As I write this armed protestors are playing a deadly game of chicken with the FBI in Eastern Oregon and opinions on the situation are furiously flying.

Some commentators focus on the race of the protesters, some on their religion, others are concerned about guns, cattle, land use, rural culture, politics, hypocrisy, the sentiments of local people in Burns, arson, Ferguson, Occupy Wall Street, al-Qaida, Daesh, Nazis, as well as the protesters’ preferences in snack foods and hats.

One point that is missing from the majority of opinion pieces is the primary cause of why Ammon Bundy and his group are motivated to such unwise and illegal action.

That primary cause is the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). Whatever you think of the man_in_the_maze_flickercurrent situation in the Malheur wilderness it is worth considering what this law is about because it affects all of us.

The Antiterrorism and Effective Death Penalty Act of 1996 was passed in the wake of the bombing of a Federal Building in Oklahoma, a terrorist act that killed 168 people.

AEDPA is a huge law with sections of statutes on restitution for victims of terrorism, funding for law enforcement against terrorism, restrictions on nuclear, biological and chemical weapons, international terrorism prohibitions, and criminal law modifications to counter terrorism.

Many of these statutes are good ideas, but two parts of AEDPA are very bad ideas leading to injustice without helping to stop terrorism.

Intelligent Americans should investigate and challenge AEDPA and policies that unjustifiably reduce our freedom.

One of the bad ideas is the suppression of habeas corpus rights. The other bad idea is allowing people to be convicted of terrorism for actions that are clearly not terrorism.

The opening section of AEDPA limits judicial review of appeals by defendants. The intention was to shorten the time between convictions and executions by making it harder for convicts to appeal their sentences.

The effect has been to obstruct the right to appeals overall.

This seems like a great idea to some people because it allows the government to carry out punishments more efficiently.

The common defense in favor of punitive efficiency is that limiting appeals prevents frivolous appeals. That is true, but it also prevents legitimate appeals.

What is a legitimate appeal? Well, the law is conducted by people, some of whom make mistakes or cheat or break the law themselves.

When a conviction is achieved by wrongdoing by the enforcers – such as lying, planting evidence, or mistaken identity – the individual has the right to defend themselves against the government.

That right is habeas corpus which is the foundation of all human rights, because if an individual cannot legally challenge what the government does to them, no civil right can be exercised.

That fundamental right, habeas corpus, is currently at its weakest point in American history.

AEDPA cast the first stone against habeas corpus in modern America. The Patriot Act of 2001 knocked that freedom to its knees. The Bush and Obama extra-judicial executive actions have rendered every American citizen nearly powerless against our bureaucracy with respect to judicial review (Reinhardt 2015).

I grieve the oppression of people who seek justice such as in Ferguson and Minneapolis, yet I tell you that as sadly as racism raises its ugly head, unchecked power is the the engine of racial and all injustice.

The second bad idea in the AEDPA is the government’s ability to convict people who are not terrorists of “terrorism.”

The concept of terrorism varies but you know what it looks like and I believe that most of us understand it to be intentional violence against civilians inWikinews_tag_terrorism service of a political agenda. There are many crimes and some of them are heinous, but most of them are not terrorism (Orye 2002).

This distinction matters because our government seeks special powers on the basis of protecting us against terrorism and we readily give it to them.

In fact our government has won the special power of the suppression of habeas corpus on the basis of protecting us against terrorism.

When government agencies expand those special powers to include acts that are not terrorism that power is no longer special, it is the norm and the law of the land.

The more crimes classified as terrorism the less freedom every individual has to challenge their government and the less our governmental agencies need to account for their actions.

AEDPA codifies the following as law; “Criminal Law Modifications to Counter Terrorism – Enhanced Penalties for Use of Explosives or Arson Crimes: Whoever maliciously damages or destroys, or attempts to damage or destroy, by means of fire or an explosive, any building, vehicle, or other personal or real property in whole or in part owned or possessed by, or leased to, the United States, or any department or agency thereof, shall be imprisoned for not less than 5 years and not more than 20 years, fined under this title, or both.”

