A Sharply Divided House of Representatives Passes Counterterrorism Bill

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Jimmy Landano was convicted of killing a police officer and sentenced to life in prison. On February 25, 1994, a New Jersey state court of appeal unanimously granted Jimmy Landano’s habeas corpus petition, overturning an 18-year-old murder conviction for fatally shooting Newark police officer John Snow. Although Landano was completely innocent of the crime, he was incarcerated for 13 years. Landano speaks briefly about his case and explains the term “habeas corpus.”

Bud Welch was one of the few to speak out publicly against the death penalty, when his daughter Julie, a translator for the Social Security Administration and Welch’s only child, was killed in the bombing of the Federal Building in Oklahoma City.

Welch explains that he feels victimized and taken advantage of, again, by politicians using him and other family members of the bombing victims to put forth their own agendas, without consideration for the wishes of the grieving families.

Nick Gess, director of intergovernmental relations at the Justice Department, says that the bill in question was set up, prior to the Oklahoma City Federal Building bombing, to “deal with the burgeoning threat of international terrorism.” He says that several weeks subsequent to the bombing, President Clinton added a “supplement” to the bill to “deal with some of the issues that are investigative needs, to cope with domestic terrorism issues, as well. These will assist not only in domestic terrorism cases, but in criminal and foreign counterintelligence matters, as well”. He states that they are intended to “protect American lives, without trampling on American Rights.”

Leslie Hagin, legislative director of the National Association of Criminal Defense Lawyers, states that the bill “did not strike that proper measure of being sensitive to civil rights and liberties.”

The guests debate the bill. Bud Welch closes the bill with a statement that though the bill was ostensibly passed in response to the Oklahoma City bombing, it was signed in haste, without considering any aspects relevant to the bombing.

Segment Subjects (keywords for the segment): House of Representatives, counterterrorism bill, habeas corpus, terrorism, legislation, civil rights, vested rights, Bill of Rights, Department of Justice, Congress, John Snow, Jimmy Landano, Bud Welch, Julie Welch, Nick Gess, Leslie Hagin, life imprisonment, wrongful imprisonment, suppression of evidence, “fighting terrorism is nothing but a smokescreen,” bombing victims, USA PATRIOT Act, liberty, antiterrorism, unconstitutional error, appeal, legal review

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This is a rush transcript. Copy may not be in its final form.

AMY GOODMAN: Well, we’re moving now into the counterterrorism bill segment. You may have heard the news yesterday about the House passing a so-called counterterrorism bill. In The Washington Post today, it says a sharply divided House passed a diluted bill intended to fight crime and terrorism, but President Clinton said it was too weak to be effective. He said this on Air Force One when he was flying to Washington from Jerusalem, where he pledged to help the Israelis fight terrorism. The measure passed on a 229-to-191 vote, one day after a coalition of conservative Republicans and pro-gun Democrats voted to remove key provisions, arguing they would have given too much power to federal law enforcement officials in the name of combating terrorists. It’s interesting that it characterizes pro-gun Democrats, because I think there were a lot of people in that coalition who are not pro-gun, but were very concerned about threats to constitutional rights and liberties of American citizens.

And we are now going to discuss the issue. We’re going to begin with one man who has a personal story to tell. One of the provisions that was not taken out of the House counterterrorism bill was the limitation on habeas corpus, the limitation on death row inmates’ rights to appeal. We’re joined now on the telephone from New Jersey by Jimmy Landano, and Jimmy Landano knows well what the criminal justice system is all about. He was incarcerated for 14 years, convicted of killing a police officer. And it was only after 14 years, after a long, uphill legal battle, that he was able to prove that he had not killed the officer.

Jimmy Landano, welcome to Democracy Now!

JIMMY LANDANO: Good morning.

AMY GOODMAN: It’s nice to have you with us. I want to let our listeners know that coming up, we are joined by Bud Welch, who’s from Oklahoma City. He owns a gasoline service station there. His daughter Julie was killed in the Oklahoma City bombing. He’s quite concerned about the counterterrorism bill. And we’re also joined by Leslie Hagin, who is legislative director of the National Association of Criminal Defense Lawyers. And she has been very involved in fighting the counterterrorism bill. And on the line with us from the Justice Department is Nick Gess. He is the director of intergovernmental relations at the Justice Department, very much a supporter of the original counterterrorism bill. And we’ll be having a debate on that issue, particularly around the issue of habeas corpus.

