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Illinois Comprehensive Anti-Terrorism Act of 2001: ACLU Objections

Objections addressed by the ACLU of Illinois to House Bill 2299 -- The Illinois Comprehensive Anti-Terrorism Act of 2001
Illinois Comprehensive Anti-Terrorism Act of 2001: Civl Liberties Objections





Objections addressed by the ACLU of Illinois to House Bill 2299 -- The Illinois Comprehensive Anti-Terrorism Act of 2001





November 12, 2001





The American Civil Liberties Union of Illinois stands united with all Americans in condemnation of the heinous acts of evil committed on September 11. We applaud the many Americans – including government officials at all levels – who responded to the tragedy with immense courage and personal sacrifice. We support reasonable initiatives to ensure the safety and security of our people.





We also believe that America is a great nation because it is a free nation. Especially in these difficult days, we must abide by our highest national ideals. We must punish and prevent mass-murder, without punishing and preventing rights of free speech, free association, and privacy protected by our Constitution. We must also ensure the rule of law by maintaining the critical role played by our judges in reviewing highly sensitive law enforcement activities.





Finally, we must respond to the tragic events of September 11 in a deliberate, thoughtful manner, providing legislators and the public the opportunity to fully analyze and debate all proposals. Significantly, the proposed Comprehensive Anti-Terrorism Act of 2001 (as amended on November 6) contains sweeping changes to our laws in 75 pages of text. This bill is far too complicated and far-reaching to be rushed through the fall veto session.





With these principles in mind, the ACLU of Illinois objects to several provisions of the proposed Act. First, the bill would create new crimes of terrorism that are defined too broadly, and could thereby lead to excessive punishment, including life imprisonment, of persons engaged in hazardous acts of political dissent – even where there is no actual harm to a person or intent to harm a person. Second, the bill would reduce the critical role played by neutral judicial officers in authorizing electronic surveillance. Third, the bill would needlessly expand the death penalty. Fourth, the bill would expand seizures and forfeitures of private property in violation of basic norms of due process.





I. NEW CRIMES OF TERRORISM.





The bill would create two broad new crimes of terrorism. One would apply excessive punishments to hazardous acts of political dissent, even where there is no actual harm to a person or intent to harm a person. These new crimes would inhibit and deter expressive and associational activities. The ACLU recommends the removal of these provisions. If these provisions are retained, the ACLU recommends amendments.





A. Terrorism.





The bill would create a new crime of “Terrorism”, defined to include “any act that causes or threatens death or great bodily harm to one or more persons” when committed with the intent to “influence the policy of a government”. 720 ILCS 5/29D-10 (p.23); 720 ILCS 5/29D-30(a) (p.28). The sentence would be imprisonment for a minimum of 20 years to natural life if no death occurs, and either a mandatory natural life sentence or execution if a death occurs. 720 ILCS 5/29D-30 (p.28); 720 ILCS 5/9-1(b)(21) (p.10).





In light of this severe punishment, the new crime of “terrorism” casts far too wide and nebulous a net, imposing no less than twenty years imprisonment on any person who creates a threat of great bodily harm while trying to influence government policy – even if there is no actual harm to any person and no intent to harm any person. For example, the bill would treat as a “terrorist” a person who throws a rock through the window of a government building to protest a government policy, thereby endangering a person inside, even if no person was actually harmed and the perpetrator intended not to harm anyone.





The ACLU does not oppose the criminal prosecution of people who commit acts of civil disobedience that cause property damage or place people in danger. That type of behavior is already illegal and perpetrators of these crimes can be prosecuted and subjected to serious penalties. For example, property damage greater than $300 is a Class 4 felony punishable by one to three years of imprisonment. 720 ILCS 5/21-1(1); 730 ILCS 5/5-8-1(a)(7). Also, reckless endangerment of the bodily safety of another person is a Class A misdemeanor punishable by up to a year of imprisonment. 720 ILCS 5/12-5; 730 ILCS 5/5-8-3(1).





However, where there is no actual harm to a person and no intent to cause such harm, there is no terrorism. The legislative response to the tragic events of September 11 should not turn ordinary citizens into terrorists, and imprison them for no less than twenty years.





