The Fourth Branch of Government is the People What they didn't tell yo...

The Fourth Branch of Government is the People   What they didn't tell yo...
All great movements are popular movements. They are the volcanic eruptions of human passions and emotions, stirred into activity by the ruthless Goddess of Distress or by the torch of the spoken word cast into the midst of the people. The new freedom of expression brought by the Internet goes far beyond politics. People relate to each other in new ways, posing questions about how we should respond to people when all that we know about them is what we have learned through a medium that permits all kinds of anonymity and deception. Truth is, I'll never know all there is to know about you just as you will never know all there is to know about me. Humans are by nature too complicated to be understood fully. So, we can choose either to approach our fellow human beings with suspicion or to approach them with an open mind, a dash of optimism and a great deal of candour. We, the People, recognize that we have responsibilities as well as rights; that our destinies are bound together; that a freedom which only asks what's in it for me, a freedom without a commitment to others, a freedom without love or charity or duty or patriotism, is unworthy of our founding ideals, and those who died in their defense. There is no such thing as society: there are individual men and women, and there are families.

Important Message for All Law Enforcers

Important Message for All Law Enforcers Freedom; what it is, and what it is not. Unadulterated freedom is an unattainable goal; that is what the founders of America knew and understood, which was their impetus behind the documents that established our great nation. They also knew that one of the primary driving forces in human nature is the unconscious desire to be truly free. This meant to them that mankind if totally left completely unrestricted would pursue all things in life without any awareness or acknowledgement of the consequences of his/her own actions leaving only the individual conscience if they had one as a control on behavior. This would not bode well in the development of a great society. Yet the founders of America chose to allow men/women as much liberty as could be, with minimum impact on the freedom or liberties of others.

