Denver SWAT team leader Gregory Sexton recalled the Rules as “if you see Weaver or Harris outside with the weapon, you’ve got the green light.” He had never seen such severe Rules of Engagement … Another member of the Denver SWAT team characterized the Rules as “strong” and as a departure from the FBI’s standard deadly force policy. A third member of Denver SWAT … remembered the Rules of Engagement as “if you see ’em, shoot ’em.”34
So far as the Weavers knew, they were alone on the ridge; after the firefight, the Marshals had vanished. The HRT plan was for the snipers to get into position before the HRT announced its presence; only at the announcement would the Weaver household even know that the FBI was there. The FBI knew, from the surveillance videos and photos taken by the Marshals, that no one in the Weaver cabin ventured outdoors without at least a handgun—a reasonable approach for anyone living in bear country. The rules of engagement assured that Randy Weaver and Kevin Harris were to be killed out of hand if they were outside, before they knew that federal threats existed and before anyone had asked them to surrender.
One of the FBI snipers later told USDOJ investigators:
Q: Were you advised that the folks there had a habit of coming out of the house with the weapons?
A: Yes, sir, I believe that was [in] one of the briefings.
Q: So you knew that sometimes they came out, the dogs barked, they came out with their weapons, you knew that, didn’t you?
A: Yes, sir.
Q: Under your rules of engagement, you could then and should, if they came out of the house, you could and should use deadly force?
A: Yes, sir, it is true.35
The operations plan laid out the intended, and violent, confrontation. Essentially, the HRT snipers would take position. Two armored personnel carriers would approach the Weaver cabin and demand surrender. If Weaver or Harris (misidentified as Weaver’s older son) exited the cabin while armed, the snipers would kill them. If there was no response to the demand to surrender, the armored personnel carriers would return the next day with the same demand. If it was not heeded, they would demolish the outbuildings by ramming and crushing them. If that did not work, they would gas the cabin with tear gas.36
Negotiations? We don’ need no stinkin’ negotiations! USDOJ’s own report described the FBI negotiator’s observations:
He had attended Rogers’ 9:00 a.m. briefing of the sniper/observers and heard Rogers tell the group that there would be “no long siege” and that the “Rules of Engagement” were to shoot armed adult males, if there was a clear shot. After attending this briefing, Lanceley [the negotiator] concluded that a tactical solution would be sought without negotiations. While in [sic] route to the crisis site, Lanceley told Rogers that he would work with HRT Intelligence because there was not going to be a negotiation effort. When Rogers said, “Good,” Lanceley felt that his impression had been confirmed.37
The plan was faxed to FBI headquarters where, by good luck, Deputy Assistant Director Danny Coulson was on duty and demonstrated wisdom to temper his offensive drive. The USDOJ investigation stated that Coulson rejected the plan because it had no provision regarding negotiations. In his memoirs, Coulson is rather blunt:
As I read the fax, my jaw locked. My God, we’ve got a problem, I said to myself. Well, this is just not going to happen. I thought thoughts that would’ve earned me about a hundred letters of censure, the cleanest of which was, Those dumb shits. Have they got their heads up their ass or what?
What I had in my hand didn’t resemble anything the HRT or any law enforcement agency should do. It was a military assault plan…. What really fried me was that somebody in the HRT had put this op on paper in the first place. They know better. Had everything I’d said and done and stood for been lost on these guys? How many times had I said that a tactical assault is always the last, worst, option, that every nonviolent, nonconfrontational option has to be thoroughly explored, no matter how long it takes? … What the plan boiled down to was this: we’d gas the place and rip it up until everybody inside was too hysterical to think straight, and then HRT operators would go into close-quarters battle with women and children.38
Those on the scene responded to Coulson’s rejection with a negotiation plan, which Coulson quickly approved. Matters would open with a negotiator going up to the cabin in an armored personnel carrier and informing the occupants that the FBI had arrest warrants for Randy Weaver and for Kevin Harris, while dropping off a portable phone so negotiations could begin.
But the special rules of engagement remained in effect while the negotiation plan was being drafted. Because of this, events were about to occur that would make any negotiation plan useless.
