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Strange as it may seem, Timothy McVeigh and George W. Bush shared the same analysis of McVeigh's execution Monday morning, June 11, in Terre Haute. The Oklahoma City bomber, intoned Bush, "met the fate he chose for himself six years ago"--the perfect mirror of McVeigh's own vision of himself as "the master of my fate," in his citation of William Ernest Henley's "Invictus."
The notion of "fate"--a predetermined outcome--sanitizes state-sponsored killing even as it fulfills McVeigh's megalomaniacal delusions. But fate had nothing to do with it. Death sentences are a matter of caprice rather than legal predetermination, as evinced by the twenty-one of twenty-three federal death-row inmates remaining in Terre Haute whose "fate" was to be born nonwhite. Myth: "The severest sentence for the gravest of crimes," as Bush declared that Monday, employing McVeigh as a handy fig leaf for a federal death row even more racially out of kilter than its state counterparts. Reality: The capital trial norm remains "the death penalty not for the worst crime, but the worst lawyer," in the words of litigator Stephen Bright.
One salient political and legal fact received scant consideration Monday: Because it was a federal execution, McVeigh's killing was the first in two generations on behalf of all of us. But "all of us," or even the majority of us, no longer support the death penalty. The government has gone back into the killing business at the very moment when the national capital punishment consensus has eroded, as indicated by polls showing support for death sentences slipping below 50 percent if replaced by life terms without parole. McVeigh's execution was supposed to turn this trend around. Instead, the FBI's documents blunder and the generally sordid spectacle from Terre Haute only fed public unease.
Sanitizing was pretty much the universal order of business Monday. The news media made much of their sensitivity to Oklahoma City's survivors. But only the Daily Oklahoman consistently noted the diversity of survivor opinion on McVeigh's execution, and among broadcasters only KWTW, an Oklahoma City station, reported that nearly a third of the 325 people who had reserved chairs for the closed-circuit telecast elected not to show up. And only the Chicago Tribune has bothered to report--in an interview with an anesthesiologist shortly before McVeigh's original execution date in May--that lethal injection deaths like McVeigh's are often far more painful than they may appear to witnesses. The closed-circuit telecast of McVeigh's killing also offered powerful ammunition against the argument from some leading abolitionists that public broadcasts of executions would lead to widespread outrage against them. "It was such a peaceful death. That made it more palatable," witness Archie Blanchard said on NBC, after confessing that before the telecast it had been "hard to think about being there."
Also missing from press coverage was any recognition of McVeigh's forgotten conspirators. Not John Doe #2, but the wide range of "mainstream" right-wing politicians and broadcasters and publishers and gun lobbyists who exploited the Branch Davidian deaths in Waco with wild conspiracy theories, ratifying McVeigh's delusional rage and naming his enemy. Just a few of those sharing collateral guilt: the National Rifle Association, which not long before Oklahoma City called the Bureau of Alcohol, Tobacco and Firearms "jack-booted government thugs, federal agents wearing Nazi bucket helmets and black storm trooper uniforms to attack law-abiding citizens"; Representative Helen Chenoweth, who declared that America's national parks had been taken over by the United Nations; Senator Bob Smith, who temporarily dropped his GOP affiliation in favor of the paranoid, antigovernment populists of the US Taxpayers Party; and antichoice fanatics who pointed the way to Oklahoma City with their abortion clinic bombings in the early nineties. It is easier to treat Tim McVeigh as an inexplicable aberration who can be evicted from history than to recall just how widely evident were obsessions like his.
President Bush and Attorney General Ashcroft now turn their attention to Juan Raul Garza, scheduled for execution on June 19. In between, Bush traveled to Europe, arriving in Spain, which was in an uproar over a falsely convicted Spanish citizen recently released from Florida's death row. America's death penalty has for years baffled our European partners, but it is only now becoming a serious diplomatic and political issue. France is refusing to extradite Buffalo abortion doctor shooter James Kopp until prosecutors agree to spare him from capital charges, and Germany is suing the United States over the execution of a German national who was never informed of his consular rights. In Ireland, voters on June 7 overwhelmingly approved a referendum permanently abolishing capital punishment from the country's Constitution. Capital punishment now isolates the US abroad as it divides Americans at home. The McVeigh execution, instead of marking a new era of federalized capital punishment, may turn out to be the high-water mark before the long-overdue retreat of the capital punishment tide.