Freedom Adds

Wednesday, June 8, 2016

Ali Is Dead, Fear Is Alive & Free Speech Is Being Dealt A Knock-Out Punch

Ali Is Dead, Fear Is Alive & Free Speech Is Being Dealt A Knock-Out Punch

“What are the defenders of free speech to do? The sad fact is that this fundamental freedom is on its heels across America. Politicians of both parties want to use the power of government to silence their foes. Some in the university community seek to drive it from their campuses. And an entire generation of Americans is being taught that free speech should be curtailed as soon as it makes someone else feel uncomfortable. On the current trajectory, our nation’s dynamic marketplace of ideas will soon be replaced by either disengaged intellectual silos or even a stagnant ideological conformity. Few things would be so disastrous for our nation and the well-being of our citizenry.”—William Ruger, “Free Speech Is Central to Our Dignity as Humans
As a nation, we have a tendency to sentimentalize cultural icons in death in a way that renders them non-threatening, antiseptic and easily digested by a society with an acute intolerance for anything controversial, politically incorrect or marred by imperfection.
This revisionist history—a silent censorship of sorts—has proven to be a far more effective means of neutralizing radicals such as Martin Luther King Jr. than anything the NSA, CIA or FBI could dream up.
In life, King called for Americans to rise up against a government that was not only treating blacks unfairly but was also killing innocent civilians, impoverishing millions, and prioritizing the profits of war over human rights and dignity. This was a man who went to jail over racial segregation laws, encouraged young children to face down police dogs and water hoses, and who urged people to turn their anger loose on the government through civil disobedience. King actually insisted that people have a moral responsibility to disobey unjust laws.
In death, however, King has been reduced to a face on a national monument and a national holiday, neither of which even hint at the true nature of the man: fiery, passionate, single-minded in his pursuit of justice, unwilling to remain silent in the face of wrongdoing, and unafraid of offending those who might disagree with him.
A contemporary of King’s, heavy-weight championship boxer Muhammad Ali followed a different path as a social activist and “breaker of boundaries.” Like King, Ali didn’t pull any punches when it came to saying what he believed and acting on it. Yet already, in the wake of Ali’s passing, we’re being treated to a sentimentalized version of the heavy-weight boxer.
In life, Ali was fast-talking, fast-moving and as politically incorrect as they come. He became an early convert to the Nation of Islam, a black separatist religious movement whose membership at one time included Malcolm X and Louis Farrakhan. He denounced his “slave name” (Cassius Marcellus Clay) and refused to be the “white man’s Negro.”
He was stripped of his boxing title, arrested and threatened with five years in prison and a fine of $10,000 after refusing to be drafted into the Army as a conscientious objector to the Vietnam War. “My conscience won’t let me go shoot my brother, or some darker people, or some poor hungry people in the mud for big powerful America,”declared Ali. “And shoot them for what? They never called me nigger, they never lynched me, they didn’t put no dogs on me, they didn’t rob me of my nationality, rape and kill my mother and father. … Shoot them for what? How can I shoot them poor people? Just take me to jail.”
As First Amendment scholar David L. Hudson Jr. notes, “Ali’s remarkable career and life placed him at the vortex of these First Amendment freedoms… Ali freely exercised his religious faith. He regularly spoke provocatively on a variety of topics. The press was abuzz with coverage and criticism. Thousands assembled in support of him, and the champion himself took part in rallies, parades and marches. Some petitioned the government to redress the injustice of his conviction for refusing military service, which resulted in his being exiled from the boxing ring for his beliefs.”
It took a legal battle all the way to the U.S. Supreme Court for Ali’s religious objections to serving in the Army to be given credence and his First Amendment arguments to prevail. The case was Clay v. United States.
That was in 1971.
Forty-five years later, Ali is dead, fear is alive, and free speech is being dealt one knock-out punch after another.
Indeed, talk-show celebrity Piers Morgan has been soundly trounced and roundly censured for daring to suggest that Ali—a champion of the First Amendment who liberally peppered his speech with words (nigger and Uncle Tom) and opinions (“the white man is the Devil“ and “I’m sure no intelligent white person watching this show … want black boys and black girls marrying their white sons and daughters“) that would horrify most of his politically correct fans—made more “inflammatory/racist” comments than Donald Trump.
Speaking of Trump, in Fresno, California, a third-grader was ordered to remove his pro-Trump “Make America Great Again” hat because school officials feared for his safety. The 9-year-old boy refused, citing the First Amendment.
That was the same argument—a concern for safety—officials used in 2010 when they ordered several high school students to remove their t-shirts emblazoned with the American flag. The concern: wearing the flag on Cinco de Mayo, a Mexican day of celebration, might offend Hispanic students attending the school. The U.S. Supreme Court agreed with the school’s logic. Coincidentally, that same week, the high court also ruled against Confederate flag license plates on the grounds that they constituted government speech and might be offensive to African-Americans.
For those of us who came of age in the 1960s, college campuses were once the bastion of free speech, awash with student protests, sit-ins, marches, pamphleteering, and other expressive acts showing our displeasure with war, the Establishment and the status quo.
Today, on college campuses across the nation, merely chalking the word “Trump” on the sidewalk is enough to have student groups crying foul and labeling it as hate speech in need of censorship. Under the misleading guise of tolerance, civility, love and political correctness, college campuses have become hotbeds of student-led censorship, trigger warningsmicroaggressions, and “red light” speech policies targeting anything that might cause someone to feel uncomfortable, unsafe or offended.
As I point out in my book Battlefield America: The War on the American People, this doesn’t even begin to touch on the criminalization and surveillance of various forms of speech that the government deems to be hateful, anti-government, extremist, bullying, dangerous or inflammatory.
One could say that we have allowed our fears—fear for our safety, fear of each other, fear of being labeled racist or hateful or prejudiced, etc.—to trump our freedom of speech and muzzle us far more effectively than any government edict could.
Ultimately the war on free speech—and that’s exactly what it is: a war being waged by Americans against other Americans—is a war that is driven by fear.
America is in the midst of an epidemic of historic proportions. The contagion being spread like wildfire is turning communities into battlegrounds and setting Americans one against the other. Normally mild-mannered individuals caught up in the throes of this disease have been transformed into belligerent zealots, while others inclined to pacifism have taken to stockpiling weapons and practicing defensive drills.
This plague on our nation—one that has been carefully cultivated and spread by the powers-that-be—is a potent mix of fear coupled with unhealthy doses of paranoia and intolerance, tragic hallmarks of the post-9/11 America in which we live.
Everywhere you turn, those on both the left- and right-wing are fomenting distrust and division. You can’t escape it. We’re being fed a constant diet of fear: fear of terrorists, fear of illegal immigrants, fear of people who are too religious, fear of people who are not religious enough, fear of the government, fear of those who fear the government. The list goes on and on.
The strategy is simple yet brilliant: the best way to control a populace is through fear and discord. Confound them, distract them with mindless news chatter and entertainment, pit them against one another by turning minor disagreements into major skirmishes, and tie them up in knots over matters lacking in national significance. Most importantly, keep the people divided so that they see each other as the enemy and screaming at each other so that they drown out all other sounds. In this way, they will never reach consensus about anything or hear the corporate state as it closes in on them.
This is how a freedom-loving people enslave themselves and allow tyrants to prevail.
This Machiavellian scheme has so ensnared the nation that few Americans even realize they are being manipulated into adopting an “us” against “them” mindset. Instead, fueled with fear and loathing for phantom opponents, they pour millions of dollars and resources into political elections, hoping for change that never comes. All the while, those in power—bought and paid for by lobbyists and corporations—move their costly agendas forward, and “we the suckers” get saddled with the tax bills.
We have been down this road before.
A classic example is the fear and paranoia that gripped the country during the 1950s. Many huddled inside their homes and fallout shelters, awaiting a nuclear war. It was also the time of the Red Scare. The enemy this time was Communist infiltration of American society.
Joseph McCarthy, a young Republican senator, grasped the opportunity to capitalize on the popular paranoia for personal national attention. In a speech in February 1950, McCarthy alleged having a list of over 200 members of the Communist Party “working and shaping the policy of the U.S. State Department.” The speech was picked up by the Associated Press, without substantiating the facts, and within a few days the hysteria began.
McCarthy specialized in sensational and unsubstantiated accusations about Communist infiltration of the American government, particularly the State Department. He also targeted well-known Hollywood actors and directors, trade unionists and teachers. Many others were brought before the inquisitional House Committee on Un-American Activities for questioning. Regarded as bad risks, the accused struggled to secure employment. The witch hunt ruined careers, resulting in suicides, and tightened immigration to exclude alleged subversives.
“McCarthyism” eventually smeared all the accused with the same broad brush, whether the evidence was good, bad or nonexistent. McCarthy, like many do today, appealed to the low instincts of envy, paranoia and dislike for the intellectual establishment.
“The real scoundrel in all this,” writes historian David Halberstam, “was the behavior of the members of the Washington press corps, who, more often than not, knew better. They were delighted to be a part of his traveling road show, chronicling each charge and then moving on to the next town, instead of bothering to stay behind and follow up. They had little interest in reporting how careless McCarthy was or how little it all meant to him.”
However, on March 9, 1954, Edward R. Murrow, the most-respected newsman on television at the time, broke the ice. He attacked McCarthy on his weekly show, See It Now. Murrow interspersed his own comments and clarifications into a damaging series of film clips from McCarthy’s speeches. Murrow ended the broadcast with one of the greatest news commentaries of all time, also a warning.
We will not walk in fear, one of another. We will not be driven by fear into an age of unreason, if we dig deep in our history and our doctrine; and remember that we are not descended from fearful men. Not from men who feared to write, to speak, to associate, and to defend causes that were for the moment unpopular.
This is no time for men who oppose Senator McCarthy’s methods to keep silent, or for those who approve. We can deny our heritage and our history, but we cannot escape responsibility for the result. There is no way for a citizen of a republic to abdicate his responsibilities. As a nation we have come into our full inheritance at a tender age. We proclaim ourselves, as indeed we are, the defenders of freedom, wherever it continues to exist in the world, but we cannot defend freedom abroad by deserting it at home. The actions of the junior Senator from Wisconsin have caused alarm and dismay amongst our allies abroad, and given considerable comfort to our enemies. And whose fault is that? Not really his. He didn’t create this situation of fear; he merely exploited it—and rather successfully. Cassius was right.“The fault, dear Brutus, is not in our stars, but in ourselves.” 
Whether you’re talking about free speech, surveillance, police misconduct or some other symptom of a government that has grown drunk on its own power, the answer is always the same: “we the people.”
We need to reject fear as our guiding principle, and restore freedom to its rightful place at the center of our republic.
As William Ruger writes in a powerful editorial for Time:
We must vigorously re-make the case for free speech. We must recur to its great defenders from ages past and reintroduce their ideas to our fellow Americans. The wisdom of John Milton, John Locke and John Stuart Mill—not to mention that of Americans like George Mason and Justice Louis Brandeis—is as true today as it was in their times. We just have to remember it… we must transmit an understanding of the value of free speech to today’s Americans in order to ensure that it is protected for future generations. And perhaps even more importantly, we need to demonstrate a vigorous commitment to free speech. America’s success depends on whether we continue to embrace this fundamental freedom.