The HRT snipers were soon in position. Each had a four-thousand-dollar custom rifle topped by a three-thousand-dollar telescope sight. The range to the cabin was less than two hundred yards, at which distance the snipers were trained to hit a mark the size of a dime.
The family in the cabin had no idea law enforcement had returned. The battle with the Marshals had occurred the day before, and since then they had been left alone in stunned disbelief and grief. Late that afternoon, the two surviving dogs began to bark. Randy Weaver, Kevin Harris, and sixteen-year-old Sara Weaver climbed the rock outcropping for a better view, but saw nothing unusual. The HRT snipers were well concealed.
One of the snipers, Lon Horiuchi, was watching through his scope sight. The day was foggy, but he could make out two males carrying rifles, who had to be Weaver and Harris. He picked one male and rested the crosshairs of his Schmidt & Bender scope sight on him.39 They were adults and armed, fair game under the rules of engagement. Indeed, under the “could and should” standard of those rules, the snipers were not merely authorized to shoot, they were under orders to kill them.
Randy Weaver walked over to the shed that held Sammy’s body; he wanted another look at the face of his only son. He reached up to unlatch the door. Then it happened. “A bloody mist smelling like fresh hamburger crossed my face,” Randy Weaver would later write, “accompanied by a loud bang and a very sharp pain. It felt like I had been kicked in the shoulder by a mule.”40 Weaver realized he had just been shot. Sara shoved him toward the cabin, staying close to her father, thinking, “If you want to murder my dad, you’re going to have to shoot another kid in the back first!”41 Kevin Harris followed them as they sprinted toward the cabin.
Ahead of them, Vicki Weaver clutched the infant Elisheba to her breast with one hand and held the cabin door open with the other, calling out. The cabin door had a row of windows at its top.
Horiuchi was off to the side of the cabin, at a fairly steep angle. The open cabin door blocked part of his view as he prepared to take a second shot. What he saw in that instant will never be known, though we do have a sketch that he made. In the sketch, a stick figure (presumably Kevin Harris) stands in front of the open door, running toward it. The crosshairs of Horiuchi’s scope are shown, together with the “mil-dots” on it, which suggest that he was leading (shooting ahead of) the moving Harris by about fourteen inches.42 The crosshairs, and thus the point of the bullet’s arrival, would be through the window of the opened door, which extended at right angles across the sniper’s view.
That sounds quite sterile. What is not sterile is that in the window of the door the sniper drew his scope sight’s crosshairs, and also two semicircles. Heads sticking up: Vicki and someone else, either baby Elisheba in her arms or Randy passing her as Vicki bent outward and held the door open. The sniper could see that there were one or two other people in his line of fire as he squeezed the trigger. One of the first safety rules any hunter or shooter learns is to be sure of your target—and of what’s in front of and behind it. The sniper was about to violate that rule.
The bullet left the muzzle at over 2,600 feet per second, carrying over 2,400 foot-pounds of energy. It arrived on target about a quarter second later and did horrifying damage. Randy and Sara Weaver had already plunged past the danger zone; Kevin Harris was ju
st entering it. The powerful bullet penetrated the door, caught Vicki Weaver in the jaw and neck, and blew apart her carotid artery and jugular vein. She slumped to the floor still holding Elisheba, blood spurting from Vicki’s head. The bullet continued onward, expanding, slamming into Kevin Harris’s arm, penetrating it, continuing into his chest, and driving into his lung.
The HRT snipers heard a terrible female scream, lasting about thirty seconds, and then silence. One later wrote, “No words can describe the frantic abandon or immense horror of that scream. It was a banshee wail filled with death and rage and anguish.”43 It was Rachel Weaver, screaming in horror as her mother’s blood poured across the floor.44
Sara Weaver later described the chaos of those seconds:
That’s when I heard, or rather felt, the second shot. It sounded as if someone had fired a gun right by my ear. I thought I had been hit as fragments of something hit my cheek. My left ear was ringing.
