Legislative Memo: Anti-terrorism Package

The New York Civil Liberties Union has strong objections to many provisions in this legislative package; the NYCLU has equally strong objections to the procedures by which the legislation was adopted.

This same expedited procedure, invoked under constitutional provisions intended to accommodate the need for emergency legislation, had been used to pass the Anti-terrorism Act of 2001, just six days after the attack on the World Trade Center. As was the case then, the breakneck pace at which the package of anti-terrorism legislation was brought to a vote on the Senate floor short-circuited meaningful debate.

In place of a reasoned explication of the substantive issues in the legislation, there were demands for urgent action, in the face of national emergency. Requests for clarification were interpreted as both dangerous and disloyal.

The flaws in the legislation passed by the Senate derive, in important part, from 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 involved 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, the new terrorism statute also creates culpability for crimes of soliciting or providing support for terrorism, as well as crimes for the attempt or conspiracy to commit such offenses.

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 duplicated 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?

Concerns were also raised that new state terrorism crimes might lead to terrorism prosecutions against persons whose alleged criminal conduct had nothing to with terrorism. Under the statutory definition, a person who makes a contribution to the educational activities of a political organization that, unbeknownst to that person, is associated with terrorism could be charged with providing support for terrorism; likewise, a person who provides financial services, or transportation, to a member of such an organization. And, indeed, there are reports that this has been occurring, at both the federal and state levels.

An analysis of federal prosecutions undertaken in the year following September 11, 2001, indicated that terrorism prosecutions had increased tenfold. But the study found that the lengths of sentences imposed – with a median of two months – indicated the Justice Department prosecutors were sweeping up hundreds of persons whose alleged offenses did not involve terrorism.

There have 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 the threat is being aggressively prosecuted.

For this reason, particularly, overzealous prosecution must be guarded against. It is troubling, therefore, that the Senate would pass legislation that eviscerates fundamental and longstanding protections of due process that serve as a check on prosecutorial abuses and errors.

What’s more, with the enactment of the U.S.A. PATRIOT Act, federal law-enforcement agents have been given significant new powers, including the authority to monitor Internet activity; utilize “roving” interceptions of telephone and computer communications, even in investigations that do not involve allegations of terrorism; and conduct unannounced clandestine searches of private residences.

These new federal powers will be executed through close collaboration between federal agents and local law enforcement officials. 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.

Even as federal anti-terrorism agents are given vastly greater unchecked powers, the NYPD has recently obtained through the courts limitations on the authority of an oversight panel that was responsible for reviewing and documenting the department’s surveillance of political activity.

This new collaboration between federal and state law enforcement means that New York’s local 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 anti-terrorism bills recently passed by the Senate.

The NYCLU strongly recommends that the Assembly not take up the Senate’s anti-terrorism package. Instead we would urge the legislature to undertake bipartisan hearings, at which legislators, experts, and 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 respects the liberties and rights promised in the Constitution and the Bill of Rights?

“Good faith” exception to the Exclusionary Rule
S.3, Section 20

The hallowed text of the Fourth Amendment articulates the right of people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures but upon probable cause supported by oath or affirmation. The proposed bill would permit a police officer to violate this standard by claiming that his search or seizure, although improper, was undertaken in good faith. If accepted by the court, the seized evidence would be admissible in court.

The New York Court of Appeals has observed that by permitting the introduction of such evidence obtained in violation of the Fourth Amendment, “ . . . the exclusionary rule’s purpose is completely frustrated, a premium is placed on the illegal police action and a positive incentive is provided to engage in a similar lawless act in the future. People v. Bigelow, 66 N.Y.2d 417 (1985).

It should be noted that in recognizing a good-faith exception to the exclusionary rule, the Supreme Court made two observations relevant to this bill. First, that the exception obtained where officers relied upon a valid warrant issued by a neutral and objective magistrate; and, second, that the court intended to retain incentives for training police officers to avoid constitutional violations. The “good faith” was to be objectively reasonable, based upon the actions of a well trained officer. United States v. Leon, 468 U.S. 897 (1984).

As previously discussed, the inevitable effect of the far-reaching federal anti-terrorism legislation, as well as the state proposals addressed herein, is to diminish the validity of a warrant, and to make the objective good faith discussed in Leon illusory. This is no time, if there ever was one, to create a “good-faith” exception to the exclusionary rule in New York law.

Conviction based upon uncorroborated evidence obtained from an accomplice
S.3, Section 2

For more than a century New York’s common law has recognized that a person charged with a crime is not to be convicted based solely upon the testimony of an accomplice in that alleged crime. The New York Court of Appeals has found such testimony to be inherently untrustworthy because the accomplice is vulnerable to a coercive bargain, in which he “gives up” a co-defendant in exchange for a lesser sentence or freedom.

