I thank the kind gentleman for passing information on to me re this Lon
Tomohisa Hriuchi.
Re
Now this item here shows that this Horiuchi was trained by Delta Forced,
that this man was to be ued only in hostage conditions and also it would
seem to me this man is under milimary control. Did he ever fight in a
war? Am I prejudiced agains Japanese - you better believe it for I was
once virtually traumatized when small after being made aware of a Navy
Nurse, whose tongue had been cut out, whose arms had been cut off and
who was pregnan, because the Japanese had gotten ahold of her. A once
beautiful woman - and this Lon Tomohisa Horiuchi they serves his
country? This man is supposedly in the CIVIL SERVICE, not military and
he is sworn to uphold the constitution of this country and not murder
women holding babies.
Is this part of the Japanese mentality - torturring women and children?
Is he sad he missed the baby? This West Point "man", if you call that
a man.....but this record speaks for itself and might expain why
suddenly, Clinton give Janet Reno certain powers once delegated to the
Director of Defense?
Hostage situation? Does this cowardly asssassin think he is a Rambo -
did he ever fight in a war? Oh the Asian mind is different from the
American mind - in Viet Nam the Kong put $50,000 prices on heads of our
pilots and there were poles with heads as decoration of those less
fortunate - for they did not have intelligence data as a pilot would.
Japan now controls Philippine Island and his Lon Tomohisa Horiuchi is
son of military officer - and on who's side did either of them fight.
You look at the face of this evil bastard and you can read him and I
would say this man is in disguise in the FBI and the FBI is CIVIL
SERVICE.....
This rotten to the core SOB was sent to Ruby Ridge where they murdered a
childs dog, and then lay in wait for the kid to appear - now if the kid
had been Chinese (this Horiuchi belonged to the Chinese Club supposedly
at West Point and Outdoor Sportsman's Club) - so this brave hero, this
filthy pig murdered a woman holding a baby, and then was sento to Waco
as well and with what orders?
FBI trained by Delta and suddenly 8 Delta and/or bodyguards to Clinton
involved here are all dead.
This country is not at war; we are to defend the borders of this country
and the Military is overstepping its bounds. Is this Long Tomois
Horiuch part of the UN Multicultural Police Force.
Every person connected to Waco and Ruby Ridge should personally sue this
yellow assassin and I mean that figurativiy and literally, out of
existance.
He is Catholic with 6 kids? How nice. Randy Weaver had a little boy,
an 8th grader murdered by these people; at Waco babies and little
children burnt to death. You think this Horiuchi likes American people
- raised in Hawian Islands by Miitary Father and a Catholic? Home
schools his children allegedly?
Read this crap and judge accordingly. Who is this pig who should be
roasted over the ashes of Waco and Ruby Ridge....who took the 5th
Amendment and what is the FBI doing turning into a terrorist
organization.
Stop and think - who was on FBI Hate/Hist list? Well, Moslems, White
Christian Males primarily, and members of the Militia who are so
infested with FBI - like the guy who set up Waco's son? This son of FBI
agent made film of Trench Coat Mafia killing their little classmates
with intention to blow up school and FBI sends this kids FBI father into
Waco. Little Buford who shot up a schoolroom and ran home to FBI
failing to Kamakazee....think that Horiuchi would Kamikazee - hell no,
he kills all the witnesses, doesn't he.
Are these bastards, these low life murderers, this element alien to
America do they opreate on Clinton's "new covenant"....remember that
one, right out of Hebrews in the New Testament - Gore and Clinton the
Sodomist, promied a "new covenant" and we got it didn't
we.....namely one line:
Where there is a testament there must by necessity be the death of the
testators.......
Now the old Assassination Committee headed up by Bud Fensterwald, who
some thought was CIA - this group put out word to all researchers - hey
you need not be afraid for your ilife unless you would be caled as a
witness - and boy if you are, wear a bullet proof dress and don't go
near the water, say like Bill Colby and Jimmy Hoffa (now Hoffa might
still be alive) and John Paisley, Bud Fensterwalds next door neighbor,
CIA, who was found like Colby with the fishies.
Like Rosselli and Gianciano and even J. Edgar Hoover who were all to be
witnesses...you see nothing is sacred.
You call that garbage in the FBI Americans? You call Clinton
American....Wake Up - Its pay back time - and this pig Horiuchi loves to
kill Amricans, men women and children and after WWII - maybe he
remembered Hiroshima.
Like Madeline Albright returns to Serbia with bombs and murder in her
heart - butchering the same people who saved her life in
WWII.....usually a criminal returns to scene of crime to be sure nothing
left which could be used against them.....burn baby, burn.....like he
jewelry and theft of many prized items which her family stole? Like a
Kissinger, CODE NAME BOR, KGB agent who would like to starve the peple
into submissiion.
You call these pigs in the FBI Amricans? Remember WWII when our brave
men died for what they believed to be the preservation of their freedom
and safety of their families....remember the MIAS? Remember the
Manchurian Candidates?
A Saba
[�Back�|�PDF�|�Home�]
[Copyright � 1997 Akron Law Review; David B. Kopel; Paul M. Blackman.
Originally published as 30 Akron L. Rev. 619-659 (1997). Permission for
WWW use at this cite generously granted by the authors. For educational
use only. The printed edition remains canonical. For citational use
please obtain a back issue from Fred B. Rothman & Co., 10368 West
Centennial Road, Littleton, Colorado 80127; 303-979-5657 or
800-457-1986. David Kopel and Paul Blackman are the co-authors of No
More Wacos: What's Wrong with Federal Law Enforcement and How to Fix It,
on which this article is based. Kopel is also the author of the book The
Samurai, the Mountie, and the Cowboy: Should America Adopt the Gun
Controls of Other Democracies? available from Amazon.com. He is also
Research Director for Independence Institute where numerous other
resources may be found.]
Can Soldiers Be Peace Officers? The Waco Disaster and
The Militarization of American Law Enforcement
by
David B. Kopel[*]
and
Paul M. Blackman[**]
I. Introduction
One of the most significant trends of federal law enforcement in the
last fifteen years has been its militarization. The logical, perhaps
inevitable, consequence of that militarization was seen in the disaster
at Waco, Texas, resulting in the deaths of four federal agents, and
seventy-six other men, women, and children. In this article, we use the
Waco tragedy as a starting point to examine the militarization of
federal law enforcement, and similar trends at the state and local
level.
Part Two of this article sets forth the details and rationale of the
Posse Comitatus Act--the 1878 law forbidding use of the military in law
enforcement. Part Three explicates how that Act was eroded by the drug
war in the 1980s. The article then discusses how the drug exception to
the Posse Comitatus Act was used to procure major military support for
the Bureau of Alcohol, Tobacco and Firearms (BATF) raid against the
Branch Davidians--even though there was no real drug evidence against
them--and how the drug exceptions to the Posse Comitatus Act have made
such abuses endemic.
Part Four examines the fifty-one day FBI siege of the Branch Davidian
residence, with a focus on the destructive role played by the FBI's
Hostage Rescue Team, an essentially military force which has proved
counterproductive in a civilian law enforcement context.(p.620)
In Part Five we look at the problem of groupthink, its role in the Waco
tragedy, and the importance of keeping groupthink-prone
institutions--like the military--out of law enforcement.
Finally, Part Six offers a broader view of the problem of the
militarization of federal law enforcement. We examine the proliferation
of federal paramilitary units and federal efforts to promote the
militarization of state and local law enforcement. After explaining the
direct connection between the drug "war" and law enforcement
militarization, we propose numerous statutory remedies to demilitarize
law enforcement.
II. The Posse Comitatus Act
The Posse Comitatus Act of 1878 was passed to outlaw the use of federal
troops for civilian law enforcement.[1] The law made it a felony to
willfully use "any part of the Army...to execute the laws" except where
expressly authorized by the Constitution or by act of Congress. The Act
of 1878, as amended, provides:
Whoever, except in cases and under circumstances expressly authorized by
the Constitution or Act of Congress, willfully uses any part of the Army
or the Air Force as a posse comitatus or otherwise to execute the laws
shall be fined under this title or imprisoned not more than two years,
or both.[2]
The idea was that law enforcement and the military are completely
different, with the Army geared toward destroying enemies of a different
nationality, while law enforcement must serve persons largely friendly,
who are guaranteed presumptions of innocence and rights not appropriate
when dealing with an enemy during times of war. Anything which made law
enforcement seem militarized was un-American; our citizens are not
supposed to perceive themselves as subjects of an occupying
force.[3](p.621)
As one modern court stated, the Posse Comitatus Act "is not an
anachronistic relic of an historical period the experience of which is
irrelevant to the present. It is not improper to regard it, as it is
said to have been regarded in 1878 by the Democrats who sponsored it, as
expressing 'the inherited antipathy of the American to the use of troops
for civil purposes.'"[4] Indeed, during the debate over ratification of
the Constitution, The Federalist assured Americans that the military
would never be used against the American people.[5]
In Laird v. Tatum, Chief Justice Warren Burger referred to:
[A] traditional and strong resistance of Americans to any military
intrusion into civilian affairs. That tradition has deep roots in our
history and found early expression, for example, in the Third
Amendment's explicit prohibition against quartering soldiers in private
homes without consent and in the constitutional provisions for civilian
control of the military.[6]
As another court put it:
Civilian rule is basic to our system of government. The use of military
forces to seize civilians can expose civilian government to the threat
of military rule and the suspension of constitutional liberties. On a
lesser scale, military enforcement of the civil law leaves the
protection of vital Fourth and Fifth Amendment rights in the hands of
persons who are not trained to uphold these rights. It may also chill
the exercise of fundamental rights, such as the rights to speak freely
and to vote, and create the atmosphere of fear and hostility which
exists in territories occupied by enemy forces.[7](p.622)
Use of the military in domestic law enforcement has repeatedly led to
disaster. In 1899, the army was used to break up a miners' strike at
Couer d'Alene, Idaho. Military forces arrested all adult males in the
area, imprisoned men for weeks or months without charges, and kept the
area under martial law for two years.[8] During and after World War I,
the army broke peaceful labor strikes, spied on union organizers and
peaceful critics of the war, and responded to race riots by rounding up
black "Bolshevik agitators."[9] Historian Jerry M. Cooper observes that
the army's efforts "substantially slowed unionization for a decade."[10]
One of the most egregious abuses of executive power in American
history--President Truman's illegal seizure of the steel mills--was
carried out by the military, which obeyed a plainly unconstitutional
order.[11] During the Vietnam War, military intelligence was again
deployed against domestic dissidents. "Military investigation of
civilian protest activity was precisely the kind of abuse of standing
armies that eighteenth-century antimilitarists had feared."[12] The 1970
killings of student protesters at Kent State University were, of course,
carried out by a National Guard unit.
One of the reasons for the disastrous February 28, 1993, BATF raid on
the Branch Davidians and April 19, 1993, FBI tank attack on the same
group was that they were both run as military exercises, planned and
executed with the advice of the U.S. Department of Defense. As Rep. John
Conyers later pointed out, "The root cause of this problem was that it
was considered a military operation, and it wasn't."[13] Attorney
General Janet Reno, on the other hand, discussed the incident, and the
President's involvement, as similar to her acting as a general during
World War II, with the President not expected to exercise constant
oversight.[14] (p.623)She acknowledged that the April 19 implementation
of the "Plan B" tank and chemical warfare assault on the Branch
Davidians meant that "in effect [the U.S. Army] Delta Force's
recommendation was carried out."[15]
As evinced at Waco, there are several loopholes in the Posse Comitatus
Act. For one, the prohibition on the use of military personnel and
equipment does not mean personnel cannot be used to assist law
enforcement, only that they can not be used directly.[16] Thus,
throughout the Waco standoff, military personnel had express legal
authority[17] to train FBI and other law enforcement officials to use
military vehicles.[18] In addition, the proscription on use of the
military is limited to personnel; military equipment can be used,[19]
although the usual procedure is to remove or cover military markings.
The civilian agency must pay the military for use of the equipment.[20]
III. The Drug War Loophole
The exceptions mentioned above are minor in comparison to the largest
loophole in the Posse Comitatus Act: the "drug law" exception. Normally,
the (p.624)obligation to reimburse the military for the loan of
equipment is a powerful incentive not to use military equipment in
domestic law enforcement. A police chief will be hesitant to borrow
military helicopters if his department will have to pay for them.
However, when drug laws are involved, the military assistance is free
and greater use of military personnel is allowed.[21] As if to make the
"drug war" a literal war, the U.S. military has created special Joint
Task Forces (JTF) whose primary mission is to assist civilian drug law
enforcement agencies.[22] Some JTF leaders foresee that not-far-distant
day when restrictions against use of the military in domestic law
enforcement will be abolished completely.[23]
A. The Drug Claims as a Pretext for Federal Intervention at Waco
As part of the planning for the Waco raid, BATF went to the Joint Task
Force Six (JTF-6), which covers Texas, and asked for training, medical,
communications, and other support. The JTF-6 staff explained that they
could only be involved if the case were a drug case.[24] If the case
were not a drug case, BATF could obtain assistance from other parts of
the military, but would have to pay for it.(p.625)
Immediately thereafter, BATF asserted that the Waco case was a drug
investigation; Branch Davidian prophet David Koresh was supposedly
running a methamphetamine laboratory.[25] The military should have known
that the drug claim was merely a guise; BATF came up with the allegation
only after being told of the benefits of such an allegation. In
addition, the military prepared a memorandum for BATF on methamphetamine
labs, and the precautions essential for dealing with such a lab.[26]
However, when the paper was presented to BATF agents, they openly
ignored the information in front of the soldiers who prepared it.[27]
Further, agents from the civilian Drug Enforcement Agency (DEA) who were
assisting BATF also expressed no concerns about how BATF was addressing
the risks of a meth lab in its operational planning, which similarly
should have indicated to the military that the allegation was a mere
pretext.[28]
With this knowledge, JTF-6 signed onto the mission of "training a
National Level Response Team [BATF strike-force] for Counter Drug
operations," in "Support of BATF Takedown of Meth Lab."[29] According to
documents received from the U.S. Special Operations Command under
Freedom of Information Act requests, the Joint Training operation
(JT002-93) was approved due to a request from BATF dated February 2,
1993, requesting U.S. and Texas National Guard assistance in serving a
federal search warrant "to a dangerous extremist organization believed
to be producing methamphetamine."[30] The Army assistance at Waco would
supposedly be "in direct support of interdiction activities along the
southwest border."[31] (Notwithstanding the fact that Waco is
approximately 300 miles from the southwest border. Moreover, the
original claim was that Koresh was manufacturing methamphetamine, not
that he was importing it from Mexico.)(p.626)
Had BATF actually been planning to take down a methamphetamine lab, its
plans would have been far different. Testimony at the 1995 congressional
hearings indicated the potential dangers of an explosion if a meth lab
is not taken down properly. For instance, because a stray bullet could
cause a major explosion, a "dynamic entry" (a violent break-in, the
BATF's method of "serving" the Waco search warrant) would be an
extremely risky, disfavored approach.[32] In addition, the chemicals
involved in methamphetamine production are toxic, capable of injuring
lungs, skin, liver, kidneys, the central nervous system, and potentially
causing genetic damage.
