[House Report 104-749]
[From the U.S. Government Publishing Office]
Union Calendar No. 395
104th Congress REPORT
HOUSE OF REPRESENTATIVES
2nd Session 104-749
------------------------------------------------------------------------
INVESTIGATION INTO THE ACTIVITIES OF FEDERAL LAW ENFORCEMENT AGENCIES
TOWARD THE BRANCH DAVIDIANS
--------------------
THIRTEENTH REPORT
by the
COMMITTEE ON GOVERNMENT REFORM AND OVERSIGHT
prepared in conjunction with the
COMMITTEE ON THE JUDICIARY
together with
additional and dissenting views
August 2, 1996.--Committed to the Committee of the Whole House on
the State of the Union and ordered to be printed
Union Calendar No. 395
104th Congress REPORT
HOUSE OF REPRESENTATIVES
2nd Session 104-749
------------------------------------------------------------------------
INVESTIGATION INTO THE ACTIVITIES OF FEDERAL LAW ENFORCEMENT AGENCIES
TOWARD THE BRANCH DAVIDIANS
--------------------
THIRTEENTH REPORT
by the
COMMITTEE ON GOVERNMENT REFORM AND OVERSIGHT
prepared in conjunction with the
COMMITTEE ON THE JUDICIARY
together with
additional and dissenting views
August 2, 1996.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
----------
U.S. GOVERNMENT PRINTING OFFICE
WASHINGTON : 1996
26-167 CC
COMMITTEE ON GOVERNMENT REFORM AND OVERSIGHT
WILLIAM F. CLINGER, Jr., Pennsylvania, Chairman
BENJAMIN A. GILMAN, New York CARDISS COLLINS, Illinois
DAN BURTON, Indiana HENRY A. WAXMAN, California
J. DENNIS HASTERT, Illinois TOM LANTOS, California
CONSTANCE A. MORELLA, Maryland ROBERT E. WISE, Jr., West Virginia
CHRISTOPHER SHAYS, Connecticut MAJOR R. OWENS, New York
STEVEN SCHIFF, New Mexico EDOLPHUS TOWNS, New York
ILEANA ROS-LEHTINEN, Florida JOHN M. SPRATT, Jr., South Carolina
WILLIAM H. ZELIFF, Jr., New LOUISE McINTOSH SLAUGHTER, New York
Hampshire PAUL E. KANJORSKI, Pennsylvania
JOHN M. McHUGH, New York GARY A. CONDIT, California
STEPHEN HORN, California COLLIN C. PETERSON, Minnesota
JOHN L. MICA, Florida KAREN L. THURMAN, Florida
PETER BLUTE, Massachusetts CAROLYN B. MALONEY, New York
THOMAS M. DAVIS, Virginia THOMAS M. BARRETT, Wisconsin
DAVID M. McINTOSH, Indiana BARBARA-ROSE COLLINS, Michigan
RANDY TATE, Washington ELEANOR HOLMES NORTON, District of
DICK CHRYSLER, Michigan Columbia
GIL GUTKNECHT, Minnesota JAMES P. MORAN, Virginia
MARK E. SOUDER, Indiana GENE GREEN, Texas
WILLIAM J. MARTINI, New Jersey CARRIE P. MEEK, Florida
JOE SCARBOROUGH, Florida CHAKA FATTAH, Pennsylvania
JOHN B. SHADEGG, Arizona BILL BREWSTER, Oklahoma
MICHAEL PATRICK FLANAGAN, Illinois TIM HOLDEN, Pennsylvania
CHARLES F. BASS, New Hampshire ELIJAH CUMMINGS, Maryland
STEVEN C. LaTOURETTE, Ohio ------
MARSHALL ``MARK'' SANFORD, South BERNARD SANDERS, Vermont
Carolina (Independent)
ROBERT L. EHRLICH, Jr., Maryland
SCOTT L. KLUG, Wisconsin
James L. Clarke, Staff Director
Kevin Sabo, General Counsel
Robert Shea, Professional Staff Member
Jeff Wilmot, Professional Staff Member
Judith McCoy, Chief Clerk
Bud Myers, Minority Staff Director
----------
Subcommittee on National Security, International Affairs, and Criminal
Justice
WILLIAM H. ZELIFF, Jr., New Hampshire, Chairman
ROBERT L. EHRLICH, Jr., Maryland KAREN L. THURMAN, Florida
STEVEN SCHIFF, New Mexico ROBERT E. WISE, Jr., West Virginia
ILEANA ROS-LEHTINEN, Florida TOM LANTOS, California
JOHN L. MICA, Florida LOUISE McINTOSH SLAUGHTER, New York
PETER BLUTE, Massachusetts GARY A. CONDIT, California
MARK E. SOUDER, Indiana BILL BREWSTER, Oklahoma
JOHN B. SHADEGG, Arizona ELIJAH CUMMINGS, Maryland
Ex Officio
WILLIAM F. CLINGER, Jr., CARDISS COLLINS, Illinois
Pennsylvania
Robert Charles, Staff Director and Chief Counsel
Michele Lang, Special Counsel
Sean Littlefield, Professional Staff Member
Cherri Branson, Minority Professional Staff Member
(ii)
COMMITTEE ON THE JUDICIARY
HENRY J. HYDE, Illinois, Chairman
CARLOS J. MOORHEAD, California JOHN CONYERS, Jr., Michigan
F. JAMES SENSENBRENNER, Jr., PATRICIA SCHROEDER, Colorado
Wisconsin BARNEY FRANK, Massachusetts
BILL McCOLLUM, Florida CHARLES E. SCHUMER, New York
GEORGE W. GEKAS, Pennsylvania HOWARD L. BERMAN, California
HOWARD COBLE, North Carolina RICK BOUCHER, Virginia
LAMAR S. SMITH, Texas JOHN BRYANT, Texas
STEVEN SCHIFF, New Mexico JACK REED, Rhode Island
ELTON GALLEGLY, California JERROLD NADLER, New York
CHARLES T. CANADY, Florida ROBERT C. SCOTT, Virginia
BOB INGLIS, South Carolina MELVIN L. WATT, North Carolina
BOB GOODLATTE, Virginia XAVIER BECERRA, California
STEPHEN E. BUYER, Indiana ZOE LOFGREN, California
MARTIN R. HOKE, Ohio SHEILA JACKSON LEE, Texas
SONNY BONO, California MAXINE WATERS, California
FRED HEINEMAN, North Carolina
ED BRYANT, Tennessee
STEVE CHABOT, Ohio
MICHAEL PATRICK FLANAGAN, Illinois
BOB BARR, Georgia
Alan F. Coffey, Jr., General Counsel/Staff Director
Julian Epstein, Minority Staff Director
----------
Subcommittee on Crime
BILL McCOLLUM, Florida, Chairman
STEVEN SCHIFF, New Mexico CHARLES E. SCHUMER, New York
STEPHEN E. BUYER, Indiana ROBERT C. SCOTT, Virginia
HOWARD COBLE, North Carolina ZOE LOFGREN, California
FRED HEINEMAN, North Carolina SHEILA JACKSON LEE, Texas
ED BRYANT, Tennessee MELVIN L. WATT, North Carolina
STEVE CHABOT, Ohio
BOB BARR, Georgia
Paul J. McNulty, Chief Counsel
Glenn R. Schmitt, Counsel
Daniel J. Bryant, Assistant Counsel
Tom Diaz, Minority Counsel
(iii)
LETTER OF TRANSMITTAL
----------
House of Representatives,
Washington, DC, August 2, 1996.
Hon. Newt Gingrich,
Speaker of the House of Representatives,
Washington, DC.
Dear Mr. Speaker: By direction of the Committee on
Government Reform and Oversight and on behalf of Mr.
Hyde and Mr. McCollum of the Committee on the Judiciary,
I herewith submit the committee's thirteenth report to
the 104th Congress. The report is based on a joint
investigation conducted by the Judiciary's Subcommittee
on Crime, and the Government Reform and Oversight
Committee's Subcommittee on National Security,
International Affairs, and Criminal Justice.
Sincerely,
William F. Clinger, Jr.,
Chairman.
(v)
C O N T E N T S
----------
Page
Executive summary................................................. 1
A. A brief summary of the Government's actions
toward the Branch Davidians............... 1
B. Findings of the subcommittees.................. 3
C. Recommendations................................ 5
I. Introduction........................................... 6
A. The need for the Waco inquiry.................. 6
B. Opposition to the inquiry...................... 7
C. The nature of the inquiry...................... 8
1. Document requests and review....... 8
2. Investigation and interviews....... 8
3. Hearings........................... 9
4. Post-hearing investigation......... 9
D. The structure and scope of the report.......... 9
E. Additional comments............................ 10
II. The ATF investigation.................................. 10
A. The McMahon compliance visit................... 10
B. The investigation continued.................... 10
C. Undercover operation........................... 11
D. Failure to comply with ``sensitive-
significant'' procedures.................. 12
E. The affidavit in support of the warrants....... 12
F. Findings concerning the ATF investigation...... 13
G. Recommendations................................ 14
III. Planning and approval of the raid...................... 14
A. Was ``show time'' even necessary?.............. 14
B. Was the violent outburst predictable?.......... 15
C. The predisposition to dynamic entry............ 15
1. The source of the predisposition... 15
2. Raid approval and lack of Treasury
Department oversight of ATF... 16
D. Failure to comply with ``sensitive-
significant'' procedures.................. 17
E. Findings concerning the planning and approval
of the raid............................... 17
IV. Raid execution......................................... 17
A. Rodriguez and the ``element of surprise''...... 18
1. How the Davidians knew the ATF was
coming........................ 18
2. The undercover agent............... 18
B. Who bears the responsibility for the failure of
the raid?................................. 21
C. Other ways in which the plan selected was
bungled................................... 23
1. Command and control issues......... 23
2. The lack of a written raid plan.... 24
3. Lack of depth in the raid plan..... 24
4. Tactical teams trained together for
only 3 days before the raid... 25
5. True National Guard role only made
clear 24 hours prior to
theraid....................... 25
D. Service of the warrant......................... 26
E. Unresolved allegations......................... 26
1. Who shot first?.................... 26
2. Were shots fired from the
helicopters?.................. 27
F. The firing and rehiring of Chojnacki and
Sarabyn................................... 28
G. Findings concerning the raid execution......... 28
H. Recommendations................................ 29
(vii)
V. Military involvement in the Government operations at
WACO.................................................. 30
A. The expansion of military assistance to law
enforcement............................... 30
1. The Posse Comitatus Act............ 30
2. Interstate use of National Guard by
Governors..................... 33
B. The Bureau of Alcohol, Tobacco, and Firearms'
request for military assistance and the
military assistance actually provided..... 35
1. Overview........................... 35
2. Concerns of military legal advisors 39
3. Evidence indicating problems in the
approval process.............. 40
C. The alleged drug nexus......................... 43
1. Methamphetamine laboratories....... 43
2. Evidence purporting to show the
alleged drug nexus............ 45
3. Evidence refuting ATF's claim of a
drug nexus.................... 48
D. Post-raid military assistance to the Federal
Bureau of Investigation................... 50
1. Military equipment and personnel
provided...................... 50
2. Advice/consultation provided by
military officers............. 51
3. Foreign military personnel......... 51
E. Findings concerning military involvement in the
Government operations at Waco............. 52
1. The Posse Comitatus Act was not
violated...................... 52
F. Recommendations................................ 53
VI. Negotiations to end the standoff with the Davidians.... 55
A. The conflict between tactical commanders and
negotiators............................... 56
1. The problem with two teams: one
negotiating team and a
tactical team................. 56
B. Negotiation opportunities lost................. 58
1. Why the FBI changed negotiators.... 58
2. Why the FBI didn't allow others to
participate in the
negotiations.................. 59
C. Lack of appreciation of outside information.... 60
1. Why the FBI did not rely more on
religious advisors to
understand Koresh............. 60
2. Others who contributed information. 62
D. The FBI's failure to follow its own expert's
recommendations........................... 64
1. What the FBI's own experts
recommended................... 64
E. The decision to dismiss the surrender plan..... 64
1. ``Kids lined up with their jackets
on''.......................... 64
2. Breakthrough with Koresh's letter.. 65
3. The breakthrough communicated to
Jamar......................... 65
4. The failure to communicate this
breakthrough up the chain of
command....................... 65
5. Evidence that Koresh was writing
his interpretation of the
Seven Seals................... 66
6. Why the FBI disregarded the
evidence that the Seven Seals
were being written............ 66
F. Findings concerning the negotiations to end the
standoff with the Davidians............... 66
G. Recommendations................................ 66
VII. The Attorney General's decision to end the stand-off. 67
A. Overview of the plan to end the standoff....... 67
B. The operation plan for April 19, 1993.......... 67
1. Overview of the written operation
plan to end the standoff...... 67
2. Acceleration provisions of the
operations plan............... 68
C. The way the plan actually unfolded............. 68
D. Overview of the use of CS chemical agent....... 69
1. Introduction....................... 69
2. Concerns over use of CS............ 70
E. Clinical effects and toxicity of CS............ 70
1. Common effects of exposure to CS... 70
2. Toxicity of CS..................... 71
F. Effect of the CS and methylene chloride in the
quantities used on April 19th............. 71
1. Lethality of CS as used at Waco.... 71
2. Lethality of methylene chloride
used with CS at Waco.......... 73
3. Other possible effects of methylene
chloride used with CS at Waco. 74
(viii)
G. Analysis of the Attorney General's decision to
end the standoff on April 19, 1993........ 75
1. The decision not to storm the
residence..................... 75
2. The reasons asserted for ending the
standoff on day 51............ 75
3. The decision as to how to implement
the plan...................... 79
H. Presidential involvement in the events at Waco,
TX........................................ 81
I. Findings concerning the plan to end the
standoff.................................. 81
J. Recommendations................................ 83
VIII. The fire............................................. 84
A. Summary of the development of the fire......... 84
B. Other theories concerning the development of
the fire.................................. 85
1. Whether the methylene chloride in
the CS riot control agent used
by the FBI caused the fire.... 85
2. Whether the irritant chemical in
the CS riot control agent used
by the FBI caused or
contributed to the spread of
the fire...................... 86
3. Whether the combat engineering
vehicles used by the FBI on
April 19 started the fire..... 86
C. Whether the Davidians could have left their
residence after the fire began............ 87
D. The FBI's planning for the fire................ 87
E. Findings concerning the fire................... 88
VIEWS
Additional views of Hon. Ileana Ros-Lehtinen...................... 91
Additional views of Hon. William H. Zeliff, Jr.................... 92
The submission by Hon. Steven Schiff, of the Subcommittee on
National Security, International Affairs, and Criminal Justice
of the Committee on Government Reform and Oversight, of
extraneous material provided to him by Hon. Bob Barr, of the
Subcommittee on Crime of the Committee on the Judiciary....... 93
Additional views of Hon. Tom Lantos............................... 97
Dissenting views of Hon. Cardiss Collins, Hon. Karen L. Thurman,
Hon. Henry A. Waxman, Hon. Tom Lantos, Hon. Robert E. Wise,
Jr., Hon. Major R. Owens, Hon. Edolphus Towns, Hon. Louise M.
Slaughter, Hon. Paul E. Kanjorski, Hon. Carolyn B. Maloney,
Hon. Thomas M. Barrett, Hon. Barbara-Rose Collins, Hon.
Eleanor Holmes Norton, Hon. James P. Moran, Hon. Carrie P.
