients.
"I was looking at four files this morning, and this is one little bitty law firm, and they were all military," she says.
One of Cruz's new clients, a family with four teenage children, owned a gas station-convenience store. The father of the family, an Army Reservist medic, was called for his deployment to Iraq in September. "When he's gone, there's no one to run the store," says Cruz. Within a month, the family ran into serious financial trouble. "Better known as, 'Who's minding the store?' The answer is nobody. So now there's no store."
After they went bankrupt, family members realized that they could not afford the monthly payment on their house, so they gave it back to the mortgage company. Otherwise, it would have been repossessed, says Cruz. The bad luck spread. The soldier's parents had co-signed on the loan for the store. "If the grandparents don't file" for bankruptcy, they'll lose their own home, says Cruz. "And that's going to be real trouble because now all four kids are living with them. Where else are they going to go?" The grandparents are in their sixties, she says. The grandfather is disabled, and the grandmother has reentered the workforce to stay afloat. Recently, the whole family came to Cruz's office. "You've got three generations sitting in front of you, scared out of their wits," she says.
Cruz is certain she hasn't seen the end of the bankruptcies. "This is the tip of the iceberg," she says.
She explains how the downward spiral that leads to bankruptcy can start. "If you were making $1,000" a month "and now you're making $500," she says, you will tend to use your credit card to make up the difference in the first month and hope that you will catch up in the months to come. "And then if you can't pay up your credit cards, you go and refinance your house" and live on that equity. "Pretty soon you run out of options."
Deceptive lenders who prey on military personnel can exacerbate the economic hazards of military life. "We've seen credit cards around here that have 49 percent interest rates," says Cruz. Some outfits say, "Apply online. Don't worry if you have bad credit," she adds.
The National Consumer Law Center issued a report last May called "In Harm's Way -- at Home." It says, "Scores of consumer-abusing businesses directly target this country's active-duty military men and women daily." What makes matters worse is that these businesses take advantage of "a military culture that urges people to keep their finances in order as part of good conduct codes," the report notes. Fear of financial disorder can drive soldiers deeper into debt. "Military codes of conduct call for orderly personal lives -- specifically including orderly finances," says the report. "This creates an incentive to chase quick fixes when finances start slipping." And unscrupulous businesses heavily exploit -- and exaggerate -- the threat of punishment, the report says.
I called the Pentagon to see whether it can punish service people for their financial hardships. "Personal bankruptcy of a military member, by itself, is not a basis for discharge or denial of promotion," says a Department of Defense official. However, "conduct underlying the bankruptcy" can get you discharged. The official cites financial mismanagement involving "deceit, evasion, false promises, or other distinctly culpable circumstances indicating a deliberate nonpayment or grossly indifferent attitude toward one's obligations."
"I'm sure any organization would frown on members of their institution not taking care of financial obligations," says Lieutenant Colonel Dan Stoneking, a spokesperson for the U.S. Department of Defense. However, he says, the military's emphasis is not on "admonition" but on "support."
Perhaps the message isn't getting through. "What many soldiers and sailors don't realize is that isolated instances of financial trouble almost never trigger military discipline. Some creditors work hard to create the opposite impression," reports the National Consumer Law Center. According to the center, one lender, Military Financial Network of Delaware, carried an explicit warning on its loan contract: "If I fail to provide these funds, I understand that this will be a violation of Article 123a and 134 of the UCMJ (Uniform Code of Military Justice), punishable by up to 6 months confinement, forfeiture of all pay and allowances, and a bad conduct discharge. . . . I authorize the Military Financial Network to contact my military superiors in these matters."
Al Vaccaro is the CEO of Military Financial. He says last May's report of the National Consumer Law Center is "very outdated." While the company did have such language in its contract "a long time ago," it doesn't anymore. "We don't do any type of aggressive collections efforts at all," he says. He also says the report's criticism of military lenders for taking advantage of service people is "very slanted."
On Google in late January, if you typed in Military Financial Network of Delaware, you would have found a box at the very top right that said: "Short-term Military Loans, $150-$5,000 cash in hand today! No credit check, 99% approved. www.militaryfinancial.com."
