January, 1996

SECTION: FEATURE

LENGTH: 6947 words

HEADLINE: Hear No Evil

BYLINE: James Bovard; James Bovard is the author of Shakedown: How
Government Screws You From A to Z (Viking) and Lost Rights (St. Martin's).

BODY:

FBI Director Louis Freeh has staked his reputation on defending an agency sniper
who "accidentally" killed Vicki Weaver on August 22, 1992, as she stood in the
front door of her cabin holding her baby. In Senate testimony this past October,
Freeh was emphatic that Lon Horiuchi's fatal shot was "constitutional" and that
he intended no harm to Mrs. Weaver. The killing of Vicki Weaver is by far the
most controversial aspect of the Ruby Ridge disaster. But Horiuchi's shot is
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now ricocheting and threatens to bring down Freeh and the entire agency's
reputation.

On November 6 Daniel Klaidman reported in Legal Times that a key FBI
official--George Michael Baird- -is likely to be indicted on criminal charges
for allegedly ordering the destruction of a damning FBI laboratory drawing
indicating that, contrary to FBI claims, Horiuchi clearly saw Vicki Weaver
before firing. In late October the Justice Department sent a team of
investigators back to Ruby Ridge to reconstruct Horiuchi's angle of vision for
the shootings. Idaho lawyer David Nevin, who played a key role in the 1993
federal trial of Randy Weaver and Kevin Harris, observed in a November 22
interview, "When you look through the scope [of Horiuchi's rifle] at the
door--you can see a wedding ring on the hand of someone standing behind the
window of the door. You can see someone standing back there with great
resolution and great visibility."

On the night of the killing, Horiuchi was debriefed by an FBI expert and made
a sketch of his target for the second shot. While Freeh has claimed that
Horiuchi shot at a man who was running into the cabin at the time, Horiuchi's
drawing showed his cross-hairs just above an upright head clearly visible
through the window of the open cabin door. At the time that Horiuchi fired,
Kevin Harris--his alleged target--was running into the cabin and would not
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have been in a fixed upright position. But Vicki Weaver was standing in the
doorway holding her child.

If the FBI really thought Vicki Weaver's killing was an accident, it would
not have told so many preposterous lies to justify the shooting. As the Senate
hearings revealed, FBI Assistant Special Agent Thomas Miller's official report
of the shooting falsely claimed that Vicki Weaver had been in the front yard of
the cabin pointing a gun at helicopters before she was slain, though she never
left the cabin during the time in question. The FBI report noted, "This female,
however, did pose an immediate threat to the circling helicopter. The use of
deadly force was justified in that she willfully placed herself in harm's way by
attempting to assist Harris, and so doing, overtly contributed to the immediate
threat which continued to exist against the helicopter crew and approaching HRT
[Hostage Rescue Team] personnel." But all that Vicki Weaver did was stand in her
doorway, shouting for her husband and his friend to hurry back into their home
after the FBI sniper had wounded her husband.

If the HRT were just another bunch of hack government employees with big guns
and bigger egos, then Horiuchi's second shot might simply be explained away as
appallingly bad judgment. But the HRT is too good for that. As Horiuchi's sniper
team partner, Dan Monroe, bragged to the Senate, "Our fire discipline is as much
trained as our fire accuracy. If we don't have an accurate shot, we don't take
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that shot." The HRT is trained by expert military snipers, and those snipers
recognize that it is extremely difficult to hit a running target. To shoot at a
running target by aiming at the window of a door facing into a cabin would be an
idiotic way to try to shoot Kevin Harris. However, the shot that hit Vicki
Weaver--severing her carotid artery--was a perfect kill shot.

A similarly casual attitude toward using deadly force against civilians pervaded
the FBI's operation at Waco. In January 1993, U.S. government officials signed
an international treaty pledging never to use CS gas against enemy soldiers. On
April 19, 1993, the FBI used CS gas on American civilians, pumping in the
potentially toxic gas with a boom attached to a tank and shooting hundreds of
ferret gas rounds through the windows of the Branch Davidians' home. The FBI
originally planned to gas the compound incrementally over a 48-hour period. A
few minutes after the FBI gas attack began, the Davidians fired upon the tank
that was injecting the gas into the compound. The FBI then greatly accelerated
its gassing--effectively injecting all the gas it planned to use over two days
in a three-hour period.