Tuesday, May 24, 2016

Shame on the U.S. Supreme Court for Making a Mockery of the First Amendment

Shame on the U.S. Supreme Court for Making a Mockery of the First Amendment

“The vitality of civil and political institutions in our society depends on free discussion… It is only through free debate and free exchange of ideas that government remains responsive to the will of the people and peaceful change is effected. The right to speak freely and to promote diversity of ideas and programs is therefore one of the chief distinctions that sets us apart from totalitarian regimes.”—Justice William O. Douglas, Terminiello v. City of Chicago (1949)
Shame on the U.S. Supreme Court for making a mockery of the First Amendment.
All the justices had to do was right a 60-year wrong that made it illegal to exercise one’s First Amendment rights on the Supreme Court plaza.
It shouldn’t have been a big deal.
After all, this is the Court that has historically championed a robust First Amendment, no matter how controversial or politically incorrect.
Over the course of its 227-year history, the Supreme Court has defended the free speech rights of Ku Klux Klan cross-burnersCommunist Party organizers, military impostersWestboro Baptist Church members shouting gay slurs at military funerals, a teenager who burned a cross on the lawn of an African-American family, swastika-wearing Nazismarching through the predominantly Jewish town of Skokie, abortion protesters and sidewalk counselors in front of abortion clinicsflag burners, an anti-war activist arrested for wearing a jacket bearing the words “F#@k the Draft,” high-school students wearing black armbands to school in protest of the Vietnam War, a film producer who created and sold videotapes of dogfights, a movie theater that showed a sexually explicit film, and the Boy Scouts of America to exclude gay members, among others.
Basically, the Supreme Court has historically had no problem with radical and reactionary speech, false speech, hateful speech, racist speech on front lawns, offensive speech at funerals, anti-Semitic speech in parades, anti-abortion/pro-life speech in front of abortion clinics, inflammatory speech in a Chicago auditorium, political speech in a private California shopping mall, or offensive speech in a state courthouse.
So when activist Harold Hodge appealed to the U.S. Supreme Court to defend his right to stand on their government plaza and silently protest the treatment of African-Americans and Hispanics by police, it should have been a no-brainer, unanimous ruling in favor of hearing his case.
Unfortunately, the Supreme Court is not quite as keen on the idea of a robust First Amendment as it used to be, especially when that right is being exercised on the Court’s own front porch.
Not only did the Court refuse to hear Hodge’s appeal, but in doing so, it also upheld the 60-year-old law banning expressive activity on the Supreme Court plaza. Mind you, this was the same ban that a federal district court judge described as “unreasonable, substantially overbroad…irreconcilable with the First Amendment,” “plainly unconstitutional on its face” and “repugnant” to the Constitution.
Incredibly, one day after District Court Judge Beryl L. Howell issued her strongly worded opinion striking down the federal statute, the marshal for the Supreme Court—with the approval of Chief Justice John Roberts—issued even more strident regulations outlawing expressive activity on the grounds of the high court, including the plaza.
Talk about a double standard—a double standard upheld by a federal appeals court.
And what was the appeals court’s rationale for enforcing this ban on expressive activity on the Supreme Court plaza? “Allowing demonstrations directed at the Court, on the Court’s own front terrace, would tend to yield the…impression…of a Court engaged with — and potentially vulnerable to — outside entreaties by the public.”
Translation: The appellate court that issued that particular ruling in Hodge v. Talkin actually wants us to believe that the Court is so impressionable that the justices could be swayed by the sight of a single man standing alone and silent in a 20,000 square-foot space wearing a small sign on a day when the court was not in session.
What a load of tripe.
Of course the Supreme Court is not going to be swayed by you or me or Harold Hodge.
This ban on free speech in the Supreme Court plaza, enacted by Congress in 1949, stems from a desire to insulate government officials from those exercising their First Amendment rights, an altogether elitist mindset that views the government “elite” as different, set apart somehow, from the people they have been appointed to serve and represent.
No wonder interactions with politicians have become increasingly manufactured and distant in recent decades. The powers-that-be want us kept at a distance. Press conferences and televised speeches now largely take the place of face-to-face interaction with constituents. Elected officials keep voters at arms-length through the use of electronic meetings and ticketed events. And there has been an increased use of so-called “free speech zones,” designated areas for expressive activity used to corral and block protestors at political events from interacting with public officials. Both the Democratic and Republican parties have used “free speech zones” at various conventions to mute any and all criticism of their policies and likely will do so again this year.
We’re nearing the end of the road for free speech and freedom in general, folks.
With every passing day, we’re being moved further down the road towards a totalitarian society characterized by government censorship, violence, corruption, hypocrisy and intolerance, all packaged for our supposed benefit in the Orwellian doublespeak of national security, tolerance and so-called “government speech.”
Long gone are the days when advocates of free speech could prevail in a case such as Tinker v. Des Moines. Indeed, it’s been more than 50 years since 13-year-old Mary Beth Tinker was suspended for wearing a black armband to school in protest of the Vietnam War. In taking up her case, the U.S. Supreme Court declared that students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”
Were Tinker to make its way through the courts today, it would have to overcome the many hurdles being placed in the path of those attempting to voice sentiments that may be construed as unpopular, offensive, conspiratorial, violent, threatening or anti-government.
Indeed, the Supreme Court now has the effrontery to suggest that the government can discriminate freely against First Amendment activity that takes place within a government forum, justifying such censorship as “government speech.”
If it were just the courts suppressing free speech, that would be one thing to worry about, but First Amendment activities are being pummeled, punched, kicked, choked, chained and generally gagged all across the country. The reasons for such censorship vary widely from political correctness, safety concerns and bullying to national security and hate crimes but the end result remains the same: the complete eradication of what Benjamin Franklin referred to as the “principal pillar of a free government.”
If Americans are not able to peacefully assemble outside of the halls of government for expressive activity, the First Amendment has lost all meaning.
If we cannot stand silently outside of the Supreme Court or the Capitol or the White House, our ability to hold the government accountable for its actions is threatened, and so are the rights and liberties which we cherish as Americans.
Living in a so-called representative republic means that each person has the right to stand outside the halls of government and express his or her opinion on matters of state without fear of arrest.
That’s what the First Amendment is all about.
It gives every American the right to “petition the government for a redress of grievances.” It ensures, as Adam Newton and Ronald K.L. Collins report for the Five Freedoms Project, “that our leaders hear, even if they don’t listen to, the electorate. Though public officials may be indifferent, contrary, or silent participants in democratic discourse, at least the First Amendment commands their audience.”
Unfortunately, through a series of carefully crafted legislative steps, government officials—both elected and appointed—have managed to disembowel this fundamental freedom, rendering it with little more meaning than the right to file a lawsuit against government officials.
In the process, government officials have succeeded in insulating themselves from their constituents, making it increasingly difficult for average Americans to make themselves seen or heard by those who most need to hear what “we the people” have to say.
Indeed, while lobbyists mill in and out of the homes and offices of Congressmen, the American people are kept at a distance through free speech zones, electronic town hall meetings, and security barriers. And those who dare to breach the gap—even through silent forms of protest—are arrested for making their voices heard. 
Clearly, the government has no interest in hearing what “we the people” have to say.
We are now only as free to speak as a government official may allow.
Free speech zones, bubble zones, trespass zones, anti-bullying legislation, zero tolerance policies, hate crime laws and a host of other legalistic maladies dreamed up by politicians and prosecutors have conspired to corrode our core freedoms.
As a result, we are no longer a nation of constitutional purists for whom the Bill of Rights serves as the ultimate authority. As I make clear in my book Battlefield America: The War on the American People, we have litigated and legislated our way into a new governmental framework where the dictates of petty bureaucrats carry greater weight than the inalienable rights of the citizenry.
Without the First Amendment, we are utterly helpless.
It’s not just about the right to speak freely, or pray freely, or assemble freely, or petition the government for a redress of grievances, or have a free press. The unspoken freedom enshrined in the First Amendment is the right to think freely and openly debate issues without being muzzled or treated like a criminal.
Just as surveillance has been shown to “stifle and smother dissent, keeping a populace cowed by fear,” government censorship gives rise to self-censorship, breeds compliance and makes independent thought all but impossible.
In the end, censorship and political correctness not only produce people that cannot speak for themselves but also people who cannot think for themselves. And a citizenry that can’t think for itself is a citizenry that will neither rebel against the government’s dictates nor revolt against the government’s tyranny.
The architects, engineers and lever-pullers who run the American police state want us to remain deaf, dumb and silent. They want our children raised on a vapid diet of utter nonsense, where common sense is in short supply and the only viewpoint that matters is the government’s.
We are becoming a nation of idiots, encouraged to spout political drivel and little else.
If George Orwell envisioned the future as a boot stamping on a human face, a fair representation of our present day might well be a muzzle on that same human face.

