User:Naaman Brown/Letters on Waco and Ruby Ridge
Joint Letters to Federal Authorities on the Waco and Ruby Ridge Sieges
[edit]Joint Letter From a Coalition of Diverse Organizations to President William J. Clinton, January 10, 1994, from:
- Ira Glasser, American Civil Liberties Union
- John Snyder, Citizens' Committee for the Right to Keep and Bear Arms
- Eric Sterling, The Criminal Justice Policy Foundation
- Arnold S. Trebach, Drug Policy Foundation
- David Kopel, Independence Institute
- James Grew, International Association for Civilian Oversight of Law Enforcement
- John Henry Hingson III, National Association of Criminal Defense Lawyers
- Mary Broderick, National Legal Aid and Defender Association
- James J. Baker, National Rifle Association Institute for Legislative Affairs
- Alan Gottlieb, Second Amendment Foundation
Joint Letter From a Coalition of Diverse Organizations
to Henry J. Hyde, Chairman, and John Conyers, Jr., Ranking Member,
of the House Committee on the Judiciary, October 24, 1995,
from:
- Ira Glasser, American Civil Liberties Union
- Laura W. Murphy, American Civil Liberties Union
- Malcolm Wallop, Frontiers of Freedom
- Tanya K. Metaksa, National Rifle Association Institute for Legislative Action
- Gerald H. Goldstein, National Association of Criminal Defense Lawyers
- William B. Moffitt, National Association of Criminal Defense Lawyers
- David B. Kopel, Independence Institute
- John M. Snyder, Citizens Committee for the Right to Keep and Bear Arms
- Erich Pratt, Gun Owners of America
- Eric E. Sterling, The Criminal Justice Policy Foundation
- Nancy Ross, Ross and Green
- Joseph P. Tartaro, Second Amendment Foundation
- James X. Dempsey, Center for National Security Studies
- Mark Gissiner, International Association for Civilian Oversight of Law Enforcement
- Ronald E. Hampton, National Black Police Association
- Conrad Martin, Fund for Constitutional Government
- David C. Condliffe, The Drug Policy Foundation
Joint Letter From a Coalition of Diverse Organizations
to President William J. Clinton, January 10, 1994.
[edit]A Joint Letter From a Coalition of Diverse Organizations
On The Issue of Government Violence and
The Need for a National Oversight Commission
January 10, 1994
President William J. Clinton
The White House
1600 Pennsylvania Ave.
Washington, D.C. 20500
Dear Mr. President:
We are writing to you to urge you to appoint a national
commission to review the policies and practices of all federal
law enforcement agencies and to make recommendations regarding
steps that must be taken to ensure that such agencies comply with
the law. This review is necessitated by widespread abuses of
civil liberties and human rights committed by these agencies and
their failure to undertake meaningful and ameliorative reforms.
Federal police officers now comprise close to 10 percent of
the nation's total law enforcement force. Today, some fifty-
three separate federal agencies have the authority to carry
firearms and make arrests. This represents an enormous expansion
in recent years in terms of both personnel and jurisdiction.
What has led to numerous cases of serious abuse -- some well-
publicized and some relatively unknown -- in which the following
problems have been evident:
-- improper use of deadly force;
-- physical and verbal abuse;
-- use of para-military and strike force units or
tactics without justification;
-- use of "no knock" entrances without justification;
-- inadequate investigation of allegations of
misconduct;
-- use of unreliable informants without sufficient
verification of their allegations;
-- use of "contingency payments" to informants,
giving them an incentive to fabricate information
since payment is usually contingent upon a
conviction;
-- entrapment;
-- unnecessary inducement of criminal activities as
an investigative technique;
-- inappropriate and disproportionate use of
forfeiture proceedings to obtain financing for law
enforcement equipment and activities;
-- use of military units and equipment in the course
of domestic law enforcement;
-- pretextual use of immigration laws and Immigration
and Naturalization Service personnel for non-
immigration law enforcement.
There is a precedent for the appointment of a national
commission to look into such abuses. In 1929, after a decade of
corruption and lawlessness in federal law enforcement, President
Hoover appointed the eleven-member National Commission on Law
Observance and Enforcement under the chairmanship of George
Wickersham, a former U.S. Attorney General. The 1931 Wickersham
Commission Report, "Lawlessness in Law Enforcement," exposed a
pattern of pervasive police brutality and helped stimulate major
reforms in federal law enforcement practices.
