Newsgroups: talk.politics.guns
From: [k--rk--y] at [world.std.com] (Ken B Kirksey)
Subject: Gunning For Koresh 1/2
Date: Sat, 6 Nov 1993 16:50:04 GMT

Gunning for Koresh
by Daniel Wattenberg
from _The American Spectator_, August 1993, pp.31-40

It was only when their funding was up for review and a pattern of sexual
harassment emerged at their agency-that the federal Bureau of Alcohol,
Tobacco and Firearms decided to make an example of David Koresh and his
Branch Davidian followers.

Appearing before the House Judiciary Committee nine days after the
incineration of David Koresh's Mount Carmel Center and most of those who
dwelt within its walls, Bureau of Alcohol, Tobacco, and Firearms director
Stephen Higgins referred to the search and arrest warrants his agents had
tried to execute two months earlier. The affidavit filed in support of the
warrants, said Higgins, detailed some of Koresh's "clear messages that he
and his followers were bound together in a vision that promised them
all--and others who were in their paths--death."

Although Higgins mischaracterized the warrant, he did faithfully encapsulate
the government's theory of the Texas barbecue of the Branch Davidians:
Koresh--or Vernon Howell, as he was originally called--set himself and his
followers ablaze on April 19, and this mass self-immolation represented the
inevitable self-fulfillment of his apocalyptic teaching. By now this is the
generally accepted theory.

It is nonetheless a theory predicated almost wholly on forgetting.
Forgetting, for example, that while it was Koresh who purportedly willed an
apocalyptic showdown, it was the ATF that dictated-twice-the timing and
setting of confrontation. Koresh seems to have taken no steps toward
fulfilling any deadly vision except on two extraordinary occasions-February
28, when a hundred heavily armed ATF agents arrived unannounced at his door,
and April 19, when combat engineering vehicles began tearing holes in his
domicile and suffusing it with a severe chemical irritant known as CS.

Had the members of the House Judiciary panel carefully read their copies of
the affidavit, they might have questioned whether it warranted Higgins's
confident conviction that Koresh willed the two part holocaust that claimed
the lives of four ATF agents and more than eighty Branch Davidians. Indeed,
they might have questioned whether the ATF affidavit even established
grounds for believing that Koresh was apt to commit a violent crime or
endanger anyone beyond the boundaries of his property.

They might even have considered another possibility that has not yet made
its way into the popular consciousness: Maybe the bureau never seriously
tried to tailor its enforcement means to the size of the actual threat.
Maybe it did the reverse. Maybe it first choreographed its lightning strike
on the Davidians and later--for bureaucratic reasons best known to
itself--fabricated from the disparate investigative materials at hand a
threat of such frightening proportions that it licensed the otherwise
inexplicable means. Close inspection of the publicly available material on
the ATF investigation of David Koresh invites just such a hypothesis.

The Aguilera Affidavit

Certainly, Higgins erred in his assertion that the ATF search warrant
detailed "messages" imputed to Koresh that his religious vision "promised
them all-and others who were in their paths-death." This l5-page
single-spaced document contains only one fragment of conversation that might
possibly be construed as a "clear message" of the kind cited by Higgins.

The dark prophecy in question was related third-hand to ATF Special Agent
Davy Aguilera, the ATF's lead investigator in the Koresh probe and the
author of the affidavit. On December 7, 1992, Aguilera interviewed ATF
Special Agent Carlos Torres, who had assisted his investigation of the
Branch Davidians. Torres mentioned an interview three days earlier of Joyce
Sparks, a child-abuse investigator with the Texas Department of Human
Services, who had twice visited the Mount Carmel Center to investigate
reports that Koresh was "operating a commune type compound" and "sexually
abusing young girls."

According to Aguilera's affidavit, Sparks told Torres that on her second and
final visit to the compound on April 6,1992, "Koresh told her that he was
the 'Messenger' from God, that the world was coming to an end, and that when
he 'reveals' himself the riots in Los Angeles would pale in comparison to
what was going to happen in Waco, Texas." Koresh explained to Sparks,
according to the affidavit, that his self-revelation "would be a 'military
type operation' and that all the 'non-believers' would have to suffer."

One might quarrel with Higgins's cavalier assertion that this single
reported exchange supports the view that Koresh welcomed the deadly events
of February 28 and April 19 as the fulfillment of some idiosyncratic
eschatological vision. This would be an idle quibble, however, because the
Aguilera affidavit is wrong. Koresh did not tell Sparks on her visit to the
compound that "the riots in Los Angeles would pale in comparison" to his
self-revelation in Waco. Unless the man really was a prophet, he could not
have told her this. The Los Angeles riots broke out on April 29, 1992, more
than three weeks after Sparks had last visited Koresh.

Was Koresh a Threat?

