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."
Eve Pell writes about civil liberties and freedom of information at the Center for Investigative Reporting in San Francisco.
As the Israeli Army intensifies its iron-fisted advance in the Palestinian territories and the bloody battle rages on, a strange calm has fallen on Yasir Arafat's compound. Just last week the prime target of the Israeli offensive, it now sits in the eye of the storm. Why?
"Because we entered," says Samir Alassi, a Belgian citizen.
The shelling stopped last Sunday, when he and 40 other concerned foreigners marched peacefully on the compound, past tanks and gunfire, and into the buildings where Arafat and his last hold-outs sit holed up in Ramallah.
In a test of non-violent tactics and strategies of international intervention, European and American civilians are serving as human shields for the last outpost of the Palestinian Authority.
"(The Israelis) were very surprised about our group coming in the streets very peacefully," says Alassi, talking from the compound Wednesday on a cell phone that cuts off every five minutes. "And the only thing they could do was just move their tanks around. I remember some soldiers of the Israeli Army started to shoot on the ground and also above our heads, but they didn't shoot at us, so we just went through and we entered the compound."
Their arrival lifted the spirits of those inside. "People were just waiting for their deaths," says Alassi, whose father is Palestinian. "But since we are here, there are no attacks on the building and the Palestinian people here can sleep. They can stop being worried about being killed the next hour." The calm set in, and the waiting began.
Alassi, 25, works with a group called Grassroots International Protection for the Palestinian People. But a couple dozen foreigners willing to dodge bullets to provide a buffer isn't his idea of "international protection."
"We should not be here," he repeats several times. "There should be an international protection force here to protect the Palestinian people." Disappointed in their countries' inaction, the internationals took on the tanks themselves.
With little else to do in the large, makeshift dormitory, which houses 150 to 200 people, they talk of what to do next, what will come next, and what, in the end, is the role of the internationals. They eat little, and only women are allowed a glass of scarce water. They have not been able to wash for days.
Arafat comes by occasionally to check on things. He teaches the 20-year-old soldiers, who have never seen such combat, how to blockade the windows with tables. One day he came offering a box of chocolates he had received as a gift. And, in nightly meetings with the entire compound crew, he often tells stories of his younger days -- of a battle in Egypt in the 1960s, for example, when most a regiment of engineers he belonged to was killed.
While Alassi and the others wait in Arafat's compound, Kate Rafael of Berkeley, Calif., waits in a refugee camp several miles away, hoping also that the presence of an American will mitigate violence if the expected Israeli raids take place.
In a nighttime interview from the camp at Aida, Rafael, a member of the pacifist group Women in Black, says that everyone in the house is huddled under blankets because there is not enough gas for heating. Food is running short. And because the towns and camps are ringed by tanks, the internationalists are barricaded in.
Like those in Arafat's compound, the volunteers in Rafael's group discuss what to do. Should they stay in one place so the Israelis can get them all at once and not rampage from house to house? Should they stay scattered among their host families so the search will take more time and they will be on the scene for a longer period? "Go back with your host families, the troops will go house to house anyway," the Palestinian group leaders say, so they do.
It's difficult to get things done. Rafael's group tried today to arrange a trip to Manger Square to bring medical aid to the wounded inside the besieged Church of the Nativity. "But the ambulance drivers wouldn't go because it wasn't safe, and the nuns we wanted to escort us said they were too old and couldn't walk that far," she reports. "The American consulate had appeared willing to help us, but then they called and said there was a 'credible threat' that the Americans who went to Manger Square would be kidnapped." Labeling this 'Israeli propaganda,' Rafael scoffed, "As if people are going to come out in front of tanks and grab us?"
Rafael, 42, describes her odyssey from the Bay Area to this devastated town in the war-torn West Bank. Last week, she traveled with about 20 American activists to Israel as part of an April campaign organized by the International Solidarity Movement, a coalition of Palestinian and international activist. Rafael had intended, perhaps naively, to teach protesters and join them in staging guerilla theatre on the streets, helping to tear down unoccupied road blocks between Israel and the West Bank and plant olive trees. But some who joined her were skeptical: "People from Palestine and Jewish-Arab coexistence groups told me that these techniques don't work when you are facing tanks."
She found out all too soon what the doubters meant. "All hell broke loose" last weekend, she said, when Palestinian suicide bombers and Israeli soldiers killed and maimed more and more civilians in an escalation of deadly violence. Realizing that her teaching mission was no longer useful, she evaded Israeli check points to get to the West Bank. "You wouldn't believe the armed camp that I saw set up outside of the Bethlehem check point," Rafael says, evidently startled by the sight. "It was so formidable: green tanks, green uniforms, giant tents -- like a military headquarters from the movies."
She joined a march from Bethlehem to Beit Jala, two miles away. But along the way, as the marchers rounded a curve, two Israeli armored personnel carriers blocked the road. As with Alassi, the soldiers fired into the air and into the ground, in between rounds pointing weapons at the marchers. "The shots were not aimed at us," she emphasizes. "If they had wanted to kill the internationalists, we would be dead." But the bullets ricocheted and seven people suffered minor injuries.
The marchers were forced back to Bethlehem, where they met and decided to become human shields. Rafael was assigned to stay in a home in Aida, a town that was ravaged last month in the wake of a Palestinian suicide bombing. "The families told us how the Israelis mowed people down, and kids were showing us pictures of dead relatives," she said. "People here are afraid that will happen again."
Half a world away in Marin County, Calif., 53-year-old Alison Weir, former newspaper editor and founder of a group called If Americans Knew, is organizing another wave of Americans to join Alassi and Rafael next week. "About one-third of U.S. foreign aid goes to this small, rather well-off country of Israel," Weir says. "It's my tax dollars that are helping create this situation." Asked about Palestinian suicide bombers, she says, "All deaths are tragic, it's tragic that Israelis are dying as well." She adds, "Of course, they would rather be fighting with F-16s and tanks, but they don't have them."
Weir, who spent a month last year in the West Bank, wonders why more Palestinians "aren't blowing up." She says she was shocked by the extent of the devastation and the severity of the apartheid dividing Israeli from Palestinian. "Super-highways are built with American money and Israelis confiscated the land, but the roads are for Jews only," she argues. "License tags are color-coded, ID tags are color-coded and labeled by religion. Even Bishop Tutu said it may be worse than South Africa was, and he should know."
She and her colleagues are screening the two dozen people who have answered her call for volunteers and making certain that they understand the risks they may face. She hopes for more press attention to the human shields. "There has been non-violent protest in Israel, but it was never reported and therefore not effective. If more Americans go, there will be more reporting."
Eve Pell and Will Evans write for the Center for Investigative Reporting.