Economic stress among the National Guard and Reserve forces is "a major problem all across the United States," says Representative Chris Bell, Democrat of Texas. It's causing serious "hardship to families. In many instances, they have to take severe financial pay cuts."
Together with Representative Tom Lantos, Democrat from California, Bell sponsored an amendment to HR 1836, the Civil Service and National Security Personnel Improvement Act. The provision would have required government employers of federal, state and municipal workers to make up the difference between their employees' home pay and their deployment earnings.
The amendment, which Bell says would have cost the government $160 million, was approved in committee only to be removed from the bill prior to the vote. Bell says he thinks the cost is "what killed the bill."
Donna and James Bramblett live with three children -- Donna's daughter, age sixteen, and James's two sons, ages thirteen and eleven. When he's at home, James works as an electronic technician for the National Guard. He makes about the same money stationed in Iraq as he would at home in Adrian, Georgia, "a little town with one red light," as Donna calls it. Since James went to Iraq, their finances have taken a hit. "His check is the same," she says. But "as far as household income, it's very different."
Before her husband received his activation orders, Donna worked nights as a nurse at an alcohol and drug rehabilitation clinic, a workplace she says was lively and interesting. That shift allowed her to care for the children during the day, while James watched them at night. When her husband went on active duty last March, Bramblett quit her job. "And I loved my job. I loved my job," she says. "I have to be at home with the children at night, and I have to be at home with the children on the weekends, and that pretty much limits me to working in a doctor's office."
The job switch has cost the family nearly $400 a week, not counting the loss of overtime Bramblett says she put in at her previous job. Bramblett had car trouble, so she borrowed money from her mother. "Really, I probably owe my mother right now about $5,000," she says.
Money is not Bramblett's only concern. On January 2, she had major surgery. "Seventeen years ago, when I had more money, I had breast implants," she says. "I had the old silicone implants, which are dangerous." After a time, she says, "the scar tissue had grown around the implants and was squeezing them real hard," causing them to leak.
"I'm a nurse, so I knew what was going on. I knew I was sick," says Bramblett. "My breasts got really, really hard, and it was just like someone was standing there and squeezing them all the time."
The surgery couldn't wait. Bramblett sent a Red Cross message to her husband's commander, requesting a leave of absence so James could care for the children during her recovery. James Bramblett is staff sergeant with the 878th Engineering Division National Guard Unit, which is under the First Armored Division of the Army. The First Armored Division, Bramblett says, denied her request.
"I'm still full of stitches. I'm cut up, my breasts are so cut up and swollen and draining, and I hurt so bad," she says in late January. "My doctor said I'm just not healing" and told her she's doing too much. But, she says, "I have to. Somebody has to wash their clothes. Somebody has to make their meals."
Bramblett has been connected with the military for most of her life. Her grandfather was a veteran of World War II, her father served in Vietnam, and her former husband was in the first Gulf War. "I'm a little bit disheartened and hard-hearted to the First Armored Division right now, and I want the American public to know what our military families go through," she says. "If I can help another wife not have to go through what I've gone through, then I will feel better."
Donna Bramblett is president of family support for Company A of the 878th Engineering Division. She is hearing a lot from other spouses left behind. One person in her company, she says, "is almost going to lose her home." Others have less dire money troubles, but that doesn't mean things are easy.
"I know people are making deals with Georgia Power," she says. "They're just trying to make billing arrangements. I heard one woman say, 'I want to stay at the meeting. I don't want to go home. It's so cold there, but, hell, I can't afford to turn up the heat.' She's got two little kids."
Another couple in the company "had their furniture repossessed because they couldn't make the payments," she says. Bramblett says most of the people in her family support group are afraid to speak out for fear that their words may have repercussions for their spouses.
Not Bramblett. "I have never seen anything like this in my life like I've seen with the National Guard," she says. "I think it is ridiculous, and I think it is not fair. I'm a military person, but I will go to my grave fussing about the National Guard."
