During President Joe Biden's inaugural address, just two weeks after Trump supporters rioted through the Capitol building, the newly elected Democrat vowed to "defeat… a rise of political extremism, white supremacy, and domestic terrorism." Almost immediately after the Capitol riot, stories poured out that the new Administration and Congressional Democrats were going to "focus on the domestic extremism threat." Robert Grenier, the CIA mission manager for the invasion and initial occupation of Iraq, even stated in an interview that the counterinsurgency tactics that were so successful for the US in Iraq and Afghanistan should be brought home to deal with this new specter of domestic terrorism.
It looks increasingly likely that the end result of the Capitol riot could be new legislation increasing the funding and powers of the police and many Democrats have celebrated on social media, imagining the police turned loose on Trump's base – forgetting, apparently, that the police are Trump's base. Unfortunately, we have done this dance before. During the 1990s, President Bill Clinton and Congressional Democrats were able to turn a panic around domestic terrorism and right-wing militias into bold new antiterrorism legislation.
After the bombing of the Oklahoma City federal building in 1995 by Timothy McVeigh, an army vet with ties to America's white nationalist and militia movement, the Democratic Party began pushing for a headline grabbing bill to fight domestic terrorism. The fight for such a bill would position the Democrats as the law & order party for the 1996 elections while painting a portion of the Republican base as anti-police terrorists. As the New York Times would put it, it was a "politically delectable position" for Democrats to be in. [1]
From the current political landscape in 2021, it is difficult to imagine the climate of fear the media was willing and able to build around right-wing political violence in the 1990s. The fall of the Soviet Union in 1991 left many in politics and the press to desperately search for a new villain that could justify growing police and military budgets. Black youth, or "superpredators" as the Clintons called them, became the new terrifying urban menace while the militia became the potential fifth column waiting in the wings. Consider this excerpt from a 1997 article titled "The Militia Threat" in the New York Times:
"The militias are different from anything that preceded them because they gather not to take out their rage on Communists or minorities, but to wage war against a Government they consider treasonous. In recent years militia groups have assaulted, harassed and threatened scores of government officials…
"Some counties in America can no longer enforce their land, tax and weapons laws, unwilling to risk that an employee might be attacked by militia members. Firefighters say they cannot fly helicopters over land owned by certain militia members for fear they will be shot down. In at least 23 states, militia members have filed phony liens against local officials. Government employees are so vilified in some communities that no one will sit with them in church…
"With the end of the cold war, it may be that conspiracy theories once obsessed with communism turned inward toward the American government." [2]
Extralegal right-wing violence has of course been a staple of American history, from the Ku Klux Klan to lone assassins. But now, as the Times points out, this violence had gone from being directed at "communists and minorities" to being directed at people we are actually supposed to care about: government officials.
Of course, the Oklahoma City bombing, as a shocking and visceral example of right-wing violence, animated this whole conversation. News shows like 20/20 and Nightline treated viewers to breathless reports on the militia threat that featured rural Michiganites clad in camouflage swinging around on monkey bars for "training" – a prelude to post-9/11 reports on Muslim terrorism.
President Bill Clinton told the press that the Republican Party had declared an "ideological war against police" [3] while promising more police, more arrests, and more executions. The end result was the passage of the Antiterrorism and Effective Death Penalty Act (AEDPA) in April and a crushing victory for Clinton in November of 1996.
After months of negotiations between Republicans and Democrats and business interests, the AEDPA didn't include a single piece of legislation that can be honestly said to have stopped or slowed right-wing violence, but it did strip habeas corpus rights from inmates, drastically increase the number of state executions, and create the expedited deportation process that has fueled the immigration nightmare of the last quarter century.
Prelude
In 1994, G Gordon Liddy, a former FBI agent and fixer for the Nixon Administration, gave this advice on his syndicated radio show:
"Now, if the Bureau of Alcohol, Tobacco and Firearms comes to disarm you and they are bearing arms, resist them with arms. Go for a head shot; they're going to be wearing bulletproof vests… They've got a big target on there, ATF. Don't shoot at that, because they've got a vest on underneath that. Head shots, head shots… Kill the sons of bitches." [4]
It was a major turn for the "law & order" Republican who had championed Nixon's Office of Drug Abuse Law Enforcement (ODALE) program which brought SWAT into the drug war. And Liddy was hardly the only one. A backlash against law enforcement, the Bureau of Alcohol, Tobacco and Firearms in particular, was being built.
