June 30, 2008
Click Here To Read S.B. 9 For Yourself
The Ohio General Assembly passed dangerous legislation that went into effect April 14, 2006: Senate Bill 9, known to many as the “Ohio Patriot Act.”
This law is both unnecessary to protect Ohioans’ safety and, far worse, threatens our constitutional rights and liberties.
1. It is unnecessary.
There is no demonstrable evidence that the laws currently
on the books are not keeping Ohioans safe. There was
no need for an Ohio Patriot Act.
The Legislative Service Commission, the research arm of
the state legislature, reported that SB 9 would not create
significant growth in Ohio criminal prosecutions for three
reasons: (a) the conduct prohibited under SB 9 already rises
to the level of a crime under existing law; (b) terrorist activity
has been historically rare in the State of Ohio; (c) in the unlikely
event of terrorist activity in Ohio the federal government
would most likely take the lead under federal antiterrorism
2. No amendments could fix a fundamentally bad law.
The Ohio Patriot Act is bad for Ohio because it confounds
existing law and offends civil liberties. Hundreds of Ohioans
called, faxed, and wrote members of the General Assembly
urging rejection of every version of the Ohio Patriot Act.
3. The hastily enacted federal Patriot Act, the constitutional
problems that have emerged from it, and the bipartisan
calls to reform it, should have served as an example to
Ohio legislators of what NOT to do.
There is a saying that those who do not learn from history are
doomed to repeat it. In the days following the tragedies of September
11, 2001, the U.S. Congress hastily passed a massive
piece of legislation called the USA Patriot Act, that few had time
to read and none had time to thoughtfully consider.
In the years since then, a groundswell of citizens from
across the political spectrum has called for reform. Groups
ranging from the ACLU to the American Conservative Union
to the Gun Owners Association have said that too much unchecked
government power is never the right answer. Constitutional
protections and civil liberties must be respected.
The Ohio Patriot Act similarly expands state bureaucracy
and tramples on constitutional protections.
4. The Ohio Patriot Act expands the powers of an unnecessary
and dangerous bureaucracy.
One of the lessons of the 9-11 Commission Report is that
bureaucracy does not keep us safer. SB 9 expands the duties
of the Division of Homeland Security within the Ohio Department
of Public Safety. The Division’s charge is to coordinate
information among various governmental and private organizations
and to encourage the sharing of that information.
While it is reasonable and even desirable for governmental
agencies to communicate effectively with each other, bringing
private organizations into the mix opens a Pandora’s Box of
data privacy concerns — threatening to turn every individual
transaction into a record that can and will be reviewed and
analyzed and made part of a database.
5. The Ohio Patriot Act intrudes on privacy by requiring individuals
to provide identification to law enforcement in a
broad range of circumstances, bringing us frighteningly
close to being a “show me your papers” society.
One section allows law enforcement to check IDs of all
people entering “transportation infrastructure sites” - such as
airports, bus stations, or ports – whenever there is a “threat to
security.” A person who refuses the demand for identification
will be denied access to the site. Because the declared “war on
terrorism” is open-ended, because we are eternally on at least
“heightened” alert, it follows that there is always “a threat to
security.” Accordingly, police may demand identification as
the price of admission to any train or bus station, any airport
or harbor, at any time.
Another section requires you to provide your name, address,
or date of birth to a law enforcement officer who “reasonably
suspects” that you have committed or are about to
commit a crime, or that you have witnessed a crime, or even
witnessed a plan to commit a crime. The U.S. Supreme Court
recently said that a law requiring persons suspected of a
crime to provide their name to an officer was constitutional.
In that case, the Court specifically distinguished laws, such as
this one, which required more than simply giving one’s name.
The inclusion of witnesses is even more problematic, as it
could include virtually anyone at anytime who may have seen
anything – making it susceptible to abuse.
It is fundamental to our constitutional freedom that people
may go about their business without having to show their papers,
to prove who they are or justify what they are doing. The exception,
of course, is when there is some legitimate and particular
need for law enforcement to gather specific information from a
specific person. Under those circumstances, police could always
act. The Ohio Patriot Act reaches far beyond that to permit government
authorities, almost upon whim, to demand information
beyond what the Constitution allows.
6. The Ohio Patriot Act requires self-incrimination, in violation
of the 5th Amendment.
This law requires applicants for many state-issued licenses,
state or local government contracts or funding, and
state jobs to certify that they have not provided material support to terrorists or terrorist organizations. If they have, the
application will be denied. If they lie, the application will be
denied and they will be charged with a criminal offense.
