At War in America

by David B. Kopel

Thursday, September 23, 1999

Originally published on

David B. Kopel is co-author of No More Wacos: What's Wrong with Federal Law Enforcement and How to Fix It. The book was given the 1997 Thomas S. Szasz Award for Outstanding Contributions to the Cause of Civil Liberties, presented by the Center for Independent Thought. The first chapter of the book, and other Waco resources, are available for free at

Eighty-two people, including 26 children, were murdered at the Branch Davidian compound near Waco, Texas, on April 19, 1993. More than six years later, the cover-up of what happened at Waco may be unraveling.

Assessing blame

There is little reason for optimism about the new probe, however. While former Sen. John Danforth (R-MO) is an honorable man, he allowed Attorney General Janet Reno to choose the probe's second-in-command: Edward L. Dowd, the U.S. attorney for the Eastern District of Missouri. Dowd is as politicized as a U.S. attorney can be; during last spring's election in Missouri on handgun licensing, Dowd illegally used his office and federal funds to campaign against the referendum, saying he had received specific authorization from Reno herself.

If Reno is really interested in full exposure of the truth, why did her attorneys continue to resist the federal judge's order to turn over all evidence about Waco -- even after Reno had made her big show in Washington about wanting to stop the cover-up? The federal attorneys retreated only when Judge Smith threatened to hold them in contempt of court.

U.S. attorneys in Arizona, representing the FBI and the Bureau of Alcohol, Tobacco and Firearms (ATF), acted in such flagrant defiance of the Freedom of Information Act that a federal judge was forced to impose sanctions against them -- for years of illegally refusing to release audio and videotapes of the Feb. 28 BATF raid and the April 19 FBI assault. (For more on the Arizona FOIA case, see link).

The Senate Judiciary Committee and the House Government Reform Committee have promised to hold hearings on Waco, but these committees face two major problems. First, if the Danforth investigation convenes a grand jury, the Department of Justice may withhold evidence from Congress, claiming that the grand jury's work must be completed first.

Second, there is great danger that congressional hearings may degenerate into a Republican effort to "get" Reno, balanced by a Democratic effort to "get" FBI Director Louis Freeh. Whatever the sins of Reno and Freeh, they were committed only in obstruction of justice regarding the tragedy at Waco after it happened.

Freeh was a federal judge when Waco took place. Reno made a mistake in authorizing the FBI tank attack on April 19, but her decision was an honest mistake. The FBI lied to her about the danger that CS chemical warfare agent posed to children, lied to her about ongoing child abuse (Koresh had perpetrated it in the past, but the FBI listening devices showed no evidence of it during the siege) and lied to her about the FBI behavioral experts' predictions about what would happen if the FBI attacked.

More important than punishing any particular office-holder for the cover-up is fixing the conditions that led to Waco in the first place. So instead of just holding hearings to figure out whom to blame, Congress should accept responsibility for its own mistakes, and then fix the laws that made a Waco-style disaster inevitable.

The Waco Posse

Congress should begin by abolishing the legal loopholes that allow use of the military in law enforcement against American citizens.

According to recent disclosures from a former CIA official, the U.S. Army's elite Delta Force was "up close and personal" during the tank and chemical-warfare assault that brought the 51-day siege to its horrible conclusion. The new official line from the government, however, is that there were only three (or perhaps 10) men from Delta Force, and they were merely observers. President Bill Clinton strenuously denies having signed a waiver that would have allowed Delta Force to participate actively in the assault on the Branch Davidian home.

All these equivocations overlook the underlying issue: Why was the military involved in Waco at all, even if merely as "observers"? And why were they also involved -- as everyone admits -- as the creators of the plan for the FBI's tank and chemical-warfare attack?

The federal "Posse Comitatus Act" unequivocally forbids use of the military in law enforcement. Passed in 1878, the act provides an important civil-liberties guarantee for all Americans, by separating the military (whose job is to destroy the enemy rapidly) from law enforcement (whose ''peace officers'' are supposed to minimize the use of force, and to scrupulously protect everyone's rights).

