WACO: CONSTITUTION IN CRISIS


Six years after the fire at Mt. Carmel, many Americans believe that Waco no longer matters, if it ever did. In a country that likes to "move on," six years is a long time. But this seriously underestimates its importance as a watershed in American democracy.  When Americans think of dangerous Constitutional breaches, they think of Watergate or Iran-Contra. Yet Waco has more disturbing implications than either.

Why is Waco so crucial? There are three major reasons:

I. Waco is unique in the breadth of Constitutional and human rights questions it raises. Consider the issues that have been debated about Waco. Freedom of religion, freedom of the press, the right to bear arms, the right to a fair trial, reasonable searches and seizures, military involvement in civilian law enforcement, parental rights, child rights, state-federal relations- all of these and more are involved. In fact, it is hard to think of any other peacetime event that involves so many fundamental issues about how a democratic government relates to the people.

II. Waco is also unique in implicating the entire system in misfeasance and malfeasance, in a way that other Constitutional crises did not. The three major political scandals of modern times- Watergate, Iran-Contra, and Lewinsky- are all serious, but mainly involvement misconduct by one branch of the federal government, the executive. And even at that, misconduct at the upper levels.

Watergate involved serious abuses of power by Nixon and his closest aides. However, lower echelons of the executive branch were largely uncorrupted. In fact, it was precisely becauseNixon could not trust agencies like the FBI to do his dirty work that he had to form his own private "plumber" unit. That was also why his talk about using the IRS to maliciously audit his enemies remained just talk.

And Watergate demonstrated the strength of the Constitutional system of checks and balances, as the other branches of government reacted VERY strongly to the abuses in the executive. Congress held hearings and opened an impeachment inquiry. Courts came down hard on Nixon aides. Other institutions did their part. The key role played by the press is legendary. And the people, despite initial hesitation, came through in demanding a housecleaning.

During Iran-Contra, many sympathized with the diversion of funds to the Nicaraguan rebels struggling to free themselves from communist oppression. Nevertheless, the idea that a President could secretly sell arms to a hostile state without informing Congress indefinitely, and that subordinates could carry out secret foreign policy activities even without the President's knowledge, is troubling. However, Reagan acted to correct the abuses, cooperating with investigations. Congress held extensive hearings that might not have satisfied those who remain convinced Reagan knew of the diversion, but they produced a thorough report. Independent counsel Lawrence Walsh had a mixed court record, winning some cases, but having key convictions overturned. The press may not have added much to uncovering new facts, but they kept the public informed with extensive reporting. And with the end of the Cold War, the odds that the disturbing aspects of Iran-Contra might become routinized in a national security state have abated.

The current scandal of Bill Clinton is a serious one that called for his impeachment. Nevertheless, like the others, it is a scandal centering on the upper echelons of the executive branch. In fact, it is focused even more narrowly at the very top of that branch! Some may question his aides' willingness to malign Clinton's foes and manipulate the press long after they must have realized the truth, and other administration scandals do implicate other officials. Nevertheless, this scandal essentially revolves around the conduct of the President.

Though the Senate trial did not result in conviction, some institutions vindicated their responsibilities. The House did vote to impeach. The courts proved decidedly unsympathetic to Clinton's efforts to hinder the investigation. The media's coverage has been sensationalistic, but generally hostile to Clinton's preposterous defenses, even if more receptive to his attacks on Starr and others. The shrugged shoulders of so many Americans are disturbing, but at least a sizable number wanted to see the right thing done.

However, Waco involves a failure not just of the top levels of the executive branch, but a complete meltdown of the checks and balances we count on to safeguard our liberties. All three branches of the federal government failed, not just at the top but at ALL levels.

The executive branch did not just fail at the lowest echelons, with the agents who were willing to lie to the public, incite religious bigotry, and deploy military equipment. Nor does the buck stop with senior ATF or FBI officials in Washington, or with Janet Reno. Rather, the President is quite blameworthy. No official would be able to make seven weeks of highly publicized statements about Mormons, Catholics, or Muslims of the snickering sort that federal spokesmen made about the Davidian faith. But Clinton not only did not intervene to put a stop to it, his own statements show him to be a religious bigot! And Clinton not only failed to hold officials accountable for lying to the public, he took advantage of the Oklahoma City tragedy to insinuate that seeking the truth about Waco was vaguely treasonous. While his simultaneous statements that even considering federal actions at Waco as a contributory cause was both absurd and reprehensible created the strange "logic" that Waco itself was not to blame, but people talking about Waco were, this intimidated many from asking for the truth. Thus, the malfeasance of the executive branch extended from lowly agents to the President.

In the courts, the jury's decision to convict the Davidian defendants of voluntary manslaughter rather than conspiracy to murder was widely seen as a rebuke to the government. However, the biased judge was able to take advantage of a jury misunderstanding to impose his personal prejudices, and extend the sentences from ten years to forty. This travesty of justice was ratified when the Supreme Court refused to hear the appeals of the Davidian prisoners. Thus, the judiciary failed, from juror to Supreme Court. (And the same judge who handled the criminal trial is handling the civil suit, dimming the chances that wrongs will be remedied in the civil sphere!)

