Who’s a Terrorist Now?

While architects of The Violent Radicalization and Homegrown Terrorism Prevention Act of 2007 downplay this legislation as merely an attempt to research and better understand terrorism, those concerned about civil liberties should take note of how vaguely worded anti-terrorism legislation can be put to unanticipated uses.
Edgar Morales, a Mexican immigrant, admits he is a member of a Bronx-based gang, the St. James Boys.

But, is he a terrorist? According to Bronx District Attorney Robert Johnson, he is. Robert, who was just re-elected to his fifth, 4-year term, charged him with “terrorism” for his role in the shooting death of a 10-year old girl at a christening party in 2002. His conviction last month represents the first time a jury has applied the New York Anti-Terrorism Act of 2001, adopted by the New York legislature only five days after the Sept. 11 attacks. Borrowing language from the federal Patriot Act, the law made it a Class A felony, punishable by 25 years to life, to use force with the intention to “intimidate or coerce a civilian population; influence the policy of a unit of government by intimidation or coercion; or affect the conduct of a unit of government by murder, assassination or kidnapping.” For Morales, the charge will enhance his conviction on charges of manslaughter and attempted murder.

Assembly Speaker Sheldon Silver said he supported the bill purely to show bipartisan support for the executive in the aftermath of the attacks. “Is it overkill?,” he was asked after the bill passed in 2001. “It may very well be overkill, but at this time I think it’s important to show the unity of our purpose and not question political motives.”

To be sure, it was only the Sept. 11 attacks that permitted the passage of this law. Former Governor George Pataki asked for such a bill in June 2001 but was rejected by Democrats who said the federal law against material support for terrorism was enough. Asked about its use to convict Morales, the bill’s sponsor Nassau Senator Michael Balboni called it an “unanticipated application.”

But, the use of state anti-terrorism laws to add years to gang members’ sentences is thoroughly predictable. These laws are the result of some very politically astute lawyers who saw the events of Sept. 11 as a chance to repeal restraint on federal and local intelligencegathering operations. On the morning of the Sept.11 attacks, former Attorney General John Ashcroft’s team of Federalist Society lawyers began writing up their prosecutor’s wish list to loosen warrant requirements, broaden the scope of investigation, permit infiltration of mosques, among other things. By Sept. 19, the team had produced a forty-page draft that would later become the USA Patriot Act of 2001.

History should make us very skeptical of legislators who want to appear tough on crime. Their target is often the Bill of Rights. Edgar Morales is not an innocent victim. But, if he can be classified as a terrorist, we should ask ourselves who else might also be called one