By John W. Whitehead

Tuesday, May 10, 2016

On The Front Lines

On The Front Lines

The Rutherford Institute, Wikipedia, ACLU Et Al. Rebut the Obama Administration's Claim That No Harm Is Caused by the NSA's Unprecedented Mass Surveillance

May 09, 2016

RICHMOND, Va. — Rejecting as patently false the Obama administration’s contention that its mass surveillance program has inflicted no harm on American citizens, attorneys for The Rutherford Institute, ACLU, Wikipedia, Amnesty International, Human Rights Watch, and the National Association of Criminal Defense Lawyers have asked a federal appeals court to reinstate a First and Fourth Amendment lawsuit against the National Security Agency (NSA), the U.S. Department of Justice and their directors.
In advancing their arguments before the Fourth Circuit Court of Appeals, the broad coalition of educational, legal, human rights and media organizations point out that the NSA’s surveillance program—which is unprecedented in its scope and intrudes on the privacy of Americans’ internet communications and impairs their expressive and associational rights—has chilled lawful First Amendment expression and given rise to self-censorship. The coalition’s arguments are reinforced by a recent study published by the Journalism and Mass Communication Quarterly showing that knowledge of government surveillance causes people to self-censor their dissenting opinions online. A Maryland federal court had dismissed the lawsuit, ruling that the coalition of national and international groups does not have standing to bring the lawsuit against the government.
“On any given day, the average American going about his daily business will be monitored, surveilled, spied on and tracked in more than 20 different ways, by both government and corporate eyes and ears,” said constitutional attorney John W. Whitehead, president of The Rutherford Institute and author of Battlefield America: The War on the American People. “Revelations about the NSA’s spying programs only scrape the surface in revealing the lengths to which government agencies and their corporate allies will go to conduct mass surveillance on Americans’ communications and transactions. Senator Ron Wyden was right when he warned, ‘If we do not seize this unique moment in our constitutional history to reform our surveillance laws and practices, we are all going to live to regret it.’”
The lawsuit brought by The Rutherford Institute, the ACLU, Wikipedia, Amnesty International, Human Rights Watch, the National Association of Criminal Defense Lawyers and other educational, legal, human rights and media organizations arises from efforts by the U.S. government since the 9/11 terrorist attacks to increase the surveillance and monitoring of U.S. citizens and foreign nationals. Although Congress had previously authorized the issuance of orders for electronic surveillance of foreign agents for intelligence purposes under the Foreign Intelligence Surveillance Act (FISA) in October 2001, President George W. Bush secretly authorized warrantless interception of emails and telephone calls involving persons within the United States if NSA personnel had a “reasonable basis” to believe one party was connected with al Qaeda. When a judge refused to authorize the continuation of this program, the Bush administration obtained amendments to FISA in 2008 authorizing the acquisition without individualized suspicion of the international communications of U.S. citizens that are with or are about foreigners who the NSA chooses to target.
In carrying out this broad authority under the 2008 law, the NSA has engaged in so-called “Upstream surveillance,” which according to the complaint “involves the NSA’s seizing and searching the internet communications of U.S. citizens and residents en mass as those communications travel across the internet ‘backbone’ in the United States—the network of high-capacity cables, switches and routers that facilitates both domestic and international communications via the internet.” Upstream surveillance encompasses the copying of virtually all international text-based communications, review of the content of those communications by the NSA, and the retention of the copied communications for future use and analysis.
May 9, 2016 • The Rutherford Institute, Wikipedia, ACLU Et Al. Rebut the Obama Administration's Claim That No Harm Is Caused by the NSA's Unprecedented Mass Surveillance
February 18, 2016 • The Rutherford Institute, Wikipedia, ACLU Et Al. Ask Fourth Circuit Court of Appeals to Reinstate Lawsuit Over the NSA's Mass Surveillance Program
December 17, 2015 • The Rutherford Institute, Wikipedia, ACLU Et Al. Appeal to 4th Circuit Seeking Reinstatement of Lawsuit Over the NSA's Mass Surveillance Program
October 27, 2015 • Upholding System of Secret Surveillance, Federal Court Dismisses Lawsuit Filed by The Rutherford Institute, Wikipedia, ACLU Et Al. Over the NSA's Spying Program
September 04, 2015 • The Rutherford Institute, Wikipedia, ACLU Et Al. Ask Federal Court to Reject Government Motion to Dismiss Lawsuit Over the NSA's Mass Surveillance Program
March 10, 2015 • Rutherford Institute Joins with ACLU, Wikipedia, Human Rights Watch, Amnesty International and Others to Sue NSA Over Its Mass Surveillance of Email
Nisha Whitehead
(434) 978-3888 ext. 604