And, Jimmy Landano, why don’t we start by you telling us what habeas corpus is. No matter how much we hear it, I think people don’t understand it.

JIMMY LANDANO: Well, habeas corpus, what it actually does is it allows the federal court, to some degree, to oversee the state courts. I’m getting an echo on the phone; is that—ah, whatever. But what it amounts to is, if a state court convicts an individual, any individual—a misconception is that habeas corpus applies only to death penalty cases. Now, that’s a lie that the politicians would have us believe, because people have a thirst for blood. We want executions in this country. We want an eye for an eye and a tooth for a tooth. But the hab was put in place so that the sovereignties, the states themselves, when they wrongly convict—and, most of the time, knowingly wrongly—convict someone and sentence them to the rest of their life, or death, that there will be an independent court to take a look at it.

AMY GOODMAN: How did it help you in your case?

JIMMY LANDANO: Well, in 1976, I was arrested for the murder of a police officer. Contrary to the physical description of the killer by all witnesses, I was arrested, I was tried, I was convicted, sentenced to life plus 15 years. And all through that 13 years of incarceration, the prosecutors, the attorney general, all said that I was just whistling in the wind when I said there has to be some kind of evidence proving that I did not do this crime, because, first of all, I did not fit the physical description, which was the hardest thing to accept, and, second, you know, I had no knowledge of the crime. Eyewitnesses that were coerced or pressured, we found out 13 years later, had no reason to know why they were lying. And the state prosecutors and the attorney general, as I said, said there was nothing in their files to prove that anybody else was a possible suspect.

AMY GOODMAN: We have one minute before our break.


AMY GOODMAN: How did you ultimately—how did you ultimately use habeas corpus to get out of jail?

JIMMY LANDANO: Well, you don’t use habeas corpus. See, that’s a misconception. Habeas corpus is your right as an American citizen. It’s to make sure—that’s why we ran away from England—to make sure that someone else is looking in. Now, what happened was a judge signed an ex parte order in 1989. After all my appeals were done, the United States Supreme Court didn’t want to hear my case. In May of 1989, four months later, we found one document, a police report that an eyewitness had identified the real killer. We took that document back to a federal judge, who had denied me habeas corpus relief. He had deferred to a state court finding. That judge then ordered an ex parte order. The next morning at 9:00, United States marshals raided the police municipalities, including the Attorney General’s Office in New Jersey, and confiscated all the files in relation to my case. And lo and behold, one page after another in those files show that my photograph was shown to the eyewitnesses and was discounted, saying the hair wasn’t right, it was curlier, so forth and so on. Within two weeks, the conviction was thrown out. I was released the following day, which was July 28, 1989. And since that time, we still haven’t gotten any further as far as any documents from them, other than what we found.

AMY GOODMAN: Jimmy Landano, we have to take a break.


AMY GOODMAN: He’s telling us the story of how habeas corpus was a factor in his life, in his release. You’re listening to Democracy Now! We’re talking about the counterterrorism bill. And we’ll be back with Bud Welch, who will talk about the bill from his own personal perspective.


AMY GOODMAN: You’re listening to Democracy Now! I’m Amy Goodman. The counterterrorism bill, the original bill, was one of the centerpieces of the Clinton administration so-called counterterrorist strategy. President Clinton says he’s extremely disappointed with what has happened in Congress. We’re going to find out just what the bill was, what it is now. But before we go to our discussion, and particularly around the issue of habeas corpus—and we’ll be talking with the National Association of Legal—Criminal Defense Lawyers, as well as the Justice Department—we want to bring in Bud Welch, who is an owner of a gas service station in Oklahoma City, Oklahoma, and whose life was changed dramatically last year, when the Alfred Murrah Federal Building was blown up.

Welcome to Democracy Now!, Bud.

BUD WELCH: Good morning, Amy.

AMY GOODMAN: Morning. Why don’t you tell us what happened last year?

