Some New Yorkers are still nursing whiplash from the hasty passage of the U.S.A. Patriot Act, the most comprehensive legislative assault on privacy, political expression, and other fundamental rights in the nation’s history. But Congress moved like a glacier compared to New York state legislators. The president had to wait over a month to sign a watered-down version of his proposal. Governor George Pataki got his Anti-Terrorism Act the same day he convened a special session of the legislature to pass it, on September 17.
Legal critics say the act created more problems than it purported to solve, but it enabled the governor to boast that he had shepherded through the toughest state anti-terrorism law in the nation. As election year 2002 gets under way, Albany watchdogs worry that further politically expedient anti-terrorism proposals could be passed, at the public’s expense.
Public panic following September 11 seems to be ebbing, but state pols, like the crusader-president, may have their own reasons for continuing to work the ultimate law-and-order issue. The year ahead will bring elections for the assembly and senate and for top spots like governor and attorney general. Also coming is the highly political and anxiety-ridden turf battle that is redistricting—the redrawing of district lines based on population shifts in the census. Given these political pressures and the daily drumbeat of the war on terror, says one senate staffer, “Every politician with letterhead will put his name on a press release on these bills.”
Republican incumbent Pataki has, along with unlikely election-year bedfellows like Democratic attorney general incumbent Eliot Spitzer, taken the lead with an anti-terrorism agenda that is as legally complicated as it is symbolically simple. A voter without a lot of time on her hands would be hard-pressed to know what lurks beneath the surface of proposals calling for the punishment of bioterrorists and the surveillance of evil-minded plotters. But legal analysts at the New York Civil Liberties Union, Legal Aid Society, and state bar association say the measures threaten severe ramifications far beyond battling terrorists, for low-level criminals, young offenders, and activists on either end of the political spectrum.
“One of the things some of us did on the first sunny day to get off school would now be a class-D felony,” said attorney Russell Neufeld of the Legal Aid Society, referring to a new state statute on false bomb threats, at a recent workshop to educate lawyers on new anti-terrorism measures. His example drew chuckles, but his overall presentation on the dangers of the September special session measures and of pending proposals sobered and at times astonished the group.
Indeed, the level of surprise in the room of mostly socially conscious lawyers was telling. While outrage at the U.S.A. Patriot Act has become almost common courtesy in liberal and progressive circles, there is little knowledge of how New York’s Anti-Terrorist Act has created the potential for easier prosecution in state courts of nonterrorist, even constitutionally protected, activity. It refers to acts that are “intended to . . . intimidate or coerce a civilian population; influence the policy of a unit of government by intimidation or coercion,” which skeptics say could be interpreted to include political protest. And there is scant awareness of the details of the additional “anti-terror measures” Pataki called for in his January 9 state of the state.
Failure to watch the state’s anti-terrorism moves is, in a sense, understandable, since prosecuting terrorism is a federal, not state, function. Not one of a half-dozen government and legal experts who spoke to the Voice could imagine a situation where the feds would hand over a case to the state. That is the point critics are trying to drive home: What sounds like a good anti-terrorism law would likely be used by the state to prosecute or intimidate nonterrorists.
Take the governor’s bioterror bill, which would mandate a minimum of life in prison without parole for those convicted of certain crimes involving chemical or biological substances. In a letter to Assembly Speaker Sheldon Silver and Senate Majority Leader Joseph Bruno, the bar association calls the definitions of weapons and crimes “grossly overbroad” and warns the statute “would criminalize . . . conduct which is wholly unrelated to terrorism.” Under the measure, legal critics say, an anti-abortion protester who hurls blood or placenta matter at clinic entrants, or a high school student who plays a particularly ill-considered prank in chemistry lab, would spend life in prison—a harsher sentence than the minimum of 20 years for first-degree murder.
“That law in the hands of a local law enforcement official—a prosecutor who is up for re-election—is a very blunt weapon,” says NYCLU legislative counsel Robert Perry.
The sheer variety of proposals can seem overwhelming to a nonlawyer. Some of the items, which continue to appear, disappear, and re-emerge on different drafts of different bills, include: eliminating the statute of limitations on crimes defined as terrorism; permitting illegally obtained evidence in the courtroom if the law enforcement agent has a “good faith” excuse for not getting a warrant; sidestepping the rule that keeps a person from being tried for the same crime in both federal and state courts; and permitting “roving wiretaps,” meaning law enforcement could bug an infinite number of communications lines to track a person, instead of tapping only designated lines.
Critics are desperate to find ways to engage the public in what is, in essence, a highly technical debate. One hope lies in connecting the harsh mandatory sentences under the bioterror bill with the widely criticized sentences in the so-called Rockefeller drug laws. The 1973 statutes, enacted in a time of public anxiety over drugs, have recently been attacked by liberals and the Republican governor for landing black and Latino drug offenders in jail for disproportionately long periods. What’s more, the anti-terror proposals carry First Amendment concerns that critics hope will appeal even to those who consider themselves immune from criminal statutes.
But if Pataki wants to remain the “governor whose phone calls will be returned from the White House,” as Bush said during his $1.5 million fundraising visit here on behalf of the governor last week, he might well follow his leader and stay tough on terror. Moreover, in financially strapped times that preclude showy capital projects, the governor and pals could opt to focus vote-winning efforts on statutory changes that cost nothing, at least in dollars.
So far, few in Albany have “thrown themselves on the tracks in front of anti-terrorism legislation,” says one Albany crime-law lobbyist. Spitzer’s allegiance with the governor has blunted partisan objections, not that anyone seems eager to take him on in this area. Neither of the top Democrats vying to oppose Pataki, State Comptroller Carl McCall and Andrew Cuomo, returned calls for comment. And a spokesperson for Speaker Silver said last week that he had “not yet expressed a position.” One Spitzer supporter hopes that non-opinion will turn into the sort of 11th-hour deal associated with Albany: “On the last day of the session, George is going to say, ‘I want the anti-terror bills.’ Shelley’s going to say, ‘What’ll you give me for them?’ And that’s how it could happen.”
But critics take as a hopeful sign the bills’ lack of movement in the assembly so far, although the session is only about a month old; the proposals went back to the Republican-led senate, where they were introduced, last week after stagnating in the other house. The back-and-forth is expected to continue. Indeed, the legislature’s trademark dithering could, in an ironic boon for good-government advocates, keep anything from happening at all.
Research assistance: Joshua LeSieur