I'm from the Government and I'm Here to Kill You Page 10

  Coulson’s prediction came to pass. The prosecution put on fifty-six witnesses over a period of three months—another attempt to simply overwhelm the defense—but the defense counterattacks did the real damage. Marshal Cooper testified about the beginning of the firefight, and wept as he described the death of his friend Bill Degan, gunned down by Harris in what supposedly was the first shot of the fight. But Cooper had no explanation why, if Degan had died with the first shot of the firefight, Degan’s gun was found to have fired seven shots. Nor was there a good answer to Spence’s question: “Does it make sense to you that Officer Roderick would be shooting the dog after Mr. Degan is dead, after Mr. Degan is shot?”

  HRT sniper Lon Horiuchi was another key witness; he testified that he had had no intent to kill Vicki Weaver and denied knowledge that anyone was standing behind the door. The view through the window on the door had been blocked by a curtain, he said.

  The prosecutor Howen returned to his office that night to find a package awaiting him. It was from FBI headquarters in Washington, containing documents he’d requested long ago. In it was the sketch Horiuchi had made depicting what he had seen at the moment of firing with the stick figure representing Kevin Harris and with two semicircles in the window. Horiuchi had seen two heads through the window, despite the window’s curtain.57 This was the first Howen had heard of Horiuchi’s sketch.

  FBI headquarters had mailed the documents to Howen by fourth class mail. The documents had taken two and a half weeks to make it to Howen; obviously, the FBI had hoped to delay this damaging disclosure just long enough to convict Weaver.

  In 2008, the Department of Justice indicted Senator Ted Stevens on charges he had failed to list a gift on a Senate-required form. He was convicted, but during and after the trial it was discovered that the Justice Department was hiding a lot of evidence. The judge appointed a special counsel to investigate; the counsel filed a 525-page report, showing the government had hidden dozens of pieces of evidence testimony that showed Stevens was innocent.58 Stevens’s conviction was set aside, the judge ruling that the Justice prosecutors had “abandoned all decency to win a conviction.”59 By then, however, Stevens had lost his bid for reelection. The two lead prosecutors went on to take lucrative jobs with major national law firms. Sidney Powell, one of Stevens’s defense attorneys, wrote a book, Licensed to Lie: Exposing Corruption in the Department of Justice, about her experiences.

  Howen disclosed the sketch to the defense, and they recalled Horiuchi to the stand. The judge was outraged at the FBI’s conduct and imposed money sanctions on the government, finding that it had shown “a callous disregard for the rights of the defendants and the interests of justice.”

  A federal jury verdict must be unanimous—even an eleven-to-one for acquittal results in retrying the case. The jury deliberated for an incredible twenty-three days before returning its verdict. Kevin Harris was innocent of everything. Randy Weaver was guilty only of failure to appear on the shotgun charge. After giving credit for time served, the judge sentenced him to serve four more months.

  FBI official Danny Coulson has the last word:

  [W]hat had started this crazy business? A lousy ATF case involving two guns that had nothing to do with crime in the United States. A bench warrant for nonappearance. What was the point? At the same time that we were trying to find more FBI agents to send into high-crime areas to reclaim our streets, we had a federal agency chasing after a mountain man who had produced a couple of sawed-off shotguns.60

  WHO BORE THE CONSEQUENCES?

  USDOJ commissioned an extensive report on the events at Ruby Ridge, which came to 542 pages and concluded that the prosecution was somewhat overzealous, the rules of engagement were illegal, and Horiuchi should not have fired his second shot. There the matter rested for three years until Congress began pressing the FBI for action. Then the FBI gave a ten-day suspension to HRT head Rick Rogers, who had issued the illegal rules of engagement and ordered his agents to commit murder. FBI negotiator Gary Noesner would later write:

