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Commentary

What Makes a Conscientious Objector? - Ohio’s Anti-Terrorist Oath

By Marjorie Heins

In the shell-shocked weeks after September 11, 2001, Congress enacted the massive USA PATRIOT ACT,1 designed to improve our error-ridden homeland security system and in the process give expanded powers of investigation and surveillance to federal authorities. On the state level, there was plenty to do, but most states did not think it necessary to pass little Patriot Acts of their own. Ohio’s lawmakers thought otherwise, however, and among the provisions of that state’s 2006 homeland security law is a requirement that applicants for public-sector jobs or contracts, or for the renewal of licenses for various trades, complete a form abjuring any “material support” for any organization named on the U.S. State Department’s “Terrorist Exclusion List” or “TEL.”

The TEL is one of several different but partially overlapping lists of organizations or people that the U.S. government thinks are engaged in terrorism. Among the other official government compilations are the “Foreign Terrorist Organization” (or “FTO”) list, also maintained by the State Department, the “Specially Designated Terrorists” (or “SDT”) list, compiled by the Treasury Department, and the FBI’s huge “Terrorist Watch List,” currently consisting of more than one million names, with many errors of both over- and under-inclusion. The Watch List is compiled in part from information sent in by state and local police agencies.

Of these several lists, Ohio’s legislators choose the TEL for their new “Declaration of Material Assistance/Non-assistance to a Terrorist Organization” (or “DMA”) form. The DMA requires all those about to be hired for public employment, to enter into public contracts for more than $100,000 a year, or to receive certain license renewals, to answer “no” to six questions about membership in, financial contributions to, or other forms of assistance to TEL-designated organizations. According to the Ohio Department of Public Safety, a “positive response” to any of the six questions disqualifies the job prospect, potential contractor, or license applicant. The Department considers any refusal to answer, for whatever reason, to be a “positive response.”

The Department is also the general repository of information about the DMA. It has an attractive website with guidance for applicants and agencies, along with sample forms.2 It also handles appeals from license, contract, or employment denials that result from any “positive response” on a DMA form.

The DMA is a variation on the negative loyalty oath, or test oath, that has been used by governments throughout history, and that was particularly pervasive during the Cold War, when state and local governments throughout the U.S. required their employees to swear that they had not been members of the Communist Party, or that they did not teach or advocate the overthrow of the government by force or violence, or some variation on these themes. Test oaths in the U.S. were largely eliminated by Supreme Court rulings in the 1960s that noted their vagueness and their chilling effect on freedom of political belief, and that condemned their reliance on guilt by association. Like Ohio’s DMA, the test oaths of the 1950s often turned on a list of “subversive” organizations compiled by the federal government, with no meaningful opportunity for the named groups or their members to contest the designation.

In April 2009, I sent an e-mail to the Department of Public Safety official responsible for answering questions about the DMA, asking whether he was aware of any people who had refused to complete the form because of political or philosophical objections to test oaths of this kind. He replied that some DMA forms had been altered to indicate objections – for example, by cutting and pasting constitutional arguments, statements, or symbols. I then made a formal public records request to the Department for DMA forms that contained or reflected objections, including forms with cut-and-pasted constitutional statements or symbols.

The Department produced two forms in response, both from an Ohio resident named David Dexter. The forms accompanied Dexter’s application for annual renewal of four separate licenses: in HVAC (heating, ventilating, and air conditioning), hydronics, plumbing, and refrigeration. The Department also produced a notice of appeal (though not a form) from Joel Helms, an applicant for a “water operator A” license (basically, a license to operate a public water supply system – in Helms’s case, for an apartment building that he manages). After I inquired further, the Department’s lawyer insisted that these were all the documents the agency had relating to Dexter and Helms: there was nothing to indicate what had happened to Helms’s appeal, or whether Dexter had filed an appeal at all.3 Although there may well have been additional conscientious objectors to the form somewhere in the State of Ohio, apparently they had not filed appeals with the Department of Public Safety, and their records, if any, were therefore buried in the files of different state agencies, including the personnel files of Ohio’s public universities and colleges.