A little context is needed to explain this unprecedented turn in the carceral '90s, which is more remembered for doubling the prison population than for anti-police sentiment. At the end of the Cold War, there was a popular clamoring for the much fabled "peace dividend." Sacrifices that had to be made to budgets in order to fund the Reagan military build-up in particular, were expected to return rewards now that the Soviet Union had collapsed. International communism in the American imagination, as embodied by the Soviet Union, represented both an obvious external threat shown in the ballooning military budget and an internal threat with the Cold War claim of fifth column insurgencies from communist provocateurs, credited with everything from upsetting race relations in the Jim Crow South to creating the anti-nuclear movement to destroying the country's moral fiber via Hollywood.
With the collapse of the Soviet Union came the belief that tensions could be relaxed on all sides and attention shifted to making people's lives better. In reality, funding police and the military was more important than ever as neoliberal capitalism leaned even more heavily on extraction abroad while lowering living standards for extraction at home. [5] In this environment, the military machine and police alike began casting about for new villains to justify their budgets. For the ATF, this led to the manufacturing of two splash raids designed to garner the agency headlines that quickly turned into tragedies.
In 1992, Randy Weaver sold an illegal sawed-off shotgun to an undercover ATF agent he met at a gun show. Weaver was arrested and released on bail. When he failed to show up for his court hearing, a warrant was issued for his arrest and a raid of his rural Idaho cabin was hastily planned with the US Marshals. Weaver's connections to white nationalist and militia/survivalist movements made him an appealing target for an agency looking to make some cheap headlines. The raid began with sniper teams chucking rocks at the Weaver's dogs. When Weaver's 14-year-old son came out to investigate, a sniper shot one of the dogs, setting off a firefight that left the boy and a US Marshal dead.
This gun battle led to an 11-day siege of Weaver's cabin with the FBI and various SWAT teams being brought in. On day two of the siege, new rules of engagement were issued to law enforcement to shoot any adult seen with a weapon on sight. As a later Senate investigation revealed, this was an extraordinary order for a police stand-off. Shortly after, snipers shot Randy Weaver twice in the chest when he tried to visit his son's body. In the mayhem of the Weaver's retreat back to the cabin, another agent began firing blindly into the windows, shooting Weaver's wife Vicki in the head while she was holding their 10-month-old child.
The whole incident at Ruby Ridge was a debacle, embarrassing all the agencies involved. But Randy Weaver was an extremely unsympathetic victim for most Americans, so the immediate result of the siege was a mixed bag. It was an embarrassment for these supposed professionals in law enforcement while helping to hype this folk-villain of the heavily armed right-wing nut that was used to justify expanding police budgets.
Unfortunately for the ATF, an unrelated scandal quickly followed Ruby Ridge as accusations of racism and sexism within the agency threatened their budget. [6] Their solution was to plan a raid on the Branch Davidian compound in Waco, Texas in early 1993. The Davidians were an odd-ball offshoot of the 7th Day Adventists that preached an apocalyptic version of Christianity and were headed by a young and equally strange leader, David Koresh. Most importantly, they partially financed their church through buying and selling guns at gun shows, giving the ATF an easy-in for launching a raid.
From the beginning, the raid on the Branch Davidian compound was planned as a media extravaganza. News crews were alerted ahead of time and, in fact, showed up at the compound before the ATF SWAT team. ATF agents packed boxes of extra rolls of film for their own camera crews and for the press, but did not set up communication lines with local authorities in case of emergency. They had no plan for if things went wrong and insisted on continuing with the operation even when they learned that the Davidians knew they were coming. [7] After all, a lot of salaries in the agency were at stake.
The raid was a disaster. They had no plan to identify themselves or even attempt to go to the door to serve the search warrant. Using a no-knock warrant normalized by the drug war, they sent SWAT members up onto the roof, crashing through windows, etc. The Branch Davidians, who believed that government agents would come to kill them one day as part of prophecy, engaged the ATF in a firefight that the agents were clearly not prepared for. And the cameras caught all of it: police dressed like soldiers – still an unfamiliar sight to most Americans in 1993 – firing submachine guns blindly through the windows and walls of the compound, ATF agents hiding behind cars firing equally wildly at the building, a helicopter full of agents flying overhead shooting down through the roof.
The ATF finally retreated when they ran out of ammunition. Four ATF agents and five Davidians were killed in the shootout. What followed was a 50-day siege, headed by the FBI, that ended in the police burning down the compound, killing 76 people including 26 children.
During the siege, the Clinton Administration and the Justice Department tried to explain away the bungled publicity stunt that led to the disaster in Waco by arguing that David Koresh was a drug dealer and a pedophile – though, neither charge was included in the ATF warrant and both allegations were outside the narrow purview of the agency. For the most part it worked, with most TV viewers accepting the state violence as necessary. But it wasn't as easy a sell as Ruby Ridge and many remained deeply disturbed, particularly by the footage of police tanks ramming into the compound over and over and then the building going up in flames – all of which was broadcast live.
