In testimony before the Senate on October 18, 1995, Deputy Attorney General Jamie S. Gorelick described a series of "reforms" made by the Justice Department since the Ruby Ridge incident. Upon examination, the "reforms" fail to address the real issues of crisis management, use of deadly force, militarization of law enforcement, accountability, and control of sensitive or dangerous techniques that have been highlighted by the tragedies at Waco and Ruby Ridge.

I. Crisis Management

The Deputy Attorney General testified that DOJ had "revamped dramatically" the way it responds to crises, by creating the Critical Incident Response Group (CIRG) for managing crises like Ruby Ridge. (In fact, the creation of CIRG probably had more to do with Waco than Ruby Ridge.) Gorelick testified that the CIRG "combines both a tactical component such as the HRT and a negotiation component."

However, the creation of CIRG fails to address the key issue posed by barricade and hostage situations: whether to negotiate and wait, or to bring increasing pressure to bear on the subjects, including the use of military equipment, until they break and surrender (or until they provoke the use of deadly force). In personnel terms, the same question is: who is in charge, the negotiators or the tactical team (i.e., the FBI's Hostage Rescue Team)? That was the key question at Waco. It remains unresolved today. Putting the two philosophies into a single unit does not resolve the conflict. (There was never a "conflict" at Ruby Ridge because the HRT killed Vicki Weaver and wounded the two men before the negotiators ever had a chance to begin negotiating.)

In a future crisis, the on-scene commander and the headquarters leadership will be faced with the same conflict between the negotiators and the HRT that existed at Waco, and, as far as we know, they will have no more guidance today than they had two years ago as to how to resolve that conflict.

-- Reforms Needed: DOJ's crisis management policy should clearly state that time and negotiation, not deadly force, should be used to resolve a standoff. That is, until use of force is necessary to protect life, negotiation should be the preferred approach. The policy should draw a distinction between hostage situations, where protecting the life of the hostage must be taken into account, and barricade situations. In the latter, where the subject is cornered and there is little chance that he will escape, it is not proper to "arrest" the person by killing him. For situations such as Waco where law enforcement confronts a highly motivated, ideological group, great weight must be given to the likelihood that "shrinking the perimeter" and other pressure tactics will only increase the cohesiveness and determination to resist of the barricaded group. The use of helicopters, armored personnel carriers and other military equip-ment should be curtailed. In cases dealing with religious groups, the government should seek the expertise of qualified scholars on religion and avoid reliance on proponents of "cult" stereotypes.

II. Use of Deadly Force

The rules on use of deadly force issued by the Justice Department on October 17 fail to resolve key issues posed by the conduct of government agents in the fatal confrontation with Randy Weaver.

The rules provide no more guidance than existed before. Most of the operative language is drawn directly from Tennessee v. Garner, the 1985 Supreme Court case that governed federal as well as local police use of deadly force.

Indeed, in one key respect, the new guidelines are weaker than Garner and offer less guidance than before. The basic rule under Garner and under the guidelines is that a law enforcement officer may use deadly force if there is probable cause to believe that a suspect poses a significant threat of death or serious physical injury to the officer or others. Garner and many courts have used the word "immediate" to further define the nature of the threat. The new DOJ guidelines, however, use the word "imminent" and the commentary accompanying the rules states that the word "imminent" was used specifically because it is "broader" than immediate. Moreover, the commentary states that the concept of imminent threat should be understood to be "elastic," and not fixed in time.

In language that appears tailor-made to defend the FBI's conduct at Ruby Ridge, the commentary concludes, "a subject may pose an imminent danger [justifying use of deadly force] ... if ... he or she ... is running for cover carrying a weapon." In other words, the shot that killed Vicki Weaver would be permitted under the "new" rules just as the FBI claims it was under the "old" rules.

-- Reforms Needed: The rules should use the narrower word "immediate," and should make it clear that when the threat of injury recedes, the justification for use of deadly force also recedes. There should also be guidelines addressing the specific problem of "dynamic" or "no-knock" entry, requiring high-level review and judicial approval of plans to execute a raid without complying with the Constitution's normal knock and notice requirement.