On February 28, 1993, a hundred ATF agents converged on the Ranch Apocalypse
"cocked and locked," as Koresh was to put it. They had been drilled in a
plan to enter the front door within seven seconds after scrambling from two
goose-necked cattle trailers, and to gain control of the compound within
sixty seconds. Not much margin for reflection and reaction by Koresh,
"kinked up" (the FBI's phrase) as he already was by an expose of his
unorthodox community that had begun just the day before in the local paper.
Still, not an injudicious use of state power, I would say, if the purpose
was to protect a community terrorized by a nest of heavily armed and
criminally violent monsters. But deployed in pursuit of one individual
inside on charges of violating somewhat technical provisions of federal
weapons laws, such means raise the question of proportionality.

David Koresh had never been convicted of a crime, violent or otherwise. He
had complied peacefully with lawful authorities at least four times. He had
surrendered himself to the local sheriff in 1987 on a bizarre attempted
murder charge far more serious than the weapons violations the ATF suspected
him of. (A hung jury voted 9-3 to acquit him.) Koresh had not interfered
with a Michigan judge's decision in a child-custody case to remove
12-year-old Kiri Jewell from the compound. As recently as February 1992, he
had escorted local sheriff's deputies and child-abuse investigators through
the compound after they had called beforehand to say they were coming.
Koresh even invited one of the deputy sheriffs to come back and fish in
their lake, according to McLeMan County Sheriff Jack Harwell. "He was real
nice to him, real congenial," he says.

In the eyes of local law enforcement, Koresh and the Davidians were private
and territorial, but no threat to the surrounding community. "They were like
living in another little country out there," observes Harwell. "They had
their property line, and they were basically good people. All of 'em were
good people. I don't know about Vernon Howell. I think he really believed he
was what he told everybody he was, and I think he was probably sincere in
everything that he taught. But the other thing that he did was to teach the
philosophy that once anyone crossed that property line out there, it would
be just like someone invading the United States."

The Firearms Cache

From June 4, 1992 to June 23, 1992, the ATF aggressively investigated Koresh
for federal weapons violations. He had been accumulating firearms, mostly
legal semi-automatic AR-15s. But, the ATF suspected, David Koresh wanted to
"rock and roll"--that is, to convert semi-autos into machine guns.

The media have almost invariably characterized the Davidian arms cache as
breathtakingly large. But that is a matter of interpretation. Texas Rangers
recovered about 200 guns from the ashes of the Mount Carmel Center, roughly
two per resident. Statewide in Texas, 17 million people own 60 million guns,
or about four per resident. Still, it represents a large concentration of
firepower in one place.

Machine guns, which fire more than one shot automatically with one pull of
the trigger, are not unconditionally outlawed in the United States. In
Texas, 16,500 residents own them. Prior to the McClure-Volkner Act of 1986,
machine guns were legal, provided the tax on them had been paid to obtain
the necessary license. Today, one may still legally own a registered machine
gun manufactured before May 19,1986.

Machine-gun parts can be legally sold. With the right combination of
machine-gun parts and conversion parts, semiautos can be converted to fire
full-auto, and a skilled machinist can, with the right parts, manufacture a
machine gun. Under the National Firearms Act, a machine gun is defined as
any "combination of parts designed and intended, for use in converting a
weapon into a machinegun, and any combination of parts from which a
machinegun can be assembled if such parts are in the possession under the
control of the person."

Machine-gun conversions of the kind for which Koresh was under investigation
constitute a new and tricky area of the law. "This is a very, very
convoluted, technical, angels dancing-on-the-head-of-a-pin kind of
argument," says Robert Sanders, former enforcement chief of the ATF. "And
there are no published rulings telling you what is and what isn't [a
violation]."

Aguilera himself mischaracterized the legal definition of a machine gun in
the second paragraph of his affidavit. Citing his familiarity with federal
firearm laws, he stated that "any combination of parts either designed or
intended for use in converting any firearm into a machinegun" is "unlawful."
As we have seen, the applicable provision defines a machine gun as "any
combination of parts designed and intended for use in converting a weapon
into a machinegun." Aguilera's blunder is significant in the context of an
investigation to determine whether there was probable cause to believe
Koresh's legal acquisitions of (unspecified, in the warrant) M-16 parts were
intended for the purpose of illegal machine-gun conversions.

Other Aguilera goofs raise further questions about his reliability. At one
point he mistakes the legal definition of "destructive devices" (bombs,
grenades, etc.) for that of "firearms." Elsewhere, he refers to two "M-16
E-Z" kits or "M-16 machinegun EZ kits" that were shipped to Koresh. In
reality, these kits are known as E-2 kits. (And whether an M16 parts kit is
a machine-gun kit depends on what M-16 parts are inside, and how they are
used.)

That Aguilera was involved in establishing violations of a confoundingly
technical area of the law may be just part of the explanation for his
miscues. Aguilera apparently composed his l5-page brief in considerable
haste between February 23 and February 25, 1993 (the ATF assault followed on
the 28th), long after the information he had gathered about suspicious
weapons shipments to Koresh would have been fresh in his mind. Indeed, it
appears that the ATF had collected no reliable new information on suspicious
weapons parts shipments to the Davidians after June 23, 1992, eight months
before.