Dexter and Helms turned out to be interesting objectors. Both men, it seemed at first glance, had been willing to forgo professional licenses because they were incensed both by the stupidity of the DMA as a means of fighting terrorism, and by its offense to their sense of individual liberty. On Dexter’s first form, dated 12/31/06, he had pasted a typewritten statement that “This is in conflict with my USA, Constitutional rights to privacy, free association, free speech and self-incrimination. Therefore, I have chosen not to provide any responses to this waste of paper and government employee time.” After the Ohio Construction Industry Licensing Board sent him a new blank form with a cover letter explaining that his licenses were now in escrow and would remain so “until you submit a signed Homeland Security Terrorist Form,” Dexter returned the second form, on January 29, 2007, with another pasted-in, typewritten statement to the same effect as, but longer than, his first one. He wrote in part:

This is a waste of government time and resources. The form is useless in curbing terrorism as no one in their right mind would check yes. Its sole purpose is to allow the government with [sic] charge a person with lying on a government form if it was found that person did belong to some organization the government claimed to be a terrorist organization.

Dexter’s statement suggests that, without any schooling in constitutional law, he intuitively recognized the perils of the traditional test oath. That is, even though the DMA does not require the applicant to forswear belief in communism or revolution, or membership in an organization that embraces these doctrines, it does require an abjuration of membership in or support for organizations that the government had condemned as “terrorist.” Indeed, the sixth question on the form goes beyond the TEL list, to ask whether the applicant has employed or otherwise compensated any person he or she knew to be planning or assisting “an act of terrorism.”

Helms, in his appeal letter, stated reasons similar to Dexter’s for refusing to complete the DMA. He was offended by the ineffectiveness of the oath as a means of fighting terror. “The licensing requirement has no basic [sic] for the protection of health, safety or welfare of the citizens of Ohio,” he wrote, and therefore is "beyond the powers of the state government." Furthermore: “When the State prohibits license based on free speech and religion, it has lost the power to license.” (Helms also stated, incorrectly, that the federal government had coerced the State of Ohio into requiring this form of its prospective employees, contractors, and licensees.)

Curious as to why these men seemed willing to sacrifice their livelihoods for a matter of principle, I contacted Dexter and Helms. Both were willing, indeed eager, to talk. I assumed that both of them could have honestly answered “no” to the six questions on the DMA, had they chosen to, and nothing in our conversations led me to believe otherwise.

Dexter earns his living primarily as a registered professional engineer – a category of licensee not listed on the Department of Public Safety’s website as being subject to the DMA. So, refusing to complete the form was not a matter of sacrificing his livelihood, though he would have lost some work as a plumbing inspector. But as it happened, Dexter’s license renewal check was cashed and he received his licenses after he submitted his second incomplete form in early 2007. He received license renewals again in 2008 and 2009 despite his continuing refusal to complete the form, based on the same objections. Whether this was negligence on the part of Ohio’s Construction Industry Licensing Board, a recognition on the part of some Board employee that Dexter was not likely to pose a national security threat, or a choice to avoid a possible legal challenge to the DMA, is open to speculation. Dexter said he had no problem with my publicizing this apparent lapse in Ohio’s homeland security program.

Dexter gave me further insight into his objections to the DMA. The form’s six questions ask about: (1) membership in an organization “on the U.S. Department of State Terrorist Exclusion List”; (2) advocacy (“have you used any position of prominence you have with any country to persuade others to support” a TEL organization?); (3) soliciting funds “or other things of value” for a TEL organization; (4) soliciting others to join; (5) affording “material support or resources”; and (6) hiring or otherwise compensating “a person you knew to be a member” of a TEL organization, or “a person you knew to be engaged in planning, assisting, or carrying out an act of terrorism.”