  The disaster that followed from his [Rogers’s] preemptive actions at Ruby Ridge had done nothing to tarnish that image within the FBI, at least not yet. If anything, critical accounts of what had happened there created something of a bunker mentality among certain elements at FBI headquarters. For my own part, I was surprised that Rogers still had his job in spite of having overseen the debacle at Ruby Ridge. Then again, meting out punishment to the HRT commander would have been an admission of the gross errors of judgment that had taken place in Idaho.61

  FBI Assistant Director Larry Potts was given a letter of censure for failure to monitor Rogers. It didn’t hurt his career; he was soon promoted to Deputy Director, the second-in-command of the agency.62 His deputy, Danny Coulson, who had done more than anyone to restrain the HRT and seek a bloodless resolution, was likewise censured for not doing enough. A few other officials received brief suspensions, letters of censure, or verbal reprimands.63

  Compare what happens to private attorneys who conceal evidence. In 2016, a federal judge imposed a $2.7 million penalty against a law firm representing Goodyear Tire & Rubber in a civil suit for hiding a study of tire failures.64

  The surviving members of the Weaver family filed a civil action; the government settled for $3.1 million, while Kevin Harris received $380,000. The settlements were not paid by the FBI, however, but by the “Judgment Fund,” a general appropriation shared by all agencies and ultimately financed by the taxpayer.

  All judgments or settlements against federal agencies that exceed $2,500 are paid from the Judgment Fund, not from the agencies’ own budgets, and thus do not cost the agency anything. The $2,500 limit has not been adjusted since it was set in 1959, at a time when a new car cost about $2,000 and the median price for a new house was $12,000.

  For once, there seemed to be a chance of some criminal consequences. Five years after the events of 1992, the Boundary County prosecutor filed involuntary manslaughter (homicide by extreme negligence) charges against sniper Lon Horiuchi for killing Vicki Weaver. The prosecutor had to “pass the hat” to find funds to hire a special prosecutor; there were only four attorneys in the entire county, and the county budget totaled $8.6 million.65 Private donations enabled her to hire outside attorneys as special prosecutors.

  USDOJ undertook Horiuchi’s defense and moved to dismiss charges on Supremacy Clause grounds. The Supremacy Clause of the United States Constitution reads: “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof … shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”66 The effect of the Supremacy Clause is straightforward: a federal law, if constitutional, can override any state law and even a state constitution. So long as Congress stays within its constitutional limits, regulates interstate commerce, imposes taxes, etc., its enactments take precedence over those of the states.

  The major Supreme Court ruling applying this clause of the Constitution to state prosecutions came in the 1890 ruling of In re Neagle,67 discussed in the introduction. Neagle was a deputized U.S. Marshal who killed a violent but unarmed man who attacked U.S. Supreme Court Justice Stephen J. Field. Neagle was charged by California authorities with murder, but the U.S. Supreme Court ordered Neagle’s release, because Field was carrying out his duties when he was attacked, and Neagle was within the scope of his federal duties when he shot. The Court ruled as follows:

  [I]f the prisoner is held in the state court to answer for an act which he was authorized to do by the law of the United States, which it was his duty to do as marshal of the United States, and if, in doing that act, he did no more than what was necessary and proper for him to do, he cannot be guilty of a crime under the law of the state of California.68

  Essentially, the Supremacy Clause of the U.S. Constitution makes the Constitution, and laws made pursuant to it, the “supreme law of the land,” overriding c
onflicting state laws. Neagle extended this, so that federal law enforcement functions would override conflicting state law enforcement functions. This 1890 ruling established, the government argued, that the FBI agents’ actions were not subject to Idaho state law. Under this approach, even if Lon Horiuchi had intentionally aimed at Vicki Weaver, and then proceeded to whack her baby as well, he would have committed no crime punishable by Idaho law—or, for that matter, any law at all. While it is illegal for a private person to kill a federal agent, no federal law forbids federal agents to kill private citizens … or noncitizens.

