All Commentary
Sunday, February 1, 1998

No More Wacos: What’s Wrong with Federal Law Enforcement and How to Fix It by David B. Kopel and Paul H. Blackman

A Balanced, Thorough, and Supremely Factual Indictment of Federal Law Enforcement

Prometheus Books • 1997 • 524 pages • $26.95

Morgan Reynolds is director of the Criminal Justice Center at the Dallas-based National Center for Policy Analysis, and professor of economics at Texas A&M University.

But who is to guard the guards?,” wrote the Roman poet Juvenal. No event in modern times better illustrates the wisdom of this question than what happened at Waco, Texas, nearly five years ago.

Mount Carmel is only 90 miles from my door and I used the map printed in the book (along with seven photos) to find my way up to the site. It’s a painful place. Perhaps most poignant was the statement on the display near the entrance: “Even Santa Ana didn’t kill the women and children.” Not since the Wounded Knee massacre in 1890 have so many Americans died in a conflict with the federal government.

The federal raid, 51-day standoff, and fiery immolation of David Koresh and his Branch Davidians—including 27 children—brought the crisis of federal legitimacy to the fore. I wrote a dust-jacket blurb for this book, “absorbing, amazing, appalling,” and it holds up. Balanced, thorough, and supremely factual (nearly 1,700 footnotes), No More Wacos minces no words in its indictment of the lawlessness of federal law enforcement.

The book is not the final word on Waco because “documents, videotapes, and other evidence have been withheld from the public” and the full truth cannot be known until “witnesses who have lied under oath . . . tell the truth.” We may have quite a long wait.

Many questions remain unanswered—who fired the first shot on February 28, 1993 (the brunt of the evidence points to BATF), who or what started the near-simultaneous three fires on April 19 (the weight of the evidence points to Koresh), and who shot 18 Branch Davidians, including Koresh? Since the Justice Department refuses to act, the authors urge appointment of a special prosecutor to expose the full truth and prosecute any violent crimes perpetrated by deadly bullies acting under color of law.

The book is filled with surprising facts. For example, the Davidians were reluctant to leave because they were only three and one-half weeks short of the five-year occupancy necessary for clear title to the land. The Alabama National Guard was deployed for aerial photography in Texas, a breach of the U.S. Constitution and both Texas and Alabama law.

What is to be done? The most fundamental answer is to defederalize criminal law and demilitarize law enforcement. Yet the return of federal jurisdiction over criminal law to its constitutional boundaries is improbable, so the authors supply dozens of sound recommendations and a model federal law enforcement reform statute (Appendix A). Reforms include constitutional sensitivity training for law enforcement agents, civil remedies for victims of law enforcement abuse, a law enforcement review commission, abolishing the Joint Task Forces (JTF) in domestic law enforcement, and many others.

The book has very few shortcomings. Since it provides a detailed critique of the botched arrest warrant, it should have been included as an appendix. Also, a few of the policy reforms I find misguided. For example, a prosecutor’s failure to reveal exculpatory material to the defense (a so-called Brady violation) should not automatically void a conviction—why free a guilty felon to prey on society again because the prosecutor broke the rules? Instead, allow for a new trial and discipline or convict the prosecutor.

A major reason for the tragedy was that many Americans approved of the law-enforcement actions in Waco on the grounds that the scurrilous David Koresh, if not all the “cultists,” had it coming. Respect for freedom of religion, nontraditional and practiced peacefully, runs shallow in America.

It will be a long, hard road to restore law enforcement, especially at the federal level, to full lawful control. This book provides a superb start.

Finally, consider a chilling thought, one of many raised in the book. The government’s prosecution against Randy Weaver in the Ruby Ridge assault began during the Waco siege and Weaver won a speedy acquittal without calling a single witness. The government’s case was pathetic. Did this encourage the FBI to end the Waco standoff early, regardless of the costs to the Davidians, since those deaths might prevent a Texas trial as embarrassing as the Idaho case? This may sound far-fetched but putting such speculation to rest requires a full public accounting. Maybe it’s too important to ever happen: the federal government badly wanted to bring its entire weight down on David Koresh’s head, if only to wipe the smirks from the faces of those who were enjoying a grand display of impotency and ineptitude by our “awesome, omnipotent” federal government.