Can
Soldiers Be Peace Officers? The Waco Disaster and The
Militarization of American Law Enforcement
by David
B. Kopel[*]
and
Paul M. Blackman[**]
I.
Introduction
One
of the most significant trends of federal law
enforcement in the last fifteen years has been its
militarization. The logical, perhaps inevitable,
consequence of that militarization was seen in the
disaster at Waco, Texas, resulting in the deaths of four
federal agents, and seventy-six other men, women, and
children. In this article, we use the Waco tragedy as a
starting point to examine the militarization of federal
law enforcement, and similar trends at the state and
local level.
Part
Two of this article sets forth the details and
rationale of the Posse Comitatus Act--the 1878 law
forbidding use of the military in law enforcement. Part
Three explicates how that Act was eroded by the drug
war in the 1980s. The article then discusses how the
drug exception to the Posse Comitatus Act was used to
procure major military support for the Bureau of
Alcohol, Tobacco and Firearms (BATF) raid against the
Branch Davidians--even though there was no real drug
evidence against them--and how the drug exceptions to
the Posse Comitatus Act have made such abuses endemic.
Part
Four examines the fifty-one day FBI siege of the
Branch Davidian residence, with a focus on the
destructive role played by the FBI's Hostage Rescue
Team, an essentially military force which has proved
counterproductive in a civilian law enforcement
context.(p.620)
In
Part Five we look at the problem of
groupthink, its role in the Waco tragedy, and the
importance of keeping groupthink-prone
institutions--like the military--out of law enforcement.
Finally,
Part Six offers a broader view of the
problem of the militarization of federal law
enforcement. We examine the proliferation of federal
paramilitary units and federal efforts to promote the
militarization of state and local law enforcement. After
explaining the direct connection between the drug
"war" and law enforcement militarization, we
propose numerous statutory remedies to demilitarize law
enforcement.
II.
The Posse Comitatus Act
The
Posse Comitatus Act of 1878 was passed to outlaw the use
of federal troops for civilian law enforcement.[1]
The law made it a felony to willfully use "any part
of the Army...to execute the laws" except where
expressly authorized by the Constitution or by act of
Congress. The Act of 1878, as amended, provides:
Whoever,
except in cases and under circumstances expressly
authorized by the Constitution or Act of Congress,
willfully uses any part of the Army or the Air Force
as a posse comitatus or otherwise to execute the laws
shall be fined under this title or imprisoned not more
than two years, or both.[2]
The
idea was that law enforcement and the military are
completely different, with the Army geared toward
destroying enemies of a different nationality, while law
enforcement must serve persons largely friendly, who are
guaranteed presumptions of innocence and rights not
appropriate when dealing with an enemy during times of
war. Anything which made law enforcement seem
militarized was un-American; our citizens are not
supposed to perceive themselves as subjects of an
occupying force.[3](p.621)
As
one modern court stated, the Posse Comitatus Act
"is not an anachronistic relic of an historical
period the experience of which is irrelevant to the
present. It is not improper to regard it, as it is said
to have been regarded in 1878 by the Democrats who
sponsored it, as expressing 'the inherited antipathy of
the American to the use of troops for civil
purposes.'"[4]
Indeed, during the debate over ratification of the
Constitution, The Federalist assured Americans that the
military would never be used against the American
people.[5]
In
Laird v. Tatum, Chief Justice Warren Burger
referred to:
[A]
traditional and strong resistance of Americans to any
military intrusion into civilian affairs. That
tradition has deep roots in our history and found
early expression, for example, in the Third
Amendment's explicit prohibition against quartering
soldiers in private homes without consent and in the
constitutional provisions for civilian control of the
military.[6]
As
another court put it:
Civilian
rule is basic to our system of government. The use of
military forces to seize civilians can expose civilian
government to the threat of military rule and the
suspension of constitutional liberties. On a lesser
scale, military enforcement of the civil law leaves
the protection of vital Fourth and Fifth Amendment
rights in the hands of persons who are not trained to
uphold these rights. It may also chill the exercise of
fundamental rights, such as the rights to speak freely
and to vote, and create the atmosphere of fear and
hostility which exists in territories occupied by
enemy forces.[7](p.622)
Use
of the military in domestic law enforcement has
repeatedly led to disaster. In 1899, the army was used
to break up a miners' strike at Couer d'Alene, Idaho.
Military forces arrested all adult males in the area,
imprisoned men for weeks or months without charges, and
kept the area under martial law for two years.[8]
During and after World War I, the army broke peaceful
labor strikes, spied on union organizers and peaceful
critics of the war, and responded to race riots by
rounding up black "Bolshevik agitators."[9]
Historian Jerry M. Cooper observes that the army's
efforts "substantially slowed unionization for a
decade."[10] One
of the most egregious abuses of executive power in
American history--President
Truman's illegal seizure of the steel mills--was
carried out by the military, which obeyed a plainly
unconstitutional order.[11]
During the Vietnam War, military intelligence was again
deployed against domestic dissidents. "Military
investigation of civilian protest activity was precisely
the kind of abuse of standing armies that
eighteenth-century antimilitarists had feared."[12]
The 1970 killings of student protesters at Kent State
University were, of course, carried out by a National
Guard unit.
One
of the reasons for the disastrous February 28, 1993,
BATF raid on the Branch Davidians and April 19, 1993,
FBI tank attack on the same group was that they were
both run as military exercises, planned and executed
with the advice of the U.S. Department of Defense. As
Rep. John Conyers later pointed out, "The root
cause of this problem was that it was considered a
military operation, and it wasn't."[13]
Attorney General Janet Reno, on the other hand,
discussed the incident, and the President's involvement,
as similar to her acting as a general during World War
II, with the President not expected to exercise constant
oversight.[14]
(p.623)She acknowledged that the April 19 implementation
of the "Plan B" tank and chemical warfare
assault on the Branch Davidians meant that "in
effect [the U.S. Army] Delta Force's recommendation was
carried out."[15]
As
evinced at Waco, there are several loopholes in the
Posse Comitatus Act. For one, the prohibition on the use
of military personnel and equipment does not mean
personnel cannot be used to assist law enforcement, only
that they can not be used directly.[16]
Thus, throughout the Waco standoff, military personnel
had express legal authority[17]
to train FBI and other law enforcement officials to use
military vehicles.[18]
In addition, the proscription on use of the military is
limited to personnel; military equipment can be used,[19]
although the usual procedure is to remove or cover
military markings. The civilian agency must pay the
military for use of the equipment.[20]
III.
The Drug War Loophole
The
exceptions mentioned above are minor in comparison to
the largest loophole in the Posse Comitatus Act: the
"drug law" exception. Normally, the
(p.624)obligation to reimburse the military for the loan
of equipment is a powerful incentive not to use military
equipment in domestic law enforcement. A police chief
will be hesitant to borrow military helicopters if his
department will have to pay for them. However, when drug
laws are involved, the military assistance is free and
greater use of military personnel is allowed.[21]
As if to make the "drug war" a literal war,
the U.S. military has created special Joint Task Forces
(JTF) whose primary mission is to assist civilian drug
law enforcement agencies.[22]
Some JTF leaders foresee that not-far-distant day when
restrictions against use of the military in domestic law
enforcement will be abolished completely.[23]
A.