  The District Court dismissed the charges against Horiuchi. Boundary County appealed to the Ninth Circuit Court of Appeals, which upheld the dismissal two to one. The County took it one step further, and appealed to a special, larger, panel of the Circuit Court.69 The panel divided narrowly six votes to five and allowed the prosecution to proceed.70

  The Ninth Circuit ruled that in order to be protected by the Supremacy Clause, a federal agent must have reasonably believed that his conduct was necessary to the performance of his lawful and constitutional duties. Since the Supreme Court had ruled that deadly force could only be used to arrest a suspect under certain narrow conditions (largely self-defense), and there were legitimate questions about whether those conditions were met here, the District Court should hold a hearing and determine that issue. The opinion closed:

  Nor do we believe that allowing this case to proceed will open the floodgates to numerous state criminal prosecutions of federal agents, hampering federal law enforcement efforts. Assuming the facts alleged by the state, this is not a case where a law enforcement agent fired his weapon under a mistaken belief that his fellow agents or members of the public were in immediate danger. Rather, a group of FBI agents formulated rules of engagement that permitted their colleagues to hide in the bushes and gun down men who posed no immediate threat.

  Such wartime rules are patently unconstitutional for a police action. As soon as the incident was over, the FBI disowned the rules and disciplined the officers who approved them. The incident led to a lengthy investigation by the DOJ Office of Professional Responsibility; Congress itself conducted extensive hearings and published a bipartisan report that was highly critical of the FBI in general and Horiuchi in particular. There is nothing run of the mill about this case, and we cannot conceive that it will provide a precedent for state prosecutions in more ordinary circumstances.71

  Yet, the inherent expense of fighting the federal government remains an overwhelming obstacle to justice; the Boundary County prosecutor lost her next election when voters decided that the county spending its time prosecuting an FBI sniper was too controversial and expensive. The new county attorney announced he was dropping the case to bring “closure.”72

  Gerry Spence’s summation is apt: “No one was ever convicted for the murders at Ruby Ridge. That massacre proved that the Constitution can be set aside by Power at its whim, that the FBI could, and did change the law as if it, not the people, create the laws of the land.”73

  But worse was about to come. Much worse.

  Smoke rising from the destruction at Texas City. (University of Houston)

  The 3,200-pound anchor of the Grandcamp, near where it fell to earth 1.6 miles from the ship’s explosion. (Courtesy of David Greif)

  Buildings near the Grandcamp were simply obliterated. (University of Houston)

  A parking lot a half mile from the Grandcamp shows the power of the explosion’s shock wave, which even at that range could cave in the side of an automobile. (University of Houston)

  Troops watch one of the Buster-Jangle detonations from six miles away. Shortly after the 31-kiloton detonation, these “Atomic Veterans” were marched to ground zero. (Department of Defense)

  “Dirty Harry.” A powerful warhead detonated on a tower; its fireball sucked up and irradiated large quantities of soil, generating exceptionally heavy fallout. (AEC)

  Knothole-Badger test, 1953. A 23-kiloton warhead detonated on a tower. (Wikipedia)

  Even as it was assuring downwinders that there was no fallout worth worrying about, the AEC was generating maps showing significant radiation doses. (Wikipedia)

  On May 16, 1997, the last survivors of the Tuskegee Syphilis Study received a formal apology from President Bill Clinton. (William Jefferson Clinton Presidential Library)

  The FBI sniper who killed Vicki Weaver drew this sketch of his sight picture at the moment he fired. It is not to scale—the window on the door was smaller and higher up than shown here. Kevin Harris is rushing toward the door. Most critically, the tops of two heads are visible in the window. The sniper could see persons behind the door even as he shot through it.

  Outside their new church outside Waco, the Branch Davidians have memorials to the BATF agents killed in the assault, and to the victims of Oklahoma City.

  Supposedly, the February 28, 1993, raid was necessary because Koresh never left Mount Carmel. BATF had undercover agents observing the Davidians from a nearby house. On February 19, 1993, the agents went shooting … with David Koresh.