Dexter said: “It doesn’t do anything to stop terrorism, and it violates my constitutional rights to speak my own mind and associate with whoever I want. … Not that I belong to any of these organizations.” In fact, “I was in the National Guard 23 years; I carried a top secret clearance.” But “I have a constitutional right to believe in what I choose to believe in.” The terrorist organization blacklist is “just the same” as the campaign against the Communist Party in the 1950s, he said. “I don’t like what Bush and Cheney did – they took away our rights.”

Dexter said the decision “weighed on my mind.” Even though he rarely uses his four licenses any more, “I didn’t want to give them up.” Had he not eventually received the license renewals, he probably would have hired an attorney. “I would have to have some due process,” he concluded.

Helms’s outcome, so far at least, has not been as happy as Dexter’s. He had functioned as a water operator for apartment buildings for two decades, before Ohio required licensing. After the state changed its policy to require any public water supply with fifteen or more connections to have a licensed water operator, he enrolled in a course, and was given the DMA form by the instructor as part of a package to be sent to the licensing agency. He was troubled by both the fifth and sixth questions on the form; finally, he thinks, he filled in the fifth, but balked at the sixth, which required him to predict whether any person he compensated was planning or assisting “an act of terrorism.” Did “terrorism” mean “forcing someone to do something”? He had seen a definition that was broad enough to make the U.S. government itself a terrorist organization.

Helms was right to be definitionally confused. There are at least two separate definitions of terrorism under U.S. law, both of them broad. The federal immigration law provides the basic definition, which includes what we would expect (hijacking, sabotage, threats to kill or injure in order to compel a third person, including a government, “to do or abstain from doing any act”), but it also covers the use of any weapon “or dangerous device” with intent to endanger either people or property.4 Obviously, this encompasses a very broad range of crimes.

The second, more recent definition comes from President Bush’s Executive Order 13224, issued on September 23, 2001 with the purpose of enabling the government quickly to seize the assets of any person or entity that might contribute to terrorism. The Executive Order defines terrorism to include any act dangerous to life or property, if intended “to influence the policy of a government by intimidation or coercion.” Of course, any nation engaged in military action would be a terrorist organization, under this definition; and as scholars and advocates have pointed out, yesterday’s terrorist organization is often tomorrow’s legitimate revolutionary government. (Hamas, the elected government of Gaza, is currently on several of the U.S. terrorist lists.)5

Helms described himself as a lapsed Catholic; he attended parochial schools and led a “sheltered life”; “I didn’t know about segregation until I got to college.” He studied religion, including Islam, which he considers “a very fair religion.” “If someone came to me asking me to sponsor something,” he said, he would not want to be constrained by the terms of the DMA. “It seems like every Moslem group is on this list,” he said, referring to the State Department’s TEL, which is attached to the DMA form. “It would limit me – everything with a Moslem-sounding name … I would be inhibited from donating to that source.”

Helms’s situation remains unresolved. In early 2007, he learned that the others in his water operator course had received their licenses; he had not. He wrote his appeal letter, but learned that there was no administrative appeal process in place. The Department of Public Safety did not acknowledge the letter. After that, the matter languished. In mid-2007, the state’s Environmental Protection Agency, which is in charge of public water system operator licenses, officially notified him that his application was rejected. In early 2009, he spoke to someone at the Department of Public Safety, who asked him to send a letter of inquiry. Helms was distracted by other legal problems, but is considering filing a mandamus suit against the agency.

The government’s terrorist lists have encountered some embarrassing publicity of late. In October 2008, the Washington Times reported that two Catholic nuns engaged in anti-Iraq War and anti-death penalty activity were placed on the FBI’s Terrorist Watch List at the behest of the Maryland State Police. According to the Times, they were among 53 people added to the list “in conjunction with an extensive Maryland surveillance effort of antiwar activists.”6 Files produced in response to ACLU public records requests also revealed that a state trooper, working undercover, had attended a meeting of a socialist student organization at the University of Maryland; afterwards, both the founder of the organization and the faculty advisor were placed on the Terrorist Watch List.7