The Drug Claims as a Pretext for Federal Intervention at
Waco
As
part of the planning for the Waco raid, BATF went to the
Joint Task Force Six (JTF-6), which covers Texas, and
asked for training, medical, communications, and other
support. The JTF-6 staff explained that they could only
be involved if the case were a drug case.[24]
If the case were not a drug case, BATF could obtain
assistance from other parts of the military, but would
have to pay for it.(p.625)
Immediately
thereafter, BATF asserted that the Waco case was a drug
investigation; Branch Davidian prophet David Koresh was
supposedly running a methamphetamine laboratory.[25]
The military should have known that the drug claim was
merely a guise; BATF came up with the allegation only
after being told of the benefits of such an allegation.
In addition, the military prepared a memorandum for BATF
on methamphetamine labs, and the precautions essential
for dealing with such a lab.[26]
However, when the paper was presented to BATF agents,
they openly ignored the information in front of the
soldiers who prepared it.[27]
Further, agents from the civilian Drug Enforcement
Agency (DEA) who were assisting BATF also expressed no
concerns about how BATF was addressing the risks of a
meth lab in its operational planning, which similarly
should have indicated to the military that the
allegation was a mere pretext.[28]
With
this knowledge, JTF-6 signed onto the mission of
"training a National Level Response Team [BATF
strike-force] for Counter Drug operations," in
"Support of BATF Takedown of Meth Lab."[29]
According to documents received from the U.S. Special
Operations Command under Freedom of Information Act
requests, the Joint Training operation (JT002-93) was
approved due to a request from BATF dated February 2,
1993, requesting U.S. and Texas National Guard
assistance in serving a federal search warrant "to
a dangerous extremist organization believed to be
producing methamphetamine."[30]
The Army assistance at Waco would supposedly be "in
direct support of interdiction activities along the
southwest border."[31]
(Notwithstanding the fact that Waco is approximately 300
miles from the southwest border. Moreover, the original
claim was that Koresh was manufacturing methamphetamine,
not that he was importing it from Mexico.)(p.626)
Had
BATF actually been planning to take down a
methamphetamine lab, its plans would have been far
different. Testimony at the 1995 congressional hearings
indicated the potential dangers of an explosion if a
meth lab is not taken down properly. For instance,
because a stray bullet could cause a major explosion, a
"dynamic entry" (a violent break-in, the
BATF's method of "serving" the Waco search
warrant) would be an extremely risky, disfavored
approach.[32] In
addition, the chemicals involved in methamphetamine
production are toxic, capable of injuring lungs, skin,
liver, kidneys, the central nervous system, and
potentially causing genetic damage.
DEA
protocol for seizure of meth labs requires that agents
wear special clothing and bring other specialized
equipment. BATF not only made no such plans, but made
express advance plans to use flashbang
grenades--grenades which could set off a massive
explosion in a real meth lab.[33]
When requesting flashbangs for use in the raid, BATF
omitted mention of any possible presence of a meth lab.
Had BATF really thought there were a drug lab at Mount
Carmel, BATF should have taken advantage of the DEA
offer of assistance by a DEA (p.627)Clandestine
Certified Laboratory Team. But the offer was
rejected.[34]
When
JTF-6 was not looking, BATF did not even bother to
pretend that drugs were involved. Notably, the initial
warrant application included nothing regarding drug law
violations--even though the presence of a drug lab would
have given BATF clear legal authority to search for the
presence of any type of firearm (not just machine guns
and explosives, which were the target of the search
warrant), and even though the warrant affidavit threw in
all sorts of other unsubstantiated allegations about
Koresh.[35] After the
February 28, 1993, BATF raid was repulsed, BATF sought
and obtained a second warrant expanding the authorized
scope of the search of Mount Carmel. Even the second
warrant application did not include allegations of
illegal drug activity.
Yet
even after the botched raid, BATF still tried to use the
drug claim to receive free military support. Richard L.
Garner, Chief, BATF Special Operations Division, wrote
to the Pentagon on February 28, 1993, asking for
additional assistance related to "an on-going
investigation in Waco, Texas involving apparent drug and
firearms violations."[36]
Although BATF maintained the pretense into late March,
the Army was slowly recognizing the obvious. As of late
March,[37] the Army had
come to believe that its assistance to BATF and the FBI
would be reimbursed[38]
as is required when there is no drug nexus. By May 15,
1993, the military suspected the possibility that
"drug-connection was overstated to secure cost-free
SOF training and assistance. No mention of drugs in
public media."[39](p.628)
The
drug enforcement exception to the Posse Comitatus Act
has been very effective at undermining the honesty of
law enforcement personnel, who are encouraged to allege
a drug nexus in many investigations for the purpose of
getting, gratis, federal military assistance.[40]
The U.S. Marshals Service claimed a possible drug
problem involved with the Randy Weaver family at Ruby
Ridge, Idaho in order to get military reconnaissance
flights over the cabin, which revealed no evidence of
drugs.[41]
According
to an anonymous JTF-6 employee, JTF is often aware that
civilian agencies are fabricating a pretext for military
involvement, but, "the JTF doesn't even care,
because there is little or no oversight involved.
There's no independent authority looking over anyone's
shoulder."[42]
What
was the basis for the claim that David Koresh was
running a drug lab? First, one person associated with
the Branch Davidians had been convicted of using drugs,
and was paroled to McLennan County (Waco), Texas.[43]
Second, ten Branch Davidians had been arrested or
investigated for some "drug activity" at some
time in their lives, apparently with no convictions.[44]
In
the mid-1980s, after the death of Branch Davidian
prophet Lois Roden, there had been a schism in the
Branch Davidians between the followers of George Roden
(Lois Roden's son) and the followers of David Koresh
(who thought him Lois Roden's proper successor). George
Roden took over the Branch Davidian's "Mount Carmel
Center" at Waco, and drove Koresh's followers away
at gunpoint. Roden, currently confined in an institution
for the criminally insane, did in fact (p.629)set up a
meth lab. But in March 1988, when Roden was sent to jail
on unrelated charges and Koresh's group took back the
Mount Carmel Center, they found the meth lab, and
promptly reported it to the sheriff.[45]
The
fall 1993 Treasury Department report on the BATF raid on
the Branch Davidians insisted that the investigation of
alleged drug use was valid.[46]
Treasury reasoned that the sheriff's office had planned
to collect the lab equipment but found no record it had
done so, "raising the possibility that the illegal
equipment might still have been at the Compound."[47]
The Treasury Report ignores the fact that Marc Breault
(a disaffected ex-Davidian), the source for BATF's
information that there had once been a meth lab at Mount
Carmel, simultaneously told BATF agent Davy Aguilera
that the building in which the meth lab was housed had
burned down in Spring 1990.[48]
Koresh was thoroughly anti-drug, and it is improbable
that he would have started operating a methamphetamine
lab after telling the sheriff about its presence.