Meek, Hon. Chaka Fattah, and Hon. Elijah E. Cummings.......... 98
(ix)
Union Calendar No. 395
104th Congress REPORT
HOUSE OF REPRESENTATIVES
2nd Session 104-749
========================================================================
INVESTIGATION INTO THE ACTIVITIES OF FEDERAL LAW ENFORCEMENT AGENCIES
TOWARD THE BRANCH DAVIDIANS
--------------------
August 2, 1996.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
--------------------
Mr. Clinger, from the Committee on Government Reform and Oversight,
submitted the following
THIRTEENTH REPORT
together with
ADDITIONAL AND DISSENTING VIEWS
based on a joint investigation by the subcommittee on national security,
international affairs, and criminal justice of the committee on
government reform and oversight, and the subcommittee on crime of the
committee of the judiciary
On July 25, 1996, the Committee on Government Reform and Oversight
approved and adopted a report entitled ``Investigation Into the
Activities of Federal Law Enforcement Agencies Toward the Branch
Davidians.'' The report was prepared jointly with the Committee on the
Judiciary. The chairman was directed to transmit a copy to the Speaker
of the House.
Executive Summary
From April 1995 to May 1996, the Subcommittee on Crime of the House
Committee on the Judiciary and the Subcommittee on National Security,
International Affairs, and Criminal Justice of the House Committee on
Government Reform and Oversight jointly conducted an investigation into
the actions of the Federal agencies involved in law enforcement
activities near Waco, TX in late 1992 and early 1993 toward a group
known as the Branch Davidians. As part of that investigation, the
subcommittees held 10 days of public hearings. During the course of
those hearings, more than 100 witnesses appeared and gave testimony
concerning all aspects of the government's actions. The subcommittees
also reviewed thousands of documents requested from and provided by the
agencies involved in these actions. Additionally, the subcommittees met
with others who were involved in these actions or who offered additional
information or opinions concerning them.
This report is the final product of that investigation. It
summarizes the most important facts about the key issues of these
activities considered by the subcommittees. The report also sets forth
the subcommittees' findings with respect to many disputed issues and to
new facts uncovered during the investigation. Finally, the report makes
recommendations in order to prevent the mistakes that occurred at Waco
from reoccurring in future law enforcement operations.
a. a brief summary of the government's actions toward the branch
davidians
In June 1992, the Austin, TX Office of the Bureau of Alcohol,
Tobacco and Firearms (ATF) opened a formal investigation into
allegations that members of a Waco, TX religious group, known as the
Branch Davidians, and in particular their leader, Vernon Howell, also
known as David Koresh, were in possession of illegal firearms and
explosive devices. In January 1993, ATF agents commenced an undercover
operation in a small house directly across from the property on which
the Branch Davidians lived. The ATF agents posed as students attending
classes at a local technical college to monitor the activities of the
Davidians. Part of the undercover operation involved one of the agents
meeting with Koresh and other Davidians several times by expressing an
interest in their religious beliefs. As a result of the evidence
gathered by the ATF, and in particular during the undercover operation,
the ATF sought and received from a Federal judge an arrest warrant for
Koresh and a warrant to search the Branch Davidian residence.
Shortly before the ATF planned to serve the search and arrest
warrants, it contacted Operation Alliance, a government office which
coordinated military counter drug operations along the southwest border.
Through that office, the ATF requested that military personnel provide
training to the ATF agents who would be involved in the raid to serve
the warrants. The ATF's request for military assistance also would have
involved the military personnel as participants in the raid itself.
After military legal advisors cautioned that such activity might violate
Federal law, the ATF's request was modified so that military personnel
only provided training to the ATF agents and did not participate in the
raid. Because the ATF alleged that the Davidians were also involved in
illegal drug manufacturing, the assistance provided by these counter
drug military forces was provided to the ATF without reimbursement.
On February 28, 1993, a force of 76 ATF agents stormed the Davidian
residence to serve the arrest and search warrants. Prior to the
commencement of the raid, however, the Davidians had learned of the
ATF's plans. As the agents arrived at the Davidians' residence, the
Davidians engaged the ATF agents in a gun battle which continued for
almost 90 minutes. Four ATF agents were killed in the battle and more
than 20 agents wounded. At least two Davidians were killed by ATF agents
and several others, including Koresh, were wounded.
After a cease-fire was arranged, the Federal Bureau of Investigation
(FBI) dispatched members of its Hostage Rescue Team (HRT) to Waco to
take control of the situation at the request of the ATF. At 6 a.m. the
next morning, the FBI formally took control of the situation and
commenced a 51 day standoff with the Davidians. During this time, FBI
officials engaged in daily negotiations with the Davidians in an effort
to end the standoff peaceably. Between February 18 and March 23, 35
persons, including 21 children, left the residence and surrendered to
the FBI. From March 23 to April 18, however, none of the remaining
Branch Davidians left the residence.
In addition to the continual negotiations with the Davidians, FBI
officials took other steps to induce the Davidians to surrender. These
tactics included tightening the perimeter around the Davidian residence,
cutting off electricity to the residence, and at one point, shining
bright lights at the residence and playing loud music and irritating
sounds over loudspeakers. During the course of the standoff, FBI
negotiators consulted with several experts routinely retained by the
FBI. In some cases, the advice of these experts was followed while in
other cases it was not. Many other persons offered advice to the FBI.
While a few of these individuals offered credible assistance, the FBI
chose to ignore the offers of assistance from all of these persons.
During the week of April 12, senior Justice Department officials
began considering a plan developed by the FBI to end the standoff.
Attorney General Janet Reno, other senior Justice Department officials,
and FBI officials held several meetings concerning the plan. The FBI
also requested the input of Department of Defense employees and military
personnel concerning the plan to end the standoff. During these
deliberations Associate Attorney General Webster Hubbell personally
discussed the status of the negotiations with the FBI's chief day-to-day
negotiator in Waco. The proposed plan centered around the use of a
chemical riot control agent which would be injected through the walls of
the Davidian residence in order to induce the residents to leave the
structure. It provided for the methodical insertion of the riot control
agent into different parts of the building over a 48 hour period. The
plan also contained a contingency provision to be used if the Davidians
fired on the FBI agents who were implementing the plan. In that event,
the FBI proposed to insert the riot control agent into all portions of
the residence simultaneously. As a result of these deliberations, the
Attorney General approved the implementation of the plan for April 19,
1993.
At approximately 6 a.m. on April 19, the FBI's chief negotiator,
Byron Sage, telephoned the Davidians and informed them that the FBI was
inserting the riot control agent into the residence. Sage also began
broadcasting a prepared statement over loudspeakers that the FBI was
``placing tear gas in the building'' and that all residents should
leave. As the announcement was being made, FBI agents using unarmed
military vehicles with booms mounted on them began to insert the riot
control agent into the compound by ramming holes into the sides of the
structure and then using devices mounted on the booms to spray the riot
control agent into the holes in the walls. Almost immediately the
Davidians began to fire on the vehicles being used by the FBI. At 6:07
a.m., the commander of the Hostage Rescue Team ordered that the
contingency provision of the operations plan be implemented and that the
riot control agent be inserted in all portions of the residence at once.
During 6 hours of insertion of the riot control agent no residents
exited the compound.
At approximately 12:07 p.m., a fire was observed in one portion of
the residence. Within 2 minutes, two other fires developed. Within a
period of 8 minutes, the three fires had engulfed the entire structure,
ultimately destroying it completely.
During the fire, sounds of gunfire from within the structure were
heard. Some of these sounds were live rounds exploding in the flames
inside the compound. However, other sounds were methodical and evenly-
spaced, indicating the deliberate firing of weapons. Nine persons
escaped from the structure during the course of the fire but more than
70 other residents remained inside. All of these persons died. Of this
number, autopsies indicated that 19 died from gunshots at close range.
Most of the other residents who remained inside the structure died as a
result of smoke inhalation from the fire or from burns from the fire.
b. findings of the subcommittees
As a result of its investigation, the subcommittees make the
following findings:
The Branch Davidians
1. But for the criminal conduct and aberrational behavior of David
Koresh and other Branch Davidians, the tragedies that occurred in Waco
would not have occurred. The ultimate responsibility for the deaths of
the Davidians and the four Federal law enforcement agents lies with
Koresh.
2. While not dispositive, the evidence presented to the
subcommittees indicates that some of the Davidians intentionally set the
fires inside the Davidian residence.
3. The Davidians could have escaped the residence for a significant
period of time after the start of the fire. Most of the Davidians either
did not attempt to escape from the residence or were prevented from
escaping by other Davidians.
4. The gunshot wounds which were the cause of death of 19 of the
Davidians on April 19 were either self-inflicted, inflicted by other
Davidians, or the result of the remote possibility of accidental
discharge from rounds exploding in the fire.
The Department of the Treasury
1. Treasury Secretary Lloyd Bentsen and Deputy Secretary Roger
Altman acted highly irresponsibly and were derelict in their duties in
failing to even meet with the Director of the ATF in the month or so
they were in office prior to the February 28 raid on the Davidians
residence, in failing to request any briefing on ATF operations during
this time, and in wholly failing to involve themselves with the
activities of the ATF.
2. Senior Treasury Department officials routinely failed in their
duty to monitor the actions of ATF officials, and as a result were
uninvolved in the planning of the February 28 raid. This failure
eliminated a layer of scrutiny of the plan during which flaws in it
might have been uncovered and corrected.
3. After the raid failed, Assistant Treasury Secretary Ronald Noble
attempted to lay the blame entirely on the ATF despite the fact that
Treasury Department officials, including Noble, failed to properly
supervise ATF activities leading to the raid. Moreover, Treasury
Department officials, having approved the raid, failed to clearly and
concisely communicate the conditions under which it was to be aborted.
The Bureau of Alcohol, Tobacco and Firearms
1. The ATF's investigation of the Branch Davidians was grossly
incompetent. It lacked the minimum professionalism expected of a major
Federal law enforcement agency.
2. While the ATF had probable cause to obtain the arrest warrant for
David Koresh and the search warrant for the Branch Davidian residence,
the affidavit filed in support of the warrants contained an incredible
number of false statements. The ATF agents responsible for preparing the
affidavits knew or should have known that many of the statements were
false.
3. David Koresh could have been arrested outside the Davidian
compound. The ATF chose not to arrest Koresh outside the Davidian
residence and instead were determined to use a dynamic entry approach.
In making this decision ATF agents exercised extremely poor judgment,
made erroneous assumptions, and ignored the foreseeable perils of their
course of action.
4. ATF agents misrepresented to Defense Department officials that
the Branch Davidians were involved in illegal drug manufacturing. As a
result of this deception, the ATF was able to obtain some training from
forces which would not have otherwise provided it, and likely obtained
other training within a shorter period of time than might otherwise have
been available. Because of its deception, the ATF was able to obtain the
training without having to reimburse the Defense Department, as
otherwise would have been required had no drug nexus been alleged.
5. The decision to pursue a military style raid was made more than 2
months before surveillance, undercover, and infiltration efforts were
begun. The ATF undercover and surveillance operation lacked the minimum
professionalism expected of a Federal law enforcement agency.
Supervisors failed to properly monitor this operation.
6. The ATF's raid plan for February 28 was significantly flawed. The
plan was poorly conceived, utilized a high risk tactical approach when
other tactics could have been successfully used, was drafted and
commanded by ATF agents who were less qualified than other available
agents, and used agents who were not sufficiently trained for the
operation. Additionally, ATF commanders did not take precautions to
ensure that the plan would not be discovered.
7. The senior ATF raid commanders, Phillip Chojnacki and Chuck
Sarabyn, either knew or should have known that the Davidians had become
aware of the impending raid and were likely to resist with deadly force.
Nevertheless, they recklessly proceeded with the raid, thereby
endangering the lives of the ATF agents under their command and the
lives of those residing in the compound. This, more than any other
factor, led to the deaths of the four ATF agents killed on February 28.
8. Former ATF Director Stephen Higgins and former ATF Deputy
Director Daniel Hartnett bear a portion of the responsibility for the
failure of the raid. They failed to become significantly involved in the
planning for the raid and also failed to instill in the senior raid
commanders an understanding of the need to ensure that secrecy was
maintained in an operation of this type.
9. There was no justification for the rehiring of the two senior ATF
raid commanders after they were fired. The fact that senior Clinton
administration officials approved their rehiring indicates a lack of
sound judgment on their part.
The Department of Justice
1. The decision by Attorney General Janet Reno to approve the FBI's
plan to end the standoff on April 19 was premature, wrong, and highly
irresponsible. In authorizing the assault to proceed Attorney General
Reno was seriously negligent. The Attorney General knew or should have
known that the plan to end the stand-off would endanger the lives of the
Davidians inside the residence, including the children. The Attorney
General knew or should have known that there was little risk to the FBI
agents, society as a whole, or to the Davidians from continuing this
standoff and that the possibility of a peaceful resolution continued to
exist.
2. The Attorney General knew or should have known that the reasons
cited for ending the stand-off on April 19 lacked merit. The
negotiations had not reached an impasse. There was no threat of a
Davidian breakout. The FBI Hostage Rescue Team did not need to stand
down for rest and retraining for at least 2 more weeks after April 19,
and if and when it did stand down FBI and local law enforcement SWAT
teams could have been brought in to maintain the perimeter. Sanitary and
other living conditions inside the Davidian residence had not
deteriorated during the standoff and there was no evidence that they
were likely to deteriorate in the near future. And while physical and
sexual abuse of minors had occurred, there was no basis to conclude that
minors were being subjected to any greater risk of physical or sexual
abuse during the stand-off than prior to February 28. The final assault
put the children at the greatest risk.
3. The CS riot control agent insertion and assault plan was fatally
flawed. The Attorney General believed that it was highly likely that the
Davidians would open fire, and she knew or should have known that the
rapid insertion contingency would be activated, that the Davidians would
not react in the manner suggested by the FBI, and that there was a
possibility that a violent and perhaps suicidal reaction would occur
within the residence. The planning to end the stand-off was further
flawed in that no provision had been made for alternative action to be
taken in the event the plan was not successful.
4. Following the FBI's April 19 assault on the Branch Davidian
compound, Attorney General Reno offered her resignation. In light of her
ultimate responsibility for the disastrous assault and its resulting
deaths the President should have accepted it.
The Federal Bureau of Investigation
1. The CS riot control agent assault of April 19 should not have
taken place. The possibility of a negotiated end to the standoff
presented by Koresh should have been pursued even if it had taken
several more weeks.
2. After Koresh and the Davidians broke a promise to come out on
March 2 FBI tactical commander Jeffrey Jamar viewed all statements of
Koresh with extreme skepticism and thought the chances of a negotiated
surrender remote. While chief negotiator Byron Sage may have held out
hope longer, FBI officials on the ground had effectively ruled out a
negotiated end long before April 19 and had closed minds when presented
with evidence of a possible negotiated end following completion of
Koresh's work on interpreting the Seven Seals of the Bible.
3. The FBI should have sought and accepted more expert advice on the
Branch Davidians and their religious views and been more open-minded to
the advice of the FBI's own experts.
4. FBI tactical commander Jeffrey Jamar and senior FBI and Justice
Department officials advising the Attorney General knew or should have
known that none of the reasons given to end negotiations and go forward
with the plan to end the stand-off on April 19 had merit. To urge these
as an excuse to act was wrong and highly irresponsible.
