July 27, 2011
Homegrown Hurt—A Commentary by Linda Greenhouse ’78 MSL
The following commentary was posted on newyorktimes.com on July 27, 2011.
By Linda Greenhouse ’78 MSL
We are so accustomed to seeing terrorism through the lens of 9/11 that it may be hard to recapture how shocking it was to realize, 16 years ago in Oklahoma City, that devastating terrorism can be completely homegrown. The mass murder committed in Norway last Friday by a Norwegian anti-immigrant extremist brings Oklahoma City forcefully to mind for the first time in a long while. The bombing of the Alfred P. Murrah Federal Building on April 19, 1995 by two disaffected Americans killed 168 people. At the time, it was the worst single incident of terrorism ever committed on American soil. Today’s young adults, not yet then even in their teens, may barely remember it.
I well remember the shock of learning that the act was not, as nearly everyone assumed, the work of Islamic radicals, who had tried just two years earlier to bring down the World Trade Center. Journalists shared the same immediate assumption. My assignment for The Times was to write an essay for the Sunday paper that would reflect the collective wisdom of some of the country’s leading thinkers on the implications of this attack by outsiders on the country’s heartland. The first person I called was Robert Coles, the Harvard psychiatrist.
In the few minutes between leaving a message for Dr. Coles and receiving his return call, the news broke of the arrest of a 27-year-old Army veteran, Timothy J. McVeigh, on suspicion of having planted the bomb. Together, we struggled to process this unnerving development. “We know this country can handle external enemies,” I quoted Dr. Coles as saying, “but for one of our own to strike a blow against the federal government, against our own family, is very unnerving, very frightening.”
I retrieve this memory, partly in sympathy with the Norwegian people (“Norway has lost its innocence,” a friend in Oslo told me by e-mail) but for another reason as well: to recall Oklahoma City’s calamitous domestic aftermath, both as a cautionary tale for Norway and a reminder to those inclined to assume that everything they don’t like about the current civil liberties climate in the United States began with the Bush administration and 9/11.
The Oklahoma City bombing did not create the toxic political climate that dominated Washington in April 1995, but the prevailing mix of opportunism and cowardice was tailor-made for the overreaction that occurred. Republicans had recaptured Congress in the midterm election just months earlier. A shell-shocked President Bill Clinton, planning his 1996 re-election campaign, was tacking hard to the right. So he offered little resistance when the new congressional leadership trained its focus not on ways to prevent or detect terrorism, which at least would have made sense, but on, of all things, habeas corpus.
The Latin term did not then have the public currency it was to gain soon enough in the context of the Guantanamo Bay detainees, whose right to habeas corpus – essentially, the right to come before a judge to challenge the legality of confinement – was to become the subject of a prolonged tug of war between Congress and the Supreme Court. But the goal of cutting back on habeas corpus, of curbing the jurisdiction of the federal courts to grant relief to prisoners who had been tried and convicted in state court, was high on the agenda of well-placed conservatives who found federal judges too indulgent, especially when it came to accepting multiple habeas corpus petitions from inmates on the various state death rows.
What this had to do with Timothy McVeigh or other agents of terror, who would be tried in federal, not state, court, was obscure. But within weeks of the Oklahoma City bombing, the Senate voted 91 to 8 to pass the Comprehensive Terrorism Protection Act of 1995, which cut back sharply on state death-row inmates’ access to federal court. This bill eventually morphed into the broader Anti-Terrorism and Effective Death Penalty Act of 1996, which President Clinton signed shortly after the first anniversary of the bombing. Standing on the south lawn of the White House, in the presence of family members of the victims of Oklahoma City and other recent terrorist incidents, the president declared that the new law “strikes a mighty blow” against terrorism.
While I can’t think of any particular impact the law (abbreviated as AEDPA and pronounced “edpa,”) has had on terrorism, it has transformed habeas corpus practice for garden-variety crimes. Its restrictions on the jurisdiction of the federal courts were sufficiently severe that the Chief Justice William H. Rehnquist and his most conservative allies felt the need to act with remarkable speed to affirm the law’s constitutionality. In May 1996, just nine days after AEDPA was signed into law, and after the court’s regular argument sessions for the term had concluded, the justices scheduled a special sitting to hear a case on whether the law’s all-but-total elimination of an inmate’s right to file more than one habeas corpus petition amounted to an unconstitutional “suspension” of habeas corpus.
Four dissenting justices (John Paul Stevens, David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer) objected that the court was intervening with “unseemly haste.” But less than a month after the June 3 argument in the case, Felker v. Turpin the court ruled unanimously that the new restrictions were permissible because, despite the obstacles placed on access to the lower federal courts, the Supreme Court itself retained the right to exercise its own authority to grant an “original” habeas corpus petition. This was largely a fiction: the court had in fact not granted such a petition for 71 years before this decision, and has not granted one since, although inmates continue to file them regularly.
The Felker decision addressed only one aspect of the complicated law. There have been dozens of Supreme Court decisions since then, parsing other sections. One of the most far-reaching provisions is a section that bars federal judges from granting a habeas petition unless the state court decision that is being challenged “was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States.” It did not take the Supreme Court long to interpret this section as meaning that it isn’t enough for the state-court decision to be wrong; it has to be unreasonably wrong, a high bar indeed.
AEDPA also had a drastic effect on the rights of legal immigrants, making non-citizens who had lived legally in the United States for years suddenly subject to automatic deportation for minor offenses. Given that Timothy McVeigh and his co-defendant, Terry Nichols, were American-born, the connection between this provision and Oklahoma City – or terrorism in general – remains obscure.
In Norway, where the police normally go about their duties unarmed, there were public vows this week to preserve a peaceful and open society. “We will not let fear paralyze us,” Archbishop Helga Haugland Byfuglien declared at a memorial service, adding: “We will fight for the values that were attacked.” It is likely to be a harder fight than Norwegians expect.
The federal government executed Timothy McVeigh on June 11, 2001. Exactly three months later, mass murder came from the skies and the next chapter opened.