The
limit of the Treasury criticism was that there should be
clearer standards about what constitutes a drug nexus,
and that BATF probably should have told the Texas
National Guard (which can only be used when there is a
drug nexus) more than a day in advance that their pilots
might be shot at.[49]
Treasury noted, accurately, that BATF could have had
just as much military assistance without any alleged
drug nexus had it been willing to reimburse the Defense
Department although the assistance could not have come
from JTF-6, and the Texas National Guard could not have
been used.
B.
Military Support for BATF
What
kind of military support did BATF receive? Throughout
February 1993, BATF agents learned at Fort Hood how to
carry on a surprise military raid against the Mount
Carmel Center.[50] The
training was conducted by Army Special (p.630)Forces (Green
Berets) from Fort Bragg, North Carolina. The Green
Berets also allegedly wrote a specific assault plan for
BATF to use at Mount Carmel, and four Green Berets were
allegedly present at Mount Carmel as observers on the
day of the raid.[51]
To
carry out the raid, BATF had procured helicopters from
the Texas
National Guard.[52]
Unlike federal law, which allows some reimbursed use of
the military even when drugs are not involved, Texas law
only allows the use of its National Guard helicopters
for law enforcement when there is a drug nexus.[53]
BATF
also made use of the Alabama
National Guard for aerial photography. The use was
authorized by a "memorandum of agreement"
between the Adjutant Generals of the Texas and Alabama
National Guards.[54]
Even if the drug nexus had been real, there are a number
of problems with employing the Alabama National Guard in
Texas. Texas law expressly requires the governor's
approval for the entry of a military force that, like
the Alabama National Guard, is not part of the U.S.
armed forces.[55] But
Texas Governor Ann Richards never knew about the use of
the Alabama or Texas National Guards until after the
raid.[56] Alabama law
limits the operation of the Alabama National Guard to
the state boundaries of Alabama.[57]
Thus, the deployment of the Alabama National Guard in
Texas was a flagrant breach of the laws of Alabama and
Texas.
In
addition, the "memorandum of agreement"
providing for use the Alabama National Guard in Texas
violated the United States Constitution. Agreements
between two or more states require congressional
consent, and Congress had not consented to the
Alabama/Texas "agreement."[58]
In other words, (p.631)the Adjutant Generals of the
National Guards of Alabama and Texas executed a
"memorandum of agreement" which purported to
authorize cross-border use of the Alabama National
Guard, even though the "agreement" as
implemented was in defiance of the law of Alabama, the
law of Texas, and the Constitution of the United States.
It is precisely such military usurpation of civil
authority--the destruction of the rule of civil
law--which is the ultimate, and real danger posed by use
of the military in law enforcement.
Shortly
after the raid, Governor Richards blasted the BATF for
having lied to obtain the Texas helicopters.[59]
BATF then claimed that a British surveillance airplane,
recently brought onto the Waco scene, had found new
thermal evidence of the methamphetamine lab.[60]
Later, a law enforcement expert from the federal
government's Sandia
National Laboratories would describe evidence of a
methamphetamine lab as based on "an overflight
using some very unsophisticated, forward-looking
infrared devices" and detecting "the so-called
hot spot on the compound.[61]
That hot spot could have come from any number of heat
sources," but the government chose it to be
indicative of a meth lab.[62]
(At Ruby Ridge, the thermal "hot spot" which
was asserted to be the site of Randy Weaver's drug lab
was actually a dog house.) An anonymous BATF source told
a reporter that the new drug allegation "was made
up ... out of whole cloth ... a complete
fabrication" to avoid further criticism from
Governor Richards.[63]
C.
Helicopters, Machine Pistols, and other Weapons
1.
Helicopters
While
the National Guard helicopters were not armed, at least
some of (p.632)the BATF agents on board the helicopters
were carrying MP-5 machine pistols, contrary to
assertions by some government officials.[64]
Significant evidence suggests that the BATF agents in
the helicopters strafed the roof of the building. For
example, Dr. Bruce Perry examined the Branch Davidian
children who left the compound in the weeks following
the BATF raid. One child drew a picture of a house
beneath a rainbow. Perry asked, "Is there anything
else?" and the child then drew bullet holes in the
roof.[65] Newsweek
magazine reprinted the Davidian girl's picture of her
home with a dotted roof. "Bullets" the girl
explained.[66]
Catherine
Matteson, a seventy-two-year-old Branch Davidian woman
not accused of any crimes, was interviewed by the Las
Vegas Review-Journal. She clearly recalled seeing
helicopters firing through the roof and walls of the
residence, stating "I saw the yellow flashes."[67]
When machine guns fire, there is a yellow flash of
muzzle blast, visible even in daylight. During the
negotiations, Koresh and his chief aide, Steve
Schneider, insisted that there were at least five
witnesses who saw three helicopters come over and start
shooting into Koresh's room, destroying his television
set.[68]
Schneider's
attorney, Jack Zimmermann, who went into the Branch
Davidian house during the siege, later testified that he
saw many bullet holes in the ceilings with a downward
trajectory, indicating that the helicopters had been
firing into the compound from above.[69]
There is no nearby high ground from which BATF agents
not in helicopters could have shot bullets into the
building (p.633)with a steep downward trajectory.
The
BATF stated the helicopters were simply used as a
"diversionary device" during the raid, to draw
attention to the back of the building, while the BATF
ground forces entered the front; no shots came from the
helicopters.[70] BATF
agent Davy Aguilera, who was in one of the helicopters,
testified to Congress that the agents in the helicopters
were armed, and had been told that they were allowed to
fire in self-defense.[71]
Aguilera maintained that no shots were fired from the
helicopters.
At
least during wartime, there are sound tactical reasons
for beginning an assault on a building by strafing the
second story roof. The bullets coming through the
ceiling will force people on the second floor to retreat
to the first floor. It will therefore be easier for
assault personnel to enter the second story (a key
element of the BATF raid was getting an entry team into
the "gun room" on the second story, where the
Branch Davidian rifles and ammunition were kept). In
addition, riflemen defending the building against ground
attack will be deprived of the advantage of an elevated
firing position. Also, strafing the second-floor gun
storage room would prevent the Davidians from retrieving
their weapons prior to the imminent arrival of BATF land
forces.
But
strafing a building is not a particularly effective way
to rescue children who are thought to be in danger. The
second story of the Mount Carmel Center was known to be
the living quarters for the women and children, and for
Koresh; other men were not allowed up there.[72]
Strafing
the roof, if it happened, might well be considered
grotesquely excessive use of force for serving a search
warrant. The persons who did the strafing (p.634)might
be considered guilty of reckless endangerment or
homicide. If the Davidians fired first at the
helicopters, then return fire at particular targets
would be lawful, but not random firing through a roof.[73]
Whether
lawful or not, the federal government's alleged
machine-gunning a roof that covered dozens of women and
children would probably have been ill-received by the
press and public. If there were hundreds of bullet holes
in the roof, there would have been a motive for the
federal government to destroy the evidence by having the
building burned down, as Steve Schneider noted in the
course of the subsequent negotiations.[74]
2.
Armor-piercing Ammunition
If
BATF forces on the ground were using the armor-piercing
9mm Cyclone ammunition (as some sources claim)[75],
such action was in disregard for the safety of
noncombatants. BATF knew, or should have known, that the
armor-piercing ammunition it was using could easily
penetrate the thin walls of the compound at Mount Carmel
Center, endangering the children whom the BATF claimed
to be protecting from abuse.[76]
BATF's
perception was very different, that the agents were
expressly armed mostly with 9-mm machine pistols.
