Donald Trump’s second attorney general, William Barr, was widely praised during his confirmation process earlier this year. Trump hailed Barr as “one of the most highly respected lawyers and legal minds in the country.” Sen. Lindsey Graham (R-S.C.), the chairman of the Senate Judiciary Committee, said Barr has “an impeccable reputation” and is “a man of the highest integrity and character.” But almost no one in Washington had any questions about Barr’s legal crusade for blanket immunity for federal agents who killed American citizens.
After he was nominated, Barr received a routine questionnaire from the Senate Judiciary Committee asking him to disclose his past work, including pro bono activities “serving the disadvantaged.” The “disadvantaged” that Barr spent the most time helping was an FBI agent who had slain an Idaho mother holding her baby in 1992. Barr spent two weeks organizing former attorneys general and others to support “an FBI sniper in defending against criminal charges in connection with the Ruby Ridge incident.” He also “assisted in framing legal arguments advanced … in the district court and the subsequent appeal to the Ninth Circuit,” he told the committee.
That charitable work (for an FBI agent who already had a federally paid law firm defending him) helped tamp down one of the worst scandals during Barr’s time as attorney general from 1991 to early 1993. Barr was responsible for both the U.S. Marshals Service and the Federal Bureau of Investigation, two federal agencies whose misconduct at Ruby Ridge “helped to weaken the bond of trust that must exist between ordinary Americans and our law enforcement agencies,” according to a 1995 Senate Judiciary Committee report.
In the early 1990s, federal agencies targeted Randy Weaver, an outspoken white separatist living on a mountaintop in northern Idaho. After Weaver was entrapped by an undercover Alcohol, Tobacco, and Firearms agent, U.S. marshals trespassed on Weaver’s land and killed his 14-year-old son, Sammy. The following day, FBI sniper Lon Horiuchi killed his wife as she was standing in the cabin doorway holding her 10-month-old baby. Horiuchi had previously shot Randy Weaver in the back after he stepped out of the cabin. The suspects were never given a warning or a chance to surrender and had taken no action against FBI agents.
FBI officials recognized that Mrs. Weaver had been killed but, during the subsequent siege, assured the media that they were “proceeding with extreme care, mindful that Weaver’s wife, Vicki, and three remaining children were also in the cabin,” Reuters reported. An internal FBI report completed shortly after the confrontation justified the killing of Mrs. Weaver by asserting that she had put herself in harm’s way, the New York Times reported in 1993. Yet Bo Gritz, the former Vietnam War hero who helped the feds negotiate Randy Weaver’s surrender after the death of his wife, declared that the government’s profile of the Weaver family recommended killing Weaver’s wife: “I believe Vicki was shot purposely by the sniper as a priority target…. The profile said, if you get a chance, take Vicki Weaver out.” As Mrs. Weaver’s corpse remained in the besieged cabin, “The FBI used microphones to taunt the family. ‘Good morning, Mrs. Weaver. We had pancakes for breakfast. What did you have?’ asked the agents in at least one exchange,” the Washington Times reported.
Federal prosecutors portrayed Randy Weaver as a dangerous conspirator against the government but an Idaho jury didn’t buy that story and found him not guilty on almost all charges. Federal judge Edward Lodge condemned the FBI: “The actions of the government, acting through the FBI, evidence a callous disregard for the rights of the defendants and the interests of justice and demonstrate a complete lack of respect for the order and directions of this court.” Judge Lodge issued a lengthy list detailing the Justice Department’s misconduct, fabrication of evidence, and refusals to obey court orders.
The Clinton administration responded by launching “one of the largest and most wrenching internal inquiries ever conducted by the Justice Department,” the New York Times reported. A confidential Justice Department 542-page report that chronicled federal misconduct, concluded the Rules of Engagement “contravened the Constitution of the United States”: “The Constitution allows no person to become ‘fair game’ for deadly force without law enforcement evaluating the threat that person poses, even when, as occurred here, the evaluation must be made in a split second.” The report suggested filing criminal charges against FBI officials but that recommendation was vetoed by Assistant Attorney General Deval Patrick, who ruled that the FBI sniper did not violate Mrs. Weaver’s civil rights when he killed her.
Criminal charges
What did William Barr know and when did he know it? In 1993, Barr told the New York Times that he had not been directly involved in the Ruby Ridge operation. Two years later, the Washington Post revealed that “top officials of the [George H.W.] Bush Justice Department had at least 20 [phone] contacts concerning Ruby Ridge in the 24 hours before Vicki Weaver was shot,” including two calls involving Barr.