Rep. John Mica (R-Fla.) observed that even if the children in the compound
didn't die directly from the CS gas, "We sure as hell tortured them for six
hours before they died." The FBI's Larry Potts swore, "The autopsies revealed
that no one was harmed by the tear gas or had toxic levels of any component of
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tear gas in their systems." In truth, the autopsies showed no such thing, since
in many cases there was too little left of the corpses to determine the cause of
death.

Attorney General Janet Reno, in all likelihood, would never have authorized
gassing the many innocent victims in the Branch Davidian compound had she been
properly apprised of the dangers of CS. But she had not; the FBI had deceived
her about the dangers of using the chemical. The agency prepared a briefing book
about their planned assault of the compound that claimed, "Experience with the
effects of CS on children including infants has been extensively investigated.
Available reports indicate that, even in high concentrations or enclosed areas,
long-term complications from CS exposures is extremely rare."

In fact, as a Defense Department toxicologist testified at the congressional
hearings into the Waco debacle, only two studies were available on the effects
of the gas on children. One of them showed that an infant exposed to CS for two
hours had to be hospitalized for almost a month; the FBI battle plan called for
gassing the children for forty-eight hours.

The dual debacles of Ruby Ridge and Waco have tarnished the image of federal
law enforcement agencies worse than anything since the Vietnam war era. Yet one
of the most remarkable outcomes of Ruby Ridge and Waco is the continuing
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failure of law- enforcement agencies to come to terms with the horror of those
events. FBI Director Freeh blatantly misrepresented what happened at Ruby Ridge
to Congress.

Moreover, Freeh had fought the Justice Department vigorously over his friend
Larry Potts, the agent who supervised both disasters and to whom Freeh
nevertheless was planning to give a big promotion. Justice protested Freeh's
plan, eliciting this petulant response from the director: "For you to increase
the proposed discipline [of Potts] sends a wrong message to both the public and
the employees of the FBI. . . . To now increase the discipline will signal,
wrongly or not, that there is culpability among FBI employees for the shooting
death of Mrs. Weaver. This will undoubtedly and unjustifiably harm Mr. Potts,
the FBI and the department."

Freeh's overweening concern for both his friend and the image of his
agency--notwithstanding a few score dead bodies--helped to change radically the
perception of federal law enforcement in the United States. The
Republican-driven hearings--in the House on Waco, and the Senate about Ruby
Ridge--presented to the American public an image of the FBI far more troubling
than what the agency had crafted for itself through the years, even though the
mainstream press paid relatively little attention to them.
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Nevertheless, the hearings had an enormous impact on public opinion. A
Washington Post-ABC News poll taken in May, before the hearings, found that 34
percent of the public had a very favorable impression of the FBI, with only 9
percent holding an unfavorable impression. An August poll taken by the Los
Angeles Times after the Waco hearings found that only 16 percent of respondents
had a very favorable view of the agency, while the number of those with an
unfavorable impression had more than tripled--to 28 percent. By September,
another Los Angeles Times survey found, three times as many Americans had a more
negative than positive view of the FBI.

Perhaps more than anything else, what destroyed the credibility of the FBI
was the absurd political posturing of agency and administration officials in
defense of obviously indefensible actions. Potts told the House Waco committee,
"No one was harmed by the tear gas," and added, "The FBI personnel acted with
incredible professionalism, skill and restraint." Janet Reno likened the 54-ton
armored vehicles that crashed into the Branch Davidian compound to "a good
rent-a-car." In a memo to Justice Department investigators, FBI Director Louis
Freeh wrote, "There is an oft-repeated misconception in the public press that
FBI employees must be disciplined" for the shooting death of Vicki Weaver at
Ruby Ridge.
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Freeh divided his time between promising full disclosure to Congress and the
American people and grossly distorting why an FBI sniper tried to kill other
Americans. Freeh told the Senate, "Special Agent Horiuchi testified that he took
the first shot when he observed a man later determined to be Randy Weaverraise
his rifle. At that time, Special Agent Horiuchi perceived that Weaver 'was
trying to get a shot off' at a law enforcement helicopter that was flying
overhead. Special Agent Horiuchi said he took the first shot for only one
reason: he believed he was protecting fellow law enforcement officers who were
in the helicopter."

However, at the federal trial in 1993, Horiuchi repeatedly testified that he
never saw Weaver holding a gun before he tried to kill him. A confidential
report by a Justice Department task force noted, "At trial, Horiuchi was adamant
that he never saw a gun in the hands of Randy Weaver, even though Weaver was
armed at the time he was struck by Horiuchi's first shot." Horiuchi succinctly
explained the snipers' goal: "We were planning to shoot the adult males."
Horiuchi also explained that he did not open fire until both adult males were
out of the cabin because he hoped to be able to shoot them at the same time. Yet
Freeh has imposed no sanctions--not even a slap on the wrist-- on Horiuchi.