Stale Information

It is worth noting here that one test of a search warrant's validity is the
timeliness of the evidence it presents. Dick DeGuerin, the Houston lawyer
who represented Koresh during the Waco siege and now represents his mother,
Bonnie Haldeman, argues that the ATF was working on "stale information,"
under standards derived from the 1932 Supreme Court case Sgro v. United
States. Says DeGuerin, "The magistrate [has to] conclude that what they are
searching for is there now, not that it was there at some time in the past."

Davy Aguilera's affidavit, submitted on February 25, 1993, contained no
information less than eight months old on suspicious parts deliveries to the
"Mag-Bag" metal shop the Davidians ran outside the compound, or to the Mt.
Carmel Center.  Stranger still, Aguilera reports no information of any kind
pertaining to his Koresh investigation collected between June 23 and
December 7, 1992, with three minor exceptions. For almost six months, his
investigation of Koresh appears to have been virtually moribund.

In their reporting on the ATF investigation, the media appear to have been
struck dumb by the amount of evidence stuffed into Aguilera's 15-page
affidavit. But Aguilera's brief is larded with filler, like the trivial
exceptions to the five-and-a-half month hiatus in the Koresh probe.

On November 13, a lieutenant in the County Sheriff's Department told
Aguilera that an anonymous UPS employee had told him that "Marshall Keith
Butler, a relative of the person who wishes to remain anonymous, is a
machinist by trade, and is associated with Vernon Howell." But what is this
doing in the warrant? There is no indication that Butler had any expertise
in firearms. His association with Koresh is not specified, and his name
never crops up again in the search warrant.

Also on November 13, a local deputy sheriff told Aguilera of hearing a loud
explosion on the Mount Carmel Center grounds and observing a large cloud of
gray smoke dissipating from ground level. Was it an illegal explosion? The
warrant supplies no more evidence in support of such an assumption than it
does in support of an assumption that the explosion was innocuous, related
perhaps to the Davidians' continuing construction work on their property.

After the five-and-a-half-month lapse, the ATF investigation resumed in
December 1992. Despite intensive efforts in June, the ATF had failed to
establish probable cause to believe that Koresh was illegally manufacturing
and concealing machine guns and destructive devices. "Congressman Fish asked
me if we had probable cause by February," Director Higgins testified to the
House panel in April. "We had a review in here--in the headquarters office
in December with respect to whether we had probable cause. We decided at
that point we did not, so we continued to gather information."

All those documented M-16 parts and grenade hulls and no probable cause?
How's that? By now an attentive reader should have the answer. Higgins did:
"What we were dealing with [in June] were parts, as well as explosive
materials, that only become violations if you make something out of them."

Stale Witnesses

If the purpose of the flurry of interviews forming Part II of the ATF
investigation was to build on the ATFs previous work and bolster case for
probable cause, then it must be deemed a near total failure. The warrant
reports on interviews conducted after December 1992 with six former
Davidians who had resided for varying lengths of time at Mount Carmel. With
one exception, none said anything about what Koresh might have made with the
weapons parts and explosive materials he acquired in 1992, which formed the
basis of the ATF case. With one shaky exception, none of them could have.
Because the parts and materials acquisitions so painstakingly documented by
the bureau in June all occurred during 1992. As can be readily verified by
anyone who would trouble to plot the relevant dates on a timeline, five of
the six former cult members contacted each left the compound, left Waco, and
left David Koresh and his sect behind well before that time.

Robyn Bunds, a former Davidian and the mother of a child by Koresh, was
interviewed on December 11, 1992. She had left the commune in 1990.

Jeannine Bunds, Robyn's mother, was interviewed on December 12. As a member
of Koresh's harem, the House of David, Mama Bunds, like her daughter, had
slept with Koresh, each in the conviction, shared by all the other women in
the House of David, that procreation was the function of sex with Koresh,
and an extraordinary type of procreation at that: they believed they were
receiving the seed of the Lamb of God and bearing God's grandchildren.
(Doubtless, Robyn and Jeannine had, with the aid of "cult deprogramming,"
come to view Koresh's mother-daughter feat quite differently by the time
they cooperated with the authorities, and one might legitimately question
the objectivity of the information they supplied.) Jeannine left the group
in September 1991.

Robyn's sister-in-law Deborah Sue Bunds was interviewed in January 1993. Her
date of departure is unspecified and unnecessary to specify: she testified
only that four years earlier she saw Koresh fire what she assumed was a
machine gun and shortly thereafter overheard him discussing machine guns
with associates. (If it was a machine gun at all, it obviously was not
fabricated from the parts shipped four years later. Conceivably, she saw
Koresh at play with a frivolous toy he possessed, a "hellfire" device. A
spring attached to the trigger, the "hellfire," causes a gun to fire erratic
three-round bursts automatically. Upon hearing of complaints from neighbors
about his "hellfire," Koresh asked the McLennan County Sheriff's department
to have a look at it, and he was assured the gadget was legal.)

