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June 30, 2006
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NOW Transcript - Show 226
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Transcript - June 30, 2006

BRANCACCIO: Welcome to NOW...

We're coming up on five years since nine-eleven, and yet every day, thousands of tons of deadly chemicals are moving largely unguarded through our cities and towns

...either by road, rail, or barge.

The cargo's still vulnerable, despite all the attention given to homeland security.

Senior correspondent Maria Hinojosa and producer Peter Meryash set out to find out why.

HINOJOSA: Three months ago, hundreds of emergency responders swarmed through this rail yard in New York City ...

It seemed an explosion on a freight train had caused the release of a highly toxic and very deadly chemical ... arsenic trichloride. Dozens dead ... many more badly injured ... it looked real ... but this was only a drill.

The event was designed to see how well emergency responders would handle not so much an accident, but a terrorist attack ... one involving deadly chemicals.

It's the kind of nightmare scenario that authorities recognize is a major threat ... because everyday, thousands of tons of hazardous chemicals can be found moving all around the country.

Used in everything from manufacturing to water treatment ... These extremely toxic and very deadly cargoes are shipped on trains, trucks and barges ... Often right through heavily populated areas.

Sometimes, tank cars sit unattended and unguarded for days ... Filled with these lethal chemicals.

FALKENRATH: They are enormously dangerous. They are produced in truly massive quantities, shipped and stored in many cases next to very dense urban populations, and present, in my opinion, the single greatest danger of a potential terrorist attack in our country today.

HINOJOSA: Richard Falkenrath should know about these things. On Monday, he was named New York City's deputy commissioner for counter-terrorism.

But before that, he was one of president Bush's top advisers on homeland security. After leaving the white house in 2004, he came to congress several times as a private citizen.

And he warned ... the Federal government has done far too little to protect the public from these toxic chemicals ... which remain vulnerable and deadly targets for terrorists.

FALKENRATH: These are basically World War I era chemical weapons which we move through our cities in extraordinarily large quantities and quite low security. I'm sorry to say since 9/11 we have essentially done nothing in this area. We've made no material reduction in the inherent security of our chemical sector. If a terrorist were to attack that sector, there is the potential for casualties on the scale or in excess of 9/11.

MILLAR: I call it "pre-positioning weapons of mass destruction" right in your major target cities.

HINOJOSA: Fred Millar is a former member of the Washington, DC local Emergency Planning Committee. He's been working feverishly since 9-11 to warn cities around the country about the dangers they face from the transportation of these chemicals right through their communities.

MILLAR: As a professional in this area, I cannot imagine an easier way for al Qaeda to fulfill its stated goal of killing a lot more Americans the next time around than the last time around. There's no easier way, than to let loose a poison gas cloud that is being pre-positioned in a major American city, by the railroads, and the truckers, and the chemical shippers.

HINOJOSA: Now we're not giving terrorists any ideas here. In fact, our intelligence agencies have known for several years ...

... that al Qaeda has been interested in "... targeting the U.S. railway sector." That, according to this Feb. warning released in October, 2002 ... which included the possibility of attacks on "hazardous material containers."

"recently captured al Qaeda photographs of u.s. railroad engines, cars, and crossings," it said, "heighten the intelligence community's concern of this threat."

To get a first-hand look at the problem, Millar brought us here to the nation's capital ... where a rail line and freeway are just blocks away from Congress.

HINOJOSA: How come so many Americans don't know about this if this is such a huge danger?

MILLAR: Well, the main reason is that the people who do know about it, and I mean the industry people and also the fire chiefs and the police chiefs, they seem to have a kind of an agreement that, "let's don't alarm the public. Let's don't scare people to death."

HINOJOSA: But the threat is very real, according to Jay Boris, one of the top scientists at the U.S. Naval Research Laboratory. He gave a chilling assessment to the Washington D.C. city council of what could happen there in the event of a chemical release.

BORIS: If you take the worst case scenario, which is a chlorine tank car, going off during the 4th of July event when the wind is in the right direction, a hundred thousand people could easily die. It might as well be nerve gas.

HINOJOSA: The last time the world saw consequences anywhere near that scale from a chemical industrial accident was in Bhopal, India ... When late one night in 1984, a chemical used to make pesticides, leaked from the Union Carbide plant there. Some four thousand people died in the immediate aftermath ... and reportedly another fifteen to twenty thousand in the subsequent months and years. Hundreds of thousands more were injured.

MILLAR: We have not yet had our Bhopal disaster, or our terrorist attack disaster, on the rail lines or the highways. And so, it's relatively neglected as a vulnerability. But that is a terrible recklessness.