Now that Timothy McVeigh has been executed, I suppose we're all supposed to stop talking about it--to "enjoy closure," a bit like the election.
But McVeigh's execution was troubling on so many levels, it's hard to know where to begin. It was alarming to watch the procedural impatience, the official "just get it over with" mentality, despite defense lawyers' not having had a chance to go through more than 4,000 pages of FBI documents that no one disputes ought to have been turned over before McVeigh's trial.
It was distressing to hear the semantic shiftiness of our President as he described the event. To us individualists at home, he said that it was McVeigh who "chose" this method of reckoning; to a European audience it was "the will of the people in the United States." Like some libertarian Pontius Pilate, Bush washed his hands of any responsibility, skillfully uncoupling the role of the executive from execution. It's bad enough to have a death penalty; it is positively chilling when the chief poohbah shrugs it off as though helpless, assigning federally engineered death to forces beyond him.
It was incredible to see anti-death penalty commentators apologizing constantly, always having to blither "of course no one condones his actions"--as though arguing for life imprisonment made one the squishiest, most bleeding-heart of moral equivocators. As a New York Times commentary observed, "Experts said it was the wrong case to debate--many people who do not approve of the death penalty wanted Mr. McVeigh to die."
Yet if one really wants to test the commitment of a civilization to its expressed principles of justice, the McVeigh case is exactly the right case to debate. There was little question as to his guilt (even if the question of conspiracy remains an open one in some quarters), his crime was inexpressibly reprehensible and he maintained a demeanor of controlled, remorseless calculation to the end. In other words, it is precisely the dimension of his evil that presses us to consider most seriously the limits of state force. The question is whether we want to license our government to kill, rather than just restrain by imprisoning, the very worst among us.
Much recent debate about capital punishment has focused on probabilities: the repeated demonstration that "beyond a reasonable doubt" is a matter of considerable uncertainty and outright error. I have recommended before Actual Innocence by Jim Dwyer, Barry Scheck and Peter Neufeld, and I do so here again. These lawyers' work with the Innocence Project has led to dozens of releases from death row and to calls for moratoriums in states where pro-death penalty sentiment once ran high.
There is also the question of disparate impact, particularly upon minorities and the poor. "There are no racial overtones in [McVeigh's] conviction," wrote the New York Times in an editorial. Perhaps that's true if considered in a vacuum, but certainly not with regard to its procedural legacy. If the FBI couldn't get right the most important and supposedly most careful investigation in its history--and still no stay was granted--then there is no hope in any other case. McVeigh's "nonracial" fate, moreover, will surely be invoked highhandedly in all those more routine, less highly scrutinized cases. The fact that of the remaining federal death row inmates only two are white is, according to John Ashcroft, merely "normal." For more on this aspect of the debate, I recommend reading Legal Lynching: The Death Penalty and America's Future, by the Rev. Jesse Jackson, Representative Jesse Jackson Jr. and The Nation's own Bruce Shapiro. Forthcoming from The New Press, it is an eloquent argument against the inequity of the death penalty's administration and makes a compelling case against its violent irreversibility, its unredeemable finality as pursued by prosecutors, judges and juries who are, after all, far from all-knowing or divine.
One of the saddest parts of the McVeigh saga was listening to the endlessly amplified testimonials of those survivors and family members whose sentiments were premised on vengeance being "mine" rather than the Lord's. One woman wished the electric chair had been used, because it would have been more painful. Another said, "I think bombs should be strapped on him, and then he can walk around the room forever until they went off and he wouldn't know when it would happen."
Such traumatized expectations led to predictable disappointment. "I really wanted him to say something," said one witness. "I wanted him to see me," said another. "I thought I would feel something more satisfying, but I don't," said a victim's son. "For him just to have gone asleep seems unfair." This sort of desire for "more" leaves us poised on the edge of an appetite for re-enacted violence and voyeurism. Given the horrific losses McVeigh's crime incurred, this primal hunger can be almost seductive--a howl of mourning very hard to resist, never mind debate. But it is dangerous if it allows us to lose sight of the fact that the debate we must have is, again, about the limits of state force, not about devising the perfect mirror of each victim's suffering.