DEA protocol for seizure of meth labs requires that agents wear special
clothing and bring other specialized equipment. BATF not only made no
such plans, but made express advance plans to use flashbang
grenades--grenades which could set off a massive explosion in a real
meth lab.[33] When requesting flashbangs for use in the raid, BATF
omitted mention of any possible presence of a meth lab. Had BATF really
thought there were a drug lab at Mount Carmel, BATF should have taken
advantage of the DEA offer of assistance by a DEA (p.627)Clandestine
Certified Laboratory Team. But the offer was rejected.[34]
When JTF-6 was not looking, BATF did not even bother to pretend that
drugs were involved. Notably, the initial warrant application included
nothing regarding drug law violations--even though the presence of a
drug lab would have given BATF clear legal authority to search for the
presence of any type of firearm (not just machine guns and explosives,
which were the target of the search warrant), and even though the
warrant affidavit threw in all sorts of other unsubstantiated
allegations about Koresh.[35] After the February 28, 1993, BATF raid was
repulsed, BATF sought and obtained a second warrant expanding the
authorized scope of the search of Mount Carmel. Even the second warrant
application did not include allegations of illegal drug activity.
Yet even after the botched raid, BATF still tried to use the drug claim
to receive free military support. Richard L. Garner, Chief, BATF Special
Operations Division, wrote to the Pentagon on February 28, 1993, asking
for additional assistance related to "an on-going investigation in Waco,
Texas involving apparent drug and firearms violations."[36] Although
BATF maintained the pretense into late March, the Army was slowly
recognizing the obvious. As of late March,[37] the Army had come to
believe that its assistance to BATF and the FBI would be reimbursed[38]
as is required when there is no drug nexus. By May 15, 1993, the
military suspected the possibility that "drug-connection was overstated
to secure cost-free SOF training and assistance. No mention of drugs in
public media."[39](p.628)
The drug enforcement exception to the Posse Comitatus Act has been very
effective at undermining the honesty of law enforcement personnel, who
are encouraged to allege a drug nexus in many investigations for the
purpose of getting, gratis, federal military assistance.[40] The U.S.
Marshals Service claimed a possible drug problem involved with the Randy
Weaver family at Ruby Ridge, Idaho in order to get military
reconnaissance flights over the cabin, which revealed no evidence of
drugs.[41]
According to an anonymous JTF-6 employee, JTF is often aware that
civilian agencies are fabricating a pretext for military involvement,
but, "the JTF doesn't even care, because there is little or no oversight
involved. There's no independent authority looking over anyone's
shoulder."[42]
What was the basis for the claim that David Koresh was running a drug
lab? First, one person associated with the Branch Davidians had been
convicted of using drugs, and was paroled to McLennan County (Waco),
Texas.[43] Second, ten Branch Davidians had been arrested or
investigated for some "drug activity" at some time in their lives,
apparently with no convictions.[44]
In the mid-1980s, after the death of Branch Davidian prophet Lois Roden,
there had been a schism in the Branch Davidians between the followers of
George Roden (Lois Roden's son) and the followers of David Koresh (who
thought him Lois Roden's proper successor). George Roden took over the
Branch Davidian's "Mount Carmel Center" at Waco, and drove Koresh's
followers away at gunpoint. Roden, currently confined in an institution
for the criminally insane, did in fact (p.629)set up a meth lab. But in
March 1988, when Roden was sent to jail on unrelated charges and
Koresh's group took back the Mount Carmel Center, they found the meth
lab, and promptly reported it to the sheriff.[45]
The fall 1993 Treasury Department report on the BATF raid on the Branch
Davidians insisted that the investigation of alleged drug use was
valid.[46] Treasury reasoned that the sheriff's office had planned to
collect the lab equipment but found no record it had done so, "raising
the possibility that the illegal equipment might still have been at the
Compound."[47] The Treasury Report ignores the fact that Marc Breault (a
disaffected ex-Davidian), the source for BATF's information that there
had once been a meth lab at Mount Carmel, simultaneously told BATF agent
Davy Aguilera that the building in which the meth lab was housed had
burned down in Spring 1990.[48] Koresh was thoroughly anti-drug, and it
is improbable that he would have started operating a methamphetamine lab
after telling the sheriff about its presence.
The limit of the Treasury criticism was that there should be clearer
standards about what constitutes a drug nexus, and that BATF probably
should have told the Texas National Guard (which can only be used when
there is a drug nexus) more than a day in advance that their pilots
might be shot at.[49] Treasury noted, accurately, that BATF could have
had just as much military assistance without any alleged drug nexus had
it been willing to reimburse the Defense Department although the
assistance could not have come from JTF-6, and the Texas National Guard
could not have been used.
B. Military Support for BATF
What kind of military support did BATF receive? Throughout February
1993, BATF agents learned at Fort Hood how to carry on a surprise
military raid against the Mount Carmel Center.[50] The training was
conducted by Army Special (p.630)Forces (Green Berets) from Fort Bragg,
North Carolina. The Green Berets also allegedly wrote a specific assault
plan for BATF to use at Mount Carmel, and four Green Berets were
allegedly present at Mount Carmel as observers on the day of the
raid.[51]
To carry out the raid, BATF had procured helicopters from the Texas
National Guard.[52] Unlike federal law, which allows some reimbursed use
of the military even when drugs are not involved, Texas law only allows
the use of its National Guard helicopters for law enforcement when there
is a drug nexus.[53]
BATF also made use of the Alabama National Guard for aerial photography.
The use was authorized by a "memorandum of agreement" between the
Adjutant Generals of the Texas and Alabama National Guards.[54] Even if
the drug nexus had been real, there are a number of problems with
employing the Alabama National Guard in Texas. Texas law expressly
requires the governor's approval for the entry of a military force that,
like the Alabama National Guard, is not part of the U.S. armed
forces.[55] But Texas Governor Ann Richards never knew about the use of
the Alabama or Texas National Guards until after the raid.[56] Alabama
law limits the operation of the Alabama National Guard to the state
boundaries of Alabama.[57] Thus, the deployment of the Alabama National
Guard in Texas was a flagrant breach of the laws of Alabama and Texas.
In addition, the "memorandum of agreement" providing for use the Alabama
National Guard in Texas violated the United States Constitution.
Agreements between two or more states require congressional consent, and
Congress had not consented to the Alabama/Texas "agreement."[58] In
other words, (p.631)the Adjutant Generals of the National Guards of
Alabama and Texas executed a "memorandum of agreement" which purported
to authorize cross-border use of the Alabama National Guard, even though
the "agreement" as implemented was in defiance of the law of Alabama,
the law of Texas, and the Constitution of the United States. It is
precisely such military usurpation of civil authority--the destruction
of the rule of civil law--which is the ultimate, and real danger posed
by use of the military in law enforcement.
Shortly after the raid, Governor Richards blasted the BATF for having
lied to obtain the Texas helicopters.[59] BATF then claimed that a
British surveillance airplane, recently brought onto the Waco scene, had
found new thermal evidence of the methamphetamine lab.[60] Later, a law
enforcement expert from the federal government's Sandia National
Laboratories would describe evidence of a methamphetamine lab as based
on "an overflight using some very unsophisticated, forward-looking
infrared devices" and detecting "the so-called hot spot on the
compound.[61] That hot spot could have come from any number of heat
sources," but the government chose it to be indicative of a meth
lab.[62] (At Ruby Ridge, the thermal "hot spot" which was asserted to be
the site of Randy Weaver's drug lab was actually a dog house.) An
anonymous BATF source told a reporter that the new drug allegation "was
made up ... out of whole cloth ... a complete fabrication" to avoid
further criticism from Governor Richards.[63]
C. Helicopters, Machine Pistols, and other Weapons
1. Helicopters
While the National Guard helicopters were not armed, at least some of
(p.632)the BATF agents on board the helicopters were carrying MP-5
machine pistols, contrary to assertions by some government
officials.[64] Significant evidence suggests that the BATF agents in the
helicopters strafed the roof of the building. For example, Dr. Bruce
Perry examined the Branch Davidian children who left the compound in the
weeks following the BATF raid. One child drew a picture of a house
beneath a rainbow. Perry asked, "Is there anything else?" and the child
then drew bullet holes in the roof.[65] Newsweek magazine reprinted the
Davidian girl's picture of her home with a dotted roof. "Bullets" the
girl explained.[66]
Catherine Matteson, a seventy-two-year-old Branch Davidian woman not
accused of any crimes, was interviewed by the Las Vegas Review-Journal.
She clearly recalled seeing helicopters firing through the roof and
walls of the residence, stating "I saw the yellow flashes."[67] When
machine guns fire, there is a yellow flash of muzzle blast, visible even
in daylight. During the negotiations, Koresh and his chief aide, Steve
Schneider, insisted that there were at least five witnesses who saw
three helicopters come over and start shooting into Koresh's room,
destroying his television set.[68]
Schneider's attorney, Jack Zimmermann, who went into the Branch Davidian
house during the siege, later testified that he saw many bullet holes in
the ceilings with a downward trajectory, indicating that the helicopters
had been firing into the compound from above.[69] There is no nearby
high ground from which BATF agents not in helicopters could have shot
bullets into the building (p.633)with a steep downward trajectory.
The BATF stated the helicopters were simply used as a "diversionary
device" during the raid, to draw attention to the back of the building,
while the BATF ground forces entered the front; no shots came from the
helicopters.[70] BATF agent Davy Aguilera, who was in one of the
helicopters, testified to Congress that the agents in the helicopters
were armed, and had been told that they were allowed to fire in
self-defense.[71] Aguilera maintained that no shots were fired from the
helicopters.
At least during wartime, there are sound tactical reasons for beginning
an assault on a building by strafing the second story roof. The bullets
coming through the ceiling will force people on the second floor to
retreat to the first floor. It will therefore be easier for assault
personnel to enter the second story (a key element of the BATF raid was
getting an entry team into the "gun room" on the second story, where the
Branch Davidian rifles and ammunition were kept). In addition, riflemen
defending the building against ground attack will be deprived of the
advantage of an elevated firing position. Also, strafing the
second-floor gun storage room would prevent the Davidians from
retrieving their weapons prior to the imminent arrival of BATF land
forces.
But strafing a building is not a particularly effective way to rescue
children who are thought to be in danger. The second story of the Mount
Carmel Center was known to be the living quarters for the women and
children, and for Koresh; other men were not allowed up there.[72]
Strafing the roof, if it happened, might well be considered grotesquely
excessive use of force for serving a search warrant. The persons who did
the strafing (p.634)might be considered guilty of reckless endangerment
or homicide. If the Davidians fired first at the helicopters, then
return fire at particular targets would be lawful, but not random firing
through a roof.[73]
Whether lawful or not, the federal government's alleged machine-gunning
a roof that covered dozens of women and children would probably have
been ill-received by the press and public. If there were hundreds of
bullet holes in the roof, there would have been a motive for the federal
government to destroy the evidence by having the building burned down,
as Steve Schneider noted in the course of the subsequent
negotiations.[74]
2. Armor-piercing Ammunition
If BATF forces on the ground were using the armor-piercing 9mm Cyclone
ammunition (as some sources claim)[75], such action was in disregard for
the safety of noncombatants. BATF knew, or should have known, that the
armor-piercing ammunition it was using could easily penetrate the thin
walls of the compound at Mount Carmel Center, endangering the children
whom the BATF claimed to be protecting from abuse.[76]
BATF's perception was very different, that the agents were expressly
armed mostly with 9-mm machine pistols. "We knew there was a lot of
children in there. And we knew there were a lot of women and innocents
in there.... And with all these innocents in there, our teams ... took
mostly 9-mm firearms that they knew would not penetrate those walls,
they knew would not go through and hit innocent children. And, so, in
essence, the beating we took was because we were trying not to have
firearms that would go through the walls."[77] Actually, (p.635)9-mm
rounds can penetrate thin walls like those at the Mount Carmel
residence.
3. Machine Pistols
More fundamentally, BATF's claim that it went into the Mount Carmel
Center underarmed is ludicrous. Ten agents were carrying AR-15
semiautomatic rifles.[78] This rifle, whose rounds can certainly
penetrate walls, has been described by the BATF itself as an extremely
powerful "assault weapon" primarily useful for mass murder.[79]
The majority of agents, though, were armed with Heckler & Koch MP-5
machine pistols.[80] These weapons are sold almost exclusively to the
military and police. The advertising to civilian law enforcement conveys
the message that by owning the weapon, the civilian officer will be the
equivalent of a member of an �lite military strike force, such as the
Navy SEALs. The ad copy links civilian law enforcement to military
combat, with lines like "From the Gulf War to the Drug War." As one
criminologist notes, "The MP5 series is the pride and the staple of
police tactical operations units, and it holds a central place in the
paramilitary police subculture. Its imposing, futuristic style
overshadows its utility as a superior 'urban warfare' weapon."[81]
Functionally, the MP-5 is a perfectly fine weapon. But when law
enforcement agencies are procuring weapons, they need to consider not
only their mechanical characteristics, but also how officers in the
field will use them. When a weapon's advertising and styling
deliberately blur the line between warfare and law enforcement, it is
not unreasonable to expect that some officers--especially when under
stress--will start behaving as if they were in the military. That is
precisely what happened when the BATF agents began firing
indiscriminately into (p.636)the building.[82]
No one will ever be certain whether more agents might have obeyed BATF
training and the law--to fire only at visible targets who pose a
threat--if the agents had been armed with other weapons. But it is
hardly likely that Heckler & Koch's militaristic marketing of the MP-5
helped promote responsible law enforcement behavior at Waco. As the Waco
disaster illustrates, there are profound dangers to allowing domestic
law enforcement agencies to acquire weapons of war.