Unfortunately, in 1981 and 1989, Congress created ''drug exceptions'' to the Posse Comitatus Act. These drug loopholes allowed the military to get involved at Waco at the outset of the federal assault. Before conducting the disastrous initial raid against the Branch Davidians on Feb. 28, 1993, the ATF had received Green Beret training and military equipment. On the day of the raid, the Texas and Alabama National Guards joined the ATF.

All this military involvement was made possible because the ATF claimed that its investigation of the Branch Davidians (for unpaid federal gun taxes) was really a drug investigation. This was nonsense; the Branch Davidians (an offshoot of the Seventh-Day Adventist church) were fiercely anti-drug. Years before, the man who occupied the Branch Davidian property had been running a methamphetamine lab; one of Koresh's first acts upon getting control of the land was to call the local sheriff, and ask him to haul the lab away.

Instead of serving a search warrant via a paramilitary attack, the ATF should have followed the same peaceful approach as the McClennan County (Waco) sheriff did. McClennan Sheriff Jack Harwell had arrested Koresh and his followers once, and confiscated their weapons -- and the Branch Davidians had cooperated without resistance.

Similarly, if Delta Force had not been constantly whispering in the FBI's ear, maybe the FBI would have gone along with Koresh's offer to surrender. On April 14 (five days before the FBI tank attack), Koresh promised to surrender as soon as he wrote out his interpretation of the Seven Seals from the Book of Revelation, the core of Branch Davidian theology. (When the FBI attacked April 19, Koresh had finished the introduction and the first of the seven chapters.)

If there were no ''drug'' or ''adviser'' exceptions to the Posse Comitatus Act, then law-enforcement officials could not exploit such loopholes in order to get military assistance. With the military properly separated from law enforcement, fewer people would be recruited to train law enforcement to "solve'' problems in the most violent manner possible.

Prescriptions for keeping the peace

If Congress was serious about demilitarizing law enforcement, it would close the loopholes in the 19th-century law. So far, it has done nothing of the sort. In addition, Congress should disband the FBI's 'Hostage Rescue Team' (HRT). The misnamed HRT has not rescued any hostages for many years. Instead, it is a militaristic collection of snipers, tank drivers and other personnel with an outstanding ability to kill -- but with no skills that ought to be part of a Federal Bureau of Investigation.

A few months before Waco, at Ruby Ridge, Idaho, HRT sniper Lon Horiuchi illegally killed Vicki Weaver as she held her baby in her arms. Now, empty rifle shells have been found at the sniper station where Horiuchi was stationed on the day of the Waco siege. Some law-enforcement sources report that Horiuchi was so eager to kill that even other HRT members were afraid of him. A FBI with trained killers like Horiuchi is a far cry from G-men of J. Edgar Hoover's bureau, which consisted entirely of people trained in investigation, not sniping.

Another step to demilitarization should be the enactment of legislation giving American citizens the same rights as Iraqi soldiers -- namely the right not to be attacked with chemical weaponry. According to the Chemical Warfare treaty that the United States signed in 1993, it is illegal to use the chemical warfare agent CS in military conflicts. (Although CS is sometimes called "tear gas," it is not a gas; it is fine-grained powder.) But the treaty specifically allows for the use of CS in domestic law enforcement.

When used indoors -- especially in the huge quantities employed at Waco - - CS can kill people: Autopsy reports show that at least nine Branch Davidians, including six children, died before the fire started. CS also renders its subjects extremely disoriented, and the high doses of CS may have prevented other Branch Davidians from finding their way out of the building once the fire started.

Making sure that the federal government never again perpetrates the kind of acts that led to the horrible, tortuous deaths of 26 innocent children will require more than a new attorney general and more than the prosecution of a few dishonest FBI agents. It will require a comprehensive demilitarization of federal law enforcement so that Americans can once again give FBI agents, ATF agents and other federal officers the honored title of "peace officer."

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