The Washington Post later picked up the story, reporting that state troopers “monitored – and labeled as terrorists – activists devoted to such wide-ranging causes as promoting human rights and establishing bike lanes.”8

In May 2009, the Justice Department’s Inspector General issued a report faulting the FBI Watch List for both over- and under-inclusion. “We found that the FBI failed to nominate many subjects [for the Watch List] in the terrorism investigations that we sampled,” the report said; the agency also “did not update or remove watchlist records as required.”9 Local police commonly consult the list when they make traffic stops; the State Department uses it to vet visa applications; and the Department of Homeland Security uses it to create its No-Fly list and select airport travelers for interrogation.

All this suggests that Ohio might be more circumspect in its reliance on government terrorism lists to screen its workforce, its contractors, and its plumbers and water operators. Conscientious objectors like David Dexter and Joel Helms have a point when they object to the hypocrisy, vagueness, and chilling effect of anti-“terrorist” oaths. 

June 9, 2009

Update, June 23: Further research discloses that Ohio has its own definition of terrorism, which differs from both of the federal-law definitions. Ohio defines terrorism to include any unlawful act "that is intended to do one or more of the following: (1) intimidate or coerce a civilian population, (2) influence the policy of any government by intimidation or coercion, or (3) affect the conduct of any government by the act that constitutes the offense." Under this definition, any illegal act, for example, an act of civil disobedience to oppose the war in Iraq, which is obviously intended to affect the conduct of the government, would be “terrorism.”

For more background on loyalty oaths, including oaths of the “affirmative” variety, which are still in common use, see "Pall of Orthodoxy": The Insidious Persistence of Loyalty Oaths, and the author's longer article in the summer 2009 issue of Dissent.

1. The official title was "Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA Patriot) Act of 2001," Pub. L. No. 107-056, 115 Stat. 272.

2. Ohio Department of Public Safety, “DMA: Homeland Security: Declaration of Material Assistance,” http://homelandsecurity.ohio.gov/dma/dma_general_info.asp (last visited 6/5/09).

3. The Department produced a few other documents, mostly letters from owners of small airplanes, protesting the state’s decision to require them to complete DMAs as a condition of renewing their aircraft registration.

4. 8 U.S.C. §1182(3)(B)(iii).

5. In addition to rather baggy definitions of terrorism, the federal immigration law, as amended and broadened by the USA Patriot Act, bars from the U.S. representatives and members not only of terrorist organizations but of political or social groups that “endorse or espouse terrorist activity.” “Endorse” and “espouse” are terms that allow for a substantial degree of subjective judgment; and journalists, scholars, and free-speech activists have protested the government’s reliance on this language to bar such Islamic scholars as Tariq Ramadan, who has been unable to start a tenured professorship at the University of Notre Dame because of a visa denial. See George Packer, “Comment – Keep Out,” The New Yorker, Oct. 16, 2006.

6. Tom LoBianco, “Protesting Nuns Branded Terrorists,” Washington Times, Oct. 10, 2008.

7. Ben Nuckols, “Files show Md. police watched a variety of activists,” Washington Times, Nov. 19, 2008.

8. Lisa Rein & Josh White, “More Groups Than Thought Monitored in Police Spying,” Washington Post, Jan. 4, 2009.

9. Ryan Singel, “Report: FBI Mishandles Terror Watch List,” May 6, 2009, http://www.wired.com/threatlevel/2009/05/fbi-gets-f-in-handling-terror-watch-list-ig-finds/

 


The Free Expression Policy Project began in 2000 to provide empirical research and policy development on tough censorship issues and seek free speech-friendly solutions to the concerns that drive censorship campaigns. In 2004-2007, it was part of the Brennan Center for Justice at NYU School of Law. The FEPP website is now hosted by the National Coalition Against Censorship. Past funders have included the Robert Sterling Clark Foundation, the Nathan Cummings Foundation, the Rockefeller Foundation, the Educational Foundation of America, the Open Society Institute, and the Andy Warhol Foundation for the Visual Arts.

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