IV. The Waco Siege and the Hostage Rescue Team
After the Branch Davidians repelled the BATF raid on February 28, 1993,
the FBI was called into Waco to add professionalism to a law-enforcement
disaster. While there were over 600 FBI employees at Waco, two groups
were most important: the negotiators, and the hostage rescue team.[83]
The negotiating team, with the support of FBI psychological and research
staff, conducted telephone negotiations with the Branch Davidians.[84]
The FBI Hostage Rescue Team (HRT) took control of the perimeter of the
77-acre Branch Davidian ranch. As it turned out, the militaristic
Hostage Rescue Team repeatedly sabotaged the progress being made by the
negotiators.
The Hostage Rescue Team was originally created to rescue Americans
abroad who were being held hostage by terrorists. The HRT is trained by
Delta Force, the U.S. Army's counter-terrorism squad. But the HRT has
frequently been deployed not to rescue hostages in other countries, or
even in the United States, but instead as some kind of special force to
deal with particularly troublesome domestic criminals. This
deployment--at Ruby Ridge, Waco, and elsewhere--has led to predictably
disastrous consequences. A team trained to rescue hostages being held by
foreign terrorists is an �lite strike force. They must attack rapidly,
neutralize the terrorists (i.e. kill them), and extricate the hostages.
Rather than (p.637)shooting only when clearly necessary to prevent harm
to an innocent, a hostage rescue team must neutralize the terrorists at
the first opportunity, before the terrorists have an opportunity to pose
an imminent threat.
Persons trained for this specific, important mission, are highly unfit
for domestic law enforcement tasks, in which the objective is to capture
suspected criminals (not kill them), to minimize the use of force, and
to act with a scrupulous regard for the United States Constitution.
Philip Heymann, who served as deputy attorney general in the first year
of the Clinton administration, has suggested that the Hostage Rescue
Team only be used for rescuing hostages. The problems caused by
infrequent use of the HRT are far outweighed by use of the Hostage
Rescue Team in non-hostage situations.[85] Professor Heymann's
suggestion should be put into the United States Code.
At Waco, the Hostage Rescue Team had no hostages to rescue.[86] They
defined themselves as being in a "Complex Hostage Rescue Barricade
Situation." But to the extent there were hostages at Mount Carmel, the
Branch Davidians were hostage in their own home because they were afraid
of what the Hostage Rescue Team and the federal government would do to
them and their children.[87]
The Hostage Rescue Team's arrogance is a well-known problem in law
enforcement. As Treasury Undersecretary for Law Enforcement Ron Noble
observed, "when they come into an operation, they take over, and I've
been with other law enforcement officers when it happens, and it is not
something that makes law enforcement officers, who believe they're able,
happy. That's just the way it is."[88] At Waco, the HRT rapidly
established bad relations with the Texas Rangers.(p.638)
The HRT began with an anti-negotiation bias. Jeffrey Jamar, the Special
Agent in Charge of the San Antonio FBI office, was commander of the
entire operation at Waco, and of sorting out the conflicting views of
the HRT and the FBI negotiation team. Jamar's immediate superior was
Larry Potts, the Assistant Director of the Criminal Investigation
Section.[89] Jamar personally had no training in negotiations; he "left
that to the experts."[90] The advice of negotiators generally was
ignored in favor the HRT's position to steadily increase pressure on the
Branch Davidians. This proved to be a fatal error.[91]
One of the negotiators later noted that while sometimes negotiators and
"tactical component" (the HRT or SWAT teams) agree about how to achieve
success, in Waco:
there was a fundamental strategy disagreement and what was the best way
to proceed?...the negotiation team wanted to have a lower-keyed
approach. The team's approach was to apply pressure. Part of that...was
driven by the fact that the tactical team, as Mr. Jamar indicated, was
exposed to open fire. We were dealing with the most complex situation we
have ever had in the United States, where there had already been a
demonstrated willingness to use force.... So the need to provide them
with adequate cover, to contain the situation, had an impact on
conveying, perhaps, a message that Mr. Koresh did not want to hear.[92]
But it was not just Koresh who was upset by HRT actions. The ordinary
Branch Davidians were also upset, particularly by the actions of the
Bradley tanks driven by the HRT.[93] It was their understanding that the
original cease-fire agreement included Davidians not threatening law
enforcement with firearms in exchange for law enforcement staying off
Davidian property. Instead, the tanks (p.639)not only ran around the
Davidian property, but damaged outbuildings and desecrated a
cemetery.[94]
The tanks frightened the children remaining at Mount Carmel Center.[95]
The FBI negotiators insisted there was nothing to worry about, since
"nobody's going to run tanks through buildings that contain people."[96]
In response to the expressed concerns of Cyrus Koresh (David Koresh's
oldest child, age eight) about a tank assault on the building, the FBI
negotiator promised "the last thing in the world that's going to happen
is for the government to take any type of offensive action here. It's
just not going to happen. You know, we don't hurt babies, you know, we
don't hurt women, we don't do those types of things."[97]
HRT commander Dick Rogers later testified that the sole purpose for the
Bradley Fighting Vehicles (BFVs) was agent safety; some BATF agents had
been wounded by grenades, and the Branch Davidians had a pair of .50
caliber rifles.[98] When Koresh told negotiators that he could destroy
the nine Bradley Fighting Vehicles (BFVs) that were originally brought
on-site, the BFVs were supplemented with two M-1A1 Abrams tanks and five
M278 Combat Engineering Vehicles.[99] Once in place, however, the tanks
were used for purposes that did not seem defensive. At various times,
tanks would charge at the building. One person (p.640)inside the
building reported that men in the vehicles were "shooting the finger at
these kids,"[100] and in at least one case "mooned" the Davidians.[101]
There were numerous problems in the negotiations between the FBI and the
Branch Davidians. The FBI had no expertise--and no interest in acquiring
any expertise--regarding the Branch Davidian religion. Koresh was, very
likely, mentally ill.[102] The Branch Davidian negotiators and the FBI
negotiators were both often guilty of dishonesty or disingenuousness;
and while the Branch Davidians preached at the FBI negotiators--to the
extent the negotiators would allow them--the Davidians generally refused
to provide straightforward explanations of their religion or intentions.
But of all the factors impeding negotiations, perhaps the greatest
factor--in retrospect, the decisive factor--was the Hostage Rescue Team.
While the FBI negotiators were in a building miles away from Mount
Carmel, at Texas State Technical College, the FBI team (the HRT) was
laying siege to the Branch Davidians. HRT sniper teams stared at Mount
Carmel, while Branch Davidian sentries stared back. At times, the
action-oriented HRT would take action, simply because it could stand the
inaction no longer. For example, the HRT temporarily cut off the
electricity to the Mount Carmel Center--not for any negotiating or
safety purpose--but simply to boost the morale of the tactical "people,"
and the rest of law enforcement "who [were] out and cold and away from
(p.641)home."[103] As Dr. Alan Stone (an independent reviewer of the
Justice Department report on Waco) later observed, some of the tactical
measures were mainly used "to relieve [the action-oriented] agents'
desire to act."[104]
A modicum of apparent conflict between negotiators and the tactical
commanders can be useful--the out-of-custody equivalent of "good cop,
bad cop" interrogations[105]--but the conflict between the negotiating
and tactical team was much more profound. The negotiating team found
itself having to come up with excuses for aggressive tactical actions
that the tactical team had not bothered to tell the negotiators about.
The tactical team grew increasingly frustrated with the negotiators'
allegedly excessive patience with the Branch Davidians. The two FBI
teams were often at cross purposes.
For example, after days of discussions, the negotiators finally decided
to send some milk in for the Branch Davidian babies; the tactical team
promptly cut off the electricity, making it difficult to store the milk.
The electricity cut-off postponed the departure of two Davidians whom
the negotiators had convinced to make plans to leave, but would no
longer even talk about it.[106]
Shortly after midnight on March 21, two Davidians left, and later during
the day, five more exited. The number of people inside had declined to
about 84, from a total of about 127 on the morning of the BATF
raid.[107] The negotiators and Schneider agreed in general that it had
been a very successful day.[108]
That same day, FBI commander Jeff Jamar and HRT leader Dick Rogers
decided to increase tactical pressure in order to "demonstrate the
authority of law enforcement."[109]
That evening, a loudspeaker barrage began. Among the items blasted on
the loudspeakers were the sounds of dentists' drills, locomotives,
helicopters hovering, loud obnoxious music,[110] Christmas songs,
Tibetan Buddhist chants, previously (p.642)recorded negotiations,[111]
squawking birds, cows mooing, clocks ticking, telephone busy signals,
and the cries of rabbits being killed.[112]
The loudspeakers were used contrary to the negotiators' advice, and the
advice of the FBI's psychological experts, who had warned that tactical
pressure "would succeed in shutting down negotiations and convince
Koresh and his followers that the end was near."[113] FBI psychologist
Peter Smerick warned that tactical pressure "might unintentionally make
Koresh's vision of a fiery end come true."[114] Commander Jamar later
evaded questions at a Congressional hearing and from a Justice
Department investigator about who, if anyone, advised Jamar that the
increased tactical pressure would be wise.[115]
The Davidian response was fury and dismay. Koresh said that no more
people would be coming out. In fact, only three more persons did exit,
once the increased pressure began. Livingstone Fagan left on March 23.
The other two exits were non-Davidians who had sneaked into the Mount
Carmel Center during the siege out of curiosity.[116]
Over the course of the siege, FBI tank drivers destroyed a mobile home,
a dozen motorcycles, two dozen children's go-carts (expensive presents,
recently acquired), tricycles, and bicycles; knocked out the windshield
of a bus; and flattened a pickup truck.[117] Cars belonging to the
adults were crushed by tanks, or ripped apart with crowbars, with the
windows smashed and the tires slashed.[118] The Hostage Rescue Team
"carried away the fence from Mount Carmel's front yard, flipped a bass
fishing boat, and overturned a bulldozer that the community had
rented--for some $3,000 per month--from a local building supply
house."[119]
Neither destroying children's toys, nor desecrating the cemetery of
highly religious people is apt to facilitate negotiations. Instead, the
destruction undermined (p.643)the FBI negotiators who were promising
gentle treatment for children and adults who left the compound. The
tactical team's decisions to increase pressure, often undertaken without
consulting the negotiating team, made the efforts of the negotiating
team to build trust increasingly difficult.[120] FBI negotiator Byron
Sage later acknowledged that having the tanks flatten the cars was a
huge mistake that dramatically changed the course of negotiations.[121]
It is impossible to know if negotiations would have succeeded but for
the aggressive acts of the HRT, but it is clear that the "tactical"
activities played a major role in destroying the negotiators' efforts to
create an atmosphere of trust.
V. Groupthink
Neither the Branch Davidians, nor the BATF, nor the FBI, were composed
of or led by stupid persons. Yet at Waco, all of these groups made
extremely bad decisions. One reason for the high-risk, low-quality
decisions of the Branch Davidians, BATF, and FBI is what is known as
"groupthink."[122] The term group think was created by academics in the
early 1970s, to describe how groups of intelligent individuals could
collectively make decisions much worse than the individuals might have
made if they had decided alone. Public policy disasters which have been
studied as instances of groupthink include the Bay of Pigs invasion
during the Kennedy administration; the Johnson administration's
escalation of the Vietnam War; the Carter administration's Iranian
hostage rescue mission; the decision of Morton Thiokol managers to
proceed with the Space Shuttle Challenger launch in 1986 despite the
warnings of engineers, in order not to interfere with NASA's desire for
a timely launch which would help NASA politically; and the Reagan
administration's Iran-Contra fiasco.
Many of the factors leading to groupthink were present, on all sides, at
Waco. First, in groups which are vulnerable to groupthink, group members
tend to value the group above everything else. The social isolation of
law enforcement officers from the non-police community has been
documented by many researchers.[123] Unquestioning adherence to group
norms is likely all the higher in special high-prestige law enforcement
groups, such as the FBI, the HRT, or the Special Response Teams (the
BATF versions of the HRT). The Branch Davidians, of course, explicitly
saw their church as the only good thing in a Babylonian World permeated
by sin.(p.644)
Groupthinking groups tend to have certain structural flaws: insularity;
no tradition of impartial leadership; no norms requiring methodical
decision-making; and a homogeneous background for their members. The
militaristic HRT and SRTs, heavily drawn from ex-military personnel, had
these flaws, as did the BATF and the FBI. While the Branch Davidians
were highly heterogeneous in terms of race, nationality, and social
background, they were intensely homogeneous in their ideology.
Groups likely to suffer from groupthink often overestimate their group's
morality and invulnerability, while also stereotyping out-groups. The
Branch Davidians thought themselves the only righteous people in the
world, thought themselves invulnerable if God wanted them to be
invulnerable, and stereotyped their adversaries as the Babylonian tools
of Satan. Conversely, the FBI and BATF stereotyped their adversaries as
"cultists," and acted as if resistance to the armed might of the
government were inherently immoral.
Groupthink tends to produce self-censorship among the dissenters, as
when FBI behavioral psychologist Peter Smerick changed his memos to
support the aggressive "tactical" approach that his superiors wanted.