HINOJOSA: The D.C. city council was also shown these photographs ... tank cars of deadly chemicals rolling only blocks away from the U.S. capitol building and government offices.

And that's of serious concern ... because when exposed to air and wind, these chemicals will spread. The U.S. Naval Research Lab has produced numerous simulations of how that might happen in a major American city. This city is Chicago.

MILLAR: The risks are just astonishing. If we can get people to focus on them, I think we can get ordinances passed that will force a re-routing around major target cities.

HINOJOSA: And in fact, that's just what Fred Millar tried to do. Working as a consultant to the Washington, DC city council, he helped them come up with a bill to limit the transportation of the most dangerous hazardous chemicals through the district.

WILHIDE: I think that is a very short-sighted tactic by the cities.

Peggy Wilhide is with the Association of American Railroads.

WILHIDE: DC will do it, then Philadelphia will do it, then Miami will do it--

HINOJOSA: And--

WILHIDE: And Atlanta and you will virtually shut down the transportation of hazardous material in this country.

HINOJOSA: But if you live in a big city like Washington, DC or New York that has been hit ...

WILHIDE: If you re-route outside the big cities, you're just gonna simply shift the risk to other cities.

Because you're putting in-- you're making it travel hundreds or thousands of more miles. You're putting it on track that is possibly not designed to handle that kind of load or that frequency of load. You're putting it through communities that have volunteer fire departments.

HINOJOSA: Fred Millar disagrees. He believes re-routing is a far safer alternative.

MILLAR: I mean, all due respect to the citizens of Luray, Virginia, but you can't believe too many terrorists spend their nights trying to figure out how to blow up a rail car in Luray, Virginia.

And secondly, the consequences of a chlorine accidental release in a small town, is gonna be much less than if it happens here.

HINOJOSA: And so last year, the D.C. City Council voted 10 to 1 to pass the bill restricting these dangerous cargoes.

But a day after that was signed into law, the railroad company that owns the tracks going through Washington, DC sued to stop it.

And that's not all ... the Bush administration stepped into the battle ... on the side of the railroad ... Claiming that the Federal government had the authority here and that the city's actions would unreasonably burden interstate commerce.

HINOJOSA: The Federal government is actually stepping in the way of cities that are saying, "we wanna protect ourselves?"

MILLAR: Right. The Bush administration, basically, is saying, "we think this ought to be a federal responsibility. And you cities ought not to protect yourselves. But we're not gonna protect you, either."

HINOJOSA: We asked for an interview with the Department of Homeland Security ... but they said they couldn't find the time to sit down with us.

What they did say is that re-routing is the wrong approach. Instead they point to various security measures now being implemented... like a ten million dollar video surveillance system along the rail lines in Washington, DC... to be completed sometime next year.

And around the country, the government is doing background checks ... and requires security training for people who transport hazardous materials.

What's more, the government has also hired about a hundred new security inspectors to monitor rail and truck transportation.

Critics charge these steps are entirely inadequate for the task at hand.

FLYNN: Unfortunately our track record is that we only react to actual catastrophes. We're spending tens of billions of dollars on airport security. And then we ignore all of the rest of the transportation industry.

HINOJOSA: Stephen Flynn has worked for years in the military ... and was a staffer with the National Security Council under President Clinton.

FLYNN: We have more inspectors policing people's goods getting on an airplane looking for little things that could pose a danger potentially in those bags than we have supervising the entire-- sector of rail-- and chemical security. This is nuts.

HINOJOSA: There's a big problem with the Federal government's approach, says Flynn. It gives private companies free rein to make up their own security plans ... with few standards and little oversight.

Case in point: these new "security action items" ... issued just three months ago by the Bush administration ... warned railroads ... that the "movement of large quantities of [toxic] materials" should be given special attention.

But right at the top ... the document's second sentence ... reads: "all measures are voluntary."

And that, in a nutshell, says Flynn ... represents the administration's philosophy when it comes to homeland security.

HINOJOSA: How's it possible that our-- this administration is not getting this under control? Especially after September 11th.

FLYNN: Well we really have to understand that the war on terror has been divided into two parts, where the part that's got virtually all of the resources has been the offense part, the taking the battle to the enemy.

Throughout the 2004 election we heard again and again the mantra, we do it over there so we don't have to do it here. And part of the drive-- rationale for not doing things here is a sense of almost on the one hand that it's futile, which I think is nonsense frankly. But also that it would involve too much government.

And we're basically in the time where our government is saying-- or Washington is saying, "we want to stay out of the private marketplace, that when it comes to critical infrastructure protection, there's sufficient incentives within the market to safeguard itself."

