Constitutional Law

How to Abuse Post 9/11 Anti-Terrorism Laws

By Seth DiStefano, ACLU of West Virginia

Late on the evening of August 28, 2008, an explosion rocked the Bayer CropScience plant in Institute, W.Va. The incident, which ultimately claimed the lives of two workers and created confusion and panic throughout a community of tens of thousands, has drawn international attention because the chemical plant in question houses methyl isocyanate (MIC). That is the same chemical responsible for the 1984 disaster in Bhopal, India, that claimed upwards of 4,000 lives and has contributed to countless health problems in the region since.

There have been several accounts detailing Bayer CropScience’s culpability leading to what happened that night and their refusal to cooperate with first responders trying to get a handle on the situation. The U.S. Chemical Safety Board (CSB) has published the first part of their report detailing the lapses at the plant. However, one particular maneuver by Bayer deserves special recognition by anyone who cares about civil liberties and the obstacles to accessing information vital to the public interest that have been posed by post 9/11 anti-terrorism laws.

In an effort to find out more about what happened and, in turn, take strides to make sure it never happens again, People Concerned About MIC, a grassroots organization of citizens in the Kanawha Valley formed after the Bhopal disaster, petitioned the CSB to keep their promise of holding a public hearing on the explosion once more had been learned. Bayer CropScience was pressuring the CSB to cancel the meeting. Bayer even went as far as to refuse to release key documents on the matter to the Chemical Safety Board, citing that releasing documents related to the explosion would be a threat to homeland security under the Maritime Transportation and Security Act of 2002.

By invoking this little known tenet of Homeland Security law, Bayer CropScience has managed to keep many important documents from the those who have a legitimate right to know what is going on in their backyards, the CSB, and Congress. Released copies of Bayer’s PR strategy on how to deal with the incident basically say ‘buy time, marginalize the activists, and it will all go away.’ Fortunately, local activists and elected officials would not let this one slide. A Congressional subcommittee hearing and public meeting in Institute, W.Va on the matter were recently held.

The citizens of the Kanawha Valley still have much to find out about what happened on the evening of August 28, 2008. As Professor Gerald Beller of West Virginia State University points out, things could have easily taken a disastrous turn for the worst. Point being, the Orwellian nature of post 9/11 homeland security laws really sticks out in this case. These laws are supposed to protect Americans, yet companies with more lawyers than conscience are starting to join the government in crying "Homeland Security!" whenever the public wants information the law of the land says they have a right to. This isn’t the first time private companies have hidden behind post 9/11 laws to avoid scrutiny of unlawful behavior (think telecoms that illegally spied on Americans or an airline company that participated in the government’s rendition program).

Fortunately, the Coast Guard isn’t buying the "we can’t tell you or it will endanger the country line" and Bayer CropScience will have to eventually cough up the info and face the music.

Examples like this stress the need to closely examine and overhaul many of the laws that the government and private companies use as platforms to keep information vital to the public interest hidden in the name of "Homeland Security." As we have seen in the past, abuses are bound to occur, and if you live where I do, hiding the truth from the public could lead to a disaster of unprecedented scale.

Full post as published by Blog of Rights on May 15, 2009 (boomark / email).