We propose the appointment of a national commission similar
to the Wickersham Commission: an independent body, appointed by
the President, and staffed by some of the nation's most prominent
experts on law enforcement. Such a commission would be charged
with reviewing the problematic federal law enforcement policies
and practices noted above. These problems are graphically
illustrated by the following cases, among many others, that have
come to our attention:
DONALD CARLSON
On August 25, 1992 at about 10:30 p.m., Donald Carlson
returned to his home in Poway, California, opened his garage door
with a remote control device, simultaneously illuminating the
garage so that Drug Enforcement Administration agents conducting
surveillance from nearby could see inside. Just after midnight,
when Carlson was asleep, a group of DEA agents burst into his
home. Thinking they were robbers, Carlson grabbed his pistol to
defend himself. He also dialed 911 for help. The agents shot
Carlson three times, twice after he was down and clearly
disabled. Carlson spent seven weeks in intensive care, fighting
for his life. No drugs were found on the premises.
It was later learned that the Federal Customs Service, the
DEA and the U.S. Attorney's Office in San Diego had relied on an
informant who was known to be untrustworthy and who claimed
Carlson's garage contained 2,500 kilograms of cocaine (a large
amount which would have taken up most of the garage) and four
armed guards. The agents conducted the raid in spite of the fact
they could see the informant's information was erroneous.
As of this writing, none of the federal agents involved in
the incident have been sanctioned, nor has Mr. Carlson been
compensated for his injuries.
SINA BRUSH
Just after dawn on September 5, 1991 some sixty agents from
the DEA, U.S. Forest Service, Bureau of Alcohol, Tobacco and
Firearms (BATF), and National Guard, complete with painted faces
and camouflage and accompanied by another twenty or more National
Guard troops with a lighted armored vehicle, raided the homes of
Sina Brush and two of her neighbors near Montainair, New Mexico.
Brush and her daughter were still asleep. Hearing noises
outside, Ms. Brush got up and was only halfway across the room
when the door was kicked in by agents. Clad only in their
underwear, Ms. Brush and her daughter were handcuffed and forced
to kneel in the middle of the room while the agents searched the
house. No drugs were found. Just as in the Carlson case, the
police had obtained a warrant using information furnished by an
unreliable informant and had entered Brush's home without
knocking first.
DONALD SCOTT
On October 2, 1992 DEA agents and the Los Angeles Sheriff's
Department staged a raid on the Scott ranch in the Santa Monica
Mountains near Malibu, California. When Scott emerged carrying a
gun, a deputy sheriff shot and killed him. Although the agents
claimed they were searching for marijuana plants, none were
found. The Border Patrol, which had participated in the
investigative work leading up to the raid, later claimed they
were looking for undocumented aliens. None were found.
An independent investigation by the Ventura County District
Attorney's Office concluded that the Sheriff's Department was
motivated, in part, by a desire to seize and forfeit Scott's
ranch. The investigation also questioned the DEA's claim that
marijuana was observed through aerial surveillance.
BUREAU OF INDIAN AFFAIRS POLICE
In the fall of 1993, the Associated Press reviewed 17
complaints of brutality filed in six Western reservations against
the Bureau of Indian Affairs Police. They included complaints of
choking, improper use of mace, and broken limbs. After this six
month investigation the AP found that "BIA police officers
routinely use force when arresting suspects and are rarely
disciplined for assaulting them."
In another case which occurred in 1991, Milton Trosper, an
Arapaho Indian, was seriously injured by BIA police who broke his
arm during an incident on the Wind River Indian Reservation in
Wyoming. Charges of disorderly conduct and resisting arrest
against Trosper were dropped by the Shoshone and Arapaho Tribal
Court, and in 1993 Trosper's civil suit against the government
was settled for damages.
According to the Civil Rights Division of the U.S. Justice
Department, although the BIA, with only 412 officers, is the
smallest federal police force, it engenders the second highest
number of complaints of misconduct. The BIA has no internal
affairs unit and no complaint procedure.
IMMIGRATION LAW ENFORCEMENT OFFICERS
The Justice Department receives the largest number of
complaints of federal police misconduct against Immigration and
Naturalization Service (INS) agents, particularly Border Patrol
Officers. A 1992 report by Americas Watch, entitled "Brutality
Unchecked," documented "appalling" levels of misconduct in which
"(b)eatings, rough physical treatment, and racially motivated
verbal abuse are routine." Acts of abuse included unjustified
shootings, torture and sexual abuse. In a second report issued
in May 1993, Americas Watch found that "the abuses continue and
current mechanisms intended to curtail abuses and discipline
officers are woefully inadequate."
THE BRANCH DAVIDIANS
Last year's tragic confrontation between the Branch
Davidians and federal agents has been reviewed by both the
Treasury and Justice Departments. While these reviews find fault
with the planning and execution of the government's attack on the
Waco compound, they both accept the notion that armed
confrontation was unavoidable. This is in spite of the fact that
several independent experts who participated in the reviews
seriously questioned the assault's inevitability.