The final piece of the puzzle were two seemingly unrelated events. In November of 1993, Bill Clinton signed the Brady Handgun Violence Prevention Act. The bill was named after Ronald Reagan's press secretary, James Brady, who was shot in the head and left partially paralyzed during an assassination attempt on Reagan in 1981. The bill instituted federal background checks for gun purchases and created restrictions on who could purchase a gun. These restrictions were fairly broad, banning felons, undocumented immigrants, military personnel who have been dishonorably discharged, people with drug convictions, etc. from purchasing a firearm.
In the lead-up to the 1994 mid-terms, Clinton sought to position the Democrats as the "tough on crime" party. Democrats spent most of the year crafting and pushing through a signature piece of legislation, the Violent Crime Control and Law Enforcement Act, which gave cities funding to hire more police officers, expanded the federal death penalty (effectively giving states permission to do the same), and lengthened prison sentences. The bill led to the largest incarceration boom in American history. It also included a ten-year ban on what it defined as "assault weapons." [8]
Like any regulation, these bills would put a limit on the number and type of firearms sold in the United States. America's arms manufacturers were already growing concerned about the post-Cold War peace dividend coming to fruition and hammering their sales. Any potential loss in international sales – caused by the CIA no longer arming death squads in the Cold War to fight the communist menace – was going to need to be offset by domestic sales. Tighter gun regulations were not something that the arms industry could afford.
So, the National Rifle Association – the arms industry's lobbying arm – sprang into action. Using their network of mailing lists and gun shows, the NRA began to mainstream criticism of the Ruby Ridge and Waco disasters on the right. Focusing on the role of the ATF and its claims of gun stockpiling on the part of the Weavers and the Davidians, these right-wing networks turned these cases into martyrs for the Second Amendment and clear indications of the danger of big (meaning Democrat-controlled) government.
Throughout 1994, militias and gun control became part of the unending culture war. The debate was largely a stalemate, mostly serving to fuel the calls for more police, bigger police budgets, and more police militarization. In November of 1994, Republicans retook the House in a wave election the media dubbed the "Republican revolution," further signaling the rightward drift of American politics.
After the Republican victory in the mid-terms, the NRA went on a major offensive to not only repeal gun control regulations, but to expand gun rights – and not coincidentally, purchases. By March of 1995, thirteen states were in the process of passing laws expanding conceal-carry rights. [9] A month later the Supreme Court struck down a provision in the 1990 Gun Free Schools Act that banned the possession of a firearm within 1,000 feet of a school. [10]
Nationally, the NRA focused its attention on repealing the federal assault weapons ban. [11] As a New York Times editorial ruefully noted, "There are plenty of House Republicans who yearn for repeal [of the assault weapons ban]. Their contract is not with America, but with the National Rifle Association." [12]
During his State of the Union address, President Clinton declared, "A lot of people laid down their seats in Congress so that police officers and kids wouldn't have to lay down their lives under a hail of assault-weapon attacks, and I will not let that be repealed." At the time of Clinton's address, more than two dozen House Democrats had joined Republican calls to repeal the assault weapons ban. [13]
By March, Bob Dole (R-KS), the new Senate majority leader, pledged to "have a bill on President Clinton's desk by this summer" to repeal "the ill-conceived" assault weapons ban. "In my view, vigorous protection of the individual freedoms secured by the Bill of Rights – including the Second Amendment," Dole wrote to the NRA's chief lobbyist, Tanya Metaksa, "is crucial to our nation's future… Repealing the ill-conceived gun ban passed as part of President Clinton's crime bill last year is one of my legislative priorities." [14]
Confident that a repeal of the assault weapons ban would have "broad bipartisan support," the House began working on legislation to repeal the ban in early April with the goal of bringing it to a vote on the House floor in mid-May. [15]
Debating the AEDPA
April 19th 1995, on the two-year anniversary of the torching of the Davidian compound in Waco, Timothy McVeigh used a fertilizer bomb mounted in a Ryder truck to blow up the Oklahoma City federal building killing 168 people, including 19 children in the building's daycare.
