McVeigh Attorneys Say They’ll Likely Seek 2nd Execution Stay

Lawyers for Timothy J. McVeigh said Sunday that they are launching a full investigation into newly disclosed FBI files and most likely will need yet another postponement in his execution date to complete their review.

Atty. Gen. John Ashcroft, however, said he will not grant another delay, raising the prospect that the case could return to federal court.

Also Sunday, a phalanx of senators from both political parties strongly urged everything from a full review of all FBI operations to congressional hearings, with several lawmakers saying agents should be prosecuted or fired if it turns out the files were deliberately kept from the defense.

Government sources said over the weekend that some of the 3,135 pages of newly disclosed material was discovered as early as January and February, and yet the McVeigh defense team was not alerted until his May 16 execution date was less than a week away.

While the FBI and Department of Justice officials have insisted that the documents do not show that McVeigh is innocent in the April 19, 1995, bombing of the Alfred P. Murrah Federal Building in Oklahoma City, his defense lawyers and the senators sharply criticized the bureau for holding on to the material for so long.

One senator said it suggested an “arrogance” on the part of the FBI that McVeigh should die without having been provided the documents, while another senator said it was indicative of a “cowboy culture” that has infested the bureau and led to a number of major mistakes in high-profile cases.

What is remarkable is that much of the criticism Sunday came from Republican senators, who now are urging President Bush to order a much broader review of the beleaguered agency than the one Ashcroft has ordered into the missing files.

McVeigh has been on death row for four years, since he was convicted in the bombing that killed 168 people.

He recently dropped all of his legal appeals and said he was ready to die.

He was scheduled to be executed and, had Ashcroft not granted a 30-day delay Friday, McVeigh would have become the first federal prisoner put to death in 38 years.

Nathan Chambers, one of McVeigh’s two attorneys, said on ABC-TV’s “This Week” that the new execution date of June 11 gives the defense only enough time for a cursory review of the new documents.

“We can read them in 30 days,” he said. But, he added, “we’re looking for anything that provides an arguable basis to go to court and seek relief.

“What we need to do, of course, is to examine the documents. We need to conduct extensive legal research. And we need to consult with our client. And from that process, a strategy will emerge.”

At some point before June 11, if Ashcroft does not budge, Chambers said it will be “certainly an option” to ask U.S. District Judge Richard P. Matsch, who sentenced McVeigh to die, for more time to review the situation.

Chambers and his co-counsel, Rob Nigh, said that, not only do they want to examine the new documents, they also want to determine whether the FBI purposely withheld the material from the defense in violation of a court-authorized agreement made before McVeigh’s trial. Furthermore, they said, they want to make sure that no other material still is being held back.

“It is of some concern to us,” Chambers said. “I mean, for years, the U.S. attorney insisted in this case that everything had been turned over, that the defense had been provided with all the evidence.

“And at this point, I think there’s cause to be concerned. Are we supposed to believe now everything really has been turned over? Now we have everything? Or are we going to learn next week that there are yet more documents? Are we going to learn next month that there are even more documents? Are we going to learn after an execution that there’s more documents?”

Once they have made a preliminary evaluation of the new material, Chambers said, they will ask McVeigh how he wishes to proceed. The two lawyers noted that, until last week, McVeigh was emotionally prepared for death, but they also stressed that he fervently believes it is important to determine how serious this FBI foul-up might be.

“He has committed to examining this situation carefully and thoughtfully,” Chambers said, “as he always does with any issue that confronts him. He is not someone who is given to rash decisions.

“He will consider his options carefully, deliberately, and together with us, he’ll make a decision how he wants to proceed.”

Added Nigh, speaking on CBS’ “Face the Nation”: “He wants to see how this could have occurred, and I think that he wants to evaluate the facts that are contained within the documents and his legal options. He, I believe, thinks that it’s very important that we determine how this could have happened.”

Beth Wilkinson, a prosecutor in the McVeigh case, conceded that the appearance of new FBI papers “was an unfortunate error” in McVeigh’s case and that of his convicted co-conspirator, Terry L. Nichols.