5. CS riot control agent is capable of causing immediate, acute and
severe physical distress to exposed individuals, especially young
children, pregnant women, the elderly, and those with respiratory
conditions. In some cases, severe or extended exposure can lead to
incapacitation. Evidence presented to the subcommittees show that use of
CS riot control agent in enclosed spaces, such as the bunker,
significantly increases the possibility that lethal levels will be
reached, and the possibility of harm significantly increases. In view of
the risks posed by insertion of CS into enclosed spaces, particularly
the bunker, the FBI failed to demonstrate sufficient concern for the
presence of young children, pregnant women, the elderly, and those with
respiratory conditions. While it cannot be concluded with certainty, it
is unlikely that the CS riot control agent, in the quantities used by
the FBI, reached lethal toxic levels. However, the presented evidence
does indicate that CS insertion into the enclosed bunker, at a time when
women and children were assembled inside that enclosed space, could have
been a proximate cause of or directly resulted in some or all of the
deaths attributed to asphyxiation in the autopsy reports.
6. There is no evidence that the FBI discharged firearms on April
19.
7. There is no evidence that the FBI intentionally or inadvertently
set the fires on April 19.
8. The FBI's refusal to ask for or accept the assistance of other
law enforcement agencies during the stand-off demonstrated an
institutional bias at the FBI against accepting and utilizing such
assistance.
The Department of Defense
1. The activities of active duty military personnel in training the
ATF and in supporting the FBI's activities during the standoff did not
violate the Posse Comitatus Act because their actions did not constitute
direct participation in the government's law enforcement activities.
2. The activities of National Guard personnel in training the ATF,
in participating in the ATF raid on the Davidian residence, and in
supporting the FBI's activities during the standoff did not violate the
Posse Comitatus Act because the personnel were not subject to the
prohibitions in the act.
3. No foreign military personnel or other foreign persons took part
in any of the government's actions toward the Branch Davidians. Some
foreign military personnel were present near the Davidian residence as
observers at the invitation of the FBI.
c. recommendations
In order to prevent the errors in judgment and consequent tragic
results that occurred at Waco from occurring in the future, the
subcommittees' make the following recommendations:
1. Congress should conduct further oversight of the Bureau of
Alcohol, Tobacco and Firearms, the oversight of the agency provided by
the Treasury Department, and whether jurisdiction over the agency should
be transferred to the Department of Justice. Congress should consider
whether the lack of Treasury Department oversight of ATF activities in
connection with the investigation of the Davidians, and the failures by
ATF leadership during that investigation, indicate that jurisdiction
over the ATF should be transferred to the Department of Justice.
2. If the false statement in the affidavits filed in support of the
search and arrest warrants were made with knowledge of their falsity,
criminal charges should be brought against the persons making the
statements.
3. Federal law enforcement agencies should verify the credibility
and the timeliness of the information on which it relies in obtaining
warrants to arrest or search the property of an American citizen. The
affidavits on which the arrest and search warrants of Koresh were
ordered contained information provided to the ATF by informants with
obvious bias toward Koresh and the Davidians and information that was
stale in that it was based on experiences years before the
investigation. The ATF should obtain fresh and unbiased information when
relying on that information to arrest or search the premises of the
subjects of investigations.
4. The ATF should revise its National Response Plan to ensure that
its best qualified agents are placed in command and control positions in
all operations. Doing so will help to avoid situations like that which
occurred at Waco where lesser qualified agents were placed in positions
for which they were, at best, only partially qualified while other, more
experienced agents were available whose involvement might have prevented
the failure of the raid.
5. Senior officials at ATF headquarters should assert greater
command and control over significant operations. The ATF's most senior
officials should be directly involved in the planning and oversight of
every significant operation.
6. The ATF should be constrained from independently investigating
drug-related crimes. Given that the ATF based part of its investigation
of the Branch Davidians on unfounded allegations that the Davidians were
manufacturing illegal drugs, and as a result improperly obtained
military support at no cost, the subcommittees recommend that Congress
restrict the jurisdiction of the ATF to investigate cases involving
illegal drugs unless such investigations are conducted jointly with the
Drug Enforcement Administration as the lead agency.
7. Congress should consider applying the Posse Comitatus Act to the
National Guard with respect to situations where a Federal law
enforcement entity serves as the lead agency. The fact that National
Guard troops were legally allowed to be involved directly in Federal law
enforcement actions against the Davidians, while active duty forces were
not, is inconsistent with the spirit of the Posse Comitatus Act.
8. The Department of Defense should streamline the approval process
for military support so that Posse Comitatus Act conflicts and drug
nexus controversies are avoided in the future. The process should make
clear to law enforcement agencies requesting Defense Department support
the grounds upon which support will be given. Such requests should be
assigned to a single office to ensure that support will be provided only
in legitimate circumstances and in a manner consistent with the Posse
Comitatus Act.
9. The General Accounting Office should audit the military
assistance provided to the ATF and to the FBI in connection with their
law enforcement activities toward the Branch Davidians. Given that the
subcommittees have been unable to obtain detailed information concerning
the value of the military support provided to the ATF and the FBI, the
subcommittees recommend that the General Accounting Office conduct an
audit of these agencies to ascertain the value of the military support
provided to them and to ensure that complete reimbursement has been made
by both agencies.
10. The General Accounting Office should investigate the activities
of Operation Alliance in light of the Waco incident. The subcommittees
conclude that Operation Alliance personnel knew or should have known
that ATF did not have a sufficient drug nexus to warrant the military
support provided on a non-reimbursable basis. Furthermore, given that
the provision of assistance under such dubious circumstances appears to
not have been an anomaly and the expansion of Operation Alliance's
jurisdiction since Waco, the subcommittees recommend that the General
Accounting Office conduct an investigation of Operation Alliance.
11. Federal law enforcement agencies should redesign their
negotiation policies and training to avoid the influence of physical and
emotional fatigue on the course of future negotiations. In anticipation
of future negotiations involving unusually emotional subjects or those
which may involve prolonged periods of time during which negotiators may
become physically or emotionally fatigued, Federal law enforcement
agencies should implement procedures to ensure that these factors do not
influence the recommendations of negotiators to senior commanders.
12. Federal law enforcement agencies should take steps to foster
greater understanding of the target under investigation. The
subcommittees believe that had the government officials involved at Waco
taken steps to understand better the philosophy of the Davidians, they
might have been able to negotiate more effectively with them, perhaps
accomplishing a peaceful end to the standoff. The subcommittees believe
that had the ATF and FBI been better informed about the religious
philosophy of the Davidians and the Davidians' likely response to the
government's actions against them, these agencies could have made better
choices in planning to deal with the Branch Davidians.
13. Federal law enforcement agencies should implement changes in
operational procedures and training to provide better leadership in
future negotiations. The subcommittees believe that placing greater
emphasis on leadership in critical situations will not only protect the
targets of government action, but also will help to protect the safety
of the law enforcement officers.
14. Federal law enforcement agencies should revise policies and
training to increase the willingness of their agents to consider the
advice of outside experts. The subcommittees note that the expertise of
recognized negotiation experts, particularly those experienced with
religiously-motivated groups, might have proved invaluable in assisting
FBI negotiations with the Branch Davidians. Accordingly, the
subcommittees recommend that Federal law enforcement agencies revise
their policies and training so that their agents are open to the advice
such experts might provide.
15. Federal law enforcement agencies should revise policies and
training to encourage the acceptance of outside law enforcement
assistance, where possible. The unwillingness of the FBI to accept
support from State, local, or other Federal law enforcement agencies in
connection with the standoff increased the pressure on the Attorney
General to end the standoff precipitously. To avoid this type of
pressure in the future, Federal law enforcement agencies should be open
to the assistance that State and local law enforcement agencies may be
able to provide.
16. The FBI should expand the size of the Hostage Rescue Team. The
FBI should increase the size of the Hostage Rescue Team so that there
are sufficient numbers of team members to participate in an operation
and to relieve those involved when necessary. The FBI should also
develop plans to utilize FBI and local law enforcement SWAT teams when
extenuating circumstances exist.
17. The government should further study and analyze the effects of
CS riot control agent on children, persons with respiratory problems,
pregnant women, and the elderly. The subcommittees note that only
limited scientific literature exists concerning the effects of CS riot
control agent, especially with regard to the effects of long-term
exposure in a closed area. Until such time as more is known about the
actual effects of exposure to this agent, the subcommittees recommend
that CS not be used when children, persons with respiratory problems,
pregnant women, and the elderly are present. Federal law enforcement
agencies should develop guidelines for the use of riot control agents in
light of this further study and analysis.
I. Introduction
a. the need for the waco inquiry
On February 28, 1993, four special agents of the Bureau of Alcohol,
Tobacco and Firearms (ATF) were tragically killed near Waco, TX, in a
shootout with a religious sect known as the Branch Davidians. The
group's leader, Vernon Howell, also known as David Koresh, was wounded
in the violent confrontation, and several of its members were killed.
Then on April 19, 1993, after a 51 day standoff with the Federal Bureau
of Investigation (FBI), the episode came to a fiery conclusion when more
than 70 Davidians, including 22 children, died inside the group's
residence.
From any perspective, Waco ranks among the most significant events
in U.S. law enforcement history. For ATF, it was the largest and most
deadly raid ever conducted. For the FBI, it was an unprecedented failure
to achieve a critical objective--the rescue of dozens of innocent women
and children.
The television coverage and news accounts generated by the media at
the scene near Waco presented a troubling picture to Americans. On the
one hand, it seemed clear enough that a Jonestown-like religious cult
led by an irrational leader had brought disaster on itself. On the other
hand, images of the tanks and other military vehicles gave the
impression that the FBI was using excessive force together with military
weapons and tactics against U.S. citizens, contrary to our civilian law
enforcement tradition. In the aftermath of the April 19th fire,
government officials, Members of Congress, and assorted observers called
for a thorough review of the matter. Outside the corridors of power, a
mixture of fact, rumor, and suspicion produced a wide variety of lasting
impressions and conspiracy theories.
Both the Justice and Treasury Departments issued detailed written
reports many months later. The Treasury Department Report criticized ATF
personnel, but it exonerated all Department officials. The Justice
Department Report found no fault with any actions of the FBI or any
Justice Department official.
Several congressional committees conducted hearings in the weeks
following the disaster. Unfortunately, little information was available
from administration officials at the time. Representative Jack Brooks,
chairman of the House Judiciary Committee, promised additional hearings
to resolve remaining questions, but none were held.
Several developments in 1994 contributed to the pervasive view that
serious questions about Waco remained unanswered. The criminal trial of
the surviving Branch Davidians resulted in acquittals on murder charges.
The self-defense arguments raised at trial and their obvious effect on
the jury encouraged the public's outcry and desire for accountability.
Journalists, investigators, and attorneys involved in the case decried
the absence of candor and independence in the administration's reports
and demanded a more comprehensive and detailed inquiry. In addition,
widely distributed video tapes entitled ``Waco: The Big Lie'' and
``Waco: The Big Lie Continues'' had a significant impact on public
opinion. Also, many policymakers read an article published in First
Things, written by Dean Kelly of the National Council of Churches,\1\
which stirred up considerable speculation about the ATF's conduct and
the FBI's use of CS chemical agent. In short, by the start of the 104th
Congress, the need for a sufficient and thorough congressional
examination of the Waco tragedy was indisputable.
---------------------------------------------------------------------------
\1\ Dean M. Kelley, Waco: A Massacre and Its Aftermath, First
Things, May 1995, at 22.
---------------------------------------------------------------------------
At the outset of the 104th Congress, both the Committee on the
Judiciary and the Committee on Government Reform and Oversight indicated
in their formal oversight plans, filed in February 1995, the intention
to conduct hearings on the Waco matter. Representative Bill McCollum,
chairman of the Subcommittee on Crime of the Committee on the Judiciary
and Representative Bill Zeliff, chairman of the Subcommittee on National
Security, International Affairs, and Criminal Justice of the Committee
on Government Reform and Oversight stated on several occasions that such
hearings were a necessary response to the widespread dissatisfaction
with the Federal Government's follow-up to what happened at the Branch
Davidian residence. The deplorable bombing in Oklahoma City 2 months
later revealed the extent to which Waco continued to served as a source
of controversy for some Americans. With the concurrence of the Speaker
of the House and the chairmen of the Committees on the Judiciary and
Government Reform and Oversight, the subcommittee chairmen began to
organize comprehensive joint hearings on the Waco matter. As the July
timetable was set for the hearings, both chairmen hoped a comprehensive
investigation, primarily involving testimony from a wide variety of
witnesses presented in public hearings, would lay to rest questions
which persisted, assess responsibility for any misconduct, and
ultimately restore full confidence in Federal law enforcement.
b. opposition to the inquiry
Opposition to the Waco hearings was to be expected. The Departments
of Justice and Treasury believed that their respective reports were
forthright and complete and that additional scrutiny would only result
in more negative publicity. Clinton administration officials were
concerned that the hearings would cause further political damage.
What was not expected was the extent to which the administration
tried to control potential damage from the hearings. The White House
staff assembled a damage control team and retained the services of John
Podesta, a public relations specialist and former White House official
who had worked for Handgun Control, Inc.\2\ Treasury Secretary Rubin
contacted at least one member of the joint subcommittees, Representative
Bill Brewster of Oklahoma, and requested that he not ask any questions
that might embarrass the administration.\3\ Also, the Treasury
Department flew to Washington two Texas Rangers who were scheduled to
testify before the subcommittees in order to help them prepare their
testimony. The Justice Department, in concert with the subcommittees'
Democrats, brought firearms recovered from the charred Davidian compound
to Washington to be used as props.
---------------------------------------------------------------------------
\2\ Ann Devroy, Clinton Team Focuses Damage Control on Waco, Wash.
Post, July 19, 1995, at A12.
\3\ Sue Ann Pressley, Witnesses Say Waco Warnings Went Unheeded,
Wash. Post, July 22, 1995, at A11.
---------------------------------------------------------------------------
Perhaps the most disturbing counter-measure was the charge, made by
the President himself, that the hearings were an attack on law
enforcement. Quite the opposite was the case. All involved in the
planning and carrying out of the hearings and the investigation were
strong supporters of Federal law enforcement. All believed that through
airing and analysis of the Waco events by congressional oversight
committees were necessary to the long term credibility and viability of
the Federal law enforcement agencies. The assertion that the hearings
were anti-law enforcement was contrary to the unambiguous views of
Federal law enforcement leaders. Finally, and perhaps the strongest
response to the subcommittees' critics, is that the Waco hearings did in
fact serve to strengthen public confidence in Federal law enforcement.
The public was clearly reminded that we live in a Nation of laws and no
power sits above those laws. Americans are far more likely to support
law enforcement authorities when they know that such authorities will be
held accountable for their actions.
A final issue that arose at the start of the hearings was the extent
to which the subcommittees would consider the character of David Koresh.