Since September 11, 2001, the nation has been on alert about the vulnerability of chemical facilities. And while the Bush Administration claims that homeland security is a priority, time after time it has opted to do nothing dramatic to improve the security of U.S. chemical facilities. All along, it has followed the wishes of the U.S. chemical industry -- at our peril.
The risk to the American people is great. According to the General Accounting Office, "123 chemical facilities located throughout the nation have toxic 'worst-case' scenarios where more than a million people in the surrounding area could be at risk of exposure to a cloud of toxic gas if a release occurred."
Approximately 700 other plants, says the GAO, "could each potentially threaten at least 100,000 people in the surrounding area, and about 3,000 facilities could each potentially threaten at least 10,000 people."
The Bush Administration knows there is a huge security risk. On February 6, 2002, George Tenet, the director of the Central Intelligence Agency, testified that Al Qaeda could be planning to target chemical facilities. In February 2003, the Bush Administration announced that terrorists "may attempt to launch conventional attacks against the U.S. nuclear/chemical industrial infrastructure to cause contamination, disruption, and terror. Based on information, nuclear power plants and industrial chemical plants remain viable targets."
The Administration refuses to do what is necessary to protect the American public from terrorist attacks on chemical plants. Instead, it is listening to what industry wants.
"We haven't even done the minimal things," says Gary Hart, the former Democratic Senator from Colorado and one-time Presidential candidate. "There has been zero leadership from either the White House or the new department" of Homeland Security.
Hart has a lot of credibility on this issue. As co-chair of the United States Commission on National Security in the Twenty-First Century, he helped author the commission's prescient report, "New World Coming: American Security in the 21st Century," published in September 1999. The report warned that, in the course of the next quarter century, terrorist acts involving weapons of mass destruction were likely to increase. "Americans will likely die on American soil, possibly in large numbers," it said.
Hart says that private industry won't spend what it takes to make adequate security changes. "I don't think many companies are going to disturb their bottom line," he says, "unless they are ordered to by the federal government, or if the President goes on national TV and tells them to do so." Those orders have not yet been given.
Bush has given primary responsibility for overseeing security improvements in the chemical industry to the EPA. At first, the EPA appeared eager to take on the task. In fact, then-EPA Administrator Christine Todd Whitman even prepared a speech announcing a new security initiative, according to papers Greenpeace obtained through an EPA leak and a Freedom of Information Act request.
A June 11, 2002, document labeled, "Draft--Pre-decisional--Do Not Cite or Quote," concerns a "Rollout Strategy for Chemical Facility Site Security." According to the documents, Whitman and Tom Ridge, head of Homeland Security, were to announce the new policy at the White House.
"I am pleased to join Governor Ridge today to announce a series of new initiatives by the Environmental Protection Agency to advance security at facilities that handle hazardous chemicals," Whitman's speech begins. "Particularly in the post-9/11 era, it should be clear to everyone that facilities handling the most dangerous chemicals must take reasonable precautions to protect themselves and their communities from the potential consequences of a criminal attack."
EPA was going to get right on it. "Starting in July, EPA representatives will begin visiting high priority chemical facilities to discuss their current and planned security efforts," the speech read. "These visits will allow EPA to survey security and, if appropriate, encourage security improvements at these facilities."
Despite the detailed preparations, Whitman never gave the speech, and the new policy was never issued.
Industry weighed in.
"We heard from industry," says a former EPA official who declines to be named. The chemical lobby insisted that the agency did not have authority to go after companies that did not adequately safeguard their plants, the official says.
Also hearing from industry was Bush's Council on Environmental Quality (CEQ), which has a sympathetic ear. The CEQ is located across the street from the White House and is headed by James Connaughton, who formerly worked as a lobbyist for power companies.
Industry lobbying groups such as the American Chemistry Council and the American Petroleum Institute were in repeated contact with the CEQ during the summer and fall of 2002, according to the documents Greenpeace obtained.
