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A package of anti-terrorism bills under consideration by the Florida Senate attacks the First and Sixth amendments of the U.S. Constitution and cripples the state’s public records laws, according to legal activists, criminal defense lawyers and journalists. One measure would permit law enforcement agencies to hold material witnesses for four days and to secretly detain individuals suspected of terrorism. Others would allow Senate committees to meet in secret and close certain public records. The measures — which mirror congressional laws being drawn up — appear to have significant constitutional implications and would seriously constrict the state’s traditionally permissive open records and Government in the Sunshine laws. “It’s not unexpected that there would be a knee-jerk reaction,” said Joel Hirschhorn, a Miami criminal defense attorney and president-elect of the American Board of Criminal Trial Lawyers. “I knew the second thing we would lose Sept. 11 would be our civil rights.” All the proposals sailed through Senate committees and are now headed to the floor for a vote. The Florida House of Representatives must also approve the measures. State legislators defended the proposals. Sen. Debbie Wasserman-Schultz, D-Pembroke Pines, said the bills are “narrowly drawn.” “I’m pretty against closing public records, but we’re in a time where it’s very uncharted territory,” she said. However, First Amendment advocates said the proposals would seriously impact the public’s ability to know what government does. “Florida, which has been an example to the rest of the country and world as a model of openness and accountability is essentially panicking, and with the best of intentions and motives, is handing the enemies of this country exactly the victory they sought — the demolition of the democratic process,” said Bill Hirschman, immediate past-president of the South Florida chapter of the Society of Professional Journalists. The 12 or so measures proposed by Sen. Ginny Brown-Waite, R-Brooksville, and Sen. Rod Smith, R-Gainesville, were “shell bills” — bills with numbers but no content — suddenly included in the special session of the Florida Legislature that began this week. The session was originally convened solely to discuss the state’s budget shortfall. Even the existence and language of the bills were secret; on Tuesday some senators said they had yet to see them. Among the proposals are: � A bill allowing law enforcement agencies to conceal arrests of individuals — particularly those suspected of terrorism — for seven days. � A measure allowing state law enforcement agencies to delay access to public records if they are part of a criminal investigation or could reveal terrorist activity. � A change in Senate rules to allow the body to meet secretly and to keep records of those meetings secret. � Bills to exempt hospital emergency evacuation plans, the amount and location of pharmaceutical stockpiles and security plans from public access. “This is a boulder going downhill in the Senate,” said Larry Spalding, legislative staff counsel for the American Civil Liberties Union of Florida. “It’s a waste of time to fight this. The Florida Department of Law Enforcement is going to get whatever it wants.” Spalding believes the most dangerous of the lot is the measure permitting detention of material witnesses. “If you’re not charged with anything, you can’t get a lawyer,” he said. “This country was founded during times of war,” noted Hirschhorn. “One of the reasons was because the king could detain citizens without counsel.” The right to assistance of counsel is guaranteed under the Sixth Amendment of the U.S. Constitution. The proposed restrictions on public records laws drew immediate reaction from First Amendment activists and lawyers, along with journalists. The state’s First Amendment Foundation, the Society of Professional Journalists, the National Association of Hispanic Journalists and the Florida Society of Newspaper Editors are among the organizations protesting the measures. Senators who said they are usually strong advocates of public records laws appear to support the new laws. “I’ve always been the strongest proponent of open records, but when it comes to terrorism, that’s a different story,” said Sen. Walter G. “Skip” Campbell, D-Tamarac, adding that closure of Senate meetings to discuss terrorism issues would rarely occur. A proposed rule change permits Senate committees and subcommittees to convene in secret to “discuss measures to prevent possible acts of espionage, sabotage, attack and other acts of terrorism.” It stipulates that after consulting with law enforcement, public health and security officials, the Senate president could close committee and subcommittee meetings and make records, research and the actual votes of a committee meeting private. The records would be sealed for five years. Tom Fiedler, executive editor of The Miami Herald, echoed many others when he said he could not imagine why the Florida Senate would have to discuss such things as espionage and terrorism — national security issues more likely to be discussed by the U.S. Senate. Some questioned whether the Florida Senate was using the terrorism card to accomplish what it has attempted before: closing off government to the public. Issues taken up by state senators “should be widely debated,” added Fiedler. Sanford Bohrer, a First Amendment lawyer at Holland & Knight in Miami, agreed. “What is it they will do in private that we can’t know their vote?” he said. “Legislators’ first instinct is to be secretive. They don’t want you to know when they are making some disgusting deal … with a lobbyist. They don’t want you to know what they’re doing. This worries me.” The Florida Constitution states that all meetings of more than two legislators at which pending or proposed legislation is to be discussed must be open to the public, noted Barbara Petersen, executive director of the First Amendment Foundation in Tallahassee. It does, however, allow for closure of meetings for security purposes. First Amendment lawyers have typically taken that exemption to concern building security. Petersen sees the proposal to seal records as a clear violation of the Florida Constitution. “Forget that the constitution prohibits closure of legislative records by simply passing a rule, they want to VOTE in secret?” Petersen wrote in an e-mail to journalists. “Taken together with the meetings closure, this could mean that Senate committees could approve legislation, the existence of which could be kept secret until it reaches the Senate floor.” While First Amendment advocates are universally outraged by any plan to close off Senate meetings, they have mixed positions on other bills. The Society of Professional Journalists fears that exempting pharmaceutical information could impede journalists’ ability to report on whether public officials are prepared for bio-terrorism; exempting security and hospital emergency plans could similarly keep the public in the dark about whether these agencies are prepared to deal with a crisis. They are also concerned with vesting law enforcement agencies with the power to detain witnesses and make secret arrests. Fiedler, however, is less concerned with the other bills. “I don’t think the media should have a knee-jerk reaction to this,” he said. “Criminal investigations are very important. We wouldn’t want to print something that could benefit someone who is intent on breaking the law or hurting people. Our response to this needs to be measured and considered.” Sam Terilli, a First Amendment lawyer for Ford & Harrison in Miami and former general counsel of The Miami Herald, said many of the bills are redundant. Laws already allow exemptions of public records laws for records involving criminal investigations. “The solution is not passing more laws,” he said. First Amendment activists take some comfort from the fact that the bills still must be approved by the House, and House members have publicly taken stronger stands against closing public records. House Speaker Tom Feeney has said the special session is not the place to consider the matters, said his press secretary, Kim Stone. However, some journalism groups are concerned that the House is just posturing that the House and Senate are playing “good cop, bad cop” and that both actually approve of the record-closing measures.

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