“We spent many, many months turning over an extraordinary amount of documents to the defense counsel in both the McVeigh and Nichols cases, and we went back to the FBI repeatedly to ask them for any additional documents that they had,” she said.

She said she understood that the documents had not been entered into the FBI’s comprehensive database initially and thus did not show up when the bureau responded to the Justice Department’s request to check for material McVeigh’s lawyers were entitled to see.

But she added that the material basically is useless for McVeigh. While much of it consists of witness statements about an alleged third conspirator, known only as John Doe No. 2, McVeigh never used as a defense during the sentencing phase of his trial the possibility that others might have been involved in the bombing.

“I have talked to some of the people who have reviewed these documents,” Wilkinson said. “They tell me that they’re very similar to the documents we’ve already disclosed to the defense.

“That is, many, many sightings of John Doe 2 and other information that would not shed any light on whether Mr. McVeigh was guilty or not.”

She also noted that McVeigh has recently confessed to the bombing and that “the evidence during the trial was absolutely overwhelming” against him.

But Nigh, saying that more than 30 days likely will be needed to review the documents, stressed that “we have to get to the precise factual background of how this could occur.”

“In a capital case where you’re attempting to have someone executed, this kind of an error simply cannot be justified--if error it was--and we need to have a very thorough inquiry concerning precisely how it could have happened.”

But Ashcroft disagreed, telling the Daily Oklahoman newspaper that the defense team now has plenty of time to review the new material and that a second postponement is not necessary. He also predicted that the courts will not grant McVeigh another day in court.

“We feel that ample time has been provided, and I have no intention of further extending this deadline,” Ashcroft said.

“These documents are not going to create any basis--that I could in any way foresee--for a new trial.”

Saying that he was concerned about how the victims and survivors of the bombing must feel--in addition to the 168 killed, more than 500 were injured--the attorney general said that “the last thing I want to do is to distress people who have already endured a kind of pain that none of us can even understand, let alone would want to endure.”

His chief spokeswoman, Mindy Tucker, acknowledged that many on Capitol Hill were calling for more scrutiny of the FBI.

“There are a lot of questions that a lot of people have for the FBI,” she said.

Ashcroft on Friday ordered an internal review into why the files just now turned up. But many on Capitol Hill said Sunday that much more needs to be done to improve the work of the FBI.

Sen. Charles E. Grassley (R-Iowa), a longtime critic of the FBI and its outgoing director, Louis J. Freeh, pointed to a long list of FBI missteps in big cases--the Branch Davidian siege near Waco, Texas; the shootings at Ruby Ridge, Idaho; and the botched investigation of nuclear scientist Wen Ho Lee.

“I think there is a management culture here that is at fault. I call it a ‘cowboy culture,’ ” Grassley said on “This Week.”

“It is kind of a culture that puts image--public relations and headlines--ahead of the fundamentals.”

Sen. Larry E. Craig (R-Idaho) agreed that there are systemic problems within the FBI, and that now is the time to correct them with the appointment of a new director. He worried that, because the bombing case was the largest investigation in FBI history, agents and supervisors may have become overconfident in their case against McVeigh.

“This might have been one of arrogance,” he said on CBS. “This was such a high-profile case; everybody knew that McVeigh was guilty.”

He said the FBI might have thought, “Why do we have to dot all the I’s and cross all the Ts?”

On “Fox News Sunday,” Sen. Arlen Specter (R-Pa.) recommended congressional hearings into the FBI, and said that if it is shown that FBI agents purposely withheld the documents, then people should be fired and prosecuted.

Others, such as Sen. Charles E. Schumer of New York, the ranking Democrat on a Senate Judiciary subcommittee that oversees the FBI, told CBS that he will urge Bush to name a special commission to examine the entire FBI.

“We’ve had mistake after mistake after mistake,” he complained.

And Oklahoma Gov. Frank Keating, a Republican who is considered a possible Bush nominee to run the FBI, said:

“I don’t think there’s anything insidious about this, but obviously the bureau needs to go in and look at this top down, bottom up.”