No More Wacos: What's Wrong with Federal Law Enforcement and How to Fix It, by David B. Kopel and Paul H. Blackman, Amherst, N.Y.: Prometheus Books, 524 pages, $26.95
During the 1995 congressional hearings on Waco, Rep. Tom Lantos (D-Calif.) was mystified that "the lunatic fringe still clings to the notion that there was a gigantic government conspiracy that brought about this nightmare." He said "it is difficult to see how any rational human being subscribes to such a notion." But as you examine the details of what happened at Waco and what government officials said about it, the tendency to see a conspiracy is not so hard to understand.
The bald-faced lies highlighted in Waco: The Rules of Engagement, William Gazecki's critically acclaimed documentary, leave you shaking your head. The catalog of incompetence, arrogance, ignorance, recklessness, dishonesty, and moral obtuseness in No More Wacos, David B. Kopel and Paul Blackman's comprehensive account of the disaster, is overwhelming. In many ways, it is easier to believe that the whole thing was planned by a few evil men at the top than to think that it unfolded haphazardly, without rhyme or reason.
But the most troubling thing about Waco, the deadliest law enforcement operation in U.S. history, is the absence of a grand conspiracy. As Kopel and Blackman show, the investigation of the Branch Davidians by the Bureau of Alcohol, Tobacco, and Firearms, the BATF's February 1993 raid on Mount Carmel, the 51-day FBI siege, the April 19 assault that led to the final fire, the trial of the survivors, and the subsequent explanations can all be understood in terms of prevalent prejudices and familiar failings. Hostility toward private gun ownership and unconventional religions played an important role in the government's actions against the Davidians and in the public's indifference to their fate. Another conspicuous factor was the tendency for overconfident people to screw up, dodge responsibility afterward, and rationalize their behavior as justified by some greater good. As scary as it is to contemplate, it's doubtful that anyone involved in this shameful episode felt in his heart that he was doing wrong.
At the same time, to blame the deaths of 86 men, women, and children (including four BATF agents) on a series of errors does not do justice to the government's conduct at Waco, which rose at least to the level of negligent homicide, or to the cowardly cover-up that followed. And to blame the dead themselves is audacious, since all would be alive today but for the government's gratuitous use of force. Yet Sen. Joe Biden (D-Del.), who makes an appearance toward the end of Waco: The Rules of Engagement, managed to do both. "The record of the Waco incident documents mistakes," he said. "The record from Waco does not evidence, however, improper motive or intent on the part of law enforcement. David Koresh and the Davidians set fire to themselves and committed suicide. The government did not do that."
Five years after Mount Carmel went up in flames, the view that the Branch Davidians did it to themselves--which is also the position taken by President Clinton and Attorney General Janet Reno--remains quite popular. But as Rep. Lantos might say, it is difficult to see how any rational human being subscribes to such a notion. If you know an otherwise decent and reasonable person who still believes the Davidians basically had it coming, show him Waco: The Rules of Engagement, which had a limited theater run and is now available from Amazon.com and Laissez Faire Books.
The documentary, which was nominated for an Academy Award, is powerful enough to appall people who have followed the story closely. Judging from the positive reviews in publications not known for their pro-gun or pro-religious sympathies (The New Republic, The New York Times, the Boston Globe), it has an even stronger impact on people who have not given Waco much thought. Director William Gazecki and his co-writers, Michael McNulty and Dan Gifford, skillfully weave together excerpts from the congressional hearings, press conferences, and negotiation tapes; interviews with witnesses, experts, and local officials; and images of Mount Carmel before, during, and after the siege. Their approach is calm and matter-of-fact, but their juxtaposition of official statements with reality is devastating.
Once you get your friend's attention with the movie, give him No More Wacos, which meticulously documents and analyzes what went wrong and suggests specific reforms to rein in federal law enforcement. The book, which won last year's Szasz Award from the Center for Independent Thought, relies exclusively on material already in the public record. But Kopel, research director at the Colorado-based Independence Institute, and Blackman, research coordinator for the National Rifle Association's Institute for Legislative Action, put it all together in one coherent narrative, with appendices detailing the legal changes they recommend, laying out the chronology, identifying the important figures, and summarizing the negotiation tapes. Their thoroughness makes the book a very useful reference.
The most startling revelation in Waco: The Rules of Engagement is that government personnel apparently fired automatic weapons into Mount Carmel during the FBI's assault, deterring the Davidians from escaping the deathtrap their home had become. Two professional analyses of infrared footage shot by a government plane during the assault identified several instances of machine-gun fire coming from the outside. As the movie reminds us, the FBI repeatedly bragged that it did not fire a single round at Waco--an assertion that was not challenged during the congressional hearings.
