Justice for Waco and Oklahoma City

by Dave Kopel

April 19, 1997

Today, April 19th, is the sad anniversary of the two of the most awful mass homicides in American history: the bombing of the Alfred Murrah courthouse in Oklahoma City, and the burning of the Branch Davidian compound in Waco. The perpetrators of the horrible crime in Oklahoma City are apparently in custody, and will very likely be found guilty and executed. But many of the perpetrators of Waco remain at large.

While refusing to appoint a special prosecutor for President Clinton's fund-raising, Attorney General Janet Reno insists that she has no conflict of interest in investigating the matter. She can hardly make such a claim about Waco, and a special prosecutor is needed to investigate the mounting body of evidence that federal agents perpetrated numerous felonies at Waco, with deadly consequences.

Perhaps the first felony was in the procurement of the search warrant, because lying on a federal search warrant application is a federal felony. Attempting to bolster a very shaky effort to create probable cause, a BATF agent swore that "clandestine" publications like Shotgun News had been observed in the Branch Davidian home. But Shotgun News--as a BATF agent would know, but a gullible federal magistrate would not--is a non-clandestine newspaper with a circulation of nearly 200,000, available on newsstands all over the U.S.

After the failed BATF raid on February 28, 1993, the Texas Rangers were deputized as United States Marshals, and ordered to conduct an investigation of the day's events. The Rangers told the Department of Justice that the BATF raid commanders had lied to them under oath, but the Department of Justice did nothing.

The Posse Comitatus Act provides criminal penalties for illegal use of the military in domestic law enforcement. As detailed in the 1995 Congressional hearings, both BATF agents and officers of the U.S. Army's Joint Task Force Six appear to have deliberately violated the Posse Comitatus Act, by using military equipment and trainers for the Waco raid. There was no evidence, then or now, for the BATF's assertion that the Branch Davidians were manufacturing methamphetimine. (There is a drug war exception to the Posse Comitatus Act.)

Illegally riding in military helicopters during the raid, BATF agents may have strafed the second story of the Branch Davidian home, using the machine pistols they were carrying. The numerous bullet holes in the roof could not have come from any other source.

In violation of BATF rules and the criminal law of Texas, at least one BATF agent on the ground apparently began firing wildly, rather than aiming at armed targets. According to a British coroner's report, British citizen and Branch Davidian Winston Blake was killed at the beginning of the raid, by a high-power rifle bullet that ripped through a wall and hit him in the head, while he was eating a breakfast roll in the kitchen.

After the raid, BATF agents took Koresh's gun dealer Henry McMahon and his wife into "protective custody," held them against their will, and ordered them not to talk with the FBI. McMahon was the only person outside the Branch Davidian compound who knew that when the BATF began investigating Koresh in June 1992, Koresh had peacefully invited BATF to visit his house, and inspect his guns.

Regarding the disastrous April 19 tank and chemical warfare assault, several FBI officials may have acted with depraved indifference to human life, when they violated the Attorney General's orders and continued the tank attack even after listening devices revealed that some of the male Branch Davidians were spreading lighter fluid on floors throughout the building, intending to light a "holy" fire to destroy the tanks which were smashing into the compound.

Other crimes may have been committed in the deceptions that led Attorney General Reno to finally approve the tank and chemical warfare plan. These deceptions include the baseless claim that Koresh was currently beating the babies (as he actually had done years before); the assertion that CS chemical warfare agent the FBI was planning to use was merely a mild tear gas--even though it has killed and severely injured people when used in enclosed places--; and the assurance that the Branch Davidians were unlikely to commit suicide, when FBI behavioral experts had said just the opposite. The FBI also neglected to inform the Attorney General of Koresh's April 14 letter offering to surrender, upon completing a manuscript explaining the Seven Seals of the Book of Revelation. (By April 19, Koresh had finished an introduction, and an analysis of the first seal.)

After the fire, the Texas Rangers found a fireproof safe containing $50,000 in cash, plus gold and platinum. The Rangers signed the safe and its contents over to the FBI, but the safe and contents are now unaccounted for.

In June 1993, the 911 recording of the Branch Davidians' February 28 call for help to the local sheriff was played before Congress. An FBI official had resequenced the tape, minimizing the effect of the Davidians' frightened shouts about incoming helicopters. Tampering with evidence presented to Congress is, of course, a federal crime.

The tangled web of contradictory and patently false stories told by various federal employees at the 1993 and 1995 Congressional hearings on Waco ought to make perjury cases about as easy as prosecuting a bank robber caught on videotape.

While Timothy McVeigh may have imagined that his heinous crime was some sort of retribution for Waco, the just response to the murder of innocents is lawful punishment of the guilty, not the murder of more innocents. If Attorney General Reno refuses to appoint a special prosecutor for all the Waco crimes, then the department she heads can scarcely be called a Department of Justice.


David Kopel is Research Director of the Independence Institute, a free-market think tank in Golden, Colo. His most recent book is No More Wacos: What's Wrong with Federal Law Enforcement, and How to Fix It.

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