One of the most shocking revelations from the Waco hearings was the April 17,
1993 memo from an FBI consultant to high-ranking agency officials. The memo
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warned of the dangers to the agency's image of appearing weak-willed and
indecisive: "The authority of the FBI in all its operations will continue to
weaken, and the press will focus increasingly on whether the situation might
have called for a more courageous approach."

Yet if the media often failed to grasp the potentially explosive nature of
the hearings, it was well understood by both administration and agency
officials, who did everything possible to derail and delegitimize the
investigations. On June 8, 1995, President Clinton denounced the idea of further
hearings on Waco, stating: "We had an independent panel review what the ATF did
there. We've already had 10 congressional hearings on Waco. What happened at
Waco is clear." Treasury secretary Robert Rubin sought to smear the credibility
of the hearings with a July 6 letter assiduously faxed to leading media
nationwide. Rubin declared that federal action at Waco "cannot be understood
properly outside the context of Oklahoma City"--one of the most preposterous
claims in the administration spin-control effort, as the Oklahoma bombing
occurred two years after the Waco incident.

The spin continued as the hearings began. President Clinton publicly
denounced Republicans for criticizing law enforcement personnel: "It is
irresponsible for people in elected positions to suggest that the police are
some sort of armed bureaucracy acting on private grudges and hidden agendas.
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That is wrong, it's inaccurate, and people who suggest that ought to be ashamed
of themselves."

The president also condemned the hearings as part of a GOP "war on police,"
and declared that "there is no moral equivalence between the disgusting acts
which took place inside that compound in Waco and the efforts law enforcement
officers made to protect the lives of innocent people."

The administration launched a similar effort to derail the Senate hearings on
Ruby Ridge. Shortly after Pennsylvania Sen. Arlen Specter proposed hearings on
Weaver, the Justice Department announced it would launch an investigation into
FBI perjury regarding the case. Deputy Attorney General Jamie Gorelick then
complained in mid-August that the Senate investigation might "undermine the
integrity and confidentiality of [the DOJ] investigation." Gorelick's comment
was ludicrous, considering that the FBI had to that point shown no integrity in
investigating what had happened, and that the FBI had successfully and
repeatedly stonewalled Justice Department investigators.

The congressional committees were also stonewalled time and again.
Administration officials withheld documents from the committee investigating
Waco until almost the last minute before the hearings--and then dumped tens of
thousands of pages on them, with key documents taken apart and randomly
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scattered among other files and boxes. The FBI also refused to permit senators
on the Ruby Ridge committee to examine their internal 300-page report on the
debacle; only one Republican and one Democratic staffer were allowed to see the
document.

In fact, as the hearings revealed, as early as thirty- six hours after the
botched initial ATF raid on the Branch Davidian compound, the government began
abandoning routine law enforcement procedure in order to avoid gathering
evidence that might later embarrass it. According to a confidential September
17, 1993 Treasury Department memo, the ATF had initiated a shooting review on
March 1 and "immediately determined that these stories [of agents involved] did
not add up." Justice Department attorney Bill Johnston "at this point advised
[ATF supervisor Dan] Hartnett to stop the ATF shooting review because ATF was
creating" exculpatory material that might undermine the government prosecution
of the Davidians.

The ATF wasn't the only agency concerned about what might emerge later about
the debacle. Former Associate Attorney General Webb Hubbell testified that he
never spoke to President Clinton regarding Waco prior to April 19, 1993.
However, the fear of Hubbell's White House influence was a palpable factor in
Treasury Department conduct. An April 9 memo by Treasury's Ron Noble noted that
"at this morning's meeting with Justice, we hear that Webb Hubbell is so
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concerned about the potential impact of our review on the criminal case that he
planned to raise it directly with the President."

What they could not have anticipated was what a hash the Republicans would
make of the hearings. The trouble in the Waco hearings began on the first day
with the testimony of Kiri Jewell, who claimed that David Koresh had forced her
to have sex with him when she was only ten years old. This was not a new
allegation--Jewell's father had previously sought to sell this story to tabloid
television programs. But the girl's testimony dominated news coverage of the
event during the first few days, allowing Democrats to portray Republican
critics of the ATF and FBI as champions of child molesters.

