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The Justice Department’s Other Criminal Cover-Up

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Many Americans have been appalled in recent months to watch the Justice Department use one tactic after another to block inquiries into possible criminal wrongdoing by the Clinton administration. Regrettably, such anti-justice tactics are not a novelty. The Justice Department’s continuing falsification and obstruction of justice in the Ruby Ridge case exemplify its devotion to covering up crimes against the American people.

The Ruby Ridge case involved the entrapment of Randy Weaver on firearms charges by a Bureau of Alcohol, Tobacco and Firearms informant; false BATF reports to federal prosecutors; and dozens of intrusions by U.S. marshals on Weaver’s land.

On August 21, 1992, three U.S. marshals ambushed Weaver’s 14-year old son, Sammy, and family friend Kevin Harris. Marshal Arthur Roderick shot the boy’s dog, and when the boy fired back, a firefight ensued in which Marshal William Degan was killed. As Sammy Weaver was leaving the scene and running back towards the family’s shack, Marshal Larry Cooper shot him in the back and killed him.

The next day, FBI snipers arrived on the scene and received official rules of engagement that declared that “any armed male adult observed in the vicinity of the Weaver cabin could and should be killed.” Within an hour of the snipers’ taking position, every adult in the cabin was either dead or severely wounded, though they had offered no resistance. FBI sniper Lon Horiuchi shot Randy Weaver in the back as he stood outside his shack and then fired a shot that killed Vicki Weaver as she stood in the cabin doorway holding their 10-month old baby.

A confidential Justice Department report indicated that numerous federal officials may have broken the law, obstructed justice, or perjured themselves, but the investigation was dropped after politicos ruled that no one’s civil rights were violated.

In July 1995, after new evidence leaked out, Michael Kahoe, the director of the FBI’s Violent Crimes and Major Offenders Section, was suspended for suspicion of shredding a key document on the case. (Kahoe pled guilty in the fall of 1996.) A few weeks later, FBI Deputy Director Larry Potts and four other high-ranking officials were suspended from their positions (with full pay) as Justice renewed its investigation.

Slightly more than two years later – last August 15 – the Justice Department announced that it intended to file no criminal charges against high-ranking FBI agents (aside from Kahoe) suspected of involvement in covering up agency misdeeds. The Justice Department press release indicates that this was a Clinton administration-style investigation:

“Toll records relating to 226,960 telephone calls were examined, 143 exhibits were submitted to the FBI laboratory, and another 97 were sent to the Postal Inspection Service Laboratory for examination. Two hundred eighty-nine computer hard drives and 351 disks from the FBI were also examined for pertinent material.”

Perhaps one should be surprised that the final report did not include the precise number of times that members of the investigation team flushed toilets in government office buildings during those two years. Naturally, no evidence was found to justify criminally prosecuting any federal agent who had not already copped a plea.

From the beginning of this case, Justice Department officials have repeatedly lied about the circumstances of Ruby Ridge. Initial FBI internal reports contained such ludicrous claims as that Vicki Weaver stood in the front yard pointing her gun at a helicopter when she was gunned down. FBI officials in 1995 repeatedly lied, claiming that the shot that killed Vicki Weaver first struck Kevin Harris – rather than the reverse.

The most recent report of the two-year Justice “investigation” states merely that Horiuchi’s “second shot struck both Vicki Weaver and Harris, killing Vicki Weaver instantly and wounding Harris.” Apparently, which one was shot first is now unimportant to the Justice Department. Moreover, an allegation that Horiuchi had a clear view of Vicki Weaver through the cabin door with his 10-power scope is apparently irrelevant. The Justice Department official statement on its two-year investigation declares:

“The little circumstantial evidence from which it could be argued that there may have been an intent to use more force [by FBI snipers] than was necessary was far outweighed by a significant amount of evidence that law enforcement had no such intention here. Instead, there was substantial evidence that FBI law enforcement efforts were undertaken by on-site supervisors with the actual, although not completely accurate, belief that Randall Weaver and Kevin Harris posed a severe threat to law enforcement officers requiring the use of deadly force.”

To claim that the belief that Weaver and Harris “posed a severe threat to law enforcement officers” was “not completely accurate” is bizarre – since the FBI snipers were hidden in the woods hundreds of yards away, simply biding their time before making a killing. A recent federal appeals court ruling declared:

“Horiuchi and his fellow officers were safely ensconced on the hill overlooking the Weaver cabin. No threatening movement was made by Harris with respect to Horiuchi or anyone else, even after Horiuchi shot Randy Weaver.”

A 1995 Senate Judiciary subcommittee report on the rules of engagement found that they were blatantly unconstitutional – yet the Justice Department dismisses such a finding as merely “little circumstantial evidence.” The appeals court also noted that the rules of engagement constitute “a gross deviation from constitutional principles and a wholly unwarranted return to a lawless and arbitrary wild-west school of law enforcement.”

