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Should America Watch Timothy McVeigh Die?

Aired April 13, 2001 - 12:30   ET



KATHLEEN HAWK SAWYER, DIR., FEDERAL BUREAU OF PRISONS: Provided there are no legal impediments to proceeding, the marshal will inform the warden to proceed. At this point, the lethal chemicals will be administered. The warden will announce the time of death and inform the witnesses that the execution has concluded.


ROGER COSSACK, CO-HOST: Federal authorities prepare to execute their first prisoner in 38 years. Oklahoma City bomber Timothy McVeigh is scheduled to be executed at 7:00 a.m. on May 16. And victims' families will be able to watch it via closed-circuit television.


JOHN ASHCROFT, ATTORNEY GENERAL: The Bureau of Prisons will work with the FBI's Crisis Response Unit to provide a highly reliable and secure closed-circuit audio and video transmission from the United States penitentiary in Terre Haute to the designated site in Oklahoma City.


COSSACK: Today on BURDEN OF PROOF: How easily can Timothy McVeigh put the legal brakes on his death sentence? And will increased media coverage inject terrorist venom into American culture?


ASHCROFT: We are already being sued to provide more publicity for this execution. I would ask that the news media not become Timothy McVeigh's co-conspirator in his assault on America's public safety and upon America itself.


ANNOUNCER: This is BURDEN OF PROOF, with Greta Van Susteren and Roger Cossack.

COSSACK: Hello and welcome to BURDEN OF PROOF. Timothy McVeigh is responsible for the deaths of 168 people. Now federal authorities are taking extraordinary measures for survivors of the Oklahoma City bombing to witness his execution. A closed-circuit television feed of McVeigh's last moments will be sent to a yet-to-be- determined site in Oklahoma City.

Plus, two additional victims' family members will be attending the execution. In all, 10 family members and 10 members of the media will be on hand in Terre Haute, Indiana to watch the execution.

And joining us from Oklahoma City is Tom Kight, who lost his stepdaughter in the tragic explosion of the Alfred P. Murrah building six years ago. In Atlanta, we have former federal prosecutor Joe Whitley; and here in Washington: Vanessa Parker Johnson (ph); former lead defense attorney for Terry Nichols, Michael Tigar and Jessica Spradling (ph) -- in the back: Charlene Nimrodi (ph) and Roosevelt Johnson (ph).

I want to go right to you, Tom. Tom, you, of course, are perhaps the most -- the most input in this. You lost a relative. And now the final moments are coming. Are you in favor of the execution being televised?

TOM KIGHT, FRANKIE ANN MERRELL'S STEPFATHER: Well, I am for the families and the survivors, just as I was for the trials out of Denver that we had here in Oklahoma City, because there were a lot of people that -- maybe for some, it is closure -- certainly not for me. But I feel that this an opportunity for those people who need this to have the -- have that opportunity to see the execution.

I was at the hearing when the attorney general, Ashcroft, came down here with the family members. And there was certainly a great need for many of them to see this execution.

COSSACK: Tom, in America, we do not usually -- in fact, I can't think of any time when there would be a public execution like this, something that would be on television. And if you are getting ready to chastise me when I say "public," you are right -- a closed-circuit television of this execution. Is there is a chance that, by doing that, that you are making someone like McVeigh out to be a martyr rather than what he is?

KIGHT: Well, I wouldn't like to think we are trying to make him out as a martyr. I think it is need of families outweigh the point of being a martyr, that their needs -- and because there are so many. And, you know, it would it be nice if we could all have been accommodated at one place.

And this is a lottery that they draw the eight, now 10 names from. And so it is just a very emotional time. And I am personally not for public execution. I think 1936, in Owensboro, Kentucky was last one. And that was a hanging. And there were 10,000 people came out there with hot dogs and stuff. And I'm totally against public execution.

But I -- just to hear the stories of so many of them when I was up there in that hearing with the attorney general, there is a great need. And I think it -- their need outweighs the martyr part of McVeigh since it is not being publicly televised to a nation.

COSSACK: Joe, normally, in a death sentence, not all the victims would have the absolute right to watch the execution, would they?

JOE WHITLEY, FMR. FEDERAL PROSECUTOR: No, not -- there is a limit on the number of people who can be in the viewing area to watch the sentence carried out. But this case I agree is so unique; 168 people lost their lives. I visited in Oklahoma City a number of times. And to see the memorial, it sends you such a clear message that this city is always going to be living with this issue.