But the bottomlessness of that individual trauma is not something we can afford to ignore either. For a wise and extremely moving reflection on this dimension, I recommend Susan Brison's Aftermath: Violence and the Remaking of a Self, forthcoming from Princeton. Brison, a Dartmouth College philosophy professor who was raped, strangled and left for dead, analyzes the post-traumatic stress syndrome that still colors her life and reflects on the resilience needed to carry on. "Trauma," she writes, "destroys the illusion of control over one's life. It fractures the chronology of a life's narrative--not in the way a stopped watch makes time look like it's standing still, but like the thirteenth chime of a crazy clock that throws everything that came before into question."
"9:03" reads an inscription on the Oklahoma City National Memorial. Would that we could undo that awful moment in Oklahoma City by sacrificing McVeigh's one life for all the others, but the difficult paradox of healing is having to live on and through that wilderness of grief with no illusion of control.
For more information, see our Death Row Roll Call.
For more information, see our Death Row Roll Call.
The leftists organizing in Vermont since the 1970s prepared the ground for James Jeffords's jump, and he never would have done it without them. In the 1970s and 1980s Democrats howled with fury when Vermont's Progressive Party said that no matter what the short-term consequences, the important political task was to build a radical, third-force movement in the state.
In 1988 this progressive coalition backed Bernard Sanders, then the mayor of Burlington, in a run for Vermont's single Congressional seat. Democratic liberals raised the "wrecker" charge, saying the Sanders intervention would cost the Democrats votes and put in a Republican. It did. Then, two years later, Sanders ran again against the incumbent Republican and won. Creative destruction worked.
Without decades of work by radicals, nourishing the propriety of independent politics in Vermont, would Jeffords ever have jumped the Republican ship and handed control of the Senate back to the Democrats? I don't think so.
A couple of weeks ago someone sent me an article by Todd Gitlin and Sean Wilentz, published in an obscure journal called Dissent. Since Gitlin's prime political function for years has been to fortify respectable opinion about the impropriety of independent thinking, I knew what to expect, particularly since he was in harness with Wilentz, a truly hysterical proprietarian.
Sure enough, it was an attack on those who voted for Ralph Nader, tumid with a full-inventory parade of every cliché from the past forty years about the folly of radical hopes. Want a taste?
Numbers aside, there is a deeper force at work, behind the delusion that the masses hanker for radical change that Gore would not give them--a purist approach to politics. This all-or-nothing approach, allergic to democratic contest and compromise, is rooted equally in American self-righteousness and traditional left-wing utopianism. It is as if by venting one's anger, one were free to remake the world by willing it so...
Yup, this pompous cant translates into the single, finger-wagging admonition, "You should have voted for Al Gore," the latest variant on Gitlin's one-note career sermon about voting for Hubert Humphrey in 1968. (What is it about these Humphrey lovers? Vermonter Marty Jezer, another sermonizer about main-chance political propriety, recently lashed out at CBS in his column in the Brattleboro Reformer for what he denounced as excessively hostile and prejudicial interviewing of baby-killer Bob Kerrey! The lust to be respectably "fair," whether to HHH or Kerrey, leads to some astonishingly ridiculous postures.)
In Vermont the Republican Party is pretty much dead. Jeffords should sign up right now as a member of the Progressive Party, with whose political positions he has some things in common. Of course Jeffords, at least in his latest incarnation, is truly an independent, whereas Sanders is effectively a Democrat.
Now let's see how much fortitude the Democrats on the Hill have in contesting Bush and Cheney. They no longer have the alibi of the Republicans' controlling the White House and both chambers. Footnote: The Nation's editor, Katrina vanden Heuvel, wishes it to be on record that she takes exception to the description of Dissent as "obscure." I suggest a poll of the American people.
More on the Gandoo Man
In a recent column I described how the Chicago police have declined the request of a gay Pakistani poet to hit his supposed assailant, Salman Aftab, with a hate-crimes charge. Ifti Nasim claims Aftab called him a faggot bottom and lunged at him with a knife. For some of Chicago's gays it's become a very big issue. The Chicago Anti-Bashing Network prompted the ACLU's Pamela Sumner to write a three-page letter to State's Attorney Dick Devine detailing why she felt he should pursue hate-crimes charges in Nasim's case. Devine has refused to do so.