Groupthink is more likely to occur in a provocative situation with high
amounts of external stress. In these situations, groupthink is
especially likely when the members of the group have little hope for
better solutions than those proposed by the leader. The attractiveness
of the Branch Davidians' alternative to Koresh--surrendering to the
FBI--was greatly undermined by the government's treatment of the adults
and children who did surrender.[124]
Deindividuation results in individuals becoming less self-aware, and
more inclined to go along with group decisions. Rather than taking
personal responsibility for their own actions, de-individuated people
see responsibility as diffused, and placed on the group as a whole. The
diffusion of responsibility leads to more aggressive behavior towards
outsiders.
Some social scientists believe that an important factor leading to
deindividuation is anonymity, and at least at Waco, the results were
consistent with this theory. Except for Koresh, the Branch Davidians
were thoroughly anonymized. They were treated--and they acted--as if
they were just a mass of indistinguishable followers of Koresh.(p.645)
Anonymity is intensified when the group all wears the same clothing. The
HRT and SRT members not only wore identical "assault" clothing, they
even wore identical tactical masks, the most anonymizing piece of
clothing possible.[125] The individual members of SRTs never would have
shot wildly into a building containing women and children. Nor would the
HRT members, as individuals, torture children with chemical warfare
agents, or destroy someone else's home. It was only in the context of
groupthink, of the diffusion of responsibility, that people could
collectively perpetrate atrocities they would never perpetrate
individually.[126]
Bad decisions tend to breed more bad decisions, "the tendency to become
entrapped in a spiral of ineffective policies."[127] In the Iran-Contra
cases, the North-McFarlane group made more and more commitments to arm
the Iranians "because so much had been invested already and the alleged
costs of stopping would be unacceptable."[128] At Waco, the heavy
commitment to training for the BATF raid helped create a perceived
necessity to going forward with the raid, no matter what. Once four
lives of federal agents had been lost, federal law enforcement became
entrapped into finding some way to rationalize those four deaths, by
achieving a "victory" over the Branch Davidians. The Branch Davidians
were even more heavily invested in their previous mistakes. Most had
given up their old lives to move to the Mount Carmel Center. Husbands
and wives had given up their marriages. To admit that Koresh was a false
messiah, not a person who was worth dying for, would be to admit that
the Branch Davidians had squandered their careers, their families, and
their earlier faiths, for nothing at all.(p.646)
Groupthink often leads the group to ignore risks which affect only the
stereotyped outgroup. While the BATF and the Branch Davidians both
exposed themselves, as well as their "enemies" to high risks, the FBI's
April 19 tank and chemical warfare assault was a risky decision in which
almost all the risks would be borne by the outgroup--even though the
outgroup included many innocent children.
The military, with all of its internal pressure for conformity,
including adherence to a "can-do" spirit, is especially vulnerable to
groupthink. The April 19 assault was planned by the military's Delta
Force, and executed the FBI counterpart to Delta Force, the HRT.[129]
The military during peacetime has an institutional overeagerness to take
on high-profile missions, while underestimating the risks of failure.
Quasi-military units, such as the HRT, likewise spend long periods
sitting idle, and may be overeager to contribute their "solution" to a
high-profile problem, while underestimating the dangers of their
involvement.
How can groupthink, and its resultant risky decisions, be minimized?
Three reforms would have been particularly relevant at Waco, and should
be implemented by decision-makers in crises. First, every group meeting
should have a designated devil's advocate, who will point out potential
risks. Second, special care should be taken so that no one agency or
coalition of experts can monopolize the flow of incoming information.
Janet Reno, by allowing the FBI to monopolize the information coming to
her, made it almost inevitable that she would eventually do what the FBI
wanted. Finally, the virtues which make the military such an effective
international killing force--such as uniformity, obedience, and group
cohesion--make it especially susceptible to groupthink. For this reason,
the military should have no participation in law enforcement;
quasi-military units such as the FBI's HRT and the BATF SRT should be
thoroughly demilitarized, and should play, at most, a very subordinate
role in law-enforcement decision-making.
VI. Demilitarizing Law Enforcement
Although it might be hoped that the Ruby Ridge and Waco disasters would
prompt a cutback in federal military-style strike forces intended for
use against Americans, just the opposite has happened.
A. The Proliferation of Federal Paramilitary Units
The United States Marshals Service now has a 100-man Special
(p.647)Operations Group which is "ready to go anywhere in the world at a
moment's notice." The SOG is located at the William F. Degan Memorial
Special Operations Center in Louisiana, which is named after one of the
men involved in the senseless shootout at Ruby Ridge, Idaho, in which
non-suspect fourteen-year-old Sammy Weaver was shot in the back as he
attempted to flee to his cabin.
Attorney General Reno has stated that one reason for the April 19 tank
and chemical warfare attack on Mount Carmel was that the FBI Hostage
Rescue Team was tired. So the HRT is now expanded to 91 men, although
there is no indication that the Hostage Rescue Team's mission has been
narrowed to rescuing rather than holding hostages. The only reforms are
that FBI Director Freeh promises that before the HRT is deployed in
nonemergency situations, he will make the decision personally, and that
negotiators and the HRT will henceforth be placed under the same
command.[130]
The proliferation of BATF squads whose names imply violence continues:
Tactical Response Teams, High-Risk Warrant Teams, Forced Entry Teams,
Entry Control Teams, and Special Response Teams (SRTs). In fiscal years
1993 through 1995, the SRTs were used 523 times, carrying out a dynamic
entry in about half of the 157 SRT utilizations in 1995.[131]
BATF continues to recruit the SRTs, in the words of one ex-BATF agent,
"hand-picking these superhormone guys."[132] As Jim Jorgenson, of the
National Association of Treasury Agents points out, this means that SRTs
are composed of people who may run 300 yards and shoot better than
anyone else, but who lack the maturity and judgment to think where they
are running.[133] Absolute discipline and adherence to orders may be
virtues in the military, but not in civilian law enforcement. Perhaps if
the three SRTs that were used in the Waco raid included a larger share
of older, slower, and wiser agents, someone would have spoken up when
the raid commanders yelled "He knows we're coming" and "Let's go."
Rank-and-file defiance of the order to launch a surprise attack with no
element of surprise would have saved the lives of the four BATF agents,
and of the Branch Davidians.(p.648)
BATF has stepped up the training of its field commanders in military
tactics, under the supervision of the Army.[134] In 1994, the Army's
Joint Task Force Six oversaw BATF training in the use of Bradley
Infantry Fighting Vehicles, including the 25mm machine guns on the BFVs.
This training was necessitated by BATF planning to use BFVs in future
operations such as Waco, to avoid government casualties.[135]
In 1994, BATF acquired three OV-10 light attack aircraft, a type of
plane used in the Gulf War and for counter-insurgency, which is commonly
equipped with rockets, although machine guns and chain guns can also be
attached. Twenty-two such planes had been acquired in 1993.[136] None of
the planes were registered to BATF, but at least seven are registered to
American Warbirds in Maryland. No company named "American Warbirds" has
never acquired a license to do business in Maryland, and thus, to the
extent that American Warbirds actually exists, its operations are a
criminal misdemeanor.[137] Aircraft title records indicate that American
Warbirds acquired the planes from Mid-Air Salvage, a company with a New
Jersey address, but which (like American War Birds) does not exist in
the Federal Aviation Administration database. Mid-Air acquired the
planes from the federal government's General Services
Administration.[138] It is not clear why the transfer of aircraft from
the military to the BATF needed to be laundered through two civilian
corporations.[139](p.649)
According to BATF Director John W. Magaw, the BATF's OV-10 aircraft have
their weapons removed. Mr. Magaw describes the OV-10's capabilities as
"reconnaissance" and "command and control and insertion of troops."
[140] He states that the forward-looking infrared system on the OV-10,
which can be used to identify objects at night or under poor visibility
conditions, will be used "to enhance the safety of ATF special agents
and other law enforcement officers working to combat firearms
trafficking and other violent street crime." [141] In 1996, Congress
defunded the BATF air force.
Beginning in 1973, the FBI set off a national trend in law enforcement
by creating a SWAT (Special Weapons and Tactics) team. Now, every one of
the FBI's fifty-six field offices has its own SWAT team (the 400 FBI
satellite offices do not).[142] Abandoning former Director J. Edgar
Hoover's principle that FBI agents should be well-trained generalists,
the new FBI SWAT units specialize in confrontation, rather than
investigation, even though investigation was, after all, the very
purpose of the Federal Bureau of Investigation. Whereas Hoover's agents
wore suits, and typically had a background in law or accounting, SWAT
teams wear camouflage or black ninja clothing, and came from a military
background.[143] They are trained killers, not trained investigators. In
the early 1980s, an FBI super-SWAT team was invented: the Hostage Rescue
Team.[144] Like the SWAT team, it received military training, carried
military weapons, and was composed mostly of former military personnel.
But rather than rescuing hostages, the Hostage Rescue Team has become
notorious for two incidents in which it held hostage people who only
wanted to be left alone: at Ruby Ridge, and at Waco.[145] "The
swashbucklers are in control," laments Iowa Senator Charles
Grassley.[146]
B. Direct Military Intervention
In addition to federal law enforcement agencies becoming more
militarized, (p.650)the military itself has become increasingly involved
in domestic law enforcement. On any given day, more than five thousand
troops conduct law enforcement operations within the United States.[147]
This figure does not include the much larger number of National Guard
troops involved in law enforcement every day.
Like other military assets, the National Guard is something which many
state officials would like to use, but are reluctant to pay for. They
know that their constituents may want a "drug war" in the abstract, but
they may not be willing to pay higher taxes for it. In contrast to most
state governments, the federal governmnent has no balanced budget
requirement, and thus can spend money on all sorts of wish-list
programs, without having to pay for them.
Federal deficit financing provides a major source of funding for use of
the National Guard in law enforcement. The huge federal subsidies
provided by the federal government to the state National Guards are what
allows Guard units to participate heavily in the drug war.
The National Guard has begun to lobby for even broader law enforcement
privileges. For example, in Rhode Island, the National Guard proposed
that it be allowed to share in profits from asset forfeiture
operations.[148]
As illegal immigration has become an increasingly important political
issue, the United States Army and Marines have been deployed along the
Mexican border, to assist federal and local border patrol. These
deployments have led to strong protests from the Mexican government, for
militarizing the border of a nation with which the United States is at
peace.[149]
The Clinton administration is hard at work to remove the remaining
restrictions on use of the military in law enforcement. An
administration terrorism bill pushed by the President in 1995 defined
all property offenses, and all violent crimes more serious than an
assault as "terrorism," and authorized the Army, Navy, and Air Force to
enforce "terrorism" laws.[150] A bill proposed by Senate Majority Leader
Robert Dole did the same thing.[151](p.651)
C. State and local militarization
The federal government actively works to militarize local law
enforcement. For example, Mark Lonsdale, the Director of the federal
government's Special Tactical Training Unit writes that there are
various governmental programs, including those run by the federal Drug
Enforcement Agency "available to local law enforcement" for marijuana
control. "The thrust of this training is towards developing more of a
military approach to tactics along with the study of the methodology of
the growers."[152]
The Navy SEALs and Army Rangers both conduct extensive training of
paramilitary units such as local police SWAT teams. The United States
Marshals Service and the Joint Task Forces (e.g., JTF-6, which helped
provide military training to BATF for the Waco raid) act as liaisons
between the police departments and the military trainers.[153]
One morning the residents of Cass Corridor (a poor neighborhood in
Detroit) were startled by the sounds of explosives and massive gunfire.
While many residents hid, the few who dared to look outside found an
eighty-person Detroit police department practice assault in progress on
a vacant four-story building in the neighborhood. The Deputy Police
Chief in charge of the practice assault explained that such drills are
routinely performed by police agencies in conjunction with the U.S. Army
and other federal agencies.[154] In June 1996, two hundred soldiers from
Fort Bragg conducted urban warfare exercises in Pittsburgh and
McKeesport, Pennsylvania, in conjunction with the Pittsburgh and
Allegheny County SWAT teams. The noise from small explosives and the
low-hovering helicopters (dropping troops practicing a nighttime
invasion of an urban area) frightened many civilians, who had no warning
of what was happening.[155] (SWAT exercises near the Mount Carmel Center
in 1992 played a major role in convincing Koresh that an attack was
imminent, and in spurring Koresh's paranoia and arms acquisition,
although the exercises had nothing to do with him.)[156]
The federal government's Advanced Research Projects Agency supervises
(p.652)a Joint Program Steering Group for Operations Other than War/Law
Enforcement, which brings Defense Department and Justice Department
officials together in order to find civilian law enforcement
applications for military technology.[157] The United States Army
Aviation & Troop Command (ATCOM) is selling surplus OH6-A helicopters to
state and local governments for use in drug law enforcement. Rep. Ed
Royce (R-Calif.) has proposed that Congress give states the cash with
which to buy more helicopters from the Army.[158]
As a result of both federal and local actions, America is moving towards
the normalization of paramilitary forces in law enforcement. For
example, the police in Fresno, California, have taken the next step
towards militarization of local law enforcement. The Fresno SWAT team,
in full battle gear, now deploys a full-time patrol unit in the city.