  Koresh was unarmed until Agent Rodriguez loaned him a pistol.

  In the April 19 assault, FBI armored vehicles demolished large parts of Mount Carmel. This is a view from the rear of what was known as the gym.

  An aerial photograph shows the destruction to the front, as one of the armored vehicles rams into the building.

  At 12:07 p.m., Mount Carmel began to burn.

  Firefighters were held up at the FBI roadblock, until the flames had entirely consumed the building. The HRT commander was angrily radioing the on-scene commander for firefighters at the time.

  After the fire died down, some of the FBI Hostage Rescue Team had trophy pictures taken.

  Not all of the Fast and Furious guns made it to Mexico. One was used in this shooting in Phoenix, Arizona. (Phoenix Police Department)

  A police videocam captured the second when an ad-hoc SWAT team shot into Jose Guerena’s house in Tucson. One of the SWAT team’s members tripped and accidentally fired his gun. In the confusion, the team emptied their magazines at Guerena, who died after being shot twenty-two times. (Tucson Police Department)

  CHAPTER 5

  WACO, TEXAS: “IT’S SHOWTIME!”

  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 who should have been on trial.

  —Sarah Bain, foreman of the jury, Waco criminal trial1

  I really liked that guy [undercover agent Robert Rodriguez], too. I’ve always loved law enforcement, because y’all guys risk your lives every day, you know.

  —David Koresh, wounded, speaking over the telephone to BATF supervisor Jim Cavanaugh, February 28, 19932

  APRIL 19, 2016. THE BRANCH DAVIDIANS, an offshoot of the Seventh-day Adventist Church, are holding a memorial service at their religious center. Although the Mount Carmel center is not far outside of Waco, Texas, navigating there is no simple task: Route 340 to Elk Road, turn onto EE Ranch Road, then north until a few buildings are visible on a gently curving road, actually a driveway, to the right.

  The setting is extraordinarily peaceful. Green farmland extends to the horizon on every side; the only other building visible is the “undercover house,” on the other side of the road. Chirping birds remain the only sound. Your first indication of a special history is the monument to the eighty Davidians who died here—twenty-four men and fifty-six women and children. Then you encounter the Davidians’ memorial for the four Bureau of Alcohol, Tobacco and Firearms (BATF) agents who died in the raid on their church. Yes, the Davidians are a forgiving lot.

  Inside the church, the main speaker Clive Doyle explains that David Koresh taught them to regard the FBI agents who were besieging the place not as enemies, but as souls to be saved. Doyle was seriously burned and lost his eighteen-year-old daughter
Sherri in the fire that ended the siege, but there is no rancor in his voice.

  The Davidians believe we are in the “end times,” but that those times will span years, centuries, even millennia, and that a person on the wrong side can, at any point, wise up and join the good guys. The persecutor of today might pray with them tomorrow. The Davidians’ view of the end times is, in short, remarkably humane. As Doyle writes in his book A Journey to Waco:

  David [Koresh] stressed over and over that you don’t want to be trying to put God in a box or limit his performance. If you say God will save only Branch Davidians or God will save only Seventh-day Adventists—which most Christians think—David said: you’re limiting God, you’re putting God in the losing position. Let’s say, according to the mindset of most Christians, God gets every one of those Christians and the devil gets all the rest, that means the devil has the majority. David asked: You mean the devil wins? … He said, God’s got a few tricks up his sleeve. God’s in the saving business, He wants to save all who will be saved…. We believe God raised up Muhammad, he raised up Buddha, he raised up major teachers of thought…. God wants to save everybody.3

  After the memorial service, the Davidians depart to eat a buffet lunch as the fields around their church return to their natural quiet. In 1993, those quiet fields saw gunplay, a tank attack, fire, and a fifty-one-day FBI siege that darkened the history of law enforcement in America.

  FEBRUARY 25, 1993