FADDISH JUSTICE: AN ERA VULNERABLE TO VIOLENT MISAPPREHENSIONS

The following editorial is reprinted from The Wall Street Journal.

It is generally agreed now that the assassination of John Kennedy in Dallas in 1963 was the first time that television imprinted a single tragedy onto the national psyche. Everyone saw, wept -- and wondered. With so many millions of minds focused on a single, seemingly senseless tragedy, even the Warren Commission never calmed the conspiratorially minded.

One may reasonably wonder: Will Waco, Oklahoma City and Ruby Ridge live on mainly in the minds of the agitated?

We should all hope not, because we are living in an era vulnerable to violent misapprehensions. At a time of enormous technological sophistication, raw "data" often trumps settled facts, and public demagoguery displaces sense and judgment. And the confused and sometimes the crazy go up into the hills to shoot it out with the government, go into the streets to burn down their own neighborhoods or bomb the innocent in an All-American city.

Senator Arlen Specter, chairman of the Senate Intelligence Committee said this weekend that he had long believed the Waco and Ruby Ridge, Idaho, incidents "were not examined as they should have been by the Congress" and that fuller explanations were necessary. Recent history suggests that the people in charge of this country's system of law, order and justice had better get their acts together pretty darn quick.

Waco

Asked about Waco on "60 Minutes" while in Oklahoma City April 23, President Clinton asserted: "Let me remind you what happened in Waco and before that raid was carried out. Before that raid was carried out, those people murdered a bunch of innocent law enforcement officials who worked for the federal government. Before there was any raid, there dead federal law enforcement officials on the ground."

Now Dean M. Kelley, a distinguished commentator at the National Council of Churches, has published a detailed and disturbing report in the New York-based religious journal First Things -- "Waco: A Massacre and Its Aftermath." And last week, Harvard psychiatrist Alan Stone, one of the experts appointed by Janet Reno to examine the Waco events, publicly disputed President Clinton's statements made on "60 Minutes."

A reasonable person alternative to the government's account offered by Mr. Clinton would run like this: the Bureau of Alcohol, Tobacco and Firearms (BATF) showed up at the Davidian compound with two cattle trucks full of agents in battle gear and a plan for "dynamic entry." A shootout ensued in which five agents and six Davidians were killed, and David Koresh was wounded twice. We haven't established who fired first, but a steel door likely to shoe the direction of the bullet holes has vanished.

The FBI took over the day following this initial raid, and apparently there was no further shooting until the final assault, when the government moved in with combat vehicles spewing CS gas and knocking down walls. According to Prof. Stone's account, the medical literature on CS gas indicates that children who inhale it risk "fulminating chemical pneumonia and death."

Three BATF supervisors took early retirement. Two agents were suspended, but rehired with back pay. The Treasury Department's exonerating report nonetheless says the initial raid should have been called off when they learned that Koresh knew it was coming. Justice's report admits no errors. The conflict over Waco grows.

Ruby Ridge

Ruby Ridge refers to the Idaho site of the widely publicized 1992 siege and shootout between federal marshals, FBI agents and the Weaver family, which lived in a remote mountain 40 miles south of the Canadian border. When the siege ended, a marshal was dead and Randy Weaver's wife and son has been shot dead.

The government was investigating Randy Weaver's involvement with a white separatist movement. A federal undercover agent induced Mr. Weaver to sell him two illegal, sawed-off shotguns, leading to a court order to appear on weapons charges. He didn't show, and U.S. marshals took this as a pretext to mount an enormous operation to surround his cabin.

Normally, the FBI may use deadly force only in self-defense, not offensively. At Ruby Ridge, however, the rules of engagement allowed agents to shoot at any adult who emerged from the cabin with a firearm. FBI Director Louis Freeh remarked, "Nobody, thank God, was following (those) rules of engagement."