"We knew there was a lot of children in there. And
we knew there were a lot of women and innocents in
there.... And with all these innocents in there, our
teams ... took mostly 9-mm firearms that they knew would
not penetrate those walls, they knew would not go
through and hit innocent children. And, so, in essence,
the beating we took was because we were trying not to
have firearms that would go through the walls."[77]
Actually, (p.635)9-mm rounds can penetrate thin walls
like those at the Mount Carmel residence.
3.
Machine Pistols
More
fundamentally, BATF's claim that it went into the Mount
Carmel Center underarmed is ludicrous. Ten agents were
carrying AR-15 semiautomatic rifles.[78]
This rifle, whose rounds can certainly penetrate walls,
has been described by the BATF itself as an extremely
powerful "assault weapon" primarily useful for
mass murder.[79]
The
majority of agents, though, were armed with Heckler
& Koch MP-5 machine pistols.[80]
These weapons are sold almost exclusively to the
military and police. The advertising to civilian law
enforcement conveys the message that by owning the
weapon, the civilian officer will be the equivalent of a
member of an élite military strike force, such as the
Navy SEALs. The ad copy links civilian law enforcement
to military combat, with lines like "From the Gulf
War to the Drug War." As one criminologist notes,
"The MP5 series is the pride and the staple of
police tactical operations units, and it holds a central
place in the paramilitary police subculture. Its
imposing, futuristic style overshadows its utility as a
superior 'urban warfare' weapon."[81]
Functionally,
the MP-5 is a perfectly fine weapon. But when law
enforcement agencies are procuring weapons, they need to
consider not only their mechanical characteristics, but
also how officers in the field will use them. When a
weapon's advertising and styling deliberately blur the
line between warfare and law enforcement, it is not
unreasonable to expect that some officers--especially
when under stress--will start behaving as if they were
in the military. That is precisely what happened when
the BATF agents began firing indiscriminately into
(p.636)the building.[82]
No
one will ever be certain whether more agents might have
obeyed BATF training and the law--to fire only at
visible targets who pose a threat--if the agents had
been armed with other weapons. But it is hardly likely
that Heckler & Koch's militaristic marketing of the
MP-5 helped promote responsible law enforcement behavior
at Waco. As the Waco disaster illustrates, there are
profound dangers to allowing domestic law enforcement
agencies to acquire weapons of war.
IV.
The Waco Siege and the Hostage Rescue Team
After
the Branch Davidians repelled the BATF raid on February
28, 1993, the FBI was called into Waco to add
professionalism to a law-enforcement disaster. While
there were over 600 FBI employees at Waco, two groups
were most important: the negotiators, and the hostage
rescue team.[83]
The
negotiating team, with the support of FBI psychological
and research staff, conducted telephone negotiations
with the Branch Davidians.[84]
The FBI Hostage
Rescue Team (HRT) took control of the perimeter of
the 77-acre Branch Davidian ranch. As it turned out, the
militaristic Hostage Rescue Team repeatedly sabotaged
the progress being made by the negotiators.
The
Hostage Rescue Team was originally created to rescue
Americans abroad who were being held hostage by
terrorists. The HRT is trained by Delta
Force, the U.S. Army's counter-terrorism squad. But
the HRT has frequently been deployed not to rescue
hostages in other countries, or even in the United
States, but instead as some kind of special force to
deal with particularly troublesome domestic criminals.
This deployment--at Ruby Ridge, Waco, and elsewhere--has
led to predictably disastrous consequences. A team
trained to rescue hostages being held by foreign
terrorists is an élite strike force. They must attack
rapidly, neutralize the terrorists (i.e. kill them), and
extricate the hostages. Rather than (p.637)shooting only
when clearly necessary to prevent harm to an innocent, a
hostage rescue team must neutralize the terrorists at
the first opportunity, before the terrorists have an
opportunity to pose an imminent threat.
Persons
trained for this specific, important mission, are highly
unfit for domestic law enforcement tasks, in which the
objective is to capture suspected criminals (not kill
them), to minimize the use of force, and to act with a
scrupulous regard for the United States Constitution.
Philip
Heymann, who served as deputy attorney general in the
first year of the Clinton administration, has suggested
that the Hostage Rescue Team only be used for rescuing
hostages. The problems caused by infrequent use of the
HRT are far outweighed by use of the Hostage Rescue Team
in non-hostage situations.[85]
Professor Heymann's suggestion should be put into the
United States Code.
At
Waco, the Hostage Rescue Team had no hostages to rescue.[86]
They defined themselves as being in a "Complex
Hostage Rescue Barricade Situation." But to the
extent there were hostages at Mount Carmel, the Branch
Davidians were hostage in their own home because they
were afraid of what the Hostage Rescue Team and the
federal government would do to them and their children.[87]
The
Hostage Rescue Team's arrogance is a well-known problem
in law enforcement. As Treasury Undersecretary for Law
Enforcement Ron Noble observed, "when they come
into an operation, they take over, and I've been with
other law enforcement officers when it happens, and it
is not something that makes law enforcement officers,
who believe they're able, happy. That's just the way it
is."[88] At Waco,
the HRT rapidly established bad relations with the Texas
Rangers.(p.638)
The
HRT began with an anti-negotiation bias. Jeffrey
Jamar, the Special Agent in Charge of the San
Antonio FBI office, was commander of the entire
operation at Waco, and of sorting out the conflicting
views of the HRT and the FBI negotiation team. Jamar's
immediate superior was Larry Potts, the Assistant
Director of the Criminal Investigation Section.[89]
Jamar personally had no training in negotiations; he
"left that to the experts."[90]
The advice of negotiators generally was ignored in favor
the HRT's position to steadily increase pressure on the
Branch Davidians. This proved to be a fatal error.[91]
One
of the negotiators later noted that while sometimes
negotiators and "tactical component" (the HRT
or SWAT teams) agree about how to achieve success, in
Waco:
there
was a fundamental strategy disagreement and what was
the best way to proceed?...the negotiation team wanted
to have a lower-keyed approach. The team's approach
was to apply pressure. Part of that...was driven by
the fact that the tactical team, as Mr. Jamar
indicated, was exposed to open fire. We were dealing
with the most complex situation we have ever had in
the United States, where there had already been a
demonstrated willingness to use force.... So the need
to provide them with adequate cover, to contain the
situation, had an impact on conveying, perhaps, a
message that Mr. Koresh did not want to hear.[92]
But
it was not just Koresh who was upset by HRT actions. The
ordinary Branch Davidians were also upset, particularly
by the actions of the Bradley tanks driven by the HRT.[93]
It was their understanding that the original cease-fire
agreement included Davidians not threatening law
enforcement with firearms in exchange for law
enforcement staying off Davidian property. Instead, the
tanks (p.639)not only ran around the Davidian property,
but damaged outbuildings and desecrated a cemetery.[94]
The
tanks frightened the children remaining at Mount Carmel
Center.[95] The FBI
negotiators insisted there was nothing to worry about,
since "nobody's going to run tanks through
buildings that contain people."[96]
In response to the expressed concerns of Cyrus
Koresh (David Koresh's oldest child, age eight)
about a tank assault on the building, the FBI negotiator
promised "the last thing in the world that's going
to happen is for the government to take any type of
offensive action here. It's just not going to happen.
