Thomas Fiddleman / David Kopel Unsettling questions in probe of Waco What motivated the ra

  Thomas Fiddleman / David Kopel
  Unsettling questions in probe of Waco
  What motivated the raid?

  [From The Washington Times, Tuesday, June 1, 1993. p. E3]

  Congressional investigators studying the mass murder in Waco, Texas,
  have correctly decided it is more important, for long-term public
  safety, to find out why the siege began than to keep on
  second-guessing its end.  Why was the federal Bureau of Alcohol,
  Tobacco and Firearms assaulting the Branch Davidians in the first
  place?
     It is increasingly clear that the original federal raid on the
  compound never should have occurred, because the BATF's application to
  search the premises was far below legal standards.
     The warrant to search the Branch Davidian compound near Waco was
  procured on the basis of an affidavit from an inexperienced special
  agent with the BATF, Davy Aguilera.  The affidavit was approved by a
  U.S. magistrate who was a former prosecutor.  The affidavit, kept
  secret during the siege, now has been released.  Review of the
  affidavit shows that it failed to establish probable cause.
     Some parts of the affidavit were patently false.  For example,
  Agent Aguilera told the federal magistrate that Mr. Koresh had
  possession of a "clandestine" firearms publication.  
     The "clandestine" publication was Shotgun News, a national
  newspaper that carries want-ads by gun retailers and wholesalers.  The
  newspaper is sold at newsstands all over the country, and to tens of
  thousands of subscribers.  With a circulation of more than 150,000, it
  is no more clandestine than the New Republic.
     Other errors in the affidavit apparently came from the BATF's and
  the magistrate's ignorance of federal gun laws.  Although Agent
  Aguilera asserted that he knew about federal firearms laws, he
  confused the definitions of "machine gun," "destructive device,"
  "explosive," and "explosive device."  All four terms have very
  specific meanings under federal weapons laws, and different rules
  apply to different items.  The magistrate failed to notice.
     Mr. Koresh's group had, according to the BATF affidavit, AK-47
  rifles.  The affidavit detailed how an undercover agent had observed
  the upper and lower receivers of disassembled AK-47s.  (The receiver
  is the housing for a gun's working parts).  But in truth, the
  informant could not have seen what he claimed.  The AK-47 has a
  unitary receiver, not separate upper and lower receivers.

     Mr. Aguilera asserted that a neighbor heard machine-gun fire; but
  Mr. Aguilera failed to tell the magistrate that the same neighbor had
  previously reported the noise to the sheriff.  The sheriff found that
  Mr. Koresh had a lawful item called a "hell fire device", which
  simulates the sound of machine-gun fire but does not turn a regular
  gun into a machine gun.
     All other allegations that Mr. Koresh owned machine guns were made
  by persons who were clearly ignorant of firearms and could not
  reliably testify to whether the guns, or the pictures of guns, they
  saw were legal semiautomatic firearms or illegal machine guns.

     Amazingly, the magistrate apparently failed to notice that Mr.
  Aguilera had sworn that his informants were knowledgeable or reliable.
     The only legal violation that the BATF actually alleged was that
  the Davidians possessed machine guns without having paid the required
  $200 federal tax.  Other than statements from people who knew
  virtually nothing about guns, the only evidence that the BATF offered
  was proof that the Davidians had bought spare parts for guns.  The
  spare parts were usable for both legal semiautomatic rifles and
  illegal machine guns; the Davidians violated no laws by purchasing
  them.

     Why did the BATF think Mr. Koresh was going to be violent, thereby
  justifying its perpetrating an armed assault to present a simple
  search warrant?  The affidavit contained an allegation that Mr. Koresh
  had told a social worker that he was a messenger of God and that, when
  the time came, the violence in Waco would make the Los Angeles Riots
  pale in comparison.  The statement, however, was supposedly made on
  April 6, 1992 -- 3 1/2 weeks the LA riots began.  Apparently someone
  lied about Mr. Koresh's "threat", and the magistrate didn't notice.

     BATF director Stephen Higgins testified to Congress that as of
  December 1992, there was not probable cause to justify the arrest and
  search.  What happened between December and late February to establish
  probable cause?  In January, BATF agents merely reconfirmed statements
  made in 1992, or investigated witnesses who hadn't been in the
  compound for several months, so the information was legally "stale".
     What about February?  An undercover agent told of a meeting with
  Mr. Koresh, at which Mr. Koresh read the Bible, played the guitar,
  voiced support for the right to keep and bear arms, called federal gun
  laws stupid, and showed a videotape in which the BATF was accused of
  using lies and threats to take away the rights of gun owners.  Which
  of these actions established probable cause for an armed BATF raid?

     The most important protections of the sanctity of every American's
  home are the good judgment and reliability of teh law enforcement
  community and a judiciary that carefully scrutinizes law enforcement
  claims.  All of these protections were absent when the BATF asked a
  federal magistrate in Texas for permission to raid the Branch Davidians.

  ===
  Theodore Fiddleman is a free-lance writer.  David B. Kopel is director
  of the Firearms research Project at the Independence Institute in
  Denver and an associate policy analyst of the Cato Institute.


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