“AEDPA” is the common acronym, used by Courts and commentators alike, for the Antiterrorism and Effective Death Penalty Act of 1996. Certain reactionary, authoritarian, corporate and power loving, freedom-hating elements in Congress had been lobbying for years to cut back on Habeas Corpus. The war on drugs in the 1970s and 1980s had led to a huge increase in the number of Americans behind bars, but even in the 1960s, some judges had been complaining about the large percentage of their caseload that consisted of prisoner civil rights lawsuits and habeas corpus petitions for release or improvement of conditions in the state and federal jails.
The U.S. Supreme Court under the stewardship of Chief Justices Earl Warren (whose first but not most lasting contribution to the history of U.S. Civil Rights was, as Governor of California, to implement Franklin D. Roosevelt’s plan to intern tens of thousands of Japanese civilians or “Nisei” at the start of and for the duration of the U.S. involvement in World War II) and Warren Burger (who resigned to celebrate the bicentennial of the adoption of the U.S. Constitution, which by a strange historical accident coincided almost exactly with the de-facto repeal or abandonment of the same document) had been very lenient and tolerant of “successive petitions” for habeas corpus, especially in capital/death penalty cases. But respect for the rights of habeas corpus in a world of swelling prison populations and lengthening death rows had the effect of making capital punishment a very slow process in those southern states, especially Texas and Florida (and all the intervening deep south states of Louisiana, Mississippi, Alabama, and Georgia), where the political will to impose the death penalty was stronges, and where the population and electorate was growing at the expense of anti-capital punishment northern states such as Massachusetts, New York, and Michigan.
When Newt Gingrich and his associates took Congress with their “Contract for America” (which this author and other critics liked to refer to as the “Contract on America”), they immediately began negtiating with the Clinton White House over the terms of a series of judicial and prosecutorial “reforms.”
The worst of these were those inspired by the April 1995 Oklahoma City bombing, which itself was timed to commemorate the second anniversary of the April 1993 destruction of the Branch Davidian compound known as Mount Carmel near Waco, Texas (which lies less than an hour’s leisurely drive from the Bush family ranch in Crawford, Texas).
No matter how we analyze it, the fact is that, starting in 1992 there was an increase in prominently and dramatically reported incidents of domestic terrorism and/or violent confrontations between law enforcement and the people of this country. AEDPA was the well-planned “Contract on America” response to what appears to have been this well-planned increase in prominence and drama relating to domestic terrorism in the the U.S., but in 1996, there was only the political will to enact SOME of the provisions of AEDPA—those which curtailed the rights of the convicted, for example, to post-conviction relief to collaterally attack their sentences and/or convictions, i.e., habeas corpus, audita querela, coram nobis, and similar “ancient prerogative writs” (the separate but parallel purposes of each of which was to give real-life meaning to Shakespearian Defense Attorney Portia’s phrase “the quality of mercy is not strained” enunciated in The Merchant of Venice.
Because habeas corpus is specifically mentioned in and protected by the U.S. Constitution, it could not be abolished completely (although there were those in Congress and the Executive Branch who would have wished to do so), but audita querela and coram nobis (similar but slightly more specialized civil writs used to attack criminal convictions), both used as late as the early 1990s in such far away and obscure American cities as Key West, Miami, Fort Lauderdale, West Palm Beach, and Fort Pierce (i.e. in the U.S. District Court for the Southern District of Florida, during this author’s tenure as a judicial lawclerk in that jurisdiction).
But AEDPA as originally proposed also included massive provisions relating to domestic spying, the use of governmental regulations to collect information on citizens, the wholesale abandonment of “traditional” notions of due process in relation to certain politically targeted or executive-branch selected prosecutions, and the correlative enhancement of the ability to order massive arrests, “sweeps” and dragnets of certain groups under certain arbitrarily designated circumstances called “national emergencies” (if such were declared by the President in his sole discretion). These provisions were not enacted in 1996, so it was precisely these originally proposed clauses of AEDPA that had to wait until 9/11 and its aftermath to be enacted into law, under the grotesquely false and misleading name of “the Patriot Act”.
There is a very fine book which makes a highly critical attack on these later amendments published under the name “How would a Patriot Act: Defending American Values from a President Run Amok” by Salon.com columnist Glenn Greenwald. Greenwald’s basic analysis is sound, but he still places too much emphasis on the role of George W. Bush in developing this policy. A year ago, on March 9, 2007, Greenwald wrote in Salon.com:
“The story here is not merely that the FBI is breaking the law and abusing these powers. That has long been predicted and, to some degree, even documented. The story is that the FBI is ignoring the very legal obligations which George Bush vowed were not obligations at all, but mere suggestions to be accepted only if he willed it. It is yet another vivid example proving that the President’s ideology of lawlessness
exists not merely in theory, but as the governing doctrine under which the executive branch has acted, time and again and as deliberately as possible, in violation of whatever laws it deems inconvenient.”
The phrase “ideology of lawlessness” echoes an almost exactly phrase first made on TV and introduced into the popular consciousness through the long-running Clinton-era series “The X-Files” presented in a fictitious format to a verifacsimile of a Senate in a Seaon IV, Episode 8 (“Tunguska”) hearing by Gillian Anderson (aka Dana Catherine Scully) who described the “culture of lawlessness” by “those beyond prosecution” as the prevailing culture in Washington.
This episode was “coincidentally” aired for the first time on November 24, 1996—just as the “Contract on America” was becoming understood and finally taking hold. The X-Files was an interesting series precisely because so many of its episodes were made in direct reaction to and commentary on the politics and news of the 1990s. There has probably never been so specifically and precisely socially and politically conscious and reactive a television program in the history of the United States (1970s programs like “All in the Family”, although focused on racism and bigotry, almost never directly tracked and commented on news events the way Chris Carters’ “X-Files” did).
Whether coincidentally or not, another major piece of legislation relevant to those of us interested in the judicial reform movement was passed in 1996, this being the 1996 amendments to 42 U.S.C. Section 1983, the section which creates and authorizes a civil lawsuit, legal action for violation of civil rights under U.S. law, no such form of action having existed before about 1868-70 and the adoption of the 14th Amendment which made such an possible or even mandatory in both state and federal court.
There had been a long-simmering debate about whether judges and judicial actions could be prosecuted under 42 U.S.C. Section 1983, and Congress purported to address this issue in the 1996 amendments. The result was an amendment which was advertized as doing one thing (curtailing or limiting judicial immunity) but whose language in fact appeared to solidify, set in stone, and establish for all times the holding of a 1984 U.S. Supreme Court Case called Pulliam v. Allen.
It is a well fact, an irony of history, that during the 1990s, the Chairmanship of the U.S. Senate’s Committee on the Judiciary passed back and forth between two polar opposites—Senator Edward Kennedy and Senator Strom Thurmond—but in the context of the debate leading to the 1996 amendments, it appears that these two were able to craft legislation which may provide one of the few escape valves for the pressure that was destined to build up as a result of the enactment, first, of AEDPA and later of the Patriot Act, but that is the subject of another commentary for another day, because in this author’s opinion, the 1996 amendments to 42 USC Section 1983 are the most important piece of legislation relating to judicial immunity (or the lack thereof) in U.S. history.