In the minds of some, evidence of Koresh's despicable behavior would
provide sufficient justification for not scrutinizing the conduct of
Federal law enforcement officials. The subcommittees were prepared to
stipulate then and now that Koresh was, on one level, responsible for
the death and destruction that occurred at Waco. His actions inside the
Davidian's religious community were of the vilest sort. Nevertheless,
Koresh was not accountable to the people's elected Representatives in
Congress as are Federal law enforcement authorities. Hence the
subcommittees' inquiry concerned executive branch conduct, and not that
of David Koresh.
c. the nature of the inquiry
Given the extensive and expanding public concern about the Federal
Government's actions against the Branch Davidians, and the effect such
concerns were having on the credibility of Federal law enforcement, the
subcommittees determined, in early 1995, that it would be advisable to
hold hearings as soon as practicable. As a result, rather than using the
hearings as a forum for presenting the results of a lengthy and
completed investigation, it was decided that the hearings would consist
of an exhaustive public airing of the issues associated with Waco. These
``discovery hearings,'' rather than ``presentation hearings,'' would
afford members of the joint subcommittees, interested attendees, the
media, and C-SPAN audiences an opportunity to hear from the people who
were directly involved in the Waco matter.
The structure of the inquiry consisted of requests for and review of
documents before and during the hearings; a pre-hearing investigation
phase, including numerous interviews with many of the persons involved;
the hearings themselves; and a post-hearing investigation.
1. Document requests and review
On June 8, 1995, subcommittee Chairmen McCollum and Zeliff delivered
document production requests to the Federal agencies involved at Waco.
The agencies contacted were the Departments of Defense, Justice, and the
Treasury. The White House also received a document request. The
subcommittees took the position that virtually every Federal agency
document associated with the Waco incident required some level of
review. To review the matter any less thoroughly would leave lingering
doubt as to whether a complete and comprehensive job had been done.
Despite public commitments and private assurances of cooperation by
the relevant departments, the subcommittees experienced a lack of
cooperation which clearly frustrated hearing preparations. Throughout
the month of June and early July, representatives of the White House,
and Departments of Treasury and Justice attempted to narrow the scope of
the subcommittees' requests and restrict access to a wide array of
information. The first significant documents were delivered only 3 weeks
prior to the hearings, some just days before, and tens of thousands of
others were received after the hearings had already begun. This ``wait-
and-dump'' strategy rendered meaningful staff review of many key
documents virtually impossible prior to commencement of the hearings.
Moreover, the task of reviewing these documents was made more
difficult by the manner in which they were presented. The Treasury
Department's documents were in no apparent order, making the retrieval
of a particular document nearly impossible. In what became symbolic of
the administration's uncooperative attitude experienced by the
subcommittees, it was discovered that the minority, but not the
majority, had been provided an index for locating Treasury documents.
It should be noted that cooperation, particularly from the
Department of Justice, improved considerably shortly before the hearings
began and continued throughout the course of the public inquiry.
2. Investigation and interviews
The subcommittees engaged in investigative interviews, an
examination of physical evidence, and an on-site inspection of the
former Branch Davidian residence as a part of the preliminary inquiries.
Both majority and minority staff traveled to Austin and Waco, TX for a
fact-finding trip. Interviews were conducted with several Branch
Davidians both at the former residence and at the home of Sheila Martin,
widow of Wayne Martin, who died in the April 19 fire. Former Davidian
Clive Doyle provided a tour of the ruins of the Davidian residence.
Staff also met with members of the local county sheriff's office and
with FBI personnel who, among other things, also took them on a visit to
the Davidian residence site.
The staff also had an opportunity to inspect the physical evidence
taken from the ruins of the residence after the fire, much of which had
been used in the criminal trial of surviving Davidians. By prior
agreement with the Justice Department, a potential witness at the
hearings, Failure Analysis Associates Inc., was to inspect some of the
physical evidence in order to respond to tampering allegations. It was
believed that the views of scientists from Failure Analysis, who had
often performed scientific evaluations for the Federal Government,
including the Justice Department and NASA after the Challenger
explosion, would be beneficial given public suspicions about the
firearms recovered from the site of the Davidian residence. The
inspection would not have damaged the weapons and was to have been
conducted in the presence of all parties. It was hoped that the
inspection would determine whether the Davidians had attempted to alter
legal, semi-automatic weapons by converting them into illegal, automatic
weapons as the ATF had alleged, and whether any of this evidence had
been altered after it was gathered from the destroyed Davidian
residence. When the scientists arrived in Austin, the Department
declined to make the firearms available to them. The Department agreed
instead to conduct the tests itself and present its findings to the
subcommittees. A short time later, the Department urged, for cost
considerations, that the tests not be performed. As a result, no tests
were performed on the firearms.
Pre-hearing interviews were held with senior officers of the Texas
Rangers, authors of books about the Waco disaster, personnel in the
McLennan County Sheriff's office, and officials from the Departments of
the Treasury, Justice, and Defense, ATF, Drug Enforcement
Administration, and the FBI. Also, thousands of pages of materials
submitted by outside groups and individuals interested in Waco were
reviewed. Regrettably, the Treasury Department balked at making ATF
agents available for interviews. The Department steadfastly refused to
allow the subcommittee staff to meet with ATF agents who participated in
the raid. Only the threat of subpoenas secured the appearance of ATF
agents at the hearings. The inability to interview these individuals
before public hearings was a significant investigative roadblock.
Finally, the subcommittees' staff traveled to Fort Bragg, NC to
interview the Army personnel involved with the training of ATF agents in
preparation for the raid. Several of the military personnel involved
with the training were not available prior to the hearings due to duty
assignments, however, other military personnel whom the staff sought to
interview, and who were stationed at Fort Bragg, were not made available
to the subcommittees' staff for interviews. Disturbingly, all of the
military personnel interviewed by the subcommittees' staff were
counseled about the interviews prior to them by senior commanders,
despite requests to the contrary.
3. Hearings
The plan for the Waco hearings was to receive testimony under oath
from as many persons material to the matter as possible. Thus, nearly
100 witnesses appeared before the joint subcommittees over a period of
10 days. The hearings included individuals from ATF and the Treasury
Department who played critical roles in the investigation of David
Koresh, and the planning, approval and execution of the February 28
raid. They also included the key participants from the FBI and the
Justice Department with regard to the 51 day standoff and the planning,
approval, and execution on April 19 of the plan to end the standoff.
More than a dozen experts on issues associated with Waco, such as fire,
riot control agents, and tactical operations testified. The attorneys
who represented Koresh, Davidian Steve Schneider, and several Davidian
survivors of Waco also were among the witnesses.
The minority was afforded an opportunity to add witnesses to the
panels. Every effort was made to accommodate the requests received; more
than 90 percent of the names submitted by the minority were added to the
witness lists. The administration also requested witnesses to be
included. On a few occasions, these requests conflicted with the
minority's requests. Again, these desires were accommodated to the
greatest extent practicable.
The transcripts of these hearings will serve as a valuable tool for
years to come. Many of the most significant documents were incorporated
into the record. Many others are gathered in the appendix to this
report. Additionally, the appendix contains a complete listing of
hearing witnesses.
4. Post-hearing investigation
Additional document requests were made after the hearings to the
Departments of the Treasury, Justice, and Defense. Unfortunately, the
lack of cooperation from the Treasury and Defense Departments which
existed prior to the hearings continued, delaying release of the
subcommittees' report.
Other investigative activities which occurred after the hearings
included inspection of photographs at the FBI laboratories and
interviews with munitions experts, experts on riot control agents, and
National Guard officials. Numerous written questions were posed to the
Justice, Treasury, and Defense Departments. For the most part, they were
answered. Legal experts on the Posse Comitatus Act were consulted.
Subcommittee staff also met with the FBI agent who drove one of the
armored vehicles involved in the destruction of the backside of the
Davidian residence and other FBI officials involved at Waco. Finally,
several investigative reporters shared information they have gathered
regarding the Waco matter.
d. the structure and scope of the report
The report does not attempt to restate a chronological summary of
what happened at Waco. The administration's reports, supplemented by
several commercial publications, tell the story fairly well. Instead, to
avoid duplication the report consists of review, analysis, and, where
appropriate, recommendations concerning the major issues raised. It is
structured in the same chronological pattern as the hearings.
e. additional comments
If Federal law enforcement actions since the Waco hearings are a
fair indication, then the inquiry has already had a considerably
positive effect. The apparently increasing presence of separatist
religious or anti-government groups had created a significant new
challenge for Federal law enforcement agencies. Finding the proper
balance between the need to enforce Federal law with the responsibility
to avoid violent confrontations will continue to be difficult. It is
complicated by the fact that innocent people, especially children, are
so often in harm's way. Yet, over the past several months, Federal law
enforcement, and the FBI in particular, has demonstrated an increased
level of tactical patience. This change in policy, combined with other
important reforms instituted by Director Louis Freeh at the FBI and
Director John Magaw at ATF, is to be commended.
II. The ATF Investigation
In May 1992, the Austin, TX Office of the Bureau of Alcohol, Tobacco
and Firearms was called by Chief Deputy Daniel Weyenberg of the McLennan
County Sheriff's Department. Weyenberg notified the ATF that his office
had been contacted by the local United Parcel Service regarding a
package it was to deliver to the Branch Davidian residence. The package
had broken open and contained firearms, inert grenade casings, and black
powder.\4\
---------------------------------------------------------------------------
\4\ U.S. Dept. of the Treasury, Report of the Department of the
Treasury on the Bureau of Alcohol, Tobacco, and Firearms Investigation
of Vernon Wayne Howell also known as David Koresh 17 (1993) [hereinafter
Treasury Department Report].
---------------------------------------------------------------------------
On June 9, 1992, Special Agent Davey Aguilera of the Austin ATF
office opened a formal investigation. Within a week, Philip Chojnacki,
the Special Agent in Charge of the Houston ATF Office classified the
case ``sensitive,'' thereby calling for a high degree of oversight from
both Houston and Headquarters in Washington, DC.\5\ Notwithstanding the
priority given to the case, numerous and serious missteps occurred
throughout the investigation that followed. The most troubling aspects
of the case were the ATF's overall lack of thoroughness in its
investigation, the ineffectiveness of the undercover operation, and an
affidavit in support of the search and arrest warrants that was replete
with deficiencies.
---------------------------------------------------------------------------
\5\ Treasury Department Report at 24.
---------------------------------------------------------------------------
a. the mcmahon compliance visit
On July 30, Aguilera joined ATF compliance officer Jimmy Ray Skinner
to conduct a compliance inspection of the premises of Henry McMahon,
proprietor of Hewitt Hand Guns. The inspection revealed that certain AR-
15 lower receivers supposedly in McMahon's inventory were neither on the
premises nor listed in his records as sold.\6\ McMahon indicated that
they were in the possession of David Koresh. McMahon then called Koresh,
who offered to allow the agents to inspect for possible firearms
violations. The agents declined the invitation.\7\ Shortly thereafter,
McMahon told Koresh that he was suspicious that an investigation of
Koresh and his followers was underway.\8\
---------------------------------------------------------------------------
\6\ Id. at 26.
\7\ Investigation Into the Activities of Federal Law Enforcement
Agencies Toward the Branch Davidians (Part 1): Hearings Before the
Subcommittee on Crime of the House Committee on the Judiciary and the
Subcommittee on National Security, International Affairs, and Criminal
Justice of the House Committee on Government Reform and Oversight, 104th
Cong., 1st Sess. 163 (1995) [hereinafter Hearings Part 1].
\8\ Id.
---------------------------------------------------------------------------
It is unclear why the ATF did not accept the offer to do a
compliance inspection of Koresh's firearms. Importantly, the Treasury
Report fails to mention that Aguilera had an opportunity at the time of
the compliance inspection to inspect Koresh's firearms. Wade Ishimoto, a
reviewer of the Treasury Department Report, indicated to the
subcommittees that he had not been made aware of the McMahon compliance
visit by the Department of Treasury during his review.\9\ Mr. Ishimoto
maintained that Koresh's offer should have been accepted, presenting an
invaluable opportunity to gather critical intelligence.\10\ The agents'
decline of the Koresh offer was a serious mistake.
---------------------------------------------------------------------------
\9\ Hearings Part 1 at 332.
\10\ Id.
---------------------------------------------------------------------------
b. the investigation continued
Tracing UPS invoices, Aguilera learned that more than $43,000 worth
of firearms (including AR-15 semiautomatics), firearms parts (including
AR-15 lower receivers), grenade hulls, and black powder had been shipped
to the Davidians' storage facility.\11\ One of Koresh's neighbors, who
had served in an Army artillery unit, told Aguilera that he had
frequently heard the sound of automatic weapons fire--including .50-
caliber fire--coming from the Davidian residence.\12\ Aguilera also
learned that in November, a deputy sheriff had heard a loud explosion at
the Davidian residence which produced a cloud of grey smoke.\13\ Through
interviews with former cult members, Aguilera learned of numerous
allegations that Koresh had had sexual relations with girls younger than
16 years of age.\14\ These allegations would later feature prominently
in Aguilera's affidavit in support of the search and arrest warrants.
---------------------------------------------------------------------------
\11\ Treasury Department Report at 21, B-182.
\12\ Id. at 26.
\13\ Id. at 27.
\14\ Id. at 27-29.
---------------------------------------------------------------------------
In December 1992, after reviewing all of the available evidence
associated with the Koresh investigation in ATF headquarters in
Washington, ATF decided they did not yet have probable cause to support
a warrant. Director Higgins stated: ``[W]e went out and got more
information and came back in February . . . . We didn't have it
[probable cause] until mid-February.'' \15\ As part of its effort to
develop probable cause and to gather additional intelligence, on January
10, 1993 the ATF set up surveillance cameras in an undercover house
across from the Davidian residence. The surveillance produced no
additional evidence of criminal activity. Former Davidians were
interviewed in December 1992 and January 1993. Among those interviewed
were three members of the Bunds family, all of whom had left the
compound before 1992. The events that were described by the Bunds
occurred prior to 1992,\16\ and the information they provided was so
stale as to be of little or no value.
---------------------------------------------------------------------------
\15\ Events Surrounding the Branch Davidians Cult Standoff in Waco,
Texas: Hearings Before the House Committee on the Judiciary, 103d Cong.,
1st sess. (1993).
\16\ Treasury Department Report at 27-28.
---------------------------------------------------------------------------
Importantly, the only activity mentioned in the affidavit involving
the Branch Davidians that occurred between December 1992 and February
1993 was Agent Rodriguez's undercover visits to the Davidian residence.
The visits consisted of Koresh speaking to Rodriguez about Second
Amendment rights, Koresh showing a tape of alleged ATF abuses, and the
two men shooting legal firearms at the compound's range. It appears that
Rodriguez discovered no evidence during his visits that would have
contributed to a finding of probable cause, or that would have provided
valuable information to guide subsequent ATF action. Nevertheless, in a
case of such potential danger that it was designated ``sensitive'' and
``significant,'' the ATF proceeded with its February raid.
Throughout the ATF's investigation decisions were made and actions
were taken which demonstrated a reckless disregard for the value of
well-developed intelligence. Furthermore, the haphazard manner in which
the investigation was pursued repeatedly exposed the lack of adequate
command, control and communications processes to support such an
operation.
c. undercover operation
On January 11, 1993, eight ATF agents moved into a small house
directly across from the front drive of the Davidian residence, posing
as college students attending the nearby Texas State Technical College.
Through a series of mistakes, the ATF appeared to lose the security of
its undercover operation. At least some of the breaches of security were
so serious, and obvious, that they should have been recognized as such
by ATF, and become the basis for modifying the nature and timing of any
subsequent action against Koresh.
There is substantial evidence to suggest that Koresh and the
Davidians knew that the undercover house established by the ATF across
the street from the compound was occupied by law enforcement officials.