BUD WELCH: Well, I lost my 23-year-old daughter Julie. She was a recent graduate of Marquette University of Milwaukee in the summer of '94. And a month after I brought her home from Milwaukee, she got a job with the Social Security Administration. She was a Spanish translator for them. And she had only been there seven months. And the morning of the bombing, she had an appointment with a Mexican man that was—couldn't speak English, and his minister had brought him to Social Security. And Julie had walked from the rear of the building to the front of the building, the waiting area, for her appointment. And en route back to her desk with the two men, the bomb exploded. And their three bodies were found together. And Julie was my only daughter, and we were very, very close. It’s been a—it’s been a very traumatic thing getting through this. And, of course, you know, closure or getting through it simply isn’t going to happen.

AMY GOODMAN: What about this counterterrorism bill, that was hailed by the president as a way to prevent something like this from happening again? What is your feeling about that?

BUD WELCH: Well, my feelings about it—you know, we were victimized on April 19th of last year. And I almost feel like that I’ve been victimized again—if not victimized, certainly taken advantage of, because I think a lot of the—a lot of the congressmen, or a lot of the politicians, period, have used the family members of the victims to put forth their own agendas, without really any consideration for our feelings and for our wishes. And later, Leslie can correct me if I’m wrong on this, but I don’t think there’s a line in the entire bill that addresses fighting crime. I don’t think—I don’t think there’s any wording in the bill that comes up as more funding for, for example, public defense offices to get criminals off the street, have their trials fast, instead of them making bond—which I’m not opposed to them going out on bond, but I’m opposed to them staying out on the streets for a year and a half—waiting for their trial, because there is improper funding to expedite these trials. And I think that’s just wrong that these—that the innocent people that may hang this—have this hanging over their head for a year and a half, the guilty people are out on the street maybe committing more crimes. And I don’t think there’s anything in there to address that. And until we start addressing some of those issues, I think this fighting crime, fighting terrorism is nothing but a smokescreen.

AMY GOODMAN: Well, let’s bring Leslie Hagin and Nick Gess into this conversation—Leslie Hagin, legislative director of the National Association of Criminal Defense Lawyers, and Nick Gess, the director of intergovernmental relations over at the Justice Department. Why don’t we begin with Nick Gess? Why don’t you summarize what the bill intended to do and what’s happened to it?

NICK GESS: Thanks. What the bill intended to do was, first, it was sent up in February, several months before the Oklahoma City bombing, to deal with the burgeoning threat from international terrorism. Oklahoma City, I think, changed this country forever. I’ve never had a chance to talk personally with Bud Welch, but I have had a chance to deal with some of the Oklahoma City victims. And while their loss is obviously an absolutely personal one, I don’t think there’s anybody in this country who will ever—whose life wasn’t changed by that day. Several weeks later, President Clinton transmitted a supplement to the international terrorism bill to deal with some of the issues that are investigative needs to cope with domestic terrorism issues, as well. These will assist not only in domestic terrorism investigations, but in criminal and foreign counterintelligence matters, as well. They were a measured response, which are designed effectively to protect American lives without trampling on American rights. That was a precondition of what the president asked us to do when we drafted it.

AMY GOODMAN: “Trampling on American rights.” Leslie Hagin, that’s how you’ve basically described this so-called counterterrorism bill. What is your perspective on it, on—first, if you could tell us what your battle was about as the bill was going through Congress in the last few days, and who you’ve allied yourself with, and then, what it’s become?

LESLIE HAGIN: Well, the bill really did not strike that proper measure of being sensitive to civil rights and liberties. And it should tell us something, I think, that common ground on civil rights and liberties was found by groups as diverse as the American Civil Liberties Union; Amnesty International; the Friends Committee, the Quakers; the Irish National Caucus, headed up by a priest, Father McManus; the National Black Police Association; the Law Enforcement Alliance of America; and the National Association of Criminal Defense Lawyers; and, indeed, some gun groups.

AMY GOODMAN: The National Rifle Association, you were working with.

LESLIE HAGIN: The National Rifle Association, among others—really, the entire Second Amendment community.

AMY GOODMAN: What is your common cause with them?