Deeming the SWAT patrol an "unqualified success," the Fresno police
department "is encouraging other police agencies to follow suit."[159]
About twenty percent of police departments in cities over 50,000 have
already put their own paramilitary units into street police work. In
many cases, funding for street deployment of paramilitary units is
funded by "community policing" grants from the federal government. The
majority of police departments use their paramilitary units to serve
"dynamic entry" search warrants.[160]
SWAT teams also get deployed in missions very foreign to ordinary police
work:
The SWAT Team in Chapel Hill, NC conducted a large-scale crack raid of
an entire block in a predominantly African-American neighborhood. The
raid, termed "Operation Redi-Rock," resulted in the detention and search
of up to 100 people, all of whom were African-Americans. (Whites were
allowed to leave the area.) No one was ever prosecuted for a crime.[161]
D. The "Drug War"
The major cause of the militarization of American law enforcement has
been the "drug war." In 1981 and 1988, Congress created massive
exceptions to (p.653)the Posse Comitatus Act, to allow use of the armed
services, including the National Guard, in drug law enforcement.[162]
Because of drug war exceptions created in the Posse Comitatus Act, every
region of the United States now has a Joint Task Force staff in charge
of coordinating military involvement in domestic law enforcement. In
region six, the JTF's Operational Support Planning Guide, in the edition
current in 1993, enthused, accurately, that "Innovative approaches to
providing new and more effective support to law enforcement agencies are
constantly sought, and legal and policy barriers to the application of
military capabilities are gradually being eliminated." Consistent with
the trend noted by the JTF, the 1995 session of Congress saw a proposal
to create a 2,500 member federal Rapid Deployment Force for the Attorney
General to deploy at her discretion to assist local law
enforcement.[163]
The collapse of the Soviet Union has, unfortunately, led many military
officials to seek out a new enemy to justify continued funding. Often,
that new military enemy turns out to be American citizens. The North
American Aerospace Defense Command (NORAD) admits that it is no longer
capable of protecting Americans from incoming nuclear missiles. Yet
NORAD enjoys hundreds of millions of dollars in annual funding, as part
of a 1.8 billion dollar systems upgrade, having convinced Congress to
assign NORAD the mission of tracking planes and ships that might be
carrying drugs.[164]
Many other federal military programs have hitched themselves to the
anti-drug bandwagon. For example, when President Clinton in April 1996
requested 250 million dollars in extra funding for anti-drug programs,
over half that money was earmarked for the military.[165]
The results of such programs are evident not only at Waco, but in Puerto
Rico. There, the National Guard provides a large part of the manpower
and the heavy military equipment for police-Guard assaults on public
housing apartments.[166](p.654)
In 1987, the Secretary of Defense and the Attorney General were ordered
to provide annual briefings to local law enforcement about available
Department of Defense assistance, to set up a special office to assist
civilian law enforcement, and even to provide a toll-free number for law
enforcement inquiries.[167] In 1993, Congress ordered the Department of
Defense to sell military surplus to state and local law enforcement for
use in counter-drug activities.[168]
Many "Patriot" organizations are comprised of members who are have been
terrified by the appearance of unmarked black helicopters over nearby
rural property. These helicopters (which are actually a very dark green)
have played a major role in intensifying fear of the federal government.
The helicopters are not from the United Nations, but are part of the
National Guard's marijuana eradication program. They are flying over
rural property as a result of 1981 and 1989 Congressional amendments
which created a partial drug exception to the Posse Comitatus Act. In
conjunction with the Supreme Court decision in Oliver v. United
States,[169] which allows law enforcement officials to trespass on "open
fields" without probable cause or a search warrant--even when the owner
has taken all possible steps to exclude trespassers--many rural areas
are subjected to low-level overflights and landings of dark helicopters
carrying men in military uniforms with automatic weapons. Who would not
be frightened by the sudden invasion of an unmarked helicopter and men
with machine guns on private property?
Every fall, Humboldt County, California, is invaded by National Guard
forces, as part of the Campaign Against Marijuana Production (CAMP). In
a typical year, 100 harassment complaints are logged against airborne
and ground activities of CAMP personnel.[170]
Tanks, helicopters, and men pointing automatic rifles at children have
no place in a free society. Neither the push to make America a drug-free
society nor desire to "do something" about terrorism should be
accomplished at the expense of losing our freedom.(p.655)
The incentives for lawless violence and militarization do not come
entirely from law enforcement itself. As sociologist Phillip Jenkins
observes, "Media images can also frame the expectation and behavior of
individual agents and administrators...."[171] Sensationalistic "reality
television" shows which glorify violent, illegal police conduct play a
role in legitimating violence in the mind of law enforcement officers
who watch such programs[172] --movies such as Dirty Harry, Lethal
Weapon, and many others.[173]
Another cause is the use of military rhetoric by politicians. Political
talk about a "war on drugs" or a "war on crime" confuses the objectives
and methods of war (destroying a foreign military force, and not
worrying about proper procedure) with law enforcement in a free society,
involving suspects who are American citizens, and entitled to the full
protection of the Bill of Rights. As New York University law professor
Paul Chevigny explains:
Armies are organized and trained for killing an enemy, usually more or
less well-defined, and not for service and law-enforcement among a
civilian population to which they themselves belong, in situations for
which they have to make fine-grained legal and social distinctions about
what action is required....
[T]he results of ["war on crime" rhetoric] distort and poison police
relations with citizens. The police think of themselves as an occupying
army, and the public comes to think the same. The police lose the
connection with the public which is a principal advantage to local
policing, and their job becomes progressively more difficult, while they
become more unpopular.[174]
One can be in favor of drugs being illegal, and still oppose "the war on
drugs," just as one can want food stamp fraud to be illegal without
wanting a "war on welfare cheaters," because to have "a war" is to make
it likely that the military will become involved. As Police Studies
professor Peter B. Kraska writes:
[T]he militaristic nature of the discourse on crime and drug
(p.656)control--wars on crime and wars on drugs--constitutes more than
ineffectual media/political rhetoric. Filtering solutions to the complex
social problems of crime and substance abuse through the "war" metaphor
helps to structure our values in use, our theories, and most important,
our actions.... A metaphor and associated dis-course materialized, for
example, into urban police departments deploying paramilitary police
groups to patrol U.S. neighborhoods.[175]
Regarding the First World War, Randolph Bourne observed that war is the
health of the state. The drug war has been the health of the military
state, and may in the long run be the death of the Constitution.
E. Suggestions for Reform
The military operates on the principle of authoritarian control, with no
room for dissent, for waiting for a consensus to form, or for democracy.
Most members of the armed forces live in enclaves separate from the rest
of society--enclaves that are orderly and authoritarian, often quite
different from the chaotic civilian world.[176] The military lifestyle
and military housing enclaves are ill fitted to building the values of
due process, democracy, and diversity on which civilian law enforcement
must be founded.
Reforms to reduce the trend to militarization of domestic law
enforcement should include tightening the Posse Comitatus Act so that it
proscribes all use of military personnel and equipment, not just use of
the Army and Air Force, and not just unreimbursed use.[177] (Currently
exempt from Posse Comitatus, the Navy's� has allegedly participated in
several "take-downs" of crack houses in the Los Angeles area.)[178] In
particular, Congress should eliminate (p.657)the loophole that exempts
the National Guard from the Act.[179]
Congress should also repeal the drug exceptions and other exceptions to
the Posse Comitatus Act, expressly making the only exceptions those
involved with law-enforcement in international waters or requiring
unique military expertise related to nuclear weapons.[180]
Several reforms could be made to deter abuses of the Posse Comitatus
Act. For example, knowingly violating the Posse Comitatus Act should be
a predicate felony for felony murder. In addition, federal courts should
not allow evidence obtained in violation of the Posse Comitatus Act to
be admitted in court. Congress could also create a civil cause of action
for persons injured by Posse Comitatus Act Violations.
In the years before the Posse Comitatus Act, any soldier who did engage
in police activity was deemed to be acting as a private citizen, rather
than as a soldier. Under this Mansfield Doctrine, the individual, since
he was not acting as a soldier, could be personally sued or criminally
prosecuted for any wrongs he committed. Courts should revive the
Mansfield Doctrine at once, and allow injured victims to bring lawsuits
against individual "law enforcement" soldiers who perpetrate civil
torts.
Congress should repeal 10 U.S.C. � 372, which authorizes the Secretary
of Defense to make "any" Department of Defense equipment available to
"any Federal, State, or local civilian law enforcement personnel for law
enforcement purposes." Like previous steps to militarize domestic law
enforcement, this provision grew out of the "drug war," in this case the
omnibus 1988 drug law, but the language does not restrict the military
equipment to drug enforcement purposes.
Even in the case of drug law enforcement, military equipment--such as
tanks--has no legitimate role in civilian law enforcement. The type of
equipment which is used to attack hostile nations is not the type of
equipment which should (p.658)be used against Americans, even Americans
who are suspected of violating the law.
Of course, any person who has served honorably in the military should be
allowed to apply for any civilian job, including law enforcement. But
the federal government should not use subsidies to bias police
departments into hiring persons with a military background, as opposed
to a civilian background. Much of the training which makes a good
soldier is contradictory to the training necessary to be a peace
officer.
Congress should also repeal the new statute allowing weapons of war to
be given away free to federal, state, and local police.[181] A 1968 law
had allowed the military to sell, "at fair market value," surplus
firearms and ammunition to local law enforcement agencies.[182]
Congress should require that all international warfare treaties signed
by the United States be binding on domestic operations of the federal
government. If the United States is willing to agree not to use certain
particular deadly types of chemical or biological weapons against
foreign troops, the U.S. government should also be willing to foreswear
use of those same weapons against American citizens.
Various federal statutes authorize different federal agencies to allow
their employees to carry firearms. Certainly there are many federal
employees with a legitimate need to carry firearms. Sensibly, the
statute authorizing Forest Service employees to carry firearms states
that no more than one thousand employees shall be so authorized.[183]
This sensible cap should be extended to all other agencies with
gun-carrying employees, with a view to reducing gun-toting by federal
employees only to cases of genuine need. The right to keep and bear
arms, after all, is for "the People," not the government.
To the extent that non-discriminatory state laws authorize ordinary
persons to obtain firearms carry permits and to carry firearms while at
work, there is nothing wrong with federal employees within that state
obtaining such permits for themselves. But cases of federal employees
carrying firearms in contravention of relevant state law, as if the
federal employees were some kind of superior class, should be kept to an
absolute minimum.
Law enforcement use of masks in the service of search or arrest warrants
should be prohibited, except when specifically authorized by a court
when authorizing (p.659)the warrant, based on compelling need. Masks not
only make peace officers look inappropriately terrifying, they prevent
identification of rogue officers so that they cannot be sued later for
criminal acts.
As an important symbolic step, federal law enforcement should give up
its black or near-black uniforms and replace them with a color (such as
ordinary blue) more consistent with law enforcement in a democracy.[184]
Rutgers University , a scholar of the psychology of clothing, explains
that black law enforcement uniforms tap "into associations between the
color black and authority, invincibility, the power to violate laws with
impunity."[185]
VII. Conclusion
Soldiers are not peace officers. At all levels of policing, it is time
that police officers be restored to their honored status as peace
officers. Police ethicist John Kleinig notes: "Were police to see
themselves primarily as social peace-keepers, they would be less
inclined to 'overkill' in their dealings with both ordinary citizens and
those whose disruptive activities properly require their
intervention."[186] To help prevent future Wacos, and the needless loss
of life of law enforcement personnel and other persons, law enforcement
in the United States should be demilitarized. Cicero's advice to the
Roman republic, "Let the soldier give way to the civilian,"[187] must be
heeded by those who are intent on preserving the American republic, and
the rule of civil law.
[*] Research Director, Independence Institute. B.A., Brown University;
J.D., University of Michigan. This article is based on, but revised
from, a chapter of the authors' book No More Wacos: What's Wrong with
Federal Law Enforcement and How to Fix It (Prometheus Books, 1997). The
Independence Institute world-wide web site, at <http://www.i2i.org/>
includes a Waco page offering a wide variety of Waco resources.
[**] Research Coordinator, National Rifle Association. B.A., University
of California at Riverside; Ph.D., University of Virginia. The views
expressed in this article are the authors' alone, and do not necessarily
reflect the position of any organization, including the National Rifle
Association or the Independence Institute.
[1] See generally, 18 U.S.C. � 1385 (1994); Steven Wisotsky,
Crackdown: The Emerging "Drug Exception' to the Bill of Rights, 38
Hastings L.J. 889 (1987); Kurt Schlichter, Note, Locked and Loaded:
Taking Aim at the Growing Use of the American Military in Civilian Law
Enforcement Operations, 26 Loy. L.A. L. Rev. 1291 (1993).
[2] 18 U.S.C. � 1385 (1997).
[3] "[O]ur Founding Fathers intended this separation of the civilians
and the military. They did not want the military dominant, as it was in
Europe and so the separation, the civilian control of the military
became one of our tenets in the United States. And the Posse Comitatus
Act is really a logical follow on to that." Activities of Federal Law
Enforcement Agencies Toward the Branch Davidians: Joint Hearings Before
the Subcomm. on Crime of the Comm. on the Judiciary and the Subcomm. on
National Security, International Affairs, and Criminal Justice of the
Comm. on Government Reform and Oversight, 104th Cong., 1st Sess., part
1, at 366 (1995) [hereinafter Joint Hearings] (testimony of Brig. Gen.
Michael Huffman).
[4] Wrynn v. United States, 200 F. Supp. 457, 465 (E.D.N.Y. 1961).
[5]
If the federal government can command the aid of the militia in those
emergencies which call for the military arm in support of the civil
magistrate, it can the better dispense with the employment of a
different kind of force. If it cannot avail itself of the former, it
will be obliged to recur to the latter. To render an army unnecessary
will be a more certain method of preventing its existence than a
thousand prohibitions upon paper.
The Federalist No. 29 (Alexander Hamilton).
[6] 408 U.S. 1, 15(1972). The case grew out of the U.S. Army's program
of spying on anti-Vietnam War political activists in the United States.
Id. at 2. A five-to-four majority of the Court refused to allow lower
federal courts to hear the plaintiffs' complaints that the surveillance
program violated their First Amendment rights. Id. at 1. The Court
majority held that use of the military within the United States against
American citizens was "nonjusticiable" and within the sole discretion of
the Executive branch. Id. at 15. The four dissenters argued that the
majority holding is an abdication of judicial responsibility to enforce
the Constitution. Id. at 20, 28 (Douglas, J., dissenting).
[7] Bissonette v. Haig, 776 F.2d 1384, 1387 (8th Cir. 1985), aff'd on
reh'g, 788 F.2d 812 (8th Cir. 1986), aff'd, 485 U.S. 264 (1988).
[8] Jerry M. Cooper, Federal Military Intervention in Domestic
Disorders, in The United States Military under the Constitution of the
United States, 1789-1989, at 123, 135 (in Richard H. Kohn ed., 1991).
[9] Id. at 136-37.
[10] Id. at 137.
[11] See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952):
Even though 'theater of war' be an expanding concept, we cannot with
faithfulness to our constitutional system hold that the Commander in
Chief of the Armed Forces has the ultimate power as such to take
possession of private property in order to keep labor disputes from
stopping production. This is a job for the Nation's lawmakers, not for
its military authorities.