Koresh told his next door neighbor that he believed that the self-
identified ``college students'' were too old to be actual college
students, with cars too new and expensive to be owned by college
students. He commented that they were probably Federal agents.\17\ The
agents were also informed by one of Koresh's neighbors shortly after
they began surveillance that Koresh suspected they were not what they
claimed to be.\18\ On one occasion, the Davidians visited their new
neighbors in the undercover house to deliver a six pack of beer, but the
occupants of the house would not let them in.\19\ Finally, Koresh
complained to the local sheriff that the UPS delivery man was an
undercover police officer.\20\ Koresh commented that he did not
appreciate being investigated. At the hearing, Agent Rodriguez testified
that ``all of [the undercover ATF agents], or myself knew we were going
to have problems. It was just too--too obvious.'' \21\
---------------------------------------------------------------------------
\17\ Id. at 187.
\18\ Id.
\19\ Dick J. Reavis, The Ashes of Waco 67 (1995).
\20\ Id. at 69.
\21\ Hearings Part 1 at 796.
---------------------------------------------------------------------------
The undercover operation was also undermined by its limited nature:
The 24-hour-a-day surveillance was only sustained from January 11
through January 19, at which time Agent Chuck Sarabyn, the ATF tactical
commander, ended the constant surveillance and redirected the mission
toward infiltration of the compound.\22\ It was later determined at
trial that during the period of constant surveillance the agents within
the house did not know what Koresh looked like. Rodriguez testified at
trial that the only picture identification that the agents possessed was
``a driver's license picture of him, which was not that good. That was
one reason we [later] needed to make contact with the people inside the
compound, so we could identify him. I myself did not know what he looked
like [at the time of surveillance].'' \23\ Significantly, the
surveillance log cites two occasions when a white male jogged up and
down the road on which the undercover house was located.\24\ If this
jogger had been Koresh, according to Rodriguez's trial testimony, the
agents would not have known it. The lack of an effective surveillance
operation was further demonstrated through the ATF's failure to develop
nearly 900 photographs taken from the undercover house or to review
videotapes of the movements of the Davidians.\25\ This evidence
represented an opportunity to develop critical intelligence regarding
the habits and movements of compound residents, including Koresh.
---------------------------------------------------------------------------
\22\ Treasury Department Report at 52.
\23\ United States v. Branch, et al., Case No. W-93-CR-046 (2) (3)
(4) (5) (6) (7) (8) (9) (10) (11) & (12) (W.D. Tex. 1994).
\24\ ATF Surveillance Log.
\25\ Hearings Part 1 at 807.
---------------------------------------------------------------------------
The lack of such basic and critical intelligence clearly undermined
the ability of the undercover operation to fulfill its mission. The
operation's failure to develop useful intelligence after 8 days of
continuous surveillance should not have led to the termination of the
surveillance, but rather to its modification and prolongation. Given the
potential for danger to agents and those within the compound and the
dearth of intelligence, the decision to end around-the-clock
surveillance was seriously flawed. Significantly, all of the ATF
supervisory agents involved in the planning of the operation believed
the continuous surveillance continued beyond the date it was actually
ended. This mistaken belief both confirms that the termination of the
surveillance was ill-advised, and highlights the wholly inadequate
command, control and communications processes utilized by ATF throughout
the operation. The eyes and ears were poorly utilized, and what
intelligence they did supply was poorly used.
d. failure to comply with ``sensitive-significant'' procedures
As noted in the Treasury Report, the Koresh investigation was
classified as ``sensitive'' and ``significant'' within a week of its
formal initiation on June 9, 1992. Such a classification is intended to
ensure a higher degree of involvement and oversight from both the ATF
Special Agent in charge and ATF headquarters. Yet, in spite of this
designation, the agents in charge of the investigation received minimal
oversight in developing the investigation and raid, with important
elements of the plan, such as whether or not to abort the raid if the
element of surprise was lost, apparently not being understood by the
agents in charge. In view of this designation, the lack of knowledge on
the part of the Special Agent in Charge, and Headquarters, throughout
the investigation--including the undercover operation--is striking. The
``sensitive/significant'' designation makes ATF's failure to have
implemented a process for continually reviewing intelligence and
modifying plans accordingly a glaring omission.
e. the affidavit in support of the warrants
The subcommittees examined the constitutionality of the search and
arrest warrants, carefully reviewing the information contained in the
supporting affidavit.
The fourth amendment to the Constitution provides: ``No warrants
shall issue, but upon probable cause, supported by oath or affirmation,
and particularly describing the place to be searched, and the persons or
things to be seized.'' \26\ The Supreme Court has ruled that, in order
for this protection to be enforced, a warrant may issue only upon the
determination of a neutral and detached magistrate that probable cause
exists to believe that the search will yield evidence of
criminality.\27\ The standard articulated in Illinois v. Gates, which
guides a magistrate's probable cause determinations, is whether ``there
is a fair probability that contraband or evidence of a crime will be
found in a particular place.'' \28\ Such a determination is, in the
Supreme Court's words, a ``practical, common-sense decision whether,
given all the circumstances set forth in the affidavit before the
magistrate . . . there is a fair probability that the contraband or
evidence of a crime will be found in a particular place.'' \29\
---------------------------------------------------------------------------
\26\ U.S. Const. amend IV.
\27\ United States v. Leon, 468 U.S. 897 (1984).
\28\ Illinois v. Gates, 462 U.S. 213, 238 (1983).
\29\ Id.
---------------------------------------------------------------------------
When applying this common sense standard to the circumstances of the
ATF investigation, the affidavit appears to have contained sufficient
evidence of violations of Federal firearms law to support the
magistrate's decision to issue the warrants.\30\ There were substantial
purchases of AR-15 semiautomatics and AR-15 lower receivers, grenade
hulls, and black powder. A neighbor, who had served in an Army artillery
unit, testified that he had frequently heard the sound of automatic
weapons fire. A deputy sheriff testified that he had heard a loud
explosion at the Davidian residence which produced a cloud of grey
smoke. Taken together, this information provided a sufficient basis for
finding probable cause to issue the warrants.
---------------------------------------------------------------------------
\30\ All of the constitutional scholars contacted by the
subcommittees agreed with the conclusion that there was probable cause
in support of the warrants. See Hearings Part 1 at 818 (Letter from
Albert W. Altschuler, Wilson-Dickinson Professor of Law, University of
Chicago to Rep. John Conyers, Jr. (July 13, 1995)).
---------------------------------------------------------------------------
While the warrants may have met the minimal standard of
constitutional sufficiency, the affidavit supporting the warrants
contained numerous misstatements of the facts, misstatements of the law,
and misapplication of the law to the facts, and serves as a de facto
record of a poorly developed and mismanaged investigation. The affidavit
included misleading and factually inaccurate statements, contained
substantial irrelevant and confusing information, and failed to properly
qualify witnesses' testimony when obviously called for based on their
backgrounds. Consequently, the affidavit gave the appearance that the
ATF was not going to let questionable facts or evidence stand in the way
of moving forward on their timetable.
The affidavit provided and sworn to by Aguilera contained numerous
errors and misrepresentations, which, taken together, create a seriously
flawed affidavit. The affidavit misstated that Koresh possessed a
British Boys anti-tank .52 caliber rifle, when in fact Koresh owned a
Barret light .50 firearm.\31\ Possession of the British Boys would have
been a felony \32\ while possession of the Barret was completely legal.
The affidavit misstated that the M16 parts kits from Nesard company were
two CAR and two EZ kits which contained all the parts of an M16 machine
gun except for the lower receiver unit, when, in fact, the Nesard parts
kits do not contain the auto sear and pin which are absolutely necessary
to convert semi automatic weapons to machine guns.\33\ The affidavit
failed to mention that grenade hulls like those cited in the affidavit
to help establish probable cause had been sold by the Davidians in the
past at gun shows as paper weights and mounted on plaques. Finally, the
affidavit was misleading by reporting that Deputy Sheriff Terry Fuller
was in the vicinity of the compound when he heard a loud explosion, but
then failed to report that Fuller investigated and learned that the
Davidians were using dynamite for construction.
---------------------------------------------------------------------------
\31\ Affidavit of Davey Aguilera in support of arrest warrant, at 14
[hereinafter Aguilera Affidavit]. [See documents produced to the
subcommittees by the Department of the Treasury T004700-T004714 at
Appendix [hereinafter Treasury Documents]. The Appendix is published
separately.]
\32\ 26 U.S.C., Ch. 53.
\33\ Aguilera Affidavit at 5.
---------------------------------------------------------------------------
Former Davidian Marc Breault provided much of the information
contained in the ATF's affidavit. Yet, nowhere in the affidavit is it
mentioned that Breault left the compound as an opponent of Koresh, a
fact certain to call into question Breault's motives. Nor does the
affidavit mention that he is blind. On the contrary, the affidavit
implies that he was a compound bodyguard. It states that Breault
``participated in physical training and firearm shooting exercises
conducted by Howell. He stood guard armed with a loaded weapon.'' \34\
---------------------------------------------------------------------------
\34\ Aguilera Affidavit at 12.
---------------------------------------------------------------------------
The affidavit also contained misapplications of firearms law. The
affidavit alleged the violation of one statute: 26 U.S.C. Sec. 5845(f).
This statute, however, merely defines ``destructive device.'' It does
not establish any crime. It is 26 U.S.C. Sec. 5861 which establishes
crimes related to destructive devices. The affidavit also confused the
term ``explosive'' with the term ``explosive device,'' a term which does
not appear in Federal law.
In the affidavit, Aguilera misstated that a ``machinegun conversion
kit'' was a combination of parts ``either designed or intended'' to
convert a semiautomatic into an automatic firearm. In fact, Federal law
defines a conversion kit to be a combination of parts ``designed and
intended'' to convert a semiautomatic into an automatic.\35\
---------------------------------------------------------------------------
\35\ See 26 U.S.C. Sec. 5845.
---------------------------------------------------------------------------
In the affidavit, Aguilera also misstated that Koresh had ordered M-
16 ``EZ kits.'' The kits to which Aguilera was referring are called
``E2'' kits. Furthermore, the E2 kit is a spare parts kit, not a
conversion kit. It contains spare parts which fit either a semiautomatic
Colt AR-15 Sporter or an automatic Colt M-16 automatic. Because it is
not a conversion kit, the E2 kit is not regulated by Federal law. Yet
the affidavit implies that the kit's purpose is for converting
semiautomatics into automatics. On this point, the Treasury Department
Report is mistaken as well. While it correctly named the E2 kit, it
wrongly asserted that ``the parts in the kit can be used with an AR-15
rifle or lower receiver to assemble a machinegun . . . The parts in the
E2 kit also can be used to convert an AR-15 into a machinegun.'' \36\
These assertions are false. The Treasury Department regulates genuine
conversion kits as if they were themselves machineguns. It does not
regulate E2 kits.
---------------------------------------------------------------------------
\36\ Treasury Department Report at 23-24.
---------------------------------------------------------------------------
Intimating that Koresh was converting AR-15 Sporters and
semiautomatic copies of AK-47's into automatics, Aguilera included
evidence of purchases made by Koresh from a South Carolina Company which
was known to sell parts needed to convert semiautomatics of the type
that Koresh possessed into automatics. Aguilera failed even to allege
that Koresh purchased parts from this company which would have allowed
the conversion of semiautomatics into automatics. Nowhere in the
affidavit is there evidence that Davidians were manufacturing their own
automatic sears, or modifying the lower receivers of semiautomatics,
both of which would have been violations of firearms laws.
The affidavit was misleading in that it falsely referred to
``clandestine'' publications. The affidavit reported that in June 1992,
a witness had ``observed at the compound published magazines such as,
the Shotgun News and other related clandestine magazines.'' \37\ Far
from clandestine, Shotgun News has a circulation of about 165,000.
Subscriptions are available by mail or telephone. The Austin, TX ATF
office--Aguilera's home office--was a subscriber.
---------------------------------------------------------------------------
\37\ Aguilera Affidavit at 14.
---------------------------------------------------------------------------
f. findings concerning the atf investigation
1. The ATF's investigation of the Branch Davidians was grossly
incompetent. It lacked the minimum professionalism expected of a Federal
law enforcement agency. Among the failures of the investigation were:
The failure to accept Koresh's offer to inspect the
firearms held at the Branch Davidian residence. It is unclear
why the ATF did not accept the offer to conduct a compliance
inspection of Koresh's firearms. What is clear is that the
agents' refusal of Koresh's invitation was the first of a series
of instances in which the ATF rejected opportunities to proceed
in a non-confrontational manner. The agents' decision to decline
Koresh's offer was a serious mistake.
The failure to recognize obvious breaches of
surveillance security. Some of these breaches were so serious
and obvious that they should have been recognized by the ATF
agents and commanders involved, and should have become the basis
for modifying the nature of the surveillance.
The failure to analyze intelligence gathered during the
undercover operation, including more than 900 photographs of
activities around the Branch Davidian residence. These
photographs could have led to the development of critical
intelligence regarding the habits and movements of the
Davidians, and Koresh in particular.
The premature termination of the undercover operation.
The operation's failure to develop useful intelligence after 8
days of continuous surveillance should not have led to the
termination of the surveillance, but rather to its prolongation.
Given the potential for danger to agents and those within the
residence, and the dearth of intelligence, the decision to end
around-the-clock surveillance was seriously flawed.
2. While the ATF had probable cause to obtain the arrest warrant for
David Koresh and the search warrant for the Branch Davidian residence,
the affidavit filed in support of the warrants contained numerous false
statements. The ATF agents responsible for preparing the affidavits knew
or should have known that many of the statements were false.
3. David Koresh could have been arrested outside the Davidian
compound. The ATF deliberately chose not to arrest Koresh outside the
Davidian residence and instead determined to use a dynamic entry
approach. In making this decision ATF agents exercised extremely poor
judgment, made erroneous assumptions, and ignored the perils of this
course of action which they should have foreseen.
g. recommendations
1. Whenever it is feasible to achieve its objectives, the ATF should
use less confrontational tactics. The ATF had an opportunity to search
the Davidian residence at the invitation of Koresh. Koresh was off the
property and subject to the capture of law enforcement on numerous
occasions before the raid. The ATF should have taken advantage of these
less confrontational opportunities. The ATF should pursue such
alternatives in the future.
2. Federal law enforcement agencies should verify the credibility
and the timeliness of the information on which they rely in obtaining
warrants to arrest or search the property of an American citizen. The
affidavits on which the arrest and search warrants of Koresh were
ordered contained information provided to the ATF by informants with
obvious bias toward Koresh and the Davidians. In addition, much of the
information was stale, based on experiences years before the
investigation. The ATF should obtain fresh and unbiased information when
relying on that information to arrest or search the premises of the
subjects of investigations.
3. The ATF should make every effort to obtain continuous and
substantial intelligence and should ensure that the efforts to obtain
such intelligence are not hindered by breaches of security. The ATF had
a broken and insecure intelligence operation. Gaps in the surveillance
and breaches of the security of undercover operations jeopardized the
investigation and the raid. The ATF should take precautions to ensure
that these breaches do not occur in the future.
4. If the false statement in the affidavits filed in support of the
search and arrest warrants were made with knowledge of their falsity,
criminal charges should be brought against the persons making the
statements.
III. Planning and Approval of the Raid
The ATF had a variety of options in the manner in which it could
have served the arrest and search warrants on Koresh. These options
included luring Koresh off the Davidian residence, arresting Koresh
while he was off the Davidian property, surrounding the Davidian
residence and waiting for Koresh to surrender himself and consent to the
search, and executing a ``dynamic entry'' style raid into the residence.