In an opinion upholding this rule, the court observed that its purpose is to “ . . . protect the defendant against the risk of a motivated fabrication, to insist on proof other than that alone which originates from a possibly unreliable or self-interested accomplice.” People v. Hudson, 51 N.Y.2d 23 (1980).

As noted in the preceding discussion of the exclusionary rule, the massive expansion of state police authority in response to the threat of terrorism makes even more essential the rule that a conviction will not rest upon the uncorroborated statements of an alleged accomplice.

Permitting “double jeopardy” prosecutions
S.3, Section 18

The Double Jeopardy clause of the Fifth Amendment provides that no person shall be “subject for the same offense to be twice put in jeopardy of life or limb.” This proposal would remove this constitutional protection against becoming the target of a second prosecution in New York for a charge that has led to acquittal in another jurisdiction.

The historical record demonstrates that particularly in times of heightened concern for the national security, the law can become a weapon employed unjustly and inequitably. Witness the Palmer Raids following World War I, the communist witch hunts of the McCarthy era, the use of the law to harass and suppress political activists in the 1960s and 1970s.

The “war on terrorism” creates a high risk that in the name of national security we will seek to prosecute the innocent. The rule against double jeopardy is intended to prevent society from vindictive use of the law as a means of persecuting those we seek to marginalize.

Roving interceptions
S.3, Section 24

Senate bill number 3 (S.3) would waive the requirement that an application to the court for a warrant to intercept telephone and electronic communications (a “wiretap”) specify the facilities from which or the place where the communication is to be intercepted.

In plain language, this so-called “roving intercept” attaches to the person or persons being surveiled, not to the telephone of computer being used by such persons. The tap, in effect, follows the person to any location in the state.

The authority to conduct roving intercepts is an extraordinarily intrusive surveillance power; this authority has been largely limited to federal officials. Under federal law these officials may utilize roving wiretaps, pursuant to a warrant.

Under emergency circumstances, federal agents may execute a roving wiretap and submit a warrant application to a court within 48 hours after the fact.

Under the Foreign Intelligence Surveillance Act (FISA) surveillance can be targeted at U.S. citizens and foreign nationals. And for these purposes a warrant will issue without a showing of probable cause that the surveillance will produce evidence of criminal activity, and with limited judicial oversight.

Under a recent ruling of the Foreign Intelligence Surveillance Court, such investigations are no longer limited to foreign intelligence gathering, but may target ordinary crime.

Even leaving aside the question as to whether it is necessary or appropriate to authorize roving interceptions under New York law, the new greatly expanded wiretap authority now available to federal agents should give policy makers pause.

There is a great likelihood that extending this authority to tens of thousands of local law-enforcement officials would subvert the coordination of criminal investigations and would almost inevitably lead to the routine violation of basic rights of privacy, speech and due process.

Consider that a roving wiretap permits the monitoring of every communication made by, and made to, the suspect named in a warrant. Consequently, it is quite possible that a roving wiretap may capture, literally, hundreds if not thousands of conversations by “non-suspects.”

The proposed state law would permit the use of roving wiretaps in the investigation of all suspected crimes, increasing exponentially the likelihood that lawful conduct will become the predicate for having one’s phone or computer communications intercepted.

There is considerable evidence that suggests this concern is well founded. Between 1969 and 1973, incriminating information was reportedly obtained in more than half of the communications intercepted through electronic surveillance by law enforcement. However, between 1994 and 1995 only one-fifth of all intercepted communications involved incriminating information.

In the year 2000, law enforcement officials requested 1,190 wiretaps in criminal cases. None of the requests was denied. Each wiretap intercepted, on average, 1,769 conversations, for a total of 2.1 million conversations. But only 23 percent of the intercepted conversations were deemed “incriminating.”

So between 1973 and 2000 there was an over two-fold decrease in the percentage of captured conversations which were deemed incriminating. These data are not anomalous. Between 1997 and 2000, not a single federal or state wiretap application was denied by the courts.

These data may give some indication as to why the authority to utilize roving intercepts has been limited by federal statute to federal officials. And the interpretation given to these statutes by the courts would seem to suggest that federal law preempts New York from enacting a law that permits local law enforcement personnel to apply for warrants to conduct roving wiretaps.

