TO:Chairman Steve Reinhard and Members

1

DT:March 22, 2005

TO:Chairman Steve Reinhard and members

Ohio House Committee on Transportation, Public Safety & Homeland Security

CC:Jon Husted, Speaker of the House

FR:Sandy Buchanan, Executive Director

Ohio Citizen Action

RE:Ohio Patriot Act, Sub. S.B. 9, as passed by the Ohio Senate

Review of selected provisions as they pertain to the work of Ohio Citizen Action and other citizens’ organizations in the state

On behalf of Ohio Citizen Action and its 100,000 dues-paying members, I urge you to consider Sub. S.B. 9 carefully -- something the Ohio Senate didn’t take the time to do.

The federal USA Patriot Act was passed without adequate review, and the result was a mess. The vote came, however, only 45 days after 9/11. Federal lawmakers who now regret what they did can at least say they were caught up in an awful moment and felt compelled to do something.

Ohio legislators will not be able to say that. The Ohio Patriot Act was introduced 1,231 days after 9/11, during which time there had been no subsequent terrorist attacks on the United States. Why the rush to enact this bill without deliberation? In the alternative, if its provisions are so urgent, why wait so long to introduce it?

The following review of selected provisions does not attempt to cover items addressed by Jeffrey Gamso, Legal Director, American Civil Liberties Union of Ohio, in his February 16 and March 9 opponent testimony to the Ohio Senate Judiciary Committee. Ohio Citizen Action associates itself with all of Mr. Gamso’s comments.

We also draw your attention to the March 1 editorial in the Lake County News Herald, entitled “Ohio doesn't need its own Patriot Act.” It states the overall problem with this bill as well as we have seen:

The point is this is a function of the federal government. . . .While it makes sense for state senators to take their time to consider the bill, it must not become Ohio law. Ohio does not need a foreign or national security policy. . . . should acts of terrorism as defined in the bill occur, it is most likely the federal government would take the lead in such matters under its terrorism laws. So why propose the Ohio Patriot Act at all?

Analysis of selected provisions

If Sub. S.B. 9 passed, Ohioans would be in more danger of exposure to toxic chemicals, biological agents, radioactivity, explosives, and so on.

This is because the best way to protect a community from such hazards is for the neighbors of a dangerous facility to (1) have the right to know what is going on at the plant, what could go wrong, and what to do if it does, and (2) have a working relationship and communication with the facility managers and one another, and (3) have the right to object – including protesting when necessary -- when they believe the managers are operating the plant recklessly.

Neighborhood crime prevention works the same way: Any police officer will tell you that the safest neighborhoods are the ones where neighbors are aware, active, outside, talking, know one another, have meetings, and keep an eye on the street. Absent this, trouble starts.

Contrary to these well-known lessons, Sub. S.B. 9 would have the effect of labeling as terrorists, and money-launderers for terrorists, Ohioans who are obviously not; allowing law enforcement officers to use intimidating identification checks; using the state license and contracting process to launch thousands of background checks; and limiting neighbors right to know about dangers at the plant.

1. What is terrorism?

The trouble starts in Sec. 2909.21, which defines an “act of terrorism”:

This is a remarkable expansion of the definition of “terrorism” from both common usage and from its use in federal statutes.

For example, here is the definition the State Department is required to use in preparing its yearly report on terrorism:

“premeditated, politically motivated violence perpetrated against noncombatant targets by subnational groups or clandestine agents” (U.S. Code, Title 22, Chapter 38, §2656f. (d) (2)).

Another federal definition is the basis for the U.S. Department of State terrorist exclusion list, on which Sub. S.B. 9 relies so heavily. The full definition outlines at length actions in support of terrorism; the core of the definition is the following:

“. . . ‘terrorist activity’ means any activity which is unlawful under the laws of the place where it is committed (or which, if it had been committed in the United States, would be unlawful under the laws of the United States or any State) and which involves any of the following: (I)The highjacking or sabotage of any conveyance (including an aircraft, vessel, or vehicle). (II)The seizing or detaining, and threatening to kill, injure, or continue to detain, another individual in order to compel a third person (including a governmental organization) to do or abstain from doing any act as an explicit or implicit condition for the release of the individual seized or detained. (III)A violent attack upon an internationally protected person or upon the liberty of such a person. (IV)An assassination. (V)The use of any (a)biological agent, chemical agent, or nuclear weapon or device, or (b)explosive, firearm, or other weapon or dangerous device (other than for mere personal monetary gain), with intent to endanger, directly or indirectly, the safety of one or more individuals or to cause substantial damage to property (U.S. Code, Title 8, Chapter 38, §1182).

Regardless of the merits of these federal definitions, comparing them with Sec. 2909.21 of Sub. S.B. 9 makes clear what’s wrong with the proposed Ohio language.

The proposed Ohio definition requires only that a law -- any law -- be broken and that the person breaking the law has a certain intention. Further, the identified intentions are as vague and as broad as can be.

For example, subsection (A)(3) refers to an intention to “affect the conduct of any government by the act that constitutes the offense.”

This wording easily encompasses acts of nonviolent civil disobedience. In other words, under the definition just unanimously adopted by the Ohio Senate, the following people, and tens of thousands of others, would be labeled terrorists for having committed nonviolent civil disobedience:

• Rev. Dr. Martin Luther King, Jr., whose life is honored every year by a national holiday

• Cesar Chavez, the path-breaking, inspirational leader of the United Farm Workers of America

• Dr. Benjamin Spock, the author of Baby and Child Care, among the best-selling books of all time

• Rosa Parks, whose story is told every year in every Ohio elementary school.

