Q. What do Albany, Ithaca and Syracuse have that New York City does not?
A. A Bill of Rights Resolution.
Immediately following the September 2001 acts of terrorism, with little public debate, the U.S. Congress enacted the USA Patriot Act, and then the Homeland Security Act, followed by new federal orders, rules and regulations. Critics say many of these contain provisions infringing on civil liberties and civil rights. In response, three states, Alaska, Hawaii and Vermont, and, as of this writing, 227 cities and towns including 13 in New York State, have adopted resolutions in support of individual Constitutional rights. On the anniversary of the adoption of the Bill of Rights (December 15, 1791), despite the urging of a coalition called the New York City Bill of Rights Defense Campaign, the City of New York failed to join the list.
"The protection of civil rights and civil liberties is essential to the well being of a free and democratic society," the proposed resolution begins. "The members of the Council of the City of New York believe that there is no inherent conflict between national security and the preservation of liberty. Americans can be both safe and free."
The Bill of Rights Resolution, or Resolution 909, was introduced last May by Councilmember Bill Perkins, and cosponsored by 32 out of 51 members of the council. But it failed to come to a vote; support eroded on the last possible day because many members felt that the public would misunderstand its passage coming so soon after the arrest of Saddam Hussein. Speaker Gifford Miller has promised to bring the resolution back before the full council in January.
"We, as a city of eight million, can make a statement about federal law that speaks out against aspects of the Patriot Act, certain injustices and violations of civil rights and civil liberties, of Americans and immigrants," Perkins said in a telephone interview "The NYC Council must take a stand and go on record against secret detentions without charges or access to counsel; spying on lawful political and religious speech; and ethnic and religious profiling."
Udi Ofer, an attorney with the New York Civil Liberties Union, adds that "fighting terrorism does not mean conceding our freedoms, and Resolution 909A gets that message across loud and clear."
The new federal legislation and companion policies vastly increase the investigatory and surveillance powers of law enforcement, making enormous changes in the areas of privacy, and the rights of persons investigated or accused, or merely under suspicion in connection with alleged terrorism or based upon ethnic, religious or political grounds. Law enforcement and intelligence agencies are given unprecedented access to personal medical, financial, library and educational records, as well as Internet habits, search warrants, electronic surveillance. The new legislation also authorizes indefinite incarceration without counsel of non-citizens and those designated as "enemy combatants."
David Cole, Georgetown University Law School professor of constitutional law and author of ENEMY ALIENS, said that the Bill of Rights is not limited to citizens, the way voting is.
Because 909a is a resolution rather than a statute or ordinance, it would not have the force of law, nor the power to undo what Congress has enacted. However, the resolution would require federal authorities to disclose the circumstances surrounding New Yorkers arrested or detained in connection with terrorism investigations. It would also express support for the rights of immigrants, and express opposition to investigations based on activity protected by the First Amendment; to racial, religious or ethnic profiling; to unreasonable camera surveillance and searches; and to secret detention without charges nor access to a lawyer. The resolution would have called upon federal, state and local officials and New York City agencies and institutions to affirm and protect civil rights and civil liberties.
"I think the movement to pass these resolutions is the single most effective tool to raise the consciousness about the importance of civil liberties in the USA that has been undertaken since September 11th," Professor Cole said. "There is a real shift in public attitudes about the importance of protecting civil liberties and it's not because of the courts or Congress or executive orders, but what people around the country are saying in adopting these resolutions."
The resolution, which was endorsed by most of New York City's congressional delegation, also urges New York's Senators Charles Schumer and Hillary Clinton to take leadership roles in preventing passage of the pending Domestic Security Enhancement Act, or Patriot II.
Emily Jane Goodman is a New York State Supreme Court Justice.