Saturday, May 7, 2016

Gutting Habeas Corpus

Gutting Habeas Corpus

Doug Mills/AP

The Inside Story of How Bill Clinton Sacrificed Prisoners’ Rights for Political Gain

ON THE EVE OF the New York state primary last month, as Hillary Clinton came closer to the Democratic nomination, Vice President Joe Biden went on TV and defended her husband’s 1994 crime bill. Asked in an interview if he felt shame for his role passing a law that has been the subject of so much recent criticism, Biden answered, “Not at all,” and boasted of its successes — among them putting “100,000 cops on the street.” His remarks sparked a new round of debate over the legacy of the crime bill, which has haunted Clinton ever since she hit the campaign trail with a vow to “end the era of mass incarceration.”
A few days later, on April 24, a lesser-known crime law quietly turned 20. The Antiterrorism and Effective Death Penalty Act of 1996 — or AEDPA — was signed by Bill Clinton in the wake of the Oklahoma City bombing. While it has been mostly absent from the recent debates over the crime policies of the ’90s, its impact has been no less profound, particularly when it comes to a bedrock constitutional principle: habeas corpus, or the right of people in prison to challenge their detention. For 20 years, AEDPA has shut the courthouse door on prisoners trying to prove they were wrongfully convicted. Americans are mostly unaware of this legacy, even as we know more than ever about wrongful convictions. Barry Scheck, co-founder and head of the Innocence Project, calls AEDPA “a disaster” and “a major roadblock since its passage.” Many would like to see it repealed.
If the Clintons have not been forced to defend AEDPA, it’s partly because neither the law nor its shared history with the crime bill is well understood. AEDPA’s dizzying provisions — from harsh immigration policies to toughened federal sentencing — were certainly a hasty response to terrorism. But the law was also the product of an administration that long before the Oklahoma attack had abandoned its party’s core principles on criminal justice, deciding instead to wield crime policy as political weapon. After the Republicans seized control of Congress in the historic 1994 midterm elections, the Clinton White House sought to double down on its law-and-order image in advance of the 1996 presidential race. In the short term, it was a winning political strategy for Clinton. In the long term, it would help pave the way to one of the worst laws of his presidency.
THE STORY THAT sets the stage for AEDPA can be partly told through White House memos from the time, a trove of which were released in 2014. Buried among hundreds of thousands of digital records housed in the Clinton Digital Library are previously confidential documents that shine light on Clinton’s criminal justice strategies in the mid-90s, yet have been largely overlooked.
One memo reveals a White House weighing its options in the weeks after the “Republican Revolution.” Dated November 22, 1994, it was written by top Department of Justice lawyer Ron Klain, who sent it to his boss as well as members of President Clinton’s inner circle, including Bruce Reed (the operative behind the famed pledge to “end welfare as we know it”) and senior White House adviser Rahm Emanuel. The memo was titled “Crime Bill ‘Redux.’”
Klain was assessing the threat posed by the new Republican majority to the 1994 crime bill. Passed just two months earlier, it had been a crucial Democratic victory — an end to the era when “the Republicans are seen as the party that’s tougher on crime,” as declared by Senate Majority Leader George Mitchell. The GOP had relentlessly assailed the legislation as a “fake crime bill” for prevention programs like “midnight basketball.” Now the GOP was getting ready to deploy a bill of its own.