The American Petroleum Institute vehemently opposed EPA regulation of plant security under the Clean Air Act. "EPA's existing authority to regulate 'accidental releases' from chemical facilities . . . does not encompass authority to address terrorist attacks," reads one document (bold in original) that the petroleum lobby submitted to the CEQ. The EPA's claim that it has the "authority to require plant operators to implement counter-terrorism measures goes far beyond the plain language of the statute and would impose new legal obligations without the proper legislative authority."
Aware of this argument, the EPA considered introducing legislation that would have explicitly expanded its authority under the Clean Air Act. Section 112(r) assigns chemical plants in this country the general duty of preventing dangerous accidents. The draft legislation would have broadened this responsibility to require the chemical industry to take measures to reduce the potential danger of criminal attacks, including terrorism.
A draft of the new general duty clause said, "All chemical facilities handling extremely hazardous chemicals have a general duty to identify hazards that may result from releases caused by terrorist or other criminal activity using appropriate assessment techniques, to design and maintain a secure facility, and to minimize the consequences of releases that do occur." EPA Deputy Administrator Linda Fisher discussed this draft in a May 2002 presentation entitled "Proposal for Chemical Security Legislation," according to the documents.
Fisher's presentation included a slideshow that revealed how dire the situation is. One slide, which explained why the legislation was necessary, asked, "Is industry safe? No way to answer under current law."
But the EPA backed off on the legislative route as well.
While the chemical and petroleum industries were busy putting the skids on the EPA, they also were working on Congress.
Senator Jon Corzine, Democrat of New Jersey, had attempted to attach an amendment to the Senate's Homeland Security bill that would have granted the EPA authority to regulate security at plants housing dangerous chemicals. It also would have required those facilities, when possible, to decrease the amounts of dangerous substances they store on site.
A modified version of Corzine's bill, the Chemical Security Act of 2001, had received unanimous approval from the Senate's Environment and Public Works Committee on July 25, 2002.
An alarmed chemical industry sprang into action, "mounting daily assaults on the Republican members of the [Environment and Public Works] committee throughout August," reported John Judis in The New Republic last January. An August 29, 2002, letter, signed by thirty members of the chemical and oil industry lobby and sent to Republican members of the committee, deplored the new bill, particularly its proposal to "grant sweeping new authority to EPA to oversee facility security." The lobbyists objected strongly to a particular provision that would have required plants to use "inherently safer technologies." This would "allow government micromanagement in mandating substitutions of all processes and substances," the letter stated, adding that it could "result in increased security risks."
By September 10, seven out of the nine Republican members on the committee bowed to the pressure, issuing a letter against the Corzine bill, claiming it "severely misses the mark" (emphasis in the original).
During that same summer, members of the American Chemistry Council (ACC) "gave more than $1 million in political contributions, most of it to Republicans. Eight Senators who were critical of the Corzine bill have received more than $850,000 from the ACC and its member companies," according to a Common Cause report dated January 27, 2003.
Frederick Webber, then head of the American Chemistry Council, was a prominent donor to President Bush's 2000 campaign, having agreed to raise $100,000 in funding for it and recruiting "more than twenty-five chemical industry executives to be Bush fundraisers," said Common Cause.
In addition to the industry efforts to lobby the Senators, the American Petroleum Institute was again in close contact with the CEQ, repeatedly sending copies of its "talking points" on the Corzine amendment to CEQ staff.
A September 6, 2002, fax from Red Cavaney, president and CEO of the American Petroleum Institute, to James Connaughton, chairman of the CEQ, includes a handwritten message, "Urgent--Please deliver. Hard copy to follow." The letter, which begins "Dear Jim," says that if the EPA gains authority to oversee the anti-terrorism measures of industry, "a year's worth of close cooperation and partnership between industry and a wide variety of qualified federal security experts may well be marginalized."
When Corzine attempted to introduce his legislation as an amendment to the Homeland Security bill, the Republican Senators blocked a vote, effectively killing the bill. On November 19, the Homeland Security bill passed the Senate. The bill did not include Corzine's amendment.
Nor did the bill include any other binding provisions for security at chemical plants.
