- The Washington Times - Tuesday, June 12, 2001

With Timothy McVeigh's execution yesterday, perplexing questions linger about one of the more enigmatic figures in in American history.
Why did McVeigh do what he did? And how should he be remembered and judged, not just legally but morally? Due to either the shortcomings or the mistaken deliberate strategy of McVeighs lawyers, the answers to these two important questions will never be given. Nor were these important questions ever asked.
There is little doubt that Timothy McVeigh carefully assembled the necessary explosives, placed his deadly load close to Oklahoma Citys Federal Building, and, finally, triggered the explosion that caused the death of 168 of his countrys innocent men, women and children. Did he deliberately intend for that many victims to be killed, or was he merely intending, symbolically, to "send a message" to a government that he had served, but, finally, had concluded to be callous and abusive? That question, too, was neither asked nor answered during McVeighs trial, sentencing or extensive appellate proceedings.
One might argue that none of these questions was either relevant or necessary for McVeighs conviction and death sentence. After all, he set out deliberately to endanger the lives of numerous strangers located at that early morning hour of April 19, 1995, in the Federal Building. At the very least, he displayed reckless disregard toward the bodily safety and lives of the Federal Buildings occupiers. That, indeed is all that the criminal law requires for the crime of murder the intent (mens rea) to take life, or a reckless disregard to the safety of others, accompanied by an evil or prohibited act (actus reus). The motive behind the crime of murder anger, greed, jealousy or love is irrelevant to the determination of guilt under our system of law. All that matters is merely a "yes" to the question: Was there the necessary intent to take life or to cause grave injury?
Yet in the minds of most, if not all, of us the question will long linger: Was Timothy McVeigh an American terrorist, a psychopathic killer, an insane and reckless fanatic, or a patriot gone wrong? The answer to this core question needed to be, and could have been, secured during Timothy McVeighs trial, sentencing, and more than two years on death row. It was indeed the duty of McVeighs attorneys to him, to the American public, and to American history to address and explore their clients motives for undertaking and carrying out such a horrendous deed.
True, motive is not needed for conviction, but motive is a most compelling consideration at sentencing. Evidence of motive is not only permitted, but it is also allowed to affect the sentence imposed. Motive might place the convicted person in a more or less sympathetic light. It might help determine the likelihood of the convicted person committing other and future offenses. Even though not affecting the finding of guilt, it might affect the severity or leniency of the sentence to be imposed.
Unfortunately, no, or hardly any, reference to Timothy McVeighs motive was ever made by his attorneys, at trial, at sentencing, or anytime afterward.
That the question of motive was not only permissible but also critical could not have been plainly overlooked by his counsel. After Timothy McVeighs trial and conviction, the lead attorney for Terry L. Nichols, McVeighs alleged co-conspirator, noted critically that McVeighs jurors claimed to never having understood his motives.
One can only speculate as to the reasons for such failure to raise the motive issue in either the trial or sentencing. Possibly counsel in both the McVeigh and Nichols cases were reluctant to raise an issue that might politicize the trials and possibly prejudice the interests of their clients.
But, as we have seen previously, questions of motive may be raised at sentencing, and at that time, after conviction, evidence of motive is more likely to benefit than negatively prejudice ones client.
Motive assumes additional significance in light of the 1969 American Convention of Human Rights prohibition against imposing the death penalty on political offenders. The United States, admittedly, is not a signatory of that document which, generally, binds the whole inter-American community.
Nor is it compelling to argue that Timothy McVeighs mass murder was a political rather than a terrorist act.
The McVeigh case did provide us, however, with a most appropriate and timely opportunity to clarify that civil disobedience and even violent resistance to evil government are not always contrary to Americas heritage and law. After all, the Founding Fathers were such resisters and no less an American icon than Thomas Jefferson enjoined us that "rebellion against tyranny is obedience to God."
But the lesson to learn, for all times, from Timothy McVeighs tragic life is not that retribution reigns supreme, but that the American system of governance does afford reasonable, if not always adequate, means for resolving grievances against a mistaken, or even an evil, government.
Moreover, we, our children, and generations to come must be reminded that even just ends do not justify all means, and that the lives of innocent bystanders cannot be taken or risked because of perceived grievances, real or imagined, against one public official or another, against one governmental policy or another. Those who overlook or deny the compelling need for such distinctions, and ignore the duty to abide by them, indeed assume the risk of becoming and being labeled and sentenced as "terrorists."

Nicholas N. Kittrie is University Professor of Law at American University and author of "Rebels With A Cause: The Minds and Morality of Political Offenders" (Westview, 2000), and of "The Tree of Liberty: A Documentary Sourcebook of Rebellion and Political Crime in America."


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