This does give some people some closure. For others, it may open some wounds. But I think I agree that this has to be televised in a closed-circuit fashion. Hopefully, no one will get access to this particular viewing other than the family members.

COSSACK: All right, we're going to get to that in just a moment. Let me ask you some procedural questions, though, regarding McVeigh. One of the reasons that this execution is occurring so quickly is because McVeigh waived his rights to appeal, leaving the judge with nothing else to do but set an execution date. What is left for McVeigh is very limited. He could ask for clemency, though, couldn't he?

WHITLEY: He could ask for clemency. And he could, as I understand it -- and I don't think that will happen. Based on President Bush's history in Texas with the death penalty, I don't think he will interfere with this. But he could ask at the very last minute -- and I think procedures are being set up, Roger, so that the last minute he wants to reinstitute his appeal, that could be considered by a judge. And I think that might very well happen.

COSSACK: Now, if, in fact, he would reinstate -- ask to reinstate his appeal, there would be a whole issue to be litigated about whether or not his previous waiver would be final and whether or not he would be, therefore, entitled to have an appeal. What would happen if that happens?

WHITLEY: My thought on this is, in this kind of case, with this kind of publicity, that a court might be inclined to say that you get one more opportunity to have your appeal considered, if you would -- say he was mistaken in the consideration of his waiver earlier, but he is on the record as saying he wants to have this execution take place, wants to see to it proceed, does not want to have his appeal heard. So it is just anybody's guess, Roger. And you know that better than anybody.

COSSACK: Right. Right. Michael, it would take a fairly dynamic or brave judge or judicial body to reinstate Timothy McVeigh's appeals after what's occurred.

MICHAEL TIGAR, FMR. ATTY. FOR TERRY NICHOLS: It goes with the territory. Article III of the Constitution says that judges are independent. In fact, Timothy McVeigh's waiver is, as I wrote Judge Matsch at the time, subject to question. It was delivered from death row over closed-circuit television. He was not personally present in court. Judge Matsch did not have opportunity to observe him personally. And so it seems to me that that is a procedural defect that a lawyer for Timothy McVeigh could raise if indeed he wanted to reinstate his appeal.

COSSACK: And so, if Timothy McVeigh at the last moment, decided that he wanted to reinstate his appeal and brought up the issues which I think many lawyers thought of at the same time, which was: Doesn't he have to be able to be observed personally waiving these rights? I'm not saying it's a winner, but I'm saying it's certainly an arguable count. Then this whole procedure could stop, theoretically.

TIGAR: Well, it could. But the issue that you came here -- I hesitate to disagree with people like Tom Kight, who has been so courageous and so down the middle on this, and with people who have lost so much, as the Kights have. The victims in this case were given every accommodation. They were transported. They had transportation to go to the trial.

The federal rules of evidence were waived so that they could attend the trial and be witnesses. And then one by one, they took the stand in open court and told their stories. There were 55 of them testified, for example, in the Nichols case alone -- so that there is no reason, based on the victims' needs, to depart from an historic American idea that executions are private.

Moreover, Tim McVeigh blew that building. There isn't any question about that. And he did it as a part of cycle of violence in which he invoked the image of the tragedies of Ruby Ridge and Waco. I think that pandering to the statements, not of the Kights, who have always been dignified, but of some of these victims' representatives, who speak in a vengeful and retributive way about this, means that this act by the attorney general can potentiate the cycle of violence, rather than do what the proponents of the death penalty say you ought to do. And that is to deter and to teach.

How in the world this can bring about the kind of compassion and respect for life we need to prevent more Oklahomas is quite beyond me.

COSSACK: Michael, somebody would argue that deterrence might be in seeing Timothy McVeigh take his last breath, that that is a powerful statement and that would act as a deterrent.

TIGAR: Well, we have some historical examples, Mr. Kight talked about Owensboro, Kentucky. They used to have public executions in Great Britain, which -- at Tyburn Tree, which were the occasion for more organized criminality than any other public gathering in England at the time, which is why they stopped doing it, because all the pick- pockets and others would show up. And it became a kind of -- a side show, as well as occasion for further criminality.

