ACLU of Illinois Calls on State Lawmakers to Assess Need for, Impact of Proposed Anti-Terrorism Legislation

October 31, 2001 12:00 am

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CHICAGO–Calling for careful deliberation and close analysis, the American Civil Liberties Union of Illinois today asked a legislative panel to withhold approval of the proposed state Comprehensive Anti-Terrorism Act of 2001 during November’s abbreviated “veto” session.

“”These proposals pose a serious threat to civil liberties in our state,”” said ACLU of Illinois staff attorney Adam Schwartz in testimony prepared for today’s hearing before the Illinois House Judiciary Criminal Law Committee. “”These measures deserve thoughtful debate, not a rush to judgment.””

The legislation, first announced by Illinois Attorney General Jim Ryan little more than two weeks ago, received its first public airing today.

The ACLU objected to a number of specifics in the proposed legislation, including: an overly broad definition of terrorism that would impose draconian punishment on minor violations of law not involving serious harm to persons, including acts of civil disobedience and inhibiting lawful association; increased power for law enforcement to monitor and record electronic communications of all kinds, while reducing the critical role of neutral judicial officers to oversee these surveillance activities; an expansion of Illinois’ failed death penalty system; and provisions that allow government to seize property and move for forfeiture of property in violation of normal due process.

The Attorney General asked the General Assembly to review, digest, debate and approve the complex set of proposals (contained in more than 77 pages) during the November veto session, scheduled for six working days. The General Assembly also will consider significant budget issues, veto overrides and other legislative business during the shortened session.

In testimony today, the ACLU also noted that swift legislative action should not be taken until it is clear that these new laws are necessary. It noted, for example, that a new federal law approved expanded powers for federal law enforcement officials to conduct secret searches and electronic surveillance.

The ACLU also observed that state and local law enforcement officials in Illinois already participate in a federal counter-terrorism task force, where they are able to gather and share information about terrorist investigations. Finally, the ACLU questioned the need for action on the new proposals given the enactment of a strong state anti-terrorism law in 1997, a measure that has not been used in a single prosecution.

“”Illinois law enforcement officials already play a role in combating terrorism through the federal task force and the 1997 legislation,”” said the ACLU’s Schwartz. “”This legislation does not add to this function. These proposals ominously expand the authority of law enforcement to direct intrusive investigations against citizens who have no connection to terrorist activities.””

Specifically, the ACLU of Illinois raised objections to these provisions, as currently drafted, in the Illinois Comprehensive Anti-Terrorism Act of 2001:

Definition of Terrorism – The proposed legislation improperly expands the definition of terrorism, making low-level misdeeds punishable by life imprisonment. The proposed Illinois law goes even further than the recently adopted federal measure, defining terrorism as “”any violent act or any act dangerous to human life or any type of property”” that is a felony and is intended to influence the policy of government. Under this definition, an individual engaged in civil disobedience who does minor damage to property could be charged as a terrorist. While the ACLU does not oppose the criminal prosecution of those who do damage to property or place persons in danger in the course of a civil disobedience act, not all such crimes should be prosecuted as terrorism.

Moreover, the new law criminalizes the provision of “”criminal assistance”” to a person committing terrorism. Under the new definition of terrorism, a person could be prosecuted for “”criminal assistance”” if he or she provided transportation to someone from an event where an act of civil disobedience with minimal property damage is labeled as “terrorism.”

Finally, the legislation makes it a criminal act to solicit contributions for an organization that has been designated as a “”terrorist”” organization by the federal government — even if the individual does not know that the organization has received the designation. The problem with the proposal is underscored by shifts in U.S. policy regarding what organizations are terrorists. For example, the African National Congress has, over the years, been labeled as a terrorist organization.

Expansion of electronic surveillance – The new legislation greatly expands the power of law enforcement to monitor and record electronic communications without meaningful judicial oversight. The measure would allow law enforcement officials to obtain open-ended warrants that allow eavesdropping of every communications medium used by a person, including telephones or E-mail accounts that a target may use infrequently, without being forced to ask a court for permission to review and record communications from those sources. This provision increases the likelihood that innocent conversations, attorney-client privileged material and business secrets are monitored or recorded.

The bill also dramatically expands the power of law enforcement officials to secretly record conversations involving a police officer or informant, without prior authorization from a court. Secret recordings are allowed currently only if “necessary for the protection” of the officer or informant. The new legislation eliminates the need for prior approval from the courts in every investigation of a new anti-terrorism offense, which – given the breadth of the definition of terrorism – can include domestic groups engaged in legitimate first amendment activity.

Expansion of the death penalty – The proposed legislation adds, “”murder committed in connection with or as a result of an act of terrorism”” to the list of aggravating factors making one eligible for the death penalty in Illinois. Most terrorism acts already are covered by the existing aggravating factors: the murder of a fireman or policeman; the murder of two or more persons; murder in a cold and calculated manner; or, the murder of persons as a result of hijacking an airplane, train, ship, bus or other conveyance.

Expansion of seizure and forfeiture – Several provisions of the draft legislation allow for the seizure of a person’s property without due process. One such provision requires an individual whose property has been seized and who seeks release of the property, to prove “”by a preponderance of the evidence”” that “”he or she was not using, about to use, or intending to use any property in any way”” in violation of the new anti-terrorism statute. Basic due process demands the burden of proof be placed upon the government to prove an individual’s guilt, not upon the individual to prove their innocence.

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