The industry is proud of the role it played in nixing the plans for heightened security.
"The reason we're organized is to tell the government what would work well to take care of certain problems," says Bill Hickman, spokesman for the American Petroleum Institute, in response to questions about whether the organization pressured the government on security issues. "We always are talking to the government. We always are telling them what will work best. We're familiar with these issues and think we're pretty good advisers to the government."
When I approached the American Chemistry Council for comment, Kate McGloon, a spokeswoman for the organization, asked, "Is there anyone you need to talk to?" She instantly offers to put me in touch with people inside the Department of Homeland Security and the EPA.
Marty Durbin, director of federal relations and team leader for security at the American Chemistry Council, says his organization had some problems with Corzine's bill because it would have given primary jurisdiction over chemical plant security "to EPA rather than to the Department of Homeland Security." EPA officials, he says, "are not the right folks to be doing security."
Although Corzine reintroduced his bill this year, a bill by Senator James Inhofe, Republican of Oklahoma, is also under consideration. The Inhofe bill, which the American Chemistry Council says is more to its liking, would remove chemical plant security oversight from the EPA and place it in the hands of the Department of Homeland Security. Gary Hart has criticized the Inhofe bill for including "virtually no oversight or enforcement of safety requirements."
Corzine is incredulous at the lack of government oversight and the risk that entails. "Our chemical facilities represent a clear vulnerability in our war against terrorism," he says. "Yet, as common-sense security measures continue to stall in Congress, this appears to be a classic instance of the special interests trumping the public interest. More than two years after the attacks on the World Trade Center and the Pentagon, we have not taken the first step in setting national security standards for our chemical infrastructure." Corzine is blunt about who is at fault: "The Administration is putting the interests of industry ahead of the safety of the American people."
Chemical companies depend on the rails to transport hazardous chemicals, and the Department of Transportation has also buckled under industry pressure.
If chemical security is the weak link in homeland security, says Rick Hind, legislative director for the Greenpeace Toxics Campaign, "railroad shipping is the weak link within that. In order to make a dangerous chemical plant dangerous, you have to ship dangerous chemicals. And that goes right through the backyard of America."
Like the EPA, the Department of Transportation initially moved to tighten things up. On May 2, 2002, it issued notice that it was preparing a new rule governing security requirements for those who sell or transport hazardous materials. One requirement said, "Routes should minimize product exposures to populated areas and avoid tunnels and bridges, where possible."
The DOT's announcement resulted in almost 300 responses, nearly all of them from affected industries, particularly chemical, petroleum, and fertilizer companies, including the Chlorine Institute, Formosa Plastics, Monsanto, Phillips Petroleum, Dupont, Dow Chemical, BASF, the American Petroleum Institute, the American Chemistry Council, the Dangerous Goods Advisory Council, the Fertilizer Institute, and the Institute of Makers of Explosives.
"About ten to twenty" of the comments on the rulemaking asked that the language about routes "be removed because it would have locked them in or restricted what they could do in setting up their individual security plans," says Joe Delcambre, a public affairs representative in the Research and Special Programs Administration at the Department of Transportation. "To give the industry more latitude in how they were going to set up their security plans," he says, "we backed off on the wording."
The department's final rule, issued in March of this year, completely omits the language about preferable routes.
"There's nothing really in there that says anything about restricting transport at any time," says Hind. He expected the rule at least to require constraints on dangerous chemicals in heavily populated areas during orange alerts. "But they didn't even do that," he says.
In September, the Sierra Club photographed a rail tank car carrying chlorine near the U.S. Capitol. Greenpeace took notice. "We are formally requesting immediate action by the Secret Service to address a near and present danger to the President, Vice President, Speaker of the House, and all other national leaders living and working in Washington, D.C.," Hind wrote to the Secret Service. By the EPA's own worst-case estimates, a leak from one ninety-ton rail car of chlorine could kill or injure "people in the Congress, the White House, and any of 2.4 million local residents within fourteen miles," Hind wrote.
