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The OC Gun Column

The Nuremberg Defense Lives Again

On Thursday, the fourteenth of May, 1998, the American justice system was dealt a serious blow. The incident in question came not from a lawsuit, not from a terrorist group, not even from new legislation. It originated within the "justice system itself.

Six years ago:
The sniper, armed with a high-powered rifle, takes up a camouflaged position overlooking the home of his target. This is one of those moments that he has trained for. The honing of his patience and skills as a sharpshooter has crafted him into one of the nation's most efficient killing machines.

Finally, the door of the house opens, and he peers through his telescopic sight, centering the crosshairs on his unsuspecting victim's back. At this distance, the assassin's training is such that he should be able to hit a 1/4 inch target without fail. However, when his victim walks away from the home, the sniper's aim is uncertain; he only wounds his target. The wounded man turns, and runs back toward the house, screaming to his family that he has been shot. His wife flings open the door, beckoning for him to run faster. Only th eday before, her 14-year-old son had been riddled through the back by sub-machine gun fire as he ran for safety, just as her husband was running now.

The assassin readjusts his aim, again peering through his high-powered rifle scope. The woman stands with her baby in her arms. "You murdering bastards," she screams. "You BASTARDS!" Then the .308 bullet rips through the base of her skull, killing her instantly.

It was a perfect kill shot, a testament to the quality of the hit man's talents.

This is not a scene from a cheap paperback spy novel, nor from the latest second-rate James Bond copy on video. The setting is Ruby Ridge, Idaho, and the family being shot at are not Mafia informants, but American citizens with unpopular religious beliefs: the family of Randy Weaver. The assassin has not been paid for by some cocaine cartel or Middle-Eastern terrorist group, but by the U.S. taxpayers. He is Special Agent Lon Horiuchi, a sniper from the Federal Bureau of Investigation.

In recent years, there has been much debate over the atrocities that took place on that remote Idaho hillside in 1992, and the handling of the case surrounding a white separatist family, which ended in what some say was the wholesale execution of a young boy and a woman at the hands of federal agents, on orders from the federal government. On the one hand, we had a man whose beliefs on matters of race and religion were considered obnoxious by most, who refused to respond to a court summons to face the charge that he had unlawfully shortened the barrels of two shotguns. On the other, we had an agency of the government which appeared to have appointed itself judge, jury and executioner, and whose attempts to force Weaver into submission resulted in the deaths of two innocent people. The incident stirred a great deal of emotions, and called into question the nature of our national leadership, and the position of the people's relationship with their government.

Yet, as time went by, the name "Weaver" slipped from the media limelight, and most people simply picked up where they had left off, unaware of the important shift in the nature of our contract with our ruling body that had occurred when Horiuchi pulled the trigger of his rifle. This last week, while an oblivious America was excitedly crowded around the television set to watch the final episode of Seinfeld, the Justice Department closed the book on the injustices of the Weaver case once and for all; last Thursday, a federal judge quietly dismissed the charges of manslaughter that Idaho special prosecutor Stephen Yagman had leveled against Horiuchi, "rightfully or wrongfully, was clearly acting under orders authorized by the United States government to shoot and kill and armed male adult." It is uncertain how the judge concluded that an unarmed woman clutching her baby might be considered an "armed male adult," or when the killing of women and children fell "within the scope of [an agent's] federal duty," but there you have it. Horiuchi was "only following orders." Case closed.

It was a long road getting here, to this final expression of government disdain for the well-being of its citizenry. It began with the revelation, made before the Weaver trial, that when informed of the nature of the standoff at Ruby Ridge, FBI Assistant Director Larry Potts had altered the normal rules of engagement for FBI snipers. Previously, snipers had only been permitted to fire on targets in cases of immediate self-defense or in the defense of others. However, the new orders Potts authorized stated that if any armed adults were seen near the Weaver cabin, "deadly force can and should be used to neutralize this individual," regardless of whether they posed an immediate threat to anyone. It was on those orders that Horiuchi acted.

In the panic following Randy Weaver's acquittal on the trumped-up firearms violation charges, the FBI went into overdrive to establish a cover-up. The word "cover-up" is not used here lightly; in fact, after failing a polygraph test, Potts' assistant, Michael Kehoe was suspended for destroying and altering documents that related to Potts' revision of the rules of engagement and his specific orders to the snipers at Ruby Ridge. In 1995, FBI Director Louis Freeh actually promoted his friend, Larry Potts, to the number two position in the Bureau, until public outcry and a criminal investigation of Potts and three other FBI officials was launched to uncover allegations they had tried to cover up their roles and actions during the siege. After a two-year paid suspension, it was revealed that there was no sufficient evidence to convict Potts; it had been destroyed. Potts took an early retirement to evade continued investigation, and the Justice Dept. let him go.