Id. at 587. "[O]ur history and tradition rebel at the thought that the
grant of military power carries with it authority over civilian
affairs." id. at 632 (Douglas, J., concurring).
[12] Cooper, supra note 8, at 141.
[13] Events Surrounding the Branch Davidian Cult Standoff in Waco,
Texas: Hearing Before the House Comm. on the Judiciary, 103d Cong., 1st
Sess. 25 (1993) [hereinafter Hearing].
[14] Id. at 40.
[15] Id. at 65.
[16] See 10 U.S.C. � 375 (1997), which provides:
The Secretary of Defense shall prescribe such regulations as may be
necessary to ensure that any activity (including the provision of any
equipment or facility or the assignment or detail of any personnel)
under this chapter does not include or permit direct participation by a
member of the Army, Navy, Air Force, or Marine Corps in a search,
seizure, arrest, or other similar activity unless participation in such
activity by such member is otherwise authorized by law.
Id.
[17] See 10 U.S.C. � 373 (1997), which provides:
The Secretary of Defense may, in accordance with other applicable law,
make Department of Defense personnel available (1) to train Federal,
State, and local civilian law enforcement officials in the operation and
maintenance of equipment, including equipment made available under
section 372 of this title; and (2) to provide such law enforcement
officials with expert advice relevant to the purposes of this chapter.
Id.
[18] In the course of the siege, an FBI negotiator denied to Davidian
Steve Schneider that the military was involved, but acknowledged that
the military had trained FBI agents to drive tanks. Schneider indicated
that he thought that was an erosion of the Constitution. Transcripts of
BATF Tapes of the Negotiations between Federal Law Enforcement and the
Branch Davidians, Feb. 28-Apr. 19, 1993 [hereinafter Negot. Tapes], no.
103, at 41-42 (Mar. 10, 1993).
[19] See 10 U.S.C. � 372 (1997).
[20] See 10 U.S.C. � 377 (1997).
[21] See 10 U.S.C. � 374 (1997).
[22] It is not entirely clear that BATF has the authority to request
military assistance under the drug-law exception to the Posse Comitatus
Act. The exception requires a "request from the head of a Federal law
enforcement agency," defined as "an agency with jurisdiction to enforce"
a variety of federal laws, none of which falls within the generally
recognized jurisdiction of BATF. 10 U.S.C. � 374(b)(1) & (b)(4)(A)
(1997).
The House joint committees investigating Waco, though, believed that
BATF is authorized as a DLEA ("drug law enforcement agency") by virtue
of its investigations of "narcotics traffickers who use firearms and
explosives as tools of their trade, especially violent gangs."
Investigation Into the Activities of Federal Law Enforcement Agencies
Toward the Branch Davidians Before the House Comm. on Gov't Reform and
Oversight in Conjunction with the Comm. on the Judiciary, 104th Cong.,
2d,. Sess., 35 n.177 (1996) [hereinafter Committee Report]. [Download
full text of Report. Or to read on-line, go the Library of Congress
"Thomas" site, and enter the Report number, 104-749.]
[23] See, e.g., Jim McGee, Military Seeks Balance in Delicate Mission,
Wash. Post, Nov. 29, 1996 (detailing the expansion of military
involvement in the "drug war" and the desires of some political leaders
to expand the military's role in such missions).
[24] Joint Hearings, supra note 3, part 1, at 400. Maj. Gen. John M.
Pickler: "If it were not for some kind of drug connection, we would not
have been participants...." Id. Rep. Bill McCollum: "But this particular
unit was not, under the rules of the Army or DOD [Department of
Defense], permitted to give training to anybody that did not have a drug
support connection like this; is that right?...If it had not been for
the drug support, your particular unit would not have been permitted to
train them?" Id. Gen. Pickler: "That is correct, sir." Id. Witnesses
representing the Defense Department who emphasized in testimony that no
active-duty military personnel were present or participants in the BATF
raid on February 28, 1993 included. Asst. Defense Sec. H. Allen Holmes,
Gens. John M. Pickler and Walter B. Huffman, Lt. Col. Philip Lindley,
Maj. Mark Petree, Sgt. Steve Fitts, Sgt. Robert W. Moreland, and Chris
Grain, U.S. Army Special Operations Command (Fort Bragg, N.C.). Id. at
345-410.
[25] U.S. Dept. of The Treasury, Bureau of Alcohol, Tabacco, and
Firearms Investigation of Vernon Wayne Howell Also Known as David Koresh
212 (1993) [hereinafter Treasury Report].
[26] See Committee Report, supra note 22, at 41.
[27] Id.
[28] Id. at 41-42.
[29] Frago "E" Oporder, Feb. 14, 1993; Memorandum for Record by Lt. Col.
Douglas C. Andrews, Deputy Staff Judge Advocate, (no date, most of text
redacted, on file with the Akron Law Review). At the raid itself, in
addition to BATF personnel, there were representatives from the
Immigration and Naturalization Service, and one agent from the Drug
Enforcement Administration. Hearing, supra note 13, at 164.
[30] Maj. Gen. John M. Pickler testified that the request for military
assistance came from both the Houston office and the Washington
headquarters of BATF. Joint Hearings, supra note 3, part 1, at 360.
[31] The briefing of the Texas National Guard was to William R. Enney,
Interagency Coordinator, Counterdrug Support. Hearing, supra note 13, at
164.
[32] See Joint Hearings, supra note 3, at 400. Rep. John Shadegg
(R-Ariz.):
Did the ATF ever, to your knowledge, express any concern about the
dangers that were presented by a methamphetamine lab?
Sgt. Fitts: Not to my knowledge, no, sir.
Rep. Shadegg: ...and the dangers that were exposed as a result of a lab
being there?
Sgt. Fitts: No, sir. Nothing in the inconduct would indicate that.
Rep. Ed Bryant (R-Tenn.): ...I understand you were assigned to draft a
plan under the contingency that ...there was a methamphetamine lab in
there and what should occur in case there was an accident.
Sgt. Fitts: My planning for the ATF did not include a methamphetamine
lab.
Rep. Bryant: ...there is a higher risk of danger, is there not, to
...using a dynamic entry into a facility that has a methamphetamine
laboratory in it?
Sgt. Fritts: Yes, sir.
Rep. Bryant: And the risks...if there were a bullet shot into it...cause
of it to explode, it could be a danger especially to children, to older
people, to people around it?
Sgt. Fitts: I think there would be a danger to all people, regardless of
age.
Id. Similar testimony was provided by John Coonce of the Drug
Enforcement Agency. Id. at 311-12. BATF's response was, "[W]e had a DEA
lab team supervisor on board in the command post. His lab team was
standing by for a call in case we did find...a lab, so that they could
take over that very sensitive area of making that area safe, while we
began our search of the premises." Id. at 447 (testimony of Phillip
Chojnacki, the supervisor of the assault on Mount Carmel Center). Such
an invitation to the DEA would have followed the arrest expected to
involve a shootout.
[33] Committee Report, supra note 22, at 44.
[34] Id. at 45.
[35] Even if the drug allegations had been sincere, they would have
provided no justification for conducting a "no-knock" raid to prevent
the destruction of evidence. It is rather difficult to flush a
methamphetamine lab down the toilet, and the Branch Davidians did not
have flush toilets. See David G. Bromley and Edward D. Silver, The
Davidian Tradition: From Patronal Clan to Prophetic Movement, in
Armageddon in Waco: Critical Perspectives on the Branch Davidian
Conflict 43, 55 (Stuart A. Wright ed., 1995).
[36] Letter from Richard L. Garner, Chief, Special Operations Division,
BATF, to Headquarters, Department of the Army (Feb. 28, 1993) (on file
with the Akron Law Review).
[37] James L. Pate, Waco's Defective Warrants: No Probable Cause For
Raid on Ranch Apocalypse, Soldier of Fortune, Aug. 1993, at 46, 48.
Pate's Waco series was given the Mencken Award by the Free Press
Association "in recognition of his investigative articles about the Waco
massacre for Soldier of Fortune." The Award is established for
"outstanding journalism in support of liberty as chosen by their
professional peers."
[38] Approval of Request for Helicopter Support to the FBI and Bradley
Fighting Vehicle Support to the Bureau of Alcohol, Tobacco, and Firearms
(BATF) by Lt. Col. Paul G. Marksteiner, (Feb. 28, 1993); Memorandum for
Record, for the Acting Assistant Secretary of the Army Michael W. Owen
by Major Alexander S. Wells (March 25, 1993) (on file with the Akron Law
Review).
[39] From the mass of documents the Treasury Department eventually
provided to the subcommittees investigating Waco, Rep. John Shadegg read
into the record from an unsourced document with a stamp marked
"A00010228": "The use of the National Guard was a scam...this was a scam
initiated by Bureau [BATF] headquarters...in my opinion, to obtain the
additional resources of the National Guard, air support assistance,
etc." Joint Hearings, supra note 3, part 1, at 379.
[40] Most of the military assistance--including training, equipment, and
expert advice--can be provided as long as there is reimbursement. But
"the military is not to be involved in arrest, search or seizure or
similar activities such as stop and frisk." Id. at 352 (testimony of
Gen. Walter Huffman). Further, there are certain units in the military,
including JTF-6, which are geared toward drug-law enforcement and which
would not get involved in assisting general law enforcement even with
reimbursement. Id. at 400 (testimony of Gen. Pickler).
[41] Hearing of the Senate Judiciary Comm., Terrorism, Technology, and
Gov't Inf. Subcomm., Federal Raid in Ruby Ridge, Idaho, 104th Cong. 1st
Sess. 54 (1995); Interview of Herb Byerly, Special Agent, Bureau of
Alcohol, Tabacco and Firearms, Feb. 20, 1991 (transcript on file with
the Akron Law Review).
[42] James L. Pate, No Peace Without Justice, Soldier of Fortune, May
1995, at 58, 81.
[43] Application and Affidavit for Search and Arrest Warrants for Vernon
Wayne Howell and the Residence of Vernon Wayne Howell, and others *7
(Waco, Tex., Feb. 25, 1993) (filed by BATF agent, Davy Aguilera),
available at <http://www.shadeslanding.com/firearms/read6.html>.
[44] Treasury Report, supra note 25, at 212.
[45] Dick Reavis, The Ashes of Waco: An Investigation 82 (1995). Branch
Davidian David Thibodeau stated: "There was absolutely no drugs at Mount
Carmel, period, other than alcohol...." Joint Hearings, supra note 3,
part 1, at 125.
[46] Treasury Report, supra note 25, at 16, 212.
[47] Id. at 212. Social worker Joyce Sparks, no fan of Koresh's, had
told the BATF investigators: "David Koresh explained to me that the
previous prophet had been involved in drugs, had a lab there, and
[Koresh] said he had given that material--the needles and the drugs book
explaining how to make drugs--he'd given that all to the sherif's
department in McLennan County." Joint Hearings, supra note 3, part 1, at
611 (responding to a question by Rep. Steve Chabot). See also Committee
Report, supra note 22, at 46
[48] Committee Report, supra note 22, at 46.
[49] Treasury Report, supra note 25, at 213 n.74, 214.
[50] Lee Hancock, ATF Official Defends Raid Planning, Dal. Morn. News,
Mar. 27, 1993 at A25.
[51] James L. Pate, Special Forces Involved in Waco Raid!, Soldier of
Fortune, May 1994, at 34-35; Pate, No Peace, supra note 42, at 58-61.
For the government's version of the training, see Treasury Report, supra
note 25, at 73, 78, & App. B-56.
[52] The Texas Army National Guard helicopters were two OH-58 Kiowas and
a UH-60A Black Hawk. James L. Pate, ATF's Bloody Sunday, Soldier of
Fortune, June 1993, at 52.
[53] Committee Report, supra note 22, at 39.
[54] Id. at 34.
[55] Id. The National Guard is a complex entity which most of the time
is under state control, and in that capacity would be known as the
"Alabama National Guard." The President has the option of calling the
National Guard into federal service, at which point the entity becomes
known as the "National Guard of the United States." Most National Guard
troops are dually-enlisted in the state and federal Guards, and take
separate oaths of loyalty to each. (A few high-ranking officers may
serve only in a State Guard, and are not subject to induction into
federal service.) The Alabama National Guard, not in federal service,
was covered by the Texas law requiring the Texas Governor's permission
to enter Texas.
[56] Committee Report, supra note 22, at 34.
[57] Id. (citing Ala. Code � 31-2-7 (1995)).
[58] "No State shall, without the Consent of Congress...enter into any
Agreement or Compact with another State...." U.S. Const., art. I, �
10, cl. 3; Committee Report, supra note 22, at 34-35. The general rule
of interpretation for this clause of the Constitution, as stated in
Virginia v. Tennessee, 148 U.S. 503 (1893), and United States Steel
Corp. v. Multistate Tax Comm'n, 434 U.S. 452 (1978), is that
Congressional consent is required for agreements which increase the
political power of the states to the possible detriment of federal
powers. See Committee Report, supra note 22 n. 166, 169. Since the
Alabama Governor has no legal authority to command the Alabama National
Guard beyond the boundaries of Alabama (Ala. Code � 31-2-7 (1995)),
and since the Governor of Texas was not even aware of the Alabama
Guard's presence in her state, the Alabama Guard was under the practical
command of neither Governor, and was thus, in essence, a rogue military
force, answerable only to itself. The existence of such a force poses an
obvious danger to federal supremacy, and hence would likely be
unconstitutional under the principles of Virginia and United States
Steel.
[59] David B. Kopel & Paul H. Blackman, No More Wacos: What's Wrong with
Federal Law Enforcement and How to Fix It 89 (1997).
[60] Id.
[61] See Joint Hearings, supra note 3, part 1, at 308-309 (testimony of
Wade Ishimoto).
[62] Id.
[63] James L. Pate, Gun Gestapo's Day of Infamy, Soldier of Fortune,
June 1993, at 48, 50.
[64] Joint Hearings, supra note 3, part 1, at 383 (statement of Rep.