The ATF chose the dynamic entry raid, the most hazardous of the options,
despite its recognition that a violent confrontation was predictable.
The decisions regarding the raid were made without the participation of
either Secretary of the Treasury Lloyd Bentsen or the Deputy Secretary
of the Treasury Roger Altman.
a. was ``show time'' even necessary?
The subcommittees received evidence of numerous opportunities to
arrest Koresh away from the residence, thereby reducing the likelihood
of violence. The failure to make use of these opportunities raises the
question of the dynamic entry's necessity. ATF officials offered at
least three different reasons for this critical decision.
ATF Special Agent Phillip Chojnacki, the overall commander of the
raid, testified that Koresh could not be arrested outside the residence
because the intelligence from the undercover house was that he rarely
left the residence.\38\ ATF did not want the tactical problem of having
agents on standby indefinitely while they waited for the rare occurrence
of Koresh going into town.
---------------------------------------------------------------------------
\38\ Hearings Part 1 at 416.
---------------------------------------------------------------------------
Yet the testimony before the subcommittees revealed that Koresh left
the Davidian residence at least once a week during January and
February.\39\ David Thibodeau, who lived at the Branch Davidian
residence but did not consider himself to be a member of the Branch
Davidian religious community, testified that Koresh was a regular
jogger.\40\ It was also revealed during the trial that Koresh had left
the residence on January 29, 1993, to conduct business at a machine
shop.\41\ Finally, the manager at the Chelsea Bar and Grill in Waco
stated that they served Koresh about once a week through February.\42\
---------------------------------------------------------------------------
\39\ Id. at 123.
\40\ Id.
\41\ Id. at 124.
\42\ Id.
---------------------------------------------------------------------------
ATF agents next explained that it did not make practical sense to
arrest Koresh outside because he would immediately be released and would
be back at the residence. The window was simply too narrow.\43\ This
answer also lacked credibility since Federal law provides that the
arrestee can be held for 3 days upon motion of the government.\44\
---------------------------------------------------------------------------
\43\ Id. at 309-312.
\44\ 18 U.S.C. Sec. 3142(f).
---------------------------------------------------------------------------
Finally, ATF officials testified at the hearings that they abandoned
the idea of trying to arrest Koresh outside the residence because their
primary goal was to get inside to conduct a search. These officials
maintained that it was preferable to attack the residence by surprise
and get Koresh and the guns at the same time.\45\ However, the ATF had
developed its own scheme to lure Koresh off the complex. The ruse was
proposed to Joyce Sparks, the social worker who had conducted an earlier
child protection investigation at the Branch Davidian residence. Sparks
was to contact Koresh, who she had come to know relatively well, and
make an appointment with him to be held in her office. While Sparks
agreed to cooperate with the ATF, Sparks' supervisor refused to approve
the ruse tactic.\46\
---------------------------------------------------------------------------
\45\ Hearings Part 1 at 221-222.
\46\ Id. at 595.
---------------------------------------------------------------------------
b. was the violent outburst predictable?
The record of the subcommittees' investigation shows that persons
who through contact and experience became familiar with the belief
system and the authoritarian structure of the Branch Davidians could
have predicted a violent resistance by the Davidians to a mass law
enforcement action. The Branch Davidians predicted a violent apocalypse,
a vision that followers believed be necessary to go to heaven.\47\
---------------------------------------------------------------------------
\47\ James D. Tabor & Eugene V. Gallagher, Why Waco? 7-10 (1995).
---------------------------------------------------------------------------
The ATF investigative agents interviewed Sparks, who had kept lines
of communication open between Koresh and herself even after the end of
her Child Protective Services investigation. During their conversations,
Koresh would often provide lengthy presentations of his religious
beliefs. Sparks developed an understanding of how Koresh thought and how
he was viewed within the Branch Davidian group at the residence. When
ATF sought her opinion about the raid, she stated that the Branch
Davidians believed that Koresh was the Lamb of God and that they would
protect him to the death. ``They will get their guns and kill you,''
Sparks recalls saying.\48\
---------------------------------------------------------------------------
\48\ Hearings Part 1.
---------------------------------------------------------------------------
The ATF also received information from Marc Breault, a former Branch
Davidian and resident at Mount Carmel, the Davidians' home.\49\ Contact
between ATF and Breault was made during December 1992. During that time
and up to the time of the raid, the former Branch Davidian provided
information about the Davidians and Koresh in particular, including his
past correspondence. In a paper prepared by Breault and provided to the
ATF, a recent history of the Branch Davidians recounts the group's views
that the world will end in a final violent battle.
---------------------------------------------------------------------------
\49\ U.S. Dept. of the Treasury, Report of the Department of the
Treasury on the Bureau of Alcohol, Tobacco, and Firearms Investigation
of Vernon Wayne Howell also known as David Koresh 29 (1993) [hereinafter
Treasury Department Report].
---------------------------------------------------------------------------
c. the predisposition to dynamic entry
An examination of ATF's timeline in the Waco investigation and raid
planning activities reveals that planning for a military style raid
began more than 2 months before undercover and infiltration efforts even
began.
1. The source of the predisposition
a. The culture within the ATF
Management initiatives, promotional criteria, training, and a broad
range of other cultural factors point to ATF's propensity to engage in
aggressive law enforcement. Senior officials from other law enforcement
agencies have commented on the ATF raid. Several have informed the
subcommittees that their organizations would not have handled the
execution of the Branch Davidian search warrants in the aggressive way
chosen by ATF.\50\ For example, Jeffrey Jamar, the FBI Special Agent-in-
Charge of the Waco standoff, was asked about the FBI's approach to such
a circumstance. He stated that he ``would not have gone near the place
with 100 assault weapons.'' \51\
---------------------------------------------------------------------------
\50\ Investigation Into the Activities of Federal Law Enforcement
Agencies Toward the Branch Davidians (Part 3): Hearings Before the
Subcommittee on Crime of the House Committee on the Judiciary and the
Subcommittee on National Security, International Affairs, and Criminal
Justice of the House Committee on Government Reform and Oversight, 104th
Cong., 1st Sess. 300 (1995) [hereinafter Hearings Part 3].
\51\ Id.
---------------------------------------------------------------------------
b. The Waco Tribune-Herald's ``Sinful Messiah''
One factor affecting ATF's decision to employ a dynamic entry was
the impending release of a newspaper story about Koresh and the
Davidians which revealed the Federal law enforcement investigation then
underway. The Waco Tribune-Herald had planned to release a series of
articles on David Koresh in early 1993.\52\ Fearing publication of the
article, ATF hastened its plans to serve the arrest and search warrant.
It was unclear, however, how Koresh would react to the story. In fact,
ATF Special Agent Robert Rodriguez suggested that the newspaper article
did not upset Koresh.\53\
---------------------------------------------------------------------------
\52\ Treasury Department Report at 67-68.
\53\ Hearings Part 1 at 757, 805.
---------------------------------------------------------------------------
2. Raid approval and lack of Treasury Department oversight of ATF
Testimony received during the hearings established that there was no
process through which Treasury Department officials were able to review
pending ATF matters prior to their reaching a crisis stage. In the
investigation of Koresh, there was no oversight by Treasury over the
ATF's planning and execution of the raid until approximately 48 hours
before the raid occurred.\54\ Testimony revealed that, even though
Bentsen had been Treasury Secretary for approximately 1 month at the
time of the ATF raid, and Altman had been serving as Deputy Secretary
for the same time period, ATF Director Steven Higgins had never met
either of them, let alone briefed them regarding the investigation and
planned raid. This point was established at the hearings during the
questioning of Higgins by Representative Ed Bryant.
---------------------------------------------------------------------------
\54\ Id. at 519-520.
Mr. Bryant: When did you first meet with the Secretary to
discuss anything about your agency, the ATF?
Mr. Higgins: I don't remember any briefings with the
Secretary. I haven't gone back to look at my documents. Probably
in that first month, month and a half, I don't remember any
meetings with him. The only interaction we really had during the
transition would have been with Mr. Simpson.
Mr. Bryant: Are you saying that you never had met with
Secretary Bentsen prior to this point?
Mr. Higgins: I can't remember having gone to a staff meeting
while he was there . . . I don't remember specifically today
having been at one with him.
Mr. Bryant: Had you ever met with his deputy, Mr. Altman,
before this raid?
Mr. Higgins: I don't believe I knew Mr. Altman until then. I
knew who he was, obviously.
Mr. Bryant: Well, I am a little confused here. You are saying
that you were the director of the ATF, which we all know is very
significant, powerful element of the Department of Treasury, and
you had not met with your ultimate boss, the Secretary, for 30
days or so?
Mr. Higgins: I don't believe so, other than maybe to shake
hands, and I don't even remember doing that. It is interesting
that those who think there is some giant conspiracy in the
government don't realize how little we knew each other.\55\
---------------------------------------------------------------------------
\55\ Id. at 566.
Under Congressman Bryant's further questioning, Higgins testified that
there was no procedure in place for the director of the ATF to apprise
---------------------------------------------------------------------------
the Secretary or Deputy Secretary of the ATF's plans.
Mr. Bryant: Was there any process or procedure available to
you as the Director of the ATF to brief either the Deputy or the
Secretary?
Mr. Higgins: I could have called them and said, yes, I would
like to brief you on something. I think they were accessible,
yes.
Mr. Bryant: But there was no routine process? This was no
regularly done at that point?
Mr. Higgins: No routine process, although most secretaries at
some point set up a system where there is a regular, either
every week or every 2 weeks, meeting with bureau heads.\56\
---------------------------------------------------------------------------
\56\ Id. at 566-567.
The testimony before the subcommittees consistently depicted a
Treasury Department that treated ATF as its lowest priority. Department
officials repeatedly demonstrated a lack of interest in even major ATF
actions, such as that of February 28, 1993. The Department maintained a
culture that perceived law enforcement as, at best, a peripheral part of
its mission, according the ATF correspondingly little attention. This
point was brought out during the hearings through questioning by
Representative Bill McCollum, co-chairman of the subcommittees, of
former Treasury Secretary Bentsen about his knowledge of the raid prior
---------------------------------------------------------------------------
to February 28, 1993.
Mr. McCollum: When did you first learn of the raid or any plan
for that raid?
Mr. Bentsen: I was in London at my first meeting with G-7 with
the Ministers of Finance and was very much involved in that one.
I came back, to the best I can recall, some time early Sunday
morning on a night flight from London, and in turn I did not
find out about the raid, to the best of my memory, until early
Sunday evening and that is the first knowledge I had of it at
all.
Mr. McCollum: In other words, there was no discussion with
you, no information passed to you prior to the time of the raid
that it was anticipated or that it might exist or any nature----
Mr. Bentsen: That is correct.
Mr. McCollum: Isn't it a little surprising one of the largest
or one of the largest raids in the BATF's history was taking
place, and the Secretary of the Treasury, the chief of all of
the law enforcement of the ATF was not notified?
Mr. Bentsen: I can well understand when I was abroad attending
an international meeting involving questions of monetary
exchange rates and some very serious subjects at that point,
that others within the Department were handling the situation.
Mr. McCollum: But didn't you keep in contact with your office
during the time you were over there? Weren't there telephone
calls?
Mr. Bentsen: Of course.
Mr. McCollum: Nobody in the law enforcement division thought
you ought to be disturbed about this incident and asked about
it. I understand.\57\
---------------------------------------------------------------------------
\57\ Id. at 515-516.
Bentsen's responses reveal that throughout the planning of the raid,
including the critical days just prior to its initiation, the Treasury
Secretary knew nothing about it. Neither he nor his deputy knew anything
about an imminent law enforcement raid--one of the largest ever
conducted in U.S. history--being managed by his Department, which would
endanger the lives of dozens of law enforcement agents, women, and
children.
Other testimony from the hearings further demonstrated insufficient
oversight by Treasury Department officials of ATF planning. At the
hearings before the subcommittees, Representative McCollum questioned
Christopher Cuyler, who in February 1993 was the ATF's liaison to the
Treasury Department. Cuyler testified that no Treasury officials had
knowledge about the potential for the raid until February 26--2 days
before the raid was initiated.\58\
---------------------------------------------------------------------------
\58\ Id. at 516.
---------------------------------------------------------------------------
The inadequate oversight of the ATF by Treasury Department officials
was further evidenced in the final communications between Treasury and
ATF in the day before the raid. The Department maintains that it
conditioned the raid on ensuring the element of surprise was preserved.
As stated in the Treasury Department Report, Department officials
assured that those directing the raid were under express orders ``to
cancel the operation if they learned that its secrecy had been
compromised. . . .'' \59\ Yet, ATF officials, including Higgins, Cuyler,
and the agents in charge of the raid testified that it was not at all
clear to them that Treasury wanted the raid canceled if the element of
surprise was lost.\60\
---------------------------------------------------------------------------
\59\ Treasury Department Report at 179.
\60\ Hearings Part 1 at 562, 563.
---------------------------------------------------------------------------
d. failure to comply with ``sensitive-significant'' procedures
As noted in the Treasury Department Report, the Koresh investigation
was classified as ``sensitive'' and ``significant'' within a week of its
formal initiation on June 9, 1992.\61\ Such a classification is designed
to ensure a higher degree of involvement and oversight from both the ATF
Special Agent in charge and ATF headquarters, yet this designation was
ignored in practice. In view of this designation, the lack of knowledge
on the part of the Special Agent in Charge and ATF Headquarters
throughout the investigation, including the undercover operation, is
striking. The ``sensitive/ significant'' designation makes ATF's failure
to have implemented a process for continually reviewing intelligence and
modifying plans accordingly a glaring omission.
---------------------------------------------------------------------------
\61\ Treasury Department Report at 24.
---------------------------------------------------------------------------
e. findings concerning the planning and approval of the raid
1. The subcommittees conclude that the ATF was predisposed to using
aggressive, military tactics in an attempt to serve the arrest and
search warrant. The ATF deliberately choose not to arrest Koresh outside
the Davidian residence and instead determined to use a dynamic entry
approach. The bias toward the use of force may in large part be
explained by a culture within ATF.
2. The ATF did not attempt to fully understand the subjects of the
raid. The experience of Joyce Sparks, Marc Breault, and ATF undercover
agent Robert Rodriguez demonstrate that persons who spent a reasonable
amount of time with Koresh, even without professional training specific
to persons such as Koresh, understood with some predictability the range
of behaviors that might result from a military style assault on the
Branch Davidians.
3. Treasury Secretary Lloyd Bentsen and Deputy Secretary Roger
Altman acted highly irresponsibly and were derelict in their duties in
failing to even meet with the Director of the ATF in the month or so
they were in office prior to the February 28 raid on the Davidians
residence, in failing to request any briefing on ATF operations during
this time, and in wholly failing to involve themselves with the
activities of the ATF.
4. Senior Treasury Department officials routinely failed in their
duty to monitor the actions of ATF officials, and as a result were
uninvolved in the planning of the February 28 raid. This failure
eliminated a layer of scrutiny of the plan during which flaws might have
been uncovered and corrected.