For example, Alan Stone, a Harvard Professor of Psychiatry
and Law, disagreed with "the view within the FBI and in the
official reports that suggests the tragedy was unavoidable." In
his report, he noted that the FBI's own behavioral experts on the
scene advised against the use of "all-out psycho-physiological
warfare" and the abandonment of "any serious effort to reach a
negotiated solution." But the FBI ignored this advice, and
launched a paramilitary attack that jeopardized the lives of the
very children whose health and safety it claimed it wanted to
protect. In particular, Professor Stone criticized the use of
toxic levels of CS gas over a period of 48-hours in a building
occupied by so many children. As Professor Stone writes, "The
question is: did a `military' mentality overtake the FBI?"
Another independent expert, Professor Nancy Ammerman of
Princeton University, pointed out in her report that the FBI did
not consult "a single...expert on the Branch Davidians or on
other marginal religious movements..." She also noted that the
psychological warfare tactics employed by the FBI, including the
sounds of dying rabbits, the use of flood lights, and helicopters
hovering overhead, were not favored by the Bureau's own
Behavioral Science Services Unit. In fact the Unit advised that
the "ever increasing tactical presence...could eventually be
counter productive and could result in loss of life."
A third independent expert, New York University Professor of
Psychiatry Robert Cancro, questioned whether the military model
used by the federal agents for the assault was "an appropriate
model for dealing with a group such as the Branch Davidians."
At this time it is not clear that the reviews conducted by
the Treasury and Justice Departments will lead to any meaningful
charges in the way the FBI or Bureau of Alcohol, Tobacco and
Firearms (BATF) will handle such situations in the future.
RANDY WEAVER
Randy Weaver became a fugitive in 1992 after the BATF tried
to compel him to infiltrate a neo-Nazi organization. BATF agents
originally targeted white separatist Weaver, a veteran with no
criminal record, because they erroneously believed him to be a
member of the organization. A BATF informer convinced Weaver to
saw off two shotguns and then sell them to him. The BATF then
told Weaver he would be indicted on the gun charge unless he
served as a government informant. After receiving inconsistent
information concerning his trial date from the court clerk, and
fearful that the government intended to harm his family, Weaver
failed to appear in court, remaining with his family in his
isolated mountain cabin in Idaho.
The U.S. Marshal's Service attempted to apprehend Weaver.
In August 1992 the Weaver's dog began to bark at six camouflaged
marshals in the vicinity of the cabin who were carrying fully
automatic assault weapons. When Weaver's fourteen-year-old son
went to investigate, the marshals shot the dog. In an exchange
of gun fire, Weaver's son was shot in the back and killed, and a
deputy marshal was killed.
The FBI Hostage Rescue Team arrived the following day and
issued extraordinary orders to its agents to shoot any armed
adult on sight whether or not he posed an immediate danger. No
attempt was made to talk with Weaver. When Weaver, his teenage
daughter and a friend went from their cabin to an outbuilding
where the son's body lay, an FBI sharpshooter opened fire,
killing Weaver's wife as she stood in the cabin doorway holding
her 10-month-old daughter. Nine days later, Weaver and his
friend, Kevin Harris, surrendered and were charged with the
murder of the U.S. Marshal and criminal conspiracy.
Ultimately, a federal jury acquitted Weaver and Harris of
all charges, except for Weaver's failure to appear for trial on
the original gun charges. Judge Edward J. Lodge fined the FBI,
charging that the Bureau's conduct had "served to obstruct the
administration of justice" and that "(t)he actions of the
Government, acting through the FBI evidence a callous disregard
for the rights of the defendants and the interests of justice."
We recognize that the majority of federal officers strive,
often under dangerous and demanding circumstances, to carry out
their duties in a restrained, lawful and professional manner.
But the cases described above demonstrate the need for leadership
and accountability in order to prevent future incidents of abuse.
Therefore, we urge you to appoint a national commission
composed of law enforcement experts, constitutional scholars,
criminal defense lawyers and prosecutors, judges, representatives
of federal law enforcement professional and labor organizations,
and representatives of organizations that monitor police
practices. Several of the undersigned organizations can provide
you with the names of potential commission members for your
consideration.
For more than fifty years the federal government has
provided leadership, training and resources in the ongoing effort
to improve the nation's system of law enforcement. The creation
of a high level national commission will contribute greatly to
the continued improvement of federal police agencies by helping
to ensure that federal police not only enforce the law in an
effective, humane and constitutional manner, but that they also
serve as models for local and state law enforcement agencies.