The cops and Devine are quite right. It turns out that the initial quarrel between Nasim and Aftab wasn't about the former's sexual orientation but about an article he'd written. Aftab never attacked Nasim with a knife (though Nasim insists he'd gone to the kitchen to get one). And Nasim put up Aftab's bail money, though he still wants him hit with a hate-crimes charge for calling him an insulting sexual term. The Chicago Anti-Bashing Network supports this position, which only goes to show how dementedly wrongheaded progressives are on the hate-crimes issue.
The Bush Menu
Poor Jenna Bush's travails with the absurd liquor laws of Texas take me back to my gilded youth at Oxford, when even the appearance of sobriety, at least at Keble, was an object of scandal and reproof from the better element. As it admits elsewhere in this issue, The Nation was a tad unfair relaying the claim that the Bush White House has ordered its chef to prepare genetically modified foods on some state occasions. The source of this claim was a piece by Jennifer Berkshire posted on Alternet. The Nation earnestly commented that "the demonstration smells like a paid political announcement for the agribusiness lobby."
I remember reading Berkshire's Alternet piece as an excellent little satire, and Jennifer confirms that this was indeed the case. Satire is always an uncertain weapon. My father once wrote an update of Swift's "A Modest Proposal," this time about inoculating people with the same sort of lethal strain that wiped out rabbits with myxomatosis. When it appeared in Punch furious letters poured in, denouncing him as an advocate of mass murder. Back in my days at the Village Voice I wrote a parody of conspiracy mongering and awoke to hear it being read out as serious news on WBAI by the late Samori Marksman. Since then I've stayed with the unvarnished truth, which is usually far more incredible than anything a satirist could dream up. For evidence see Marty Jezer's onslaught on CBS, noted above.
When a renowned abortion doctor opened a clinic in Ocala, Florida, he was seen as a public pest. So local authorities used the courts to get rid of him.
Thefts from other countries pale in relation to the looting of Russia, with
the indispensable assistance of the "Offshornaya Zona." The 1995 "loans for
shares" scheme transferred state ownership of privatized industries worth
billions of dollars to companies whose offshore registrations hid true owners.
More billions were stolen around the time of the August 1998 crash.
Insider banks knew about the coming devaluation and shipped billions in
assets as "loans" to offshore companies. The banks' statements show that their
loan portfolios grew after the date when they got loans from the Russian
Central Bank, which were supposed to stave off default. After the crash, it was
revealed that the top borrowers in all the big bankrupt banks were offshore.
For example, the five largest creditors of Rossiisky Credit were shell
companies registered in Nauru and in the Caribbean. As the debtors' ownerships
were secret, they could easily "disappear." Stuck with "uncollectable" loans
and "no assets," the banks announced their own bankruptcies. Swiss officials
are investigating leads that some of the $4.8 billion International Monetary
Fund tranche to Russia was moved by banks to accounts offshore before the 1998
The biggest current scam is being effected by a secretly owned Russian
company called Itera, which is using offshore shells in Curaçao and
elsewhere to gobble up the assets of Gazprom, the national gas company, which
is 38 percent owned by the government. Itera's owners are widely believed to be
Gazprom managers, their relatives and Viktor Chernomyrdin, former chairman of
Gazprom's board of directors and prime minister during much of the
privatization. Gazprom, which projected nearly $16 billion in revenues for
2000, uses Itera as its marketing agent and has been selling it gas fields at
cut-rate prices. Its 1999 annual report did not account for sales of 13 percent
of production. As its taxes supply a quarter of government revenues, this is a
devastating loss. Itera has a Florida office, which has been used to register
other Florida companies, making it a vehicle for investment in the US economy.
Best known as a place where the Air Force shoots satellites into orbit, the
Eastern Space and Missile Center--just south of the Kennedy Space Center in
Florida's Brevard County--would appear to fo
Enslave your girls and women, harbor anti-US terrorists, destroy
every vestige of civilization in your homeland, and the Bush
Administration will embrace you. All that matters is that you line up as
an ally in the drug war, the only international cause that this nation
still takes seriously.
That's the message sent with the recent gift of $43 million to the
Taliban rulers of Afghanistan, the most virulent anti-American violators
of human rights in the world today. The gift, announced last Thursday by
Secretary of State Colin Powell, in addition to other recent aid, makes
the United States the main sponsor of the Taliban and rewards that "rogue regime"
for declaring that opium growing is against the will of God. So, too, by
the Taliban's estimation, are most human activities, but it's the ban on
drugs that catches this administration's attention.
