Don Kates' Speech at Harvard Law School

April 20, 1993

I recently learned that Don Kates was going to be in Boston to give a talk at the Harvard Law School about the Waco situation. (Of course, this was all set up after the incident started but long before its unhappy conclusion.) So, yesterday I went to hear him. What follows is a rough summary of what I think I heard him say, which should not be taken as exactly what he actually said...

Kates started by saying that since he didn't know any more about the fire than the audience did (it had just happened the day before), he would not discuss that, but would concentrate on the original raid.

Koresh definitely was not playing with a full deck. But so what? This isn't the first time that the leader of a new, small religious group has been ridiculed by the public. Extreme religious views nearly always fuel hatred and mistrust. The first amendment applies, maybe especially, to people like Koresh.

Lengthy digression into the history of police organizations in the US. There were none until about 1830, when they began in metropolitan areas. Police originally were not armed; if they found a crime in progress, they called local armed citizens to help. Many began to carry arms for protection despite regulations against them, eventually the laws were changed to allow them to carry guns. The original intent was to have many small police departments, jealous of one another and competitive, but not large enough to be a threat to liberty, hence the plethora of organizations ranging from postal inspectors to the coast guard. When the FBI was started, agents did not have the authority to carry guns (they were to be, after all, a bureau of investigation, not a police force).

"All police agencies will be misused by anyone in power to maintain that power."

The BATF started as a tax collection agency, whose primary job was to raid illegal stills. When the price of sugar went up so high that moonshiners no longer found their trade no longer profitable, many illegal stills disappeared, and the BATF needed something else to do to justify its existence, so it turned to activities like phony raids on gun stores.

Around the time when the BATF's annual budget is under review, the media is alerted by the BATF to come to such-and-such a place, where at a pre-arranged time, a bunch of cars full of BATF agents roar up to the door and the media get great pictures of the agents entering the premises of a gun dealer suspected of not keeping books properly. The media isn't invited in for the boring hours of agents leafing through paperwork, but if any irregularities are found, the media gets to cover the agents removing armfuls of guns from the premises, and the luckless FFL in chains.

The Waco incident happened a few weeks before BATF's budget was up for review.

Kates' opinion is that it was a staged publicity stunt that went bad, and that the BATF never thought for a moment that they would actually be shot at, or they would have planned the raid differently (not sending agents over open ground with no cover, for example), and would have had some medical personnel on hand.

The BATF didn't take into account that, unlike most of the FFLs they audit, Koresh was actually paranoid, and fostered paranoia in his followers. Thus the publicity stunt looked like a real attack to them, and they reacted accordingly.

With respect to the original warrant, it had not been unsealed when Kates was giving his talk, so he could not comment on it, except to mention that the BATF has been known to not double-check the veracity of their informants, if they can manage to get a judge to issue a warrant. He had more to say about the way the warrant was served, which may have been completely illegal. Apparently the proper way to serve a warrant is to knock on the door and announce that you're an officer with a warrant for thus-and-so; if they don't open the door and the evidence is flushable, then it is ok to break in the door. But since it is hard to flush guns down the toilet, there may have been no justification for the BATF breaking in the way they did. If the constitutional rights of the Davidians were violated by an invalid warrant, or by an improperly served warrant, then the Davidians may have been justified in their actions. A close look at one of the original films shows that one BATF agent may have shot himself by accident when entering the building; if so, this was the first shot fired!

The role of the media could have been a whole lot worse. After an initial position on the side of the BATF, the media began to come around to the view that this might be a situation in which legally armed citizens held off a bad, possibly illegal attack. A real cynic might say that the FBI went in when they did because it was clear that public opinion was beginning to change sides, and the FBI wanted to act before they lost the public's sympathy.

Should the BATF be abolished? No. Police agencies should be numerous, diverse, inefficient, decentralized, etc. Better a few inept accidents like this, than a move toward a single, large, well-organized, well-trained, powerful, domestic police force, which would eventually have even more tragic results.

- By Lyn Bates

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