LESLIE HAGIN: Well, the NRA has not been a friend of the National Association of Criminal Defense Lawyers in the past. In fact, last year, they were championing things that we were very much opposed to, and continue to be—for example, this habeas package, that is just awful, that is in this bill. You know, yesterday was a very, very disappointing day for us, as well, because of the way habeas was scapegoated, and, very unfortunately, the way the comments of the president of the United States, from Larry King Live of June 5th, 1995, a day or two before the Senate rushed through a terrible terrorism bill, on June 7th, just a month or two after the Oklahoma City bombing—those comments were waved around on the floor yesterday by the House.

AMY GOODMAN: What were the comments?

LESLIE HAGIN: To the extent—I think it was Chairman Hyde answering the concerns, I believe, that had been articulated by four former attorney generals of the United States—two Republicans and two Democratic appointees—who were saying that the bill is unconstitutional, the habeas package of the bill is unconstitutional, in their view. I understand they’ve communicated that concern to the president.

AMY GOODMAN: What’s unconstitutional about it?

LESLIE HAGIN: Well, for one thing, it would force federal courts, for really the first time, and there—this is an area somewhat subject to debate, but it’s certainly true that the federal courts have never been forced to defer to constitutionally erroneous state court decisions on matters of federal law at least since 1867.

AMY GOODMAN: What do you mean specifically? I mean, we’re talking with a lay audience here.

LESLIE HAGIN: No, I know. Specifically, if the state court made a determination, such as in Jimmy Landano’s case, that was unconstitutional as a matter of federal law—say, due process or what have you—this bill would force the federal courts on the habeas review to defer to that constitutional construction, even if—

AMY GOODMAN: To acknowledge—

LESLIE HAGIN: —even if the federal courts thought that it was wrong as a matter of constitutionality.

AMY GOODMAN: So, even if they say it’s wrong, they say they have to abide by the state law.

LESLIE HAGIN: They would have to—right, unless it was wholly unreasonable according to clearly established Supreme Court law. And as Nick knows, I’m sure, the Supreme Court cannot review very many cases. And, in fact, the Rehnquist court has already cut back significantly on people’s ability to get review anyway.

AMY GOODMAN: So this means that, for example, it’s not just death row inmates, but death row inmates will have less chance of having a fair federal review?

LESLIE HAGIN: Absolutely. This is happening at the same time that they are, in fact, gutting funding, not just at the trial level in death cases, which are all important, but at the post-conviction stage. This Congress gutted that funding a couple months ago, as well.

AMY GOODMAN: Nick Gess, can you explain this provision, why the president supports it?

NICK GESS: Certainly. And, in fact, I think it’s important to note that while the president has been—has very strongly supported the need for reform of habeas corpus and, more importantly, to assure that punishment for the guilty is swift and certain, there are provisions of the habeas law that we would prefer to have seen differently. And this is one of them. But that does not mean that, overall, as a conceptual matter, the president doesn’t support it and won’t sign a bill that contains it.

But the fact of the matter is, what we’re talking about here really is apples and oranges. I only know about the Jimmy Landano case from what I’ve read in the newspapers and, obviously, what I’ve heard today. But the fact remains that what appears to have happened in that case is that state and local authorities did not tell the truth during their own post-conviction, that is, habeas corpus, proceedings under New Jersey law. And those should have sufficed. It has been very clear law, Supreme Court precedent, in fact, since the mid-1960s, that a prosecutor has an absolute duty—even if not asked, has a duty—to turn over so-called exculpatory information—in other words, information which would tend to suggest that the person who has been accused didn’t do the crime. This bill wouldn’t change that, because this would have been newly discovered evidence or, at least as I understand, a factual formulation. Our concern here isn’t that people should be denied the ability to file a federal habeas petition after they have had all their state appeals, all their state habeas proceedings. Our concern is that those should be filed in a timely fashion and resolved in a timely fashion.

AMY GOODMAN: Leslie Hagin, you are shaking your head.

