Is refusing a shot a crime?

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.

Putting people into the database who've refused the anthrax vaccine doesn't make sense, especially in light of the federal court ruling striking down the military's mandatory anthrax vaccine program and the pending appeals of those who refused, says U.S. Rep. Dan Burton, R-Ind.

"These men are not hardened criminals, they are soldiers who stood up for their rights in the face of a questionable order," Burton wrote in a letter to Rumsfeld on Monday.

"It would be a travesty of justice - especially before all appeals in this matter have been exhausted - to require these men to submit their DNA."

He asked Rumsfeld to reconsider the policy until the legal status of the vaccine, and appeals of courts-martial by troops such as Rose, Muhammad and Enz, are settled.

Spokesmen for the co-sponsors of the Justice for All Act - Rep. James Sensenbrenner, R-Wis., chairman of the House Judiciary Committee, and Rep. William Delahunt, D-Mass. - said they didn't know whether their bosses knew about this ramification of the law or whether they agreed with the Pentagon that the military had to include troops who'd refused the shot.

The DNA orders illustrate two big differences between civilian and military courts, Michels says.

First, there's a long list of behavioral offenses that carry prison terms of one or more years in the military with no equivalent for civilians.

Second, though the top concern of civilian courts is justice, the military system has two objectives: maintaining discipline and ensuring justice. And they have equal weight.

Michels says he taught his military law students to appreciate this.

While a military prosecutor, he says, he often found cases weak in the law or of questionable fairness taken to trial, anyway, because commanders ordered it.

"Sometimes, they look around and say, 'We have to send a message to the troops' " by charging or punishing someone, he says.

Enz led Bible study groups in the Marines and was described by co-workers as a devout Christian during court-martial proceedings. He says that "it made me feel sick to my stomach" when the order to submit a DNA sample came in the mail last week. " They basically threw me in the lot with some pretty bad criminals."

Zachary Johnson, a Navy aviation technician who refused to take the shot and was court-martialed, says he had a similar reaction.

He says he fears that his DNA sample will end up in the FBI laboratory where a technician committed more than 100 errors in processing samples in criminal cases - mistakes that could lead to him or some other innocent person being charged with a crime like rape or murder.

Given the strength of DNA evidence before juries and judges, he says, he could go to prison for life for no reason - other than refusing the anthrax shot.

"Everybody says they don't make mistakes," he says, "but they seem to, quite frequently."

Daily Press researcher Tracy Sorensen contributed to this report.
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