The sniper’s bullet had passed through the glass in the door and hit my Mom in the head destroying half of her face. The bullet then hit Kevin in the left arm and lodged in his chest. Mom dropped to the floor beside me still cradling Elisheba in her arms. Kevin fell to the floor in front of me. Mom’s still body was holding the door wide open. She had died trying to save her family…. There was blood everywhere. Thick pools spreading across the kitchen floor and into the pantry…. Elisheba’s face and hair were covered with her mother’s blood and bone fragments.45
A few minutes later, the negotiator came up in the armored personnel carrier, announced his willingness to negotiate surrender, and dropped off a telephone. All the occupants of the cabin had to do was walk out in the open, into the sniper’s line of fire, and pick up the phone. Can anyone wonder why they didn’t?
Unannounced ambush is not generally the first step in a successful negotiation. Over the next few days, the FBI negotiator Fred Lanceley used a bullhorn to try to persuade the Weavers to step outside and pick up the telephone. From their standpoint that would mean volunteering for certain death. Trust was nonexistent.
The HRT is an action-directed organization, chosen and trained to break in and win a hyper-violent ten-second battle. Now they were being employed in a boring and sedentary siege, listening to a negotiator trying to work things out, day after day. They did not take it well, and began taking actions that made a well-negotiated end less likely. HRT leader Dick Rogers persuaded his superiors to let his armored personnel carriers demolish the outbuildings near the cabin.46 The family could hear military vehicles smashing a bicycle and a generator within twenty yards of the cabin.47 Then the HRT turned floodlights on the cabin, driven by noisy generators, to deprive the Weavers of sleep.48 Someone (not the designated negotiator, so probably an HRT member) used a bullhorn to taunt them: “How did you sleep last night, Randall? How are Mrs. Weaver and the children? We are having pancakes for breakfast, I think.”49
The FBI claimed that it did not at this point know that Vicki Weaver had been killed. But it had planted listening devices on the cabin and was quoted in the Orlando Sentinel and other media claiming that the sounds picked up showed that everyone inside was alive: “Electronic listening devices indicate Weaver, his wife, Vicki, Harris and Weaver’s three other children are alive and in the cabin.”50
Conditions inside the cabin were hellish. The air was dank with the odor of blood. Vicki Weaver lay where she fell, covered in a blanket. Baby Elisheba cried, “Mama, Mama!” whenever she awakened. Kevin Harris was in agony from his wounds and begged Randy Weaver to kill him and end the pain; Weaver refused. To get food without exposing herself to the snipers’ gunfire, Sara crawled back and forth to the kitchen through the pools of blood.
Botched negotiation attempts, or perhaps intentionally sabotaged ones, continued. A tracked, remote-controlled bomb deactivation robot carrying a telephone climbed onto the porch and waited in front of the door. Negotiators used bullhorns to ask Randy Weaver to take the telephone from the robot.
The robot had a remote-controlled shotgun, used to disrupt bombs, and no one had removed it.51 Did the HRT overlook the shotgun (hard to accept), or did it leave it on the robot to sabotage negotiations? Or was it really a booby trap—would Weaver have received a load of buckshot if he opened the door? Whichever scenario was planned, Weaver noticed the shotgun, which did little to inspire trust in the negotiators.
Seven days into the siege there was a breakthrough—and it was Randy Weaver who made it. He listened to the news with his battery-powered radio and had heard that there were crowds of protestors along the road outside the FBI lines. The program mentioned that James “Bo” Gritz was among them. Gritz was a Colonel of the Green Berets who had served in Vietnam and spent the postwar period searching for POWs. Weaver began crying out that he would talk to Gritz.52 FBI’s on-scene commander telephoned Deputy Assistant Director Danny Coulson, and Coulson approved the idea “in a heartbeat.”53
Weaver and Gritz trusted each other and matters moved rapidly. Gritz’s party expanded to include Weaver’s friend Jackie Brown and militia leader Jack McLamb. Two days of talks persuaded Kevin Harris to come out and surrender, although Weaver still feared that he and his daughters would be shot down if they left the cabin. But the end seemed to be in sight.
At that point, Danny Coulson walked into FBI Assistant Director Potts’s office just in time to hear the FBI’s on-scene commander asking, over the telephone, for permission to gas the cabin because “negotiations were at a standstill” and things needed to end. Coulson later described the encounter:
I lunged for Larry’s speakerphone so fast I almost got whiplash. “This doesn’t make any sense,” I snapped. “Why do you want to do this if you have a possibility of getting them out? Besides, they have gas masks.”
