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THE DEATH OF FREE EXERCISE IN AMERICA:
THE FEDERAL GOVERNMENT'S LETHAL ASSAULT
UPON THE BRANCH DAVIDIAN CHURCH IN WACO, TEXAS

Steven W. Becker

© 2000 Steven W. Becker

"Those who begin coercive elimination of dissent soon find themselves exterminating dissenters. Compulsory unification of opinion achieves only the unanimity of the graveyard.

"It seems trite but necessary to say that the First Amendment to our Constitution was designed to avoid these ends by avoiding these beginnings."

   On April 19, 1993, more than seventy members of the Branch Davidian Church at Waco, Texas were killed as a result of a tank and gas assault conducted by the Federal Bureau of Investigation ("FBI").² This author was one of the millions of Americans who watched in horror on that fateful day as smoke began to billow from the rural church in the strong Texas winds. At the time, I was unaware that the FBI had pumped the church full of a gas so dangerous that it was banned for use in war by the Chemical Weapons Convention of 1993,³ of which the United States was a signatory.⁴ Nor was I cognizant of the fact that federal agents may have deliberately shot at fleeing Davidians to prevent them from escaping the fiery inferno.⁵ But there was one thing I was sure of—I was no longer in the United States of America.

   I. Neutrality Towards Religion

   The First Amendment to the United States Constitution provides, in pertinent part, as follows: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . . ."⁶ Although this provision was specifically addressed to the legislature, its prohibitions were applied early on to the executive branch. For example, Thomas Jefferson declined to declare thanksgiving or fast days during his presidency because of his conviction that, in approving the First Amendment, the American people must have likewise sought to limit the executive in public pronouncements regarding religion.⁷

   Similarly, in enacting the Privacy Act of 1974,⁸ Congress prohibited executive agencies⁹ from collecting, maintaining, using, or disseminating any records describing the exercise of religious,¹⁰ or other First Amendment, activities unless the compiling or retention of such information fell within narrow exceptions.¹¹ The current Federal Rules of Evidence also reflect a serious concern over the sanctity, and potential misuse, of religious beliefs in the judicial process. Specifically, Rule 610 states: "Evidence of the beliefs or opinions of a witness on matters of religion is not admissible for the purpose of showing that by reason of their nature the witness' credibility is impaired or enhanced."¹²

   It is well established that, pursuant to both the Free Exercise and Establishment Clauses, the federal government must "pursue a course of 'neutrality' toward religion."¹³ In Church of Lukumi Babalu Aye, Inc. v. City of Hialeah,¹⁴ the Supreme Court remarked as follows:

   The Free Exercise Clause, like the Establishment Clause, extends beyond facial discrimination. The Clause "forbids subtle departures from neutrality" and "covert suppression of particular religious beliefs." Official action that targets religious conduct for distinctive treatment cannot be shielded by mere compliance with the requirement of facial neutrality. The Free Exercise Clause protects against governmental hostility which is masked as well as overt.¹⁵

   In addition, in describing the substance of the "neutrality" doctrine, Professor Laycock stated: "When I say government should be neutral towards religion, I mean to include the claim that it should not express an opinion about religion."¹⁶ At Waco, however, the government not only officially expressed its opinion regarding the theological beliefs of the Davidians, but acted on its prejudices with fatal consequences.

   A. Hostility Towards Marginal Religious Movements

   Perhaps the best historical example of the federal government's open hostility to a nonconventional religious group is that concerning the Church of Jesus Christ of Latter-Day Saints ("LDS"). For example, in Reynolds v. United States,¹⁷ the Court upheld the constitutionality of a bigamy statute against a challenge that the provision violated the defendant's right to freely exercise his doctrinal duty to practice polygamy as counseled by the LDS church.¹⁸ In so ruling, the Court stated:

   Laws are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices.

   . . . Can a man excuse his practices to the contrary because of his religious belief? To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself. Government could exist only in name under such circumstances.¹⁹

   Similarly, in Davis v. Beason,²⁰ the Court upheld the validity of an Idaho territorial statute prescribing an oath that prevented LDS members from registering to vote because of the church's teaching on plural marriage.²¹

   In addition, in Late Corp. of Church of Jesus Christ of Latter-Day Saints v. United States,²² the Supreme Court confirmed the power of Congress not only to revoke the charter of the LDS church, but to seize the latter's property, as well.²³ The Court's open hostility to the religious beliefs of that "contumacious organization,"²⁴ the LDS church, is evident from the following passage:

   But it is . . . a matter of public notoriety, that the religious and charitable uses intended to be subserved and promoted are the inculcation and spread of the doctrines and usages of the Mormon Church, or Church of Latter-Day Saints, one of the distinguishing features of which is the practice of polygamy—a crime against the laws, and abhorrent to the sentiments and feelings of the civilized world. Notwithstanding the stringent laws which have been passed by Congress—notwithstanding all the efforts made to suppress this barbarous practice—the sect or community composing the Church of Jesus Christ of Latter- Day Saints perseveres, in defiance of law, in preaching, upholding, promoting and defending it. It is a matter of public notoriety that its emissaries are engaged in many countries in propagating this nefarious doctrine, and urging its converts to join the community in Utah. The existence of such a propaganda is a blot on our civilization. The organization of a community for the spread and practice of polygamy is, in a measure, a return to barbarism.²⁵

   Although this expression of condemnation was made more than a century ago, the Court's pejorative use of the term "sect" is analogous to the manner in which the prejudicial label "cult" is affixed to nonconventional religious movements today. In fact, one recent commentator has chastised the Court for its continued use of the discriminatory term "sectarian" as a synonym for "religious" and has described the Court's practice as "judicial 'cussing.'"²⁶

   "Deliberate persecution" based upon religious bigotry, such as that visited upon members of the LDS church, may no longer be prevalent,²⁷ but that does not mean that hostility to marginal religions has decreased.²⁸ The military-style actions conducted by the government against the Branch Davidians, however, have again placed the issue of overt religious persecution back on the front burner of public concern.²⁹

   Following the government's assault at Waco, the Justice Department assigned outside experts to provide recommendations for making improvements in future law enforcement operations.³⁰ In her published expert report, Nancy T. Ammerman, a religious scholar, listed the following characteristics of new religious movements that she concluded the Bureau of Alcohol, Tobacco, and Firearms ("BATF") and the FBI should have taken into account in their assessment of the Branch Davidians: (1) such groups are often "millennialist" or "apocalyptic;" (2) they "almost always provoke their neighbors" by challenging the status quo and defying convention; (3) their commitments and family structure are often different than the norm; (4) the vast majority of their members join voluntarily; and (5) the charisma of their leaders is only maintainable as long as the members give their approval.³¹

   While these traits help to explain the persecution that dissident religions have suffered from society as a whole, they do not adequately account for the open hostility that such movements have received on occasion from the federal government. Rather, the singular characteristic that most inflames the state, and especially law enforcement, appears to be a religious group's challenge to the government's authority.

   For example, even though the Supreme Court in Late Corp. of LDS Church expressed its disgust for the practice of plural marriages, its ultimate decision in justifying the seizure of LDS property seemed to rest upon the church's "constant[] attempt[] to oppose, thwart and subvert the legislation of Congress and the will of the government of the United States."³² Likewise, the day following the fatal Waco fire, Larry Potts, Assistant Director of the FBI's Criminal Investigation Division, remarked by way of justification: "These people had thumbed their noses at law enforcement."³³ In fact, one writer has highlighted ideological rejection of the government's "legal authority" as a pivotal factor in the recent violent standoffs at Ruby Ridge, Idaho, in Philadelphia involving MOVE, and at Waco.³⁴

   This perceived defiance may become particularly pronounced in cases involving religious groups because of their singular devotion to the commands of the Creator, often revealed through the interpretation of scripture. In the words of Saint Peter: "We ought to obey God rather than men."³⁵

   B. Government's Characterization of Davidians as a "Cult"

   The word "cult" has been defined alternatively as "a religion regarded as unorthodox or spurious" and a "great or excessive devotion or dedication to some person, idea, or thing."³⁶ In popular usage, the term has "the sensational connotation of an authoritarian, mind-controlling movement in which convert-victims are mentally enslaved and can be made to perpetrate violence and crime as ordained by a charismatic prophet or guru."³⁷

   Interestingly, more than a decade before the government's siege at Waco, the FBI ran a three-part series in the FBI Law Enforcement Bulletin entitled "Cults: A Conflict Between Religious Liberty and Involuntary Servitude?"³⁸ The authors made a clear differentiation between "religious organizations" and "cults":

   Religious organizations are formed for the spiritual benefit of the entire membership. Other organizations have adopted a religious designation in order to fall under the protection of the first amendment, but are actually formed for the benefit of one person or a small group of people which are known as cults.³⁹

   This definition, however, is problematic because it leaves the critical distinction up to the discretion of the enforcement officer; moreover, the characterization is not just semantic—it may directly affect the manner in which the agency approaches the group in question. According to the authors, because cult members do not exhibit loyalty to a religious philosophy, cults have a "[p]ropensity [t]oward [v]iolence and [l]awbreaking"⁴⁰ and often consider themselves "above the law."⁴¹ In addition, the authors warned that cults are prone to "paramilitarism."⁴²