IV. Raid Execution
There is no question that the ATF raid executed on February 28,
1993, went fatally wrong. While many factors played a role in this, one
stands apart as the principal reason why four ATF agents were killed and
many others wounded. Simply put, the Davidians knew that the ATF agents
were coming. And while the ATF expected to serve a search warrant for
Koresh and search the residence, the Davidians apparently feared the
worst that law enforcement agents or military troops were coming to
arrest all of them or, perhaps kill them. In any event, some of the
Davidians armed themselves and lay in ambush, waiting for the arrival of
the ATF agents.
a. rodriguez and the ``element of surprise''
1. How the Davidians knew the ATF was coming
The Davidians learned of the ATF plan to raid their residence when a
local television cameraman happened to get lost on his way to the Branch
Davidian residence.\62\ The cameraman had been dispatched to the
residence by the local television station because the news director of
the station expected the ATF raid would occur on that day. He suspected
this because an employee of the local ambulance service had informed him
that a Fort Worth-based trauma flight company had been put on standby
along with the local ambulance company.\63\
---------------------------------------------------------------------------
\62\ U.S. Dept. of the Treasury, Report of the Department of the
Treasury on the Bureau of Alcohol, Tobacco, and Firearms Investigation
of Vernon Wayne Howell also known as David Koresh 85 (1993) [hereinafter
Treasury Department Report].
\63\ Lewis Gene Barber, a retired lieutenant with the Waco Sheriff's
Department, informed the subcommittees during its pre-hearing
investigation into these events that local police suspected that there
was an ``informant'' at the ambulance company who had been tipping off
the local television station. He stated that on several prior occasions,
when police had placed the ambulance company on standby, the station
sent a camera crew to the site of the police activity, even though the
police had not disclosed it to the station.
---------------------------------------------------------------------------
While the cameraman was sitting by the side of the road attempting
to locate the Davidian residence, David Jones, a Branch Davidian and a
letter carrier with the U.S. Postal Service, pulled up behind the
cameraman and asked whether he was lost. The cameraman introduced
himself and asked for directions to ``Rodenville,'' the name by which
many local residents referred to the Branch Davidian residence. After
Jones pointed to the residence, which was in sight of where the two men
were stopped, Jones stated that he had read about the group in the paper
and ``thought that they were weird.'' The cameraman, believing that
Jones was not affiliated with the Davidians, warned him that some type
of law enforcement action was going to take place at the residence, that
it was likely to be a raid of some type, and that there may be
shooting.\64\ After the cameraman departed, Jones drove directly to the
residence and informed the Davidians.
---------------------------------------------------------------------------
\64\ Treasury Department Report at 85.
---------------------------------------------------------------------------
2. The undercover agent
On the morning of February 28, 1993, at approximately 8 a.m., Robert
Rodriguez, the ATF agent who had gone undercover into the Branch
Davidian residence on several prior occasions, went to meet with David
Koresh one final time. While Koresh and Rodriguez were engaged in a
Bible study session, David Jones arrived at the residence and told his
father, Perry Jones, what had happened. The elder Jones then informed
Koresh that he had a telephone call. Koresh, at first, ignored the
statement but, when Perry Jones mentioned that it was long distance from
England, Koresh left the room to speak with Jones.\65\ At this point,
David Jones relayed to Koresh his discussion with the television station
cameraman.
---------------------------------------------------------------------------
\65\ Id. at 84-89.
---------------------------------------------------------------------------
a. The Treasury Department Report version of events
The Treasury Department Report summarizes the subsequent events as
follows:
Upon Koresh's return, Rodriguez could see that he was
extremely agitated, and though he tried to resume the Bible
session, he could not talk and had trouble holding his Bible.
Rodriguez grabbed the Bible from Koresh and asked him what was
wrong. Rodriguez recalls that Koresh said something about, ``the
Kingdom of God,'' and proclaimed, ``neither the ATF nor the
National Guard will ever get me. They got me once and they'll
never get me again.'' Koresh then walked to the window and
looked out, saying, ``They're coming, Robert, the time has
come.'' He turned, looked at Rodriguez and repeated, ``They're
coming Robert, they're coming.'' \66\
---------------------------------------------------------------------------
\66\ Id. at 89.
According to the Treasury Department Report, Rodriguez went first to
the undercover house announcing to the agents there and to James
Cavanaugh, deputy tactical coordinator of the ATF operation, that Koresh
was agitated and had said the ``ATF and the National Guard were
coming.'' \67\ The report states that Cavanaugh asked Rodriguez whether
he had seen any guns, had heard anyone talking about guns, or had seen
anyone hurrying around. Rodriguez responded in the negative to all three
questions. Cavanaugh then told Rodriguez to report his observations to
Chuck Sarabyn, the tactical coordinator for the raid.\68\
---------------------------------------------------------------------------
\67\ Id. at 89.
\68\ Id.
---------------------------------------------------------------------------
The Treasury Department Report states that Rodriguez called Sarabyn
at the command post telling him that Koresh was upset, that Koresh had
said the ATF and the National Guard were coming, and that as Rodriguez
left Koresh was shaking and reading the Bible. The report continues that
Sarabyn then asked Rodriguez a series of questions from a prepared list
provided by the tactical planners concerning the presence of weapons,
whether there had been a call to arms, and other preparations the
Davidians were making, to which Rodriguez responded in the negative to
each question.
The Treasury Department Report then notes that Sarabyn left the
command post at the Texas State Technical College (TSTC) and went to the
tarmac area nearby to confer with Phillip Chojnacki, the overall ATF
incident commander, and that Sarabyn told Chojnacki what Rodriguez had
said as well as the answers to the questions Sarabyn asked of Rodriguez.
The Treasury Department Report states that Chojnacki asked Sarabyn what
he thought should be done and that Sarabyn expressed his belief that the
raid could still be executed successfully ``if they hurried.'' \69\
---------------------------------------------------------------------------
\69\ Id. at 91.
---------------------------------------------------------------------------
According to the Treasury Department Report, Sarabyn then went to
the staging area, at the Bellmead Civic Center near the TSTC. When he
arrived he was excited, ``obviously in a hurry,'' and telling agents
``get ready to go, they know we are coming'' and ``they know ATF and the
National Guard are coming. We are going to hit them now.'' \70\
---------------------------------------------------------------------------
\70\ Id.
---------------------------------------------------------------------------
b. Testimony before the subcommittees
At the hearings before the subcommittees, these individuals
testified in a manner that was similar to, but not entirely consistent
with the summary of these events in the Treasury Department Report. When
he testified before the subcommittees, agent Rodriguez expanded upon the
Treasury Department's description of the events on the morning of
February 28th.
Mr. Scott: Mr. Rodriguez, is there--was there any question in
your mind, having been inside the residence, that Koresh knew
that the agents were coming that day?
Mr. Rodriguez: Sir, there's no question in my mind that Koresh
knew--there's no question in my mind that Koresh knew that we
were coming, yes, sir.
Mr. Scott: And can you describe briefly his emotion when he
got the word?
Mr. Rodriguez: Yes, sir. We were--I was inside the compound,
on that day, that morning. I had asked him some questions
regarding a newspaper clipping. He sat down and started to
explain to me the difference between his preachings and another
subject's preachings.
As we were discussing the Bible, one of his subjects, Mr.
Jones, came in and advised him that he had a telephone call. He
ignored the call and continued to talk to me.
At that point, everything was normal. There was only three
people in that living room at that point. Everything was calm.
He was normal. He was talking to me as he always spoke to me
during all our sessions. Nothing--nothing was wrong.
Mr.--Mr. Jones again came to the living room and advised him
that he had an emergency call from England. At that time, he
quickly got up and left the room. At that time it was still just
Mr. Schneider and Sherri Jewell were in that room with me, at
that time. He came back approximately 3 or 4 minutes later, and
when he came back, I mean it was like day and night.
As he approached me, he was--he was shaking real bad. He was
breathing real hard. At one time he put his hands in his pocket,
in his jacket pocket, to probably keep his hands from shaking.
He sat down next to me, probably about this far, and he
continued to try to finish what he was talking to me about.
When he grabbed the Bible, he was shaking so bad that he could
not actually read it. I grabbed the Bible and asked him what is
wrong. At that time he stopped, and as I sit here I can
remember, clearly, he took a deep breath, he turned and looked
at me and said, ``Robert, neither the ATF or the National Guard
will ever get me. They got me once, and they'll never get me
again.'' \71\
---------------------------------------------------------------------------
\71\ Hearings Part 1 at 757.
---------------------------------------------------------------------------
Later, Rodriguez continued his testimony:
Mr. Ehrlich: And what did you do next?
Mr. Rodriguez: I quickly--I felt--I felt very threatened and I
stood up, I felt I had to--I had to leave the compound. By that
time, there was more--more people that had come into the living
room. At first there was only three when we first started.
Mr. Ehrlich: All right, sir. Now, why did you feel you needed
to leave the compound?
Mr. Rodriguez: I was threatened because I didn't know--I was
afraid that I would be exposed as to who I was. And as I stood
there, I looked and I noticed that the door--there's people in
front of the door, people behind me, there was no place for me
to go. As I was--as I stood there, Koresh went from one window,
did the same thing, looked outside, and came back to the other
window and again looked outside and said, they're coming,
Robert, they're coming.\72\
---------------------------------------------------------------------------
\72\ Id. at 776.
---------------------------------------------------------------------------
* * * * *
Mr. Ehrlich: All right, sir. And there came a point in time
around 9:15, 9:20 where you left the house, correct?
Mr. Rodriguez: Yes, sir. He finally--he motioned, he gave a
head signal, they opened the door for me. I walked out. I got
into my vehicle. It took me a while to get it started because I
was--by then I was--I was pretty shaken. I quickly went back to
the undercover house.\73\
---------------------------------------------------------------------------
\73\ Id.
---------------------------------------------------------------------------
* * * * *
Mr. Rodriguez: Well, what I did, I went into the--to the room
where Mr. Cavanaugh was because that is where the STU phone was.
I was supposed to use that telephone to call Mr. Sarabyn. When I
got there, we all huddled up and I told Mr. Cavanaugh exactly
what had happened in the residence, advised him.
Mr. Ehrlich: And what was his reaction?
Mr. Rodriguez: His reaction was we better call Chuck right
now.
Mr. Ehrlich: All right, sir. You got on the phone and did just
that, correct?
Mr. Rodriguez: Yes, sir, I did.
Mr. Ehrlich: And please detail the nature of that
conversation.
Mr. Rodriguez: I got the phone, I called. He came to the
phone. The only thing I can't remember was if somebody else
answered. I think somebody else answered and he came to the
phone.
Mr. Ehrlich: Who is he? Mr. Sarabyn?
Mr. Rodriguez: Mr. Sarabyn.
Mr. Ehrlich: OK.
Mr. Rodriguez: And the first thing that came out of my mouth
was, Chuck, they know, Chuck, they know, they know we're coming.
He says, well, what happened? And I explained to him what
happened.
I explained to him all the events that took place inside the
compound, and his questions were, well, did you see any guns? I
said no.
What was he wearing? And I--I advised him of what he was
wearing. At that time, he said OK, and that was about the extent
of the phone call.
Mr. Ehrlich: All right, sir. Did you request that the raid be
called off because the element of surprise had been lost?
Mr. Rodriguez: No, sir. At that time I really didn't have the
chance. It was a real quick question and answer thing. He asked
me what he was wearing, said OK and he hung up. That's why--
that's why I quickly left the undercover house to go talk to him
at the command post because I wanted to have a more--more of a
lengthy conversation with him about the events.\74\
---------------------------------------------------------------------------
\74\ Id. at 777.
Rodriguez then testified that he drove to the command post, looking for
Sarabyn, in order to further discuss with him in person the events of
---------------------------------------------------------------------------
that morning. As Rodriguez testified:
Mr. Rodriguez: I--I arrived at the command post and the first
thing I asked was, where's Chuck? Where's Chuck? And they
advised me that he had left.
At that time, I started yelling and I said, ``Why, why, why?
They know we're coming, they know we're coming.''
Mr. Ehrlich: And what reaction did you get, what response?
Mr. Rodriguez: Sir, everything was very quiet, very quiet, and
if I remember right, everybody was really concerned. I went
outside and I sat down and I remember starting to cry--starting
to cry until Sharon Wheeler came to me and told me what was
going on.\75\
---------------------------------------------------------------------------
\75\ Id. at 777-778.
While the Treasury Department Report maintains that ``all key
participants now agree that Rodriguez communicated, and they understood,
that Koresh had said the ATF and National Guard were coming,'' \76\
Sarabyn maintained at the hearings before the subcommittees that while
he understood the words Rodriguez had spoken, he did not feel that
Koresh actually believed that law enforcement personnel were on their
way to the residence. As Sarabyn testified:
---------------------------------------------------------------------------
\76\ Treasury Department Report at 90.
I did not feel he knew that we were coming at that time. When
I talked with Robert, like I testified before, I took notes
while we were talking over the thing and I have read all of
Robert's statements. Robert did--did a great job, but I think
everything that you heard as far as testimony was not passed on
to me.
In fact, Robert told the shooting review team, or commanders,
he didn't go into detail or should have said more. When I went
through the questions I asked him, you know, he had said
specifically Koresh said, you know, ATF and the Guard are
coming, but when I asked, trying to determine what he was doing
from those questions, he wasn't doing anything, he was shaking,
reading the Bible. He was preaching. I determined that, you
know, in my opinion, his actions spoke louder that his words, so
I didn't feel that anything was happening then.\77\
---------------------------------------------------------------------------
\77\ Hearings Part 1 at 786.
---------------------------------------------------------------------------
At another point in the hearings, Chojnacki testified:
When I received the information from Mr. Sarabyn . . . [he]
pointed out that he had finished talking with Agent Rodriguez
and that Robert says he knows we are coming. He said, ``The ATF
and the National Guard were coming to get me,'' those kinds of
comments that I took to be a repetition of the same comments
that we had heard from his other preaching episodes where he
preached that the ATF will be coming to get us. ``The ATF is
coming to get us.'' \78\
---------------------------------------------------------------------------
\78\ Id. at 466.
Chojnacki was then questioned directly as to whether he believed at the
time that Koresh did, in fact, know that the ATF was going to the Branch
Davidian residence. He stated, ``Not at that time, I didn't, no sir.''
\79\
---------------------------------------------------------------------------
\79\ Id.
---------------------------------------------------------------------------
Later, during the hearings, however, Rodriguez questioned the
truthfulness of the testimony given by Chojnacki and Sarabyn before the
subcommittees. Mr. Rodriguez testified,
[T]hose two men know--know what I told them and they knew
exactly what I meant. And instead of coming up and admitting to
the American people right after the raid that they had made a
mistake . . . they lied to the public and in doing so they just
about destroyed a very great agency.\80\
---------------------------------------------------------------------------
\80\ Id. at 788.
Several other agents also testified that Sarabyn had informed them that
the Davidians knew the ATF was coming. Agent Roger Ballesteros, who was
---------------------------------------------------------------------------
present at the staging area when Sarabyn arrived testified:
I was in an auditorium along with a large party . . . and Mr.
Sarabyn rushed into the room and made it clear to us that we
needed to hurry up because, in fact, Mr. Rodriguez had come out
and identified the fact that Koresh had been tipped off and that
they knew we were coming.\81\
---------------------------------------------------------------------------
\81\ Id.
---------------------------------------------------------------------------
c. What the ATF commanders knew
It is difficult to reconcile Sarabyn's testimony that while he heard
agent Rodriguez's words, he believed that Koresh's actions spoke louder
than his words and that, as a result, he believed that the Davidians did
not really think the ATF agents were on their way. In light of the
testimony of Rodriguez and the other agents before the subcommittees,
the subcommittees conclude that Sarabyn understood that the Davidians
were tipped off and would have been lying in wait for the ATF agents to
arrive.
