POLITICS MAY 13, 1996
"I weep for you," the Walrus said:
"I deeply sympathize."
With sobs and tears he sorted out
Those of the largest size
Holding his pocket-handkerchief
Before his streaming eyes.
"He's very upset," says a senior administration official of President Clinton's decision to sign the "Effective Death Penalty and Public Safety Act of 1996." "It breaks his heart." On the one hand, Clinton was reluctant to go down in history as the president who signed the first statutory limitations on habeas corpus since Magna Carta; on the other hand, there was Oklahoma City. So, like Lewis Carroll's Walrus, who snuffled over the fate of the oysters even as he devoured every one, Clinton this week weepily girded himself for the signing ceremony. But never mind the tears. The "Public Safety Act" is the nastiest piece of legislation that Clinton has signed during his first term, and his failure to veto it will be a permanent stain on his presidency.
To assuage their jittery consciences, Justice Department officials are suggesting that the real villain in the drama that led to the terrorism bill was the unlikely alliance between the aclu and the NRA. Before Oklahoma City, the administration proposed a series of measures for expanding the FBI's power to fight international terrorism, including a good-faith exception for illegally conducted wiretaps and greater access to credit records. Waving the banner of Ruby Ridge, a coalition of liberal civil libertarians and conservative anti-federalists persuaded Representative Bob Barr of Georgia to sponsor an amendment removing the Clinton proposals. As soon as the amendment passed last March, the NRA withdrew its opposition to the terrorism bill, which sailed through the House and Senate with hardly any debate last week. "To me, the lesson is that an alliance between the radical right and the radical left serves the radical right," suggests a senior Justice Department official.
This narrative, however, omits two crucial protagonists: President Clinton and Senator Orrin Hatch. After the Oklahoma City bombing, Hatch saw a heaven-sent opportunity to enact the habeas corpus revolution that Republicans have been proposing for more than a decade. In an inspired bit of ambulance chasing, Hatch dragooned the parents of the Oklahoma bombing victims into endorsing his bill, even though none of them seemed to have a clue what "habeas corpus" meant. (One father confessed he thought it was a high-tech weapon for fighting terrorists.) Clinton, for his part, originally insisted in the wake of the bombing that habeas corpus reform had nothing to do with fighting terrorism. But last June, in one of the most egregious flip flops of his presidency, he announced on "Larry King Live" that habeas corpus reform "ought to be done in the context of this terrorism legislation." Two days later, the Senate obliged.
How radically will the "Public Safety Act" of 1996 change the law of habeas corpus as we know it? Senator Daniel Patrick Moynihan was perhaps a little rash when he compared Clinton's capitulation on habeas corpus to Lincoln's suspension of the Great Writ during the Civil War. Even after the habeas corpus act of 1867, habeas corpus was a relatively thin guarantee that someone couldn't be incarcerated without a judicial hearing in a court of competent jurisdiction. After the Supreme Court's Brown v. Allen decision in 1953, however, habeas corpus was transformed into a mechanism by which federal courts can review the substantive and procedural merits of every conviction (or death penalty) handed down by state courts. The "Effective Death Penalty Act" will essentially return the law to its pre-1953 condition, requiring federal courts to defer to the legal and factual conclusions of state courts, unless the state court determination involved an "unreasonable application of clearly established federal law" or was based on an "unreasonable application of the facts."
This will have no impact at all on fighting terrorists (all of whom are prosecuted in federal rather than state courts in the first place) but will greatly increase the possibility that ordinary defendants can be convicted or executed after a state trial that has been tainted with constitutional or factual errors. Nevertheless, the Rehnquist Court, on its own initiative, has been chipping away at habeas corpus over the past decade; and the Clinton-Hatch bill represents more of a coup de grace for the Warren Court's conception of habeas corpus than a drastic departure from the status quo.
Another land mine buried in the "Public Safety Act" will transform federal-state relations almost as radically as the habeas corpus reforms. Section 702 of the bill federalizes thousands of "assaults with a dangerous weapon" previously punished exclusively under state law, with sentences of up to thirty-five years in a federal prison. At the eleventh hour, on April 15, the conference committee deleted a requirement that the conduct had to be politically motivated. As the law stands, therefore, the only limitation on what may be the most dramatic federalization of state criminal law in American history is a requirement of criminal "involvement transcending national boundaries." But this could be satisfied by nothing more than evidence that the defendant used drugs imported from Mexico.
Finally, there are the immigration provisions. Previously rejected by bipartisan consensus, and smuggled in at the last minute by the conference committee, these provisions would allow the government to deport aliens based on secret evidence; would require the government summarily to exclude aliens who have entered the United States without inspection; and would allow the government to exclude aliens merely on the basis of their membership in illicit organizations. Even the current Supreme Court may well strike down these textbook violations of due process and the First Amendment.
It's an irony, and not a very amusing one, that a Congress that pretends to be concerned about states' rights and a president who claims to be devoted to civil liberties have together passed the most illiberal and statist crime bill since the McCarthy era. It will radically expand federal criminal jurisdiction while radically restricting federal courts' ability to review violations of federal constitutional rights. "If you're going to gut the courts and gut the Bill of Rights, you just have a naked federal government that will fulfill the worst nightmares of people who claim they don't want the federal government running everything," says Senator Russell Feingold of Wisconsin, one of only eight senators who found the courage to vote against the bill.
Who deserves more of the blame for this disgraceful law, Clinton or Hatch? "I like the Walrus best," said Alice: "because you see he was a little sorry for the poor oysters." "He ate more than the Carpenter, though," said Tweedledee. Well, said Alice, "they were both very unpleasant characters."