You know, we don't hurt babies, you know, we don't hurt
women, we don't do those types of things."[97]
HRT
commander Dick Rogers later testified that the sole
purpose for the Bradley
Fighting Vehicles (BFVs) was agent safety; some BATF
agents had been wounded by grenades, and the Branch
Davidians had a pair of .50 caliber rifles.[98]
When Koresh told negotiators that he could destroy the
nine Bradley Fighting Vehicles (BFVs) that were
originally brought on-site, the BFVs were supplemented
with two M-1A1
Abrams tanks and five M278 Combat Engineering
Vehicles.[99] Once in
place, however, the tanks were used for purposes that
did not seem defensive. At various times, tanks would
charge at the building. One person (p.640)inside the
building reported that men in the vehicles were
"shooting the finger at these kids,"[100]
and in at least one case "mooned" the
Davidians.[101]
There
were numerous problems in the negotiations between the
FBI and the Branch Davidians. The FBI had no
expertise--and no interest in acquiring any
expertise--regarding the Branch Davidian religion.
Koresh was, very likely, mentally ill.[102]
The Branch Davidian negotiators and the FBI negotiators
were both often guilty of dishonesty or
disingenuousness; and while the Branch Davidians
preached at the FBI negotiators--to the extent the
negotiators would allow them--the Davidians generally
refused to provide straightforward explanations of their
religion or intentions. But of all the factors impeding
negotiations, perhaps the greatest factor--in
retrospect, the decisive factor--was the Hostage Rescue
Team. While the FBI negotiators were in a building miles
away from Mount Carmel, at Texas
State Technical College, the FBI team (the HRT) was
laying siege to the Branch Davidians. HRT sniper teams
stared at Mount Carmel, while Branch Davidian sentries
stared back. At times, the action-oriented HRT would
take action, simply because it could stand the inaction
no longer. For example, the HRT temporarily cut off the
electricity to the Mount Carmel Center--not for any
negotiating or safety purpose--but simply to boost the
morale of the tactical "people," and the rest
of law enforcement "who [were] out and cold and
away from (p.641)home."[103]
As Dr. Alan Stone (an independent reviewer of the
Justice Department report on Waco) later observed, some
of the tactical measures were mainly used "to
relieve [the action-oriented] agents' desire to
act."[104]
A
modicum of apparent conflict between negotiators and the
tactical commanders can be useful--the out-of-custody
equivalent of "good cop, bad cop"
interrogations[105]--but
the conflict between the negotiating and tactical team
was much more profound. The negotiating team found
itself having to come up with excuses for aggressive
tactical actions that the tactical team had not bothered
to tell the negotiators about. The tactical team grew
increasingly frustrated with the negotiators' allegedly
excessive patience with the Branch Davidians. The two
FBI teams were often at cross purposes.
For
example, after days of discussions, the negotiators
finally decided to send some milk in for the Branch
Davidian babies; the tactical team promptly cut off the
electricity, making it difficult to store the milk. The
electricity cut-off postponed the departure of two
Davidians whom the negotiators had convinced to make
plans to leave, but would no longer even talk about it.[106]
Shortly
after midnight on March 21, two Davidians left, and
later during the day, five more exited. The number of
people inside had declined to about 84, from a total of
about 127 on the morning of the BATF raid.[107]
The negotiators and Schneider agreed in general that it
had been a very successful day.[108]
That
same day, FBI commander Jeff Jamar and HRT leader Dick
Rogers decided to increase tactical pressure in order to
"demonstrate the authority of law
enforcement."[109]
That
evening, a loudspeaker barrage began. Among the items
blasted on the loudspeakers were the sounds of dentists'
drills, locomotives, helicopters hovering, loud
obnoxious music,[110]
Christmas songs, Tibetan Buddhist chants, previously
(p.642)recorded negotiations,[111]
squawking birds, cows mooing, clocks ticking, telephone
busy signals, and the cries of rabbits being killed.[112]
The
loudspeakers were used contrary to the negotiators'
advice, and the advice of the FBI's psychological
experts, who had warned that tactical pressure
"would succeed in shutting down negotiations and
convince Koresh and his followers that the end was
near."[113] FBI
psychologist Peter Smerick warned that tactical pressure
"might unintentionally make Koresh's vision of a
fiery end come true."[114]
Commander Jamar later evaded questions at a
Congressional hearing and from a Justice Department
investigator about who, if anyone, advised Jamar that
the increased tactical pressure would be wise.[115]
The
Davidian response was fury and dismay. Koresh said that
no more people would be coming out. In fact, only three
more persons did exit, once the increased pressure
began. Livingstone
Fagan left on March 23. The other two exits were
non-Davidians who had sneaked into the Mount Carmel
Center during the siege out of curiosity.[116]
Over
the course of the siege, FBI tank drivers destroyed a
mobile home, a dozen motorcycles, two dozen children's
go-carts (expensive presents, recently acquired),
tricycles, and bicycles; knocked out the windshield of a
bus; and flattened a pickup truck.[117]
Cars belonging to the adults were crushed by tanks, or
ripped apart with crowbars, with the windows smashed and
the tires slashed.[118]
The Hostage Rescue Team "carried away the fence
from Mount Carmel's front yard, flipped a bass fishing
boat, and overturned a bulldozer that the community had
rented--for some $3,000 per month--from a local building
supply house."[119]
Neither
destroying children's toys, nor desecrating the cemetery
of highly religious people is apt to facilitate
negotiations. Instead, the destruction undermined
(p.643)the FBI negotiators who were promising gentle
treatment for children and adults who left the compound.
The tactical team's decisions to increase pressure,
often undertaken without consulting the negotiating
team, made the efforts of the negotiating team to build
trust increasingly difficult.[120]
FBI negotiator Byron Sage later acknowledged that having
the tanks flatten the cars was a huge mistake that
dramatically changed the course of negotiations.[121]
It
is impossible to know if negotiations would have
succeeded but for the aggressive acts of the HRT, but it
is clear that the "tactical" activities played
a major role in destroying the negotiators' efforts to
create an atmosphere of trust.
V.
Groupthink
Neither
the Branch Davidians, nor the BATF, nor the FBI, were
composed of or led by stupid persons. Yet at Waco, all
of these groups made extremely bad decisions. One reason
for the high-risk, low-quality decisions of the Branch
Davidians, BATF, and FBI is what is known as
"groupthink."[122]
The term group think was created by academics in the
early 1970s, to describe how groups of intelligent
individuals could collectively make decisions much worse
than the individuals might have made if they had decided
alone. Public policy disasters which have been studied
as instances of groupthink include the Bay
of Pigs invasion during the Kennedy administration;
the Johnson administration's escalation of the Vietnam
War; the Carter administration's Iranian
hostage rescue mission; the decision of Morton
Thiokol managers to proceed with the Space
Shuttle Challenger launch in 1986 despite the
warnings of engineers, in order not to interfere with
NASA's desire for a timely launch which would help NASA
politically; and the Reagan administration's Iran-Contra
fiasco.
