The Body and the State: Habeas Corpus and American Jurisprudence

6. Habeas Corpus and the Narratives of Terrorism, 1996–2004

Of all the antiterrorism initiatives now before the Senate, the one that bears most directly on the Oklahoma City tragedy is habeas corpus reform. —Robert Dole, in Martin, “The Comprehensive Terrorism Prevention Act of 1995” The criminal goes free, if he must, but it is the law that sets him free. —Mapp v. Ohio THE WRIT OF HABEAS CORPUS, once defined by a statute passed by the same Congress that drafted the Fourteenth Amendment, is now governed by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). On April 24, 1996, just five days after the first anniversary of the bombing of the Alfred P. Murrah Federal Building in Oklahoma City, Oklahoma, President Bill Clinton signed the AEDPA into law.1 Senator Robert Dole of Kansas had introduced the bill in the Senate, then called the Omnibus Counterterrorism Act of 1995.2 In the House of Representatives, Henry Hyde, then the chairman of the Judiciary Committee, said: “Habeas corpus is tied up with terrorism because when a terrorist is convicted of mass killings, we want to make sure that terrorist ultimately and reasonably has the sentence imposed on him or her.”3 Congressman Hyde left unsaid, though it is more than clear, that if 157 SIX Habeas Corpus and the Narratives of Terrorism, 1996–2004 habeas corpus is available, it could upset any sentence imposed on terrorists. Like the Supreme Court, Congressman Hyde reversed the writ’s historical legacy. Rather than stressing habeas’ capacity to expand individual liberty and check unlawful confinement, the congressional narrative emanating from the debate over the AEDPA focused on the postconviction problem of a writ that can free the guilty. A CONGRESSIONAL NARRATIVE ON TERRORISM With terrorism on the national political agenda by the mid-1990s, concerns over state court determinations of guilt easily evaporated as the prime reason for limiting habeas corpus review. The discourse of guilt and danger, which grew out of the weaknesses of the federalism defense, now had free reign. Indeed, the extent to which Congress wanted to retract habeas corpus protections for prisoners through a terrorism bill was a topic of extensive debate between the two parties during the mid-1990s.4 Senator Orrin Hatch, a Republican from Utah, made the habeas corpus-terrorism connection clear by concentrating on habeas’ ability to allow convicted criminals to petition for relief on “technical” issues of law, rather than on the substance of guilt or innocence . In fact, the senator from Utah had long been a critic of federal habeas corpus relief and had sponsored or supported numerous bills to restrict state prisoner access to the writ during his career, “only to see his proposals dropped from every successive anticrime measure.”5 In the Senate debate, Senator Hatch used the imagery, which the Supreme Court had created in the 1970s, when it exchanged federalism for tales of individual brutality and future dangerousness, of habeas corpus as a legal technicality not worthy of constitutional consideration for convicted criminals. The Supreme Court’s narrative of violence had made its way into the halls of Congress, as images of violent criminals-cum-terrorists abusing the system were front and center over the legacy of Oklahoma City. Necessarily , Senator Hatch omitted the federalism problem from the habeas petitioner ’s claim and focused on the inconvenience habeas corpus poses for the administration of justice in terms of future appeals and the doubt the writ casts on jury determinations of guilt. He wanted to impress upon the American public the degree to which habeas corpus and terrorism are intertwined, not just as legal matters but also in language, in light of events in Oklahoma City, the shooting down of an American airplane over Lockerbie, Scotland, in 1988, and the first attack against the World Trade Center on February 26, 1993.6 Refraining from using the traditional tropes involved in habeas cases— brutal murderers, repeat offenders, and sexual predators—Senator Hatch nevertheless kept close to the same language used in any murder trial that comes before a federal court on a habeas corpus petition, raising the specter of courts THE BODY AND THE STATE 158 releasing terrorists on constitutionally suspect grounds and of terrorists delaying their death sentences by constant petitioning. Senator Hatch said on the Senate floor, “The American people do not want to witness the spectacle of these terrorists abusing our judicial system and delaying the imposition of a just sentence by filing appeal after...