It was the largest domestic bombing in US history. After a brief flirtation with blaming the bombing on "Arab terrorists," it quickly became apparent that the bomber was a military vet close to the white nationalist and militia movements, who had been present in Waco the day the Davidian compound was burned down. For the Clinton Administration, it was the perfect opportunity to turn the tables. Democrats could strike back at the ascendant Republican Party and hammer home Clinton's tough on crime credentials in preparation for the 1996 election. [16]
"The first three months of the year were a heady time for opponents of gun control. The National Rifle Association had given 'A' ratings or better to 225 members of the House of Representatives. And Republican leaders in Congress were promising to repeal the ban on assault-style weapons," writes the New York Times, "Then came the bombing of the Federal Building in Oklahoma City." [17]
Wayne LaPierre, then executive vice president of the NRA, announced that they would be putting the repeal of the assault weapons ban on the back burner in the immediate aftermath of the bombing, saying "I just think it's the right thing to do." [18] Conservatives then moved to shift focus from repealing the weapons ban to criticism of government overreach with the ATF as its synecdoche.
The Wall Street Journal fired the first shot on May 2nd with an editorial that criticized "faddish justice" on the part of the federal government. The editorial compared the treatment of police involved in the Ruby Ridge and Waco debacles with the treatment of LAPD sergeant Stacey Koon who had been brought up on federal charges for his role in the beating of Rodney King. "We seem to have a double standard today," the Journal concludes. "It says that law enforcement officials can do what they want with unpopular defendants like religious fanatics and white supremacists. But in dealing with suspects who might charge racial prejudice, they have to be careful indeed." They go on to note, "Even in the wake of Oklahoma City, we are about to have the release of a Mario Van Peebles film making the Black Panthers into entertainment, guns and all." [19]
It was a clear culture war political play: "Big government" (meaning government when the Democrats are in power) needs to be restrained or it will privilege dangerous minorities at the expense of white America and the fiascos at Ruby Ridge and Waco are the proof. Randy Weaver, an unrepentant white supremacist, was perfectly happy to be used in this cynical ploy, speaking at gun shows about Ruby Ridge. But it should be noted that the Branch Davidians were unwilling participants. They had a multi-racial congregation and expressed sympathy with Rodney King and the people of Los Angeles during the standoff.
Throughout May, the NRA purchased full page ads in every major American newspaper pushing their new political play.[20] The ads contained the text of a letter that NRA president Tom Washington had sent to former president George HW Bush upon hearing that Bush had dropped his NRA membership. While expressing sympathy for victims of the Oklahoma City bombing, the letter urges federal hearings into "serious allegations of abuse by federal law enforcement agencies." With the bulk of the ad dedicated to recounting specific examples of "black-suited, masked, massively armed mobs of screaming, swearing agents invading the homes of innocents," highlighting Waco and Ruby Ridge in particular. The ad closed quoting the Wall Street Journal editorial regarding the new law enforcement "double standard."
Liberals responded with a media war of their own. The New York Times called for Congressional hearings on the militia movement noting that Republicans "fear that the militias could become an albatross for their party in the way the violent left became a liability for Democratic liberals in the 1960s." [21] And featured articles like "Militia Madness" that featured a rundown of various militia plots disrupted by diligent law enforcement to hype the militia threat – stories that bore more than a passing resemblance to similar accounts about Muslim "terror plots" following the September 11th attacks. [22]
Still, the arms lobby has a long reach and not all Democrats could stay on message. House member John Dingell (D-MI), for instance, became a board member of the NRA after slipping a provision into the 1972 Consumer Protection Act that made firearms exempt from the agency's regulatory purview. He held that board membership until 1994 when he stepped down so that he could vote for the Crime Bill. Still, he was able to heed the call of the lobbying group, calling the ATF "jackbooted American fascists." Harold Volkmer (D-MO) joined in, calling the agency "one of the most Rambo-rogue law enforcement agencies in the United States." [23]
The conflict spilled over into the summer when Republicans finally got their hearings on the Waco disaster. Clinton denounced the hearings arguing that it was just part of an "ideological war against police" on the part of the Republican Party. [24] Just prior to the Waco hearings, Clinton denounced the "depravity" of David Koresh to the press before criticizing Republicans: "A society that makes war against its police better learn to make friends with criminals."
Republicans found themselves questioning law enforcement under oath, pushing them on their use of military tactics. While Democrats, led by House Rep Chuck Schumer (D-NY), found themselves "in the more politically delectable position" of defending American law enforcement. Schumer called the expert testimony during the Waco hearing the work of "defense lawyers" – one of the great villains of the law & order Democrats – "sliding over the truth" and ridiculing their claim that flash bang grenades could "kill, maim, or injure" and claiming that there was no use of CS gas – which Schumer called "simply the mildest form of tear gas" – during the standoff. All of which were blatant and obvious lies.