This overbroad definition of “terrorism” will irreparably harm innumerable mainstream political organizations whose members or supporters may occasionally participate in civil disobedience. First, such so-called acts of “terrorism” may trigger law enforcement infiltration of these organizations and surveillance of law-abiding persons. These are not abstract concerns, as demonstrated, for example, by the infamous history of the “red squad” of the Chicago Police Department. Second, the danger of such investigations would inhibit and deter many mainstream political organizations from exercising their lawful right of political association.





In short, the new crime of “terrorism” should be struck from the bill. If this component of the bill is retained, the ACLU recommends, at a minimum, an amendment to reduce the danger of unjust prosecutions and investigations: the bill should include as a necessary element of the offense of “terrorism” the intent to cause death or great bodily injury.





B. Soliciting Material Support for Terrorism.





The bill would create two new crimes of “Soliciting Material Support for Terrorism”. The first crime would occur when a person solicits material support with the intent that this support be used for terrorism. The second crime would occur when a person solicits material support for an organization designated by the federal government as a terrorist organization – whether or not “the defendant actually knows that an organization has been designated”. The punishment in both cases would be imprisonment for 9 to 40 years. 720 ILCS 5/29D-15 (pp.26-27).





The ACLU objects to the creation of the second solicitation crime. At the very least, the crime of fundraising for terrorism should include as an element the intent that the funds be used for terrorism. The second component of the proposed Section 29D-15 fails to contain this element – unlike the first component, and unlike the Illinois anti-terrorism law enacted in 1997, 720 ILCS 5/29C-10.





A person might solicit contributions for an organization that provides charitable services (among other activities), with the intent that the contributions be used for charitable purposes, and with no knowledge that the organization was at the time on a federal list of “terrorist” organizations. Such a person should not be imprisoned for nine to forty years. Many reasonable and innocent people have difficulty staying abreast of the changes in U.S. foreign policy that lead to the addition and/or subtraction of organizations from such federal lists. Significantly, the federal government at various times designated the African National Congress as a terrorist organization.





Thus, the ACLU recommends the removal of the second component of “soliciting material support for terrorism.” If this component is retained, the ACLU recommends two amendments to reduce the danger of unjust prosecutions and investigations. First, include an additional element to the offense: knowledge that the organization was on the federal list. This might be accomplished by striking the word “not” from the phrase, “[i]t is not an element of the offense that the defendant knows that an organization has been designated under 8 U.S.C. 1189, as amended.” Second, add language contained in Illinois’ existing law against “Providing Material Support or Resources for International Terrorism” at 720 ILCS 5/29-15(b)(2): “An investigation may not be initiated or continued under this Section based on activities protected by the First Amendment to the United States Constitution, including expressions of support or the provision of financial support for the nonviolent political, religious, philosophical, or ideological goals or beliefs of any person or group.”





II. EXPANSION OF ELECTRONIC SURVEILLANCE.





Two provisions of the bill would dramatically undermine the critical involvement of neutral judicial officers in authorizing electronic surveillance by law enforcement officials. Judicial involvement in electronic surveillance is an essential guaranty of the rule of law. It is no barrier to effective law enforcement; indeed, courts have denied authorization of electronic surveillance only in rare cases. Accordingly, the ACLU recommends the removal of these two provisions.





A. Open-ended wiretap warrants.





The bill would eliminate the traditional requirement in Illinois that wiretap warrants contain “specification of the facilities from which, or the place where, the communication is to be intercepted”. 725 ILCS 5/108B-7.5 (new pp.3-5). This would require a judicial officer to issue a single warrant that applies to a criminal suspect and to every communications medium used by that suspect, including every telephone line and every e-mail account. Such open-ended warrants would issue regardless of how numerous these lines are, how infrequently the criminal suspect uses each line, whether these lines are located in public places available to anyone, and how many innocent people use these lines.





Wiretapping carries with it the inherent danger that law enforcement officials will inadvertently eavesdrop on innocent conversations between persons not suspected of any crime, who happen to use the same phone line or e-mail account as the person under criminal investigation. These overheard yet entirely innocent conversations might contain attorney-client privileged information, or sensitive business information. Throughout Illinois’ history, this danger to the privacy of innocent persons has been mitigated by a system of checks-and-balances, under which neutral judicial officers consider applications from law enforcement officials to wiretap specific communications mediums. The bill would substantially undermine this critical role played by neutral judicial officers.