This Counter Terrorism statute is the law under which the Oregon ranchers – the Hammonds – were convicted. Because of that they are held to minimum five year sentences despite the trial judge Thomas Hogan’s emphatic dissent.

“with regard to the Antiterrorism and Effective Death Penalty Act of 1996, this sort of conduct could not have been conduct intended under that statute…in addition, it just would not be — would not meet any idea I have of justice, proportionality. I am not supposed to use the word "fairness" in criminal law. I know that I had a criminal law professor a long time ago yell at me for doing that. And I don’t do that. But this — it would be a sentence which would shock the conscience to me.”
[District Court of Oregon Judge Michael R. Hogan’s remarks at the 2012 sentencing of Steven and Dwight Hammond].

Let’s agree for the moment that the Hammond’s are arsonists. They set fires that burned acres of wilderness. That’s illegal and they served time in prison and paid hefty fines.

Do you also think that they are terrorists?

I don’t think that they are terrorists in even the worst case description of their acts of arson.

Arson is a crime but should only count as terrorism when it is enacted to kill civilians for political purposes. Yet, the Hammonds cannot effectively appeal their convictions as “terrorists” because under the AEDPA law the rights of convicted terrorists are limited.

Let me put that last point another way. Here is the legal logic that AEDPA allows. You are charged and convicted as a terrorist. You do not think that you are a terrorist because you did not harm anyone or intend to, so you seek to challenge the “terrorist” charges. Yet you cannot legally challenge the “terrorist” charges against you because terrorists are not allowed to do so.

Well, that legal double-bind may make sentencing more efficient, but if this seems to you to serve justice, then I suggest that you will find gratification in reading Kafka.

The Hammond case is the result of a bad law that harms us all. The anti habeas corpus statutes of ADEPA should be repealed. The Supreme Court is divided on this matter and the outcomes depend much on our choices – such as elections and our voices.

The protesters in Malheur are in-part motivated by this injustice. It is an injustice, not just for two Oregon ranchers, but for all of us.

“Injustice anywhere is a threat to justice everywhere.”

It is also true that Ammon Bundy’s sovereign citizens have chosen the wrong way to protest their grievances. They should drop their guns, surrender and go to jail.

President Obama, who studied and taught constitutional law, should commute the extended sentences of the Hammonds.

Intelligent Americans should investigate and challenge AEDPA and policies that unjustifiably reduce our freedom.

In so doing we all should look for guidance to a moral and spiritual philosopher who’s birth we celebrate this week. Martin Luther King did not carry a gun. He led a transformation of America and the world for the better through his courage and words – among them; “Injustice anywhere is a threat to justice everywhere.”

Bibliography

Caplan, L. (2015, June 21). The Destruction of Defendants’ Rights – The New Yorker. Retrieved January 22, 2016, from http://www.newyorker.com/news/news-desk/the-destruction-of-defendants-rights

O’Bryant, T. C. (2006). The Great Unobtainable Writ: Indigent Pro Se Litigation After the Antiterrorism and Effective Death Penalty Act of 1996. Harvard Civil Rights-Civil Liberties Law Review, 4, 299-337.

Orye, B. R., III. (2002). The Failure of Words: Habeas Corpus Reform, the Antiterrorism and Effective Death Penalty Act, and When a Judgment of Conviction Becomes Final for the Purposes of 28 U.S.C. 2255(1). William & Mary Law Review, 44(1), 441-485.

Reinhardt, S. R. (2015). The Demise of Habeas Corpus and the Rise of Qualified Immunity. Michigan Law Review, 113(7), 1219-1254.

Young, R. (2006). Defining Terrorism: The Evolution of Terrorism as a Legal Concept in International Law and Its Influence on Definitions in Domestic Legislation. Boston College International and Comparative Law Review, 29(1), 3rd ser., 23-105.

Image Acknowledgements

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https://www.flickr.com/photos/generated/3409686604

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https://commons.wikimedia.org/wiki/File:Wikinews_tag_terrorism.png

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