Sincerely,
Ira Glasser
Executive Director
American Civil Liberties Union
132 West 43rd Street
New York, New York 10036
John Snyder
Public Affairs Director
Citizens' Committee for the Right to Keep and Bear Arms
600 Pennsylvania Avenue, SE
Washington, D.C. 20003
Eric Sterling
President
The Criminal Justice Policy Foundation
1899 L Street, NW, Suite 500
Washington, D.C. 20036
Arnold S. Trebach
President
Drug Policy Foundation
4455 Connecticut Ave., NW
Suite B-500
Washington, D.C. 20008
David Kopel
Research Director
Independence Institute
14142 Denver West Parkway, Suite 101
Golden, Colorado 80401
James Grew
President
International Association for Civilian Oversight of Law
Enforcement
P.O. Box 99431
Cleveland, Ohio 44199-0431
John Henry Hingson III
President
National Association of Criminal Defense Lawyers
1627 K Street, NW, 12th Floor
Washington, D.C. 20006
Mary Broderick
Director, Defender Division
National Legal Aid and Defender Association
1625 K Street, NW, Suite 800
Washington, D.C. 20006
James J. Baker
Executive Director
National Rifle Association Institute for Legislative Affairs
11250 Waples Mill Road
Fairfax, Virginia 22030
Alan Gottlieb
Founder
Second Amendment Foundation
12500 NE 10th Place
Bellevue, Washington 98005
Joint Letter From a Coalition of Diverse Organizations
to Henry J. Hyde, Chairman, and John Conyers, Jr., Ranking Member,
of the House Committee on the Judiciary, October 24, 1995.
[edit] Date: October 24, 1995
Subject: Necessary Federal Law Enforcement Reforms
-- Some Lessons from Waco and Ruby Ridge
To:
Honorable Henry J. Hyde Honorable John Conyers, Jr.
Chairman Ranking Member
Committee on the Judiciary Committee on the Judiciary
2138 Rayburn House Office Building B-351C Rayburn House Office Building
Washington, D.C. 20515 Washington, D.C. 20515
From:
American Civil Liberties Union Gun Owners of America
Washington National Office 8001 Forbes Place, Suite 102
122 Maryland Avenue, NE Springfield, VA 22151
Washington, DC 20002 (703) 321-8585 / (703) 321-8408 fax
(202) 544-1681 / (202) 546-0738 fax
International Association for Civilian
Center for National Security Studies Oversight of Law Enforcement
701 Gelman Library, 2130 H Street, NW Room 132, 801 Plum Street
Washington, DC 20037 Cincinnati, OH 45202
(202) 994-7060 / (202) 994-7005 fax (513) 352-3251 / (513) 352-5319 fax
Citizens Committee for the Right National Association of Criminal
to Keep and Bear Arms Defense Lawyers
600 Pennsylvania Avenue, SE, Suite 205 1627 K Street, NW, Suite 1200
Washington, DC 20003 Washington, DC 20006
(202) 543-3363 / (202) 546-2462 fax (202) 872-8688 / (202) 331-8269 fax
The Criminal Justice Policy Foundation National Black Police Association
1899 L Street, NW, Suite 500 3251 Mount Pleasant Street, NW
Washington, DC 20036 Washington, DC 20010
(202) 835-9075 / (202) 833-8561 fax (202) 986-2070 / (202) 986-0410 fax
The Drug Policy Foundation National Rifle Association
4455 Connecticut Avenue, NW, Suite B-50C Institute for Legislative Action
Washington, DC 20008 11250 Waples Mill Road
(202) 537-5005 / (202) 537-3007 fax Fairfax, VA 22030
(703) 267-1140 / (703) 267-3973 fax
Frontiers of Freedom
1735 North Lynn Street, Suite 1050 Ross and Green
Arlington, VA 22209 1010 Vermont Avenue, NW, Suite 811
(703) 527- 8282 / (703) 527-8388 fax Washington, DC 20005
(202) 638-4858 / (202) 638-4857 fax
Fund for Constitutional Government
122 Maryland Avenue, NE Second Amendment Foundation
Washington, DC 20002 267 Lindwood Avenue
(202) 546-3799 / (202) 543-3156 fax Buffalo, NY 14209
(716) 885-6408 / (716) 8844471 fax
Dear Representatives Hyde and Conyers:
We represent a diverse group of organizations that
frequently disagree on a number of policy issues. We are united,
however, in the depth of our concern about the need for
consistent oversight of federal law enforcement practices and
remedies for abuses of power.
In January 1994, many of us wrote to President Clinton
urging him to appoint a national commission to review the
policies and practices of all federal law enforcement agencies
and to make recommendations regarding steps that should be taken
to ensure that such agencies comply with the law. We told the
President that there was evidence of significant abuses of civil
liberties and human rights by these agencies. We listed general
areas of concern, and we cited specific examples of abuse. A copy
of the letter is enclosed so that you may review our original
concerns.
Recent Congressional hearings on the Waco and Ruby Ridge
tragedies and the controversy surrounding them further highlight
the need for consistent and strong oversight of federal law
enforcement practices. Accordingly, we set forth below a
description of those issues that have become the focus of
questions regarding abusive federal law enforcement practices.
_Execution of Search Warrants and "Dynamic Entry"[1] _
Generally, law enforcement officers are authorized to use
the "dynamic entry" method to execute a search warrant in two
circumstances: (1) when the warrant explicitly authorizes "no
knock" entry, and (2) when the officers(s) have knocked and
announced themselves, and been refused entry. The use of this
method must be judicious, as it is likely to precipitate a
confrontation. It is to be used only in exigent circumstances,
judged on a case-by-case basis.
