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Dangers In The Rush To Legislate

By Donna Lieberman and Robert A. Perry

In a painfully heightened state of emotion we try to make sense of the attacks on the World Trade Center and the Pentagon.

In Washington and in Albany we hear anxious calls to legislate, as if the guiding principle of governance has become, Do Something. Other voices remind us that an open, deliberative process is the hallmark of our democracy – and that we suspend democratic process at our peril.

This is no idle warning, as illustrated by events in our state capital this past week.

On Sunday, September 16, Governor George Pataki announced the state Legislature would convene in a special session to enact “the toughest laws in the nation to combat terrorism.” The next morning, without public debate, the Senate and Assembly created five new crimes for acts of terror — defined as “intimidation or coercion” of civilians or units of government – and two more crimes for “soliciting or providing support” for terrorism.

This language is intended to outlaw terrorism; it raises concerns, however, that advocates could be prosecuted as terrorists. The new statute also makes an act of terrorism punishable by death.

Thus, without comment from the public, without testimony from a single military or law-enforcement official (even lobbyists were denied access to legislators on the floor of the Assembly), the Legislature empowered police officials to prosecute terrorists, and juries to sentence terrorists to death.

In the rush to legislate, many questions were left unasked: Do we need a state anti-terrorism law that is largely duplicative of federal law? Does it make sense to grant state and local police the authority to prosecute suspected terroristic acts of war – tasks for which federal agents are specially trained? (Won’t the new state law exacerbate “turf wars” between federal security agencies?) How do we train law-enforcement officials to distinguish between those who espouse unpopular political views and those who support acts of terror?

Perhaps there are cogent answers to these questions. Perhaps not. But it is not inappropriate or unpatriotic – even at this anxious moment in history – to ask such questions before enacting far-reaching expansions of state police powers.

Legislative leaders in Albany resorted to a crude balancing test to explain their support for the anti-terrorism legislation. “[I]f we’re going to overreact,” Senate Majority Leader Joseph Bruno stated, “we overreact in terms of protecting our potential victims and innocent people and not worry the least about coddling potential criminals.” Assembly Speaker Sheldon Silver conceded the legislation may well be “overkill,” but suggested, “it’s important to show the unity of our purpose and not question political motives.”

Given the fundamentally important questions raised by empowering state law-enforcement personnel to prosecute suspected terrorist activity, it was unwise in the extreme to have suspended all public debate and deliberation regarding enactment of the Anti-Terrorism Act of 2001.

There have been many heroic moments during and after the attack on the World Trade Center. The enactment of this legislation was not one of them.

Just as our public leaders are urging a return to “normalcy,” law makers should adhere to their own admonition by following the normal procedures of law-making. As state legislators and City Council members consider further measures to protect the public safety, they should do so with the benefit of public debate.

Lieberman is the NYCLU’s Interim Executive Director; Perry is an NYCLU attorney.

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