But Steven Brown, the excutive director of The Rhode Island Affiliate of the American Civil Liberties Union, calls the proposal "an extraordinarily dangerous bill."

01:00 AM EST on Wednesday, February 18, 2004

BY GERALD M. CARBONE
Journal Staff Writer

PROVIDENCE -- Governor Carcieri has proposed a "homeland-security" law that would create new felony charges, require annual safety audits of every public school, and close some public records, including those that show whether businesses comply with state Fire Safety Code requirements.

Carcieri's bill, called An Act Relating to Homeland Security, also resurrects World War I-era laws that make it illegal to: "speak, utter, or print" statements in support of anarchy; speak in favor of overthrowing the government; or to display "any flag or emblem other than the flag of the Unites States" as symbolic of, or preferable to, the United States government.

Carcieri's proposed law, which he unveiled last week, would:

Make it a felony to create "loud and unreasonable noise" at an airport or airport parking lot. If the noise "adversely affects airport security," the act would be considered felony disorderly conduct, punishable by 10 years in prison.

Require all school committees to develop annual "school safety audits" at every public school in the state. School committees would be able to withhold portions of the audits under one of the new public-records exemptions in the governor's bill.

The bill also would allow business owners to withhold from public view records that show whether they have "fire protection equipment, [and] mandatory building emergency equipment" required under the state's Fire Safety Code.

Boost the penalty for defacing "any public building or fence or other property"; such vandalism would be punishable by life in prison if it were done in "furtherance of terrorism" as defined by the law.

Carcieri's bill defines terrorism as: "a violent act or an act dangerous to human life" that is "intended 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, kidnapping or aircraft piracy." The Patriot Act contains similar language, omitting the words "a unit of" government and "air piracy."

The definition of terrorism in Carcieri's bill is similar to the definition outlined in the controversial USA Patriot Act, a federal law that Congress passed in 2001, six weeks after the attacks of Sept. 11. The act's name is an acronym for the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act.

Jeff Neal, a spokesman for Governor Carcieri, said that the governor was visiting relatives in Ohio yesterday and was unavailable for comment. But, Neal said, Carcieri did not use the Patriot Act as a template for defining terrorism; the governor's bill used language identical to an existing state law passed in 1996.

A frequent criticism of the Patriot Act is that its definition of terrorism -- language similar to what Carcieri wants the state to adapt -- is vague and too broad.

The Rhode Island Affiliate of the American Civil Liberties Union yesterday released a 13-page critique of Carcieri's proposal, calling it "an extraordinarily dangerous bill."

Steven Brown, executive director of Rhode Island's ACLU, wrote: "This definition of terrorism has the potential to significantly chill legitimate protest."

Picket lines, for example, are "at least in part designed to 'intimidate' or 'coerce.' If a striking worker shoves a person trying to cross a picket line," he or she could be sentenced to life in prison for committing a violent act while trying to coerce a civilian, Brown wrote.

Section 2 of the bill, titled "Advocating Anarchy or Terrorism" is "one of the most extreme attacks on freedom of speech that the ACLU has seen in recent history," he said.

The bill expands a law on the books since World War I that makes it illegal to "teach or advocate anarchy or the overthrow by force or violence" the state and federal governments. Carcieri's bill expands what Brown called a "blatantly unconstitutional" and "dormant" law by adding to the list of offenses anyone who advocates terrorism as defined by the bill, and anyone who advocates destroying government property. Those crimes are punishable by 10 years in prison.

"It is no exaggeration to call this provision a return to McCarthyism, when people had to be careful what they said or what organizations they belonged to," Brown wrote.

Another anachronistic law that the bill would expand is titled "Advocating forcible overthrow of government," a law that makes it illegal to speak or print any language in "defiance or disregard" of the state and federal constitutions. This is the law that makes it illegal to display a flag or emblem other than the U.S. flag as a symbol of the U.S. government.

Brown said that if this law were enforced, American flags with the stars realigned to form a peace sign in protest of war would be illegal. "Theoretically, the display of the Confederate flag" could also result in a 10-year prison sentence.

Carcieri would expand this law, too, by adding the advocacy of terrorism as a felony. Neal said that the laws prohibiting the advocacy of anarchy and or government overthrow have existed for nearly a century without court challenge and without government abuse. The lack of prosecutions under these laws "points to the tremendous amount of discretion that has been employed" by prosecutors.

Neal described the history of Carcieri's bill this way: "Last year, the governor brought on board a senior adviser on public safety, Tim Brown, formerly of the New York City Fire Department. Mr. Brown quickly identified the fact that Rhode Island's laws on terrorism prevention lagged behind laws in many other states and other parts of the country.

"As a result, the governor and his staff crafted this bill based on laws that have been enacted in more proactive states such as New York, Virginia, Florida, and Massachusetts. In a post-9/11 America, state governments have a responsibility to update their homeland security laws in order to protect their citizens."

Brown wrote that the proposed law "has enormous ramifications for political protest, freedom of association, academic freedom and the public's right to know."

Four pages of Carcieri's 18-page bill deal with weapons of mass destruction, making it illegal for anyone to employ a weapon of mass destruction, punishable by life in prison. This section of the bill defines weapons of mass destruction as chemical, biological, nuclear, and radiological agents.

IN AN INTERVIEW yesterday, Brown said that federal law already prohibits the release of weapons of mass destruction, and cases of that magnitude would more properly be tried as federal crimes. "I don't think we'll be seeing any trials involving weapons of mass destruction in Rhode Island Superior Courts," Brown said. "It's kind of silly."

Neal said, "We cannot assume that someone else [the federal government] will take care of this problem for us. We have a responsibility to enact laws for ourselves."

Another section of the bill creates a new definition of weapons of mass destruction: any "instrument, device, or substance designed to cause death or serious injury to a person." Brown said that this definition could be applied to common firearms.

"Any typical weapon including any firearm would certainly qualify as a weapon of mass destruction" under that definition, Brown said. "There are so many aspects of the bill that raise troubling questions. Taken as a whole, it is extremely dangerous to fundamental civil liberties."

Neal said that conventional firearms would only be considered weapons of mass destruction if they were used to fire chemical, biological, or radioactive weapons in the furtherance of terrorism. A gun that fired bullets would not qualify as a weapon of mass destruction.

The bill makes it a felony to fight or engage in "threatening" "violent" or "tumultuous" behavior at an airport; it also makes it a felony to create loud noise in an airport or airport parking lot if the noise affects security.

Brown noted that under this law, U.S. Rep. Patrick Kennedy, who shoved a Los Angeles airport security guard in 2000, could have been charged with felony disorderly conduct and imprisoned for 10 years.

Neal said that Kennedy did not push the guard "in furtherance of terrorism," so the felony charge would not have applied.

Carcieri's bill also would require all public schools to annually submit "safety audits" that would address security in school buildings and at school-sponsored events. Another part of the bill would exempt school safety audits from the Open Records Law, unless the school suffers a catastrophic event; after the catastrophe, the school committee would have to release all audit results.

Neal said that school committees would have some latitude in withholding information so they would not have to "broadcast to terrorists" security flaws discovered by the audits.

The governor's bill also exempts from the Open Records Law many documents that businesses submit to local governments to show compliance with the state's Fire Safety Code.

Neal said that Carcieri's bill seeks to make these documents exempt from public disclosure because terrorists could use a building's blueprints to more effectively attack it.

Brown wrote that "the provision could, in the name of 'homeland security,' keep fire-safety information relating to a building like The Station nightclub secret. It could shield from public scrutiny other important records regarding workplace hazards or safety in schools. At bottom, it is a substantial undermining of the public's right to know."