   A decade later, in a blatant departure from the neutrality doctrine, the BATF affidavit⁴³ that was submitted in support of the Waco warrant applications contained numerous derogatory references to the Davidian assembly as a "cult."⁴⁴ BATF Special Agent Davy Aguilera's affidavit also included extraneous material about David Koresh's religious beliefs.⁴⁵ For example, the affidavit iterated Koresh's conviction that "the Bible gave him the right to bear arms."⁴⁶ It also contained the following passage in reference to an alleged conversation between Mr. Koresh and Joyce Sparks, an employee of the Texas Department of Human Services:

   She said that during her conversation with Koresh, he 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 stated that it would be a "military type operation" and that all the "non-believers" would have to suffer.⁴⁷

   In addition, the BATF affidavit recounted the statement of a former Waco member that "Howell would preach his philosophy, which did not always coincide with the Bible . . . ."⁴⁸

   In response to criticism that the affidavit was insufficient because it contained improper material regarding Mr. Koresh's religious beliefs, as well as to complaints that federal authorities were "hostile towards religious interests," Ronald K. Noble, Treasury Under Secretary for Law Enforcement, claimed that BATF had grounds to fear that Koresh was prone to violence because, inter alia, "his rhetoric was threatening;" "his preaching concerned the approach of the apocalypse;" and "he had extraordinary control over his followers."⁴⁹ Noble concluded that, rather than proving a hostility towards religion, these factors demonstrated that "law enforcement cannot afford to assume that unlawful activities are benign merely because they are associated with a religious belief . . . ."⁵⁰

   Noble's contention that BATF harbored no hostility towards the religious convictions of the Branch Davidians, however, is directly belied by the official Treasury Report⁵¹ issued in connection with BATF's investigation of Mr. Koresh. In fact, in its first paragraph alone, the Treasury Report used the terms "cult" and "Compound" no less than seven times.⁵² More importantly, the Treasury Report contained the following notation:

   The Branch Davidian movement was started by a number of Seventh Day Adventists who believed strongly in the prophecies of the book of Revelation. David Koresh, then named Vernon Wayne Howell, took over leadership of the group in 1987. The Compound residents were extremely devoted to Koresh, and many apparently believed that he was the lamb of God. In the course of this report, the Review has used the term "cult" to refer to Koresh and his followers. The term is not intended and should not be taken as a reference to the Branch Davidian movement generally. The Review is quite aware that "cult" has pejorative connotations, and that outsiders—particularly those in the government—should avoid casting aspersions on those whose religious beliefs are different from their own. The definition of cult in Webster's Third New International Dictionary (unabridged) includes: "a great or excessive devotion or dedication to some person, idea or thing" and "a religion regarded as unorthodox or spurious." In light of the evidence of the conduct of Koresh and his followers set out in this report, the Review finds "cult" to be an apt characterization.⁵³

   This passage makes clear that the Treasury Department's derision of the beliefs of the Waco Branch Davidians was intentional. Unfortunately, even the congressional committee investigating the Texas siege fell into the trap of using the term "cult" in describing the subject matter of its April 28, 1993 hearing: "Events Surrounding the Branch Davidian Cult Standoff in Waco, Texas."⁵⁴

   Finally, several writers have alluded to a more malevolent motive behind law enforcement's branding of the Davidians as a "cult."⁵⁵ One author boldly asserted:

   The FBI wasn't attempting to defuse the situation that the Bureau of Alcohol, Tobacco, and Firearms provoked in February. No. The Agency was trying something out, on people they had reason to think no one would give a damn about—just some "cult." It had less to do with the Branch Davidians and more to do with establishing what kinds of direct action the U.S. government and its agencies could get away with once a group had been identified as "extremist" or a "cult."⁵⁶

   Similarly, Professor Gaffney pointed to a "more sinister" rationale underlying BATF's massive assault upon the Davidians, namely, "that the BATF was happy to go after Koresh and his community precisely because they were so vulnerable as religious 'crazies.'"⁵⁷ Other explanations for the lack of proportionality in BATF's initial confrontation with the Davidians include BATF's desire to create a sensational raid in an attempt to both repair its tarnished image and avoid impending budget cuts by the Senate Appropriations subcommittee,⁵⁸ as well as to exact revenge upon Mr. Koresh for his characterization of BATF as an "evil agency."⁵⁹

   In short, regardless of the particular motivation(s) underlying the actions of BATF and the FBI at Waco, law enforcement's conduct in officially labeling the Branch Davidians as a "cult" and in using this derisive designation to obtain warrants and to impugn the sincerity and rationality of the group's religious beliefs violated the neutrality doctrine contained in the First Amendment.

   C. Government's Reliance Upon Anti-Religious "Cult Experts"

   In her recommendation to the Justice and Treasury Departments, Professor Ammerman highlighted the critical fact that, prior to its "dynamic entry" at the Mount Carmel Center, BATF failed to consult with any outside authority in the area of "religious studies, sociology of religion, or psychology of religion."⁶⁰ Similarly, she pointed out that the FBI failed to confer with a single recognized expert who was familiar with marginal religious movements.⁶¹ Instead, both these law enforcement bureaus were guided by the rhetoric of such "anti-cult" organizations as the Cult Awareness Network⁶² ("CAN"):

   Government agencies would do well not to rely, as they did in the case of Branch Davidians, on so-called "cult" experts and deprogrammers whose one purpose is to discredit the religious claims of nonconventional and unpopular religious groups and thereby promote intolerance and discrimination toward them. The repeated references in the press and the media at large to members of the Cult Awareness Network (CAN) as "experts" was misleading and unfortunate. The fact is that members of the Cult Awareness Network have a history of persecution of members of groups they deem to be "cults."⁶³

   In her report, Professor Ammerman referred specifically to CAN and its associates:

   In their attempt to build a case against the Branch Davidians, BATF did interview persons who were former members of the group and at least one person who had "deprogrammed" a group member. Mr. Rick Ross, who often works in conjunction with the Cult Awareness Network (CAN), has been quoted as saying that he was "consulted" by the BATF. . . . The Network and Mr. Ross have a direct ideological (and financial) interest in arousing suspicion and antagonism against what they call "cults." These same persons seem to have been major sources for the series of stories run by the Waco newspaper, beginning February 27. It seems clear that people within the "anti-cult" community had targeted the Branch Davidians for attention.⁶⁴

   Professor Ammerman further noted that Ross "apparently had the most extensive access to both agencies of any person on the 'cult expert' list and was listened to more attentively. The BATF interviewed the persons he directed them to and evidently used information from those interviews in planning their February 28 raid."⁶⁵ In particular, in the summer of 1992 Ross had "deprogrammed" David Block, a Davidian, at the home of Priscilla Coates, CAN's former national director.⁶⁶ Significantly, it was Block that provided the majority of information about weapons that appeared in the Aguilera affidavit submitted in support of the search and arrest warrants.⁶⁷

   In addition, it was Ross who fueled the fire against the Branch Davidians with his inflammatory comments to the Waco Tribune-Herald that appeared in the newspaper's "The Sinful Messiah" series: "The group is without a doubt, without any doubt whatsoever, a highly destructive, manipulative cult . . . I would liken the group to Jim Jones."⁶⁸ According to Ross, Koresh was also "prone to violence."⁶⁹ Similarly, less than two weeks before the April 19th holocaust of the Davidians, CAN President Patricia Ryan told The Houston Chronicle that "[o]fficials should use whatever means necessary to arrest Koresh . . . including lethal force."⁷⁰

   It is this type of volatile rhetoric that led to harsh criticism of the role that such self- proclaimed "cult experts" played in the Davidian conflict.⁷¹ For example, one writer stated: "CAN's picture of the Davidians as an assortment of brainwashed robots is probably the reason the government, instead of calling upon respected and qualified religious scholars to mediate with Koresh, decided to invade the compound with armored vehicles and teargas."⁷² Likewise, Professor J. Gordon Melton concluded: "In the end, like the BATF, the FBI listened to the anti- cult critics and accepted the adequacy of anti-cult rhetoric. And at this point the Cult Awareness Network and its spokespersons become morally, if not criminally, responsible for what eventually occurred."⁷³

   Whatever the culpability of CAN and its affiliate deprogrammers in regard to the Waco tragedy, the fact still remains that federal law enforcement chose to rely upon the "anti-cult" community⁷⁴ rather than to consult with any recognized religious scholars. This anomalous situation was emphasized by Professor Ammerman in her report,⁷⁵ while Lawrence E. Sullivan, another expert chosen to offer his recommendations, denounced the government's failure to seek the advice of established religious experts.⁷⁶

   Interestingly, individuals in the anti-cult movement are not recognized as "experts" by those in the academic community;⁷⁷ moreover, the activities of CAN and its support for deprogramming⁷⁸ are viewed by the National Council of Churches as a serious threat to religious freedom.⁷⁹ One writer has described CAN's bias in the following manner:

   In pursuit of profit at the expense of liberty, over the past 20 years a small group called "Cult Awareness Network" and its operatives called "deprogrammers" or "depersonalizers" have made a business of kidnapping and forcibly denying basic freedoms to individuals. . . . Members of small Christian groups are favored targets.

   . . . .

