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Timothy McVeigh and Due Process
June 1, 2001

By James L. Hirsen, J.D., Ph.D.
contributor to

It is now official. Timothy McVeigh authorized his attorneys, Robert Nigh and Richard Burr, to seek a stay of execution. But a strange thing is happening. In both tone and commentary, media mouthpieces are handling this bout of news in a very peculiar manner.

It seems that some information providers are in the midst of a 180-degree turn in regard to the issue of the death penalty. Just compare the news coverage of execution-related cases in Texas during the Bush/Gore presidential campaign with the current saga.

Gary Graham was put to death in Texas during the height of the presidential campaign. In a one-week period, Graham had been involved in 10 aggravated robberies and the abduction and rape of a 57-year-old woman. He freely claimed these crimes as his own. However, he asserted that he never committed the Houston parking lot murder of Bobby Lambert. Unlike McVeigh, he consistently sought to avoid execution. He was unable, but he did manage to become a cause célèbre for death penalty opponents.

Never missing the opportunity to take full advantage of an emotionally packed incident, anti-capital punishment forces turned their focus toward death row inmates in Texas. They would use the Graham execution as a rallying point. The Reverend Jesse Jackson, representatives of Amnesty International, the Reverend Al Sharpton and Bianca Jagger all raced onto the scene to protest the application of the death penalty. The hybrid news/entertainment shows displayed network hosts wringing their hands over Graham's and others' executions.

Now switch scenes to Timothy McVeigh. In reporting on the pending execution, the fourth estate is giving observers the distinct impression that it has joined hands with the government. One continuously hears variations of the refrain "Let's get it over with."

It is heartening to see sympathy focused upon the victims for a change, but the issue at stake here is far more important than the individual it involves. Timothy McVeigh committed a despicable and heinous act. But the American system, with its respect for individual sovereignty, seeks transcendent justice by excluding distinctions as to the nature of a defendant's act.

The phrase "due process" concerns the notion of Justice, which is referred to in the very first sentence of the Constitution. The Preamble makes clear the specific purposes for which this social contract was completed. It also states what we the people wish to accomplish after we form our Union. We seek to "establish Justice."

The Justice ideal is circumscribed by the Fifth Amendment to state that "No person shall be ... deprived of life, liberty, or property, without due process of law." This sentence begins with the words "no person" to include all individuals who stand accused of any and all crimes, without regard to their despicableness or gravity.

America's experiment in liberty moved beyond the notion of cruel and unusual punishment of defendants. A novel concept was actualized: that government would be restrained from interfering in those spheres of natural rights, the most important of which were life, liberty and property.

On several occasions, the FBI has insisted to Mr. McVeigh's lawyers that all relevant documents have been produced. These statements lost credibility with two separate discoveries of approximately 4,000 pages of material. Recent statements of former FBI agents, that evidence may have been kept from McVeigh's lawyers through inappropriate routing, only cast further doubts on the process and our system of justice.

It is more than disappointing that, through John Ashcroft, Louis Freeh and other government officials, the Bush administration is taking the position that these late disclosures will not affect McVeigh's case. The administration is also indicating that any further delays in carrying out the execution will be resolutely opposed.

All the while, members of the conventional press are creating an atmosphere that seems intended to dissuade anyone from questioning the propriety of the government's handling of the case. Even prominent members of the media who are typically associated with conservatism are bringing up such inquiries in an apologetic manner.

Real reality check here. Questioning the actions of government officials in this situation is not delusional, paranoid or radical. It is wholly justified. It is altogether logical. It is brimming with that oft-neglected quality called common sense.

It is perfectly understandable for people to question whether the FBI has now actually produced all of the available evidence. The same representations currently being made were made in the past. Supposedly, that's all the documentation there is. Maybe. Maybe not.

It is completely normal to ask whether any evidence has been intentionally or unintentionally destroyed. It is rational to ask questions about the financing, masterminding and collaboration that may have been involved with this horrible crime. If there ever were a case where the people have a right to know, this is the definitive one.

The Bush administration would do well to stand up and admit that the cynicism and mistrust of the Justice Department is deserved, particularly in the light of the previous administration's record. Memories of Ruby Ridge, Waco and Elian Gonzales still hover diffusely over our landscape.

Representatives of the Justice Department should sit down with McVeigh's lawyers and agree to halt the execution, if for no other reason than to enlist McVeigh's assistance in unearthing something that the American people must obtain in order to achieve the closure they crave. Truthful answers to reasonable questions.

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James L. Hirsen, J.D., Ph.D.

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