Mrs. Poia Vaega, interviewed by telephone from her New Zealand home, resided
at the compound for all of ten days back in March 1990.

Interviewed in January 1993, Marc Breault lived at the Center from early
1988 until September 1989. After breaking with the Davidians, he became a
Koresh nemesis, a one-man whistle-blower prophesying doom for the sect to
whoever would listen. Breault claims no knowledge of illegal weapons or
explosives possessed by Koresh. Curiously omitted from Aguilera's account is
the fact, widely reported elsewhere, that Breault is blind. (Yet, according
to Aguilera, Breault "participated in firearm shooting exercises conducted
by Howell"--which under the circumstances surely was illegal.)

If the eight-month-old information on parts shipments was vulnerable to
legal challenge as stale, then the material from the "new" witnesses is even
staler. All of the information in the warrant gathered from these five
former Davidians is at least eight months old. Overwhelmingly, it is far
older than that. Maybe a strong motion to suppress could have been filed.
But more importantly, these five offered no evidence that Koresh was
assembling or converting those parts listed by the ATF into machine guns or
other illegal destructive devices, because they were long gone from the
scene by the time these parts were acquired.

Later Information

This is not to say the ATF's resumed investigation added no evidence to the
case for probable cause it had begun in June. On January 25, 1993, Aguilera
interviewed ex-Davidian David Block. At least the dates of his brief
residence at Mount Carmel (March-June 1992) match up with those of the parts
acquisitions. While there, he saw a metal lathe and milling machine usually
operated by Donald Bunds (Robyn's dad, Jeannine's ex), who, he said, had
"the capability to fabricate firearms parts." Moreover, according to the
affidavit:

Mr. Block was present on several occasions when Howell would ask if anyone
had any knowledge about making hand grenades or converting semi-automatic
rifles to machineguns. At one point he also heard discussion about a
shipment of inert hand grenades and Howell's intent to reactivate them.

With the exception of one ATF undercover agent, the Block interview is the
last one recorded in the affidavit. Coming so late in the investigation,
Block's story may strike some ears as a little too pat, but it does
constitute evidence relevant to the investigative spadework done seven
months before on parts and materials shipments. (Still, it raises questions
about the claims of other former cult members that they saw Koresh firing
machine guns years previously. If he was observed firing machine guns in
February 1989 and talking about adding to his collection, why would he ask
advice on how to convert semi-automatics three years later?)

Block also recounts observing Donald Bunds designing a "grease gun/sten
gun"-a World War II-vintage British machine gun-on an Auto Cad computer on
the premises. Whether a computer design constitutes probable cause for a
weapons search is open to question, but there is no question that Aguilera
had serious doubts about the reliability of Block's weapons knowledge,
noting that he mistook a British Boys .52 anti-tank rifle for a .50 caliber
rifle.

The dates in the affidavit don't match, and so far as the original weapons
charges are concerned, the two halves of the investigation don't mesh.
Indeed, they only touch, a little suspiciously, at one point in David
Block's testimony. And if the purpose of phase two was to build on the
probable cause foundation so meticulously laid in phase one, it can hardly
be counted a success. But maybe that was not its primary purpose.



The Second Phase

Phase two of the investigation is of a very different nature than phase one.
It is diffuse, undisciplined, deceptive, urgent, ominous, and concerned with
alleged deviations from moral norms that fall far beyond the jurisdiction of
the ATF.

Starting in December, the ATF begins to caricature David Koresh as the
Antichrist. Phase two renders, or constructs, the portrait of a militarized,
polymorphously criminal Caliban on a hair-trigger ruling over a squad of
zombiefied zealots blankly awaiting zero-hour for the damned, a bomb ticking
out the days on a piece of East Texas scrubland before blasting through the
cosmos into eternity on a signal from Koresh.

Confronted with this scary composite, one can easily see why U.S. Magistrate
Judge Dennis G. Green hastily approved search and arrest warrants on Koresh,
without pausing long over the particulars of the bloated Aguilera affidavit.
This composite might even have caused Green to swallow any doubts he might
have harbored about the scale of the impending ATF raid-assuming, that is,
that the ATF had clued him in. But, scary though the composite seems, many
particulars turn out, on inspection, to be less so. Space permits a look at
only some of them.

Robyn Bunds, according to Aguilera, said that "residents were subjected to
watching extremely violent movies of the Vietnam war which Howell would
refer to as training films." Omitted are the names of these movies. It turn
out they were Oliver Stone's Oscar-winning Platoon, Stanley Kubrick's
anti-war satire Full-Metal Jacket, and Hamburger Hill, a critically admired
Hollywood failure that was not transparently hostile to the U.S. role there.
Robyn also told Aguilera that Koresh even kept a gun "under his bed while
sleeping."

Aguilera's records search revealed that "most" of the forty or so foreign
nationals who at some point gave the Mount Carmel Center as their local
point of contact "have over stayed [sic] their entry permits or visas and
are therefore illegally in the United States." Is the ATF in the business of
policing our borders?