HINOJOSA: And so how is that "marketplace" doing? Brent Kiser has spent the last 27-years working for the state of Ohio ... inspecting truck and rail transportation of hazardous materials.

He says, as far as protecting these dangerous cargoes, security is woefully inadequate.

KISER: In a rail yard such as this there's no fences. There are no gates-- no security-- no lighting. Anyone-- anybody has unobstructed access-- to any of these tank cars at any time any day.

HINOJOSA: Have you ever-- have you seen lets say in downtown Cincinnati a situation where you've had four or five or six cars transporting highly toxic chemical sittin' around? Have you seen that?

KISER: Oh, sure, right through Cincinnati. It-- it-- you've got--

HINOJOSA: You-- you say that kind of like, "oh, sure, it happens all the time?"

KISER: Oh, it happens everyday-- happens everyday, coming through downtown Cincinnati-- in bulk, in non-bulk, by highway, by rail, by inter-modal containers.

HINOJOSA: So, the people of Cincinnati are perpetually at risk for--

KISER: Yes. Yes. An-- any major city. I think you find if you go to any major city-- you're gonna find the same thing.

HINOJOSA: The railroad industry doesn't dispute that lots of lethal chemicals are moving through our cities ... but says it has taken specific steps to improve security since 9-11 ...

... including better communication with the government about possible threats ... more monitoring of hazardous shipments ... and periodic "war games" to test defenses.

But the railroad industry adamantly opposes re-routing requirements ... and says there's a limit to what guards and guns can do.

WILHIDE: I mean it's virtually impossible to guard 142,000 miles of rail track. There's just no way.

HINOJOSA: Are we secured then? Is there security to protect us from those toxic chemicals that are being transported?

WILHIDE: I think our security plan and our security in the railroads is as good if not better than any other industry. Can-- can you say that any industry is secure completely against terrorist attacks? I don't think you can. I don't think that's a fair question.

HINOJOSA: Wilhide says the best solution here would be safer chemicals. So, we took our questions to the American Chemistry Council. But they turned down our request for an interview.

Replacing those toxic chemicals with less lethal ones where possible ... is also favored by many consumer activisits and legislators.

And in fact, after 9-11, the biggest water treatment plant in Washington, DC did just that ... when it switched from chlorine to a much safer bleach to purify water.

But attempts in Congress to require the use of those safer alternatives ... have been opposed by the chemical industry ... and have gone nowhere.

FLYNN: I think Americans will be appalled when the next terrorist attack takes place in American soil and they see how little has been done to make them more secure and to make the consequences far less disastrous than they were.

We have to do more here at home. It requires Washington to be far more engaged and realize that sectors like this chemical sector are essentially open invitation for--catastrophic events.

HINOJOSA: The Bush administration ... which has long resisted tougher security requirements for the chemical industry ... now admits, nearly five years after 9-11, that more regulation is needed.

But so far, no new transportation security proposal has been put forth ... and in the meantime, the local Washington DC law restricting hazardous chemical cargoes there ... is now tied up in court.

The CSXT railroad, which owns the freight lines in DC, has reportedly suspended ... on a voluntary basis ... shipments that run closest to the capitol building.

But that still leaves another rail line ... only a few miles away ... free to operate.

MILLAR: We need a government here. We need a government to do the most basic kinds of risk reduction to prevent terrorism.

HINOJOSA: What are regular American citizens who do get nervous, what, in fact, can they do?

MILLAR: Well, I think the main mechanism is get your own local government to protect your target city. And then make demands on the Federal government that they have a rational national regulation to protect all target cities in a fair way. But we won't get to that until the target cities that are most at risk now, put their foot on the tracks and say, "this is insanely reckless. And we're not going to let you do it."

.... You can find out more about the chemicals that may be passing along a route near you by consulting our website, PBS-dot-org.

Now you know we've been covering the Guantanamo story for a good while...

On Thursday, the Supreme Court ruled against the Bush administration on how to put Guantanamo detainees on trial. It's being called the most important High Court decision of the year.

Here to help us understand the deeper meaning of this is former Rear-Admiral John Hutson who used to be U.S. navy's top lawyer. Hutson is now Dean of the Franklin Pearce Law Center in New Hampshire.

BRANCACCIO: Well, John Hutson, thanks for coming in.

HUTSON: Well, thank you for having me, David. It's a pleasure to be here.

BRANCACCIO: So, in the war on terror, the Bush administration takes people that its detained on the battlefields of the world and puts them in a prison on the island of Cuba, labels them enemy combatants, not prisoners of war, and then proposes to try some in a court system of the Bush administration's own invention.

