Invictus

On April 19, 1995, the north face of the Alfred P. Murrah Federal Building in Oklahoma City was bombed. Five days later, the front page of Advertising Age carried an article titled “The End of Innocence” and listed other stories inside:

“Invisible enemy”: ...compares consumer reaction now and during the Persian Gulf War. Page 3
“America has gaping wound”: But the carnage in Oklahoma City will galvanize us. Page 18
“Loose Lips Sink Ships”: How about stirring public with World War II theme? Page 42
“This changes nothing”: Bob Garner says Americans will let their guard down again. Page 43

Timothy McVeigh was a decorated veteran of the Persian Gulf War, the latest version of which we are fighting today; and disclosures in 1995 about Pearl Harbor rendered the “stirring…World War II theme” suspect. In “Road to Paranoia” (New Yorker, 6/19/1995), Michael Kelly decried “fusion paranoia” — a phenomenon that arose in connection with the Iran-hostage-contra-cocaine affair. Incredibly, it seems that both “right” and “left” wingers believed a secret arms-for-hostages deal with Iran had influenced the U.S. elections in 1980.

Convicted in 1997, Timothy McVeigh wanted an appeal and a new lawyer. His attorney, Stephen Jones (left), had been appointed by the court; and there was friction between the two men. Jones, believing that the accused has a right to confront his accusers, argued that he was denied a chance to question F.B.I. informant Carol Howe — a key witness in the case — or present evidence of a wider conspiracy. It would not have exculpated McVeigh, but it might have made people think. After the trial, the Chicago Tribune carried a front page article about the “fringe rants” of a cover-up, implying some sort of “center” where folks don’t fuss over details.

The early and easy simplifications of McVeigh have become uneasy over time. Who do you think he was? In a letter to the Union Sun and Journal in Lockport, New York, McVeigh wrote in part:

At a point when the world has seen communism falter as an imperfect system to manage people, democracy seems to be headed down the same road. No one is seeing the ‘big’ picture.

Maybe we have to combine ideologies to achieve the perfect utopian government. Remember, government sponsored health care was a communist idea. Should only the rich be allowed to live long? Does that say that because a person is poor, he is a lesser human being; and doesn’t deserve to live as long, because he doesn’t wear a tie to work?

What kind of talk is that? At his sentencing on August 14, 1997, McVeigh “sat down without exchanging the usual handshake with Mr. Jones,* who afterward would not comment on their relationship.” (The New York Times, 8/15/1997) McVeigh addressed the court before sentence was passed, but he didn’t say much.

I wish to use the words of Justice Brandeis dissenting in Olmstead to speak for me. He wrote, ‘Our government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example.’ That all I have.

According to The New York Times, McVeigh’s remarks were so fleeting and “so cryptic that families of the bombing’s victims were not sure what he meant.”

“‘I don’t know if he was referring to the Waco deal or what,’ said Roy Sells, 63, a retired Air Force employee whose wife, Leora, was among the 168 people killed in the explosion at the Alfred P. Murrah Federal Building on April 19, 1995.

“‘I wish he would’ve quoted something from his own heart instead of out of somebody’s book,’ Mr. Sells said.”

McVeigh’s remarks might have sounded cryptic to Mr. Sells, but how did they sound to lawyers and judges in the federal system? After all, McVeigh was a man arrested with quotes from our founding fathers in his possession. Isn’t it at least possible that he quoted Brandeis because those words did convey what was in his heart?

Those words came from Olmstead v U.S. (1928), a Prohibition conspiracy case. Federal agents had obtained wiretap evidence by violating state laws, but federal laws did not exclude evidence acquired illegally. To Brandeis, that was an affront to the Fourth and Fifth Amendments.

Decency, security and liberty alike demand that government officials shall be subjected to the same rules of conduct that are commands to the citizen. In a government of laws, existence of the government will be imperiled if it fails to observe the law scrupulously. Our government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example.

