User:Naaman Brown/Letters on Waco and Ruby Ridge

Joint Letters to Federal Authorities on the Waco and Ruby Ridge Sieges
'''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.
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.
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.