Last year, an Idaho prosecutor took up the task of demanding justice in the Weaver case; only this time, it was to be the sharp-shooting agent who was to go on trial. The prosecution charged Horiuchi with manslaughter in the death of Vicki Weaver, after an Idaho jury chose to indict. Had the case gone to trial as it was supposed to, Horiuchi may have found himself facing a stiff prison sentence, and the justice system would have been one step further toward bringing those who had given him orders to justice. However, the Feds were not about to let this happen.

As it turns out, the federal government has the authority to transfer the charges lobbied against federal employees by State prosecutors to a federal court. Once the case had been removed from Idaho's jurisdiction, and delivered into the hands of US District Judge Edward Lodge, he dismissed the charges, and declared Horiuchi immune from prosecution. It was an act of judicial sleight-of-hand that would have been the envy of David Copperfield: now you have a criminal case--presto--now you don't!

One might assume the matter of Horiuchi's guilt or innocence would be a matter upon which a jury would decide. After all, the evidence was lawfully weighed by a grand jury of his peers, and they decided to bring the case to trial. It is the purpose of trials to determine guilt or innocence, by weighing the evidence of the prosecution against that of the defense. If Horiuchi was innocent of the crime of which he was accused, then it would have been the duty of twelve men and women to establish that fact. Perhaps they would have found him "not guilty." We will never know. Instead, we have seen the justice system skillfully manipulated from within, and we have been given an example of how one hand washes the other within the system of our federal agencies.

Why did this happen, and what are the ramifications? It is hard to say at this time.

Certainly it seems to be an endeavor on the part of some within the government to protect their own; after all, had Horiuchi been found guilty, it would have likely spurred an effort to seek justice against the men who gave the sharpshooter his orders. We cannot accept Justice Lodge's apologist view that agents of the government are not guilty of any crime, so long as they were ordered to commit such by their superiors. The logical extension of such thinking would have a "license to kill," so long as they had approval from their superiors. It is our deepest fear that this will be an unintended consequence of Thursday's ruling.

There are even some who suggest that it was necessary to place Horiuchi beyond prosecution, not as a matter of simple inter-agency nepotism, but to ensure the unswerving loyalty of agents to carry out their orders, regardless of whether or not those orders are lawful. Indeed, Horiuchi's defense team (supplied to him by the FBI and the Justice Department) argued for the dismissal of the case, contending that to even allow their client to be prosecuted would have "an enormously chilling effect on federal operations, especially law enforcement." Of course, some freedom-loving naysayers might suggest that a "chilling effect" might be just the thing we need, if, as Judge Lodge has suggested, federal operations have now degenerated to the point where shooting down women and children is considered all in a day's work.

There may be some truth to the defense team's excuses; had the Ruby Ridge sniper been found guilty and sentenced, it would have sent a message to law enforcement agents all over the country: "You are not above the law. Violate the law, and you can be prosecuted, no matter what orders you were given." Agents might have had to think twice about pulling that trigger, if they suspected it might not be necessary to kill someone. Fifty years ago this was the intended message of the Nuremberg trials--that no matter how small a cog you are in the criminal machine, no matter what your orders were, you are still responsible for your personal choice to acquiesce. Retribution can still find you. It would seem, however, that this message is only intended for Nazis of the goose-stepping, Seig-Heiling variety. Perhaps there is some truth to the suspicion that the Nuremberg examples provide a lesson that the government would rather not have its agents learn.

Six years after the last pedal of gunfire echoed off the distant hills of Idaho, the thick, gray gun smoke is still drifting from the wooded valleys around Ruby Ridge, to the marble-walled back rooms of Washington, DC, obscuring the treachery and furtive handshakes of the guilty in its path. Over the past several years, we have witnessed all manner of scandal and corruption from this administration, involving everything from Chinese arms merchants with pockets full of cash, to accusations of Presidential weenie-waggling. To use an example given by one political commentator, we have had so many scandalous blows rained down on us by our "leadership," that the impact barely even registers with us anymore; we simply weave and stagger numbly under the continual pounding. We have become punch drunk on scandal. But this goes beyond shady land deals and candy-stripers under the desk--now it has reached the turning point, when our government decides it may simply shoot unruly citizens with impunity, and rest assured that the network of inter-agency back scratchers will support them no matter how heinous the nature of their crime. We can only hope that one day Americans will sober up, and work to rein in the genie that has already begun to escape from its bottle. Until then, there are always Seinfeld reruns.

Kerry Delf, a senior majoring in Psychology and Women's Studies, is a columnist and copy editor for the Oregon Commentator

Craig Hunt is a guest columnist