FBI sharpshooter Lon Horiuchi, however, fired the shot that killed Mrs. Weaver. "The FBI sniper's decision to shoot was guided by the FBI's standard deadly force policy that permits the use of deadly force in self-defense or the defense of others," Director Freeh said. His account of a threatened helicopter has been disputed, however, including by James. Board on this page. In an ensuing trial, a federal jury acquitted Randy Weaver of murder, finding him guilty of failure to appear in court. On the original gun charges, the jury found entrapment.

A Washington Post editorial concluded: "The Idaho jury that acquitted Mr. Weaver and Mr. Harris obviously believed that the men had acted reasonably and in defense of home and family when they resisted government agents. The defense did not even rebut the prosecution at trial, yet the jurors must have believed that the government provoked the incident."

Besides the no-action on Mr. Horiuchi, the FBI disciplined 12 agents, with penalties including oral and written censures. The most serious penalties were suspensions without pay of five to 15 days. In Washington, the Acting FBI Deputy Director Larry A. Potts was censured for failing to properly oversee the disastrous rules of engagement that the locals has set up. Thereupon Mr. Freeh voiced his "complete confidence" in Mr. Potts and asked Attorney General Reno to name him deputy director.

Stacey Koon

Now, in the court of common sense, some would argue that ultimately we are asking law enforcement authorities to engage in potentially dangerous work in uncertain situations against volatile suspects. That brings us to that case of one of the L.A. cops involved in the Rodney King case. On April 10, a few days before the Oklahoma City explosion, former LAPD officer Stacey Koon petitioned the Supreme Court for certiorari on his conviction for abusing Rodney King's civil rights. The Koon case shows quite a different standard for second guessing law enforcement officials.

Sergeant Koon did not go looking for Mr. King. Rodney King first engaged the LAPD when two officers clocked him going over 100 mph down the freeway. The eight-mile chase through city streets ended at a blockade. Mr. King, 6'-3" and 225 pounds, threw off four officers who were trying to get him to lie down with the other suspects. Sergeant Koon then fired two taser darts into Mr. King, which didn't work. A scuffle ensued, and this is the portion captured on the famous videotape. Whatever else, Stacey Koon had a problem.

State charges were brought against Sergeant Koon and other policemen. The courts determined that they could not get a fair trial in downtown Los Angeles, and moved venue. In Simi Valley they were acquitted and the Los Angeles riots erupted, with 54 killed and property damage exceeding Oklahoma City (5,000 buildings destroyed.)

Subsequently, federal charges were brought against the same policemen for the same acts. This time they decided to hold the trial downtown, within a few blocks of the embers. A district court convicted Sergeant Koon, who is now in jail. Randy Weaver and the Davidians will notice that Rodney King, despite four arrests after the beating, was awarded $3.8 million in damages.

The Koon brief asking for a review of his conviction stresses conflict among the circuits regarding the terms of his sentencing, where his legal argument is pretty strong. But it also includes claims of double jeopardy, which the court has usually refused on the basis of precedents that seem to us to contradict plain sense.

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Allowing for dilemmas of the real world, we seem to have a double standard today: It says that law enforcement officials can do what they want with unpopular defendants like religious fanatics and white supremacists. But in dealing with suspects who might charge racial prejudice, they have to be careful indeed. Even in the wake of Oklahoma City, we are about to have the release of a Mario Van Peebles film making the Black Panthers into entertainment, guns and all.

We had better get ourselves some objective standards. Law enforcement officials should take notice when we have armed groups like the Panthers or the Michigan militia. We need to sort out which are really dangerous, and it's possible that relaxing some guidelines and strictures would cut down rather than increase legal abuse. In our view, Stacey Koon should not be subjected to double jeopardy, snipers who hit the wrong target should be fired, and we should not promote those in charge of a fiasco.

Most of all, Congress should exercise its oversight. Ultimately, the great party-changing election of 1994 may bear directly on these matters. One big element was a sense that justice in this society had become faddish, swept along by current fashion. That the liberal methods dominating the Beltway and the media had lost the power to sort out the moral dilemmas of governing. While no one of consequence wants to return to Jim Crow justice, it perhaps how falls to another political tradition to re-establish that the system we are asked to abide and respect can be consistent, credible and accountable.