“By now, we are all aware of the Republican proposal to revisit last year’s hard won crime bill,” Klain wrote in his memo. Called the Taking Back Our Streets Act, the GOP bill was designed to dismantle the crime bill’s signature features — in particular, a community policing project known as the COPS program — while going even further than the president had in his sweeping legislation. “The Republicans’ goal here is purely political and tactical,” Klain wrote. “To take away the clearest, best ‘Clinton achievement’ on crime, and to deprive the president of the opportunity to award communities all over the country their share of the 100,000 new police officers.”
The GOP also aimed to kill off the crime bill’s prevention programs, but Klain was more concerned about COPS — no doubt in part because the 100,000 police figure had been his idea. A young lawyer described by the New Republic as having “chillingly good political skills,” Klain had been working to pass crime legislation since he was in his 20s, as the “youngest ever chief counsel to the Senate Judiciary Committee.” Under Sen. Joe Biden, Klain had drafted unsuccessful precursors to the 1994 crime bill. Now Klain was being credited as the man who successfully steered its passage.
Klain saw “only two possible outcomes” to the Republican maneuvering. “The president will have to sign the bill that Congress sends him, or veto it.” While the former would “outrage our core constituency,” he wrote, the latter posed a potentially bigger threat: “We cannot needlessly give the GOP the opportunity to say that the president is vetoing a ‘tough on crime’ bill for ‘soft on crime’ reasons.”
Fear of looking “soft on crime” on the heels of the most extreme law-and-order legislation in U.S. history might have seemed irrational. The 1994 crime bill broadened “three strikes,” poured money into prison building, and vastly expanded the death penalty. But the new power struggle with Congress meant the White House wasn’t taking any chances.
Klain had a solution. Clinton should “welcome Republican efforts to build on last year’s crime bill,” he wrote, by folding them into new Democratic legislation that protected the administration’s top priorities. If it passed, it would be an additional “win” for the White House. Klain attached to his memo “a very, very rough outline of a possible new crime bill,” along with a chart comparing it both to the 1994 crime bill and the new GOP bill. Klain proposed including a $1 billion cut in prevention programs (reallocating $700 million to new juvenile prisons), more cops in schools, and “tougher truth in sentencing.” In some areas, his outline was harsher than the GOP legislation — “broaden[ing] the range of offenses for which juveniles may be tried as adults” and “enhanc[ing] penalties for lesser drug crimes.” In other areas, like the “deportation of criminal aliens,” it simply adopted the Republican line.
Finally, the proposal reintroduced an idea favored both by Clinton and his foes in Congress: “habeas corpus reform,” previously cut from the crime bill and now part of the Taking Back Our Streets Act. Sometimes called the “Great Writ” for its treasured place in constitutional law, habeas corpus referred to the long-standing right of prisoners to challenge their incarceration in court. For the federal courts, this meant reviewing state convictions for constitutional violations, a process that took years. In the zero-tolerance climate of the ’80s and ’90s, the concept of habeas corpus had met with increasing impatience; critics accused people on death row of gaming the system, filing “appeal after appeal” just to stay alive. “In brief,” Klain wrote, “these reforms would limit death row inmates to a single habeas petition — to be filed within strict time limits — while providing such inmates with competent counsel to assist in preparing this single filing.” While the Republican version of habeas reform made no guarantee on the right to counsel, both sides could agree on the need to speed up the death penalty.
After the Oklahoma City bombing, Clinton appeared on “60 Minutes” calling for the perpetrator to be executed.
Klain’s imagined crime bill sequel never came to pass — he left the DOJ early the next year. But his top priority lived on. In February 1995, as Clinton threatened to veto the looming GOP bill over the COPS program, White House staff received talking points titled “DEBUNKING THE MYTHS: THE 100,000 COPS PROGRAM WORKS!!!” In the meantime, others considered the habeas provisions in the Taking Back Our Streets Act. The administration seemed poised to fight for competent counsel; one memo from February 1995 is particularly notable. Apart from providing for lawyers at the post-conviction stage, it stressed that habeas reform “must provide for competent trial counsel,” since “excessive delays in capital cases result not only from manipulation of habeas corpus procedures, but also from a high rate of constitutional error in capital trials.” This point tended to be aggressively ignored in the calls to speed up the death penalty, which usually blamed prisoners for abusing their rights.
As the GOP bill continued to advance that spring, the White House was planning PR events to blunt its political impact. “Our strategy on crime has always been to associate ourselves with police officers,” Rahm Emanuel and Bruce Reed wrote to Clinton in March, urging him to “bolster this image.” But then, suddenly, everything changed.
On the morning of April 19, 1995, a massive explosion rocked the Alfred P. Murrah Federal Building in Oklahoma City, killing 168 people and injuring hundreds more. On the ground days later, Clinton gave a powerful eulogy — PR events were no longer needed. It was now up to the president to keep Americans safe, not just from criminals, but from terrorists. Dropping its work on the GOP crime bill, Congress vowed to pass a new counterterrorism bill by Memorial Day.
But at least one key criminal justice priority survived. On the Sunday after the Oklahoma City bombing, Clinton appeared on 60 Minutes, calling for the perpetrator to be executed. The 1994 crime bill had expanded the death penalty “for purposes such as this,” he said. “If this is not a crime for which capital punishment is called, I don’t know what is.” Asked by co-host Ed Bradley how he could deliver on his promise that “justice will be certain, swift and severe,” Clinton called for speeding up death penalty appeals. “Congress has the opportunity this year to reform the habeas corpus proceedings,” he said. “And I hope that they will do so.”
If it was unclear how proposals to shorten appeals for state prisoners related to federal terror cases, prosecutors nonetheless applauded Clinton’s remarks. In a letter to the White House, a bipartisan group of state attorneys general warned that failure to overhaul habeas corpus would endlessly delay justice for “such acts of senseless violence” and undermine “the expression of our level of opprobrium as a nation for acts of terrorism.”
Almost a year later, on April 24, 1996, a signing ceremony took place on the South Lawn of the White House. “In a presidential election year,” the AP reported, “it was an opportunity for a warm display of bipartisanship on a sunny, spring day.” The New York Times described “the Marine band playing and American flags whipping in the breeze.”
“We send a loud, clear message today all over the world, in your names,” the president told families in attendance whose loved ones had died in Oklahoma City. “America will never surrender to terror.” Then he signed the Antiterrorism and Effective Death Penalty Act.
A calendar hangs inside a prisoner’s cell on death row at the Georgia Diagnostic and Classification Prison, Dec. 1, 2015, in Jackson, Ga. Photo: David Goldman/AP
A calendar hangs inside a prisoner’s cell on death row at the Georgia Diagnostic and Classification Prison, Dec. 1, 2015, in Jackson, Ga. Photo: David Goldman/AP
TWENTY YEARS LATER, AEDPA has long been eclipsed as a counterterrorism measure by the USA Patriot Act, which was built on its foundations. As crime legislation, it remains relatively unknown, even amid renewed debate over Clinton’s other policies. But for people in prison, its legacy has been sweeping and harsh. For all the rhetoric that accompanied the signing of AEDPA, it has been most severely felt by state prisoners with no connection to terrorism — and especially those who insist they are innocent.
AEDPA is most notorious for its impact on death penalty cases. “I suspect that there may well have been innocent people who were executed because of the absence of habeas corpus,” said former D.C. Circuit Judge Abner Mikva, a Carter appointee who later served as White House counsel in 1994 and 1995. For Mikva, who turned 90 this year, his failure to stop so-called habeas reform is one of the major regrets of his career. He still recalls his time as a young law clerk for U.S. Supreme Court Justice Sherman Minton in the 1950s; when habeas petitions would reach his desk, Mikva said, “I saw how complicated it was for him to review these handwritten records — which is what they had at the time — and how uncertain some of the convictions were.”
But AEDPA’s reach spans much further than death row. For anyone wrongfully convicted — whether they are actually innocent or the victim of an unfair trial — the law presents a daunting barrier: a one-year countdown clock for federal review that begins the moment state-level appeals have run out. For New York exoneree Jeff Deskovic, who was in prison when AEDPA passed, the new law “filled me with terror.” Deskovic had given a false confession as a teenager to the rape and murder of a classmate following hours of punishing police interrogation in 1989. He was sentenced to life.