David Block stated "that he observed at the compound published magazines
such as, the Shotgun News and other related clandestine magazines." But
Shotgun News is hardly clandestine: page 22 of the June issue of American
Rifleman, the NRA's flagship publication, displays a column-length
advertisement for the magazine, which, incidentally, accepts MasterCard and
Visa! The other related "clandestine" magazines are left unidentified.

Koresh told Marc Breault, writes Aguilera, "that he was interested in
acquiring the 'Anarchist's Cook Book', which I know is a publication
outlining clandestine operations to include instructions and formulas for
manufacturing improvised explosive devices." And Block, two-and-a-half years
later, during his stint at the compound, "heard extensive talk of the
existence of the 'Anarchist Cook Book.' " However nefarious the book may
sound, there remains no allegation that Koresh ever had a copy in his
possession.

Child Abuse

One of the December interviews is with Joyce Sparks, the Texas Child
Protective Services (CPS) investigator we met earlier. CPS was looking into
complaints that Koresh was "running a commune-type compound, and that he was
sexually abusing young girls," Aguilera notes portentously. With the
magistrate in mind, he deftly waves his red cape. On Sparks's first visit,
Mrs. Koresh would not speak with her, because "she had strict orders not to
talk with anyone" unless Koresh was present. On her second visit, Sparks saw
a buried school bus with the seats removed, and "at one end of the bus she
could see a very large refrigerator with numerous bullet holes." She "felt
the entire walk through the compound was staged for her by Koresh." And yet
she cites not a single instance of sexual abuse. This vignette is the
closest we get to child abuse: "She talked to a boy about seven or eight
years old. The child said that he could not wait to grow up and be a man.
When Ms. Sparks asked him why he was in such a hurry to grow up, he replied
that when he grew up he would get a 'long gun' just like all the other men
there." That's child abuse?

And what conceivable jurisdiction could the ATF have over child abuse?
According to DeGuerin, "It was thrown in there simply to stink up the case."

Worse, Aguilera suppresses the fact that this child abuse investigation was
closed on April 30, 1992, having failed to produce any evidence. "None of
the allegations could be verified," according to an April 23, 1993 case
summary released by the Texas Department of Protective and Regulatory
Services. It reported, moreover, that no further allegations of child abuse
had been received since the investigation closed, and that even interviews
with children released from the compound during the 5l-day siege "have not
confirmed any of the allegations or described any other incidents which
could verify our concerns that they have been victims of physical or sexual
abuse."

The government cannot be expected, of course, to give both sides of the
story in an ex parte search warrant. But a bad-faith omission of this kind
falls in another category. DeGuerin implied that, had Koresh lived, he would
have petitioned to have the warrant nullified on grounds first established
by the 1978 Supreme Court case Frank v. Delaware- which held that if an
agent knowingly falsifies or misleads the magistrate in the issuing of the
search warrant then the search warrant is invalid "If he says they've been
investigated for child abuse," says DeGuerin, "and yet the outcome of that
investigation was they were cleared of it, then that's misleading."

How much of what we think we know about Koresh and child abuse and sexual
contact with minors is true? How much of what can be verified is actually
against the law? How much of it is the product of sensationalized reporting,
ignorance of Texas law, and panicky, irresponsible exercises in official
self-justification, like Attorney General Janet Reno's wild claim (later
repudiated by the FBI) that she ordered the FBI to smash and gas because
"babies were being beaten" inside?

Remember Sparks's little fiction about her encounter with Koresh in the
compound when he promised to make the L.A. riots look like a tea party? When
I first asked her about it she confirmed it. "That's a fact," she said. I
asked if she was sure of the April 6 date. She hedged, but repeated that it
took place in the compound. "I don't remember the date. To be truthful I
haven't really looked at that, that's been over a year and a half ago, so
I'm not, I couldn't just get the dates for you, um, but on one of my visits,
yes, he did say that," she said. Told the exchange could not possibly have
happened on one of her visits to the compound (her final visit was April 6,
the riots were on April 29, the case was closed April 30) she responded, "We
made several visits, and I continued to have conversations with him even
after the case was closed." She maintained telephone contact with Koresh,
because she was convinced, despite all the denials, that "the children were
in danger." She "objected," she says, to her agency's decision to close the
case. "The [McLennan County] Sheriff's Department sabotaged our
intervention," she claims. "We were ordered to close the case."

Is it possible this family crisis intervention specialist's definition of
"child abuse" is somewhat broader than that of her colleagues, than that of
the McLennan County sheriffs, than the norm in the rural East Texas
community where she works? Pressed to specify what kind of danger the
children were in, Sparks answered, "There were indications that food was
being with held as punishment." As in being sent to bed without dinner? Is
that an uncommon practice in McLennan County?