The fact that Jewell was allowed to testify, especially on the first day, was
proof of the incompetence of the Republican leadership. Jewell's testimony had
been submitted to the committee prior to the hearing, but the Republican
leaders--co- chairmen Bill McCollum (R-Fla.) and Bill Zeliff (R-N.H.)- -never
bothered to read it. Rep. John Shadegg (R-Ariz.) had, and sought to warn the two
of what might happen if the girl were allowed to testify on the first day.
Shadegg's plea went unheeded. As his press spokesman Jason Whiting later
observed, "There were stacks and stacks of [confidential] documents that went
untouched" during the hearings, leaving much of the most controversial
information conveniently out of the public eye.
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The House Waco Committee (composed of subcommittees from the Judiciary and
Government Reform and Oversight Committees) often seemed afraid of discovering
any embarrassing evidence. McCollum botched an opportunity to settle one of the
hottest points of controversy--the dispute over who had fired the first shots in
the standoff, the feds or the Davidians. At least four ATF agents stated shortly
after the raid that they believed the ATF had fired first. Rolland Ballesteros,
one of the first agents out of the cattle trailer that morning, told Texas
Rangers that the first shots came from agents. (He recanted at the Davidian
trial last year, insisting then that the Davidians had shot first.) In a long,
apologetic question, McCollum asked Ballesteros about his change of opinion;
Ballesteros merely said that his later opinion was the correct one, and McCollum
asked no follow-up questions.

He also repeatedly cut off Republican members who were following vital lines
of questioning, time and again rescuing government agents and Clinton
administration officials from difficult interrogation. At the end of the
hearings, New York Democratic Rep. Charles Schumer--who had done everything
except call for the public hanging of the surviving Davidians-- praised McCollum
for his bipartisan spirit.

When they did have the courage to ask appropriate questions, Republican
committee members were met with inappropriate and literally laughable
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responses from those testifying. Rep. Shadegg challenged Janet Reno as to why
tanks had repeatedly smashed into the Davidian compound during the final
assault. Reno responded by claiming that the tanks' entry into the
building--they demolished the walls and 25 percent of the compound--had merely
been an "inadvertent crushing of a back support." Shadegg burst out laughing;
one of his aides later noted that FBI tanks had "inadvertently" smashed into the
compound eight different times.

Similarly, at the Ruby Ridge Senate hearing, it emerged that ATF agent Herb
Byerly had lied about Randy Weaver, telling both U.S. attorneys and marshals
before the raid that Weaver had several previous convictions and was a suspect
in several bank robberies. Weaver had never been convicted of anything in his
life, and was a suspect in no crime other than the trumped-up minor weapons
violation charge that later was ruled to be federal entrapment. Asked about
these slanders during his testimony, Byerly insisted they had been merely
"typographical errors"--eliciting peals of laughter from the hearing room.

Law enforcement officials failed to see the humor in this. ATF chief John
Magaw, in his appearance before Sen. Specter's Ruby Ridge committee, repeatedly
maintained that his agents' "conduct was lawful and proper in every respect."
When pressed by Specter as to why he kept ignoring the court verdict and saying
that Weaver had not been entrapped, Magaw responded: "Do you believe Randy
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Weaver--or do you believe the federal agents who have sworn to tell the truth
and are carrying out a career in this government?"

Eugene Glenn, the FBI on-scene commander at Ruby Ridge, loudly groused to the
Senate committee about both his own 15-day suspension and the fact that an Idaho
state prosecutor is now considering filing charges against FBI officials. Glenn
declared it unfair that FBI agents faced the possibility of state or local
prosecution, as well as federal investigations, and denounced the FBI
investigation of Ruby Ridge as a political cover-up. Glenn said that he had been
thrown overboard like a "tuna" to "hungry sharks" to distract attention from the
failings of top FBI officials.

One Justice Department official told the Washington Post that the FBI
investigation was "based on a wink and a nod. It was clear by the way they asked
questions that they did not want any answers that did not comport with a
predetermined point of view. It was like, 'Now Mr. A, you were there when Mr. B
took out his gun and then the lights went out and when they went on again, there
was a dead body on the floor.' Mr. A says, "Yes." And they say, 'Thank you very
much.'"

That the FBI conducts rigged investigations of its own misdeeds is well known
within the agency itself. Christopher Kerr, a 23-year FBI agent and a board
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member of the FBI Agents Association, observed in a September Washington Times
op-ed, "Few in the FBI ranks were surprised to learn that the recent Ruby Ridge
inquiry was 'fixed.' It is a system interwoven with conflicts of interest and an
almost total lack of what passes for due process anywhere else in government."