Never mind that Osama bin Laden still operates the leading
anti-American terror operation from his base in Afghanistan, from which,
among other crimes, he launched two bloody attacks on American embassies
in Africa in 1998.
Sadly, the Bush Administration is cozying up to the Taliban regime at
a time when the United Nations, at US insistence, imposes sanctions on
Afghanistan because the Kabul government will not turn over Bin Laden.
The war on drugs has become our own fanatics' obsession and easily
trumps all other concerns. How else could we come to reward the Taliban,
who has subjected the female half of the Afghan population to a continual
reign of terror in a country once considered enlightened in its treatment
At no point in modern history have women and girls been more
systematically abused than in Afghanistan where, in the name of madness
masquerading as Islam, the government in Kabul obliterates their
fundamental human rights. Women may not appear in public without being
covered from head to toe with the oppressive shroud called the
burkha , and they may not leave the house without being accompanied by
a male family member. They've not been permitted to attend school or be
treated by male doctors, yet women have been banned from practicing
medicine or any profession for that matter.
The lot of males is better if they blindly accept the laws of an
extreme religious theocracy that prescribes strict rules governing all
behavior, from a ban on shaving to what crops may be grown. It is this
last power that has captured the enthusiasm of the Bush White House.
The Taliban fanatics, economically and diplomatically isolated, are at
the breaking point, and so, in return for a pittance of legitimacy and
cash from the Bush Administration, they have been willing to appear to
reverse themselves on the growing of opium. That a totalitarian country
can effectively crack down on its farmers is not surprising. But it is
grotesque for a US official, James P. Callahan, director of the State
Department's Asian anti-drug program, to describe the Taliban's special
methods in the language of representative democracy: "The Taliban used a
system of consensus-building," Callahan said after a visit with the
Taliban, adding that the Taliban justified the ban on drugs "in very
Of course, Callahan also reported, those who didn't obey the
theocratic edict would be sent to prison.
In a country where those who break minor rules are simply beaten on
the spot by religious police and others are stoned to death, it's
understandable that the government's "religious" argument might be
compelling. Even if it means, as Callahan concedes, that most of the
farmers who grew the poppies will now confront starvation. That's because
the Afghan economy has been ruined by the religious extremism of the
Taliban, making the attraction of opium as a previously tolerated quick
cash crop overwhelming.
For that reason, the opium ban will not last unless the United States is
willing to pour far larger amounts of money into underwriting the Afghan
As the Drug Enforcement Administration's Steven Casteel admitted, "The
bad side of the ban is that it's bringing their country--or certain
regions of their country--to economic ruin." Nor did he hold out much
hope for Afghan farmers growing other crops such as wheat, which require
a vast infrastructure to supply water and fertilizer that no longer
exists in that devastated country. There's little doubt that the Taliban
will turn once again to the easily taxed cash crop of opium in order to
stay in power.
The Taliban may suddenly be the dream regime of our own war drug war
zealots, but in the end this alliance will prove a costly failure. Our
long sad history of signing up dictators in the war on drugs demonstrates
the futility of building a foreign policy on a domestic obsession.
President Bush's first list of nominees to the US Circuit Courts of Appeal, unveiled on May 8, was deceptively conciliatory and seeded with hard-to-oppose minorities and women, stealth conservatives and even a Clinton holdover, Roger Gregory, who has been sitting temporarily on the Fourth Circuit during the stalled appointments process. Gregory, a black lawyer, was a bone tossed to the left, but Bush's list contains enough red-meat conservatives to please his loyal base. Republicans already control eight of the thirteen courts of appeal and could dominate three more if Bush is permitted to fill even some of the current thirty-one vacancies. On the Fourth Circuit, where Republican judges now hold a 7-to-6 majority, and the Fifth, where they maintain a 9-to-5 edge, there are five and three vacancies, respectively.