Clinton would ultimately give Schumer a phone call congratulating him for his role as bull-dog for the Administration in the hearings. Of course, the Clintons had other reasons to be thankful for the highly contentious hearings on the Waco standoff – it was drawing eyeballs away from the Whitewater hearings being held at the same time. [25]
As with most culture war debates, neither Republicans nor Democrats came out with a clear victory [26] during the hearings, but, rather, they reinforced their brands for the 1996 elections. The Democrats were the party of law & order while the Republicans were the party fighting against government overreach. This would carry over to the debate over the Antiterrorism and Effective Death Penalty Act.
The Senate had introduced the first version of what would become the AEDPA in the summer of 1995, but it was derailed by the Waco hearings in the House. Serious negotiations on the legislation did not begin in both Houses until March of 1996. While the specter of Waco, Timothy McVeigh, and the militia movement was raised on all sides in the lead-up to the negotiations, the bill was largely full of left-over proposals that could not be crammed into the 1994 Crime Bill. The bill sought to further limit habeas rights of migrants – meaning the right of the accused to appeal a ruling of deportation –under the façade of deporting "terrorists," and there was the obligatory increased funding for local law enforcement.
The only element of the bill that addressed terrorism directly was a provision that gave the Attorney General and the Secretary of State the ability to declare groups or organizations "terrorist organizations," making "providing aid or comfort" to such organizations a federal crime. Some acknowledged at the time that if this law were in effect in the 1980s, hundreds of thousands of Americans would be subject to arrest for supporting the anti-Apartheid movement in South Africa under this new provision. [27]
Perhaps the most insidious element to arrive fully formed in the earliest versions of the bill was a provision that limited the habeas rights of federal inmates and death row inmates. This provision had been a part of the Republican Party's "Contract with America" that had allowed them to sweep into power in the midterms. In early 1995, the NRA had suggested attaching the removal of the assault weapons ban to a suite of new tough on crime measures including the limiting of habeas rights to death row inmates in order to ease the ban's removal. Now the Democrats were offering it to Republicans as a sop for voting for the AEDPA – with Clinton waiting ready in the wings to take credit for making good on the Republicans' promises before the election.
Of course, the arms lobby had plenty to be upset about in the new AEDPA legislation. Early versions of the bill included a provision that would lower the bar of proof for prosecuting gun dealers who sell a weapon that is later used in a crime. It also increased their liability in civil court as well. Provisions to lower barriers for federal law enforcement to use wire-taps and obtain personal records and data were also opposed by a right-wing that had tied itself to a message about the dangers of government overreach.
Early on in the bill's negotiation, the NRA found itself as strange bedfellows with the ACLU and the NAACP in openly opposing the AEDPA as a vast expansion of police powers at the expense of civil liberties. In mid-March, they were able to get the House to pass an amendment that struck the gun store provisions, surveillance provisions, and the expedited deportation provisions from the bill. "I've talked to the White House, and they are now very pessimistic," House Rep Chuck Schumer told the New York Times. "I'd now bet my bottom dollar that at the end of the day, there will be no legislation at all." [28]
For the Democrats there was no need to overly compromise with Republicans on the AEDPA. "As a political matter, Mr. Clinton is now in a no-lose position on counterterrorism legislation," the Times noted after Republicans stripped several key provisions from the House bill. If Congress approves the broader Senate bill favored by the White House, Clinton can point to how his Administration cracked down on terrorism in the upcoming election. If Congress failed to adopt a bill, "then Mr. Clinton is sure to assert that the Republican-controlled Congress is incapable of contributing to the defeat of terrorism." [29]
In April, the NRA received assurances that the Senate would remove provisions from the bill that increased liability for gun dealers and broadened federal police surveillance powers. The organization quickly reversed course on the AEDPA, leaving the ACLU and the NAACP holding the bag in opposing the legislation. The NRA gave their blessing to the bill, effectively fast-tracking the AEDPA. Even a last-minute effort by Senator Joe Biden (D-DE) to reinsert the surveillance provisions and a provision allowing the military to consult on domestic policing operations could not halt the momentum of the bill's passage. [30]
The NRA gave its blessing on April 17th with the Senate passing it later that day. The House passed it on April 18th and President Clinton signed it into law on April 24th.
Aftermath
Two events would immediately test the AEDPA and find it wanting. On July 17th 1996, just three months after the AEDPA was signed into law, TWA flight 800 took off from JFK in New York heading to Paris. Shortly after takeoff, the plane blew up in-flight, killing all the passengers on board. The cause of the explosion was a design flaw in the Boeing 747-100 that in certain rare instances could lead to an arcing spark igniting a fuel tank. [31] But from the beginning there was a hysterical insistence on assuming that it was terrorism from the media and the federal government. This focus, the product of the previous year's obsession with terrorism, almost certainly pulled resources and attention away from the actual investigation of the crash, leaving Boeing 747-100s to continue rolling the dice as they remained in operation.