So I think the historical evidence is in on that. And, of course, the attorney general of the United States -- you know, a man that doesn't understand the First Amendment, as he clearly doesn't, by saying the media are potentially coconspirators, isn't likely to understand the remaining amendments either.

COSSACK: We're going to get into that in just a second. Let's take a break.

Up next: Do average Americans have a First Amendment right to watch the closed-circuit signal of McVeigh's execution? Well, an Internet company is taking the Justice Department to court. Don't go away.


The last person to be executed by the federal government was Victor Feguer on March 15, 1963. Feguer, convicted of murder and kidnapping, was executed by hanging at the Iowa State Penitentiary.



COSSACK: The Justice Department has asked a federal court to throw out a lawsuit brought by a company seeking to Web cast the execution of Timothy McVeigh. In citing a 1977 case involving a news photographer's quest to film a state execution, Justice lawyers argue that the First Amendment does not extend to matters -- quote -- "not accessible to the public, generally."

Now, Attorney General John Ashcroft, the warden of the federal penitentiary in Terre Haute, and the director of the Bureau of Prisons have all been named as co-defendants in this case, along with Attorney General John Ashcroft.

So let's talk about what this lawsuit is all about.

Joe, there is an Internet company out of Florida that said: You know, if you are going to put it on, then you've got to put it on. And the First Amendment says that we have a right to watch this. You can't limit it to certain people.

And, interestingly enough, in his response, the warden says: Well, you know what? If you have a public broadcast, it would violate the privacy of the condemned person. It would strip the dignity from other death row inmates.

Now, I'm not sure how much dignity they have. And I'm not sure -- if you have a right of privacy, then why is it put on at all?

WHITLEY: Well, I think it's more or less policy within the Department of Justice that these will not be televised. And, then again, as we all know, the First Amendment has limitations. You can't shout fire in a crowded theater. There are certain things you can't do.

And the First Amendment is not without limitation. And I think the filming of this or the sharing of this broadcast with the victims and the adjacent court -- not courtroom, but the area in Oklahoma City, is an appropriate expansion of the current rule. I don't think there is any real change here. And I think that is what the department is arguing. But I think if the Internet company were to prevail, certainly, this execution should not go forward until this is appealed all the way to the Supreme Court and resolved there.

Michael, the First Amendment is being invoked here in saying...

TIGAR: Well, I'm sorry to disagree with Mr. Whitley. You can shout fire in a crowded theater if there is a fire in the crowded theater. Now, what Justice Holmes said was: You can't falsely shout fire in a crowded theater.

The point is, the First Amendment guarantees access to truthful information about public affairs, subject to very, very stringent limitations. And thus, I -- it's impossible for me to see how you can rebag this cat. Once you have said you are going to let it out by closed-circuit, then the governmental justification for keeping it secret evaporates. Now, of course, I'm opposed to any cast of it at all. I mean, I simply don't see how, for example, Terry Nichols could ever get a fair trial in Oklahoma after all of this stuff.

But if you are going to do it, then I think the Justice Department is taking an inconsistent position.

COSSACK: Joe, that is the argument: that it is inconsistent. I mean, that is basically the argument that, once you put this thing out there, that, in fact -- and it is with the inconsistency of what the warden says when he starts talking about the right of privacy of other inmates. Well, you know, McVeigh would have a right of privacy.

WHITLEY: Right. I don't -- I don't -- I'm not focusing on the right of privacy in my response to what you are saying here. And one of the things that I would say in response to this is that we had a grand jury proceeding in recent times that was televised back to the grand jurors.

It seems to me that the rule allows and permits family members to watch the execution. In this case -- we have never had a case like this where we had 168 people, innocent people in Oklahoma City who were killed maliciously by Timothy McVeigh. And it seems to me that, in this case, this is a reasonable expansion. We'll hopefully never have another case like this. This case is outside any precedent and I think supported by precedent at the same time.

COSSACK: But what about First Amendment argument, Joe? I mean, there is eventually going to have to -- some judge is going to have to rule on the notion of a little bit of the First Amendment vs. the whole First Amendment.

WHITLEY: I think the right of the government to execute this prisoner in this fashion, as they have done in any other situation, states -- primarily because this will be the first federal execution in 37 years, I believe, but the precedent is there for not televising these executions. And I think the judge will be very entitled to say the First Amendment in this situation does not reach televising this execution to the American public.

It is only going to be televised via closed-circuit television to family members.

