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Homeland Security X 50 | The Nation

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Homeland Security X 50

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Don't sneeze on a wheat stalk in Topeka. By the time you read this, exposing a crop to infectious disease could constitute a terrorist act in Kansas. The legislation, SB 395, has passed both houses and has been signed into law by the governor. Along with more than 1,000 other measures and proposals submitted in state jurisdictions since September 11, Kansas's SB 395 is part of a new war on domestic terror, this one waged by our nation's state governments.

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About the Author

Eve Pell
Eve Pell writes about civil liberties and freedom of information at the Center for Investigative Reporting in San...

Some of the proposed measures make sense, like protecting public buildings, tightening security at nuclear facilities and modernizing emergency response systems. But other proposals carry worrisome implications for free speech. Still others seem designed to advance all-too-familiar special interests.

Take Pennsylvania, where State Senator Joseph Scarnati wants to establish a crime called "environmental terrorism." Under his bill, SB 1257, it would be easy to qualify as a terrorist--all one would have to do is communicate a threat to commit "a crime of violence...destructive to property or business practices." Scarnati told the Pittsburgh Post-Gazette that his intention was to support the timber industry in the state's only national forest by deterring "preservationists" and the spread of their "misinformed ideas." Jim Kleissler of the Allegheny Defense Project, one of the "preservationists" Scarnati has in his sights, says, "This bill capitalizes on 9/11 to label groups like ours 'eco-terrorists.' They want to define violence to mean 'negative impacts on business,' and that's pretty far-reaching. It would apply to boycotts and picket lines." The bill is currently in committee, where its fate is uncertain.

When post-9/11 passions were running high, legislation was sometimes introduced a bit hastily. In Oklahoma, according to SB 822, the threshold for "terrorism" could be as low as "any conduct...calculated to damage or destroy property...or produce a state of adversity, anxiety or fear...to coerce a population or government into granting demands, altering rights...or effecting any industrial, political or economic ends." When one of the three legislators named as sponsors on the bill, State Representative M.C. Leist (who was born in Liberal, Kansas), was called for comment, a spokesperson in his office allowed as how Mr. Leist probably hadn't read it yet. She referred a reporter to the Senate sponsor, Frank Shurden. Shurden explained the rationale for his bill: Oklahoma currently has no law on terror. "It never hurts to have a state law in case we need one," he says. "Besides, sometimes the federal government works and sometimes it doesn't." When asked whether the "any conduct" wording was overbroad, Shurden paused and said, "We might have to look at that. I am in favor of demonstrations so long as they are peaceful, and we don't want to overreact. That's what Hitler did."

As the horrors of September 11 recede with time, the legislative process has weeded out many of the most egregious measures. But far from all. In many states, lawmakers are proposing new categories of criminal offenses, lengthening prison terms, expanding use of the death penalty, increasing surveillance powers and cutting back access to public records while promoting a jingoistic form of patriotism and religion. All fifty states now have either an office or a commission on homeland security. The sheer volume of proposed legislation has been enormous, with California, New Jersey and New York legislators introducing about 100 antiterror bills each, and Florida lawmakers introducing about 100 proposals to cut back on public information alone.

Anthony Romero, executive director of the ACLU, suggests a two-pronged test that new state laws should meet: First, is the law necessary to make us safer; and second, is it defensible--will the loss of rights and due process be worth the added security? "Most of the bills that we have reviewed fail this test," he said.

Some states, like California and Pennsylvania, based their anti-terror proposals on the USA Patriot Act, which was rushed through Congress last October. The USAPA defines "domestic terrorism" as "acts dangerous to human life that are a violation of the criminal laws" if they "appear to be intended...to influence the policy of a government by intimidation or coercion." "The definition of domestic terror is so broad that it threatens civil disobedience and chills the right to political protest," said Nancy Chang of the Center for Constitutional Rights. Russell Neufeld, of the Legal Aid Society of New York, worries that under the guise of fighting terror, states are lengthening prison terms. He cites a New York bill that could allow a bioterrorism prosecution of a jail inmate who throws urine on guards. If convicted, the inmate could face life behind bars without possibility of parole. "The bill doesn't require either serious injury or a terrorist motive," he says, explaining that it could also be used against antiabortion demonstrators who throw blood: "Actions that are now criminal mischief with a sentence of a year could get seven years or more."

Larry Frankel, who heads the ACLU's Pennsylvania office, considers his state's lawmakers to have been "rather restrained" in comparison with the US Congress. "But," he says, "we are still facing proposals for expanded wiretaps, greater authority for police to detain and arrest individuals and criminalize political speech. Some probably believe that the events of September 11 justify such legislation, but these are the very kinds of measures we were fighting before September 11. The only thing that has changed is the rhetoric." Virginia, Florida, Louisiana and Maryland have passed bills to expand electronic surveillance, and Pennsylvania, along with twelve other states, is considering such measures, according to the National Conference of State Legislators.

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