Kopel and Blackman complain, with justification, that the hearings degenerated into a partisan battle, with Republicans trying to pin the blame on Clinton appointees, even though the BATF investigation began under the Bush administration and "almost everything that went wrong at Waco…was the result of acts by career federal employees." But Gazecki's film shows that the Republicans were not the only ones who were willing to obscure the truth for the sake of political advantage. Rep. Charles Schumer (D-N.Y.), for example, clearly saw his job as denying that the government bore any responsibility for what happened to the Davidians.
In one illustrative exchange, Schumer asked Dick DeGuerin, one of Koresh's lawyers, if it was true that the Davidians were stockpiling grenades. DeGuerin said the only grenades he had seen at Mount Carmel were the ones BATF agents tossed in during their raid. A startled Schumer insisted that the "flashbang" grenades used by the BATF--which create a bright flash and a loud noise to distract and disorient the enemy--are not really grenades. Later he contemptuously dismissed DeGuerin's testimony: "Mr. DeGuerin said flashbangers can kill, injure, maim. Anyone who knows anything about these things knows they can't." But it was Schumer who didn't know what he was talking about: As Rep. Bob Barr (R-Ga.) noted, flashbangs are classified as "destructive devices" under federal law, and in response to Barr's questioning a BATF agent conceded that they can kill at close range.
Schumer's underlying message--that the BATF had acted with restraint during the raid--is equally absurd. As Waco: The Rules of Engagement shows, the agents fired wildly into the thin-walled building, heedless of the women, children, and unarmed men within. Wayne Martin, one of the Davidians, made a panicked 911 call during the attack, trying to find someone who could stop the shooting. If anyone held back during the raid, it was the Davidians, who knew the BATF was coming and easily could have killed almost all of the 76 agents as they arrived at Mount Carmel in cattle trailers.
"Is there any way that somebody could believe that justifiable homicide could be used as a defense here?" Schumer incredulously asked during the hearings. Well, yes. Under common law, you are entitled to resist excessive force by government agents, even when they have a valid search warrant (and as Kopel and Blackman detail, the warrant in this case, which alleged that Koresh and a few other residents had illegally produced machine guns and hand grenades, was marred by errors, false statements, stale information, unreliable sources, and inflammatory charges of child abuse that had nothing to do with the search). A jury rejected murder charges against 11 surviving Davidians, apparently concluding that they had acted in self-defense. The forewoman summed up the jury's view this way: "The federal government was absolutely out of control there. We spoke in the jury room about the fact that the wrong people were on trial, that it should have been the ones that planned the raid and orchestrated it and insisted on carrying out this plan."
Neither the book nor the movie answers the important question of who fired first. That issue may never be resolved satisfactorily, given the amount of evidence that has been destroyed or suppressed. The missing evidence suggests some rather ham-handed efforts to hide the truth, so obviously fishy that they actually count against the idea of a sophisticated conspiracy. Waco: The Rules of Engagement includes congressional testimony by a combat expert who said the BATF's failure to anticipate that the raid might not go off as expected amounted to an "`Oh, shit' contingency plan." Much the same could be said of the cover-up.
The BATF initially claimed that an official videotape of the raid would show the Davidians started the shootout; then it said the tape was inexplicably blank. The bureau aborted its own investigation of the raid when the Justice Department started worrying that interviews with the agents who had been at the scene would produce contradictory accounts or other material that could be useful in defending the surviving Davidians--evidence that the prosecution would be legally obliged to share. We know this because a Treasury Department official explicitly said so in a memo.
And then there is the notorious steel door. The BATF claimed the shootout started when the Davidians fired a fusillade through the front door of Mount Carmel. But one of Koresh's lawyers, Jack Zimmerman, said he had examined the door, and almost all of the holes puckered inward. The door itself, which presumably could resolve this dispute, survived the fire and promptly vanished. During a recent debate with Kopel at NYU Law School, Ron Noble, who oversaw the Treasury Department's report on Waco, seemed sincerely exasperated by this little mystery: "Where's the door? I wish I knew. It stinks of a cover-up."
The other major issue that remains unresolved is who started the fire at the end of the FBI siege. Both the book and the movie note that the blaze did not start until five or six hours after an FBI bug in Mount Carmel recorded a conversation about spreading fuel, usually taken to be evidence that the Davidians deliberately set the fire. During this time, the FBI was knocking into the building with tanks, which closed off escape routes and created vents that made the fire spread more quickly. The tanks pumped in an aerosol consisting of CS powder, a chemical warfare agent that causes tearing, temporary blindness, nausea, and vomiting, and methylene chloride, a toxic and volatile carrier that forms flammable mixtures when exposed to the air. The FBI also shot the powder into the building in cannisters. It later insisted that it did not fire any incendiary rounds, but two were recovered from the site. Whoever actually ignited the fire, the FBI clearly made it more deadly.