   CAN is not "anti-cult," it is anti-religion. It promotes the image of "cult" as a way of playing on prejudice to get support. Upon exposure to CAN's unrelenting message, the American public thinks it couldn't be their religion, but must be one of those "newer ones." But this is a ruse created by CAN. In fact, Christians have been victimized the most—and the result has been many, many deaths. There is not one incident, let alone catastrophe, on record having to do with any but a Christian church. Jonestown, Waco, the Solar Temple—all involved Christians.⁸⁰

   That CAN has an anti-religious, especially anti-Christian, agenda seems to be further supported by a statement made by Cynthia Kisser, CAN's Executive Director, to the Cleveland Plain Dealer in 1994: "If [Jesus Christ] were alive now we'd take an interest in him because of the great controversy surrounding his fringe activities. . . . We'd try to see if there was abuse, unethical behavior or deceptive practices. And I'd send whatever we could find to reporters."⁸¹

   Why, then, did the government choose to follow the lead of a group which, at best, was not supportive of the free exercise rights of new religious movements? This question becomes even more difficult to answer in light of law enforcement's seeming adoption of CAN's "brainwashing" theory, a concept rejected by the federal courts prior to the time of the Waco conflict.

   Anti-cult organizations rely on the theory of "brainwashing" in order to justify the use of "deprogramming" for individuals who were allegedly seduced into a "cult" by the mind-control methods of a charismatic and overbearing leader.⁸² One of the leading proponents of this theory is Dr. Margaret Singer.⁸³ Dr. Singer's brainwashing theory, however, has been attacked on the grounds that it ignores the salient fact that earlier research upon which she relies was predicated upon the threat of physical coercion in Communist China and POW camps in Korea.⁸⁴ Singer's theory, in contrast, presumes that thought control techniques are effective even in situations in which no physical threats are present.⁸⁵

   More importantly, in 1990, the testimony of Dr. Singer and Dr. Richard Ofshe concerning their thought reform theories vis-à-vis religious "cults" was held to be inadmissible in federal court.⁸⁶ In United States v. Fishman,⁸⁷ the defendant attempted to raise an insanity defense to criminal mail fraud charges based upon a claim that he had been brainwashed by the Church of Scientology.⁸⁸ After finding that the application of the theory of "coercive persuasion to religious cults" was a recent development and that the thesis lacked the approval of both the American Psychological Association and the American Sociological Association, the court excluded the proffered testimony on the grounds that it was not generally accepted within the scientific community.⁸⁹

   Although the FBI may not have been aware of the questionable nature of such "thought reform" theories in the early 1980s,⁹⁰ by the time of the Branch Davidian standoff in 1993, the Bureau should have been well aware of the lack of scientific support for such a hypothesis, at least in so far as it applied to marginal religious groups. Fishman, after all, was a reported opinion and was decided more than three years prior to the April 19th conflagration.⁹¹ Despite this fact, however, the FBI continued to adopt CAN's "brainwashing" thesis.

   As detailed by Professor Ammerman, shortly after the initial BATF assault, Pete Smerick and consultant Park Dietz assembled a profile of David Koresh and the Branch Davidians at Waco.⁹² Based upon this profile, Smerick, along with Special Agent Mark Young, wrote a significant memorandum on March 5, 1993 to his superiors. This memorandum stated, in pertinent part, "For years [Koresh] has been brainwashing his followers for this battle, and on February 28, 1993, his prophesy came true. As of March 5, 1993, Koresh is still able to convince his followers that the end in [sic] near and, as he predicted, their enemies will surround them and kill them."⁹³

   In Epperson v. Arkansas,⁹⁴ the Supreme Court held that "[t]he First Amendment mandates governmental neutrality between religion and religion. . . . [T]he State may not adopt programs or practices . . . which 'aid or oppose' any religion. . . . This prohibition is absolute."⁹⁵ Similarly, Justice Goldberg stated that "[t]he fullest realization of true religious liberty requires that government . . . effect no favoritism among sects . . . and that it work deterrence of no religious belief."⁹⁶

   At Waco, BATF and the FBI established a practice of relying upon an organization and its associate "deprogrammers" known for their overt disparagement of marginal religions. These same agencies failed to consult recognized religious scholars who were readily available⁹⁷ and would have provided a markedly different assessment of new religious movements. In fact, even after religious scholars voluntarily intervened in an attempt to effect a peaceful resolution to the standoff, federal law enforcement ignored their counsel.⁹⁸

   In this regard, Dr. Phillip Arnold and Professor James Tabor informed the FBI of David Koresh's interpretation of the scriptures.⁹⁹ They conversed extensively with Livingston Fagan, a Branch Davidian spokesman, in an effort to understand the group's religious philosophy.¹⁰⁰ They provided an alternative scriptural interpretation of the Book of Revelation to Mr. Koresh by means of both radio and audio tape.¹⁰¹ Following their efforts, David Koresh wrote on April 14, 1993, in what would be his final letter, that he had been commanded to write an exposition of the secrets of the seven seals, after which time "I will come out and then you can do your thing with this beast [modern Babylon]."¹⁰² Rather than waiting for Mr. Koresh to complete his task, however, the government chose instead to assault the Mount Carmel Center with tanks and gas.¹⁰³ Professor Tabor described the needless aftermath of this fateful decision as follows:

   There is not the slightest doubt in my mind that David Koresh would have surrendered peacefully when he finished his manuscript. After the fire some federal agents said they doubted that he was even working on such a project. They took David's talk about being allowed by God to finally write the interpretation of the seven seals as a ploy to further delay things. We now know this was not the case. Ruth Riddle, one of the survivors of the fire, had a computer disk in the right pocket of her jacket. She had been typing David's hand-written manuscript the day before the fire. On that disk was his exposition of the first seal.¹⁰⁴

   In addition, the FBI's apparent adoption of CAN's "brainwashing" theory is further problematic because if law enforcement is permitted to ascribe the use of thought control to the Branch Davidians, then it must presume its usage among other mainstream religious groups, as well; for as the Supreme Court pointed out in Larson v. Valente:¹⁰⁵ "Free exercise thus can be guaranteed only when legislators—and voters—are required to accord to their own religions the very same treatment given to small, new, or unpopular denominations."¹⁰⁶ One can only imagine, however, the outcry from established denominations if the government were to even insinuate that their parishioners attended services, volunteered their time, and tithed due to the thought control powers of their religious leaders.

   Finally, an argument might be made that the complaints by recognized religious scholars concerning the government's use of anti-cult "experts" simply represent sour grapes on the part of academics who are bitter because they were not consulted. Such a contention, however, misses the point. The issue is not whether the government is required to use recognized scholars for consulting purposes, but whether law enforcement's practice of relying solely upon the anti- cult community, to the exclusion of those who would have provided an alternative view of marginal religions, constituted de facto opposition to the Branch Davidians and thus violated the constitutional requirement of neutrality.¹⁰⁷

   In critically assessing the government's weighty reliance upon CAN's uncorroborated theories prior to and during the Davidian standoff, it is useful to compare how such dependence would be received in other circumstances. What, for example, would be the public's reaction if, in a dire medical crisis, the federal government consulted exclusively with herbalists, and never sought the advice of licensed physicians? Or what if the Justice Department sought legal advice on a pivotal issue of national concern from pro se litigants and never conferred with any licensed attorneys?

   The point here is not to limit the government's sources of information to only those who are either licensed by the state or are academically recognized, but rather to question why law enforcement at Waco literally went out of its way to avoid an invaluable source of available information crucial to both its assessment of the Davidians' religious beliefs and its understanding of how to respond tactically in a potentially deadly situation involving a church in which were housed numerous women and children.

   In sum, there seem to be only two conclusions that can be drawn from the actions of BATF and the FBI in relying upon CAN and in ignoring the advice of recognized religious scholars (advice, notably, that would have been much more favorable to the Branch Davidians). Either the federal government was openly hostile to the religious convictions of the Davidians, and thus blatantly violated their rights under the First Amendment, or CAN's pronouncements for violence against David Koresh fit law enforcement's agenda for militarily asserting its authority over a group of Americans who dared to pledge its allegiance to a higher sovereign.