“I was writing a bunch of letters trying to get help,” he recalled, when under AEDPA, “the situation became more dire.” Amid the confusion over how the law applied to old cases — for prisoners like Deskovic, who had exhausted his state appeals, the one-year countdown began upon enactment of AEDPA — his lawyer missed the April 24, 1997, deadline by four days. The district attorney argued that his petition should be dismissed on these grounds. The courts agreed (including the 2nd Circuit Court of Appeals, whose decision was co-writtenby Sonia Sotomayor). Deskovic spent six more years in prison before the Innocence Project convinced the new district attorney to test DNA in his case. It matched someone else and his conviction was vacated.
Deskovic was lucky to have an attorney at all. “I don’t think people realize that [non-death row] inmates are not provided with attorneys in federal court,” Deskovic said. Although AEDPA contained no promise of competent counsel in the end, people on death row are entitled to post-conviction representation. Others are often left to file pro se petitions, essentially representing themselves. “So now you have poor people who are often poorly educated — certainly not lawyers, certainly not having formal legal education — wading through this procedural thicket, and they can very easily get tripped up. And federal courts think nothing of saying, ‘Oh, you didn’t follow this rule? This procedure? We’re not looking at your case anymore.’”
Even more profound than the strict limits and deadlines it imposed in individual cases is the way AEDPA altered the balance of power between state and federal courts, favoring finality over fairness. Under AEDPA, federal courts may only grant habeas relief if a state court ran afoul of “clearly established federal law,” or if its ruling was rooted in “an unreasonable determination of the facts in light of the evidence presented.” In the oblique language of the law, this drastically raised the bar for overturning state convictions. Federal judges have been “pretty much shut out … from granting habeas relief in most cases, even when they believe that an egregious miscarriage of justice has occurred,” 9th Circuit Court of Appeals Judge Alex Kozinskiwrote in the Georgetown Law Journal last year. “We now regularly have to stand by in impotent silence, even though it may appear to us that an innocent person has been convicted.”
In the New York Times Magazine last summer, Emily Bazelon cited Kozinski as one of a growing number of critics who have called for the repeal of AEDPA. Federal judges “are now raising alarm that the law is systematically failing to provide the necessary safeguards against miscarriages of justice,” she wrote. There are many examples of the way AEDPA has been “cruel” and responsible for “much human suffering,” according to Kozinski. But Deskovic, who now runs a foundation to help the wrongfully convicted, points to the case of a man named Lorenzo Johnson as particularly egregious.
Johnson was convicted in Pennsylvania for his involvement in a 1995 murder. The state never claimed he was the triggerman or even that he had a direct role in the killing, yet at 22 Johnson was sentenced to mandatory life without parole. In October 2011, the 3rd Circuit Court of Appeals overturned his conviction, finding that, while Johnson might have been present at the scene, the claim that he intended to commit murder was “mere speculation” by the state. After 16 years behind bars, Johnson walked out of prison. With Deskovic’s help, Johnson found a job, reunited with his family, and pursued public speaking.
But in 2012, the U.S. Supreme Court reversed the 3rd Circuit’s ruling, holding that it had “failed to afford due respect to the role of the jury and the state courts of Pennsylvania.” Although the federal court had found insufficient evidence to keep Johnson in prison, the “state court of last review” disagreed — “and that determination in turn is entitled to considerable deference under AEDPA.” After four months of freedom, Johnson got a phone call from his lawyer telling him he had to go back to prison. “It was surreal and horrifying,” said Deskovic, who drove him back to Pennsylvania from New York. Along the way, Johnson made calls to friends and family, struggling to explain. To Deskovic, it was a grotesque ruling by the Supreme Court — a “rush to repudiate a line of reasoning by the lower federal court,” rather than an interest in justice. Johnson “shouldn’t have had to be returned back to prison on a technicality.”
Today Johnson writes articles behind bars that are published at the Huffington Post. In a recent article titled “Clinton’s Other Terrible Crime Bill,” he described the lasting impact of AEDPA. “Although I’m living through a nightmare, I’m also just one of many others,” he wrote, pointing out the record number of exonerations in recent years. “But these numbers have not even scratched the surface; there are many other wrongfully convicted people still in prison.”
President Bill Clinton sits between House Speaker Newt Gingrich, left, and Senate Majority Leader Bob Dole, right, during an April 26, 1995, meeting at the White House. Photo: Luke Frazza/AFP/Getty Images
President Bill Clinton sits between House Speaker Newt Gingrich, left, and Senate Majority Leader Bob Dole, right, during an April 26, 1995, meeting at the White House. Photo: Luke Frazza/AFP/Getty Images
IN THE RECENT debates about crime policy from the ’90s, a common Clinton defense has been one of unintended consequences, in which bad laws were born of the best intentions. But White House memos in the run-up to AEDPA make clear that Clinton had been thoroughly warned about its dangers. What’s more, news articles from the era betray the extent to which criminal justice policies were being crafted with political strategy in mind, rather than as serious solutions to crime. “It’s been the most careful political calculation,” former Deputy Attorney General Philip Heymann told theNew York Times after leaving the DOJ in 1994 — “with absolutely sublime indifference to the real nature of the problem.”
Indeed, with crime rates falling in the mid-90s, even the landmark features of the 1994 crime bill largely boiled down to posturing. In the New Republic, a former operative for Clinton’s 1992 campaign recalled the origins of the $8.8 billion COPS program that Joe Biden defends to this day: “Clinton had a big crime speech coming up. We had no idea how many extra cops would be a good thing. … Bruce Reed and I called [Ron Klain] from Little Rock. He said, ‘Would 100,000 be enough?’” Not surprisingly, in contrast to Biden’s boasting, the COPS program failed to deliver on its promises.
By the time AEDPA passed, Clinton had learned how effectively he could undercut the Republicans by co-opting their ideas on crime. Republicans were outraged. “We say habeas corpus, they say sure. … We say prisons; they say sure,” one frustrated GOP source complained to the New York Times as the 1996 election against Bob Dole approached. But critics pointed out that the costs of such a winning political strategy were far too high. “I have absolutely no faith that constitutional principles matter to this president when they emerge in a criminal-justice context,” American Civil Liberties Union legislative director Laura W. Murphy told the Times. AEDPA marked “a total collapse” on the issue.
In the end, the final question for Clinton when it came to gutting habeas corpus was how to spin it.
In an email to The Intercept, Klain defended the 1994 memo in which he sought to outmaneuver the GOP by proposing a tough new Democratic crime bill. “Clearly we were trying hard to stave off draconian legislation being advanced by the new Republican majority,” he wrote. As for habeas corpus, he drew a clear distinction between what the Democrats advanced and what ended up in AEDPA. “We explored a number of strategies to prevent their plans to gut appeal rights without providing adequate counsel,” he said. “The GOP version passed after I left.”
It is true that many Democrats fought against the version of habeas reform that passed as part of AEDPA. Among them was Joe Biden, who for years had hoped to pass a habeas reform law of his own. But his proposed legislation, most recently aimed at the 1994 crime bill, had been drafted with state prisoners in mind, meaning that “the Biden bill would not affect the case of Timothy McVeigh,” as Bruce Reed wrote to Clinton on May 3, 1995, two weeks after the bombing. “We should go along with some form of limits on appeals by federal prisoners,” Reed advised. In the margins, Clinton appears to have written “agree.”