B. Recording conversations without a warrant.





The bill would dramatically expand the power of law enforcement officials to secretly record conversations with a police officer or an informant, without prior authorization from a neutral judicial officer. Under current law, such recording is allowed only if “necessary for the protection” of the officer or informant. 720 ILCS 5/14-3(g); 725 ILCS 5/108A-6. The bill would eliminate this limit in every investigation of any of the new anti-terrorism offenses. 720 ILCS 5/14-(3)(g-5) (p.16). As explained above in Part I, these new terrorism offenses include acts arising from civil disobedience, as well as the provision of minimal assistance to those who engage in civil disobedience. This provision of the bill would substantially undermine the critical role played by judges in overseeing electronic surveillance, and threaten the constitutional rights of lawful groups that do no more than dissent from official governmental policies.





III. EXPANSION OF THE DEATH PENALTY.





The bill creates a new aggravating factor that can support a death sentence: “the murder was committed by the defendant in connection with or as a result of the offense of terrorism”. 720 ILCS 5/9-1(b)(21) (p.10). The ACLU opposes this provision. First, this is not the time to tinker with the Illinois death penalty. We should await the findings of the Governor’s blue-ribbon commission before modifying the law.





Second, the Illinois death penalty already provides ample means to execute anyone guilty of murder involving terrorism. The aggravating factors presently include the death of a peace officer, fireman, or emergency medical technician; the death of two or more persons; the hijacking of an airplane or other public conveyance; or murder in a “cold, calculated and premeditated manner”. 720 ILCS 5/9-1(b)(1), (3), (4) , (11), (12). Thus, in any case involving terrorism, the new aggravating factor would be redundant.





Third, the phrase “in connection with” is vague, and might apply to acts only peripherally related to terrorism.





IV. EXPANSION OF SEIZURE AND FORFEITURE.


The Fourteenth Amendment to the U.S. Constitution guarantees that no state may deprive any person of their property without due process of law. For example, the government should bear the burden of proof in proceedings to confiscate property allegedly connected to criminal misconduct. For years, U.S. Representative Henry Hyde has sponsored federal legislation that would protect this principle. See, e.g., Statement of Henry Hyde, “Forfeiture Reform: Now or Never?”, delivered before the Cato Institute on May 3, 1999, reprinted at http://www.aclu.org/congress/l050399a.html.





Four provisions of the bill would deprive persons of their property without due process. The ACLU recommends the removal of all four provisions.





A. Seizure


One provision of the bill would allow the Attorney General to seize the “books and records and assets” of any charitable organization based on the finding of a court at an “ex parte” hearing of “reasonable suspicion” of a violation of the new anti-terrorism statute. 225 ILCS 460/16.5(c) (p.2). This standard – “reasonable suspicion” – is too low a threshold to support the seizure of funds and financial records. In many cases, the books and records of charitable organizations will include lists of members and financial contributors. The confidentiality of such information is protected by the First Amendment’s guaranty of freedom of association, see, e.g., NAACP v. State of Alabama, 357 U.S. 449 (1958), and should not be subject to disclosure under the low standard set by the bill, with no prior opportunity to challenge the seizure.





Another provision would authorize the “seizure and confiscation by any peace officer of this State” of “[a]ny money or property used, about to be used, or intended to be used” in violation of the new anti-terrorism statute. 720 ILCS 5/29D-65(a)(1) (pp.31-32). This provision fails to set forth any level of criminal suspicion the officer must hold before making the seizure. Thus, it would authorize every police officer in the state to seize property based on any level of suspicion and without any prior involvement of a court of law.





Another provision would require the property owner, to obtain release of seized property prior to resolution of any forfeiture proceedings, 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. 720 ILCS 29D-55 (p.31). By placing the burden of proof on the owner instead of the government, this turns upside-down a basic American principle of due process.





B. Forfeiture.





One provision of the bill fails to set forth any clear threshold or burden of proof in forfeiture proceedings where property is seized but the property owner is not charged or is not convicted. Rather, the bill states only that in such cases, the Attorney General shall initiate “an in rem proceeding for the forfeiture”. 720 ILCS 5/29D-65(a)(3) (p.33).>BR>


 
 

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