Greenpeace isn't the only one raising alarms. On June 20, FBI Special Agent Troy Morgan, a specialist on weapons of mass destruction, addressed a chemical security summit in Philadelphia. "You've heard about sarin and other chemical weapons in the news," he said, according to the Pittsburgh Tribune-Review. "But it's far easier to attack a rail car full of toxic industrial chemicals than it is to compromise the security of a military base and obtain these materials."
Jerry Poje is a member of the U.S. Chemical Safety and Hazard Investigation Board. This government organization was formed in the wake of the December 2, 1984, Union Carbide disaster that killed thousands of people in Bhopal, India. He, too, is worried about chlorine. "It's a chemical whose use is very common in the country," says Poje. "There are many, many, many rail cars" filled with it.
Industry says it can adequately monitor itself. The American Chemistry Council, for one, has adopted a "Security Code of Management Practices." Member companies are supposed to conduct vulnerability assessments using methodologies designed by approved organizations, implement a security plan, and submit their security measures to outside verification.
However, the organization is not specific in its security requirements. For instance, it doesn't require background checks on guards. It doesn't require companies to minimize the dangerous chemicals they store on site. It doesn't require companies to fix holes in their fences. "You can't really have a cookie-cutter approach" to different plants, says Durbin. He also says that each chemical facility gets to choose the person who verifies that it has actually carried out a security plan.
The GAO studied industry's voluntary efforts. Its March 2003 report is entitled "Voluntary Initiatives Are Under Way at Chemical Facilities but the Extent of Security Preparedness Is Unknown." The title pretty much sums up the problem with security in the chemical industry. We don't know what's going on.
"To date, no one has comprehensively assessed the security of chemical facilities. No federal laws explicitly require that chemical facilities assess vulnerabilities or take security actions to safeguard their facilities against terrorist attack," says the report. "No agency monitors or documents the extent to which chemical facilities have implemented security measures. Consequently, federal, state, and local entities lack comprehensive information on the vulnerabilities facing the industry."
The GAO report reveals that the EPA is worried about the voluntary initiatives, which "raise an issue of accountability, since the extent that industry group members are implementing voluntary initiatives is unknown."
In the end, voluntary security initiatives collide with the need to save money. "According to industry officials, chemical companies face a challenge in achieving cost-effective security solutions, noting that companies must weigh the cost of implementing countermeasures against the perceived reduction in risk," the GAO report says.
The GAO's observation that money is getting in the way of security at our chemical plants is borne out by a research report by the Conference Board, a business organization. Entitled "Corporate Security Management: Organization and Spending Since 9/11," the research found that "the median increase [from October 2002 to February 2003] in total security spending is only 4 percent."
The reason for the overall lack of spending on security, concluded the Conference Board, was economics. "The perceived need to upgrade corporate security has clashed with the perceived need to control expenses until the economy recovers," it reported.
The American Chemistry Council says it does not yet have figures on what its member companies are spending on security.
Gary Hart has not stopped issuing warnings. In 2002, he co-chaired another report, this one sponsored by the Council on Foreign Relations. Entitled "America Still Unprepared--America Still in Danger," the report cautioned, "A year after September 11, 2001, America remains dangerously unprepared to prevent and respond to a catastrophic terrorist attack on U.S. soil. In all likelihood, the next attack will result in even greater casualties and widespread disruption to American lives and the economy."
On August 11, Hart published an op-ed in The Washington Post. "The government has failed to plug a gaping hole in homeland security: our vulnerable chemical plants," he wrote. Those plants "are among the potentially most dangerous components of our critical infrastructure. Securing them requires urgent action."
Hart blames the Administration's inaction on "coziness with the private sector, their campaign contributions, their political alliances." This Administration, he tells The Progressive, has a tendency to "put those political alliances ahead of national security."
Saying he is "very frustrated" at the Bush Administration's negligence, Hart warns: "We will be attacked again."
Anne-Marie Cusac is an investigative reporter for The Progressive.
When the Bush Administration orders male Muslim immigrants to report for what is called Special Registration, it often interferes with their Sixth Amendment right to counsel. The men have to appear at designated immigration offices for fingerprinting, photographs, and questioning, but their interrogators don't want their lawyers around.