The first question to be asked on the application, “Are
you a member of an organization on the U.S. Department of
State Terrorist Exclusion List?” is precisely the question we
as a people are embarrassed that Senator McCarthy continually
asked: “Are you now, or have you ever been…?”
While it is understandable that the state would prefer not to
do business with or employ actual terrorists, it is hard to imagine
that someone intent on committing a terrorist act against the
United States or the State of Ohio would be deterred by the necessity
of denying that goal on a license, contract, or employment
application. And for those who may have unwittingly given money
to a charity that turned out to be a front for terrorists, they would
be required to disclose that in violation of the Fifth Amendment
right against self-incrimination.
7. The Ohio Patriot Act unnecessarily duplicates existing
criminal law and could only serve to create confusion for
law enforcement and legitimate businesses and researchers.
This law makes criminal what is already a crime. It replicates
already existing federal statutes and regulations regarding
the possession, assembly, and use of materials that could
be used for weapons — chemical, biological, radiological and
nuclear weapons, explosive devices, and their components.
By duplicating existing law, the Ohio Patriot Act may
cause confusion for law enforcement, legitimate businesses
and researchers. While we would hope that criminal charges
would not be brought against someone with a legitimate basis
for having such materials, the bill certainly exposes
nearly every manufacturing or industrial enterprise in Ohio to
such a possibility, and could discourage other such enterprises
from doing business here.
8. SB 9 sends the message that the state equates immigrants
Placing special restrictions on immigrants in this supposedly
“anti-terrorism” law is highly discriminatory, essentially
equating immigrants and aliens with terrorists. It relies
on an incorrect assumption, because the example of Timothy
McVeigh (Oklahoma City) proves not all terrorists are from
foreign lands. Furthermore, it is bad policy for Ohio.
The Ohio Patriot Act requires that government employees
cooperate with immigration and terrorism investigations. Immigration
law is incredibly complicated, and immigration status is
often difficult to determine. Strapping our local law enforcement
with this added burden will only serve to stretch our safety
forces more thin, which leaves us all more vulnerable. Moreover,
and insofar as immigrant communities may contain terrorists
or more garden-variety criminals, it is important that members
of those communities, whether lawfully in the country or
not, feel comfortable and safe speaking with and assisting law
enforcement. When government targets those communities, it
reduces cooperation and reduces our safety.
9. The Ohio Patriot Act punishes political dissent.
The original version of SB 9 prohibited state and local
governments and their employees from objecting to the USA
Patriot Act and federal law. The final version of SB 9 included
a narrow exception, allowing them to express disagreement
with or a critical opinion of the Patriot Act and related policy
without punishment. However, the assault on political dissent
is still alive in this law.
The Ohio Patriot Act sends a clear message that, while
you may be permitted to voice criticism, you cannot act on it.
A community committed to respecting the Bill of Rights still
risks losing its homeland security funding if its policies in any
way “materially hinder or prevent” compliance with federal
immigration, terrorism, or homeland security efforts. It remains
unclear when a local policy crosses the line from permitted
speech to prohibited action. Communities that refuse
to conduct “sneak and peak” searches, or those that permit
concealed handguns in public buildings, could be denied
homeland security funds. This provision attacks core freedoms
while doing nothing to make us safer
10. The Ohio Patriot Act prevents the public from learning
about dangers in their communities.
This law allows business owners and operators, and
owner-operators of other facilities, to disclose vulnerabilities
and other security concerns to select government agencies.
We all hope they would do that. But in the apparent effort to
encourage (without requiring) such disclosure, the Ohio Patriot
Act exempts this information from public record. If the
aim of this law is protecting the people of this state, what end
is served by telling law enforcement that the nuclear power
plant might soon experience melt-down but not notifying the
neighbors who are in harm’s way?
For more information
If you are required to fill out an “I am not a terrorist" questionnaire
by the state or local government, have been subject to
law enforcement demands for ID at transportation sites or because
you allegedly witnessed a crime, or were told your local
government could not pass a resolution opposing the Patriot Act,
then we want to hear from you! Please describe your experience
in a letter and mail it to:
ACLU of Ohio Foundation
4506 Chester Avenue
Cleveland, OH 44103
You may also fill out a form on our website www.acluohio.org
or reach us by fax 216-472-2210.
Posted by Michael Difensore at 12:59 AM