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Legislative Memo: Anti-Terrorism Preparedness Act

This bill represents a major policy initiative regarding the state’s response to terrorism. However the bill appeared in print on June 23, 2004 – one day after the final day of the 2004 legislative session, according to the legislature’s published calendar. There are reports of a possible agreement on this bill with the Senate leadership.

It appears that the Assembly has not taken notice of those Democratic members of the Senate who protested the precipitous rush to adopt sweeping antiterrorism legislation (S.3 of 2003) without the opportunity for meaningful deliberation and debate.

On that occasion, the Albany Times Union editorial page concurred, issuing an editorial under the banner “The Assembly must be more deliberative than the Senate in passing anti-terrorism legislation.” It seems that the Assembly has rejected that wise counsel.

For this reason alone – the absence of meaningful public deliberation by the legislature – the NYCLU strongly opposes passage of A.11723. We also oppose the bill on its merits. The proposed legislation would create seven new crimes related to the possession or use of so-called biological or chemical weapons. The mere possession of any “microorganism, virus, infectious substance, or biological product” would require a mandatory sentence of life without parole.

The bill would also create new crimes of money laundering (with a threshold of $1,000) in support of terrorism; extend or eliminate the statute of limitations for crimes of terrorism; and would also require the taking of DNA samples from all persons convicted of such crimes (which include providing “support” for terrorism, a crime for which the intent standard is sufficiently attenuated that making a contribution to an organization’s educational activities could lead to terrorism charges).

The bill also proposes a comprehensive statewide program that is intended to secure the public safety and critical infrastructure in order to prevent and detect acts of terrorism, and to respond effectively should such an event occur. While we support those provisions of the bill that would protect and enhance public safety, those provisions do not save the bill from its underlying flaws.

These flaws are related, in important part, to the underlying definition of terrorism created by the Anti-terrorism Act of 2001. That legislation created new crimes of terrorism for certain specified offenses that involve the intent to intimidate or coerce a civilian population or to influence the policy of a unit of government by intimidation or coercion. Certain of these terrorism crimes involve underlying violent felonies.

However, New York’s terrorism law also creates culpability for soliciting or providing support for terrorism; and the intent standard for this crime is so broadly defined that a person whose “support” involves only protected First Amendment activity – for example, political speech or expression – may find himself prosecuted as a terrorist, even if no act of terrorism has occurred.

At the time the Anti-terrorism Act of 2001 was enacted, the NYCLU raised concerns that were left unanswered in the rush to legislate: Does New York need a state anti-terrorism law that largely duplicates federal law? Does it make sense to grant state and local police the authority to prosecute suspected terroristic acts of war, a job for which federal officials are specially trained?

How do we train law enforcement officials to distinguish between those who espouse unpopular political views and those who support acts of terror? (The legislature has yet to engage in any meaningful way these threshold questions.)

Concerns were also raised, as suggested above, that extraordinarily broad definitions of terrorism and related crimes might lead to terrorism prosecutions against persons whose alleged criminal conduct had nothing to with terrorism. And, indeed, there are reports that this has been occurring, at both the federal and state levels.

An analysis of federal terrorism prosecutions undertaken in the two years following September 11, 2001, indicates that international terrorism convictions increased more than 750 percent. However, the study found that the median sentence for those convicted of such crimes was 14 days.

What’s more, U.S. Attorneys declined four out of every ten of these cases referred by federal investigators for prosecution due to lack of evidence that a federal offense had been committed or due to absence of criminal intent.

These findings indicate that Justice Department investigators have been sweeping up hundreds of persons whose alleged offenses did not involve terrorism. There have also been reports of suspected “mis-charging” in prosecutions of suspected terrorism crimes in New York.

In the present climate of heightened fear and anxiety regarding possible future acts of terrorism, it can be expected that public officials and law enforcement agents will seek to demonstrate that suspected acts of terrorism are being aggressively prosecuted. And for this reason, in particular, the threat of overzealous and misguided prosecution must be guarded against.

This concern is well founded, as illustrated by a recent investigation of a suspected act of “bioterrorism” in Buffalo, New York. Federal prosecutors have indicted Steven Kurtz, an assistant professor at the University of Buffalo, for using certain biological organisms in his art work. Mr. Kurtz was apparently the target of an investigation by the anti-terrorism unit of the U.S. Attorney’s office.

However, Mr. Kurtz is a member of the art collective Critical Art Ensemble. His work, along with that of other members of the group, had been scheduled for exhibition at the Massachusetts Museum of Contemporary Art. The indictment drew significant publicity, which may explain why Mr. Kurtz was indicted not for terrorism charges but for wire and mail fraud charges related to the manner in which he obtained his biological art materials.

The curator of the art exhibit in which the work of Mr. Kurtz was to appear commented that the charges are “a far cry from bioterrorism. This is obviously an admission that they’re barking up the wrong tree. But it’s put the chill in a lot of people.”

Assembly bill no. 11732 would impose, under state law, criminal sanctions for acts of terror, defined as the use or possession of biological agents or toxins with the intent to “intimidate or coerce a civilian population” or to “influence the policy of a unit of government by intimidation or coercion.” As illustrated by the recent indictment of Steven Kurtz, such conduct may have nothing to do with terrorism.

Extending to local law-enforcement officials the authority to prosecute such matters is unwise in the extreme. Federal agents, acting under federal law, are far better qualified to undertake terrorism prosecutions (notwithstanding the apparently misguided investigation of Steven Kurtz).

Over the past thirteen years, the U.S. Congress has developed a broad legal framework for investigating and prosecuting the unlawful use of nuclear/radiological, chemical and biological agents – including toxins and infectious agents.

The Congress has defined as federal crimes virtually every step in the process of developing or acquiring a chemical or biological agent for use as a weapon; and the Congress has vested federal agencies and the military with expansive authority to prevent the development of such weapons.

What’s more, the Federal Bureau of Investigation has undertaken a highly publicized effort to work in close collaboration with the New York City Police Department, which now has its own Anti-terrorism Task Force, and with law-enforcement officials statewide.

This new collaboration between federal and state officials means that New York’s law-enforcement personnel will now operate with greatly enhanced investigative and prosecutorial powers.

And these new powers will be exercised under extraordinary pressure to produce results – that is, to investigate, prosecute and convict suspected terrorists. This circumstance makes even more troubling the further expansion of New York’s antiterrorism statute, as provided in A.11723.

In light of the foregoing, the NYCLU strongly recommends that the Assembly not take up A.11273. Instead we would urge that the legislature undertake bipartisan hearings, at which legislators, experts, and members of the public at large are afforded the opportunity to ask – and have answered – this question:

How will we ensure that state and local law enforcement undertake anti-terrorism initiatives in a manner that serves to protect the public safety and that also respects the fundamental rights and liberties promised in the Constitution and the Bill of Rights?

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