Civil libertarians held the line against efforts to enact overly broad laws as the Washington Legislature adjourned without passing proposed anti-terrorism measures. The victory was a tribute to strong opposition mobilized by the ACLU and the leadership of Senator Adam Kline, as well as a reflection of a healthy skepticism by many legislators as to the need for the proposed legislation.
"We consistently pointed out that murder, arson, assault, property destruction, and other acts which terrorists might commit already are against the law. The case for creating new laws to deal with terrorism simply was not made. John Ashcroft was able to steamroll Congress into passing sweeping legislation in the name of national security. Our Legislature chose not to repeat that mistake," said ACLU Legislative Director Jerry Sheehan.
At the session's start in January, Governor Locke and Attorney General Gregoire submitted an initial package of proposals that created new crimes of terrorism, extended the death penalty to acts of terrorism (and, for the first time, to deaths that are accidental or unintended), and included new restrictions on access to public information under the state Public Disclosure Act. Their proposals did not include increased wiretapping authority, which they had said would be part of the package during a press conference last fall. Their change of heart partly stemmed from Washington's tradition of providing strong protection for personal privacy. However, Representative Chris Hurst submitted a separate bill to allow evidence gathered through wiretaps under the much lower standards of the new federal USA Patriot Act to be used in our state courts.
The proposals proved to be highly problematic from the outset and went through numerous redrafts. As Tacoma's News Tribune reported, "What might have initially appeared to be a patriotic slam-dunk has turned into a tangle of legal problems for state legislators trying to write laws to address future acts of terrorism. From the left and the right, nearly every aspect of the proposals floating around Olympia has an opponent: civil libertarians, gun rights advocates, newspaper publishers, criminal defense lawyers, and retailers among them."
The ACLU took the lead in rallying opposition, stressing the importance of protecting both security and liberty. Legislative Director Jerry Sheehan explained to legislators that the definition of "terrorism" in the bills was too vague and overly broad. Therefore, the measures could result in severe penalties for protest actions by people most of us would not consider terrorists, such as anti-WTO demonstrators, environmentalists, anti-abortion activists, or any movement seeking to disrupt the government or general populace to make a political point.
In an op-ed in the Seattle Post-Intelligencer, ACLU Executive Director Kathleen Taylor and Jan Eric Peterson, immediate past president of the Washington State Bar Association, elaborated on this concern, "By making new laws to cover actions that are already crimes under existing statutes, we invite the law to be used for political purposes. The internment of Japanese Americans and the FBI's spying on the Rev. Martin Luther King, Jr. are dramatic reminders of how government officials can abuse power in the name of security."
A vital part of the mobilization was the involvement of the ACLU's E-Mail Activist Network. Action alerts urging activists to contact legislators as key votes neared drew an exceptionally strong response and were widely forwarded by other organizations and individuals. Legislators let us know that they definitely were hearing from a citizenry concerned about sacrificing civil liberties
The Legislature grappled with the issue all session long – right up until its final hour. The House passed broad anti-terrorism and wiretap bills, while the Senate passed a scaled-down version of an anti-terrorism bill and did not even consider a wiretap bill. When it took up the Senate-passed bill, the House stripped the Senate’s language and substituted its own original, stronger language and added the wiretap provision. Senator Kline, chair of the Senate Judiciary Committee, remained steadfast in withstanding intense pressure to pass this broadened legislation.
A last-minute drama unfolded: Despite lobbying by the Governor himself in the wings of the Senate chamber, Kline secured a strong bipartisan vote (32-13) by the Senate to reject the changes made by the House to the Senate bill. The bill then returned to the House for an expected compromise. But the House voted to "adhere" to its position (parliamentary-speak for "it's our way, or no way), thus killing the bill for this legislative session.
The one anti-terrorism bill which did pass was significantly revised in response to objections by the Washington Newspaper Publishers Association. The measure tweaks the state's public record laws to prohibit access to sensitive information given the state by federal agencies. It also exempts from public disclosure assessments of the vulnerability of state infrastructure. The ACLU did not oppose the final version of this bill.