To take another example, subsection (A)(2) refers to an intention to “influence the policy of any government by intimidation or coercion.”

What does this mean? The dictionary says “coercion” is “the application to another of such force, either, physical or moral, as to constrain him to do against his will something he would not otherwise have done,” (Webster’s New International Dictionary, 2d edition, unabridged).

A government is a system of power, not a person, and as such, cannot have a “will” in any intelligible sense. “Coercion” of a government, therefore, has no meaning.

Does the author of the proposed definition mean to refer to coercion of specific government officials? Is the use of moral force with government officials to influence policy, if it also involves violating any law, really a form of terrorism?

2. Money laundering

Starting with such a definition of ‘terrorism,’ the subsequent provisions can’t help but be defective. Consider, for example, the money-laundering section:

Since nonviolent civil disobedience is regarded in this bill as terrorism, a bake sale to pay for the bus for the group that commits civil disobedience is now regarded as “money laundering in support of terrorism.”

3. Mandatory identification

As introduced, the provision applied to any “airport, train station, chemical plant, utility site, or any other terrorist sensitive site,” which, of course, could be the entire state.

Now the bill has been changed to a new locus, which is not much narrower, and no clearer.

What is a “critical transportation infrastructure site”? In Ohio, there are 48,435 miles of Interstate, U.S., state and county routes, 14,930 bridges, 167 airports, 6,100 miles of mainline railroad track, 6,500 public grade crossings, 209 port terminals, 61,000 miles of rivers and streams, including 451 miles of the Ohio River, and 265 miles of Lake Erie shoreline.

Which of the above is not a “critical transportation infrastructure site” according to Sub. S.B. 9? And how are citizens and law enforcement officials to figure out whether they are sufficiently “in or near” such a location for 2909.31 to take effect?

Further, the substitute bill retains the “similarly situated” language of the introduced bill, as though the proposed identification requirement on one person could be justified by imposing it on others.

This provision of the bill expands the powers of the state when there is no showing that it is necessary. As Mr. Gamso testified, “. . .insofar as the officer has reasonable articulable suspicion that the person has committed, is committing, or is about to commit an offense, he has already the power to detain that person for brief investigation to resolve the suspicion.”

Given this, there is no increased safety from terrorism offered in proposed Section 2909.31. The net effect would be to discourage law-abiding citizens from gathering in places where they might be subject to such treatment from law enforcement officials.

4. The questionnaire

Sec. 2909.32 deals with state-issued licenses, and mandates a questionnaire for applicants to complete.

According to the following, any “yes” answer constitutes acknowledgement of “material assistance to an organization that is listed on the United State department of state terrorist exclusion list” and will result in the license being denied.

You can be denied a license even if you have never had anything to do with any organization on the U.S. State Department list. Lines 578 – 581 require a “yes” answer if you have “hired or compensated a person” . . . “known to be engaged in planning, assisting, or carrying out an act of terrorism.” As we learned from lines 214 – 227, above, that person could be Rosa Parks. Following the logic of this provision, the license renewal is automatically denied.

A similar process is mandated for another very large group of people: "any person, company, affiliated group, or organization with which the state, instrumentality, or political subdivision might conduct business or provide funding, or any person who holds, owns, or otherwise has a controlling interest in a company, affiliated group, or organization and with whom the state, instrumentality, or political subdivision might conduct business or provide funding. . .”

Of course, the only way to administer these provisions, and to handle the large number of appeals, is to create a bureaucracy devoted to running background checks on thousands of Ohioans.

Not only would this be a colossal waste of public money, it would help re-create in Ohio something we decided long ago we never wanted to go through again: McCarthyism.

And even if the government didn’t carry out background checks, the companies applying for state funds would heavily screen all their own employees and subcontractors to make sure they don't jeopardize the companies' state contracts -- effectively outsourcing McCarthyism.

5. Animal or ecological terrorism

Out of the blue, the bill creates a hitherto unknown category of terrorism, “animal or ecological terrorism,” and locates it in the Ohio Revised Code as a “racketeering” crime.

However subsequently misused, 9/11 at least really did happen. This provision addresses a crisis in our state that is wholly fictitious.

Where did it come from? Since September 2003, the American Legislative Exchange Council in Washington, D.C., has been pushing model legislation -- the “Animal and Ecological Terrorism Act” -- in every state where it can find a sponsor.

Now we know that the Council has found a sponsor in Ohio. Enacting legislation, however, should require a higher standard: the bill should address a demonstrated problem in Ohio.

“Animal or ecological terrorism”? What would the victims of real terrorism and their families think of this new label? What could they think other than that some Ohio politicians want to exploit their suffering to serve purposes that have nothing to do with terrorism?

6. Right to know

Finally, Sub. S.B. 9 wades into the area of community right-to-know laws -– with a two-decade history of action, legislation, rule-making and litigation -- and throws a wild card on the table, as follows:

The wild card is the phrase “vulnerability assessment of the facility or business or . . .any other security-sensitive information developed regarding the facility or business.” It doesn’t take much imagination to see that this phrase could refer to just about anything. Once the company transmits the information as such to any official on the list, they, according to this provision, “are not public records.”

There are two kinds of interests involved here: first, the public’s right-to-know, and second, the need to keep some items of technical information secret if they could help terrorists. Accordingly, some specific items in an evaluation of plant security could be redacted while protecting the public’s right-to-know. Even with those, however, there is no reason for the neighbors not to know the assessment of the security of the plant, that a problem has been found, the schedule for repairs or improvements, and an updated report on how the problem has been addressed.

Sub. S.B. 9 leaves no room to strike such a balance. It simply allows managers to keep from public view indiscriminately anything it describes as a “vulnerability assessment.”