For the Fourth Circuit, the farthest right of them all, Bush named two judges who should have no problem fitting in. Terrence William Boyle, a federal district judge in North Carolina and former aide to Jesse Helms, is so off the charts that in a recent voting rights case, Hunt v. Cromartie, the Supreme Court slapped him down two times in a row for ruling in favor of white voters trying to weaken black Congressional districts. The other Fourth Circuit nominee, Dennis Shedd, a federal judge in South Carolina, was a top aide to Senator Strom Thurmond. Both men have the support of Jesse Helms, who blocked all Clinton's North Carolina nominees to the Fourth Circuit on the ground that it didn't need any more judges. On the contrary, as a result of Republican obstructionism the federal courts have 100 vacancies and a backlog of 50,000 civil and 48,000 criminal cases at the district level. Now the brakes are off, and the GOP is rushing to pack the Fourth Circuit so it will remain a conservative bastion for years to come.
Two other Bush first-round nominees to the District of Columbia Circuit Court, Miguel Estrada and John Roberts, could shore up the GOP dominance of that body. Estrada is a Honduran immigrant who attended Harvard Law School. At age 39 he'll sit on a circuit with a tradition of promotion to the Supreme Court. Now a partner at Gibson, Dunn & Crutcher, he has left few footprints on the public record, but he's considered an Antonin Scalia clone. Roberts, a Washington lawyer, represents Toyota in a case challenging the Americans With Disabilities Act.
Among the women on Bush's list, Edith Clement, a federal judge in Louisiana and a member of the conservative Federalist Society, will add little diversity to the conservative Fifth Circuit. Defense lawyers consider her a hanging judge who always sides with prosecutors. And she has a record of "judicial junketeering"--accepting trips from conservative foundations and corporations that purvey a free-market economic philosophy.
For the Sixth Circuit, Bush nominated Jeffrey Sutton, also an active member of the Federalist Society, whose influence permeates the Administration's panel of judge-pickers. Sutton is a leader in the states' rights campaign and successfully argued a recent Supreme Court case that took away the right of disabled workers to sue state governments for discrimination.
The religious right will have a friend on the Tenth Circuit bench if the nomination of Michael McConnell, a University of Chicago-trained professor at the University of Utah College of Law, goes through. McConnell has argued pro-school prayer briefs before the Supreme Court and is antichoice.
The circuit courts are a crucial battleground in the Administration strategy of entrenching conservative policies in this country. As the Rehnquist Court steadily pares its docket--last year it issued only seventy-four signed opinions, compared with 107 in 1991-92--the circuit courts have become mini-Supremes, final arbiters on many important, enduring issues in their districts. Take the Fifth Circuit's drastic restriction of affirmative action in Hopwood v. Texas. The Supreme Court declined review, so that case is now the law in the three states (Texas, Louisiana and Mississippi) that make up the Fifth Circuit. The High Court also let stand the Sixth Circuit's decision in Equality Foundation of Greater Cincinnati, Inc. v. City of Cincinnati, which effectively ignored the Court's holding, in Romer v. Evans, that gays and lesbians may not be excluded from the protection of antidiscrimination laws. Greenville Women's Clinic v. Bryant, in which the Fourth Circuit upheld onerous state licensing requirements--which apply to no other physicians--for abortion providers, still stands.
Much has been made of the need for ideological balance on the Supreme Court, but the argument applies with equal force to the federal circuit courts. Democratic senators should not just play blue-slip politics--vetoing nominees from their state whom they oppose--they should insist on hearings to review the state of the appellate judiciary circuit by circuit. The goal should be an intellectually distinguished bench and, at least, an ideologically balanced one. Nominees should be approved or rejected in this context. Democrats must also demand a full-blown, in-depth examination of each nominee's record (if this is "Borking," make the most of it). Only those candidates should be confirmed who have demonstrated a commitment to protecting the rights of ordinary Americans against powerful institutions, whether government or private, and to our national ideal of civil rights, women's rights and individual liberties; who respect Congress's power to legislate to protect the health and safety of workers, preserve the environment and enforce antitrust law.
Republicans are already crying obstructionism, cynically ignoring their own blockade of centrist Clinton nominees. With the Administration's intentions now on the table, those who will be hurt most by them--minorities, women, working people, the elderly, environmentalists--should launch a missive attack on Senate minority leader Tom Daschle and the nine Judiciary Committee Democrats (who if they stay united have the power to thwart Bush's court-packing scheme) telling them to stand firm. (For information on what you can do, go to www.thenation.com.)