Her other example has been widely repeated. "There were indications that
babies were being beaten." There is ample evidence that Koresh was a stern,
even severe, disciplinarian. He believed in spanking children. He sometimes
used a wooden spoon. But in my scouring of the record--the ATF warrant, two
quickie books on Koresh, voluminous case files and press reports--I have
found just one specific and detailed allegation that Koresh beat a baby. In
an affidavit filed in a Michigan trial over custody of Kiri Jewell (a child
who lived with her mother at the compound), ex-Davidian Michelle Tom alleged
that Koresh had beaten her eight-month-old child Tara's bottom until it
bled. Perhaps we will never learn if these practices were isolated or
routine. What we know is that a few defected and deprogrammed Davidians
alleged child abuse, and many more loyalists, while they lived, denied it.

We know that Koresh had an unchecked libido, a filthy vernacular that he
failed to clean up in the presence of children, that he had a harem of women
of varying ages, and that, dating from his announcement of his "New Light
Doctrine," he insisted on male celibacy in the compound, excepting only
himself. We also know that his sexual relations with his female followers
were consensual. I have never heard an allegation to the contrary. And they
were linked explicitly, in somewhat Victorian fashion, to procreation.

A Newsweek account gives a sense:

To many girls being chosen by Koresh was an honor they eagerly sought.
Koresh "wouldn't do it unless you wanted it," says Jeannine Bunds, 51....
"It wasn't about sex, but he was a very appealing, sexual person.... He
didn't say, 'Ooh, you've got sexy boobs.'" He just loved the idea of
womanhood...and he made you feel special...A union with Koresh was
spiritual, says Robyn Bunds, who met with Koresh when she was 14 and slept
with him when she was 17 . . . "He's perfect, and he's going to father your
children. What more can you ask for?"

Of course, there is a powerful social consensus that minors do not have the
emotional maturity to responsibly consent to sex, and thus we have statutory
rape laws. Not all support this consensus. First Lady Hillary Rodham
Clinton, for example, wrote some years ago, "The so-called status offenses,
incorrigibility, truancy, running away, sexual precociousness, represent a
confused mixture of social control and preventive care that has resulted in
the confinement of thousands of children for the crime of having trouble
growing up."

In a society afflicted with an epidemic of "children having children," it is
clear that statutory rape laws are often unenforced, though in many of these
cases the children are abandoned by "deadbeat dads." While Koresh did
provide for the children of his "wives," he would have been liable to
prosecution on sexual assault charges, second-degree felonies. While the age
of sexual consent is just 14 under the Texas penal code's Indecency with a
Child Statute, it is 17 under section 22.011, Sexual Assault.

There is an ironic socio-legal aspect here that has escaped general notice.
Under that Texas law, Koresh would have been off the hook if his teenaged
partners had been promiscuous before having sex with him. Obviously, in many
areas of the country, teenage sexual promiscuity is rampant, and in some
jurisdictions is tacitly condoned by the distribution of condoms in high
schools. But it is highly unlikely that any of Koresh's teenage partners met
this legal standard of promiscuity, because in his capacity as sexual
lawgiver at the compound he rigidly policed the girls' sexuality,
restricting them to the procreative sex they had with him. Thus, though some
will see him as nothing but a wanton sexual predator, he in fact faced an
unusually large area of legal vulnerability because he was a repressive
regulator of sexual mores within his isolated realm.

Whether deterred by the daunting prospect of prosecuting these unusual
sexual offenses, or by the thought that state intervention and dissolution
of the Davidian families might be more damaging even than the status quo,
the local law enforcement authorities with jurisdiction never stepped in to
force this community to conform en masse to the norms of the world from
which it had voluntarily withdrawn. Certainly, the ATF raiding party and the
FBI gas attack placed the Davidian children in far greater and more
immediate danger than any they had previously faced.

Why? Why does the ATF leave the evidence of illegal machine gun conversions
and grenade manufacture dangling somewhere below the level of probable
cause? And stuff its warrant instead with a circuit jamming array of
extraneous, manipulative, luridly alarmist material bearing on subjects that
fall well beyond the scope of the ATF's ostensible investigation and its
jurisdiction?

"The information about the child abuse establishes information concerning
the level of threat to life and safety which exists within the compound,"
says ATF spokesman Jack Killorin. "The warrant is for an imminent threat to
the life and safety of everybody in that compound. The warrant is for the
illicit manufacture of explosives and explosive devices which right away is
an immediate threat to the life and safety of every person in there."

An immediate threat to the life and safety of every person in there? A boy
who wants to grow up so he can carry a gun? The viewing of Platoon? The
leader s polygamy? Lapsed visas? On close inspection, as we have seen, this
material hardly establishes an immediate threat to the life and safety of
every person in there.

But quickly digested and taken at face value, this information would likely
be interpreted as Killorin suggests it should, as justifying a massive raid
on a split-second timetable that indiscriminately placed in danger every
person in the compound, from the suspected wrongdoer to blameless infants
and elderly and everyone in between. A matter-of-fact case of suspected
violations of the National Firearms Act, on the other hand, would hardly
have provided a reasonable basis for such extraordinary enforcement
measures.