The second major event would come ten days later when a bomb was detonated at Centennial Park in Atlanta during the 1996 Summer Games. The FBI chose early in the investigation to become hyper-focused on Richard Jewell, a security guard whose main crimes were being weird and dumb. Due to the FBI's incompetence, Eric Rudolph, the actual bomber, continued bombing abortion clinics and gay bars until he was finally caught in 2003.
Rudolph fit the exact description of the right-wing terrorist, complete with a survival cabin in the woods, that the media and the Democratic Party had fixated on during the lead-up to the AEDPA. Yet, despite the broad new powers afforded by the AEDPA, it played no role in his capture. Rudolph was caught after being arrested dumpster diving behind a grocery store.
In August of 1996, Democrats tried to use the momentum from the TWA disaster and the Centennial Park bombing to take another crack at pushing through expanded surveillance powers along with increased airport security measures that largely focused on background checks, bomb-sniffing dogs, and profiling of passengers. This effort died in Congress when the airline industry balked at the potential costs and the NRA opposed a provision that would further regulate the sale of explosives. [32]
Within three months the AEDPA had proven to be a failure at its stated goal. Of course, in 2001, it would also fail to prevent Saudi nationalists from flying commercial airliners into the World Trade Center and the Pentagon. But the AEDPA was never about stopping terrorism. It was a cynical political ploy on all sides.
For the Democrats, it allowed them to play tough on crime before the 1996 elections in which a befuddled Bob Dole found himself outflanked on the right by President Clinton throughout the campaign. [33] Dole would lose in a landslide election that anointed the Clintons as the saviors of the Democratic Party.
For Republicans, it allowed the party to show itself as standing up to big government and government overreach while still feeding their base plenty of tough on crime policies – a true have your cake and eat it too situation. They picked up two Senate seats in the election and maintained a solid majority in the House.
The NRA was able to turn the tide on gun control. The assault weapons ban in the 1994 Crime Bill would be the high-water mark for those advocating for tighter gun regulations and it was allowed to expire in 2004. Since then, the trend has been toward the deregulation of firearms, creating a massive new domestic market for the arms industry. Gun sales have sky-rocketed since the mid-1990s with 2020 setting a new record in annual sales.
As for the fear of a growing militia movement and right-wing violence, it began to fade away as standoffs with the Freemen in Montana and the Republic of Texas in Texas failed to yield shocking footage for news networks. It would ultimately be replaced entirely with a new national enemy, Islamic fundamentalism, after the September 11th attacks.
This is not to say that right-wing violence was a phantom or just went away, in fact, it continued to escalate all through the new millennium. But the political situation had changed and it was no longer a convenient scapegoat for increasing the repressive power of capital. In 2009, the Obama Administration suppressed a Department of Homeland Security report on right-wing extremism and violence in order to appease Republicans – the Democrats had moved on. [34]
Despite not stopping or deterring a single terrorist attack, the AEDPA did have many long-lasting and long-reaching effects. The reduction of habeas rights for inmates limited their ability to file an appeal in federal court to one appeal and restricted the time-frame in which such an appeal could be filed to within one year after their final state appeal. Combined with the "truth in sentencing" provision of the 1994 Crime Bill, this provision would play an enormous role in the prison boom of the 1990s.
Inmates awaiting execution had their right to appeal limited even further. They were limited to one federal appeal to be filed within six months of their final state appeal. Additionally, the grounds on which a capital punishment sentence could be overturned were significantly narrowed. Supporters and critics alike at the time acknowledged that this would "drastically accelerate executions," and they were not wrong. [35] The number of executions carried out annually in the United States more than doubled over Clinton's second term.
Of course, it was not "terrorists" who suffered as a result of these provisions under the AEDPA, but poor people – poor black people in particular. Testifying to the UN Human Rights Commission in 2018 on the 27 years he spent in a Tennessee jail "chained and shackled like some imaginary monster," Ndume Olatushani noted that, "All that time, I never met a rich person sitting on death row."
Even at the time in 1996, it was obvious who would suffer under these provisions in the AEDPA. Wade Henderson, the director of the NAACP's office in Washington DC, delivered a statement urging Democrats to vote against the bill, stating that the AEDPA would "virtually strip the Federal courts of the authority to issue writs of habeas corpus and that blacks would suffer the most as a result." [36] But the upcoming elections loomed large and the NAACP and ACLU never had the influence of industry lobbies like the NRA.
