ACLU Warns Legislature to Proceed Cautiously

January 24, 2002

Detroit – In anticipation of next week’s Judiciary Committee agenda in the Michigan Senate, the American Civil Liberties Union of Michigan sent a letter today urging legislators to proceed cautiously as they begin the public hearings on the Anti-Terrorism Act.

“We all want to be safe, but the Legislature must resist the temptation to enact proposals in the mistaken belief that anything that may be called anti-terrorist will necessarily provide greater security,” said Kary Moss, ACLU of Michigan Executive Director.  

In coalition with other civil rights, community and labor groups, the ACLU has been in contact with the Attorney General’s office and several legislators in an effort to alter the language first seen in the working drafts of the legislation.  The purpose of these efforts was to prevent the same pitfalls seen in the U.S. Patriot Act passed by Congress in October. 

While more than 30 other bills will also be part of the legislative package, most raise no constitutional issues.  However, the ACLU is particularly concerned with Senate Bill 930 and House Bill 5495 which create a new crime of terrorism and  the potential for unintended consequences.  The definition is so broad that a public protestor in a demonstration that goes awry could be charged as a terrorist.  

“Creating an anti-terrorism law that could be used to arrest a protestor and threaten him or her with life in prison will have a serious chilling effect on the average citizen's decision to take part in any public protest,” Moss added.  “Any definition of terrorism that is enacted in this state should be limited to violent actions like those that occurred on September 11 without including actions that are not generally seen as terrorism.” 

The letter concludes, “Those who have been working on the legislation behind the scenes have worked slowly and deliberately; now, as the bills are examined by the public and our elected officials, we urge that the process of deliberation continue and be subject to open and public discussion.” 

The letter in its entirety:

January 24, 2002

The Honorable William Van Regenmorter
State Senator
P.O. Box 30014
Lansing, MI  48909-7536

Dear Senator Van Regenmorter:

It is our understanding that the legislature will soon take action on a number of bills that have been introduced in both the House and Senate in reaction to the September 11th attacks.  We understand that these bills represent the efforts of both Republicans and Democrats, Senators and Representatives, to enact laws to better deal with potential terrorist threats.  Like the laws passed shortly after September 11th at the federal level, several of these bills will attempt to define and establish punishments for terrorism. 

We need to ensure that actions by our government uphold the principles of a democratic society, accountable government and international law, and that all decisions are taken in a manner consistent with the Constitution. We can, as we have in the past, in times of war and of peace, reconcile the requirements of security with the demands of liberty. And, we should resist the temptation to enact proposals in the mistaken belief that anything that may be called anti-terrorist will necessarily provide greater security. 

Prior to the introduction of these bills, the ACLU and others expressed a number of concerns about draft versions of the main bills, Senate Bill 930 and House Bill 5495.  In particular, problems with the definition of terrorism and the potential for unintended consequences were raised.  Many of these concerns were reflected in an editorial in Detroit News (which I attach). 

Obviously, our first hope is that cooler heads will prevail and only those bills that are actually necessary to improve public safety will be enacted.  The bills (House Bill 5495 and Senate Bill 930) that create a new crime of terrorism are clearly not such bills.  Existing laws against murder, conspiracy, and assault (to name a few) could already be used to deal with any terrorist actions that occur in this state and the threat of life imprisonment is an unlikely deterrent for people who are willing to engage in suicide attacks.  

However, if a new crime of terrorism must be enacted, we urge you to pay particular care when attempting to define the crime. While Webster's defines terrorism as the "use of terror and violence to intimidate, subjugate, etc., especially as a political weapon or policy"  -- arriving at a constitutional legal definition has been difficult.  The United Nations has been trying to arrive at an internationally acceptable definition of terrorism for more than 60 years.  Cynics have often commented that one state's "terrorist" is another state's "freedom fighter" -- in this case the concern is that one prosecutor's "terrorist" could be someone else's "protester". 

In America, people have the right to attempt to influence or effect the conduct of government.  Unfortunately, sometimes those efforts can get out of hand -- struggles ensue, rocks are thrown, etc.  While such behavior is inappropriate and often illegal, existing criminal laws are more than sufficient to deal with such actions.  Unfortunately, the definition of terrorism in these bills, as introduced, is far too broad -- people who are simply protesting could find themselves accused (and possibly even convicted) of terrorism.  Creating an anti-terrorism law that could be used to arrest a protestor and threaten him or her with life in prison will have a serious chilling effect on the average citizen's decision to take part in any public protest. Any definition of terrorism that is enacted in this state should be limited to those violent actions like those that occurred on September 11 – without including actions that are not generally seen as terrorism. 

Those who have been working on the legislation behind the scenes have worked slowly and deliberately; now, as the bills are examined by the public and our elected officials, we urge that the process of deliberation continue and be subject to open and public discussion. 

Very truly yours, 

Kary L. Moss, Esq.
Executive Director  

William Flory, Esq.
Assistant Director for Legislative Affairs