The authority to conduct electronic intercepts derives from Title III of the Omnibus Crime Control and Safe Streets Act of 1968, which was amended in 1986 to include roving interceptions. Title III explicitly preempts the authority of the state to enact this roving interceptions provision, as proposed in S.3. New York’s Court of Appeals has recognized the constraint upon the state’s authority in this regard. In People v. Shapiro, 50 N.Y.2d 747 762-3 (1980), the court stated:

Bioterrorism
S.3, Section 28

This bill 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.” 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 protester 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 severely.

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 proposal 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, it is appropriate to empower state and local law enforcement officials to undertake such prosecutions, this proposal contains several serious flaws that recommend against its adoption.

The bill would make possession of any biological/chemical agents a B-felony, even where the defendant has no terroristic intent and even where the defendant has caused no harm to anyone. What’s more, under this proposal mere possession of certain biological or chemical agents would be mandate a punishment of life without parole.

Cyberterrorism
S.1627

This bill would make the various computer crimes in the state penal code – such as computer trespass or computer tampering – a crime of terrorism if perpetrated with intent to “intimidate or coerce” a civilian population or “influence the policy of a unit of government by intimidation or coercion” or “affect the conduct of a unit of government.” The bill would also create a terror crime for committing a “denial of service attack” against a government, utility or financial computer network.

The flaws in this proposal are perhaps even more readily apparent than in the bills previously discussed. For the bill makes no distinction between actions of non-violent political protest and the actions of a cyber-terrorist whose deeds cause significant damage to a computer network, harm to civilians, severe economic hardship or the destruction of critical infrastructure.

This proposal would prohibit all manner of protected First Amendment activity conducted via computer networks. It would make actions that are analogous to making political graffiti a class B felony. It would make culpable as terrorists persons whose only weapons are words. It would make terrorists out of politically motivated pranksters.

These are not merely hypothetical scenarios. This can be seen by a recent protest action involving hundreds of thousands of persons who expressed their opposition to a U.S. war against Iraq by conducting a “virtual march on Washington.” The “marchers” coordinated the transmission of e-mails, telephone calls and faxes to the White House, jamming congressional telephone lines for hours.

For those who used computers, or if computers were involved in managing the overload of protest messages, the bearers of the message might have been culpable for committing the terror crime of a “denial of service attack” under the law proposed for New York.

Will new criminal anti-terrorism laws make New Yorkers more safe?

In the absence of public hearings, it is difficult to determine what steps have been taken to enhance the security of critical infrastructure; to educate the public about how to respond to an act of terrorism; or to coordinate a statewide public-health response in the event of a terrorist act. On these matters the legislature should be consulted. And in response to questions on these matters, legislators should have answers. There are indications, however, the answers are not to be had.

For example, in hearings conducted in March of 2002 by the Assembly Health and Codes committees the issue of the state’s Disaster Preparedness Commission was addressed. A representative of the Department of Health was asked about the Commission’s annual review of a disaster preparedness plan. The Health Department representative could not state whether the plan was in existence; or if not, whether it was in preparation.

There have been a number of newspaper accounts that cite inadequacies in the state’s level of preparedness for a terrorist act. Various accounts have reported that subway workers lack equipment and training needed to respond to an attack involving bio-chemical agents; that there is inadequate funding to purchase equipment, including gas masks, for police and fire fighters and to train them in counter-terrorism measures; and that evacuation plans in the case of an accident at the Indian Point power plant are inadequate.

The underlying issue may be national in scope. An Op-Ed article by two former staffers with the National Security Agency stated that only a small fraction of federal dollars allocated to anti-terrorism has been “used to make Americans safer at home;” the bulk of the money has been used for the military response.

In the sixteen-month period following September 11, 2002, New York State missed two deadlines for making application to the Federal Emergency Management for funding to help bolster the New York City metropolitan area’s preparedness for a terrorist attack.

“A project of this magnitude is far too important to rush,” explained the governor’s spokeswoman. The same logic would suggest that before the state creates new, wide-ranging police powers to conduct surveillance and prosecution of suspected terrorist acts (which may have little to with terrorism), while at the same time gutting fundamental protections of privacy, speech and due process, the democratic principle of advise and consent ought to be invoked.

If it were, it may well become clear that the proposed anti-terrorism initiatives are misguided. It may become clear that they will not make new Yorkers more safe.

Conclusion

To the extent the public safety is in a state of heightened risk, so too are the dangers to fundamental rights and liberties. If ever there were a time when the executive and legislative branches of state government should adopt a deliberative, thorough and democratic approach to securing the public safety, this is such a time.

The NYCLU urges the legislature and the governor not to proceed with the anti-terrorism legislation discussed herein; and instead to convene timely bi-partisan hearings that permit a rigorous and searching inquiry into the appropriate response by New York State to the threat of terrorism.