   II. Hybrid Rights and Waco

   In Employment Division v. Smith,¹⁰⁸ the Supreme Court held that the Sherbert test was inapplicable to free exercise challenges to neutral, generally applicable laws.¹⁰⁹ According to the Sherbert test,¹¹⁰ the government could not justify a substantial burden on religiously motivated conduct unless it demonstrated (1) a compelling state interest; and (2) that it chose a means narrowly tailored to achieve that end, namely, by the least restrictive means.¹¹¹ Justice O'Connor described the significance of this test as follows:

   The compelling interest test effectuates the First Amendment's command that religious liberty is an independent liberty, that it occupies a preferred position, and that the Court will not permit encroachments upon this liberty, whether direct or indirect, unless required by clear and compelling governmental interests "of the highest order." "Only an especially important governmental interest pursued by narrowly tailored means can justify exacting a sacrifice of First Amendment freedoms as the price for an equal share of the rights, benefits, and privileges enjoyed by other citizens."¹¹²

   In response to the Court's decision in Smith, Congress enacted the Religious Freedom Restoration Act of 1993 ("RFRA").¹¹³ The stated purposes of RFRA were to restore the Sherbert compelling interest test and "to provide a claim or defense to persons whose religious exercise is substantially burdened by government."¹¹⁴ In City of Boerne v. Flores,¹¹⁵ however, the Supreme Court held that RFRA was an unconstitutional exercise of Congress' enforcement powers under § 5 of the Fourteenth Amendment:

   The design of the Amendment and the text of § 5 are inconsistent with the suggestion that Congress has the power to decree the substance of the Fourteenth Amendment's restrictions on the States. Legislation which alters the meaning of the Free Exercise Clause cannot be said to be enforcing the Clause. Congress does not enforce a constitutional right by changing what the right is. It has been given the power "to enforce," not the power to determine what constitutes a constitutional violation.¹¹⁶

   Even before the Court's holding in Flores, Justice Scalia's "hybrid rights" formulation became the focus of attention as a means of preserving use of the compelling interest test for the protection of religious liberty.¹¹⁷ In Smith, Justice Scalia described a "hybrid situation" in the following manner: "The only decisions in which we have held that the First Amendment bars application of a neutral, generally applicable law to religiously motivated action have involved not the Free Exercise Clause alone, but the Free Exercise Clause in conjunction with other constitutional protections . . . ."¹¹⁸ He listed these other protections as including freedom of speech, freedom of the press, and parental rights.¹¹⁹ He also posited that the Free Exercise Clause would likely support a challenge on associational grounds.¹²⁰

   Justice Souter has persuasively criticized the "hybrid rights" rationale:

   If a hybrid claim is simply one in which another constitutional right is implicated, then the hybrid exception would probably be so vast as to swallow the Smith rule, and, indeed, the hybrid exception would cover the situation exemplified by Smith, since free speech and associational rights are certainly implicated in the peyote ritual. But if a hybrid claim is one in which a litigant would actually obtain an exemption from a formally neutral, generally applicable law under another constitutional provision, then there would have been no reason for the Court in what Smith calls the hybrid cases to have mentioned the Free Exercise Clause at all.¹²¹

   Commentators have remarked that the hybrid rights theory is probably nothing more than an "artificial construct" devised to avoid overruling previous constitutional precedent.¹²² On the other hand, Professor Durham pointed out that "[c]onstrued with sufficient breadth, the hybrid rights doctrine could undo much of the damage inflicted by the Smith decision" because of the almost inevitable overlap with other constitutional protections.¹²³ Similarly, another writer noted that "[r]ead expansively, the hybrid claims doctrine might also increase the number of successful constitutional claims by allowing constitutional claims of doubtful strength to be invigorated through hybridization."¹²⁴

   In general, two theories have been offered to explain the rationale behind the hybrid rights formulation. The "additive" theory postulates that two less than sufficient constitutional claims, with one arising under the Free Exercise Clause, can add up to a constitutionally adequate claim that invokes the compelling interest test.¹²⁵ From a slightly different perspective, under the "signalling" theory, the connection between free exercise rights and other constitutional guarantees is viewed as a way of giving "minority-religion adherents a way to signal that the lawmaker has exceeded its legitimate authority in a particular enactment or act."¹²⁶ This latter rationale seems the most appropriate in analyzing the government's actions at Waco.

   A. Fourth Amendment

   The Fourth Amendment to the United States Constitution provides: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."¹²⁷ At Waco, the Davidians' free exercise rights and their Fourth Amendment protection against the issuance of warrants without probable cause were inexorably intertwined, thereby presenting a "hybird situation."

   An affidavit submitted in support of a warrant application must provide the magistrate with "a substantial basis for determining the existence of probable cause . . . ."¹²⁸ In his testimony before the House Judiciary Committee on April 28, 1993, BATF Director Stephen Higgins stated:

   MR. HIGGINS. Without going into all the specifics, and I think Congressman Fish asked me if we had probable cause by February. Through the miracle of C-SPAN, I was corrected by the headquarters staff almost after it was out of my mouth.

   We had a review 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. We brought people in from Australia, we got the undercover agent in, we interviewed any number of people, including neighbors. They are all in the affidavit so I won't repeat them.

   MR. HUGHES. When was it determined you had probable cause?

   MR. HIGGINS. I think it was the middle of February.¹²⁹

   Because the only evidence obtained by BATF after January involved Mr. Koresh's religious¹³⁰ and political beliefs,¹³¹ it appears that these protected expressions of First Amendment speech were the ultimate source of probable cause in the eyes of BATF.¹³² As such, BATF's assertion that probable cause was, in fact, established is baseless. In addition, the affidavit submitted in support of the warrant applications contained other serious problems, including the staleness of its information,¹³³ as well as the dubious reliability of the witnesses interviewed.¹³⁴

   Fourth Amendment protections were further implicated at Waco with respect to the amount of force utilized by BATF in its "dynamic entry" into the Mount Carmel church on February 28, 1993 and by the FBI in its tank and gas assault on April 19, 1993. In Graham v. Connor,¹³⁵ the United States Supreme Court declared that all claims of excessive force in the course of arrest or other "seizure" should be determined under the Fourth Amendment's "reasonableness" standard.¹³⁶ With respect to the government's actions against the Branch Davidians, Professor Gaffney concluded:

   On the facts in the Waco events, where the subject sought by the arrest warrant routinely jogged outside the compound and where law enforcement authorities were well aware of the presence of small children, the dynamic entries resorted to by the government on February 28 and April 19 strike me as excessive in both instances.¹³⁷

   In like manner, in language hauntingly prophetic of the outcome of the FBI's military assault on the final day of the siege, the Supreme Court stated that "[t]he use of deadly force to prevent the escape of all felony suspects, whatever the circumstances, is constitutionally unreasonable. It is not better that all felony suspects die than that they escape."¹³⁸

   Because (1) probable cause at Waco was predicated upon Koresh's religious convictions and (2) law enforcement's unreasonable use of force in effecting its search and arrest was directed against a religious community on church property, the government should have been required to demonstrate both a compelling state interest and that it employed the least restrictive means in intruding upon the religious freedom of the Branch Davidians.

   B. Second Amendment

   The Second Amendment to the United States Constitution provides that "[a] well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."¹³⁹ This right has justly been described as "the palladium of the liberties of a republic."¹⁴⁰ In fact, a federal district court in Texas recently ruled that the Second Amendment established an individual, rather than a "collective," right to bear arms.¹⁴¹

   At Waco, the Davidians' Second Amendment right to keep and bear arms was intimately bound with their free exercise rights. As noted above, the Aguilera affidavit specifically referred to Koresh's conviction that "the Bible gave him the right to bear arms."¹⁴² In an interview with KRLD radio on February 28, 1993, David Koresh explained his conviction:

   The weapons were bought originally because in the prophecies. . . . 2000 years ago Christ tried for three and a half years to present the gospel, right? And the night of His crucifixion He told His servants, He said, before I sent you out without cloak nor purse nor sword. So now I say unto you, if you do not have a sword go sell your cloak and buy one. The Christian Church was not to stand idly by and be slaughtered.¹⁴³

   Mr. Koresh also told CNN, "I never planned to use these weapons. The only problem is that people outside don't understand what we believe."¹⁴⁴

   Here again, because the Davidians' strict adherence to the command of Christ overlapped with their individual right to bear arms under the Second Amendment, the heightened standard for hybrid rights situations should have attached.

   C. First Amendment

   In Smith, Justice Scalia noted that a free exercise claim that was made in conjunction with a free speech claim or an assertion of parental rights could be sufficient to constitute a "hybrid situation."¹⁴⁵ The District of Columbia Circuit has subsequently ruled that hybrid rights are also cognizable in situations in which free exercise and establishment claims overlap.¹⁴⁶ At Waco, for example, a hybrid situation presented itself with respect to the Davidians' fundamental parental right to raise and discipline their children according to the dictates of their religion.¹⁴⁷ In this regard, one of the most outrageous items included in Special Agent Aguilera's affidavit concerned allegations that David Koresh was sexually abusing young girls at Mount Carmel.¹⁴⁸ Despite BATF's lack of jurisdiction over such allegations, Aguilera not only inserted a lengthy recitation of the investigation conducted by the Texas Department of Human Services, but then failed to mention the dispositive fact that the investigation was closed on April 30, 1992, almost ten months prior to BATF's initial raid, with no evidence of child abuse.¹⁴⁹

   1. Free Exercise Clause Constitutes Affirmative Guarantee

   In his famous Memorial and Remonstrance, James Madison wrote that the right to freely practice one's religion is unalienable because it entails "a duty towards the Creator."¹⁵⁰ Madison further stated:

   This duty is precedent, both in order of time and in degree of obligation, to the claims of civil society. . . . [E]very man who becomes a member of any particular civil society, [must] do it with a saving of his allegiance to the universal Sovereign. We maintain therefore that in matters of religion, no man's right is abridged by the institution of civil society, and that religion is wholly exempt from its cognizance.¹⁵¹

