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Legislative Memo: Chemical or Biological Weapons

This legislation is intended to deter acts of terrorism that involve the use or possession of biological or chemical weapons. The bill would create four new felony offenses, two of which are classified as A-1 felonies with a mandatory penalty of life without parole.

As with the Antiterrorism Act of 2001, this proposal, first introduced in October 2001, reflects a new assessment of the dangers posed to the public safety by acts of terrorism. And as with the Antiterrorism Act of 2001, this bill is being advanced without sufficient public deliberation and comment in the Legislature regarding the appropriate role of the State in responding to potential or actual acts of terrorism.

Over the past twelve 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. What’s more, the Congress has vested federal agencies and the military with expansive authority to prevent the development of such weapons.

As a threshold matter, then, the NYCLU finds it unwise to proceed with this legislation in the absence of a comprehensive review, including public hearings, as to the appropriate role of state law enforcement in prosecuting suspected acts of terror. Even assuming, however, that it is appropriate to empower state and local law enforcement officials to undertake such prosecutions, this bill contains several serious flaws that recommend against its passage.

The bill incorporates a definition of terrorism (from the state Antiterrorism Act of 2001) that creates liability for conduct that may having nothing to do with terrorism.

This bill would impose 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.” Such conduct, however, may have nothing to do with terrorism.

Consider, for example, a human rights activist who throws a container of human waste at a jury in a courtroom, or an anti-abortion protestor who throws a bag of blood at patients entering an abortion clinic. These are criminal acts, subject to severe penalties under existing law; but under the proposed legislation, such conduct could be prosecuted as acts of terror, and punished with a sentence of life without parole.

The bill would make the mere possession of certain biological/chemical agents a crime of terrorism.

The bill would make possession of broadly defined biological/chemical agents (such as the blood or waste products described in the above hypotheticals) an A-1 felony, punishable by life without parole, even where the defendant has evinced no terroristic intent and even where the defendant has caused no harm to anyone. (See §490.45)

What’s more, the bill would also make it a B-felony to possess such agents with an unlawful intent, but without a showing of intent to commit an act of terror and without any showing of harm caused to any person. (See §490.40(1)) It would seem to be more consistent with the intent of this legislation, including the severe sanctions imposed, that liability should attach only where there is a specific intent to commit clearly defined acts of terror.

The bill would improperly remove judicial discretion in sentencing persons convicted of crimes of “bioterrorism” and would compel a sentence of life without parole.

Given the open-ended definitions of terroristic crimes – whose elements include conduct intended to “intimidate or coerce” a civilian population or unit of government – it is especially unwise to impose the severe determinate sentences prescribed by this legislation. By suspending judges’ discretion in imposing sentences for such crimes, the proposed legislation may well lead to unjust results.

Finally, we note that a federal Advisory Panel on Terrorism, chaired by Virginia Governor James Gilmore, has recommended the creation of a truly “national” strategy to address the threat of domestic terrorism.1 This includes the formation at the federal level of a National Office for Combating Terrorism, which would develop a comprehensive national strategy to be approved by the President.

This national strategy, according to a report by the federal advisory panel, should build on existing state and local capacities for emergencies and disasters. An appendix to the report makes recommendations, developed through a series of Regional Terrorism Policy Forums, regarding the states’ role in combating terrorism.

The recommendations propose that state officials should take measures to increase awareness of various types of terrorism threats; improve preparedness and the ability to respond to attacks; facilitate coordination and information sharing with the federal government and the states; enhance public health capabilities; integrate Civil Support Teams into state and military exercises; and ensure adequate and coordinated training at all levels of government.

Thus while states clearly have an important law enforcement role, the federal advisory panel suggests that the focus of the states in the campaign against terrorism should be on domestic measures to improve preparedness for terrorist attacks. Other measures, with the potential to impact foreign policy, are best coordinated at the federal level.

For the foregoing reasons, the NYCLU opposes S.5823.

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