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Houston Chronicle (Sunday
Op Ed Section)
Page 1D
July 23, 2000
What the Waco jury never heard
By Stuart A. Wright
On July 14, an advisory jury of five persons answered interrogatories
assessing no blame on the federal government for actions taken against
the Branch Davidians sect in 1993. As might be expected in a high-profile
case where the defendant is the U.S. government, the trial became heavily
politicized.
Under the circumstances, the trial had little to do with such lofty
virtues as finding truth or championing justice. With their already
tarnished reputations on the line, the FBI, U.S. Bureau of Alcohol,
Tobacco and Firearms and Justice Department officials marshaled an impressive
array of resources to overwhelm questions of liability.
Michael Bradford, the lead co-counsel for the government, boasted
after the verdict: "What this shows is that the responsibility for the
tragedy that happened at Waco is with David Koresh and the Branch Davidians."
He added that, "It's time to put this to rest and move on."
But few scholars and observers think this latest verdict will put
the Waco incident to rest. There are too many disturbing questions about
the civil trial. Consider the first interrogatory posed to the jury.
The jurors were asked if the ATF used excessive force in executing the
warrants in either of the following respects: 1) by firing at the Mount
Carmel compound without provocation; and 2) by using indiscriminate
gunfire at Mount Carmel on Feb. 28, 1993. Unanimously, the jury said
no to both parts. But the response was largely a product of severely
narrowed questions in the interrogatories. Key evidence was not heard.
Judge Walter Smith granted "discretionary function" exemptions to
federal officials, essentially giving them immunity for making bad decisions,
and restricted evidence and arguments to the 51-day period between the
failed ATF raid on Feb. 28 and the final FBI assault on April 19.
The jury was not privy to the damning evidence that the ATF had ample
opportunity to serve the warrants to Koresh when he was alone. Why was
this important? Because by isolating Koresh, ATF could have avoided
imperiling the lives of 130 other residents, including infants, women
and elderly persons, at the Mount Carmel compound in a dangerous, high-risk
"dynamic entry."
U.S. Treasury Department officials and congressional subcommittees
reviewing the Waco debacle subsequently castigated ATF commanders for
shoddy planning and a bungled surveillance operation that failed to
apprehend Koresh away from the residence. Indeed, ATF initially claimed
that Koresh never left the complex. But later investigations determined
that this information was obtained second-hand from an unreliable source.
What else did the jury not hear? Evidence that the ATF manufactured
claims about Davidian drug trafficking to the military in order to obtain
Close Quarters Combat training at Ft. Hood and secure aerial surveillance
and support from the Texas National Guard in an effort to circumvent
the Posse Comitatus Act. The law prohibits the use of the military to
enforce domestic law, except in cases of drug trafficking. It did not
hear evidence that the ATF raid commanders were told to call off the
raid if they lost the element of surprise. An ATF undercover agent,
Robert Rodriguez, was inside the Mount Carmel compound the morning of
the raid and learned that the Davidians had been forewarned. Agent Rodriguez
left the complex and informed his superiors that the element of surprise
had been lost. The raid commanders ignored orders and proceeded anyway.
As well, the jury did not hear evidence that the warrants were filled
with numerous errors of fact and false statements.
The truth is, the entire incident on Feb. 28 was avoidable. Had ATF
agents served the warrants while Koresh was jogging down Double E Ranch
Road or while he was in town on other business, the raid would have
been unnecessary.
Other law enforcement agencies, including members of the McLennan
County Sheriff's Department and the Texas Rangers, have made the same
observation. The Treasury Department report puzzled over this question,
noting that those in charge ignored less lethal options, acting as if
they were on a "pre-ordained road."
The final report on the Waco hearings by the joint House Committee
on Government Oversight and Reform and the Senate Judiciary Committee
was less kind: "The ATF's investigation of the Branch Davidians was
grossly incompetent. It lacked the minimum professionalism expected
of a major federal law enforcement agency."
Was lethal force excessive? I believe it was. The operation was carried
out in the form of a high risk, paramilitary assault, planned two months
before surveillance, undercover and infiltration efforts were even begun,
organized under the false pretenses of a drug nexus, targeting a residence
housing infants, women and elderly persons, while ignoring opportunities
to arrest the suspect alone. What jury would absolve the defendants
if they had been allowed to hear all the evidence?
Wright is associate director of graduate studies and professor of
sociology at Lamar University in Beaumont. He is editor of "Armageddon
in Waco" and testified in the 1995 hearings on Waco.
© Houston Chronicle
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