The limitation of habeas rights for migrants and the undocumented had equally pernicious effects. The AEDPA combined with the Illegal Immigration Reform and Immigrant Responsibility Act – which was signed into law by President Clinton just before the final push of his '96 campaign – limited migrant rights in three important ways: 1) Deny asylum seekers full hearings with legal representation 2) Expand the definition of aggravated felonies and other criminal offenses & 3) Eliminate the right to judicial review of many deportation decisions. [37]
In practice it meant that individuals who were apprehended by INS or, later, ICE had no right to federal appeal of their deportation order. The AEDPA made special mention of those seeking asylum: "If their pleas for asylum are turned down by a low-level US immigration officer, they will not be allowed to appeal – and review by the courts will be barred." [38] This created the expedited deportation process that underlies the culture of cruelty practiced by INS & ICE and allowed the Obama Administration to deport over 400,000 people in 2012, shattering all previous records.
Again, this was entirely predictable at the time. During the debate over the AEDPA, Anthony Lewis, the longtime legal reporter for the New York Times, highlighted the immigration provisions, stating, "I have seen a good deal of nastiness in the work of Congress over the years, but I do not remember such detailed and gratuitous cruelty." [39]
Finally, there was the provision in the AEDPA that allowed the State Department, in conjunction with the Attorney General, to designate groups or organizations as "terrorist organizations." This became the centerpiece of US foreign policy after 9/11 and has been used to justify everything from the invasion of Iraq and Afghanistan to the use of drones in Africa and Central Asia to the CIA torture program to the imposition of sanctions and the support of attacks against Syria and Yemen. In short, it is a legal window dressing that has facilitated the murder of likely more than a million people across Africa, the Middle East, and Central Asia in the name of the "war on terror." An unspeakably evil act.
The debate and passage of the AEDPA brought other less tangible results. Fear mongering over militias and dangerous cults helped to justify ballooning police budgets, the transfer of military weaponry to police, and the rise of SWAT – all of which, incidentally, benefitted the arms industry. Of course, all of these developments were in full swing prior to the events at Ruby Ridge, Waco, and Oklahoma City, but these events provided a post-facto justification for the build-up – much as the Columbine shooting provided a post-facto justification for putting police in schools, a process that had started in the late 1960s.
Again, the specter of heavily armed militias made police having tank mounted grenade launchers seem somehow reasonable, but it was never going to be militias that were the target of SWAT. By 1995, a year before the passage of the AEDPA, 77% of towns with a population of 25,000 or more had their own SWAT teams and there were more than 30,000 SWAT deployments annually. Overwhelmingly, these deployments were to serve no-knock warrants in the never-ending drug war. [40] Who were the actual targets of SWAT's military tactics? As one SWAT commander told police researcher Peter Kraska, "When the soldiers ride in, you should see those blacks scatter." [41]
Today, Democrats are calling for new legislation to "combat domestic terrorism" in the wake of the January riot in Washington DC. Just as in the 1990s, groups like the ACLU are trying to ring the alarm bell that such legislation would likely be used only against the poor and minorities, groups that are already wildly over-policed in this country. A report from The Intercept notes that in the immediate aftermath of the Capitol riot fourteen pieces of legislation were proposed in nine state legislatures limiting people's right to protest.
A peak into how this new language of terrorism is likely to be used by Democrats was seen recently in Olympia, WA. When housing advocates tried to rent rooms at a local hotel for the homeless, Mayor Cheryl Selby, a Democrat born and raised in Seattle, deployed SWAT to evict the would-be tenants and declared the move to house the unhoused an act of "domestic terrorism." Speaking to the Olympia city council, Selby said that renting rooms for the homeless "created an active crime scene that necessitated a police response appropriate to the scale of the actions of these terrorists [housing advocates]." She went on to urge that housing advocates "should be held accountable to the furthest extent of the law."
The history of the AEDPA is more than a walk down memory lane, it is a reminder that Democrats, Republicans, and lobbyists are capable of acting in the most cynical and dishonest ways for the purpose of achieving their cynical goals. What they are not capable of doing is reforming the police in a way that would mean justice for the oppressed. The police exist to guard the boundary between the capitalist class and the working class. The violence that they represent cannot be targeted against one's enemies in the culture war, it is all-encompassing. There will be a lot of pressure to use something like a domestic terrorism bill to fracture support for defunding and disbanding police, do not fall for the Democrats' shell-game.
Footnotes:
[1] NYT, "In Waco Hearings, Parties Undergo a Role Reversal," 8/3/1995.
[2] NYT, "The Militia Threat," 6/14/1997.
[3] NYT, "Diametric View of Waco," 7/21/1995.