In January 1995, FBI director Louis Freeh announced wrist slaps for the FBI officials involved with Ruby Ridge, including his friend Larry Potts, who was the headquarters official in charge of the Idaho operation and who signed off on the shoot-without-provocation orders. Freeh recommended that the only penalty Potts receive be a letter of censure — the same penalty that Freeh received when he reported losing an FBI cell telephone. Five months later, when Attorney General Janet Reno nominated Potts for deputy director of the FBI, many Republicans and top newspapers denounced her decision.
The uproar did not stop William Barr from heaping praise on his old friend, telling the New York Times that Larry Potts “was deliberate and careful, and I developed a great deal of confidence in his judgment…. Traditionally the bureau has had a reputation of being very narrow. But he always offered a broader view. I can’t think of enough good things to say about him.” However, a few months later, FBI chief Freeh suspended Potts, along with three other high-ranking FBI officials implicated in the events of Ruby Ridge. Potts was never charged with wrongdoing and retired two years later.
But according to Potts, any federal misconduct was irrelevant. When he testified on Ruby Ridge before the Senate Judiciary Committee in late 1995, he said he hoped the hearings “will have a positive effect in helping citizens understand the potential danger of armed resistance to lawful authority.” But it takes more than a badge and a gun to make authority “lawful.” Potts had also overseen the Branch Davidian confrontation at Waco; he justified the FBI’s final tank assault — which ended with 80 corpses — because “these people had thumbed their nose at law enforcement.” Barr apparently never quibbled with that comment.
In 1998, Boundary County, Idaho, filed criminal charges against FBI sniper Lon Horiuchi for the killing of Vicki Weaver. Barr sided with the Clinton Justice Department, urging absolute immunity for FBI snipers. He spearheaded efforts to get other top government officials to join that cause. He was joined by three other former attorneys general in a 2000 brief urging a federal appeals court to dismiss charges against Horiuchi: “The sniper’s job in law enforcement requires split-second judgment that must depend exclusively on his/her federal training and policy…. To subject the performance of that function to second-guessing in the context of a state criminal action is to severely undermine, if not cripple, the ability of future attorneys general to rely on such specialized units in moments of crisis such as hostage taking and terrorist acts.”
But that brief ignored what the FBI snipers actually did at Ruby Ridge. At the federal trial in 1993, Horiuchi testified that he never saw Weaver holding a gun before he tried to kill him. Horiuchi explained the plan of the FBI snipers at Weaver’s trial: “We were planning to shoot the adult males.” The Justice Department confidential report noted that one FBI SWAT team member “remembered the Rules of Engagement as ‘if you see ’em, shoot ’em.”’ FBI sniper Peter King, who was also deployed at Ruby Ridge, told the Senate committee in 1995 that the shoot-to-kill rules of engagement were “crazy.” Five FBI agents took the Fifth Amendment at the Senate hearing rather than tell the incriminating truth about their activities on the Ruby Ridge case.
Government killing
When the Justice Department won an initial appeals court victory, federal judge Alex Kozinski condemned the new James Bond “007 standard for the use of deadly force” against American citizens. Kozinski harshly dissented, declaring, “Law enforcement officials may not kill suspects who do not pose an immediate threat to their safety or to the safety of others simply because they are armed.” Kozinski also commented, “It is … immensely troubling that the majority today holds — for the first time anywhere — that law-enforcement agents may kill someone simply to keep him from taking up a defensive position…. Taking a defensive position may have kept the suspects from being apprehended right away, but it would have posed no immediate threat to the officers…. Absent a threat, the FBI agents were not entitled to kill.”
The following year, that decision was reversed by an en banc ruling by the Ninth Circuit. Kozinski, writing for the majority, declared, “A group of FBI agents formulated rules of engagement that permitted their colleagues to hide in the bushes and gun down men who posed no immediate threat. Such wartime rules are patently unconstitutional for a police action.” He also declared that law-enforcement officers cannot invoke a “Nuremberg Defense,” merely following orders when their actions lead to death. Kozinski ruled that “Horiuchi’s criminal responsibility, if any, for killing Mrs. Weaver is a matter of state law, to be determined by a jury after a trial.” (Boundary County failed to prosecute Horiuchi because Denise Woodbury, the prosecutor who had pushed the charge, was defeated in a primary challenge and her successor did not wish to pursue the case.)
Unfortunately, no one has publicly questioned Attorney General Barr about whether he still endorses boundless prerogatives for FBI snipers. In recent years, Americans have become more concerned than ever before about police abuses and unjustified shootings of innocent citizens. Does our attorney general consider “illegal government killings” to be an oxymoron? And if he gets a chance, it would be great if he could elucidate his understanding of the phrase “government under the law.”
This article was originally published int he June 2016 edition of Future of Freedom.
