The Dilemmas of a Disaster : How to think about Waco.

The Waco affair lies on a fault line for conservatives: They are law-and- order types; yet they mistrust excessive government power. Since the assault in 1993, most conservatives have stuck with the feds against the agglomeration of conspiracy theorists, tort lawyers, and plain fanatics who have popped up to make bizarre claims.

It may turn out, as government officials have always insisted, that some of the Davidians set their own structures on fire. Yet we have already learned enough in recent days to know that, whatever forthcoming investigations conclude, conservatives must rethink Waco. For the fundamental issue is not whether someone from the FBI fired a flammable tear-gas grenade rather than nonflammable grenades; that may be worth knowing, but it's minor. The key task should be to examine the state of mind of Justice Department, FBI, ATF, and local officials and review whether the assault on the compound was ultimately motivated by official efforts to destroy a sect the government found offensive. That is what earlier investigations suggested, yet no one--including conservatives generally--has ever acted on that evidence to force changes in the way federal agencies conduct themselves.

Why was it necessary to bring a gigantic force of FBI and ATF agents and Texas Rangers using--as we now know--materiel and advice from Delta Force and other elements of the U.S. military against 80 religious fanatics? A crime had been committed, yes--the killing of four ATF agents. They died in the initial effort to arrest the Davidians, which only raises again the question of why the government was so intent on that action. It appears that the Davidians' original crime was the breaking of federal firearms laws, but that is hardly a full justification for the Waco siege. And it must surely have been evident that the number of Davidians responsible for that crime and the far more serious one of killing the ATF agents had to be small. Why then imperil the lives of so many to arrest a couple of others? Once the huge task force had been assembled, with its armored vehicles and high-tech equipment, did those in charge decide that victory at all costs was imperative, lest their agencies be embarrassed? Once again, the key is the state of mind of the officials calling the shots.

We have had hints of an answer regarding attorney general Janet Reno, whose minions have long said she was moved by the plight of the 21 children in the compound. Every one of them died in the assault. There is something eerie here, and well worth a further look, for Reno built her law-enforcement career on bizarre and specious claims about protecting children. Serving as a state's attorney in Florida, she pressed some of the nation's earliest prosecutions of child-care professionals whose accusers were heavily coached children in the hands of energetic prosecutors out to make names for themselves. In state after state such prosecutions have now been reversed, in part through the extraordinary journalistic efforts of the Wall Street Journal's Dorothy Rabinowitz. What was Reno's state of mind about the children at Waco, and did it lead her to allow terrible abuses of power?

For conservatives, Waco is in large part a quis custodiet problem: Who guards the guardians? Whatever faith we may wish to place in the professionals of the FBI, who guards them from error? Who looks over their shoulder? Who punishes their abuses? This is a problem only in practice, not in theory. In theory, the answer is easy: the professionals of the Department of Justice. Distinguished practitioners of the law who are presidentially appointed to the department work together with Justice's career staff to provide a check on the FBI and other federal law- enforcement agencies. This is critical, because the balance between energetic law enforcement and limits on excessive government power will not be maintained if the Justice Department does not seek vigorously to maintain it.

In the Clinton administration, however, this has never worked. The president has left key jobs such as assistant attorney general for the criminal division vacant for long periods, and Reno was herself chosen because the president insisted on a woman and his earlier selections could not be confirmed. Worse yet, the Clinton Justice Department has been far more politicized than any in recent memory, and its handling of the administration's scandals has been itself scandalous. It is worth remembering the event that led to the first real break between Janet Reno and FBI director Louis Freeh: his recommendation that an independent counsel be appointed to investigate Clinton campaign-finance abuses, and her rejection of that advice. It is also worth remembering that the first associate attorney general who served under Reno, Webster Hubbell, arguably the most powerful person in the department in the early years, which included the Waco siege, was later convicted of various crimes and sent to prison.

Quis custodiet, then? The department's own perfunctory investigation of Waco quickly vindicated its handling of the affair. Alan Stone, a psychiatrist who teaches at Harvard Law School and served on that panel, wrote a dissent at the time and has now repeated to The Economist that "the Justice Department never had a proper investigation of what happened at Waco." In his dissent, Stone questioned the use of tear gas when there were so many children in the compound.

Back then, Reno was much admired for taking full responsibility for Waco, but with the benefit of time we can see that was meaningless. She always "takes full responsibility" but never accepts any blame--not for Waco, not for the decline of the Justice Department on her watch, not for allowing the department to become an appendage of the Clinton scandal-defense team. It is critical that any new investigation go beyond asking what type of tear-gas grenade was used, to ask what kind of Justice Department agreed to the apparent military role at Waco, agreed to an assault on a compound where dozens of innocent people (many of them women and children who were not suspected of any criminal acts) were at risk, and then failed to hold a serious inquiry into what took place. Open congressional hearings will be far more useful in addressing these issues than a new inquiry by some retired senator that will proceed in secrecy for months or years.

Congressional investigators might also ask what officials thought of the Davidians. The earlier probes suggested that FBI and other officials regarded them merely as nut cases, not as religiously motivated individuals. We may take a dim view of sects such as the Davidians, but we should take a far dimmer view of allowing the government to decide what is a dangerous sect and what is a respectable religion. In many countries today, government officials hobble evangelical groups because they do not wish to permit "sects" and "cults." It was a direct intention of the First Amendment to get the federal government out of the business of evaluating religious groups, and if such an evaluation was part of the action at Waco, this would be yet another dangerous abuse.

So this affair must reclaim the attention of conservatives. There are additional details to be unearthed. Far more important, though, will be a careful re-examination of the thinking of those in charge. When federal law-enforcement agencies launch an attack that kills 80 Americans, including 21 children, we must study again what went wrong and why the officials in charge decided that this religious sect constituted such a grave threat that the government had to act against it.

Mr. Abrams, an NR contributing editor, is president of the Ethics and Public Policy Center.