Under the Democrats, Congress conducted only desultory hearings into Waco. In the 1995 House hearings, Democrats continued to be obstructionist, while Republicans were cowed by the Oklahoma City bombing from pressing too hard. Further, most members had been lazy in preparing for the hearings, not bothering to learn the facts. The result was hearings far less effective than those in Watergate or Iran-Contra. Nor did Congress enact legislation repairing the problems at Waco. In fact, the opposite! For all the criticism the FBI endured, the practical result was that Congress appropriated more money for the agency, to expand its Hostage Rescue Team, study the psychology of cultic and apocalyptic groups, and conduct "crisis management training." Another example: while many Americans were disturbed by the fact that Chinese dictators allowed the American media more access to Tienanmen Square than the FBI did to the scene at Waco, Congress decided that the problem was not that there had been too little press access but too much, and they passed a law making it illegal for federal law enforcement agencies to allow the media to witness their operations! Thus, the legislative branch failed at Waco.

The fourth estate has traditionally been considered a protector of freedoms, but at Waco it not only failed to fulfill that role, it was part of the problem, whipping up popular hysteria and prejudice. However, its greatest dereliction is its failure to fulfill its duty to report the TRUTH. To this day, one of the greatest stumbling blocks in getting the truth out is the widespread belief that there has been so much reported on Waco that the truth must already be out. It is not just that the media demurred to the federal government's restrictions and passed along its misinformation unskeptically. Nor only that the press failed to investigate after the end of the siege. They also failed to widely report established facts that have come out, and as a result most of the public continues to believe myths that have been disproven.

Other prominent institutions failed as well. Churches ought to have been alarmed by the attacks on the Davidian religion by federal spokesmen. They were drawing an official paycheck to mock Davidian beliefs in official press conferences: a government-sanctioned propaganda campaign against a specific religious group. But they were more frightened that speaking up might stigmatize their church with the Davidians, so they remained silent.

The other three scandals were exclusively federal affairs. Waco, however, also involved the state government. Texas made National Guard equipment available to the federal government based on false intimations that the Branch Davidians might be running a methamphetamine lab. After it became clear those charges were trumped up, however, the state did nothing to hold ATF officials responsible for lying to them. Locally, the sheriff stood by despite his misgivings about the federal approach.

III. Waco is the scandal that is most likely to be repeated, especially  in a way that directly affects the average citizen. Even many who don't like the government's conduct at Mt. Carmel shrug that "Waco was an aberration," or that "I'm not in a cult, so it won't happen to me." It is precisely this reaction that makes it possible for Waco to happen again. It is the people who are not apathetic, who are protesting, who are keeping it from happening again. But in fact, Waco has more disturbing implications for the average citizen than Watergate, because it involves misconduct at the lower levels.

A President, no matter how malevolent, cannot put a plan of broad oppression into operation with just the support of his inner circle, so the abuses of a Watergate are likely to be directed at his prominent political enemies. In fact, many of Nixon's schemes were frustrated by just such a lack of support at the lower levels. It is at the frontline echelons that an average person is likely to encounter problems with the federal government, and Wacos and Ruby Ridges are created. Even those who do not belong to a cult or other unpopular group can end up in the crosshairs of officialdom through bad luck. They should also remember that everyone has at least one "kooky" idea or two- and even a President ought to fear a government that sends tanks after people with bizarre interpretations of the Bible!

Thus, Waco is unique among modern scandals in involving misconduct not just at the highest levels of the executive branch, but misfeasance and malfeasance from top to bottom of the executive, legislative, and judicial branches of the federal government, and a failure of state government, local government, the press, and all institutions of the system. And when one sees the breadth of rights in the balance at Waco- virtually every one in the Bill of Rights, and then some!- the magnitude of Waco becomes apparent. Even Watergate does not compare! A failure on this scale does not dissipate with time, it weighs more heavily the longer it goes without a just resolution. If Watergate had fizzled out, and six years later it was virtually buried, it would have proven not that Watergate was not serious, but that something was amiss in the system of checks and balances we rely on to correct our failures. To allow justice and truth to fail on such a scale, in an event that was witnessed worldwide, corrodes our democratic system.

FOUR SCANDALS COMPARED

When it comes to Constitutional crises, most people think of Watergate or Iran-Contra, but those crises implicated only the top echelons of the executive branch. Waco is unique in indicting all three branches of the federal government, and other institutions of society, in malfeasance and dereliction.
 
Institution Watergate Iran-Contra Lewinsky Waco
Executive failure at upper levels failure at upper levels failure at very top level failure at all levels
Legislative STRONGLY checked abuse extensive investigations mixed failure at all levels
Judicial STRONGLY checked abuse mixed supported investigations failure at all levels
Press STRONGLY checked abuse extensive reporting mostly hostile to executive abuse very negative influence
State/Local not involved not involved not involved abetted federal abuse

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version:11/21/99