Can Soldiers Be Peace Officers? The Waco Disaster and the Militarization of American Law Enforcement

One of the most significant trends of federal law enforcement in the last fifteen years has been its militarization. The logical, perhaps inevitable, consequence of that militarization was seen in the disaster at Waco, Texas, resulting in the deaths of four federal agents, and seventy-six other men, women, and children. In this article, we use the Waco tragedy as a starting point to examine the militarization of federal law enforcement, and similar trends at the state and local level. Part Two of this article sets forth the details and rationale of the Posse Comitatus Act--the 1878 law forbidding use of the military in law enforcement. Part Three explicates how that Act was eroded by the drug war in the 1980s. The article then discusses how the drug exception to the Posse Comitatus Act was used to procure major military support for the Bureau of Alcohol, Tobacco and Firearms (BATF) raid against the Branch Davidians-even though there was no real drug evidence against them-and how the drug exceptions to the Posse Comitatus Act have made such abuses endemic. Part Four examines the fifty-one day FBI siege of the Branch Davidian residence, with a focus on the destructive role played by the FBI\u27s Hostage Rescue Team, an essentially military force which has proved counterproductive in a civilian law enforcement context. In Part Five we look at the problem of groupthink, its role in the Waco tragedy, and the importance of keeping groupthink-prone institutions-like the military-out of law enforcement. Finally, Part Six offers a broader view of the problem of the militarization of federal law enforcement. We examine the proliferation of federal paramilitary units and federal efforts to promote the militarization of state and local law enforcement. After explaining the direct connection between the drug war and law enforcement militarization, we propose numerous statutory remedies to demilitarize law enforcement