[4] Quoted in Radley Balko, Rise of the Warrior Cop: The Militarization of America's Police Forces (New York: Public Affairs, 2014) p 199.
[5] See Christian Parenti, Lockdown America: Policing in the Age of Crisis.
[6] NYT, "Charging Bias, Blacks File Suit Against Agency," 1/18/1993; NYT, "When Discrimination Means Despair," 5/31/1993.
[7] See the documentary Waco: The Rules of Engagement (1997).
[8] Critics pointed out that much of the ban focused on cosmetic features that allowed manufacturers to make only minor cosmetic changes to continue selling the weapon.
[9] NYT, "States Seek to Let Citizens Carry Concealed Weapons," 3/6/1995.
[10] NYT, "High Court Kills Law Banning Guns in a School Zone," 4/27/1995.
[11] NYT, "Another Battle on Guns at Hand," 1/20/1995.
[12] NYT, "Stand Up, Again, to the NRA," 1/30/1995.
[13] NYT, "GOP Gains Allies in Move to Repeal Weapons Ban," 1/26/1995.
[14] NYT, "Dole, in a 2D Nod to Right, Pledges to Fight Gun Ban," 3/18/1995.
[15] NYT, "GOP Group Seeks to Lift 1994 Ban on Assault Guns," 4/6/1995.
[16] The extent to which Clinton was able to pry law & order issues away from Republicans shocked observers. It was a reversal of a quarter-century of American politics dating back to Nixon's election in 1968. NYT, "Seizing the Crime Issue, Clinton Blurs Party Lines," 8/1/1996; NYT, "In the Attic? Hillary?" 8/3/1996.
[17] NYT, "Bombing Alters the Landscape for Gun Lobby," 4/28/1995.
[18] Ibid.
[19] WSJ, "Faddish Justice: An Era Vulnerable to Violent Misapprehensions," 5/2/1995.
[20] Appearing in the NYT on 5/15/1995.
[21] NYT, "Time to Examine the Militias," 6/5/1995.
[22] NYT, "Militia Madness," 6/7/1995.
[23] NYT, "A Role for BATF," 5/4/1995.
[24] NYT, "Diametric View of Waco," 7/21/1995.
[25] NYT, "In Waco Hearings, Parties Undergo a Role Reversal," 8/3/1995.
[26] The extent to which the public remained unconvinced of the Democrat's claim that police did nothing wrong in Waco, at least, is probably best demonstrated in the Siskel & Ebert At the Movies segment on the 1997 documentary Waco: The Rules of Engagement.
[27] NYT, "How Terrorism Wins," 3/11/1996.
[28] NYT, "House Kills Sweeping Provisions in Counterterrorism Legislation," 3/14/1996.
[29] Ibid.
[30] NYT, "Effort Derail Anti-Terrorism Bill Bails," 4/17/1996.
[31] There is an excellent episode of the show Air Crash Investigations that covers the findings in the TWA 800 investigation.
[32] NYT, "Republicans Dilute Terrorism Measure," 8/3/1996; NYT, "Clinton Suggests an Array of Steps to Foil Terrorism," 9/10/1996; NYT, "Airlines and Others Question Aspects of Anti-Terrorism Plan," 9/12/1996.
[33] NYT, "Seizing the Crime Issue, Clinton Blurs Party Lines," 8/1/1996.
[34] NYT, "Extremist Report Draws Criticism; Prompts Apology," 4/16/2009; Wired, "DHS Crushed This Analyst for Warning About Far-Right Terror," 8/7/2012.
[35] NYT, "Bill on Terrorism Gains Momentum on Capitol Hill," 4/16/1996.
[36] NYT, "Effort to Derail Anti-Terrorism Bill Fails," 4/17/1996.
[37] Jason Ehrenberg, "A Call for Reform of Recent Immigration Legislation," University of Michigan Journal of Law Reform, Vol 32 (1998), p 197. Denial of Habeas rights to migrant refugees was finally overturned by the 9th Circuit in 2019's Thuraissigiam vs US. In June of 2020, the Supreme Court overruled the 9th Circuit's ruling by a vote of 7-2 with god-empress slay queen Ruth Bader Ginsburg voting with the majority – proving that perhaps she will be notorious for more than just gifting Donald Trump and the Republican Party an unbreakable majority on the Supreme Court for years, maybe decades, to come.
[38] NYT, "Slamming the Door," 4/19/1996.
[39] Ibid.
[40] Radley Balko, Rise of the Warrior Cop: The Militarization of America's Police Forces (New York: Public Affairs, 2014) p 207-212.
[41] Quoted in Balko, p 210.