A Raid, Regardless

By February 23-25, when Aguilera was drafting his affidavit, ATF Special
Response Teams from three cities were already at Fort Hood, drilling for the
imminent raid, and planning had been underway for months. With the plan
locked in, the affidavit would have to do more than document probable cause
to believe Koresh had violated the NFA-it would have to leave a record
justifying a military-style assault.

But why would ATF have decided on a high-risk military style raid when they
might have picked Koresh up on one of his regular jogs? Or, alternatively,
when he was out shopping, as he often was, with his legal wife Rachel and
their kids in local music stores and auto parts shops? Or when he was at one
of the many gun shows he regularly attended?

Because the visuals wouldn't have been sexy. The ATF invited television news
crews along on this raid. Indeed, it was local television cameraman John
McLemore who, according to Harwell, inadvertently tipped off a Koresh
follower he encountered on the road of the raid scheduled to commence later
the same morning.

This looks like a "rice bowl raid," undertaken to boost the agency's
standing among the Washington bureaucrats and legislators who fund it. It
was appropriations season in Washington. The bureau's annual appropriations
hearing was scheduled for March 10 1993. Videotape of the bureau's precision
raid on an armed and dangerous cult leader would have been fresh in the
minds of congressional appropriators. In normal times, it would likely have
served as a powerful symbol of ATF enforcement prowess for years to come,
much as the bureau's tracing of the gun John Hinckley used has served for
years as a powerful symbol of its investigative prowess.

But these were not normal times for the agency. Its public image and morale
had been devastated by a January 12 expose on "60 Minutes." The segment
broadcast graphic allegations by female ATF agents that they had been
sexually harassed on the job by male colleagues and that the agency
intimidated and punished victims and witnesses who had pressed sexual
harassment claims. One agent, Michelle Roberts, charged that agents had left
dildos and other sexual devices on her desk. She also charged that after an
undercover assignment, one agent had pinned her against the hood of a car
while two others tore at her clothes. While the segment didn't air until
January 12, by which time planning was underway for the raid on Mount
Carmel, it had been in production for some time. And "60 Minutes" had first
contacted ATF personnel around mid-November 1992, according to Bob Anderson,
who produced the segment for CBS. In other words, the character of the ATF's
Koresh investigation changed radically in the weeks just after bureau
officials would have learned that "60 Minutes" had them in its sights.

For the first time in twelve years a liberal would be in the White House,
and with Congress still in Democratic hands, Washington was on the threshold
of a new era of liberal activism. What a first impression the ATF would make
on its new bosses! Sexual harassment! Could there be a better way of washing
away this taint of troglodyte sexism than mounting an operation against the
self-proclaimed prophet they had under investigation down in Waco, this
white, male, sexually predatory, patriarchal, tax-resisting, gun-loving
religious nut with a fierce will not to be governed by secular authorities?

Self-Defense?

Whether the ATF succeeded in establishing probable cause or not, they had
legal search and arrest warrants, signed by a magistrate. If, as the
government contends, Koresh, after detecting the impending raid on the
morning of the 28th, prepared his followers for armed resistance and sent
them to their battle stations to repulse a legally authorized raid, then he
and those who followed his commands are responsible for the deaths of four
federal agents. They are murderers.

Unless the government fired first. There is no law anywhere that requires
someone to offer himself as target practice, to federal agents or anyone
else.

The outlines of the government's case have already been sketched in ATF
affidavits filed after the initial shootout in support of charges against
released cult members for conspiring to murder federal officers. Early on
the morning of the 28th, David Jones, a Koresh follower and Mount Carmel
resident, went out for a newspaper. On his return, he saw a driver who
appeared to be lost, and stopped to offer help. Jones, it happened, was a
postman, who made his rounds in his own car, which bore the postal service
logo. The driver asked Jones whether he was a postal employee, and Jones
assured him-twice-that he was. John McLemore, a cameraman with Waco's
KWTX-TV, identified himself to Jones and warned him that agents would soon
be on their way out there, prepared for a shootout. Jones hot-footed it back
to Koresh.

Inside, Koresh was providing a biblical exegesis for Robert Rodriguez, an
ATF undercover agent who had infiltrated the cult in early January, posing
as a neighboring graduate student. (Rodriguez gathered little evidence to
bolster the government's case against Koresh. In the one interview he has
given, he described poignantly how a steady diet of Koresh's biblical
teachings had almost hooked him. Asked by Dallas Morning News writer Lee
Hancock if Koresh ever got to him, he answered in a cracking voice, "He was
close.") The Davidians had long since divined his true identity. How to warn
Koresh without tipping off the undercover agent that surprise had been lost?

A ruse was devised. One version has David Jones interrupting Koresh to ask
him to step into another room to take a long distance call from England.
Another has a Davidian calling a relative instructing that relative to
immediately call back and ask for Koresh.

