Does A Dead Man Have A Right To Privacy? or When Is It “Safe” To “Do History” ?
By Wendy S. Painting, October 12, 2009

Recently I received troublesome news about my research into the 1995 Oklahoma City bombing. As part of my PhD dissertation about the tragedy, I have corresponded with federal death row inmate, David Paul Hammer. Hammer awaits his fate in Terre Haute, Indiana, where he was formerly housed with another death row inmate, Timothy McVeigh, executed in 2001 for his role in the bombing. During their shared time on death row Hammer claims that McVeigh confided some very important details about the bombing which he wanted Hammer to bring to light after McVeigh’s execution. Hammer did this in his 2004 book “Secrets Worth Dying For.” Many of the claims that Hammer makes may sound bizarre to some, such as McVeigh’s insistence that he had been tasked by authorities to infiltrate ‘right wing extremists,’ yet after souring the defense documents of McVeigh’s legal defense team, I found many which corroborate and support some of Hammer’s various claims, including medical and military records, as well as other types of documentary evidence.

When Hammer asked me if he could use my writing and research in the next edition of his book, I agreed to this. I personally felt that it was necessary to share what information I had with Hammer, who has little access to outside sources beyond the statement McVeigh made to him. He lacks the ability within prison to corroborate or negate many of them, yet he still has an important story to tell. In pursuit of this, I have shared with Hammer drafts of my own work and writing, detailed timelines reflecting years of information gathering, analysis and conclusions that I have come to about the bombing, as well as official supporting documents and evidence. Among these are portions of military records which show that Timothy McVeigh was exhibiting many of the physical and emotional symptoms of Gulf War illness, after his return from the battlefield. In no way did I view the material I sent to Hammer as posing a threat to anything, except possibly the writing of contemporary history.

Word got back to me in late summer of 2009, by way of a surviving family member of two victims of the bombing and who regularly corresponds with Hammer, that he was not receiving my mail. This type of censorship has been an ongoing barrier to my research endeavors. During this time period my mail was also being blocked and censored to another federal inmate with pertinent information about the bombing, who knew many of the central actors involved, and who has tried, unsuccessfully thus far, through the legal process and through journalists to tell what he knows to officials and the larger public. In July 2009, much of my mail to this former inmate was rejected and returned to me (months later), despite the fact that all of it was public information and had been printed directly from the internet. All of it concerned recent news articles reporting on the resurgence of “right wing extremism,” and news regarding inmate abuse.
Recent internal emails written by Bureau of Prisons officials, which have come to me via Hammer and his attorney, have strengthened and confirmed my belief that I (and my subjects) have been censored, without adequate reasoning.

One email dated June 22, 2009 written by a prison official at Terre Haute to the BOP legal team reads “Hammer received three large manila envelopes yesterday full of material dealing with ex U.S.P Terre Haute inmate Timothy McVeigh …” The email goes on to list the public source, but not widely disseminated, documents which I had sent Hammer. The BOP official then asks “I see no reason for Hammer to receive this information. Can we reject it legally somehow? Does a dead man have a reasonable expectation of privacy? The woman [me] who sent this material accumulated it from court records and possibly FOIA requests….,” The emails then claim that the disputed material may violate McVeigh’s attorney client confidentiality. The problem here is that McVeigh had waived his rights to this confidentiality prior to his execution, allowing the documents to be made public. Additionally, the 1995 Oklahoma City bombing is an important piece of contemporary American history, and it is hard to fathom why a more complete understanding of the tragedy, including the more esoteric aspects of the case, would be seen as threatening. In point of fact, among those who are engaged in this process of “historical recovery,” the most outspoken tend to be those who survived the bombing themselves, or who lost loved ones in it. For them, their inquires represent much more than academic or journalistic interest and they may feel that Timothy McVeigh lost his right to a private life, the day he (and Other’s Unknown) drove an explosively loaded Ryder truck to the front of a federal building, which resulted in the loss of over 180 lives, many of them children. Never in my mind during my years of research, did I imagine I would have to argue that McVeigh’s supposed right to privacy is superseded by the needs and rights of others, who are very much alive. I had always thought that was self evident.

After several emails and responses between five BOP officials, a conclusion was reached that the easiest way to prevent the material from reaching Hammer is to claim that it would violate the “security, safety , and orderly running of the institution.” As far as violating the orderly running of Death Row, or the prison establishment in general, I am at a loss to see how the reading and research material I have provided to Hammer constitutes this. Will a riot break out when it is learned that McVeigh suffered from Gulf War illness? Will security of the prison be breached when it is learned that McVeigh’s military records are actually unclear about his dates of service and his given tasks? I doubt it.
This recent censorship raises some very serious concerns such as the rights of federal prisoners to access the media, legal advocates and scholars, which at times may be their only recourse to prison abuses, as well as concerns of censorship in general, be it academic or journalistic. The bombing of the Murrah federal building occurred almost fifteen years ago, yet I fear that it will take much longer than this for a public accounting of facts surrounding the case.