COSSACK: Let me interrupt for a second, Mike. We've got about 25 seconds left -- your response to that.

TIGAR: Well, the grand jury secrecy analogy falls apart. The Supreme Court's decision in Butterworth vs. Smith said the First Amendment places stringent limits on grand jury secrecy. So I just fail to see the argument. I can't predict how it will come out. I mean, the Supreme Court of the United States has shown its ingenuity in finding new constitutional provisions. There it is.



COSSACK: All right, let's take a break. When we come back: How will the federal -- how will the feds keep hackers' hands off the McVeigh execution feed?

Stay with us.


Q: According to a government study, gun deaths dropped by how much during the mid-1990s?

A: More than 25 percent -- in 1998, there were 11.4 gun-related deaths per 100,000 people, which is the lowest level since 1966.



COSSACK: Experts say it would be difficult, but possible, to intercept the television signal of next month's execution of Oklahoma City bomber Timothy McVeigh. Attorney General John Ashcroft said prison officials will work with government specialists to send secure audio and video to Oklahoma City.

So joining us now from San Diego is Eric Sprunk, an expert in cryptotechnology.

All right, Eric, how safe can it ever be for this kind of event to happen? Will there be hackers who will be able to come in and pick up that signal?

ERIC SPRUNK, EXPERT IN CRYPTOTECHNOLOGY: Well, it is very, very difficult to make statements of absolutes in things like this. But, on the other hand, it is certainly true that the technology to do this correctly exists, exists in a number of domains.

But, at the same time, this is a very unusual circumstance, where we have a kind of a confluence of multiple parties interested in stealing this signal in a way that I don't think I have ever encountered before. And that certainly makes a challenge for securing the signal, unlike many other situations we have ever seen.


COSSACK: How do they encrypt the signal? What is -- what happens?

SPRUNK: Well, the process of encryption itself works best when you are in the digital domain and you have digitized the signal, so you can use state-of-the-art, powerful encryption algorithms on it, so that you can really raise the barrier to someone figuring out the key to a really astronomical level. And so that is kind of one of the first requirements, is you have to do a really a good job of that encryption step.

COSSACK: But there is equipment that is set up specifically to break these kinds of codes?

SPRUNK: Well, there are ways that certain types of codes can be compromised. And there have been some conspicuous examples of that in the past. However, very, very powerful technologies -- especially those in some commercial and military domains -- really haven't been cracked in any known way. And if they are used, they should really take care of the encryption part of this large security issue pretty effectively.

COSSACK: If you were going to -- if you wanted to break this code, and, you know, with your specific kind of knowledge -- and I'm not suggesting that you are -- but if someone with your kind of knowledge wanted to break the code, what would they do?

SPRUNK: Well, I would probably first try and sneak through the human aspect of this situation, because the motivations of a large number of people in this situation can, perhaps, be swayed by a bit of money applied in the right place. Or they may have some political agendas or something such as that that means there is a lot of different places where the signal could potentially be tapped before or after it's encrypted.

It could be possible to smuggle cameras in, to film the event without people knowing about it. And, of course, there are more traditional tapping means, including some the public may not be too aware of, like picking up on scanning frequencies on monitors, either at the transmit or the receive sites. All these are possible ways that I would try to get closer to the actual event in order to get my hands on the signal.

COSSACK: And how -- what will the government do to prevent that kind of activity from taking place?

SPRUNK: There is a large number of steps. And, certainly, based on the statements that Mr. Ashcroft has made in the interviews that I have heard, he seems that he appreciates the challenges there. But you certainly must use very, very high-grade encryption. It is a very good idea to transport that signal in a secure environment. Fiber- optic delivery has been mentioned. That is a very, very good choice.

COSSACK: All right, Eric, I just have a few seconds left. If you had to put it into percentages, what you would say the chances are that someone will be able to steal this signal?

SPRUNK: I would say that if the government spends all the right effort and gets good independent review, the chances are very high that there will be no theft. But it only takes one guy in the chain in the wrong place that nobody inquired or checked whether he was tapping in, and then you might have this thing on the Internet, just like we are afraid of.

COSSACK: All right.

That is all time we have for today. Thanks to our guests. Thank you for watching. Join us again Monday for another edition of BURDEN OF PROOF.

I will see you then.



4:30pm ET, 4/16

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