In ATF agent Earl Dunagan's account in his affidavit, the details are left
vague, but the meaning is clear:

Early in the morning of Sunday, February 28, 1993, the undercover agent
entered the Mount Carmel Compound and met with Vernon Howell, Steve
Schneider, and other residents of the compound. Vernon Howell was then
summoned from the room by a fellow resident of the compound, Perry Jones,
leaving the agent in the foyer area. At about the same time, David Michael
Jones, an associate of Vernon Howell, had arrived at the compound after
learning that the compound might be raided that day. A short time later,
Howell returned to the room where the agent waited, and exclaimed that the
ATF and the National Guard were coming to get him. Howell continued, saying,
"Neither ATF or [sic] the National Guard will ever get me. They got me once,
and they will never get me again. They are coming; the time has come."

Shortly thereafter, the undercover agent left the compound.

The government will use Koresh's chilling final words to the plant in
support of its argument that Koresh methodically ordered his people to grab
their guns and man their battle stations to repulse the expected raid. But
is the Rodriguez account precise? At the moment of the alleged words, a
panicked Rodriguez feared for his life. "They opened the door for me to get
out, and I said to myself, 'They were going to shoot me in the back,'" he
told the Dallas paper.

Perhaps Rodriguez quoted Koresh accurately. If so, Koresh's words are
strange indeed. Taken literally, they make no sense. Koresh never had been
taken by either the ATF or the National Guard. Any Davidians present would
surely have known this. Perhaps he intended those words as a warning for
Rodriguez to relay to his superiors. It is strange that Koresh, allegedly
readying himself for his long sought showdown with the law, let an ATF agent
go, rather than shooting him or keeping him hostage. Koresh learned they
were coming and let an agent go unharmed. The ATF learned that they'd been
snitched on and had lost the element of surprise-and proceeded.

There is another version of how the shooting started. Dick DeGuerin relates
what his client said when he visited with him inside the compound during the
long stand-off with the FBI:

He knew they were coming, and he was watching for them and saw these two
cattle trailers roar up, and people start streaming out of the back of them,
screaming at the tops of their lungs, not anything like, "This is a search"
or "We're agents" or "Put up your hands"or anything like that. It was just
screaming, yelling, like Marines storming the beach.

He stepped out the door, held up his right hand and said, "Wait, go back,
there are women and children in here. Let's talk about this."

And he was met with, first, one shot that barely missed his head, hit the
door right by his head, and then a barrage of shots, and he ducked back
inside.... They didn't get him. They did kill Perry Jones with that first
barrage.... After that, those on the inside ran to their rooms, got their
guns and started firing back.

Of course, DeGuerin was not there at the time. This is his recollection of
what Koresh told him after he would have had time to concoct at his leisure
a version of events that indicated legitimate self-defense.

Since DeGuerin offered this unsubstantiated account, the 911 tapes have been
released. Twice while under ATF fire, the compound placed emergency calls to
the McLennan County Sherif's 911 switchboard. In the first call, Wayne
Martin, a top Koresh lieutenant and also a Waco attorney well known and
liked in the local legal community, pleads with Sheriff's Lieutenant Larry
Lynch:

LYNCH: Mount Carmel?

MARTIN: Yeah. Tell them there are children and women in here and to call it
off.

LYNCH: All right. All right. Hello? I hear gunfire. Oh, [expletive deleted].

MARTIN: Call it off.

Koresh himself places a second 911 call. After making grimly ironic note of
the lieutenant's name ("Hey, Lynch? . . . That's a kind of funny name
there."), Koresh, in real time now, in the fog of battle, laments the
government's failure to talk before shooting:

KORESH: You see, you brought your bunch of guys out here and you killed some
of my children. We told you we wanted to talk. No. How come you guys try to
be ATF agents? How come you try to be so big all the time?

LYNCH: Okay, David.

KORESH: Now, there' s a bunch of us dead, and a bunch of you guys dead.
Now-now, that's your fault.

LYNCH: Okay, let's-let's try to resolve this now. Tell me this.

Now, you have casualties. How many casualties? Do you want to try to work
something out? ATF is pulling back, we're tying to-

KORESH: Why didn't you do that first?

In a third and final call, placed by Lynch, Martin repeatedly pleads for a
cease-fire, offers to arrange one, and claims at one point that the people
inside had ceased their fire, but that incoming fire had continued unabated.
"I have a right to defend myself," he says at one point. "They started
firing first.''

But a half-hour elapsed between the first call and the first radio contact
between the Sheriff's office and the ATF at the site. An hour passed before
Lynch could reach the ATF on a secure line. Sheriff Jack Harwell, the chief
law enforcement officer in the jurisdiction, had been largely left out of
the loop by the ATF throughout the investigation and the raid. Might the
outcome have been different if his and his department's accumulated insight
into the ATF's prey been adequately tapped? If their record of successful,
direct interaction with Koresh and his flock had been studied as a model?
Maybe, maybe not. With federal agents and Davidians alike dropping dead in
the furious crossfire a few miles out of town, the local sheriff's
department couldn't get a federal agent on the phone. But the cameras were
there to capture footage of a hundred black flak jackets and blue ATF
windbreakers swarming into Caliban's kingdom.

----------------------

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