   Professor McConnell has similarly concluded that the historical evidence demonstrates that

   the theoretical underpinning of the free exercise clause . . . is that the claims of the "universal sovereign" precede the claims of civil society, both in time and in authority, and that when the people vested power in the government over civil affairs, they necessarily reserved their unalienable right to the free exercise of religion, in accordance with the dictates of conscience. Under this understanding, the right of free exercise is defined in the first instance not by the nature and scope of the laws, but by the nature and scope of religious duty. A religious duty does not cease to be a religious duty merely because the legislature has passed a generally applicable law making compliance difficult or impossible.¹⁵²

   In the words of Justice O'Connor, the Free Exercise Clause constitutes "an affirmative guarantee"¹⁵³ entitling citizens to practice their religious convictions without unnecessary interference by the government, "even when such conduct conflicts with a neutral, generally applicable law."¹⁵⁴

   2. Protection of Minority Religions

   According to the view of one Supreme Court Justice, the First Amendment was enacted "precisely to protect the rights of those whose religious practices are not shared by the majority and may be viewed with hostility."¹⁵⁵ In the same vein, Justice Stewart wrote that the Free Exercise Clause

   affirmatively requires government to create an atmosphere of hospitality and accommodation to individual belief or disbelief. In short, I think our Constitution commands the positive protection by government of religious freedom—not only for a minority, however small—not only for the majority, however large—but for each of us.¹⁵⁶

   With reference to minority beliefs, the Court has iterated that such convictions "need not be acceptable, logical, consistent, or comprehensible to others in order to merit First Amendment protection."¹⁵⁷ Said another way, "[T]he freedom to believe and to practice strange and, it may be, foreign creeds—has classically been one of the highest values of our society."¹⁵⁸

   3. Free Exercise Standard

   In light of the violent assaults that occurred at Waco, it is necessary to reassess the standard that should control the government's actions in the event that a religious group's or citizen's devout conduct comes into conflict with the laws of civil society. Because Sherbert's compelling interest test has been relegated to the undefined vagaries of "hybrid situations," another standard is necessary to protect religiously motivated conduct from governmental interference.

   Several formulations have been offered in response to the actions of federal law enforcement agents at Waco. Reverend Dean Kelley proposed that "religious communities that pose no clear and present danger to others should be left alone."¹⁵⁹ Anticipating the complaint that such a standard would place religious groups above the law, Rev. Kelley pointed out that laws are not equally enforced:

   Presumably a rational law enforcement policy would be to go after the most serious threats to peace and safety first, and to leave the lesser for later (or for never). . . . On that scale, most religious groups would normally not be in the top range of priorities because normally they do not have the mens rea, or criminal intent, that is . . . an essential element in an offense punishable by the criminal law.¹⁶⁰

   In the event that a religious group poses an actual and immediate threat to others, Rev. Kelley proposed that law enforcement utilize the least intrusive means.¹⁶¹ He further rejected any suggestion that the Branch Davidians qualified as such a group.¹⁶² In sum, Rev. Kelley concluded that religious groups should be left alone "unless or until there is unambiguous evidence of actual and imminent danger to the public."¹⁶³

   Similarly, Professor Gaffney proposed usage of the "least restrictive alternative" standard in measuring government actions that may be injurious to religious exercise.¹⁶⁴ Likewise, he found that law enforcement's actions at Waco "f[e]ll far short of the mark":

   But I am insisting that there is no evidence whatever to support the notion that the Branch Davidians ever thought of using their weapons to kill innocent civilians. Koresh and his followers relied heavily on the apocalyptic vision of the book of Revelation. In this vision the dead are the saints, or members of the community of the Lamb who are persecuted by the Roman emperor, not the emperor's other subjects or even his imperial army. . . . [T]he government could have achieved its legitimate objectives in a far less destructive manner.¹⁶⁵

   On the other hand, Professor Gaffney referred to the Supreme Court's seminal holding in Brandenburg v. Ohio¹⁶⁶ and argued that this standard should have been controlling at Waco.¹⁶⁷ Specifically, the Court in Brandenburg ruled that the First Amendment's free speech guarantee protected even "advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action."¹⁶⁸ Because there was no evidence that the Davidians planned to leave Mount Carmel and injure other citizens, Gaffney determined that Koresh and his followers should have been left alone.¹⁶⁹

   Although both of these proposals make valuable contributions, Rev. Kelley's two-tiered standard seems most conducive to promoting robust free exercise. First of all, when a religious group's activities bring its members into direct conflict with a legal proscription, whether it be civil or criminal in nature, government should be required to leave the group alone, unless the conduct poses an actual and imminent threat to others.¹⁷⁰ As the Supreme Court stated in Wisconsin v. Yoder:¹⁷¹ "A way of life that is odd or even erratic but interferes with no rights or interests of others is not to be condemned . . . ."¹⁷² Secondly, only if the religious conduct poses a real and imminent threat can the government interfere with such activity—but then only by the least restrictive means.

   There is simply no legitimate justification for government to pursue, prosecute, or otherwise harass citizens for religious conduct that does not interfere directly with the freedom of others.¹⁷³ As Thomas Jefferson wrote in Virginia's Bill for Establishing Religious Freedom, civil government may interfere with religious liberty only "when principles break out into overt acts against peace and good order."¹⁷⁴ In fact, the Supreme Court in Yoder acknowledged that there are areas of religiously grounded conduct "protected by the Free Exercise Clause of the First Amendment and thus beyond the power of the State to control, even under regulations of general applicability."¹⁷⁵

   According to this newly proposed standard, the LDS member in Reynolds should have been free to practice polygamy without incurring criminal sanctions, the Native Americans in Smith should have been able to ingest peyote for sacramental purposes without suffering detrimental consequences from the state, and the Branch Davidians should have been left unmolested at Mount Carmel to await the apocalypse (if they did not already experience it) in peace. These results are much more in harmony with the original vision of free exercise as articulated by Madison: "The religion then of every man must be left to the conviction and conscience of every man; and it is the right of every man to exercise it as these may dictate. This right is in its nature an unalienable right."¹⁷⁶

   Lastly, Professor Gaffney's application of Brandenburg's imminent and lawless action standard to religious speech is persuasive because both political speech and religious speech represent core First Amendment freedoms:¹⁷⁷ "Given the centrality of freedom of speech and religion to the American concept of personal liberty, it is altogether reasonable to conclude that both should be treated with the highest degree of respect."¹⁷⁸

   Religious liberty can be preserved only by preventing government encroachment to the greatest degree possible. The historical underpinnings of the Free Exercise Clause establish that religious duties are superior to those imposed by the dictates of the state; moreover, our Constitution was designed with an eye toward protecting minority religions from oppression by the majority, and most especially by the government. Given the gravity of federal law enforcement's violation at Waco, a standard more exacting than the compelling interest test is now demanded.¹⁷⁹

   III. Active Use of Federal Privacy Act

   Following the events at Mount Carmel, certain Department of Justice officials advocated the establishment of guidelines permitting the investigation of unusual religious groups in order to avoid future conflicts such as that which occurred with the Branch Davidians.¹⁸⁰ CAN went even further and, during the congressional hearings about Waco, proposed not only a comprehensive "national policy with respect to totalist cults," but stated that "Congress should insist upon, and the national research team should draw upon, a strong research program for both law enforcement and civilian purposes."¹⁸¹

   Such proposals allowing surveillance of and intelligence gathering on religious groups, however, met with fierce opposition. For example, in his official report suggesting changes in law enforcement after Waco, Deputy Attorney General Philip B. Heymann wrote:

   Federal law enforcement cannot and should not collect and study the writings of groups characterized only by views very different from the mainstream in the United States. This would be an undertaking far more dangerous to civil liberties and far more unstructured in its reach than collecting information . . . about violent organizations.¹⁸²

   Similarly, in his expert report, Lawrence Sullivan stated, "There is no need to gather intelligence on specific groups to know more about religions and their role in society."¹⁸³

   Because of the aggressive actions of law enforcement at Waco, several authors suggested that "civil and criminal statutes should be enacted to forbid government spying on peaceful religious groups."¹⁸⁴ In fact, such a civil statute has been in existence since the mid-1970s. On December 31, 1974, President Ford signed into law the federal Privacy Act of 1974 ("Act").¹⁸⁵ Contained within this Act is a provision that prohibits the government from gathering and retaining information on the religious activities of American citizens.¹⁸⁶ Specifically, § 552a(e)(7) of the Act provides, in pertinent part: "Each agency that maintains a system of records shall— . . . maintain no record describing how any individual exercises rights guaranteed by the First Amendment . . . unless pertinent to and within the scope of an authorized law enforcement activity."¹⁸⁷

   The legislative history of the Act demonstrates congressional concern over the collection and maintenance of records describing the religious activities of American citizens. For example, Senate Report 1183 detailed the Army's surveillance of civilians as follows:

   Allegedly for the purpose of predicting and preventing civil disturbances which might develop beyond the control of state and local officials, Army agents were sent throughout the country to keep surveillance over the way the civilian population expressed [its] sentiments about government policies. In churches, on campuses, in classrooms, in public meetings, they took notes, taperecorded, and photographed people who dissented in thought, word or deed. This included clergymen, editors, public officials, and anyone who sympathized with the dissenters.