Many
of the factors leading to groupthink were present, on
all sides, at Waco. First, in groups which are
vulnerable to groupthink, group members tend to value
the group above everything else. The social isolation of
law enforcement officers from the non-police community
has been documented by many researchers.[123]
Unquestioning adherence to group norms is likely all the
higher in special high-prestige law enforcement groups,
such as the FBI, the HRT, or the Special Response Teams
(the BATF versions of the HRT). The Branch Davidians, of
course, explicitly saw their church as the only good
thing in a Babylonian World permeated by sin.(p.644)
Groupthinking
groups tend to have certain structural flaws:
insularity; no tradition of impartial leadership; no
norms requiring methodical decision-making; and a
homogeneous background for their members. The
militaristic HRT and SRTs, heavily drawn from
ex-military personnel, had these flaws, as did the BATF
and the FBI. While the Branch Davidians were highly
heterogeneous in terms of race, nationality, and social
background, they were intensely homogeneous in their
ideology.
Groups
likely to suffer from groupthink often overestimate
their group's morality and invulnerability, while also
stereotyping out-groups. The Branch Davidians thought
themselves the only righteous people in the world,
thought themselves invulnerable if God wanted them to be
invulnerable, and stereotyped their adversaries as the
Babylonian tools of Satan. Conversely, the FBI and BATF
stereotyped their adversaries as "cultists,"
and acted as if resistance to the armed might of the
government were inherently immoral.
Groupthink
tends to produce self-censorship among the dissenters,
as when FBI behavioral psychologist Peter Smerick
changed his memos to support the aggressive
"tactical" approach that his superiors wanted.
Groupthink
is more likely to occur in a provocative situation with
high amounts of external stress. In these situations,
groupthink is especially likely when the members of the
group have little hope for better solutions than those
proposed by the leader. The attractiveness of the Branch
Davidians' alternative to Koresh--surrendering to the
FBI--was greatly undermined by the government's
treatment of the adults and children who did surrender.[124]
Deindividuation
results in individuals becoming less self-aware, and
more inclined to go along with group decisions. Rather
than taking personal responsibility for their own
actions, de-individuated people see responsibility as
diffused, and placed on the group as a whole. The
diffusion of responsibility leads to more aggressive
behavior towards outsiders.
Some
social scientists believe that an important factor
leading to deindividuation is anonymity, and at least at
Waco, the results were consistent with this theory.
Except for Koresh, the Branch Davidians were thoroughly
anonymized. They were treated--and they acted--as if
they were just a mass of indistinguishable followers of
Koresh.(p.645)
Anonymity
is intensified when the group all wears the same
clothing. The HRT and SRT members not only wore
identical "assault" clothing, they even wore
identical tactical masks, the most anonymizing piece of
clothing possible.[125]
The individual members of SRTs never would have shot
wildly into a building containing women and children.
Nor would the HRT members, as individuals, torture
children with chemical warfare agents, or destroy
someone else's home. It was only in the context of
groupthink, of the diffusion of responsibility, that
people could collectively perpetrate atrocities they
would never perpetrate individually.[126]
Bad
decisions tend to breed more bad decisions, "the
tendency to become entrapped in a spiral of ineffective
policies."[127]
In the Iran-Contra cases, the North-McFarlane group made
more and more commitments to arm the Iranians
"because so much had been invested already and the
alleged costs of stopping would be unacceptable."[128]
At Waco, the heavy commitment to training for the BATF
raid helped create a perceived necessity to going
forward with the raid, no matter what. Once four lives
of federal agents had been lost, federal law enforcement
became entrapped into finding some way to rationalize
those four deaths, by achieving a "victory"
over the Branch Davidians. The Branch Davidians were
even more heavily invested in their previous mistakes.
Most had given up their old lives to move to the Mount
Carmel Center. Husbands and wives had given up their
marriages. To admit that Koresh was a false messiah, not
a person who was worth dying for, would be to admit that
the Branch Davidians had squandered their careers, their
families, and their earlier faiths, for nothing at
all.(p.646)
Groupthink
often leads the group to ignore risks which affect only
the stereotyped outgroup. While the BATF and the Branch
Davidians both exposed themselves, as well as their
"enemies" to high risks, the FBI's April 19
tank and chemical warfare assault was a risky decision
in which almost all the risks would be borne by the
outgroup--even though the outgroup included many
innocent children.
The
military, with all of its internal pressure for
conformity, including adherence to a "can-do"
spirit, is especially vulnerable to groupthink. The
April 19 assault was planned by the military's Delta
Force, and executed the FBI counterpart to Delta Force,
the HRT.[129] The
military during peacetime has an institutional
overeagerness to take on high-profile missions, while
underestimating the risks of failure. Quasi-military
units, such as the HRT, likewise spend long periods
sitting idle, and may be overeager to contribute their
"solution" to a high-profile problem, while
underestimating the dangers of their involvement.
How
can groupthink, and its resultant risky decisions, be
minimized? Three reforms would have been particularly
relevant at Waco, and should be implemented by
decision-makers in crises. First, every group meeting
should have a designated devil's advocate, who will
point out potential risks. Second, special care should
be taken so that no one agency or coalition of experts
can monopolize the flow of incoming information. Janet
Reno, by allowing the FBI to monopolize the information
coming to her, made it almost inevitable that she would
eventually do what the FBI wanted. Finally, the virtues
which make the military such an effective international
killing force--such as uniformity, obedience, and group
cohesion--make it especially susceptible to groupthink.
For this reason, the military should have no
participation in law enforcement; quasi-military units
such as the FBI's HRT and the BATF SRT should be
thoroughly demilitarized, and should play, at most, a
very subordinate role in law-enforcement
decision-making.
VI.
Demilitarizing Law Enforcement
Although
it might be hoped that the Ruby Ridge and Waco disasters
would prompt a cutback in federal military-style strike
forces intended for use against Americans, just the
opposite has happened.
A.
The Proliferation of Federal Paramilitary Units
The
United States Marshals Service now has a 100-man Special
(p.647)Operations Group which is "ready to go
anywhere in the world at a moment's notice." The
SOG is located at the William F. Degan Memorial Special
Operations Center in Louisiana, which is named after one
of the men involved in the senseless shootout at Ruby
Ridge, Idaho, in which non-suspect fourteen-year-old
Sammy Weaver was shot in the back as he attempted to
flee to his cabin.
Attorney
General Reno has stated that one reason for the April 19
tank and chemical warfare attack on Mount Carmel was
that the FBI Hostage Rescue Team was tired. So the HRT
is now expanded to 91 men, although there is no
indication that the Hostage Rescue Team's mission has
been narrowed to rescuing rather than holding hostages.