“Gritz didn’t see any,” was the reply.
“I don’t care if he saw them or not,” I said. “Every survivalist has a gas mask…. They are going to have gas masks. The only one we’d gas would be the baby. You’ve got the man he admires most in the world [Gritz] in there. You throw tear gas in there, and it’ll be a disaster. They’re gonna come out shooting, and we’re going to shoot a man with three little girls. Well, we’re not going to do this.”54
Negotiations took just one more meeting. Gritz’s party returned with two promises. Randy Weaver would be allowed to explain his side to a grand jury, and Gerry Spence, a flamboyant, theatrical, and very successful defense attorney, would represent him. By the end of the day, what was left of the Weaver family came out of what was left of their compound.
SHOWDOWN IN THE COURTROOM
The battle in Federal District Court would pit a team of USDOJ attorneys, led by local Assistant U.S. Attorney Ron Howen, against two rather more colorful defense teams. Kevin Harris’s defense went to David Nevin, a first-rate defense attorney and a relatively young man on the rise. Randy Weaver’s team was headed by Gerry Spence, backed by Gary Gilman, Ellie Matthews, Chuck Peterson, and Kent Spence.
At the outset, the government followed its standard course: overcharge the hell out of the defendants, tacking on as many counts as possible to the indictment. The hope is that the defense will have to spread out its efforts, overwhelming the attorneys. Even with a weak case something might “stick to the wall.” Government attorneys tend to disregard the risk that the jury may see this as an abuse of power, perhaps because with anything but a solid defense attorney they get away with this course of action. In no small measure, defendants lose because they run out of resources to fight unlimited government budgets.
For Randy Weaver, USDOJ started with the obvious: the sawed-off shotgun and failure to appear charges. Going further than that presented the obvious little problem that Weaver had shot at no one. He’d been shot, his wife and son had been killed, but he had done nothing beyond refusing to surrender for a time. That he’d done nothing was no barrier to an enterprising prosecutor—as prosecutors occasionally jest, “anyone can convict the guilty!” Weaver was charged with conspiracy to
commit murder: since his 1983 move to Idaho, he, Vicki, and Kevin Harris had supposedly plotted to murder federal agents; even the move and the building of their cabin was part of this sinister plot. The government also accused Weaver of assaulting federal agents, obstructing justice, and murder for aiding and abetting Harris’s killing of Marshal Degan. Under federal law, a person who aids and abets a crime—aids, counsels, or advises someone to commit it—is as guilty as the one who carries it out. Harris stood charged with murdering Degan and with conspiracy.
The combined conspiracy claims accused Weaver and Harris of masterminding a white racist terrorist network directed at luring federal agents to their deaths. With the conspiracy count, evidence of the Weavers’ rather strange political beliefs became relevant. Weaver and Harris would, as coconspirators, be liable for each other’s actions—thus Weaver could be blamed for Degan’s death, even though he was not there and had no idea that Degan had been shot.
FBI Deputy Assistant Director Danny Coulson later wrote that he’d opposed the overcharging; so had Henry Hudson, chief of the Marshals Service and a former prosecutor. So, for that matter, did everyone of consequence in FBI headquarters. Even during the siege, Coulson had advised USDOJ officials that Weaver had a “pretty strong legal position”:
1. Charge against Weaver is Bull S …
2. No one saw Weaver do any shooting.
3. Vicki has no charges against her.
4. Weaver’s defense. He ran down the hill to see what the dog was barking at.55
But within USDOJ, the local U.S. Attorney has almost complete autonomy in filing criminal charges, and Washington’s Main Justice refused to overrule the U.S. Attorney’s Office.
Then the U.S. Attorney’s Office announced that it wanted to seek the death penalty! Coulson and Potts opposed the idea. “But Potts and I didn’t slug it out at the department. Once the conspiracy count was in the case, we figured Weaver’s chances of acquittal were about 99 percent.”56
I'm from the Government and I'm Here to Kill You Page 9
