21 Jun 2000

Finally, a Waco Trial Without the Fire

Was the government use of force against the Branch Davidians reasonable? Reno has contradicted herself.

By JONATHAN TURLEY

The U.S. government and the families and survivors of the Branch Davidians today will again face each other in Waco, Texas, and the government will face the first true courtroom challenge to its actions on April 19, 1993, in which about 80 people, including 19 children, died.

This trial represents a uniquely American moment in the legal system. The government will be called into account before the public, which will judge the reasonableness of its actions. While the Davidians are far from blameless in this tragedy, the government faces some compelling allegations of negligence and excessive force.

First, there is the question of the reasonableness of the level of force used by government agents in their initial raid on Feb. 28, 1993, and in the final assault. The government could have simply waited and arrested sect leader David Koresh away from the compound. Koresh was suspected in weapons charges and could have been separated from his followers. Instead, the government chose to conduct a full military operation against a religious group with known fears and paranoia about government persecution.

Likewise, Atty. Gen. Janet Reno would later order tanks to assault the building rather than simply wait for Davidians to run out of food or patience (by the time of the raid, dozens of members had trickled out voluntarily). Reno ordered the assault before family members, who were pleading to speak with relatives in the buildings, even were given a chance to persuade additional members to come out.

Second, in ordering the assault, the government conspicuously omitted any contingency to deal with a fire. This omission appears clearly negligent, given the fact that the government's view was that the building contained dozens of doomful religious zealots with an arsenal of weapons and explosives. Obviously, there was a risk of armed resistance and explosions in a building containing almost two dozen children. Yet the government said it was taken by surprise by the fire in an armed assault. It seems likely that, after the death of four Bureau of Alcohol, Tobacco and Firearms agents, there was little focus on the various possible threats to the Davidians beyond the effect of the tear gas pumped into the building.

This is particularly disturbing given the massive fires that previously exploded in raids on such groups as MOVE, a cult, in Philadelphia. In the 1985 MOVE case, the police tried to break through the roof with a small incendiary device. The resulting fire killed 11 people (including five children) and destroyed 61 nearby houses. MOVE already was a case study for agents in planning raids when the government assaulted Koresh's Mount Carmel compound in Waco.

The tragedy at Waco is a subject that many people avoid discussing publicly for fear of being labeled a conspiracy nut or a fellow-traveler to fringe militia groups. This atmosphere has been created in no small part by the public statements of the government.

In its various and evolving explanations for its conduct at Waco, the Justice Department repeatedly stressed that this was a cult. The message is clear: The public should judge the government's actions in light of the nature of the group. This is nothing new in our country. It is doubtful that Reno would have ordered those tanks to roll on Mount Carmel had it been a Catholic church or a synagogue.

The trial finally will compel the government to explain its actions at Waco. Some explanations are likely to be different in this forum. For example, Reno at first defended her order to launch an assault on the compound by repeatedly stating that she had evidence that "babies were being beaten."

There was in fact no such evidence and, to the contrary, the Texas authorities who previously had interviewed the members and visited the compound to investigate such allegations had found no evidence of abuse. Reno also stated that she could no longer leave all those children in a building without water and electricity. Yet it was Reno who cut off the water and electricity and Reno who could have restored it. Reno's repeated statements of concern for the children, however, are difficult to square with her approval of the use of tear gas on the children and the deployment of a psychological warfare unit. Under Reno's siege orders, the government continually blared frightening sounds at the compound while keeping the buildings bathed in blinding spotlights.

These children were forced to listen to the sounds of dying rabbits, dental drills and other disturbing noises until the final and deadly assault on Mount Carmel. There was much to dislike about the Davidians, including Koresh's "spousal" relations with dozens of young sect members, including some underage girls, and his self-serving messianic domination of sect members.

Despite the efforts of the government, however, the religious views of this sect or post-assault allegations are not on trial. Had the government simply waited to grab Koresh away from the compound, it is likely that this sect would have eventually vanished with its bizarre leader. Yet because of the government's conduct, Mount Carmel will remain burned into our national consciousness.

The public trial will not bring closure to this tragedy, but it may bring some conclusions. The government has always insisted that it was simply acting in the public interest. Now the public can judge.

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Jonathan Turley Is a Professor of Public Interest Law at George Washington University