Obstructing the right to counsel is "standard operating procedure" in Tampa, Florida, says Mayra Calo, an immigration attorney there. "They allow the attorney in for the first phase of Special Registration," which involves filling out forms and some basic questioning, says Calo. But if there is a problem with the person's immigration status, the authorities transfer him to a separate area for questioning. "I wouldn't mind if they were going to fingerprint them and book them," says Calo. "But that's not happening. They interrogated my client. I even had one client who was questioned by the FBI back there without me. If you're taking my client to a closet, I want to be in there. Otherwise, why hire an attorney?"
B. John Ovink, another Tampa lawyer, had a similar experience. He accompanied one of his clients to the federal immigration office, and after the authorities found a problem with the man's papers, the trouble began. "They said, 'OK, we'll send him in to investigations, but you can't be there,' " Ovink recalls. "I said, 'What?' They said, 'You can't be there.' "
Ovink says immigration authorities have deprived his clients of access to counsel three times. "Every time I insist on getting access, and every time I'm denied," he says.
John C. Miotki, yet another Tampa attorney, took a Moroccan client in to the local immigration office. When the officials decided there was a problem with his client's status, "I requested to accompany him," says Miotki. But they kept him out. "The pretext given at the time was that it was a secure area and that there was no room for an attorney." Miotki says immigration had never before prevented him from accompanying a client.
This is not a local Tampa story. This is happening all over the country.
In Los Angeles, says Faith Nouri, who heads the Special Registration committee of the L.A. County Bar, denial of the right to counsel occurs "whenever we take clients."
Julie Dinnerstein, an attorney based in New York City, says agents at the district immigration office there have denied her access to her clients "at least a dozen times" since the Special Registration process started. In one case, denial of access to counsel had potentially severe repercussions. "They denied him bond and had him sign a paper waiving aside his right for a bond redetermination hearing, which is a significant legal right," she says. Dinnerstein's client also signed a paper waiving his right to delay his deportation hearing. "Waiving your right to a hearing, that's a huge civil liberties issue," she says.
The Bush Administration's Special Call-in Registration Program requires males over the age of sixteen from twenty-five predominantly Muslim countries to make an appearance at designated immigration offices. The controversial program has led to deportation proceedings for approximately 5,400 of the more than 41,000 who have registered across the country. More than 1,700 have been detained.
Sabena Khan accompanied her husband, Jahangir Ahmed, a Pakistani national, to Special Registration in New York on February 14. They took lawyer Krishna Vempaty with them. But, says Khan, after her husband filled out papers, the immigration authorities transferred him to "the investigations unit" on the tenth floor. The lawyer "went with him to the door, but after that, he wasn't allowed in." Neither was Khan. "I was absolutely nervous and scared beyond belief because it's so arbitrary," she says. "It's totally in their hands at that point. I didn't know if I was going to see him again."
Khan's husband recalls what happened next.
"They said, 'Bring all your paperwork, and we're going upstairs,' " Ahmed says. " 'We're not going to let your attorney come, but you bring your papers yourself.' "
After a long wait, says Ahmed, the officials took him into a room filled with computers and desks, where immigration agents sat questioning people. Ahmed says the agent did fingerprints of all five of his fingers, then proceeded to interview him, asking when he had arrived in the United States, when he had gotten married, and where his wife was. Ahmed says the agent also made a point of asking his wife's nationality and race.
Ahmed had to remain in that room for six-and-a-half hours. Khan and Vempaty stayed in the waiting room. Eventually, Ahmed was let go because the couple had brought with them a letter that listed an interview date for his work authorization.
Vempaty confirms that he was denied access to his client and calls the government's action "really not fair."
Johanna Habib, a lawyer with the Arab American Family Support Center in New York, says that she and other lawyers from her organization tried repeatedly to accompany their clients who were being interrogated. "We sort of stopped trying because they just weren't letting people up there," she says.