Crime is contagious. If the Government becomes a lawbreaker, it breeds contempt for the law; it invites every man to become a law unto himself; it invites anarchy. To declare that in the administration of the criminal law the end justifies the means — to declare that the Government may commit crimes in order to secure the conviction of a private criminal — would bring a terrible retribution. Against that pernicious doctrine this court should resolutely set its face…

Brandeis noted that when the Bill of Rights was adopted, “’the form that evil had theretofore taken’ had been necessarily simple. Force and violence were then the only means known to man by which a government could directly effect self-incrimination.” Technology had changed that. Surveillance no longer required breaking down doors and rummaging through drawers.

Subtler and more far-reaching means of invading privacy have become available to the government. Discovery and invention have made it possible for the government, by means far more effective than stretching upon the rack, to obtain disclosure in court of what is whispered in the closet…Whenever a telephone line is tapped, the privacy of the persons at both ends of the line is invaded, and all conversations between them upon any subject, and although proper, confidential, and privileged, may be overheard.

I have no doubt of McVeigh’s guilt. However, his reference to the example set by government bothers me. Were any of the conspirators linked to federal agencies? Was it a “sting” operation; was it entrapment; or was it something worse? The similarities between the Murrah Building bombing and the 1993 bombing of the World Trade Center are disconcerting, as is the Waco connection. Investigative records on Waco were housed in the Murrah building.

But what concerns me most of all is the Omnibus Counter-Terrorism Bill of 1995, forerunner of the Patriot Act. The legislation had been proposed by the F.B.I., the agency with so many informants in so many controversial cases. The Bill called for expanded powers of federal agencies to monitor domestic groups. It sought to criminalize activities protected under the First Amendment, streamline the appeal process, grant broad and exclusive executive authority to designate individuals or groups as offenders, and eliminate habeas corpus for designated suspects. It was stalled in Congress before the Oklahoma bombing. After that, President Clinton used the bombing to argue for the Bill. He got it in 1996, but without some of the most coveted powers. Then came 9/11 which, we are told, changed everything.

Six years later, U. S. Attorney General Alberto Gonzales, while on his way out, was still seeking authority to “fast-track” execution appeals. He served a similar function in Texas under then-Governor George Bush, Jr., who took office in January of 1995. Will Gonzales’s replacement be more circumspect?

In a hand-written statement before his execution, Timothy McVeigh printed a poem by William Ernest Henley, titled Invictus.

Out of the night that covers me,
Black as the Pit from pole to pole,
I thank whatever gods may be
For my unconquerable soul.

In the fell clutch of circumstance
I have not winced nor cried aloud.
Under the bludgeonings of chance
My head is bloody, but unbowed.

Beyond this place of wrath and tears
Looms but the Horror of the shade,
And yet the menace of the years
Finds, and shall find, me unafraid.

It matters not how strait the gate,
How charged with punishments the scroll,
I am the master of my fate:
I am the captain of my soul.

Timothy McVeigh and Terry Nichols were convicted on state and federal charges, so the authorities clearly perceived a conspiracy. Does that mean the case was solved?

I think McVeigh was the captain of his soul, but I don’t know under what flag he sailed. Nobody else has been charged in the bombing. Two possible JD2 matches died in custody, which strongly suggests that some people genuinely believed in the existence of John Doe #2 and urgently wanted to find him. Whether they wanted to prosecute him or silence him is an open question.


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* Jones, in collaboration with Peter Israel, wrote Others Unknown: The Oklahoma City Bombing Case and Conspiracy, first published in 1998, revised in 2001. As a law student in 1964, Jones was a personal assistant to Richard Nixon, but he was also a friend of Alger Hiss, the first U.S. representative to the United Nations and an alleged Soviet spy. (In the early 1950s, Congressman Nixon was a driving force in the investigation of Hiss. Hiss was acquitted of espionage and then convicted of perjury in his espionage trial. A F.B.I. informant was the key witness in the case and a typewriter which may or may not have been found was the critical physical evidence.) According to Jones, McVeigh obstructed his own defense and a wider conspiracy was behind the Oklahoma bombing.