   . . . Out of this surveillance the Army created blacklists of organizations and personalities which were circulated to many federal, state and local agencies . . . .¹⁸⁸

   Legislators likewise referred to COINTELPRO, a clandestine FBI program in which agents conducted surveillance and targeted and disrupted political and religious groups.¹⁸⁹

   The textual development of § 552a(e)(7) also illustrates that Congress was unequivocal in its desire to prohibit the gathering and retention of information pertaining to religious belief and conduct. In fact, drafts from both the Senate and the House contained specific proscriptions on the maintenance of records concerning religious activities.¹⁹⁰ In addition, although the word "religious" does not appear in the present text of subsection (e)(7) because the provision's scope was expanded to apply to all First Amendment rights,¹⁹¹ the Office of Management and Budget's Privacy Act Guidelines discuss § 552a(e)(7) under the heading of "Records on Religious or Political Activities."¹⁹²

   Section 552a(e)(7) of the Act provides significant protections, subject to several limited exceptions, against the collection and maintenance of records describing how American citizens exercise their religious rights. Under the Act, offending records can be amended or expunged.¹⁹³ It is important to note, however, that the Act applies only to individuals, and not to organizations.¹⁹⁴

   Interestingly, in the twenty-five year history of the Act, there have been no reported appellate opinions pertaining to core expression under § 552a(e)(7) that have addressed a religious liberty issue.¹⁹⁵ In fact, the law books are devoid of a single district court decision in which an individual litigant has sought relief under subsection (e)(7) for the improper collection of information concerning his or her religious activities.¹⁹⁶ From the above review, one might conclude that the government is simply not maintaining any personal data on the religious beliefs and activities of its citizens. This naïve illusion, however, has just been shattered.

   It has recently been revealed that the FBI, despite its repeated denials to the contrary, has been compiling dossiers on the religious beliefs of numerous peaceful pro-life organizations pursuant to its secret VAAPCON project.¹⁹⁷ VAAPCON, which is an acronym for Violence Against Abortion Providers Conspiracy, is a database that the FBI maintained "under the auspices of the Criminal Division."¹⁹⁸ VAAPCON contains dossiers on such law-abiding groups as the National Conference of Catholic Bishops, Christian Coalition, and Concerned Women for America.¹⁹⁹ The database was illegally utilized by the Justice Department to monitor the political and religious beliefs of pro-life organizations under the pretense of tracking "domestic terrorism."²⁰⁰

   Government harassment of church leaders and their parishioners begins with the surreptitious collection and maintenance of records on their religious beliefs and practices. From these documents, dossiers are compiled and profiles are made. It is with just such surveillance that the drafters of the Privacy Act were most concerned. As the Senate Report made clear: "This section's restraint is aimed particularly at preventing collection of protected information not immediately needed, about law-abiding Americans, on the off-chance that Government or the particular agency might possibly have to deal with them in the future."²⁰¹ The tragedy at Waco happened, in part, because federal law enforcement agents illegally collected and retained records on the private religious beliefs and activities of David Koresh and the Branch Davidians. In fact, the Aguilera affidavit was riddled with such protected information;²⁰² moreover, according to BATF Director Higgins, it was this very material that provided probable cause for issuance of the warrants.²⁰³

   Hopefully, similar conflicts might be avoided through an aggressive use of the Privacy Act by both church leaders and religious individuals who believe they have become the targets of government persecution or investigation; furthermore, the pendency of a suit brought under § 552a(e)(7) will not only aid in protecting the plaintiff's privacy from illegal government recordkeeping, but it may also permanently derail any future prying into one's private affairs. Likewise, such actions will help to raise the public's awareness of the sanctity of personal worship and will send a strong message to federal agencies that any interference with religious beliefs or practices will not be tolerated.

   Although § 552a(e)(7) has yet to be applied in this area, it has the potential to be a strong weapon in the battle for religious freedom in America. In addition, churches, affiliated institutions, and individual parishioners should seek redress under the free exercise provisions of their state constitutions, which can provide greater religious liberty than is afforded under the First Amendment to the United States Constitution.²⁰⁴

   After the holocaust at Waco, it is no longer sufficient for worshipers to simply go to church on Sunday and speak of Christian love. A sinister specter has raised its ugly head in the land, and it threatens our very right to freely speak and express our singular devotion to the Creator. The hand of this enemy must be stayed before it becomes stronger and preys upon more of the faithful. If we do not actively work to protect our precious religious freedoms, we do not deserve to have them.

   IV. Conclusion

   In 1808, President Thomas Jefferson expressed the following sentiments:

   I consider the government of the U S. [sic] as interdicted by the Constitution from intermeddling with religious institutions, their doctrines, discipline, or exercises. . . . Every religious society has a right to determine for itself the times for these exercises, & the objects proper for them, according to their own particular tenets; and this right can never be safer than in their own hands, where the constitution has deposited it.²⁰⁵

   Almost two centuries later, Justice O'Connor similarly expressed the Constitution's "profound commitment" to religious freedom: "Our Nation's Founders conceived of a Republic receptive to voluntary religious expression, not of a secular society in which religious expression is tolerated only when it does not conflict with a generally applicable law."²⁰⁶ She further asserted that the Free Exercise Clause should be understood as "an affirmative guarantee of the right to participate in religious activities without impermissible governmental interference, even where a believer's conduct is in tension with a law of general application."²⁰⁷ The government's conduct at Waco represents a gross inversion of this historical constitutional hierarchy.

   One of the most telling assessments of the Waco conflict came from Dr. Alan Stone, one of the outside experts asked to provide recommendations concerning the handling of the Davidian standoff:

When I first was asked to be involved as a member of the panel, I thought the main problem was going to be understanding the psychology of the people inside the compound. But as I got into it, I quickly became aware that the psychology of the people outside the compound was more important to an understanding of what happened.²⁰⁸

This perceptive revelation capsulizes the significance of Waco. Waco is emblazoned in our minds with unforgettable hues because it was then that our government attempted to assert itself, not just as the civil authority, but as the Supreme Authority. At Waco, federal law enforcement acted as the Grand Inquisitor and, in historic medieval fashion, condemned the Davidian heretics to death by fire. And with the death of David Koresh and his faithful followers came the death of free exercise in America.

The solemnity of this fateful realization was most eloquently expressed in the simple verse contained in a poem written by the children of one the Davidians who perished on April 19, 1993:

Thank you, Mr. President, Janet Reno too.

We mustn't forget the ATF, the FBI, all the men in blue.

How well did you sleep last night?

Did you toss and turn?

I myself didn't get much sleep.

Did you know I saw my father burn?

We don't know how you did it.

You really must be brave.

You sat through all their screaming,

without emotion as they entered their fiery grave.

. . . .

The day will come we'll all be judged

as we stand before the Lord.

Koresh may have thought himself as Christ,

But you thought yourself as God.²⁰⁹

• TEXT VERSION • HTML VERSION • WordPerfect 8.0 VERSION • HOME •

² See Carol Moore, The Davidian Massacre: Disturbing Questions About Waco Which Must be Answered 1 (1995). For an overview of the tragedy at Waco, see Armageddon in Waco: Critical Perspectives on the Branch Davidian Conflict (Stuart A. Wright ed., 1995); From the Ashes: Making Sense of Waco (James R. Lewis ed., 1994); David B. Kopel & Paul H. Blackman, No More Wacos: What's Wrong with Federal Law Enforcement and How to Fix It (1997); Moore, supra; Dean M. Kelley, Waco: A Massacre and Its Aftermath, First Things, May 1995, at 22-37 (also available at <http://www.firstthings.com/ftissues/ft9505/kelley.html> (last modified Dec. 6, 1996)). For a treatment of the conflict from a theological perspective, see James D. Tabor & Eugene V. Gallagher, Why Waco? Cults and the Battle for Religious Freedom in America (1995).

³ Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on Their Destruction, art. I(5), Jan. 13, 1993, reprinted in 32 I.L.M. 800, 804 (1993) ("Each State Party undertakes not to use riot control agents as a method of warfare."); see also Investigation into the Activities of Federal Law Enforcement Agencies Toward the Branch Davidians, H.R. Rep. No. 104-749, at 69-71 (1996) (discussing use and toxicity of CS gas).

⁴ See Moore, supra note 2, at 293.

⁵ See Sherri Chunn, Government Re-Creates Waco Siege, Chi. Sun-Times, Mar. 20, 2000, at 27 (noting that reenactment was ordered by judge to determine whether agents shot at Davidians who were attempting to escape from fire).

⁶ U.S. Const. amend. I.

⁷ See Joel F. Hansen, Comment, Jefferson and the Church-State Wall: A Historical Examination of the Man and the Metaphor, 1978 BYU L. Rev. 645, 656 ("Jefferson apparently felt that since the legislative power had been so limited, his power as President had been similarly limited.").

⁸ 5 U.S.C. § 552a (1994 & Supp. IV 1998).

⁹ See 5 U.S.C. § 552a(a)(1) (1994) ("[T]he term 'agency' means agency as defined in section 552(e) [now § 552(f)] of this title."). Section 552(f)(1), in turn, defines "agency" as: "[A]ny executive department, military department, Government corporation, Government controlled corporation, or other establishment in the executive branch of the Government (including the Executive Office of the President), or any independent regulatory agency." 5 U.S.C. § 552(f)(1) (Supp. IV 1998).

¹⁰ See infra notes 185-192 and accompanying text.