The government's view on the question of legal representation is all over the place. An undated INS document dealing with questions and answers about the Special Registration process says, "Legal representation is not necessary, but at your option, you may be represented at your own expense by the legal counsel of your choice."
The New York Civil Liberties Union says that policy is not always put into practice. "Two attorneys . . . representing scores of persons seeking to register repeatedly were denied the right to accompany clients to interviews" in Manhattan, says a January 28 letter from the group to Edward J. McElroy, formerly district director of the INS and now district director of the Bureau of Citizenship and Immigration Services. (The INS was recently split into two separate organizations under the Department of Homeland Security. The other organization is the Bureau of Immigration and Customs Enforcement.)
In a February 27 response, McElroy wrote, "Any sworn statement or similar substantive interviewing conducted by the Investigations branch shall be undertaken in the presence of the attorney or representative in another designated space."
But Bill Strassberger, a spokesperson for the Bureau of Immigration and Customs Enforcement, says the right to counsel lasts only until the authorities find something wrong with a person's papers. After that, it may not exist at all. "If it's determined that they are out of status, under normal circumstances, they don't have the right to have an attorney with them," he says. "We make some accommodations, but more on a case-by-case basis."
What about reports that people are being asked to sign waivers of their rights without a lawyer present? "If someone does elect to sign a waiver on their own, that's their choice," says Strassberger. "No one is forcing them." He also says that a competent attorney should know enough to prepare a client for such events as waivers.
"There is a difference of opinion between us and organizations like the ACLU that say an immigrant should have the right to representation," he says. "We maintain that, during the booking, that's just not the case."
Even when people are interrogated? "Even if there is some questioning that does take place during the booking process," says Strassberger. "That's correct."
Lucas Guttentag, director of the ACLU's Immigrants' Rights Project, has a different understanding of the law. "Asking about waivers and that sort of thing plainly goes against anything that should be encountered during the booking process," he says. "The fact is that people do have a right to counsel. Anything that has to do with information-gathering or rights or waivers, a person is entitled to have a lawyer present."
On March 18, Guttentag wrote a letter to Brian Myers, acting deputy general counsel of the Bureau of Immigration and Customs Enforcement. "The right of registrants to be represented by counsel has been affirmed by the Department of Justice's explanation of the Registration process and is protected by federal regulation, statute, and the Constitution," Guttentag wrote. "It is incumbent on the government to dispel any confusion about the right to legal representation and to ensure that all INS/BCIS offices are fully complying with the registrants' right to counsel."
Myers responded on March 20. "It is most appropriate to address these problems working through the local ICE [Immigration and Customs Enforcement] offices in which problems may exist," he wrote.
Guttentag says the federal government is intentionally opting out. "It's shifting the burden in an inappropriate way to say, 'You find the violations,' instead of the government operating in a way that complies with the law. I don't think it's in the least bit unintentional." He says the government is "exploiting people's vulnerability and lack of understanding of the law."
The American Immigration Lawyers Association is documenting allegations from attorneys across the country who say the government is separating them from their clients during interrogations. The organization has posted the allegations on its website, www.aila.org. "It's happening in virtually all the offices, and there are more than thirty offices," says Crystal Williams, director of liaison and information for the group. "What it comes down to is you have the right to counsel as long as there are no problems. As soon as a problem arises--which is why you want counsel--you no longer have access to counsel."
Williams says her organization has heard from attorneys who say immigration agents have asked their clients "questions that might be considered inappropriate." These included such questions as, "What mosque do you go to?" "What are your political opinions?" and "What do you think of the war in Iraq?" But questions "about your political beliefs, your religious beliefs, they're not relevant to the line of inquiry on someone's immigration status," says Williams. "The last time I checked the Constitution, you are entitled to a political opinion."
The lawyers' group has repeatedly asked local immigration offices to stop obstructing contact between clients and their attorneys. She says that none have agreed to change their practices. "They say, 'Well, having lawyers there interferes with our questioning,' " says Williams. "That's the point of legal representation--to inform clients of their rights."
Anne-Marie Cusac is Investigative Reporter for The Progressive.