Serious questions have been raised regarding whether the use
of the "dynamic entry" during the Waco incident met the standards
set out above. In order to assure that these standards are met
prospectively, it is imperative that Congress take steps to
encourage the following reforms:
1. The Attorney General, pursuant to her authority under
Executive Order 11396, February 7, 1968, should establish clear
and uniform guidelines for all federal law enforcement functions,
regardless of department, in the execution of search warrants and
the use of "dynamic entry," restricting the use of such entry to
only the most exigent of circumstances.
2. Proposals for use of "dynamic entry" should be subject to
high-level review and approval on a case-by-case basis to assure
that the "dynamic entry," whether or not pursuant to a warrant is
necessary and lawful and that the risk of loss of life is
minimized.
3. U.S. Attorneys should be required to review and approve
applications for warrants.
4. There should be appropriate penalties for federal law
enforcement agents who file untruthful, misleading, or unlawful
applications for warrants.
5. The use of hearsay in an affidavit seeking a warrant
should be permitted only if the actual witnesses are unavailable
because of death or incapacity.
6. Warrant affiants should be required to note exculpatory
evidence in their warrant applications.
7. There should be a limit on the period of time for which
warrants, affidavits, and related items can be sealed prior to
and after service, with limited periodic review if extensions are
shown necessary.
8. Congress should establish standards for a very high
degree of supervision of "informant" activity and guidelines for
verifying informant claims when agents rely upon such claims for
the issuance of warrants or as the basis for other enforcement
operations.
9. The inherently corrosive government practice of paying
informants on a "contingency" basis, with payments for their
"information" contingent upon arrest or conviction, should be
ended.
II. _Other Fourth Amendment Concerns_
Ironically, even as members of the House Committees
conducting oversight of the Waco raid were expressing deep
concern about alleged civil liberties abuses at Waco, the House
of Representatives adopted and the Senate had under consideration
legislative measures to expand the unchecked powers of federal
law enforcement officers. (H.R. 666; S.3, 507)
The United States Supreme Court has weakened the
exclusionary rule by holding that evidence seized pursuant to a
defective external source of authority (e.g., defective warrants,
faulty court records, limited or unconstitutional state statutes)
could be used. The Court has nonetheless consistently held that
the exclusionary rule is the only effective means of reining in
unbridled law enforcement and deterring Fourth Amendment
violations, and that the exclusionary rule is therefore
constitutionally required. (See, for example, the Court's opinion
in Arizona v. Evans, 514 U.S. --, 131 L.Ed.2d 34, 115 S.Ct. --
(March 1, 1995).) The exclusionary rule generally forbids the
government from using evidence that is obtained in violation of
the Constitution.
In a time of increasingly sophisticated and more intrusive
electronic surveillance, rather than providing less protection
for the rights of citizens, Congress should be ensuring greater
safeguards. Congress should certainly preserve, and indeed
strengthen, the exclusionary rule to safeguard citizen rights and
curb police misconduct.
As Supreme Court Justice Brandeis said: "[I]t
is...immaterial that [a Fourth Amendment violative] intrusion was
in aid of law enforcement. Experience should teach us to be most
on our guard to protect liberty when the Government's purposes
are beneficent....The greatest dangers to liberty lurk in
insidious encroachment by men of zeal, well meaning but without
understanding." Justice Scalia recently quoted these words in
stressing the importance of maintaining Fourth Amendment
standards against government claims of "benevolent purposes."
National Treasury Employees Union v. Von Raab, 489 U.S. 656, 687
(1989)(Scalia, J.). Congress should heed this warning against
weakening Fourth Amendment protections.
H.R. 666, the Exclusionary Rule Reform Act of 1995
(introduced by Congressman McCollum) was adopted by the House of
Representatives in February 1995. This legislation would expand
police powers beyond those conferred by the Supreme Court's
decision in United States v. Leon, 468 U.S. 897 (1984), which
created a "good faith" exception to the exclusionary
rule for illegal searches and seizures based on a flawed warrant.
H.R. 666 would codify a "good faith" exception to the
exclusionary rule for all types of warrantless searches and
seizures -- effectively removing the only check on excessive uses
of the search and seizure power of the police. The adoption of
amendments in the House of Representatives that would exclude the
ATF and the Internal Revenue Service from this invitation to
abuse does not make the legislation acceptable. The rights of
citizens will continue to be vulnerable to abuses from the 100+
federal law enforcement agencies not excluded by the amendment.
Pending "counter-terrorism" bills will encourage additional
violations of individual rights by expanding the circumstances
under which wiretapping may be initiated and by expanding the
circumstances under which prior court orders are not required.