¹¹ See 5 U.S.C. § 552a(e)(7) (1994).

¹² Fed. R. Evid. 610.

¹³ Board of Educ. of Kiryas Joel Village Sch. Dist. v. Grumet, 512 U.S. 687, 696 (1994) (quoting Committee for Public Educ. & Religious Liberty v. Nyquist, 413 U.S. 756, 792-93 (1973)). It should be noted, however, that "neutrality" has been defined in many different ways; moreover, there is no general agreement as to whether such a doctrine is even mandated by the First Amendment. See, e.g., Douglas Laycock, Formal, Substantive, and Disaggregated Neutrality Toward Religion, 39 DePaul L. Rev. 993, 993 (1990) ("A wide range of courts and commentators commonly say that government must be neutral toward religion. There are dissenters in both directions—those who think that government can support religion, and those who pursue separation to the point of hostility."); Michael W. McConnell, Neutrality Under the Religion Clauses, 81 Nw. U. L. Rev. 146, 148-49 (1986) ("To insist on strict neutrality in all cases arising under the religion clauses would be wholly inconsistent with the demands of free exercise . . . .") ("Neutrality among religions . . . is a sound starting point for analyzing religious freedom issues. Neutrality is usually the course most consistent with religious liberty because, ideally, government action should leave untouched the preexisting religious mix in the community."); Geoffrey R. Stone, The Equal Access Controversy: The Religion Clauses and the Meaning of "Neutrality," 81 Nw. U. L. Rev. 168, 168 (1986) ("Neutrality, however, is not a self- defining concept. Its meaning may vary depending on the context and nature of the issue.").

¹⁴ 508 U.S. 520 (1993).

¹⁵ Id. at 534 (citations omitted).

¹⁶ Laycock, supra note 13, at 997 (emphasis added). Cf. County of Allegheny v. ACLU, 492 U.S. 573, 593-94 (1989) ("The Establishment Clause, at the very least, prohibits government from appearing to take a position on questions of religious belief . . . .").

¹⁷ 98 U.S. 145 (1879).

¹⁸ See id. at 161-67.

¹⁹ Id. at 166-67.

²⁰ 133 U.S. 333 (1890), overruled in part by Romer v. Evans, 517 U.S. 620, 634 (1996).

²¹ See id. at 341-48.

²² 136 U.S. 1 (1890).

²³ See id. at 44-66.

²⁴ Id. at 63-64.

²⁵ Id. at 48-49 (emphasis added).

²⁶ Richard A. Baer, Jr., The Supreme Court's Discriminatory Use of the Term "Sectarian," 6 J.L. & Pol. 449, 462 (1990).

²⁷ City of Boerne v. Flores, 521 U.S. 507, 530 (1997) (quoting Religious Freedom Restoration Act of 1991: Hearings on H.R. 2797 before the Subcomm. on Civil and Constitutional Rights of the House Comm. on the Judiciary, 102d Cong. 334 (1993) (statement of Douglas Laycock)).

²⁸ See, e.g., Edward McGlynn Gaffney, Jr., Hostility to Religion, American Style, 42 DePaul L. Rev. 263, 274-93 (1992) (highlighting hostility to Muslims and Roman Catholics); Charles L. Harper, Reflections on the Waco Disaster: Trying to Make Sense of Insane Events, in From the Ashes: Making Sense of Waco 189, 192-93 (James R. Lewis ed., 1994) ("While officially neutral about religious doctrine, the state in America has historically been involved in the most severe conflicts involving alternative and minority religions.") (citing contemporary instances concerning the Reverend Moon, the Church of Scientology, and the Alamo Foundation).

²⁹ See Lee Hancock, Rangers' Report Doesn't Resolve Questions About Gun Use on Last Day of Siege: FBI has said Casings Could be from ATF, Dallas Morn. News, Sept. 13, 1999, at 1A; New FBI Waco Evidence: Marshals Impound Tapes and Files, Chic. Sun-Times, Sept. 2, 1999, at 22 (discussing demands for new investigation following FBI's admission, after six years of denials, that agency fired "incendiary tear gas cartridges" during final assault on Davidians).

³⁰ See Moore, supra note 2, at 46.

³¹ Nancy T. Ammerman, Report to the Justice and Treasury Departments Regarding Law Enforcement Interaction with the Branch Davidians in Waco, Texas 5-8, in U.S. Dep't of Justice, Recommendations of Experts for Improvements in Federal Law Enforcement After Waco (1993).

³² Late Corp. of LDS Church, 136 U.S. at 64.

³³ Moore, supra note 2, at 2.

³⁴ Steven B. Roosa, Note, Rules of Engagement for Armed Standoffs and the Last Full Measure of Devotion: Should Sedition Be a Factor in the Use of Deadly Force?, 28 Rutgers L.J. 229, 229-31 (1996).

In each instance, the ideology of the religious/political group led its adherents to expressly deny the legal authority of the government. These standoffs place in bold relief the danger posed to the integrity of the criminal justice system when an unstated criterion . . . appears to govern the use of deadly force against groups on the basis of their seditious beliefs.

Id. at 230-31.

³⁵ Acts 5:29.

³⁶ Webster's Third New International Dictionary of the English Language, Unabridged 552 (1981).

³⁷ Thomas Robbins & Dick Anthony, "Cults," "Mind Control," and the State, in From the Ashes: Making Sense of Waco 125, 126 (James R. Lewis ed., 1994).

³⁸ See Orlin D. Lucksted & D.F. Martell, Cults: A Conflict Between Religious Liberty and Involuntary Servitude? (Part 1), FBI Law Enforcement Bull., Apr. 1982, at 16-20 [hereinafter Cults pt. 1]; Orlin D. Lucksted & D.F. Martell, Cults: A Conflict Between Religious Liberty and Involuntary Servitude? (Part 2), FBI Law Enforcement Bull., May 1982, at 16-23 [hereinafter Cults pt. 2]; Orlin D. Lucksted & D.F. Martell, Cults: A Conflict Between Religious Liberty and Involuntary Servitude? (Part 3), FBI Law Enforcement Bull., June 1982, at 16-21.

³⁹ Cults pt. 1, supra note 38, at 17.

⁴⁰ Cults pt. 2, supra note 38, at 19.

⁴¹ Id. at 16.

⁴² Id. at 20 (citing an instance in which a large number of guns and rounds of ammunition were found at a ranch under the control of the International Society for Krishna Consciousness).

⁴³ See Affidavit of Davy Aguilera, BATF Special Agent, Feb. 25, 1993 [hereinafter Affidavit], reprinted in Activities of Federal Law Enforcement Agencies Toward the Branch Davidians (Part 1): Joint Hearings Before the House Subcomm. on Crime of the Comm. on the Judiciary and the Subcomm. on Nat'l Security, Int'l Affairs, and Criminal Justice of the Comm. on Gov't Reform and Oversight, 104th Cong. 996-1010 (1996) [hereinafter Activities of Federal Law Enforcement (Part 1)].

⁴⁴ Id. at 2, 3, 9, 10, 13, reprinted in Activities of Federal Law Enforcement (Part 1), supra note 43, at 997, 998, 1004, 1005, 1008.

This labeling activity [referring to the Davidians as a "cult"] began with the original affidavit in which Special Agent Davy Aguilera consistently used the term—never once affording the respect implied in a less stigmatic term like "church" or "religion"—and continued unabated until the Davidians went up in flames.

James R. Lewis, Self-Fulfilling Stereotypes, the Anticult Movement, and the Waco Confrontation, in Armageddon in Waco: Critical Perspectives on the Branch Davidian Conflict 95, 100 (Stuart A. Wright ed., 1995). It is also noteworthy that, in predictable fashion, Aguilera repeatedly referred to the Mount Carmel Center as a "compound," rather than as a "church." See, e.g., Affidavit, supra note 43, at 8, 13, 15, reprinted in Activities of Federal Law Enforcement (Part 1), supra note 43, at 1003, 1008, 1010.

⁴⁵ See Moore, supra note 2, at 56-58 (noting that probable cause, in part, was predicated on religious and political beliefs); David B. Kopel & Paul H. Blackman, The Unwarranted Warrant: The Waco Search Warrant and the Decline of the Fourth Amendment, 18 Hamline J. Pub. L. & Pol'y 1, 32-33 (1996) (describing inclusion of Koresh's prophecy about Waco as "[a]bsurd"); Rhys H. Williams, Breaching the "Wall of Separation": The Balance Between Religious Freedom and Social Order, in Armageddon in Waco: Critical Perspectives on the Branch Davidian Conflict 299, 315 (Stuart A. Wright ed., 1995) ("[T]he search warrant affidavit is filled with pejorative references to the 'cult' and doubts as to Koresh's religious sincerity.").

⁴⁶ Affidavit, supra note 43, at 15, reprinted in Activities of Federal Law Enforcement (Part 1), supra note 43, at 1010.