Two days later, White House lawyer Chris Cerf sent a memo to his colleagues comparing the dueling versions of habeas reform before Congress. He analyzed their legal implications and their chances of passing. Biden’s bill, which included myriad provisions on the right to counsel, was “dead on arrival.” A measure brought forward by Senate Judiciary Chair Orrin Hatch as part of the terrorism bill introduced by Bob Dole was somewhat “less radical” than other GOP versions, but still “a very significant incursion into traditional habeas law.” Cerf raised particular caution over provisions that required higher standards of deference to state courts and made it harder for federal courts to grant evidentiary hearings. “For all practical purposes,” he wrote, these two combined “would eliminate federal habeas hearings.”
The White House should accept the Hatch bill on a set of strict conditions, Cerf wrote. Among them: the deletion of those troubling provisions and the addition of language to ensure “competent counsel at all phases of a capital case.” If Hatch refused, Cerf wrote, the White House should reject his proposal and instead aggressively try to “unbundle habeas from the counterterrorism bill,” saving the fight for another day. But he was not optimistic. “My sense … is that the habeas train is coming down the track and is unstoppable,” Cerf wrote, “especially after the president’s comments on 60 Minutes.” In an underlined sentence, he warned, “We do not want to put the president in the position of having to accept highly objectionable habeas provisions merely because they are tied to the counterterrorism bill.”
Indeed, while it would take almost a year to pass AEDPA, Clinton’s immediate call to speed up the death penalty days after the bombing had rigged the game from the start. As Democrats began threatening to throw gun control amendments at Dole’s terror bill to force the removal of habeas reform, Hatch seized on Clinton’s own rhetoric, declaring, “The American people do not want to witness the spectacle of these terrorists abusing our judicial system … by filing appeal after meritless appeal.” For a moment, Clinton stood his ground. In late May 1995, a month after the attack, he sent a letter to Dole arguing against passing habeas reform as part of the terrorism bill and stressing the need to protect “the historic right to meaningful federal review.” But less than two weeks later, on Larry King Live, Clinton suddenly reversed course. Habeas reform “ought to be done in the context of this terrorism legislation,” he said, “so that it would apply to any prosecutions brought against anyone indicted in Oklahoma.”
Inside the White House, Abner Mikva believed he knew what had happened. In early June 1995, just days after Clinton wrote to Dole, a delegation from Oklahoma City arrived in Washington. It included survivors of the bombing as well as grieving family members. They called themselves “the habeas group.” Convinced it would result in swifter justice for the terrorist attack, they were lobbying for streamlining death row appeals. Mikva and his staff had been trying at the time to convince the president to support a more cautious version of habeas reform put forward by the NAACP Legal Defense Fund. But after the visit, Mikva recalls, all bets were off. “He wrote on my memo, ‘No. Oklahoma.’ And that was the end of our efforts.”
YET, FOR ALL the political gamesmanship that paved the way to AEDPA, Mikva places the ultimate blame for the erosion of habeas corpus on the judiciary — particularly conservative U.S. Supreme Court Justice William Rehnquist. Rehnquist had long railed against the drawn-out appeals that delayed executions for making “a mockery of our criminal justice system.” Upon assuming the Supreme Court bench, in 1988, Rehnquist formed the Ad Hoc Committee on Federal Habeas Corpus in Capital Cases, naming retired Justice Lewis Powell Jr. as its head. Powell “came up with some very draconian changes to habeas,” Mikva recalled, “which were basically the substance of what ultimately passed.”
Federal judges at the time were alarmed by the recommendations. In 1989, at a Senate Judiciary hearing convened by Joe Biden, Judge Stephen Reinhardt of the 9th Circuit decried Powell’s report. “Finality and speed are the presumed objectives,” Reinhardt testified. “They seem to outweigh the concerns for fairness, justice, due process, and compliance with the constitution.” Citing his experiences with prosecutors who withheld evidence in capital cases — violations that can take years to discover — Reinhardt posed the question: “What can I do if someone comes in with affidavits and proof asking for relief from me when a man is about to be executed and the statute says I have no jurisdiction or authority to grant a stay or any habeas relief?”
Yet habeas reform efforts continued along parallel tracks in the legislative and judicial branches. By the time AEDPA passed, a series of Supreme Court rulings had already made it more difficult to challenge state convictions. (Indeed, in one 1995 White House memo to Clinton, Bruce Reed noted that Republicans had ultimately dropped habeas reform from the 1994 crime bill over fears that “a Democratic crime bill would undermine recent Supreme Court decisions that have strengthened prosecutors’ hands.”) To some legal scholars at the time, this made AEDPA mostly symbolic — an attempt by lawmakers to take credit for what the judiciary had already done.
In Congress, however, others saw the dangers posed by AEDPA. On April 17, 1996, during the final round of fighting in the Senate, New York Democrat Daniel Patrick Moynihan warned that the provisions curtailing habeas corpus would “introduce a virus that will surely spread throughout our system of laws.” One of just eight senators to vote against the law — Biden was not among them — Moynihan read from a letter to Clinton sent by four attorneys general. They urged him to “communicate to the Congress your resolve, and your duty under the Constitution, to prevent the enactment of such unconstitutional legislation and the consequent disruption of so critical a part of our criminal punishment system.”
But in the end, the final question for Clinton when it came to gutting habeas corpus was how to spin it. On April 23, 1996, the day before the ceremony on the South Lawn, Bruce Reed sent a memo to the White House staff secretary titled “Habeas language in signing stmt.” The remarks drafted for the president went into “far more detail” than they should, he wrote. “I realize this is a controversial issue,” Reed said, “but it is also one that could get us in trouble if we say more than necessary.”
AEDPA has fulfilled the very concerns Clinton brushed aside upon signing the bill.
With the presidential election in view, Republicans were already “blasting us with the charge” that Clinton’s re-election would “be a bonanza for criminals’ rights,” Reed wrote, somewhat ironically. He suggested a number of edits to minimize avenues for attack. Among them: “We should drop the sentence, ‘I am advised that one provision of this important bill could be interpreted in a manner that would undercut meaningful federal habeas corpus review and raise profoundly troubling constitutional issues.’ This sentence could be used against us,” he warned, “and doesn’t add anything, since we later say we don’t think it will be interpreted this way.”
Yet Clinton’s final remarks struck a defensive tone. His signing statement contained four paragraphs on the habeas provisions in AEDPA, assuring that they would neither “limit the authority of the federal courts” or “deny litigants a meaningful opportunity” to win evidentiary hearings. “Our constitutional ideal of a limited government that must respect individual freedom has been a practical reality because independent federal courts have the power ‘to say what the law is’ and to apply the law to the cases before them,” Clinton said. “I have signed this bill on the understanding that the courts can and will interpret these provisions … in accordance with this ideal.”
But Clinton was wrong. AEDPA has instead fulfilled the very concerns he brushed aside upon signing the bill. It is a law “misconceived at its inception and born of misguided political ambition,” as Judge Stephen Reinhardt recently wrote, some 25 years after testifying before Congress, “and repeatedly interpreted … in the most inflexible and unyielding manner possible.”
Ironically, AEDPA had little bearing in the end on the case of Timothy McVeigh, whose relatively swift execution in 2001 had more to do with political will than stringent new review standards. Nor did AEDPA solve the problem its supporters claimed it would address in the first place — federal court dockets remain backlogged and prisoners spend longer awaiting execution than ever.
But in a sense, the cruelest irony is how AEDPA has affected those who are not on death row yet nonetheless face the prospect of dying in prison on dubious grounds. Ignored by those who championed the law — and still largely invisible from the debate — they have been no less affected by its legacy. As Lorenzo Johnson wrote from a prison cell last month, “AEDPA has been devastating for wrongfully convicted prisoners and their families. Reform is long overdue.”