Waco still a burning issue

Friday, February 28, 2003, is the tenth anniversary of the assault by agents of the federal Bureau of Alcohol, Tobacco, and Firearms (BATF) on the Davidian residence near Waco, Texas. After a shootout and several
deaths on both sides, the Federal Bureau of Investigation (FBI) took over and there was a 51-day standoff until the final assault on April 19, 1993, which resulted in a fire and the deaths of more of the residents, for a total of 87, including many children. Some of the few surviving Davidians were tried in federal court in San Antonio on several charges in the spring of 1994, but none of the federal agents involved were ever charged with crimes. The result of this incident led to the emergence of the militia movement in the United States.

It is worth reviewing the highlights of some of the issues involved in this case. See http://www.constitution.org/waco/mtcarmel.htm for more details.

First, the assault was for the ostensible purpose of serving a search and arrest warrant for weapons violations. This was done by first imposing a $200 transfer tax (a kind of excise) on certain kinds of firearms, specifically those converted to full-automatic fire, then refusing to accept payment of the tax, and issuing a regulation, under the alleged authority of the Commerce Clause, making it a crime to possess or transfer a firearm that had not been taxed. The unlawfulness of this method was set forth in the opinion in the federal appeals case United States v. Rock Island Armory, Inc., 773 F.Supp. 117 (C.D.Ill. 1991), http://www.constitution.org/2ll/court/fed/fed_case.htm .

Second, the BATF agents did not present a warrant to the residents. Apparently, they didn't bring it with them. After the Davidians resisted the initial assault, however, the agents discovered the original warrant was defective, and got a federal magistrate to sign and backdate a better version, which is the one that was presented for the first time at the 1994 trial.

Third, as it was later revealed, the purpose of the BATF was to stage an "event" in which they could collect a trophy they could use to argue for an increased appropriation. Their budget was then up for review, and there were efforts to reduce the appropriation, due to dissatisfaction with the agency's performance. The BATF agents came ill-prepared for anything but a media event. This was revealed by a film, Waco: The Rules of Engagement, http://www.waco93.com/ .

Fourth, in the final assault April 19, 1993, a tank was used to inject flammable and toxic CS vapors into the buildings, and another tank was used at the rear of the complex, out of sight of news cameras, to push over buildings, run over people, and support automatic weapons fire evidently used to prevent the occupants from escaping. This action also apparently started the fire that burned down the buildings with most of the occupants inside. In private, off-the-record conversations, FBI agents would later reveal that the burnout of the Davidians was intentional, and was primarily motivated by the high cost of the standoff. Apparently, the tank crew and assault personnel used were with the Army Delta Force, and incendiary grenades used by that organization were found in the debris. Such use of military personnel is a violation of the Posse Comitatus Act. This was clearly shown in a film, Waco: A New Revelation, http://www.waco-anewrevelation.com/ .

Fifth, in the 1994 trial the lawyers for the Davidians were not allowed to try to impeach the testimony of the government witnesses and their allegations that some of the weapons found in the debris had been converted to full automatic. The judge made a deal with the defense lawyers that if they would not challenge his ruling on not questioning prosecution evidence, he would allow instructions to the jury that they could consider self-defense as a justification for their resistance. Despite blatant judicial and prosecutorial misconduct, the jury found all defendants not guilty of all the criminal charges, and only guilty of some of the enhancement points to the criminal charges. This was the result of confusing instructions to the jury that did not make it clear that they could not find someone guilty of an enhancement if they did not find him guilty of the crime itself. Initially following the law,
the judge ruled that the defendants could not be held guilty of an enhancement if not guilty of the crime, but then he reversed his own ruling, and sentenced them to maximum penalties for the crimes for which they were found not guilty, except for the enhancement.

Sixth, during this entire process, there was egregious fabrication of evidence and destruction or concealment of evidence that would support the innocence of the accused. A good example was the "missing front door" that if produced would have shown all the initial weapons fire came from the agents and not from the Davidians. More than the assault itself, it was the trial that drove the emergence of the militia movement. That trial will be studied in centuries to come as a monument to judicial and prosecutorial misconduct.

This case will continue to burn in the hearts of minds of patriotic Americans until the Davidians are not only freed but compensated, and the agents involved prosecuted and imprisoned. However, this would need to be done in a Texas state court, because federal courts do not have jurisdiction for such a criminal prosecution of federal agents, and almost all attempts to criminally prosecute federal agents in state courts are blocked by federal courts seizing jurisdiction and then dismissing the cases, claiming immunity for the agents if they were on duty during the offense.