March 18, 2005, 9:20 a.m.
Conservatives & Terri Schiavo
The Washington Post gets it totally wrong.

The Washington Post editorial this morning regarding Terri Schiavo is shamefully disingenuous. It tut-tuts at the alleged inconsistency of conservatives, who have led the fight to limit federal courts from using habeas-corpus procedures to second-guess state court rulings involving even capital defendants, but who are nonetheless seeking to thrust federal judges onto to state courts of Florida for a review that might save Terri’s life. After blathering at some length in this vein, the paper winds up by declaiming that Congress’s “message to state courts is that they can do as they will with accused criminals and rely on federal law to shield them from review, but Congress will pull out the stops to overturn rulings — however local — that members don't like.” (Italics mine.) How ridiculous.

First of all, the state defendants whose cases are reviewed on federal habeas corpus, including those facing the death penalty, are not accused criminals. They are convicted criminals, including convicted murderers. By the time their cases reach the federal courts, years after their crimes, they have had: a full-blown state trial (or guilty plea) at which they were presumed innocent and the state had to establish their guilt beyond a reasonable doubt; an extensive appellate review in the state appeals courts; an additional appellate review in the state’s highest court; and an additional opportunity to seek habeas-corpus relief in the state courts if they can establish some violation of their fundamental rights in the trial proceedings.

Second, conservatives (and Congress) have not barred these convicted felons from seeking federal habeas-corpus review. The federal habeas-corpus statutes were amended in 1996 — on the signature of that well-known conservative, President Bill Clinton — to limit convicts to a single bite at the apple. This was necessary because these inmates would generally hold back some of their claims of legal violation (99 percent of which are frivolous) so that when one habeas petition inevitably failed they could simply file successive ones, ad infinitum, and thus forever seek to undo richly deserved sentences or postpone execution in death cases. Further, even these amendments did not actually limit the prisoners to a single federal habeas claim. There are built-in escape hatches for additional challenges if the convicts can show newly discovered facts or newly developed law.

Third, the Schiavo bills — which, it bears noting, Congress failed to pass last night — would not have done anything more than allow a federal court to review the state court proceedings to ensure that there was no deprivation of a cognizable right under the U.S. constitution or federal statutes. —

The facts of the Schiavo case are repugnant. — Notwithstanding the Post’s insistence, it is not clear that Terri is in a persistent vegetative state (merely watching the video footage strongly suggests otherwise, and even the Post’s editorial does not endeavor to defend the manifestly inadequate medical examinations that purport to underpin the PVS diagnosis); nor is there convincing evidence that Terri, when she was stricken at 26 years of age, had even given much thought to whether she’d want to continue living in her current condition, much less expressly asserted that she would not. Still, it is far from obvious that the facts of this case will establish a violation of federal law. If there hasn’t been such a violation, the Schiavo bills being debated would not permit the federal court to reverse the state courts, even if the federal judge disagrees with how the state courts handled the matter.

Finally, as for the alleged inconsistency, there is, of course, no greater iniquity than treating two unequal things as if they were the same. The Washington Post’s editorial board should find another line of work if it cannot discern the difference between, on the one hand, a murderer who stands convicted despite having had had rich resort to various state and federal tribunals — including a jury of his peers — with the advantage of every legal and factual presumption our system can offer, and, on the other hand, an innocent woman who is alive and responsive to stimuli, who has parents ready and willing to care for her, and who is about to be subjected to two weeks of torture — starving and dehydration — that the Washington Post would have a cow over if it were applied, say, to interrogate Khalid Sheikh Mohammed.

The right of the innocent to live isn’t contingent on the good will of governments and courts. — It derives from a higher law, as does the obligation to defend it. That there is such a higher law is not just an American principle (see the Declaration of Independence), a conservative principle, or a Judeo-Christian principle. When those defending Terri Schiavo’s right to live reject the state of Florida’s antinomian determination that she may be slowly starved to death, they echo Sophocles’ Antigone, facing down King Creon, across the millennia:

For me it was not Zeus who made that order.

Nor did that Justice who lives with the gods below

mark out such laws to hold among mankind.

Nor did I think your orders were so strong

that you, a mortal man, could over-run

the gods’ unwritten and unfailing laws.

Not now, nor yesterday’s, they always live,

and no one knows their origin in time.

So not through fear of any man’s proud spirit

would I be likely to neglect these laws,

draw on myself the gods’ sure punishment.

If the Post and others cannot see that, our answer must be Antigone’s:

And if you think my acts are foolishness

the foolishness may be in a fool’s eye.

— Andrew C. McCarthy, who led the 1995 terrorism prosecution against Sheik Omar Abdel Rahman and eleven others, is a senior fellow at the Foundation for the Defense of Democracies.

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