Rules Of Engagement Focus Of Fbi Probe Deputy Director’s Job On Line As Vicki Weaver’s Death Is Reinvestigated

“Good morning, Mrs. Weaver,” the FBI loudspeaker blared tauntingly at the mountaintop cabin. “We had pancakes this morning. And what did you have for breakfast?”

Vicki Weaver couldn’t answer. She was dead, lying on the floor after an FBI sniper’s bullet smashed into her head as she stood in a doorway, her 10-month-old baby in her arms.

That shot is echoing more loudly than ever in Washington this week. The Justice Department has opened a new investigation into the possibility of an FBI cover-up in connection with the 1992 Idaho shooting and the “rules of engagement” that encouraged it. A ranking FBI official has already been suspended, reportedly for shredding a document that could have shed light on decisions made during the siege, particularly by Larry Potts, now the FBI’s deputy director.

The rules were the most permissive ever laid down on the use of deadly force by the FBI. One veteran FBI hostage negotiator, Frederick W. Lancely, told Justice Department investigators in an earlier inquiry that he was surprised and shocked by the wording. Another agent deployed to Ruby Ridge said he understood the rules to mean “if you see ‘em, shoot ‘em.”

Since that bloody siege, there have been repeated internal investigations of the FBI’s conduct, but it is only now that the detailed findings are beginning to emerge. A special Justice Department task force produced a 542-page report last year, but that remained under wraps until it was obtained by the Legal Times and posted on the Internet.

The biggest controversy centers on the rules of engagement, telling FBI sharpshooters what they were to do in the effort to capture Vicki Weaver’s white-separatist husband, Randy, and a friend, Kevin Harris, following the killing of a federal marshal near the mountaintop retreat a day earlier. Introduced at Weaver’s trial in 1993, they said:

“If an adult in the compound is observed with a weapon after the surrender announcement is made, deadly force can and should be employed to neutralize the individual.

“If an adult male is observed with a weapon prior to the announcement, deadly force can and should be employed - if a shot can be taken without endangering the children.”

Justice Department officials later deemed the rules not only confusing but unconstitutional. But how they were drawn up and who approved them are still unclear almost two years after the death of Vicki Weaver. According to an internal Justice Department report on the incident, she was shot and killed before FBI agents on the scene asked for surrender.

The FBI did not make a “surrender announcement” to the cabin’s occupants until 6:15 p.m., more than a quarter of an hour after the shots were fired. The Justice Department task force called the lapse “inexcusable and unjustifiable.”

“The announcement should have been a priority at Ruby Ridge, not a rushed afterthought,” the task force said. FBI Director Louis J. Freeh, who was not on the job at the time of the Idaho incident, later censured Potts for his poor oversight at Ruby Ridge “with regard to the rules of engagement” and promoted him to the No. 2 job. Freeh declared Vicki Weaver’s killing tragic but accidental.

She was shot on Aug. 22, 1992, after FBI sharpshooters from the bureau’s hostage rescue team had taken positions on a ridge overlooking the compound. At the time, agents thought they were facing a heavily armed, possibly boobytrapped compound occupied by white separatists who had just killed Deputy U.S. Marshal William Degan when he tried to arrest Weaver.

The gunfire that day, Aug. 21, erupted after a team of marshals, clad in jungle camouflage and attempting to serve a warrant, shot and killed the Weaver family dog. Weaver’s 14-year-old son, Sammy, was also killed.

Potts has said he deemed the standoff “the most dangerous situation into which the FBI had ever gone” although Justice Department officials later said the threat had been exaggerated. There were no booby-traps or mines, Weaver had no arsenal, and the only people in the cabin were Weaver, his wife, their three daughters and Kevin Harris.

Potts said in a September 1992 affidavit that he and Richard Rogers, the head of the rescue team, agreed on rules of engagement by telephone on the evening of Aug. 21 as Rogers was flying to Idaho.

Here is where the accounts begin to conflict. Potts said he and Rogers agreed that any adult with a weapon who was observed in the vicinity of the cabin “could be the subject of deadly force.” That would appear to mean that armed adults could be shot on sight. One FBI agent has said he heard Rogers tell his team that this would be “no long siege.”

Shortly before 6 p.m., FBI sniper/ observer Lon Horiuchi saw two men and a woman - Weaver, Harris and Weaver’s 16-year-old daughter, Sara - come out the front door of the cabin. They later said they were going out to have a last look at Weaver’s dead son, whose body was in an outbuilding. Horiuchi said he thought one of the men was armed and seemed at one point to be trying to fire at an FBI helicopter, which was at least 200 yards away.

Horiuchi fired, wounding Weaver without realizing it. As the trio ran back to the cabin, Horiuchi fired again. The bullet hit Harris first, and then Vicki Weaver in the doorway.

“The subjects were never given a chance to drop their arms to show that they did not pose a threat,” a 1994 report by a Justice Department task force stated. “The subjects simply did what any person would do under the circumstances: They ran for cover.”

The FBI conducted its review last fall and Freeh concluded it last January, announcing he was disciplining 12 FBI employees, including Potts. The penalty for Potts was a letter of censure, the same Freeh had once given himself for losing a cellular telephone. Potts, who also supervised the siege at Waco, retained the director’s confidence and was put in charge of the Oklahoma City bombing investigation.

In his January announcement, Freeh agreed the rules of engagement could “be read by agents to act contrary to law and policy,” but he maintained that the FBI sniper’s decision to shoot was “guided by the FBI’s policy permitting the use of deadly force in self-defense or the defense of others.”

“(N)obody, thank God, was following the rules of engagement,” Freeh said at a news conference.

“Either he’s lying or he’s ignorant or both,” Weaver’s defense lawyer, Gerry Spence, said of Freeh. The Wyoming lawyer said Horiuchi himself testified at Weaver’s trial that he fired the shots he did “because of the rules of engagement” and his boss, Rogers, “said the same thing.”

Freeh defended Horiuchi’s second shot as “an attempt to prevent the armed suspect from gaining the tactical advantage of the cover of the fortified cabin from which he could have fired upon law enforcement officers.”

Potts told Justice Department investigators in their earlier inquiry that the rules he and Rogers drafted “were not intended to supersede standard deadly force policy.” He said the rules he approved over the telephone said only that deadly force “could” be used and not that it “can and should be.” Potts went on to say that “should” does not mean “must.”

Glenn was given the severest penalty for failings at Ruby Ridge - a 15-day suspension, a letter of censure and reassignment to Washington. Glenn complained that the FBI’s review had been unfair and distorted to protect Potts and others.

Weaver and Harris were subsequently acquitted on charges of murdering Deputy Marshal Degan. Weaver was found guilty only of missing a court date.