Under the pending bills, the authority of federal agents to
deploy "roving" electronic surveillance for suspected federal
felonies will also be substantially expanded beyond those limited
circumstances specified under current law. Moreover, these bills
would allow prosecutors to use evidence gathered illegally and
without a warrant so long as police could convince the trial
judge that their illegal acts were not committed in "bad faith."
Federal agents already have adequate legal authority and a full
range of surveillance techniques necessary to combat terrorism.
For these reasons, among others, the pending "counter-terrorism"
bills should be rejected.
_Necessary Reforms_
1. Congress should take no action to codify or expand the
"good faith" exception to the exclusionary rule, and H.R. 666
should be rejected by the Senate.
2. Pending "counter-terrorism" bills, expanding the
government' s ability to electronically surveil individuals and
groups and use evidence obtained through illegal wiretaps, must
be rejected by Congress.
3. Section 507 of S. 3, seeking to do away with the
exclusionary rule altogether, must be rejected.
4. The Supreme Court's 1984 Leon decision should be
legislatively overturned by a Congress now sensitized to the
potential for police abuse.
III. _Prosecutorial Misconduct_
Federal prosecutors have a constitutional obligation to reveal
exculpatory information to the defense. Questions have been
raised about serious breaches of this obligation by federal
prosecutors in the Waco case. For example, the Waco hearings in
the House revealed that ATF agents were instructed by prosecutors
to stop their routine shooting review for fear that exculpatory
material would be generated that would have to be disclosed to
the accused Branch Davidians.[2] We are even more concerned by the
suggestion, contained in a memorandum from Assistant Attorney General
Harris, that this practice may be widespread. The Harris memorandum
states that the instructions given in the Waco case to the
Treasury Department were "prosecution 101."
Finally, we are troubled by the fact that the Department of
Justice (DOJ) has promulgated a federal regulation purporting to
allow it unilaterally to exempt its lawyers from certain state
and local court rules of ethics governing all other lawyers. 28
C.F.R., Part 77.[3]
_Necessary Reforms_
1. Congress should establish an open discovery process for
federal criminal litigation unless a neutral and detached
judicial officer finds that a compelling reason has been
established that such government disclosure to the defendant is
impossible or too dangerous in a particular case. (This
disclosure obligation on the government should not be imposed on
the defense, as the two sides are not similarly situated in a
criminal case; such would subvert the presumption of innocence
and Fifth Amendment protections of the citizen accused; and it is
the government that has the overwhelming and frequently the sole
investigatory resources in a criminal proceeding.)
2. The Department of Justice must ensure that federal
prosecutors adhere to constitutional and ethical obligations. The
Department must also strengthen its disciplinary programs to
punish prosecutors who conceal any relevant evidence (including
any evidence of perjury) in violation of the law, court orders,
and the rules of professional responsibility.
3. Pending S. 3, Section 502, seeks to amend the United
States Code by expanding the already unfair, probably
unconstitutional DOJ "regulation" (discussed at footnote 3 above)
by empowering the Attorney General to "opt out" her lawyers from
all rules of legal ethics at her sole, unreviewable discretion.
Congress should reject S. 3, Section 502, and overrule the
Justice Department Regulation.
IV. _The Use of Consultants and Experts by Federal Law
Enforcement Agencies_
Concerns have been raised that law enforcement officials in
the Waco case failed to grasp that they were dealing with a
highly committed ideological and religious group rather than with
a typical hostage situation. Although religious or ideological
groups are not immune from legitimate law enforcement, there is a
need to avoid the risk of abuse that can easily result from
demonizing minority groups or relying on prejudicial stereotypes.
_Necessary Reforms_
1. When confronted with crisis situations involving groups
with religious or ideological convictions, the Attorney General
should be certain that law enforcement has sought the expertise
of a cross-section of qualified scholars. In cases dealing with
religious groups, such as at Waco, law enforcement should seek
the expertise of qualified scholars on religion.
2. Guidelines should be promulgated to eliminate religious
or other viewpoint bias in federal law enforcement investigations
and practices, including public affairs announcements and other
comments before and during trial.
V. _The Use of Lethal Force_
Serious questions have been raised during the hearings on
the Ruby Ridge incident regarding the use of deadly force. There
is certainly a need for clarification -- and likely tightening --
of the rules of deadly force by federal law enforcement officers.
For example, the FBI's interpretation and application of the
standard rules of deadly force at Ruby Ridge, even disregarding
the ad hoc rewriting of those rules that appears to have taken
place, has been condemned as unconstitutional even by a former
FBI director and Department of Justice officials.
In this regard, specific attention should be paid to the
philosophy and role of the FBI's Hostage Rescue Team (HRT) or any
successor group. There seems to be no resolution of the conflict
between the team's stated objective of protecting lives and its
tactical impulse to bring all pressure, including deadly force,
to bear to "resolve" a situation. The use of helicopters, armored
personnel carriers, and other military equipment should
especially be curtailed. There should be vigilance to prevent the
general militarization of federal law enforcement.
