Clear and Present Danger


While Attorney General John Ashcroft champions the USA PATRIOT act as a remedy for the “clear and present danger” of terrorism, lawyers for Pennsylvania death row prisoner Mumia Abu-Jamal know full well that there is a clear and present danger within the bill itself. Abu-Jamal’s lawyers have learned first-hand about some of the true implications of anti-terrorism legislation.

In 1996, in the aftermath of the Oklahoma City bombing, the Anti-Terrorism and Effective Death Penalty Act (AEDPA) was passed with the express purpose of preventing acts of terrorism inside the United States. While the law failed to prevent 9-11, it succeeded in undermining the writ of habeas corpus. And now the law is a major stumbling block in Abu-Jamal’s appeal process.

Abu-Jamal, a journalist and author, is the subject of a now internationally known death penalty case, stemming from the 1981 shooting of Philadelphia police officer Daniel Faulkner. His case shows how anti-terrorism legislation can find its way into the mainstream of domestic criminal cases. On July 19, 2001, during a federal appeal hearing granted Jamal by the AEDPA, U.S. District Judge William Yohn rejected affidavits, including one purporting to be a confession from Faulkner’s true killer, Arnold Beverly, based on time limitations imposed by AEDPA. The affidavits were introduced as new evidence by Abu-Jamal’s legal team. However, the statute allows only one year for the presentation of new evidence, and there was a time lapse of more than a year between the “discovery” of the evidence and its presentation in court.

Abu-Jamal’s lawyers have argued that Mumia’s former defense team, dismissed by Abu-Jamal due to violation of attorney-client privilege issues, was to blame for the time lag. Nevertheless, the evidence was barred by AEDPA. Abu-Jamal’s legal team then pursued another challenge to his conviction by motioning to reopen the case in Pennsylvania state courts while the federal appeal was in limbo.

However, on November 21, 2001, Common Pleas Judge Pamela Dembe refused to act on the court appeal, again citing limitations associated with AEDPA. Her refusal to reopen a state appeal despite the Arnold Beverly confession has been described as flying in the face of common-sense morality. Her ruling means that the statute’s time limits supersede innocence or guilt.

On December 8, Mumia Abu-Jamal supporters gathered in Philadelphia to demand that the strict adherence to AEDPA be set aside and that the Beverly confession be heard in a court of law. That day, the clear and present danger to the protesters came from the police officers who allegedly assaulted and arrested the demonstrators. The question now arises as to whether or not this incident is a foreshadowing of what is to come in the wake of the PATRIOT Act.

Just as the 1996 legislation, passed under the cover of anti-terrorism, has had the most success in domestic criminal cases such as Abu-Jamal’s, the same insidious shadow looms over the recently signed PATRIOT Act. “The 1996 AEDPA was offered on the one-year anniversary of the Oklahoma City bombing and was labeled an anti-terrorism act, even though it had very little to do with terrorism,” said Stephen Bright, director of the Southern Center for Human Rights. “It gutted habeas corpus review for people accused of crimes and has not really been used with regard to terrorism.

“The same is true for the PATRIOT Act—people like John Ashcroft use times like this to load a bill with all sorts of repressive measures, and the politicians vote for them so that they can say that they are doing something to fight terrorism. It is much like the many bad laws passed supposedly to fight communism in times past,” said Bright.

Eliot Grossman, co-counsel in Abu-Jamal’s appeal effort, feels that while the 1996 legislation should be repealed, the current legislation is “even crazier.” Grossman said that, as in 1996, the current wave of legislation was passed under the guise of preventing terrorism when it cannot. “The AEDPA wouldn’t have stopped Oklahoma. If this [current] legislation had been in place before September 11, it wouldn’t have stopped it. It’s not dealing with the problem it’s supposed to solve. The people who pulled off 9-11 were not deterred by the death penalty. It is not an effective deterrent against those kind of people. Obviously it is not designed to stop terrorism.”

“Just as the 1996 bill had an impact on cases such as Mumia Abu-Jamal’s and many others currently on death row, the 2001 legislation could affect future capital cases,” said Brenda Bowser of the Death Penalty Information Center. The PATRIOT Act is primarily concerned with the gathering of domestic intelligence; it looks at actions before the commission of any crime, as opposed to collecting evidence after the crime takes place, and it allows a lot of leeway in the language of what constitutes intent. With its powers for electronic surveillance of all kinds, it has a broader scope than the 1996 law. “There are real possibilities that this law will prompt widespread surveillance and a widespread diminution of individual freedoms,” said Donna Lieberman, interim executive director of the New York Civil Liberties Union.

“The purported purpose of the law may be to fight terrorism,” said Chris Adams of the National Association of Criminal Defense Lawyers and of the Southern Center for Human Rights. “However, terrorism isn’t outlawed per se; it is the specific acts that are banned or new crime-fighting methods that are sanctioned. Thus, once these laws are passed, all of us are subject to being prosecuted under the laws.”

“The 1996 Anti-Terrorism Act and the accompanying Immigration Reform Act,” said Bright, “did virtually nothing to combat terrorism; instead they limited the power of the courts to review criminal and immigration cases and cut back drastically on the constitutional protections available to those convicted of crimes or subject to the immigration laws. I think the same thing has happened this time.”

The broader implications of the bill were an obvious factor in the process of its passage. When the law passed, Congressman Robert Scott stated, “Had it been limited to terrorism, this bill could have passed three or four weeks ago without much discussion.” But some were excited about the broader powers in the law. “This bill can be an effective tool against terrorism and against drug trafficking, and against organized crime,” said Senator Paul Sarbanes.

Thus the door is opened by putting what Senator Orrin Hatch called “hybrid tools” at the disposal of our law enforcement agencies and judges to create hybrid problems, as when Judge Yohn used them on July 19 and Judge Dembe on November 21 in Abu-Jamal’s case. Just as effortlessly as the applications were made in the Abu-Jamal case, so too they will be for countless others.

Related Story:

Death Sentence Overturned, but Danger Still Clear and Present” by Dasun Allah

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