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.
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.
In the wake of last October’s unsolved anthrax attacks, eleven states have passed emergency health powers acts, and twenty-two are now considering them. These are based in whole or in part on a draconian model law drafted for the federal Centers for Disease Control and Prevention by the Center for Law and the Public’s Health at Georgetown and Johns Hopkins universities. In the event of a bioterrorist attack or epidemic, governors could declare a state of emergency, suspend state laws and regulations and mobilize militia. The state’s public health authority could exercise formidable coercive powers, taking control of hospitals, facilities, roads, vaccines and other supplies as they carry out their mission to examine, test, quarantine and vaccinate individuals. The American Medical Association, in a letter to the CDC, asked for changes “to ensure that restrictions on personal freedom are not exercised in a careless or cavalier fashion.”
Another weapon in the states’ war on terror is secrecy: the removal of formerly available state information both from websites and from the purview of open government laws–though it is widely believed that no 9/11 terrorist used sunshine laws or public records to accomplish his deadly mission. About twenty states have considered proposals limiting access to public records. “Every exception our legislators have been trying to pass for the last twenty-five years has been resurrected as absolutely necessary for the fight against terrorism,” said Larry Helm Spalding, legislative staff counsel for the Florida ACLU. “They’re doing that for everything. If we need more money to study oranges, well, that’s because the terrorists might attack our oranges.”
Some state bills seem reasonable, such as those restricting information about plans to protect water and power supplies from terrorist attacks. Other proposals were scaled back during the legislative process. Frosty Landon, director of the Virginia Coalition for Open Government, said that his state’s first bill called for rolling back its public records and open meetings laws. “But we worked to tighten the language, and the final result was narrowly drawn so that it applies to records or meetings about a specific antiterrorist plan,” he said. “We didn’t give away the store, and the new bill passed with support from all sides.”
Perhaps the most dramatic measure affects information in New York, scene of the most devastating attacks. New York’s director of the Office of Public Security, James Kallstrom, issued a confidential memorandum to all agency heads to remove all “sensitive information” from public view. The definition of “sensitive information” contains a catchall provision, including “subjects and areas of relevant concern as determined by the agency.” In seemingly contradictory actions, New Jersey, which passed a new, more expansive freedom of information act in January, also shut down its public-access website, which was known for the quality of the information it made available.
And then there are what have come to be called “the God Bills.” Almost half the states are considering or have passed such actions as mandating moments of silence in schools, displaying “In God We Trust” and the Ten Commandments on classroom posters and, where it isn’t already mandatory, requiring students to recite the Pledge of Allegiance (with exemptions for those who object). Several states have bills promoting patriotic license plates; Michigan produced the first such plates after the terrorist attacks, proclaiming “Proud to be an American.”
A year and a half ago, the American Family Association, a conservative Christian group based in Mississippi, began a campaign to put an “In God We Trust” poster in every school in the country. After the attacks, the campaign got a big boost. In March, when asked why, Tim Wildmon, AFA vice president, answered with one word: “Scared.” He added, “When people get scared, they turn to spiritual and patriotic themes.” As it happens, bills in Oklahoma and South Carolina mandating “In God We Trust” signs in every school require that they be at least 11″ x 14″–exactly the size that the American Family Association is marketing, three for $10. “AFA convinced some friendly state lawmakers to specify that size,” said Rob Boston of Americans United for Separation of Church and State. But in recent weeks, Americans may have become less scared. While “In God We Trust” bills passed or remain alive in seven states, many of them have died.
Nebraska’s Legislative Bill 982 would require each school board to appoint a committee on “Americanism” to see that the school “arrange[s] its curriculum in such a way that the love of liberty, justice and democracy, and America will be instilled in the hearts and minds of the youth of the state.” To achieve this objective, they have to “assure themselves as to the character of all teachers employed,” insure that students study the free-market system and learn the “dangers and fallacies of Nazism and Communism,” sing patriotic songs and memorize the “Star-Spangled Banner” and “America.”
Are these antiterrorism measures going to make our nation safer? Larry Johnson, a CIA veteran who is now manager and director of Berg Associates, a risk-management firm, says the proposals as a whole constitute “a feckless exercise, probably a silly and useless effort.” The only thing that will make a real difference, he says, is better intelligence. Another retired CIA officer, Bill Christison, believes that “these new state laws–and the USA Patriot Act–will probably reduce terrorism temporarily.” But, he says, “heightened internal security won’t address the root causes of terror in the long term–it will require substantial changes in American foreign policy to accomplish that.”
Longtime political observer Bruce Cain of the Institute of Governmental Studies at the University of California, Berkeley, considers much of the proposed legislation to be “pure window dressing.” Noting that the key powers for fighting terrorism–like control over immigration, borders and foreign policy–remain in the hands of the federal government, he adds, “But politicians feel like they have to do something.”