Impulse for security
© St. Petersburg Times
The budget wasn't the only thing on the minds of Florida lawmakers as they convened twice in special session following the terrorist attacks of Sept. 11. Yes, the function of those October and November meetings was to address a $1.3-billion shortfall in revenues, but the Legislature was unable to resist the urge to "do something" about America's new threat. Its reaction was passage of a series of bills related to security.
Among the actions:
In a fit of panic, the Senate altered its own rules to allow secret committee debates and floor votes, with records closed for five-year intervals, if related to "security, espionage, sabotage, attack and other acts of terrorism."
State law enforcement authorities were granted expanded wiretap capabilities so that a wiretap order follows individuals and applies to every telephone they use rather than requiring a separate order for each telephone.
Records identifying the locations of pharmaceuticals that counteract biological agents are now exempt from public view, as are the security plans of private companies or public agencies, hospital emergency plans, and any requests by police agencies for public records.
The definition of terrorism has been substantially expanded and a statewide antiterrorism computer database will be established to track suspicious activity by extremist groups and individuals.
Some of the changes were necessary and prudent as government tries to protect its citizens from real terrorist threats, but others are ripe for potential abuse. And with lawmakers returning to the annual legislative session in nine days, the question is whether the frenzy has stopped. Will lawmakers, in the name of terrorism, try to shield more of state government from the public to whom it must answer?
The most worrisome change that lawmakers made in special session was the one defining terrorism itself. When the definition of terrorism could include any group aggressively agitating against its government and when a central database is recording activities that don't necessarily rise to the level of a crime, you have a recipe for official mischief. At some point, the database could easily be converted into a tool for monitoring and disrupting radical political and religious groups. Witness the FBI and the way it interfered with the civil rights movement, groups opposed to the Vietnam War and, more recently, opponents of U.S. policies in Central America.
Yet, the few legislative actions that did pass are far from the worst that could have happened. Due to the abbreviated schedule of the special sessions and a few sturdy House leaders, two of the most dangerous ideas were kept from becoming law.
Both would have expanded the authority of state law enforcement and both had serious constitutional infirmities. One would give the state Department of Law Enforcement the authority to seek a delay in public disclosure of government records, and the other would allow the state to hold people for up to four days without charge if they may have information on terrorism.
Will these two ideas surface again?
If the FDLE has its way, they will. The agency promoted legislation that would allow it to temporarily withhold public records generated by any governmental entity, if those records are deemed relevant to a terrorist investigation. The law would provide some judicial oversight, but the hearings would all take place outside of public view. Within 24 hours of the records' non-disclosure, a law judge would be asked to secretly view the records to determine whether they should be kept closed for seven days. The judge could also grant an additional 14-day delay.
In addition to undermining Florida's presumption of open government, the FDLE bill would defy the state constitution by delegating to the executive branch the distinctly legislative authority to exempt records
Why does the FDLE think this is needed, especially since all records generated in the course of a criminal or intelligence investigation are already exempt? Apparently, the agency is concerned about the media doing its job.
After the Sept. 11 attacks, reporters requested the public driver's license records of eight terrorist hijackers. But the FDLE balked. It didn't want the media investigating what went wrong before the state had a chance. So, in an action contrary to the law, it prevailed upon the state Department of Highway Safety and Motor Vehicles to withhold significant aspects of the records. Then, FDLE pushed to change the law.
During the second special session, the measure passed the Senate but was stymied in the House, where Speaker Tom Feeney and Rep. Dudley Goodlette, chairman of the House Select Committee on Security, voiced reservations. Goodlette, a Naples Republican, said he thought the controversy surrounding the bill meant it wasn't an appropriate item to consider in the shortened time frame of a special session. As to the measure's appeal for the upcoming session, Goodlette said, "it's not something I'm particularly interested in bringing up."
The Senate may also be less than welcoming to the bill's resurrection. Although it has already been pre-filed, Brown-Waite says she is uncomfortable with the lack of safeguards. "I'm kinda having second thoughts," she said.
FDLE spokesman Al Dennis says he's not sure whether the bill will be part of the agency's legislative wish list. "Until the Legislature sees the wisdom in passing this bill, it's not on our legislative agenda," Dennis said. Although, he continued, "it certainly could be."
The other bill worthy of concern is a state material-witness statute -- a measure that would allow the state to hold an individual for up to four days if law enforcement believes he or she has relevant information on a terrorist investigation. Here, in a most un-American of ideas, individuals could be kept in jail not because they violated any law but because a state prosecutor was afraid they might avoid a subpoena.
While a federal material-witness statute already exists, it is packed with protections for witnesses that the state bill didn't offer -- such as requiring the least restrictive method of confinement, including monitoring bracelets, and requiring the use of depositions rather than incarceration until trial.
Former federal prosecutor Dan Gelber, D-Miami Beach, and member of the House Select Committee on Security, said the bill is unnecessary and a danger to civil liberties. "The federal government ought to be (handling the detention of material witnesses)," Gelber said. "If you are going to hold someone in a very precarious scenario, you ought to have a lifetime-appointed judge making the call, not the state. It was a bad bill when it was introduced, and it didn't get better."
The bill was proposed initially in the first special session by the Senate Committee on Criminal Justice and, after passing the committee unanimously, died on the Senate calendar when McKay refused to bring it up for a vote. In the House, the measure was quashed by Goodlette's committee.
While the FDLE supported the bill at the October session, spokesman Dennis said the proposal won't be on its legislative agenda for the upcoming session. It may, however, still come up at the behest of legislators and, if that happens, the agency will not oppose it.
With Florida and the nation still reeling from the events of Sept. 11, legislators will continue to feel a natural impulse to look for ways to make the state more secure. But in the process, if vital parts of our freedom and openness are compromised, then we have sacrificed too much. The watch word during this session should be "restraint."
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