No one in the FBI will be held responsible by the Justice Department for the notorious “go kill them on the mountain” order. The only official who will receive any legal penalty is someone who destroyed a document. To Justice Department investigators, shredding paper is apparently a worse offense than killing innocent civilians. Surprisingly, the investigation recommended no criminal prosecution of Kahoe’s assistant, FBI Special Agent Gale R. Evans, even though the investigation found that “at Kahoe’s direction, Evans destroyed copies of the FBI Ruby Ridge After Action Critique, as well as his computer disk containing the critique.” Evans faced no charges for obstruction of justice; as the final report noted:

“The Investigative Team recommended against prosecution on the basis of Evans’ significant cooperation, without any promises, from the outset of this investigation; the nature of his subordinate role in the criminal conduct; and the availability of administrative sanctions.”

Thus, willfully destroying evidence does not lead to criminal charges – as long as you are following orders and as long as FBI superiors can deny you an “above average” job performance rating for your next evaluation.

Michael Kahoe was sentenced last fall for felony charges of obstruction of justice. He will serve 18 months in prison and pay a $4,000 fine. Kahoe could have received up to 10 years in prison and a $250,000 fine. But the real lesson of the Kahoe sentence is this: Cover up a killing, get a pension. Kahoe was permitted to stay on the FBI payroll (at $112,000 a year) for several months after he pled guilty so that he could qualify for a pension of $67,000 per year. If he had been fired at the time that he pled guilty to obstruction of justice, his pension would have been much less. What sort of Justice Department keeps people on its payroll after they plead guilty to obstruction of justice?

The Justice Department investigation concluded that “there is insufficient evidence to prove that excessive, unlawful force was knowingly and intentionally employed by FBI personnel in their response to the situation they confronted at Ruby Ridge.” Perhaps the Justice Department believed that the FBI had used restraint because there were several Weaver family members who were not shot by the snipers. Sen. Charles Grassley complained of the Justice Department’s decision not to prosecute any other top-ranking FBI officials: “Accountability has still not been achieved. And so, neither has a restoration of the public’s confidence in federal law enforcement.”

A week after the Justice Department whitewashed the Ruby Ridge case, Boundary County, Idaho, prosecutor Denise Woodbury announced the indictment of FBI sniper Lon Horiuchi for involuntary manslaughter for killing Vicki Weaver. FBI Director Louis Freeh was outraged that a local court would seek to hold an FBI agent legally responsible for the killing, declaring that Horiuchi had an “exemplary record” and is “an outstanding agent and continues to have my total support and confidence.” This raises the question: How many mothers holding babies does an FBI agent have to gun down before the FBI director loses faith in him? Freeh declared: “We fully support [Horiuchi]. The FBI is doing everything within its power to ensure he is defended to the full extent and that his rights as a federal law enforcement officer are fully protected.”

The same Horiuchi shot that killed Vicki Weaver also hit and severely wounded Kevin Harris. Harris is now suing Horiuchi and 12 other federal agents for damages. The agents’ lawyers – hired by the Justice Department and financed by U.S. taxpayers – argued in federal court that the defendants were immune from liability, regardless of what they had done. As the federal court decision noted, U.S. Marshals

“Cooper and Roderick contend that they have absolute immunity from claims that they gave false testimony: a) in official reports; b) before the grand jury that indicted Harris on the federal charges; and c) at his trial on those charges.”

The court decision noted that FBI sniper “Horiuchi asserts that … the force he actually used was reasonably necessary to arrest Harris.” But as David Nevin, the Idaho lawyer who won fame in 1993 for his successful defense of Harris against charges of murdering Marshal Degan, noted: “Horiuchi made a lot of statements – before he started taking the Fifth Amendment – that he intended to kill people” whom he fired at from his sniper post. The federal appeals court on September 25 cleared the way for the case to go to trial. However, the Justice Department is expected to use every possible delaying tactic.

The more powerful the Justice Department becomes, the more injustices the American people can expect. The continuing scandal of Ruby Ridge makes vivid that the federal government cannot be trusted to police itself or protect Americans against gross violations of their rights.

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    James Bovard serves as policy advisor to The Future of Freedom Foundation. He has written for the New York Times, The Wall Street Journal, The Washington Post, New Republic, Reader's Digest, Playboy, American Spectator, Investors Business Daily, and many other publications. He is the author of a new e-book memoir, Public Policy Hooligan. His other books include: Attention Deficit Democracy (2006); The Bush Betrayal (2004); Terrorism and Tyranny (2003); Feeling Your Pain (2000); Freedom in Chains (1999); Shakedown (1995); Lost Rights (1994); The Fair Trade Fraud (1991); and The Farm Fiasco (1989). He was the 1995 co-recipient of the Thomas Szasz Award for Civil Liberties work, awarded by the Center for Independent Thought, and the recipient of the 1996 Freedom Fund Award from the Firearms Civil Rights Defense Fund of the National Rifle Association. His book Lost Rights received the Mencken Award as Book of the Year from the Free Press Association. His Terrorism and Tyranny won Laissez Faire Book's Lysander Spooner award for the Best Book on Liberty in 2003. Read his blog. Send him email.