Letter: NYCLU urges state legislature to honor democratic process before voting on new anti-terrorism legislation

October 12, 2001 New York State Assembly Albany, New York 12248 Dear Assembly Member: On September 17, 2001, the New York State Legislature passed what Governor George Pataki described as the “toughest laws in the nation to combat terrorism.” Now, less than a month later, the Governor is reportedly about to propose granting state law-enforcement officials even greater authority to prosecute terrorism. We write on Friday afternoon, October 12, 2001. As of this moment the Governor’s proposed legislation is unavailable to the public. And yet, if reports are accurate, the Governor’s bill will be presented to the Senate and Assembly for a vote on Monday. This would repeat the scenario that occurred on September 17, when the Governor’s antiterrorism bill was introduced, voted on, and signed within hours, without public debate or deliberation. As spokespersons for the NYCLU’s 25,000 members we find ourselves in the bizarre position of raising concerns regarding legislation that is not available for review; but we do so with the well-founded expectation that the proposed legislation may already have been signed into law before it becomes available to read and analyze. The NYCLU finds it deeply troubling that in the name of enhancing security, an open and deliberative legislative process should be compromised. And we urge members of the Assembly to fulfill their constitutionally mandated role as lawmakers by undertaking a careful and deliberative review of any proposals to expand further the authority under state law to investigate and prosecute terrorism. The anti-terrorism law enacted last month includes in its definition of terrorism “intimidation or coercion” of civilians or units of government, as well as “soliciting or providing support” for terrorism. By definition, then, a suspected act of terrorism may well implicate fundamental rights of expression, association, privacy and due process. There was not a word of public debate on September 17 regarding the possible infringement of civil liberties and constitutional rights under the proposed statute. The precipitous manner in which this proposal was enacted left unasked many other questions of fundamental importance: Do we need a state anti-terrorism law that largely duplicates federal law? Does it make sense to grant state and local police officials the authority to prosecute suspected terroristic acts of war, a job for which federal agents are specially trained? Will the new state law worsen “turf wars” with 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? And now, if reports are accurate, the Governor seems intent upon asking the Legislature to expand further the role of state law-enforcement officials in combating terrorism when even the head of the Governor’s new Office of Public Security has not yet established what, if any, “gaps” exist in the state’s security network. (See New York Times, “Pataki Names Ex-F.B.I. Man to New Post,” October 11, 2001 at B10.) Thus, there is good reason for concern that, once again, the Legislature may be asked to approve sweeping expansions of state police power without a showing that such measures are necessary; and, if necessary, without a showing that the measures proposed address the stated objectives. We see in Washington and in Albany a rush to legislate, with the urgent objective of protecting freedom. What have we achieved if in so doing we subvert the process of democracy that gives freedom its meaning? In considering any proposed anti-terrorism legislation, we urge members of the Assembly to insist upon the opportunity for public deliberation and debate. Sincerely, Robert A. Perry NYCLU Attorney Donna Lieberman Interim Executive Director