Steve Chabot). During the siege, a heated discussion between BATF
negotiator Jim Cavanaugh and Koresh regarding guns on the helicopters
ended with their calmly agreeing that there were no guns mounted on the
helicopters but that agents on the 'copters had guns. Negot. Tapes,
supra note 18, no. 42, at 29-31 (Mar. 4, 1993).
[65] Sue Anne Pressley, Waco Cult's Children Describe Beatings,
Lectures, War Games, Wash. Post, May 5, 1993, at A1, A17.
[66] Melinda Beck, Someone Dropped the Ball, Newsweek, May 17, 1993, at
51. See also Lynne Lamberg, Children and Families Need Help After
Disasters, 275 JAMA 1714-1715 (June 12, 1996).
[67] Vin Suprynowicz, Speaking the Unpalatable Truth, The Libertarian,
Sep. 15, 1996, available at <http://www.nguworld.com/vindex/> (visited
May 12, 1997).
[68] Negot. Tapes, supra note 18, no. 50, at 16 (Mar. 4-5, 1993); no.
109, at 20 (Mar. 10-11, 1993). Some of the guns were at a gun show with
Davidian financier and gun-show regular, Paul Fatta. He missed the
shootout, made no effort to break in, and was arrested long after the
battle, peacefully, and tried and convicted on gun-law violations.
Reavis, supra note 45, at 37-38, 152-53, 291-92; Michael deCourcy Hinds,
A Believer, Says Cult in Texas is Peaceful Despite Shootout, N.Y. Times,
Mar. 6, 1993, at 1, 8.
[69] Joint Hearings, supra note 3, part 2, at 25. Dick DeGuerin,
Koresh's attorney, went inside the compound during the siege, to try to
convince Koresh to surrender. Id. DeGuerin said that he saw "bullet
holes in the ceiling of the highest room in the compound.... The only
way those bullets could have been made was from someone standing on the
roof shooting down, or someone shooting from the helicopters." Id. at
25, 37. DeGuerin and Jack Zimmermann (Steve Schneider's attorney, who
went into the compound with DeGuerin) said they saw bullet holes in
Koresh's bedroom, in addition to bullet holes in the gun room. Id. at
105, 138. The bullet holes in the gun room, unlike those in the bedroom,
could have come from agents who climbed onto the roof and who
participated in the firefight at the gun room. Id.
The Texas Rangers, who investigated the February 28 gun battle,
testified that they found no evidence of shooting from helicopters,
although the Rangers were unable to offer an alternative explanation for
how the bullet holes described by DeGuerin could have been created. Id.
at 197-98.
[70] Defense Rests without Calling Cultists, N.Y. Times, Feb. 18, 1994,
at A20.
[71] Joint Hearings, supra note 3, at 270.
[72] In the course of the negotiations, when the FBI suggested sending
in a videotape showing the children who had left the residence, Koresh
and his followers remarked that helicopter fire through the ceiling had
damaged his television, and the Davidians would have to check to see if
they had working TVs to use with their VCRs. Negot. Tapes, supra note
18, no. 50, at 16, 17, 22 (Mar. 4-5, 1993).
[73] Branch Davidian rifle shots did hit at least one of the
helicopters, forcing it to make an emergency landing.
[74] Negot. Tapes, supra note 18, no. 122, at 18 (Mar. 13, 1993).
[75] Pate, Day of Infamy, supra note 63, at 62. The Treasury Report does
not address the issue of Cyclone ammunition. See Treasury Report, supra
note 25.
[76] Joint Hearings, supra note 3, part 1, at 91 (testimony of Stuart
Wright). The Treasury Report states that the Davidians killed by BATF
agents were struck with 9mm HydraShok rounds, not the Cyclone. Treasury
Report, supra note 25, at 104.
The Cyclone, as armor-piercing handgun ammunition, is banned from sale
to civilians. 18 U.S.C. � 922(a)(8)&(9) (1994). Perhaps it is worth
considering whether sale of such deadly ammunition to the government
should also be prohibited.
[77] Joint Hearings, supra note 3, part 2, at 329 (testimony of BATF
Agent James Cavanaugh). BATF Deputy Director for Enforcement, Dan
Hartnett, confirmed that he curtailed AR-15 use because of the rifle
bullets' ability to penetrate, but some AR-15s were used since they were
requested, and the assault was to occur in a non-urban setting. Id. part
1, at 266.
[78] An "AR-15" is an automatic rifle. Many persons informally use
"AR-15" for semiautomatic rifles which have the same outward
appearance--but not the same internal components--as the automatic
AR-15. The BATF rifles were semiautomatics, but we follow BATF's usage
in calling them "AR-15s," since we do not know exactly which model the
BATF rifles were.
[79] We do not agree with this characterization of the semiautomatic
rifle, or of any other so-called "assault weapons." The point is that
BATF, while claiming to be only lightly armed, was using ten rifles
described by BATF officials as extremely powerful mass murder weapons.
[80] A machine pistol is a machine gun that is also a pistol (as opposed
to a rifle). Such weapons are also called submachine guns. The
government sometimes defines things differently for government and
private use. At the trial of the Davidians, agents frequently testified
that the MP-5 was a semi-automatic firearm even though it can fire a
two-round burst, which would make it a machinegun under federal law.
United States v. Brad Branch, No. W-93-CR-046 (W.D.Tex., 1994), at 2025,
2030-33, 2589, 2815-16, and 3152-53.
[81] Peter B. Kraska, Enjoying Militarism: Political/Personal Dilemmas
in Studying U.S. Police Paramilitary Units, 13 Justice Q. 403, 412
(Sept. 1996).
[82] At the trial, Texas Rangers testified that they found forty used
shell casings (in the same caliber as the BATF weapons) more than 300
yards from the house. Much Evidence and Conflict in Branch Davidians'
Trial, N.Y. Times, Jan. 17, 1994, at A12. Agent Timothy Gaborie
testified that he fired twenty-five to thirty shots in the direction of
the house, without looking where he was shooting. Lift for Defense in
Cultists' Trial, N.Y. Times, Jan. 30, 1994, at A28.
[83] To be precise, there were 668 from the FBI, 136 from BATF, 6 from
Customs, 15 from the Army, 131 from the Texas Department of Public
Safety Patrol; 13 from the Texas National Guard, and 31 from Texas
Rangers. Carol Moore, The Davidian Massacre 223 (1995). [an earlier
version of the book is available on the Internet at
http://www.shadeslanding.com/firearms/waco.massacre.html]
[84] See Committee Report, supra note 22, at 55-58; Negot. Tapes, supra
note 18.
[85] Philip B. Heymann, The Hostage Team is for Hostages, Wash. Post,
Oct. 20, 1995, at A19.
[86] The HRT's motto is "To save lives," but this would turn out to be a
particularly cruel version of doublespeak. The hostage-holding Hostage
Rescue Team was referred to by the FBI as the "tactical" component at
Waco, with the other component being the negotiators. "Tactical" is the
word currently used for paramilitary groups like the HRT or SWAT Teams.
Members of these groups often belong to the National Tactical Officers
Association. The primary meaning of "tactical" is "of or pertaining to
military or naval tactics." 2 New Shorter Oxford English Dictionary,
3201-02 (1993). Thus, "tactical" is a literally accurate, but lacks the
frightening edge of words like "paramilitary" or "militaristic."
[87] See Negot. Tapes, supra note 18; Kopel & Blackman, supra note 59,
at 130.
[88] Joint Hearings, supra note 3, part 1, at 917. Chief FBI negotiator
Gary Noesner explained that the tactical forces, such as the HRT, are
inclined toward the "action imperative" while the negotiators lean
toward "active listening," where they try to "find ways to explain to
the barricaded subject why it is in his best interest to seek a
nonviolent solution." Committee Report, supra note 22, at 56. He went on
to note: "I do not awake from nightmares or have trouble sleeping at
night...because everything that I predicted would happen, did happen."
Id. at 57.
[89] Moore, supra note 83, at 222-23.
[90] Joint Hearings, supra note 3, part 2, at 299 (testimony of Jeffrey
Jamar).
[91] "I didn't know at the time that there were conflicts between the
people and the negotiators...." Id. at 428 (testimony of Janet Reno).
"Smerick notes that the FBI commanders were action oriented. They wanted
to treat Koresh not as a negotiating partner, but rather as a psychotic
criminal, who needed to be caught and punished." Id. (quote read by Rep.
Hyde).
[92] Id. at 316 (testimony of Gary Noesner).
[93] Shortly after the siege had begun, former McLennan County District
Attorney Vic Feazell (who had unsuccessfully prosecuted Koresh for
attempted murder in 1987), noted the mobilization of military equipment.
"The feds are preparing to kill them," said Feazell. "That way they can
bury their mistakes." Roy Bragg, Standoff At Cult Compound/Ex-Prosecutor
Laments Agents' "Storm Trooper" Tactics, Hous. Chron., Mar. 2, 1993, at
A7.
[94] See infra note 119.
[95] Negot. Tapes, supra note 18, no. 88, at 13-14 (Mar. 7, 1993). One
FBI explanation for the wild driving of tanks was that it was young
agents' only chance to drive tanks, so they were acting a bit reckless,
like kids. Id. no. 53 at 13-14 (Mar. 5, 1993). FBI official Larry Potts
later explained, with an infelicitous choice of words, "We had to put
our hostage rescue people through a crash course on learning to drive
those vehicles." Joint Hearings, supra note 3, part 3, at 68. In
response to the suggestion that the Bradley's 25mm barrels posed a
threat, the FBI insisted the tanks had no barrels, just "tubes in a
barrel mount." Negot. Tapes, supra note 18, no. 84, at 37 (Mar. 7,
1993); no. 85, at 32 (Mar. 7, 1993).
The FBI offered to remove the tanks if the Davidians agreed first to
send out four women and four children, and then, once the tanks were
removed, if everyone else in the compound came out. Id. no. 68, at 9-10
(Mar. 6, 1993).
[96] Negot. Tape supra note 18, no. 95, at 9 (Mar. 8-9, 1993).
[97] Id. no. 88, at 13 (Mar. 7, 1993).
[98] "No Question" Fire was Set by Davidians, Wash. Times, Aug. 1, 1995
(Federal News Service transcript).
[99] Victoria Loe, FBI'S "A-Team" Plying Varied Skills in Sect Talks But
Experts Say Obstacles Numerous, Dal. Morn. News, Mar. 14, 1993 at A1;
Moore, supra note 83, at 233; U.S. Department of Justice, Report to the
Deputy Attorney General on the Events at Waco, Texas, February 28 To
April 19, 1993, at 123-24 (1993) [hereinafter Justice Report].
While Steve Schneider complained regularly about the tanks, Koresh was
more threatening, saying the Davidians would use something bigger than
.50 caliber, something that could incinerate part of a tank, and then
saying the Bradleys were not a concern, "that's why we haven't done
nothing to them yet." Negot. Tapes, supra note 18, no. 49, at 2-3 (Mar.
4, 1993); no. 53 at 15-16 (Mar. 5, 1993); no. 68, at 8 (Mar. 6, 1993).
[100] Like BATF, the FBI made extensive use of U.S. military equipment
and training. Materials supplied under the Freedom of Information Act
make it clear that, unlike BATF, the FBI did not pretend Waco was a drug
operation. Therefore, the Defense Department was reimbursed by the
Justice Department, military equipment had military markings covered,
and military personnel trained FBI personnel but did not themselves use
the equipment in operations against Mount Carmel Center. Justice Report,
supra note 99, at 123. In practical terms, the FBI actions appeared as
militaristic as the BATF's: a tank attack looks military even if some
markings are covered up, and even if the unseen driver is not a soldier.
As the House Committee Report observed, "images of the tanks and other
military vehicles gave the impression that the FBI was using excessive
force together with military weapons and tactics against U.S. citizens,
contrary to our civilian law enforcement tradition." Committee Report,
supra note 22, at 7.
[101] Joint Hearings, supra note 3, part 3, at 117 (testimony of Clive
Doyle). The mooning was condemned by negotiators as unprofessional and
unacceptable, and caused by "frustration and anguish," Negot. Tapes,
supra note 18, no. 89, at 16 (Mar. 7, 1993); Reavis, supra note 45, at
249.
[102] Ever since a 1985 trip to Israel, Koresh had been hearing a
disembodied voice which revealed Bible secrets to him. In a 1987
teaching session, Howell described one of his experiences with the
voice:
What--what if you turned on the water in the shower and all of a sudden
it said, "Drop down ye waters from above, let the faucets pour out
righteousness. I the Lord have created it." Huh? You know. Sh- and, and
the songs of blessing, showers of blessing, starts being heard in your
room or in the bathroom, right? I mean let's face it. Let's be realistic
now. This guy is freaked out, isn't he? OK? He's--this--Cyrus [Koresh]
has an experience which none--very few and far in between have had.
The Shower Head Tape 26 (Aug. 24, 1987) (teaching session of David
Koresh) <http://www.ime.net/~mswett/shower.html> (the authors have
changed some of the punctuation in the transcript, which the transcriber
describes as a first draft.).
[103] Joint Hearings, supra note 3, part 2, at 320 (testimony of Jeffrey
Jamar).
[104] Committee Report, supra note 22, at 57.
[105] At one point, when a negotiator blamed the commanders, Koresh
summarized the commanders' viewpoint: "They want patience, and they want
it now." Negot. Tapes, supra note 18, no. 99, at 34 (Mar. 9, 1993).
[106] Id. no. 122, at 8, 28-30 (Mar. 13, 1993).
[107] See Justice Report, supra note 99, at 76-77, 112; Treasury Report,
supra note 25, at 104, 106; Joint Hearings, supra note 3, part 2, at 496
(testimony of Byron Sage).
[108] Negot. Tapes, supra note 18, no. 152.
[109] Justice Report, supra note 99, at 135.
[110] See Kopel & Blackman, supra note 59, at 171 n.70; Justice Report,
supra note 99, at 78.
[111] See Kopel & Blackman, supra note 59, at 171 n.70; Justice Report,
supra note 99, at 82.
[112] Justice Report, supra note 99, at 88.