The only reforms are that FBI Director Freeh promises
that before the HRT is deployed in nonemergency
situations, he will make the decision personally, and
that negotiators and the HRT will henceforth be placed
under the same command.[130]
The
proliferation of BATF squads whose names imply violence
continues: Tactical Response Teams, High-Risk Warrant
Teams, Forced Entry Teams, Entry Control Teams, and
Special Response Teams (SRTs). In fiscal years 1993
through 1995, the SRTs were used 523 times, carrying out
a dynamic entry in about half of the 157 SRT
utilizations in 1995.[131]
BATF
continues to recruit the SRTs, in the words of one ex-BATF
agent, "hand-picking these superhormone guys."[132]
As Jim Jorgenson, of the National Association of
Treasury Agents points out, this means that SRTs are
composed of people who may run 300 yards and shoot
better than anyone else, but who lack the maturity and
judgment to think where they are running.[133]
Absolute discipline and adherence to orders may be
virtues in the military, but not in civilian law
enforcement. Perhaps if the three SRTs that were used in
the Waco raid included a larger share of older, slower,
and wiser agents, someone would have spoken up when the
raid commanders yelled "He knows we're coming"
and "Let's go." Rank-and-file defiance of the
order to launch a surprise attack with no element of
surprise would have saved the lives of the four BATF
agents, and of the Branch Davidians.(p.648)
BATF
has stepped up the training of its field commanders in
military tactics, under the supervision of the Army.[134]
In 1994, the Army's Joint Task Force Six oversaw BATF
training in the use of Bradley Infantry Fighting
Vehicles, including the 25mm machine guns on the BFVs.
This training was necessitated by BATF planning to use
BFVs in future operations such as Waco, to avoid
government casualties.[135]
In
1994, BATF acquired three OV-10 light attack aircraft, a
type of plane used in the Gulf War and for
counter-insurgency, which is commonly equipped with
rockets, although machine guns and chain guns can also
be attached. Twenty-two such planes had been acquired in
1993.[136] None of
the planes were registered to BATF, but at least seven
are registered to American Warbirds in Maryland. No
company named "American Warbirds" has never
acquired a license to do business in Maryland, and thus,
to the extent that American Warbirds actually exists,
its operations are a criminal misdemeanor.[137]
Aircraft title records indicate that American Warbirds
acquired the planes from Mid-Air Salvage, a company with
a New Jersey address, but which (like American War
Birds) does not exist in the Federal Aviation
Administration database. Mid-Air acquired the planes
from the federal government's General Services
Administration.[138]
It is not clear why the transfer of aircraft from the
military to the BATF needed to be laundered through two
civilian corporations.[139](p.649)
According
to BATF Director John
W. Magaw, the BATF's OV-10 aircraft have their
weapons removed. Mr. Magaw describes the OV-10's
capabilities as "reconnaissance" and
"command and control and insertion of troops."
[140] He states that
the forward-looking infrared system on the OV-10, which
can be used to identify objects at night or under poor
visibility conditions, will be used "to enhance the
safety of ATF special agents and other law enforcement
officers working to combat firearms trafficking and
other violent street crime." [141]
In 1996, Congress defunded the BATF air force.
Beginning
in 1973, the FBI set off a national trend in law
enforcement by creating a SWAT (Special Weapons and
Tactics) team. Now, every one of the FBI's fifty-six
field offices has its own SWAT team (the 400 FBI
satellite offices do not).[142]
Abandoning former Director J.
Edgar Hoover's principle that FBI agents should be
well-trained generalists, the new FBI SWAT units
specialize in confrontation, rather than investigation,
even though investigation was, after all, the very
purpose of the Federal Bureau of Investigation. Whereas
Hoover's agents wore suits, and typically had a
background in law or accounting, SWAT teams wear
camouflage or black ninja clothing, and came from a
military background.[143]
They are trained killers, not trained investigators. In
the early 1980s, an FBI super-SWAT team was invented:
the Hostage Rescue Team.[144]
Like the SWAT team, it received military training,
carried military weapons, and was composed mostly of
former military personnel. But rather than rescuing
hostages, the Hostage Rescue Team has become notorious
for two incidents in which it held hostage people who
only wanted to be left alone: at Ruby Ridge, and at
Waco.[145] "The
swashbucklers are in control," laments Iowa Senator
Charles Grassley.[146]
B.
Direct Military Intervention
In
addition to federal law enforcement agencies becoming
more militarized, (p.650)the military itself has become
increasingly involved in domestic law enforcement. On
any given day, more than five thousand troops conduct
law enforcement operations within the United States.[147]
This figure does not include the much larger number of
National Guard troops involved in law enforcement every
day.
Like
other military assets, the National Guard is something
which many state officials would like to use, but are
reluctant to pay for. They know that their constituents
may want a "drug war" in the abstract, but
they may not be willing to pay higher taxes for it. In
contrast to most state governments, the federal
governmnent has no balanced budget requirement, and thus
can spend money on all sorts of wish-list programs,
without having to pay for them.
Federal
deficit financing provides a major source of funding for
use of the National Guard in law enforcement. The huge
federal subsidies provided by the federal government to
the state National Guards are what allows Guard units to
participate heavily in the drug war.
The
National Guard has begun to lobby for even broader law
enforcement privileges. For example, in Rhode Island,
the National Guard proposed that it be allowed to share
in profits from asset forfeiture operations.[148]
As
illegal immigration has become an increasingly important
political issue, the United States Army and Marines have
been deployed along the Mexican border, to assist
federal and local border patrol. These deployments have
led to strong protests from the Mexican government, for
militarizing the border of a nation with which the
United States is at peace.[149]
The
Clinton administration is hard at work to remove the
remaining restrictions on use of the military in law
enforcement. An administration terrorism bill pushed by
the President in 1995 defined all property offenses, and
all violent crimes more serious than an assault as
"terrorism," and authorized the Army, Navy,
and Air Force to enforce "terrorism" laws.[150]
A bill proposed by Senate Majority Leader Robert Dole
did the same thing.[151](p.651)
C.