⁴⁷ Id. at 9, reprinted in Activities of Federal Law Enforcement (Part 1), supra note 43, at 1004. This conversation is most likely a fabrication:

The affidavit attributes to David Koresh a quotation by CPS caseworker Joyce Sparks to the effect that when his time came, it would make the riots in L.A. "pale in comparison." Daniel Wattenberg noted a difficulty in giving any credence to this statement, since the affidavit states that Sparks's visit occurred on April 6. The Treasury report tidies up this matter by clarifying that Sparks made another visit to Koresh on April 30, 1992, which Aguilera forgot to include in the affidavit. Conveniently, April 30 is the day after the L.A. riots. Even with this tidier account, I am inclined to view the Koresh quotation as an invention . . . .

Edward McGlynn Gaffney, Jr., The Waco Tragedy: Constitutional Concerns and Policy Perspectives, in Armageddon in Waco: Critical Perspectives on the Branch Davidian Conflict 323, 336-37 (Stuart A. Wright ed., 1995) (citations omitted).

⁴⁸ Affidavit, supra note 43, at 11, reprinted in Activities of Federal Law Enforcement (Part 1), supra note 43, at 1006.

⁴⁹ Prepared Statement of Ronald K. Noble, Under Secretary for Law Enforcement, Dep't of Treasury 11-12, reprinted in Activities of Federal Law Enforcement (Part 1), supra note 43, at 824, 834-35.

⁵⁰ Id. at 12, reprinted in Activities of Federal Law Enforcement (Part 1), supra note 43, at 835.

⁵¹ U.S. Dep't of Treasury, Report of Dep't of Treasury on Bureau of Alcohol, Tobacco, and Firearms Investigation of Vernon Wayne Howell also known as David Koresh (Sept. 1993) [hereinafter Treasury Report].

⁵² See id. at 1.

⁵³ Id. at 1 n.2 (first, second, third, and fifth emphasis added).

⁵⁴ Events Surrounding the Branch Davidian Cult Standoff in Waco, Texas: Hearing Before the House Comm. on the Judiciary, 103d Cong. (1995) [hereinafter Events Surrounding Davidian Standoff].

⁵⁵ The invidious course of action ascribed to BATF and the FBI by these writers, see infra notes 56-57 and accompanying text, is consistent with concerns voiced about the rapid militarization of law enforcement and the concomitant erosion of the federal Posse Comitatus Act. See 18 U.S.C. § 1385 (1994). For a detailed discussion of this issue in the context of the Branch Davidian conflict, see David B. Kopel & Paul M. Blackman, Can Soldiers Be Peace Officers? The Waco Disaster and the Militarization of American Law Enforcement, 30 Akron L. Rev. 619 (1997).

In this regard, it was reported that BATF fabricated stories of the existence of a methamphetamine lab at the Mount Carmel Center in order to gain access to Texas National Guard helicopters and to receive training from Army Special Forces Green Berets in the art of killing, "room-clearing, fire-and-maneuver, and building takedown . . . [and] subjects Special Forces are forbidden to teach civilian law enforcement." Moore, supra note 2, at 99-103 (quoting James L. Pate, Special Forces Involved in Waco Raid!, Soldier of Fortune, May 1994, at 35-36).

⁵⁶ Phyllis Goldberg, FBI Uses "Cults" as Bait, in From the Ashes: Making Sense of Waco 229, 232 (James R. Lewis ed., 1994).

⁵⁷ Gaffney, supra note 47, at 335.

⁵⁸ See Moore, supra note 2, at 89-90; Gaffney, supra note 47, at 335.

⁵⁹ Gaffney, supra note 47, at 335 (quoting Treasury Report, supra note 51, at 35). This rationale is further supported by Special Agent Aguilera's inclusion in his warrant application affidavit of an incident in which Mr. Koresh played a video tape for undercover agent Rodriguez that "portrayed ATF as an agency who violated the rights of Guns Owners by threats and lies." Affidavit, supra note 43, at 15, reprinted in Activities of Federal Law Enforcement (Part 1), supra note 43, at 1010.

⁶⁰ Ammerman, supra note 31, at 1.

⁶¹ See id. at 2.

⁶² According to one author, CAN "actively urges the press and law enforcement to act against any non-mainstream religious, psychological, or even political movement which it describes as a 'cult.' . . . CAN accuses such groups of sharing similar patterns of mind control, group domination, exploitation and physical and mental abuse." Moore, supra note 2, at 44. Compare Prepared Statements of Herbert L. Rosedale, President, American Family Foundation (AFF) and William Rehling, President, Cult Awareness Network (CAN) [hereinafter Prepared Statement of CAN], reprinted in Activities of Federal Law Enforcement (Part 1), supra note 43, at 248-57, with Freedom Magazine, The Cult Awareness Network: Anatomy of a Hate Group (n.d.) [hereinafter CAN: Anatomy of Hate Group].

CAN has since declared bankruptcy and "its name and assets were purchased by a consortium of religious groups . . . intent upon reversing CAN's previous campaign of prejudice and intolerance." U.S. Court of Appeals Hands Down Landmark Civil Rights Ruling, Freedom, July 1998, at 4, 5. See <http://www.cultawarenessnetwork.org> (visited May 13, 2000); see also Scott v. Ross, 140 F.3d 1275, 1280 (9th Cir.) (affirming one million dollar punitive damage award against old CAN in "deprogramming" case), reh'g en banc denied, 151 F.3d 1247 (9th Cir. 1998).

⁶³ James E. Wood, Jr., The Branch Davidian Standoff: An American Tragedy, 35 J. Church & St. 233, 238 (1993).

⁶⁴ Ammerman, supra note 31, at 1.

⁶⁵ Nancy T. Ammerman, Waco, Federal Law Enforcement, and Scholars of Religion, in Armageddon in Waco: Critical Perspectives on the Branch Davidian Conflict 282, 289 (Stuart A. Wright ed., 1995).

⁶⁶ See Stuart A. Wright, Construction and Escalation of a Cult Threat: Dissecting Moral Panic and Official Reaction to the Branch Davidians, in Armageddon in Waco: Critical Perspectives on the Branch Davidian Conflict 75, 88-89 (Stuart A. Wright ed., 1995); Fanning the Fires at Waco: Deprogrammer Rick Ross, Freedom, Jan. 1995, at 14, 14 [hereinafter Fanning the Fires].

⁶⁷ See Wright, supra note 66, at 89 ("According to the Treasury report, much of the information about the weapons 'was based almost exclusively on the statement of one former cult member, David Block.'" (quoting Treasury Report, supra note 51, at 143)); Andrew Milne, The Cult Awareness Network: Its Role in the Waco Tragedy, in From the Ashes: Making Sense of Waco 137, 138 (James R. Lewis ed., 1994).

Block was later interviewed by the ATF. The information he supplied concerning firearms allegedly stockpiled by the Branch Davidians was included in the search warrant the ATF drew up to authorize the February 28 raid that precipitated the tragedy. Block's information contributed to the decision by the ATF to storm the compound instead of negotiating with the Davidians. Block's description of the Davidians is bound to have been influenced by his deprogramming.

Milne, supra, at 138.

⁶⁸ Moore, supra note 2, at 45-46 (quoting Darlene McCormick & Mark England, Experts: Branch Davidians Dangerous, Destructive Cult, Waco Trib.-Herald, Mar. 1, 1993, at 7A).

⁶⁹ Id. at 46.

⁷⁰ James Pinkerton & Laura E. Keeton, Infiltrating Cult Will End Standoff, Expert Suggests, Houston Chronicle, Apr. 9, 1993, at A1 (emphasis added).

⁷¹ See, e.g., Fanning the Fires, supra note 66, at 16 ("[T]oo little attention was given to the role played by CAN in bringing about that assault, and its fatal consequences.").

⁷² Milne, supra note 67, at 139.

⁷³ J. Gordon Melton, A Fiery Ending, in From the Ashes: Making Sense of Waco 253, 259 (James R. Lewis ed., 1994).

⁷⁴ In its Report, the Department of Justice claimed that "[t]he FBI did not solicit advice from any 'cult experts' or 'cult deprogrammers.'" U.S. Dep't of Justice, Report to the Deputy Attorney General on the Events at Waco, Texas, February 28 to April 19, 1993, at 190 (Oct. 1993) (redacted version) [hereinafter Justice Dep't Report]. In a letter dated October 25, 1993, Rick Ross asserted that this statement by the FBI was incorrect. See Letter from Rick Ross to Janet Reno, Attorney General, Dep't of Justice 1 (Oct. 25, 1993) (visited Jan. 10, 2000) <http://www.rickross.com/reference/waco1.html>. The Justice Department Report, however, does contain a summary of Ross' contacts with the FBI during the Davidian standoff. See Justice Dep't Report, supra, at 191-92.

⁷⁵ See supra notes 60-61 and 64 and accompanying text.

⁷⁶ See Lawrence E. Sullivan, Recommendations Concerning Incidents such as the Branch Davidian Standoff in Waco, Texas Between February 28, 1993 and April 19, 1993, at 3, 4 [hereinafter Sullivan Recommendation], in U.S. Dep't of Justice, Recommendations of Experts for Improvements in Federal Law Enforcement After Waco (1993).

Incredible as it may seem, religion as an issue was apparently accorded little room in the consideration of policy or action toward the Branch Davidians. At a briefing in Mr. Noble's office at the Department of the Treasury on August 3, it was reported, in answer to my question, that the BATF did not at any time consult religion experts prior to their dynamic entry into the Waco compound on February 28.