[113] Edward S.G. Dennis, Jr., Evaluation of the Handling of the Branch
Davidian Stand Off in Waco, Texas, February 28 to April 19, 1993 (U.S.
Dept. of Justice, Oct. 8, 1993) (redacted version).
[114] Committee Report, supra note 22, at 57-58.
[115] Moore, supra note 83, at 269.
[116] Justice Report, supra note 99, at 83, 88, 97, 107.
[117] Reavis, supra note 45, at 224.
[118] Id. See also Negot. Tapes, supra note 18, nos. 69-70 (Mar. 6,
1993).
[119] Reavis, supra note 45, at 224. "The government's tracked vehicles
also planed the surface of the Mt. Carmel cemetery, leaving Anna Hughes,
among others, to await Judgment in an unmarked plot." Id.
[120] Peter J. Boyer, Children of Waco, The New Yorker, May 15, 1995, at
40.
[121] Richard Leiby, "Frontline": What Went Wrong at Waco? Wash. Post,
Oct. 17, 1995.
[122] The discussion of groupthink is based on Paul T. Hart, Groupthink
in Government: A Study of Small Groups and Policy Failure (1990), which
summarizes previous research on groupthink, while also making
substantial original contributions.
[123] See, e.g., Jonathan Rubinstein, City Police 434-35 (1973).
[124] Every adult who left was immediately arrested. The children were
put in a group home, contrary to negotiators' promises that the children
would be sent to relatives.
[125]
[I]n the repressive and military parts of the state apparatus, there is
a large reservoir of the type of highly-cohesive, uniformity-inducing,
depersonalizing groups acting under external pressures which most
closely fit the deindividuation profile ... [P]olice and military are
uniformed (compare the appearance of modern anti-riot police, complete
with helmets, gas masks--indeed the unrecognizability of individual
officers has been a constant source of criticism and claims from
protesting groups who claimed this had a disinhibiting effect upon
police officers during disturbances, leading to excessively violent
behavior).... [T]ight discipline and uniformity of conduct are part of
the occupational socialization and culture.
[126]
Moreover, by the mere fact that he forms part of an organised crowd, a
man descends several rungs on the ladder of civilization. Isolated, he
may be a cultivated individual; in a crowd, he is a barbarian--that is,
a creature acting by instinct. He possesses the spontaneity, the
violence, the ferocity, and also the enthusiasm and heroism of primitive
beings... to be induced to commit acts contrary to his most obvious
interests and best-known habits.
Gustave Le Bon, The Crowd: A Study of the Popular Mind 12-13 (2d ed.
1968) (translation of Psychologie des Foules)
[127] Hart, supra note 122, at 280.
[128] Id. at 281.
[129] See Hearing, supra note 13, at 19 (testimony of Attorney General
Janet Reno).
[130] See David Johnston, F.B.I. Chief Restricts Unit Criticized in
Idaho Standoff, N.Y. Times, Sept. 16, 1995, at 9; Joint Hearings, supra
note 3, part 2, at 509 (testimony of Larry Potts); James L. Pate, Ask Us
No Questions, We'll Tell You No Lies, Soldier of Fortune, Mar. 1996, at
45.
[131] General Accounting Office, GAO/GGD-96-17, Use of Force: ATF
Policy, Training and Review Process are Comparable to DEA's and FBI's 7
(1996).
[132] Carol Vinzant, ATF-Troop, Spy, Mar. 1994, at 49.
[133] Interview of Jim Jorgenson by David Kopel; see also Erik Larson,
ATF Under Siege: Demon Agency?, Time, Jul. 24, 1995 (discussing
criticism of the ATF and its SRTs).
[134] According to a memo written by BATF Director John Magaw:
ATF has contacted the U.S. Army Training and Doctrine Command regarding
its need for command post training.... This training would include
Tactical Operations Center (TOC) functions, stress/crisis management,
and decision making. ATF was notified in January 1994 that the Army
Military Police is developing a tactical commanders course and would
provide this training to ATF at no cost. This course would be mandatory
for those SACs/ASACs [Special-Agent-in-Charge,
Assistant-Special-Agent-in-Charge] who are currently being identified to
serve as future "Incident Commanders" or "Tactical Coordinators" of
major operations.
Bob Lesmeister, Bad Influence: Corruption within the Ranks of BATF, in
American Firearms Industry, June 1995, at 73.
[135] BATF Goes Mechanized, The Resister, (Winter 1995) available at
<http://www.accessone.com/~rivero/POLITICS/ARCHIVE/resister_3.html>
(visited May 6, 1997).; Lesmeister, supra note 134, at 73, 107.
[136] James L. Pate, ATF Watch: ATF's Shadow Air Force, Soldier of
Fortune, Sept. 1995, at 22.
[137] Id.
[138] Id.
[139] Id. At least some of the planes were put through Service Life
Extension Program (SLEP), which upgraded the engines from 750 horsepower
to 1,040 h.p., replaced all of the electronics in the plane, put in the
latest military cockpit electronics, and inserted the same FLIR/video
system as the Apache helicopter has (allowing surveillance of a target
or object from two to three miles away). After the expensive SLEP
reconditioning, the planes were immediately decommissioned (in some
cases before the SLEP process was completed), and transferred to BATF.
Id.
[140] Id.
[141] Letter from John W. Magaw, Director, BATF, to Rep. C.W. Bill Young
(Sept. 5, 1995).
[142] Ronald Kessler, The FBI: Inside the World's Most Powerful Law
Enforcement Agency 282 (1993).
[143] One SWAT team head observed, "Most of the agents who try out for
SWAT are former police or people with military backgrounds.... Their
psychological makeup is they like to go out and do things." Id. at 154.
[144] The creator was Oliver "Buck" Revell, who also started the FBI's
air force. Id. at 159.
[145] See Mark Levin, What Became of the FBI?, Nat. Rev., Oct 9, 1995,
at 18.
[146] Sam Vincent Meddis, Survivalist Tells His Side of Idaho Raid, USA
Today, Sept. 7, 1995, at A3.
[147] Charles J. Dunlap, Jr., Welcome to the Junta: The Erosion of
Civilian Control of the U.S. Military, 29 Wake Forest L. Rev. 341, 359
(1994) (citing Center for Defense Information broadcast of Apr. 11,
1993). Even the National Park Service and the Department of Health and
Human Services now have their own SWAT teams.
[148] R.I. Senate Bill No. 1096 (1995).
[149] World Sitrep, Soldier of Fortune, May 1996, at 16, 17.
[150] See H.R. 896, 104th Cong., 1st Sess. � 101(b)(1) & (f) (1995).
[151] See S. 735, 104th Cong., 1st Sess. �102(b)(1) & (f) (1995).
[152] Mark V. Lonsdale, Raids: A Tactical Guide to High Risk Warrant
Service 194 (L.A.: S.T.T.U., Training Division, 1991).
[153] P.B. Kraska and V.E. Kappeler, The Rise and Normalization of U.S.
Police Paramilitary Units, Social Problems (1997).
[154] Detroit Residents Alarmed by Backyard Police "Raids", Gun Week,
Jan. 13, 1995, at 2.
[155] Michael A. Fuoco, Army War Games are Night Fright, Pitts.
Post-Gazette, June 5, 1996, at A1, A16; Michael A. Fuoco, Military
Retreats in Face of Anger, Pitts. Post-Gazette, June 6, 1996, at B1, B6.
[156] See, e.g., Interview with Henry Stanley McMahon, Jr., and Karen J.
Kilpatrick at National Rifle Association in Washington D.C. (May 25,
1993) (transcript on file with the authors).
[157] Police to Benefit from Defense Gadgetry, Law Enf. News, Nov. 30,
1994, at 9.
[158] Crime Fighting Bargain: Army Surplus Helicopters, American
Legislative Exchange Council, Feb. 23, 1995, at 5.
[159] Kraska, supra note 81, at 417.
[160] Kraska and Kappeler, supra note 153.
[161] Kraska, supra note 81, at 418 (citing Barnett v. Karpinos 460
S.E.2nd 208, 209-10 (1995)).
[162] See 10 U.S.C. �� 371-379 (1997).
[163] See H.R. 97, 104th Cong., 1st. Sess. (1995).
[164] Jim Malloy, These Days, NORAD Key Player in Drug War, Den. Post,
Apr. 23, 1996, at B4.
[165] Specifically: $98 million to modify two Navy P-3B aircraft into
"specialized radar warning aircraft" which would be transferred to the
U.S. Customs Service; $15 million to install a TPS-70 ground-based radar
system in an unspecified foreign country; $6 million for "non-intrusive"
inspection systems along the Mexican border; $3 million more for
National Guard marijuana eradication; and $10 million for "classified"
Department of Defense drug activities.
[166] For a favorable view of these assaults, see Jerry D. Fitz, Taking
Back the Projects, Police, May 1996, at 56-61. At the end of the
article, the following "Editor's Note," appears: "Police does not
necessarily endorse the methods used to enforce the 'Mano Dura' program.
We are merely reporting on the logistics of the take-overs." Id. at 61.
It is very rare for Police to attach editorial disclaimers to its
articles.
[167] See 10 U.S.C. � 380 (1994).
[168] See 10 U.S.C. � 381 (1994).
[169] 466 U.S. 170 (1984).
[170] Trouble in the Fields: Residents Fed up with Anti-Marijuana Drive,
Law Enf. News, Oct. 31, 1994, at 5. Use of the National Guard for
marijuana eradication is typically preceded by a declaration from the
Governor that marijuana cultivation represents an "emergency" which
necessitates the use of the Guard. While most persons think of an
"emergency" as a spontaneous and unexpected event (such as a flood), the
Orwellian military use of "emergency" means "something that the Governor
thinks is a serious problem, even if the problem has persisted at
endemic levels for many years." Micheal Dorgan, California Loses War on
Weed, Den. Post, Nov. 19, 1995, at A30.
[171] Philip Jenkins, Using Murder: The Social Construction of Serial
Homicide 233 (1994).
[172] The very first episode of the supposedly realistic N.Y.P.D. Blue
involved the police protagonist publicly beating up a man he believed to
have been guilty of a crime for which he had just been acquitted by a
jury of his peers, with only minimal sanction threatened against the
officer.
[173] While the effects of violent television on children have received
a great deal of attention, the effects of violent entertainment on
adults, including adults in law enforcement, have rarely been analyzed.
[174] Paul Chevigny, Edge of the Knife: Police Violence in the Americas
124 (1995).
[175] Kraska, supra note 81, at 420. Of course the United States had a
"war on poverty" in the 1960s without sending in the Army. But the "war
on poverty" rhetoric, along with President Carter's assertion that
energy crisis was "the moral equivalent of war," helped pave the way for
"war on crime" and "war on drugs" rhetoric, rhetoric that has led to
military intervention.
[176] Dunlap, supra note 147, at 388.
[177] Contrast United States v. Yunis, 924 F.2d 1086, 1093 (D.C. Cir.
1991) (interpreting statutory language literally, so that Posse
Comitatus Act does not apply to the Navy) with 32 C.F.R. � 213.10(c)
(Department of Defense regulation applying Posse Comitatus Act to the
Navy and Marine Corps, while allowing Secretary of the Navy to make
exceptions on a case-by-case basis). The Act does not currently apply to
the Coast Guard, which in peacetime is considered part of the Department
of Transportation. See 14 U.S.C. � 1 (1997).
[178] Total Hogwash, The Resister, (Winter 1995)
<http://www.accessone.com/~rivero/POLITICS/ARCHIVE/resister_3.html>
(visited May 6, 1997). See also John P. Coffey, Note, The Navy's Role in
Interdicting Narcotics Traffic: War on Drugs or Ambush on the
Constitution, 75 Geo. L. Rev. 1947 (1987) (criticizing loophole that
allows use of navy ships firing artillery in drug law enforcement, under
pretext of having the ship fly Coast Guard colors when it begins
aggressive activities).
[179] While the Guard is almost entirely funded by the federal
government, it is exempt from Posse Comitatus when it is in "state
status," under the immediate command of state officials, as opposed to
"federal status," when the Guard is commanded by federal officers.
[180] Besides the drug exceptions, there are various Posse Comitatus
exceptions for matters which are well within the competence for civilian
federal, state, and local law enforcement: civil disorders (10 U.S.C.
�� 331-36) (1997); protection of federal parks (16 U.S.C. �� 23,
78) (1997); protection of foreign officials and other foreign guests (18
U.S.C. �� 112(f), 116) (1997); crimes against members of Congress
(18 U.S.C. � 351) (1997); crimes against the President (18 U.S.C.
�� 1751, 3056) (1997); neutrality laws (22 U.S.C. �� 408,
461-62) (1997); threats to federal property (42 U.S.C. � 1885) (1997);
execution of certain civil rights warrants (42 U.S.C. � 1989) (1997);
broadly defined "disasters" (42 U.S.C. �� 4401-84) (1997); removing
unlawful fences from public lands (43 U.S.C. �1065) (1997); and
customs laws (50 U.S.C. � 220) (1997). We are not suggesting that the
substantive laws in question be repealed. Rather, these laws should be
enforced by civilian law enforcement.
[181] See 10 U.S.C. 371-79 (1997).
[182] See 10 U.S.C. 371-79 (1994).
[183] 16 U.S.C. 559(c) (1997).
[184] The BATF's outfits, including their Ninja clothes, are actually
blue, but the color is so dark that the clothes are usually described as
black. Moorman Oliver, Jr., Killed by Semantics: Or Was it a Keystone
Kop Kaleidoscope Kaper?, in From the Ashes: Making Sense of Waco 71, 75
(James R. Lewis ed., 1994).
[185] William F. Powers, Dressed to Kill?, Wash. Post, May 4, 1995.
[186] John Kleinig, The Ethics of Policing 102 (1996).
[187] "Cedant arma togae." Marcus Tullius Cicero, Orationes Philippicae
(ca. 60 B.C.).
Website for No More Wacos: What's Wrong with Federal Law Enforcement and
How to Fix It--the book on which this article is based.
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Dare To Call It Conspiracy
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Dare To Call It Conspiracy
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