Is refusing a shot a crime?

bevans@dailypress.com 247-4758
October 8, 2005

Marine Cpl. Ocean Rose refused an anthrax vaccination in 2001, after military doctors told him that EKGs after his first two shots indicated he was having heart attacks at age 20 for no apparent reason.Lt. Erick Enz, a Marine helicopter pilot and combat veteran of the 1991 Persian Gulf War, says he refused his shot in 2002, after hours of prayer, soul-searching and study about the vaccine convinced him that as a Christian, God didn't want him vaccinated with that drug.The same year, Sgt. James Muhammad - a Muslim and a Marine at Camp Lejune, N.C. - says he prayed and studied the Quran and medical reports, finally deciding that taking the anthrax vaccine would violate Allah's command to keep harmful substances out of his body.Their refusal to obey orders to take the vaccine was the only blot on their military records. Otherwise, they were gung-ho, exemplary Marines with careers on the rise, records show.Are these the people you'd want to keep tabs on as suspects for a violent or serious crime - or force to give up their right to privacy over their DNA? The government says yes and has ordered Enz, Rose, Muhammad and others who refused anthrax shots to submit blood samples for inclusion in the FBI's DNA database of criminal offenders. Refusal could mean further punishment - up to five years in prison, letters sent by military courts last month told them.A change in federal law and a decision by Secretary of Defense Donald Rumsfeld also add to the DNA database those people court-martialed for various offenses not found in the civilian world. They include fraternization, faking an illness to get out of work, showing disrespect to a superior officer or making a false statement when enlisting - even if it meant altering a birth certificate or other document so you could serve your country."It's completely preposterous," says Eugene Fidell, president of the National Institute of Military Justice. That's a group of lawyers and legal scholars dedicated to the study of military justice issues and educating the public about how the system works. "I can't think of a more asinine application of a federal law."The same law greatly expands the number and type of offenses that can trigger required donation of DNA from civilians, too. It pushes the boundary of the constitutional right of privacy that courts acknowledge regarding government demands for body fluids.This week, congressional, military, FBI and other government officials couldn't say how much these changes would cost taxpayers.The safety and effectiveness of the anthrax vaccination has been a hot topic in the military since the shots became mandatory in 1998. Hundreds of troops say the shots have brought them health problems, an allegation that the Pentagon adamantly denies. A federal judged ruled last year that the mandatory shots must stop because the vaccine was never licensed for its use in the military, allowing only voluntary inoculations.If Rose, Enz and the others refused to take the shots after his Oct. 27, 2004, ruling, they would not have been punished. The military has appealed the decision and wants to reinstate the mandatory shot program - along with punishments for refusal.John J. Michels is a former military lawyer who represents troops in that case. He says the military won't say how many have been court-martialed for refusing the vaccine since the program started, but he estimates that 100 to 150 were court-martialed and 400 to 500 more received other punishments. Some who refused weren't punished at all. That created a double standard that's now being compounded, he says.Taking DNA from someone isn't a minor matter, he says. Under the law, it's an invasion of privacy and can't be required without a clear government or public interest.Restrictions on government DNA collection is illustrated by laws governing the Pentagon's DNA database intended for use in identifying casualties. Everyone in the military for the past 10 years is included, but "civilian law enforcement has no access to casualty identification samples," says Maj. Michael Shavers, a Pentagon spokesman.As for the FBI database, he says Rumsfeld had no choice because Congress mandated that he include anyone convicted of an offense that is - at least in theory - punishable by a year or more in jail or prison. Refusing an order can bring a five-year sentence.When Congress enacted the Justice for All Act of 2004, it added dozens of additional civilian offenses to the list of crimes where DNA samples are taken. The changes expanded on the database's existing 2.7 million-sample collection of people convicted of murders, rapes, a variety of sex crimes, arson and other serious violent offenses. It added such crimes as "malicious mischief" on federal property, attempts to interfere with tax laws, violations of Pacific salmon and halibut fishing laws, and harming an animal used in law enforcement, among others.At the same time, Congress told the secretary of defense to consult the U.S. attorney general and develop a list of offenses "comparable" to the civilian crimes, the law says.Several lawyers who have looked into the issue say their reading of the law did give Rumsfeld a choice, but he didn't take it."It's pretty consistent with the mind-set that 'people who disobey orders will do anything, so get them all,' " says Michels, a former Air Force prosecutor who taught in the military's school for lawyers.The FBI and other police agencies use the DNA database to solve crimes and exonerate innocent people, often taking a simple drop of blood or sweat, or skin, and using it to solve a puzzling murder. DNA is basic genetic material and can be used to identify people to high degrees of certainty, though some scientists question whether the assumptions made in court cases are accurate and whether mistakes are being made that could convict innocent people.

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