Kerr's admission belied the spin-control claim Louis Freeh himself made at
the Senate hearings: "We should be scrutinized harder than any other agency in
the government. Because potentially, we're the most dangerous agency given the
awesome powers that we have and the constitutional protections that are at
issue."

Freeh has repeatedly maintained that if there were any danger of the FBI not
being able to investigate itself objectively, the Inspector General for the
Justice Department should receive the assignment. Yet in response to a question
from Sen. Patrick Leahy (D-Vt.), Freeh identified him as a former colleague and
said, "The head Inspector General is a good friend of mine."

The oversight issue is becoming increasingly important as revelations
continue to emerge about cover-ups at the agency. On July 13, the Justice
Department announced the suspension of a high- ranking FBI official who had
reportedly admitted destroying documents related to the Ruby Ridge case. On
July 15, Freeh demoted his close friend and deputy director Larry Potts. On
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August 11, Freeh suspended (with pay) Potts and three other high-ranking FBI
officials after learning of their involvement in suspected perjury and/or
destruction of documents regarding the case. Two other FBI officials were
subsequently suspended as a result of the criminal investigation. As the Los
Angeles Times noted, "The revelations of suspected wrongdoing inside the
nation's premier law enforcement agency are more sweeping than the ethics
violations that led to President Clinton's firing of former FBI director Bill
Sessions and the burning of Watergate related evidence in his fireplace that led
to the 1973 resignation of acting FBI director Patrick Gray."

Lying seems to have become part of the job description for federal lawmen.
Phil Chojnacki, one of the two Waco ATF raid commanders who was fired after the
official Treasury department report claimed he had lied about knowing the
"element of surprise" was lost, was given a new job with the agency-- serving
"as an expert witness to present evidence and facts in civil or criminal trial
hearings." Republicans suspect that Chojnacki was rehired in return for keeping
silence on Waco details that would embarrass high-ranking Clinton administration
officials.

According to the Justice Department's official report on Waco, released in
October 1993, "While it was conceivable that tanks and other armored vehicles
could be used to demolish the compound, the FBI considered that such a plan
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would risk harming the children inside." Yet a video presented at the hearings
on July 28 showed FBI tanks destroying massive portions of the Davidian compound
even before the fire began. Under vigorous questioning by Rep. Shadegg, the
FBI's Floyd Clarke admitted, "The destruction of the building was part of the
ultimate plan which was included" in the briefing book given to Reno on April
12. Though FBI officials admitted that they were far along in the process of
destroying the building before the fire started, Larry Potts still insisted,
"The FBI agents demonstrated remarkable restraint and did not fire a single shot
during the entire standoff."

In his Senate testimony, the FBI's Charles Mathews III, author of the agency's
still-confidential 300-plus page report on Ruby Ridge, justified Horiuchi's
second shot as follows: "The subject that he fired at had not thrown his weapon
down, had not said 'I surrender,' had not stopped movement that was consistent
with aggressive behavior. He maintained his weapon and he was running for a
better position. I know of no rule that requires law enforcement officers to
cease and desist firing at a subject when they simply move from one position to
another to obtain a strategically better location to continue an engagement."
What was the "aggressive behavior" of Weaver and Harris? They ran for the cover
of the cabin after the FBI sniper, hiding in the woods 200 yards away, tried to
kill them.
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The FBI's attitude toward the American people was best captured by a single
image from the Senate hearings--an FBI robot outside the cabin holding a 12-
gauge shotgun in one arm and a phone in the other. FBI siege negotiators
continually demanded that Weaver come out of his cabin, pick up the phone and
talk to FBI agents at the other end of the line. But the robot's shotgun was
pointing right at the door. FBI press spokesmen repeatedly complained to the
news media during the 11-day siege that Weaver refused to negotiate--but never
mentioned the shotgun.

The one certainty from the hearing is that high- ranking FBI officials still
haven't the faintest idea why so many Americans now greatly distrust the agency.
Larry Potts told the Senate subcommittee, "I hope that these proceedings will
have a positive effect in helping citizens understand the potential danger of
armed resistance to lawful authority" The hearings, of course, have had
precisely the opposite effect, and distrust of government law-enforcement is
higher than ever. Given the despicable performance of the feds at Waco and Ruby
Ridge, is it any wonder?