Lower House committee approves “counterterrorism bill”; see the main problems with the proposal

Authoritarian in nature, the bill presents a generic definition of terrorism, creates the secret police and paves the way for the repression of social movements

By 22 votes to 7, a special committee of the Lower House of Congress approved in the early hours of Friday, September 17, the text of Bill 1595/2019, which is separate legislation to the Anti-Terrorism Law of 2016. Using counter-terrorism as a justification, the bill establishes mechanisms that could criminalize social movements and other organizations, creates unconstitutional surveillance and provides immunity to public agents who commit crimes.

The bill is a rewriting of a proposal submitted in 2016 by President Jair Bolsonaro when he was a federal congressman. Now, the text needs to be approved by a full session of the Lower House and the Senate. 

According to Gabriel Sampaio, coordinator of the program to Combat Institutional Violence at Conectas, the bill is authoritarian in nature and permits the use of repressive tools, secretly, without prior control and transparency, to criminalize social movements and other organizations that are critical of or that oppose the federal government. 

“The prospect of combating terrorism paves the way for various authoritarian measures. Moreover, the bill creates a structure of repression that will operate secretly, with security and intelligence forces across the country under the command of the federal government, removing any possibility of social control and making it difficult to hold anyone liable for abusive acts,” said Sampaio.

In a technical report on the bill, Conectas, the Criminal Justice Network and the Brazilian Criminal Sciences Institute stated that “in this proposal, there is no element that differentiates an ‘act of terrorism’ from common crimes, as the only requirements to constitute such an act are generic in nature, namely posing a ‘danger to human life’ and ‘affecting the definition of public policies’, and these acts do not even need to materialize, since it is enough for the perpetrator to ‘appear to have the intention’ of causing them”. 

The UN has also expressed concern over the passage of this legislation. “My Office is also concerned about new draft anti-terrorism legislation in Brazil that includes excessively vague and broad provisions which pose risks of abuse, particularly against social activists and human rights defenders,” said on Monday, September 13, the UN High Commissioner for Human Rights, Michelle Bachelet. 

See the most problematic points of Bill 1595: 

It creates a “secret police”

The bill creates a National Counter-Terrorism System and a National Counter-Terrorism Policy, which will be established by the Institutional Security Office of the Presidency of the Republic. These mechanisms will have the purpose of coordinating the preparation and employment of military, police and intelligence units in counter-terrorist actions and they will provide information for possible decrees for federal intervention, state of defense or state of siege in the event of “repressive actions in national territory”. In practice, the project creates a “secret police” formed by the Armed Forces, the Federal Police and ABIN (Brazilian Intelligence Agency), under the direct control of the President of the Republic, which will have broad access to private data and privileged information on all citizens, especially opponents of the government.

According to Sampaio, this aspect is even more serious considering the authoritarian nature of the current government. He said that the escalation of the use of the National Security Law, repealed by Congress in early September, is a sign that Jair Bolsonaro wants to spy on and repress opponents using legislation that is at odds with democratic values.   

It paves the way for criminalizing protests 

The law can apply to acts that “are hostile to human life or effectively destructive in relation to any critical infrastructure, essential public service or key resource”. As such, protests that take over a public service or that occupy public spaces to claim rights can be classified as acts of terrorism, resulting in severe and disproportionate penalties. 

It legalizes qualified immunity 

The bill states that if a public agent, in legitimate self-defense, causes the death or injury of people in a counter-terrorist action, they may be exempt from liability. It also states that this applies “in the case of necessity or in extenuating circumstances when an undercover agent behaves in a way that constitutes a crime when the situation so requires, especially if characterized as a risk to their own life”.

According to Sampaio, “in practice, this is about legalizing qualified immunity for security agents, removing the ability to investigate possible errors and abuses committed by the military and the police, which could make the public security forces even more violent, including at public demonstrations”.

It brings back the designation of “preparatory acts” 

The bill authorizes the investigation and punishment of so-called “preparatory acts”. In other words, it creates forms of police intervention without the need for a crime to actually have happened, as mere intentions can be considered crimes. The technical report published by the organizations states that this “inverts the traditional doctrine of criminal law, which only allows the punishment of actual acts (which includes the attempt)”. Given the vagueness of the definition of terrorism in the text of the bill, organizers of demonstrations and protests may be investigated by secret agents and, possibly, punished in accordance with a counter-terrorism law. When conducting investigations, it will be possible to indiscriminately use the private data of the people considered suspects.