State and local militarization
The
federal government actively works to militarize local
law enforcement. For example, Mark Lonsdale, the
Director of the federal government's Special Tactical
Training Unit writes that there are various governmental
programs, including those run by the federal Drug
Enforcement Agency "available to local law
enforcement" for marijuana control. "The
thrust of this training is towards developing more of a
military approach to tactics along with the study of the
methodology of the growers."[152]
The
Navy
SEALs and Army
Rangers both conduct extensive training of
paramilitary units such as local police SWAT teams. The United
States Marshals Service and the Joint Task Forces
(e.g., JTF-6, which helped provide military training to
BATF for the Waco raid) act as liaisons between the
police departments and the military trainers.[153]
One
morning the residents of Cass Corridor (a poor
neighborhood in Detroit) were startled by the sounds of
explosives and massive gunfire. While many residents
hid, the few who dared to look outside found an
eighty-person Detroit police department practice assault
in progress on a vacant four-story building in the
neighborhood. The Deputy Police Chief in charge of the
practice assault explained that such drills are
routinely performed by police agencies in conjunction
with the U.S. Army and other federal agencies.[154]
In June 1996, two hundred soldiers from Fort Bragg
conducted urban warfare exercises in Pittsburgh and
McKeesport, Pennsylvania, in conjunction with the
Pittsburgh and Allegheny County SWAT teams. The noise
from small explosives and the low-hovering helicopters
(dropping troops practicing a nighttime invasion of an
urban area) frightened many civilians, who had no
warning of what was happening.[155]
(SWAT exercises near the Mount Carmel Center in 1992
played a major role in convincing Koresh that an attack
was imminent, and in spurring Koresh's paranoia and arms
acquisition, although the exercises had nothing to do
with him.)[156]
The
federal government's Advanced Research Projects Agency
supervises (p.652)a Joint
Program Steering Group for Operations Other than War/Law
Enforcement, which brings Defense Department and
Justice Department officials together in order to find
civilian law enforcement applications for military
technology.[157] The
United States Army Aviation & Troop Command (ATCOM)
is selling surplus OH6-A
helicopters to state and local governments for use
in drug law enforcement. Rep. Ed Royce (R-Calif.) has
proposed that Congress give states the cash with which
to buy more helicopters from the Army.[158]
As
a result of both federal and local actions, America is
moving towards the normalization of paramilitary forces
in law enforcement. For example, the police in Fresno,
California, have taken the next step towards
militarization of local law enforcement. The Fresno SWAT
team, in full battle gear, now deploys a full-time
patrol unit in the city. Deeming the SWAT patrol an
"unqualified success," the Fresno police
department "is encouraging other police agencies to
follow suit."[159]
About twenty percent of police departments in cities
over 50,000 have already put their own paramilitary
units into street police work. In many cases, funding
for street deployment of paramilitary units is funded by
"community policing" grants from the federal
government. The majority of police departments use their
paramilitary units to serve "dynamic entry"
search warrants.[160]
SWAT
teams also get deployed in missions very foreign to
ordinary police work:
The
SWAT Team in Chapel Hill, NC conducted a large-scale
crack raid of an entire block in a predominantly
African-American neighborhood. The raid, termed
"Operation Redi-Rock," resulted in the
detention and search of up to 100 people, all of whom
were African-Americans. (Whites were allowed to leave
the area.) No one was ever prosecuted for a crime.[161]
D.
The "Drug War"
The
major cause of the militarization of American law
enforcement has been the "drug war." In 1981
and 1988, Congress created massive exceptions to
(p.653)the Posse Comitatus Act, to allow use of the
armed services, including the National Guard, in drug
law enforcement.[162]
Because
of drug war exceptions created in the Posse Comitatus
Act, every region of the United States now has a Joint
Task Force staff in charge of coordinating military
involvement in domestic law enforcement. In region six,
the JTF's Operational Support Planning Guide, in the
edition current in 1993, enthused, accurately, that
"Innovative approaches to providing new and more
effective support to law enforcement agencies are
constantly sought, and legal and policy barriers to the
application of military capabilities are gradually being
eliminated." Consistent with the trend noted by the
JTF, the 1995 session of Congress saw a proposal to
create a 2,500 member federal Rapid Deployment Force for
the Attorney General to deploy at her discretion to
assist local law enforcement.[163]
The
collapse of the Soviet Union has, unfortunately, led
many military officials to seek out a new enemy to
justify continued funding. Often, that new military
enemy turns out to be American citizens. The North
American Aerospace Defense Command (NORAD) admits that
it is no longer capable of protecting Americans from
incoming nuclear missiles. Yet NORAD enjoys hundreds of
millions of dollars in annual funding, as part of a 1.8
billion dollar systems upgrade, having convinced
Congress to assign NORAD the mission of tracking planes
and ships that might be carrying drugs.[164]
Many
other federal military programs have hitched themselves
to the anti-drug bandwagon. For example, when President
Clinton in April 1996 requested 250 million dollars in
extra funding for anti-drug programs, over half that
money was earmarked for the military.[165]
The
results of such programs are evident not only at Waco,
but in Puerto Rico. There, the National Guard provides a
large part of the manpower and the heavy military
equipment for police-Guard assaults on public housing
apartments.[166](p.654)
In
1987, the Secretary of Defense and the Attorney General
were ordered to provide annual briefings to local law
enforcement about available Department of Defense
assistance, to set up a special office to assist
civilian law enforcement, and even to provide a
toll-free number for law enforcement inquiries.[167]
In 1993, Congress ordered the Department of Defense to
sell military surplus to state and local law enforcement
for use in counter-drug activities.[168]
Many
"Patriot" organizations are comprised of
members who are have been terrified by the appearance of
unmarked black helicopters over nearby rural property.
These helicopters (which are actually a very dark green)
have played a major role in intensifying fear of the
federal government. The helicopters are not from the
United Nations, but are part of the National Guard's marijuana
eradication program. They are flying over rural
property as a result of 1981 and 1989 Congressional
amendments which created a partial drug exception to the
Posse Comitatus Act. In conjunction with the Supreme
Court decision in Oliver v. United States,[169]
which allows law enforcement officials to trespass on
"open fields" without probable cause or a
search warrant--even when the owner has taken all
possible steps to exclude trespassers--many rural areas
are subjected to low-level overflights and landings of
dark helicopters carrying men in military uniforms with
automatic weapons. Who would not be frightened by the
sudden invasion of an unmarked helicopter and men with
machine guns on private property?
Every
fall, Humboldt County, California, is invaded by
National Guard forces, as part of the Campaign Against
Marijuana Production (CAMP). In a typical year, 100
harassment complaints are logged against airborne and
ground activities of CAMP personnel.[170]
Tanks,
helicopters, and men pointing automatic rifles at
children have no place in a free society. Neither the
push to make America a drug-free society nor desire to
"do something" about terrorism should be
accomplished at the expense of losing our
freedom.(p.655)
The
incentives for lawless violence and militarization do
not come entirely from law enforcement itself. As
sociologist Phillip Jenkins observes, "Media images
can also frame the expectation and behavior of
individual agents and administrators...."[171]
Sensationalistic "reality television" shows
which glorify violent, illegal police conduct play a
role in legitimating violence in the mind of law
enforcement officers who watch such programs[172]
--movies such as Dirty
Harry, Lethal Weapon,
and many others.[173]
Another
cause is the use of military rhetoric by politicians.
Political talk about a "war on drugs" or a
"war on crime" confuses the objectives and
methods of war (destroying a foreign military force, and
not worrying about proper procedure) with law
enforcement in a free society, involving suspects who
are American citizens, and entitled to the full
protection of the Bill of Rights. As New York University
law professor Paul
Chevigny explains:
Armies
are organized and trained for killing an enemy,
usually more or less well-defined, and not for service
and law-enforcement among a civilian population to
which they themselves belong, in situations for which
they have to make fine-grained legal and social
distinctions about what action is required....
[T]he
results of ["war on crime" rhetoric] distort
and poison police relations with citizens. The police
think of themselves as an occupying army, and the
public comes to think the same. The police lose the
connection with the public which is a principal
advantage to local policing, and their job becomes
progressively more difficult, while they become more
unpopular.[174]
One
can be in favor of drugs being illegal, and still oppose
"the war on drugs," just as one can want food
stamp fraud to be illegal without wanting a "war on
welfare cheaters," because to have "a
war" is to make it likely that the military will
become involved. As Police Studies professor Peter B.
Kraska writes:
[T]he
militaristic nature of the discourse on crime and drug
(p.656)control--wars on crime and wars on
drugs--constitutes more than ineffectual
media/political rhetoric. Filtering solutions to the
complex social p