HUTSON: Right.

BRANCACCIO: And so, this week you get the U.S. Supreme Court saying to that special court system, "Uh-uh."

HUTSON: "It ain't gonna work."

BRANCACCIO: But what does this really mean from your perspective?

HUTSON: The court is saying that the administration's broad use, expansive aggressive use of Presidential power in his capacity as commander-in-chief doesn't necessarily work. It has its own limitations. He doesn't have the authority inherently. He has not been given the authority by Congress. And moreover, that there are limitations that the Geneva Conventions-- imply for these terrorists. So, that-- that the administration's gonna have to look at the-- the way in which they're prosecuting the War on Terror-- through a different set of eyes, I think, at this point, as a result of this-- this case.

BRANCACCIO: Now, students of the Bush administration's response to four airplanes being used to attack America on September 11th, 2001, saw the emergence of really a new paradigm, which was to assert pretty robust Presidential authority, to really do what it takes--

HUTSON: Right.

BRANCACCIO: --to stop these terrorists. Is that in part what this ruling is about?

HUTSON: I think that is precisely what this ruling is-- is about.

BRANCACCIO: Well, it's gonna knock them for a loop, though.

HUTSON: It does, indeed. And it pulls a couple of rungs out from the administration's prosecution of the war. And that's what the-- the real impact I think of this case is gonna be. It-- it-- it's beyond the defendant Hamden.

BRANCACCIO: --Osama bin Laden's driver.

HUTSON: Who was supposedly Osama bin Laden's driver. But the-- the court has used that, and in very fiery, kind of emotional, almost, language, has said that it's simply not going to work for the administration to create the-- these courts in which-- the-- the rules of evidence don't apply.

The appeal process that-- that the-- that the defendant doesn't-- have to be at the trial, his very own trial-- all of those things aren't gonna work. And so that it-- it has a legal implication with regard to commission. But it also has a broader implication in regard to what the administration, what the United States can do in terms of prosecuting the War on Terror. And-- and basically, the court's saying, "You gotta play by the rules."

BRANCACCIO: In just one part of the opinion this week, Justice Anthony Kennedy wrote, "Trial by military commission," this was the special way --

HUTSON: Right.

BRANCACCIO: --that was proposed for trying some of these guys, "raises separation of powers concerns of the highest order. Concentration of power," he means in the executive branch, I think, "puts personal liberty in peril of arbitrary action by officials."

HUTSON: Essentially he's saying we can't trust the administration. I mean, it-- it-- it's dramatic language. And-- I think the administration's gonna have to sit up and-- and take notice. Had the courts, the commissions, been set up to look just like a court-martial.

BRANCACCIO: If they'd looked very close to a normal military--

HUTSON: Right.

BRANCACCIO: --court case?

HUTSON: Right. But they look so much different than a normal military court case, that the court's saying it doesn't comply. It doesn't comply with common article three of the Geneva Convention, which really has a dramatic impact on all of this.

Because common article three also talks about torture, cruel, inhumane and degrading treatment-- and other aspects that the administration has said that they-- they don't have to comply with.

BRANCACCIO: And John, some of those are your issues. You were the top lawyer for the Navy. You were helping some of the Guantanamo detainees get better access to a normal, legal proceeding.

HUTSON: Well, I-- I think that that is the bedrock of what this country is built on. And if in the course of fighting the war on terror we give up the reasons we're fighting the war on terror, I-- I think that we will have lost. We-- we will have permitted the terrorists-- and-- and I brook no sympathy for terrorists. But if-- if we give up what we stand for in order to prosecute the War on Terror they will have brought us down to their level, which is what their goal is.

BRANCACCIO: When you chose to help some of the Guantanamo detainees with your expertise, you're really sticking your neck out. And now, you have the U.S. Supreme Court-- you look less like a fringe character, John.

HUTSON: Well, I-- I will tell you that I was-- I was delighted. I was so pleased with-- with the court's opinion. I think the-- I think the court is standing tall for the rule of law-- for human rights, for all the things that this country up to now has stood tall for-- and wanted other countries to emulate.

I think this opinion was good for-- the question of balance of powers, separation of powers. It was good for the Constitution. It was good for the Geneva Convention. It was good for human rights.

It was not good for the Bush administration right now, in-- unless they learn from it. And if they learn from it and-- and-- and using the wisdom that the Supreme Court of the United States tried to give them, we'll all be better off for it.

BRANCACCIO: Well, Dean Hutson, thank you very much.

HUTSON: Thank you for having me, David. It was a pleasure to be here.



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