What the FBI admitted about its tactics may be just as horrifying as what it denied. Waco: The Rules of Engagement shows a bureau spokesman explaining that the idea behind filling Mount Carmel with CS was to torture the children (who had no gas masks) until their parents surrendered. "We thought that their instincts, their motherly instincts, would take place and that they would want their children out of that environment," he said. "It appears that they don't care that much about their children, which is unfortunate." According to experts cited in the book and quoted in the movie, the CS powder probably incapacitated Davidians who otherwise might have fled and may even have killed some of them. The powder can be fatal in high doses, and it turns into cyanide when burned.
If Koresh did order the fire, then obviously he and his accomplices bear much of the responsibility for the ensuing deaths. In any case, he and several other Davidians died of gunshot wounds they apparently inflicted on each other to avoid surrendering or dying in the fire. But, as Kopel and Blackman note, "the government gave David Koresh unnecessary help in his misguided quest for martyrdom."
In the movie, Clive Doyle, one of the surviving Davidians, asks a good question: "If they thought that we were all brainwashed and such a bunch of crazies, why would the FBI push David and the rest of us to the limit?" The movie and the book document the FBI's many gratuitous acts of provocation: shining bright lights and blaring obnoxious sounds (including Nancy Sinatra singing "These Boots Are Made for Walking") to prevent the Davidians from sleeping, destroying cars and children's go-carts, mooning the women and giving them the finger, deliberately and repeatedly running over a Davidian's grave with a tank. Despite this harassment, note Kopel and Blackman, the FBI negotiators tried to reassure the Davidians that the government wanted a peaceful resolution, saying, "nobody's going to run tanks through buildings that contain people" and "the last thing that's going to happen is for the government to take any kind of offensive action….You know, we don't hurt babies. You know, we don't hurt women. We don't do those types of things."
And yet they did. In the documentary, Alan Stone, the Harvard professor of psychiatry and law who reviewed the Justice Department's report on Waco, tells an interviewer: "When I was first asked to be involved as a member of the panel, I thought the main problem was going to be understanding the psychology of the people inside the compound. But as I got into it, I quickly became aware that the psychology of the people outside the compound was more important."
The men who confronted the Davidians were angry, tired, and frustrated. They did not understand this weird "cult" and did not care to. They saw the people who lived at Mount Carmel as mindless drones under Koresh's control, when in fact the Davidians included many intelligent, well-educated people, who were attracted by Koresh's religious message rather than his personal charisma (of which he had little). In Waco: The Rules of Engagement, the surviving Davidians come across as rational and articulate, especially in comparison to raving demagogues like Rep. Schumer. "I liked them," says the local sheriff, Jack Harwell, who describes the Davidians as "good people"--courteous, well-groomed, unassuming. But the FBI did not want the public to sympathize with the Davidians, so it kept the press at a distance and held back a videotape shot inside Mount Carmel during the siege, which showed not crazed cultists but apparently normal, decent folks with strong religious beliefs. Had Americans seen the Davidians in this light, surely their response to the government's actions would have been outrage rather than applause.
Dehumanizing the enemy is a part of a military mind-set, and one of Kopel and Blackman's main themes is the need to sharpen the distinction between soldiers and peace officers. They recommend a series of reforms aimed at demilitarizing federal law enforcement, from getting rid of black, Ninja-style uniforms to eliminating collaboration with the National Guard and Pentagon. They note that the police function has been militarized largely as a result of the war on drugs--a fact reflected at Waco, where the BATF obtained military training and support by falsely claiming that the Davidians were manufacturing methamphetamine. The drug war has also been the excuse for Supreme Court decisions undermining Fourth Amendment rights, creating a legal environment conducive to poorly justified, overreaching search and seizure operations like the BATF's raid on the Davidians. Kopel and Blackman call upon Congress to roll back this erosion of civil liberties with legislation.
No More Wacos proposes many sensible reforms, including stricter rules for obtaining warrants, remedies for victims of unreasonable searches, training for federal agents in religious and constitutional sensitivity, and a requirement for Cabinet-level approval of large raids. But while these changes would help reduce abuses of federal power, Kopel and Blackman recognize that the ultimate solution is to reduce federal power itself. Given the way things turned out, it's easy to forget that the chain of events leading to the incineration of Mount Carmel was set in motion because the BATF could not stand idly by knowing that some people in Texas might possess illegal machine guns. Yet even leaving aside the Second Amendment (which congressional investigators were eager to do), nothing in the Constitution authorizes the federal government to forbid intrastate possession of particular firearms (or drugs, for that matter).
If the federal government exercised only those powers actually granted by the Constitution, as the Framers intended, such matters would be left to state and local authorities. And even if the Davidians were suspected of violating a state gun law, it's hard to imagine someone like Sheriff Harwell staging a massive raid to obtain evidence of this victimless crime. If he wanted to serve a warrant, he probably would have just knocked on the door. Since the Davidians had never threatened their neighbors, he might even have let the whole thing slide. "They had different beliefs than others," he says in Waco: The Rules of Engagement, "but basically, they were good people. I was around them quite a lot. They were always nice, mannerly. They minded their own business. They were never overbearing." The federal government could have taken a lesson from the Davidians.