_Necessary Reforms_
1. The federal deadly force policy should clearly state (a)
that a threat of physical harm must be immediate in order to
justify the use of deadly force; and (b) that when the immediacy
of the threat passes, the justification ceases.
2. Federal law enforcement agents should be carefully
trained in the law on the use of deadly force. Emphasis should be
placed on learning to distinguish between appropriate and
excessive applications of force.
VI. _Accountability and Checks and Balances_
The issue of accountability for federal law enforcement
abuses has been placed in sharp focus by the hearings on Waco and
Ruby Ridge.
Law enforcement agencies cannot be expected to investigate
themselves adequately. A mechanism for independent review is
required. For example, an FBI internal review conducted soon
after the Ruby Ridge incident found no wrongdoing by FBI
officials. Subsequently, however, a 542-page report by a
24-member Justice Department team recommended consideration of
criminal charges against responsible FBI agents. Yet other DOJ
offices concluded otherwise. Even after the FBI Director
announced on January 6, 1995, that there had been "major areas of
inadequate performance, neglect of duty, and failure of FBI
executives to exert proper management oversight," only relatively
minor administrative disciplinary actions were taken. This failure
to respond has been reflected in other cases involving DEA agents,
Treasury agents and the Border Patrol.
The failure of the federal government to have an adequate
mechanism in place to hold accountable federal law enforcement
officers who are guilty of abuses undermines trust in the
integrity of the system. With the exception of those rare times
when the Civil Rights Division reviews complaints against
non-Justice Department federal law enforcement agencies, all
review of complaints against federal law enforcement is
internally conducted by personnel within the same department in
which the particular law enforcement agency is located.
Intra-departmental review systems are not independent. They are
inherently subject to internal bureaucratic pressure to defer to
the initial action or reach a conclusion without regard to the
merits. Intra-departmental review systems justifiably lack
credibility.
Within the United States, more and more cities and counties
have established some form of independent review of citizen
complaints. According to a survey in January 1995 by the Police
Executive Research Forum (PERF), 36 of the nation's 50 largest
cities have citizen review mechanisms. A number of smaller cities
such as Dubuque, Iowa and counties such as Orange County, Florida
have citizen review bodies. A number of European nations have
adopted review mechanisms that allow complaints against police to
be independently reviewed by persons who are not sworn officers.
The PERF report found that such "(c)itizen review is now almost
universal in English-speaking countries." In 1988, the Canadian
Parliament established an independent review process for making
police officers of the national government accountable to the
public for police conduct. The Canadian Public Complaints
Commission is composed of a full-time chairman and vice-chairman
and 12 part-time members.
_Necessary Reforms_
1. Congress should establish a uniform means of permanent,
independent oversight of federal law enforcement policies and
practices with full redress for allegations of abuse.
2. Congress should ensure that there are adequate penalties
for those federal law enforcement agents who engage in misconduct
and should conduct oversight to ensure that they are properly
enforced.
VII. _Posse Comitatus Act_
The hearings on Waco have raised serious questions regarding
the use of the military by federal law enforcement in violation
of the Posse Comitatus Act. The Posse Comitatus Act, as amended,
18 U.S.C. 1385, reads:
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 no more than two years, or both.
The Posse Comitatus Act was passed in 1878. Just prior to
its passage, the armed forces were used by revenue officers (the
precursors to the BATF) in finding and destroying illegal whiskey
distilleries, enforcing voting laws, and a number of other
purposes. See, Note, Honored in the Breach: Presidential
Authority to Execute the Laws with Military Force, 83 Yale L.J.
130 (1973).
The exceptions to the Act include those purposes
"...authorized by...Act of Congress...." They have been expanded
to provide for military support to civilian law enforcement
agencies in limited circumstances, 10 U.S.C. 371, et seq. This
statute permits the armed forces to provide training in the use
of equipment and "expert advice relevant to the purposes of this
chapter. " 10 U.S.C. 373(2). The lawful purposes include
enforcement of portions of the Controlled Substances Act, the
Immigration and Nationality Act, the Tariff Act, and the Maritime
Drug Law Enforcement Act.
_Necessary Reform_
Congress should establish a requirement that any federal law
enforcement official who seeks to invoke the drug or any other
legislative nexus exception to the Posse Comitatus Act should
give an oath or affirmation to a neutral and detached judicial
officer as to the facts which he is asserting. In short, the same
rules as are proposed for search warrants and for penalties for
false or misleading information should apply here. In addition,
Congress should reexamine whether the existing exceptions to the
Posse Comitatus Act should be retained.