LESLIE HAGIN: Yeah, I really do want to address that. Unfortunately, that’s one of the myths that’s—no disrespect, Nick, but, unfortunately, it’s one of the things that we’ve heard as a response to our concerns about habeas corpus, this habeas corpus package of this bill, has been a response that sounds something like what I understand you just said, which is that this bill would still allow someone with newly discovered evidence to file a petition for federal review of habeas corpus. The question is: What can a federal court do with that piece of paper, that everyone, of course, has the right to file? The question is: What can a federal court do? And this bill guts the ability of federal courts to meaningfully review it. Newly discovered evidence, such as in Jimmy’s case or a federal case, if we want to look at—we want to look at the federal habeas, that blatantly reflected a subversion of this exculpatory evidence, evidence that tends to show someone’s innocence, if that came to light only years after the fact, after the deadlines have past, it’s true this bill says you can still file a petition—but only if you can show that but for that piece of hidden evidence, no fact finder, no one juror on 12, on a jury of 12, could possibly have found you guilty, if shifts the burden of presumption to the shoulders of the accused-convicted. And in non—life-and-death cases are the most important, but in non-death cases, folks don’t even have a statutory right to counsel. They’ll have to meet that burden, which is unmeetable—I clerked for a federal judge in the death belt, in Texas, and I know that’s an unmeetable standard even for a brilliant federal judge to find with a petition that’s been filed by able counsel. And again, we’re gutting the resources for even death penalty lawyers. It’s an unmeetable standard.


NICK GESS: Amy, to make that real clear, we’re not gutting it. The fact is, and it’s absolutely true, it’s going to be hard to do. We think it should be hard to do. We think it should be—

LESLIE HAGIN: Impossible.

NICK GESS: No, it’s not impossible. The fact of the matter is, it’s going to be very hard. It should be hard. It should be a high standard. We’re not talking about an accused; that’s the wrong term to use. We are talking about a convicted person, a person who has been found guilty beyond a reasonable doubt, either by a jury or upon a plea of guilty. And that’s a big difference.



AMY GOODMAN: Jimmy Landano, you wanted to say something?

JIMMY LANDANO: Yes, I definitely do.

AMY GOODMAN: You were convicted.

JIMMY LANDANO: Yes. You know, I take exception to that statement. Because a person is convicted does not make them guilty. That’s what we would love to have people believe. I mean, every day we are finding out more and more people have been convicted of a crime they did not commit and are released. But the big question I want to say is, the politicians and the attorneys for the government are acting like habeas corpus is releasing people every day by the tons. There are approximately 8,000 habeas corpus petitions by prisoners across this country filed each year. And I’ll be willing to bet that less than 200 individuals ever get any kind of relief. And that, again, does not mean that they are not innocent. A lot of them are innocent. A lot of people that were innocent went to their deaths. And what do we say when that happens? “Oh, all systems have flaws. There’s cracks in all systems.” You’re talking about taking someone’s life.

And nine out of 10 times, it’s because the unsavory characters that have been vested with serving justice play a dirty game at trials, during the investigations. Prosecutors and attorney generals are not rewarded for losing cases. They’re only rewarded when they win a case. And they have the machinery, so they do it as they damn well please, as I’m living proof, and there’s hundreds of individuals such as myself that have served 13 unnecessary years in a maximum-security prison, have lost my family, lost prime years out of my life, when individuals knew that they were standing before the court lying that I was the killer. And after 13 years, when we found those documents, what’s done then? Do you tell the prosecutor, “Don’t do it again. You know that was a Brady violation”? That’s not right. My thinking should be, when you catch a prosecutor doing something like that, then he has to serve day for day what the individual he illegally convicted.

AMY GOODMAN: We’re going to have to wrap up, and I wanted to get a final comment from Bud Welch out in Oklahoma City. Bud, when we talked earlier, you were concerned about a number of provisions of the bill that were cut out of the House bill but remain in the Senate bill around, for example, illegal wiretapping—


AMY GOODMAN: —or around increasing the scope of wiretapping.

BUD WELCH: Amy, rather than address that right now, what I would like to point out is that I’ve listened to this discussion for the last half-hour, and we have not talked about a single thing that has anything to do with antiterrorism or what were presented in Oklahoma City. You know, the haste in this legislation was because of the bombing in Oklahoma City and to have this all done and signed by April the 19th. But yet, here we are not—we’re not addressing any of those issues. I feel like, as a family member, that we have been misled, we have been lied to. And all of these other agendas have came forward, and they’ve passed this legislation, and they didn’t serve—they didn’t serve my family when they passed it.

AMY GOODMAN: Bud Welch, I want to thank you very much. We do have to go. Bud Welch, Jimmy Landano, Nick Gess and Leslie Hagin, thanks for being with us.

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