Fair notice, even for terrorists: Timothy McVeigh and a new standard for the ex post facto clause

Washington and Lee Law Review, Spring 1999 by Gottman, Andrew J

281. See Government Press Release, Torricelli Seeks to Stop Hero's Burial for McVeigh, 1997 WL 4434042, at 100 I (giving reasons for introducing legislation similar to Senate Bill 923). The press release also stated that Congress must change the law "to ensure that McVeigh's most heinous of crimes will exclude him from a hero's burial." Id 282. See 143 CONG. REc. S5923-24 (daily ed. June 18,1997) (statement of Sen. Campbell) ("Our Nation remains outraged at that terrorist act and the individual who was convicted of committing it. We now are further outraged at the thought of that person being eligible for burial in a military cemetery beside our fallen brothers and sisters."). Senator Campbell also stated that he cosponsored "S. 923 to be absolutely certain that any individual convicted of a crime as heinous as the Oklahoma City bombing will never be buried among our Nation's heroes." Id at S5924. Likewise, another senator stated that it would be a "desecration" to bury McVeigh in a national cemetery. Id. at S5923 (statement of Sen. Nickles).

283. See Flemming, 363 U.S. at 616 (noting that purpose "to reach the person, not the calling" could establish punitive intent (quoting Cummings v. Missouri, 71 U.S. (4 Wall.) 277, 320 (1866))).

284. See Hearings, supra note 24, at 6 (statement of Rep. Knollenberg) (noting that "[t)he

most heinous domestic terrorist act ever committed ripped apart the insides of our country" and questioning whether McVeigh should be buried in national cemetery).

285. See id. at 47 (statement of Rep. Bachus) ("We are here today to make sure he [McVeigh] also forfeits the honor of being buried alongside our fallen heroes."). Representative Bachus also stated that McVeigh's actions showed that he was neither a good soldier nor a good citizen and should forfeit his right to burial. Id. at 48. 286. See id. at 25 (statement of Johnny Killain, attorney for Congressional Research Service) (noting that McVeigh was present in spirit).

287. See id. at 83 (statement of Rick Surratt, spokesman of Disabled American Veterans) (calling forfeiture of burial rights punishment and arguing that Congress should not punish veterans convicted of capital crimes any more than others); see also Flemming v. Nestor, 363 U.S. 603, 632-33 (1960) (Douglas, J., dissenting) (noting that statements seeking to limit precedential force of sanctions indicate punitive intent).

288. See Flemming, 363 U.S. at 633 (Douglas, J., dissenting) ("The aim and purpose are clear - to take away from a person by legislative fiat property which he has accumulated because he has acted in a certain way or embraced a certain ideology."). 289. See Hearings, supra note 24, at 17 (statement of Rep. Evans) ("[T]he congressional intent is to preserve the sanctity of veterans' cemeteries."). Representative Bob Filner reinforced Representative Evans's statement when he stated that the aim of the hearings was to "determine if this bill [H.R. 2040] would preserve the dignity of the hallowed grounds that our nation has set aside as final resting places for America's veterans." Id. at 60. Representative Filner stated that Congress's goal was not to punish. Id. Both Representative Evans's and Representative Filner's statements are suspect, however, for reasons discussed later. See supra notes 405-13 and accompanying text (discussing problems with manufacturing legislative history); see also 143 CONG. REC. H9839 (daily ed. Oct. 31, 1997) (statement of Rep. Bachus) ("The bill [S. 923] is not to punish; the bill is to protect our veterans. It is to respect our veterans. It is meant to protect them. It is not punitive."); 143 CONG. REC. S5923 (daily ed. June 18, 1997) (statement of Sen. Torricelli) (expressing incredulity that graves next to fallen heroes could be filled by someone who committed capital offenses against United States government and noting potential difficulty in explaining that eventuality to veterans' families).

 

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