VIII. _The Need for a National Commission_
In addition to the above reforms which Congress and the
Executive Branch should immediately undertake, we urge Congress
to create a national commission to comprehensively review federal
law enforcement policies and practices. Many of the serious
questions regarding coordination, oversight and accountability of
so many different federal law enforcement agencies are complex
ones and need the long-term careful consideration only a
commission can provide. We suggest that such a commission should
include a diversity of local, state and federal law enforcement
officers, bar association leaders and representatives of civil
liberties and civil rights organizations. This body should make
specific statutory and regulatory recommendations to Congress and
to the President regarding needed changes.
IX. Conclusion
We hope that you will give thoughtful consideration to these
issues. The fabric of a society is best bound together by a
mutual sense of justice and fairness. Nothing can so swiftly
divide a society like the resentment and hostility that are the
inevitable fruits of injustice.
Sincerely,
(signed)
Ira Glasser
Executive Director
American Civil Liberties Union
(signed)
Laura W. Murphy, Director
Washington National Office
American Civil Liberties Union
(signed)
Malcolm Wallop,
Chairman
Frontiers of Freedom
(signed)
Tanya K. Metaksa, Executive Director
National Rifle Association
Institute for Legislative Action
(signed)
Gerald H. Goldstein, Immediate Past
President & Legislative Committee Chair
National Association of Criminal Defense Lawyers
(signed)
William B. Moffitt
Treasurer
National Association of Criminal Defense Lawyers
(signed)
David B. Kopel
Research Director*
Independence Institute*
(signed)
John M. Snyder, Public Affairs Director
Citizens Committee for the Right to Keep
and Bear Arms
(signed)
Erich Pratt,
Director of Governmental Affairs
Gun Owners of America
(signed)
Eric E. Sterling,
President
The Criminal Justice Policy Foundation
(signed)
Nancy Ross,
Partner
Ross and Green
(signed)
Joseph P. Tartaro,
President
Second Amendment Foundation
(signed)
James X. Dempsey,
Deputy Director
Center for National Security Studies
(signed)
Mark Gissiner, President
International Association for Civilian
Oversight of Law Enforcement
(signed)
Ronald E. Hampton,
Executive Director
National Black Police Association
(signed)
Conrad Martin,
Executive Director
Fund for Constitutional Government
(signed)
David C. Condliffe,
Executive Director
The Drug Policy Foundation
* For identification purposes only.
cc: Members of the Leadership
Members of the Committee
FOOTNOTES
---------------
1. By "dynamic entry" we mean forcible, no-knock entry.
2. The April 14, 1993 Treasury interoffice memorandum on
"Preliminary Investigative Plan" from the Assistant General
Counsel for Enforcement provides in part:
o DOJ does not want Treasury to conduct any interviews or
have discussions with any of the participants, who may be
potential witnesses; the prosecutors do not want us to generate
additional _Jencks, Brady or Giglio_ material or oral statements
which could be used for impeachment.
_PROB:_ our information will be limited to what the TRs
ask, which will focus on the gunfight and not necessarily on the
other major topics in which we are interested; we may not have
the first-hand information that we need to conduct our review;
-- at some point we are going to have to interview the
crucial witnesses and perhaps may have to take statements; while
we may be able to wait for some of them to have testified in the
criminal trial, the passage of time will dim memories;
o DOJ does not want us to make any findings or draw any
conclusions from what we review; the prosecutors are concerned
that anything negative, even preliminary, could be grist for the
defense mill;
Similarly, the September 17, 1993 memorandum on "ATF Statements
and Issues concerning ATF Knowledge of the Loss of the Element of
Surprise," prepared for the Assistant Secretary of the Treasury
for Enforcement contains this summary:
March 1, 1993 Troy WAR Interview
ATF initiates a shooting review. David Troy and Bill Wood
interview Rodriguez and Mastin (3/1), Chojnacki (3/3), Cavanaugh
(3/3), Sarabyn (3/2). Troy tells Review they immediately
determined that these stories did not add up. They communicated
information to both Hartnett and Conroy on the day or day after
each interview. Conroy gave Troy's handwritten notes to Hartnett.
(Note -- Johnston at this point advised Hartnett to stop the ATF
Shooting review because ATF was creating Brady Material. Because
Chojnacki had not yet been interviewed, Johnston authorized that
interview but no notes were created.)
3. For example, the regulation purports to authorize DOJ
attorneys to bypass corporate counsel by granting expansive
authority to conduct ex parte interviews with corporate employees
outside the presence of corporate counsel both during an
investigation and after enforcement proceedings have begun. 28
C.F.R., Sec. 77.10.
The Jencks Act and Brady and Giglio court rulings mentioned in the letter of 24 Oct 1995 govern evidence which tends to be of an exculpatory nature that the prosecution should share with the defense in discovery, including:
- evidence of innocence of the accused,
- evidence of wrong doing by law enforcement,
- prior statements or testimony by government witnesses,
- contracts with government informants called as witnesses.