The fact that Sarabyn felt it necessary to tell other agents of what
Rodriguez had told him, regardless of how he understood it, indicates
that he found the information to be important. Unfortunately, when
Sarabyn told Chojnacki this information, Chojnacki did not believe it to
be important enough to call off the raid. And, inexplicably, Sarabyn
apparently did not believe it important enough to urge Chojnacki to
delay the raid. Compounding these failures was the fact that the ATF
line agents who heard Sarabyn's comments apparently were not confident
enough to question their superiors' judgment in going forward with the
raid, even given their concerns about the information relayed by
Rodriguez.
b. who bears the responsibility for the failure of the raid?
The Treasury Department Report attempts to lay the blame for the
failure of the raid squarely on the shoulders of Chojnacki and Sarabyn.
Much has been made of what has come to be known as the loss of the
``element of surprise,'' with administration officials asserting that
Chojnacki and Sarabyn went forward in the face of a direction to the
contrary if the element of surprise were lost.
In their report, Treasury Department officials assert that Stephen
Higgins, then Deputy Director of the ATF, had instructed ``those
directing the raid . . . to cancel the operation if they learned that
its secrecy had been compromised . . . .'' \82\ This statement was
purportedly made by Higgins to Ronald Noble, then Assistant Secretary-
Designate of the Treasury for Law Enforcement, and John P. Simpson, the
acting Assistant Secretary of the Treasury for Enforcement. Noble and
Simpson had expressed concerns about the raid when they first learned of
it on the afternoon of the Friday before the raid was to take place and
Simpson had initially ordered that the raid not go forward. According to
the Treasury Department Report, Higgins made this statement to Noble and
Simpson in response to their concerns about the raid and in order to
convince Simpson to reverse his earlier decision.\83\ At the hearings
before the subcommittee, Undersecretary of the Treasury Noble testified:
---------------------------------------------------------------------------
\82\ Treasury Department Report at 179.
\83\ Id.
It's been our--it's been our contention in the Department of
the Treasury's report that only Mr. Hartnett and Mr. Chojnacki
and Mr. Sarabyn deny, because Mr. Simpson--I mean Mr. Higgins
made it absolutely clear that this raid was not supposed to
proceed if the advantage of surprise was lost and Mr. Aguilera
testified about that being clear on February 12th as well.\84\
---------------------------------------------------------------------------
\84\ Hearings Part 1 at 934-935.
Representative Bill McCollum, co-chairman of the joint subcommittees,
read into the record at the hearing a similar statement that Mr. Noble
had made during an appearance on the television news program ``60
Minutes'' in May 1995.\85\
---------------------------------------------------------------------------
\85\ During that program Noble stated, ``What was absolutely clear
in Washington at Treasury and in Washington and ATF was that no raid
should proceed once the element of surprise was lost.'' Investigation
Into the Activities of Federal Law Enforcement Agencies Toward the
Branch Davidians (Part 2): Hearings Before the Subcommittee on Crime of
the House Committee on the Judiciary and the Subcommittee on National
Security, International Affairs, and Criminal Justice of the House
Committee on Government Reform and Oversight, 104th Cong., 1st Sess. 7
(1995) [hereinafter Hearings Part 2].
---------------------------------------------------------------------------
But ATF on-site commanders and senior ATF officials disputed the
position asserted by the administration in the Treasury Department
Report, by Noble in his television interview, and by Noble during his
testimony to the subcommittees. As Dan Hartnett, Deputy Director of the
ATF for Enforcement in February 1993, testified:
Mr. Hartnett: I saw Ron Noble testify on a national program
several months ago or a month ago where he said both Treasury
and ATF ordered the commanders at Waco not to proceed, or to
abort the raid if they lost the element of surprise. And what
I'm saying to this committee is that I have never heard the
term, ``element of surprise,'' until after the raid, when we
started using it ourself and the media started using it.
But I have to also add that in the briefings, the briefings
that I had and Mr. Higgins had, the secrecy of the raid was
discussed and was an element of the raid plan that was given to
me and to Mr. Higgins. It was just that nobody ever called and
said abort the raid if you lose the element of surprise. That
just never happened. But secrecy was a part of the plan--secrecy
and safety. I mean it was discussed over and over again.\86\
---------------------------------------------------------------------------
\86\ Hearings Part 1 at 763.
Later, under further questioning on this point by Representative Bill
Zeliff, co-chairman of the joint subcommittees, he stated that the
administration had tried to cover up the failure of its senior Treasury
---------------------------------------------------------------------------
Department officials to properly direct the actions of ATF officials:
Mr. Zeliff: In fact, the element of surprise was never in that
plan. Is that correct?
Mr. Hartnett: The terminology. Secrecy was part of the plan,
sir.
Mr. Zeliff: One final question so the record may stand clearly
on its own. Do you believe that these facts demonstrate an
effort to cover up the truth by the Treasury Department Report?
Mr. Hartnett: Yes, yes, I do.
Mr. Zeliff: By Ron Noble, specifically?
Mr. Hartnett: Yes.
Sarabyn also testified before the subcommittees that he was never
ordered not to go forward if the tactical advantage of surprise had been
lost.
Mr. Chabot: Mr. Sarabyn, I'd just like to follow up again with
your statement, where you said, ``Obviously, some people way up
said some things after that which weren't true. It goes right
down to the decision to go. And they were part of it.'' By ``way
up,'' you're talking about upper echelon officials, I assume. Is
that correct?
Mr. Sarabyn: What I was making reference to, sir, is the
element of surprise. Throughout--at this point, it became a very
big issue. The point I was trying to make is I was never given
the order not to go if we lost the element of surprise. There
has been much conversation after that about the element of
surprise and I was trying to say I do not know who up above me,
how far, whatever, gave that order to somebody, but I never
received that order.\87\
---------------------------------------------------------------------------
\87\ Id. at 758.
The Clinton administration's attempts to suggest that maintaining
the ``element of surprise'' had been an overriding feature of the
directives of Treasury Department officials to ATF officials is
inaccurate. While the issue was discussed, there was no absolute
direction given to ATF officials or ATF commanders on-site that if
secrecy were compromised that they were to not go forward with the raid.
The Clinton administration's attempt to suggest otherwise, appears to be
a veiled attempt to distance the administration and its most senior
officials from the results of the failed raid.
But as Hartnett testified, ``Secrecy was part of the plan--secrecy
and safety. I mean it was discussed over and over again.'' \88\ And
Secret Service Agent Louis Merletti, the Assistant Project Director of
the Waco Administrative Review Team created by the Department of the
Treasury to review the Waco incident, testified that there is no
difference between ``the element of surprise and secrecy.'' He testified
that it was ``basic to a dynamic entry'' method of conducting a
raid.\89\ Later, however, Hartnett testified:
---------------------------------------------------------------------------
\88\ Id. at 763.
\89\ Id. at 766.
Mr. Mica: Mr. Hartnett, you had said you disagreed with Mr.
Merletti . . . about some comments he made about assessing the
element of surprise. Do you want to respond now?
Mr. Hartnett: Well, I've always disagreed with that
terminology, ever since the Waco review came out. I think that
it's a created phrase, and I don't mean to mislead the
committee.
You know, I've testified many, many times that a part of the
raid was secrecy. But part of the raid was not specifically
directed toward those commanders when they say they were given a
direct order. That is just not true. They just were not given a
direct order.\90\
---------------------------------------------------------------------------
\90\ Id. at 773.
Regardless of whether it is called the ``element of surprise'' or
simply ``secrecy,'' it is difficult to understand why senior ATF
officials did not require that sufficient checks be in place to ensure
that secrecy had been maintained up to the beginning of the raid. And it
is almost impossible to understand why ATF commanders did not find
Rodriguez's information to be important enough to call off the raid.
Given the type of tactical operation selected, maintaining the secrecy
of the timing of the raid is so fundamental that the blame for the
failure to ensure that it was maintained must be shared not only by the
commanders on-site but by senior ATF officials.
It is unclear from the testimony and from the Treasury Department
Report why ATF Director Higgins and Deputy Director Hartnett did not
significantly involve themselves in the planning and oversight of the
execution of a raid of this magnitude. This is especially puzzling in
light of the amount of weaponry the ATF suspected was possessed by the
Davidians. Given the high risk involved in any dynamic entry, and the
fact that the open location of the Davidian residence created a greater
risk to the ATF agents in using this tactic, it is simply
incomprehensible that the most senior ATF officials were not directly
involved with the planning of this operation and in overseeing its
implementation. In retrospect, maintaining the secrecy of this operation
was one of the most important aspects of this plan. To experienced law
enforcement officials this fact should have been obvious from the
beginning. In fact, it should have been the overriding concern of all
involved. It was not something of which senior officials should have had
to order agents to be aware.
Higgins and Hartnett must share a portion of the blame for the
failure of the raid because they failed to become significantly involved
in the planning for it. Had they done so, they presumably would have
ensured that a procedure was in place through which Rodriguez's
information was relayed to them and they would have acted upon it. At
the very least, they share some blame for not instilling in the senior
raid commanders an understanding of the need to ensure that secrecy was
maintained in an operation of this type.
But most of the blame for the failure of the raid, and for the loss
of life that occurred, however, must be born by the raid commanders
themselves, and in particularly by Sarabyn. Both Sarabyn and Chojnacki
understood what Rodriguez had told Sarabyn but, inexplicably, somehow
did not find it to be significant enough to warrant calling off the
raid. Perhaps they thought that because the Davidians were not arming
themselves when Rodriguez left the residence that they would not do so.
Perhaps they believed that the agents could have arrived at the
residence before the Davidians had fully armed and taken up offensive
positions against them. Perhaps they even thought that their abilities
were so superior to those of the Davidians that they could have
successfully overcome the Davidians, even if the Davidians had been
expected to be lying in wait. Whatever the reason, however, the facts
are that they knew or should have known that the Davidians had become
aware of the impending raid and were likely to resist with deadly force.
The only realistic conclusion that can be drawn is that Chojnacki and
Sarabyn acted recklessly failing to call off the raid.
Given the manner in which Sarabyn relayed the information to
Chojnacki, it is perhaps understandable that Chojnacki presumed that the
information was not important. But Chojnacki's overriding concern on
February 28 should have been that the secrecy of the mission be
maintained. When any credible evidence was brought to his attention that
secrecy might have been compromised he should have delayed the start of
the operation until he could confirm or deny those reports.
As Chojnacki testified before the subcommittees, ``I accept the
responsibility for making the field decision. I was the incident
commander, I was the person to make that decision.'' \91\ Regardless of
whether he fully understood the significance of what Sarabyn told him,
it was his job to take whatever steps were necessary to insure that
secrecy was maintained. Because he did not, his portion of the blame for
the failure of the raid and its consequences is equal to that of
Sarabyn.
---------------------------------------------------------------------------
\91\ Hearings Part 1 at 759-760.
---------------------------------------------------------------------------
c. other ways in which the plan selected was bungled
While the failure of ATF's commanders to recognize and respond to
the fact that their raid plan had been severely compromised was, by far,
the most significant mistake made on February 28, a number of other
failures came to light during the subcommittees' investigation.
1. Command and control issues
A number of command and control issues significantly undermined the
possibility of success for the raid. Most of these issues were addressed
in the Treasury Department Report,\92\ however, three of them bear
repeating here.
---------------------------------------------------------------------------
\92\ Treasury Department Report at 152-156.
---------------------------------------------------------------------------
a. Assigning command and control functions under the ATF's
National Response Plan
The decision to designate Chojnacki as incident commander and
Sarabyn as tactical commander was mandated under the ATF's National
Response Plan. While the tactical experts who testified at the hearings
and briefed the subcommittees noted that the use of an overall
coordinating document, such as the National Response Plan, is an
appropriate organizational and standardization tool, some of the plan's
requirements resulted in less qualified people being placed in positions
of command and control when agents who were more qualified for these
positions, and who were already selected to be involved in the raid,
were available.
Chojnacki was selected as incident commander because he was the
special agent in charge of the field office in whose region the raid was
to occur. While the special agent in charge of a geographic area may
have a great interest in an operation that takes place in his area, his
position has little bearing on his qualification to run the operation.
And even though Chojnacki had 27 years of law enforcement experience,
there were other agents involved in the raid who possessed substantially
more experience in tactical operations.
Chojnacki, in turn, appointed Sarabyn, to be tactical coordinator
because the National Response Plan required that position to be filled
by an assistant special agent in charge who had completed special
response team (SRT) training, as had Sarabyn. But Sarabyn had attended
SRT training only as an observer, and there were other agents of lesser
rank who had more experience in this area.\93\ As in the case with
Chojnacki, the National Response Plan's emphasis on rank and
geographical assignment created the unintended result of placing a less
qualified person into a position for which he was either simply not
qualified or for which there were others more qualified.
---------------------------------------------------------------------------
\93\ Id. at 153.
---------------------------------------------------------------------------
b. Command and control on the scene on raid day
Chojnacki decided to ride in one of the helicopters on raid day.\94\
This decision placed him out of effective communications with the other
raid commanders and SRT teams leaders prior to the beginning of the
raid. Had he chosen to remain in central position from which he could
control the evolving raid, he might have had other opportunities to
learn of Rodriguez's information about what the Davidians' forewarning.
He might also have been able to learn from agents in the undercover
house that the Davidians were not where the ATF anticipated they would
be on the morning of February 28, a key element of the tactical plan,
but instead were lying in wait for the agents.
---------------------------------------------------------------------------
\94\ Id. at 154.
---------------------------------------------------------------------------
Sarabyn, the tactical commander, chose to ride in one of the cattle
trailers \95\ rather than observing the residence from a vantage point
such as the undercover house, where he could monitor activity in and
around the building, as well as view the approach of the ATF agents in
the cattle trailers. By riding in the trailers with the agents who were
to conduct the raid, Sarabyn severely limited his view of the Branch
Davidian residence, which also prevented him from observing that the
Davidians were not where the ATF expected them to be just before the
raid began.
---------------------------------------------------------------------------
\95\ Id.
---------------------------------------------------------------------------
Additionally, once Sarabyn arrived at the residence he became pinned
down with the other agents and was unable to communicate with many of
the other agents at different points around the building. Had he chosen
to place himself in a position where he would not have come under fire,
such as the undercover house, he might have been able to communicate
with all of the agents, perhaps diverting or redirecting the actions of
some and reducing the number of casualties sustained.
c. Command and control from Washington
On February 28, ATF activated its ``National Command Center'' at its
Washington headquarters staffed with ``high-level managers . . .
experience[d] in field operations.'' \96\ Yet it appears that the
command center played no role in the planning or implementation of the
operation until after ATF agents had been killed or wounded. The
personnel in the command center never learned that Rodriguez knew the
Davidians thought the raid was imminent because Chojnacki never told
them. Apparently, the person in the command center with whom Chojnacki
spoke did not know enough about the raid to know that an undercover
agent was to have been inside with the Davidians until shortly before
the raid was scheduled to begin and valuable information might have been
available. In fact, according to the Treasury Department Report, no one
in the command center asked any questions of Chojnacki at all when he
reported in shortly before the raid.\97\
---------------------------------------------------------------------------
\96\ Id. at 175.
\97\ Id.
---------------------------------------------------------------------------
2. The lack of a written raid plan
The Treasury Department review of the ATF's investigation of David
Koresh noted that the ATF agents who were in command of the raid did not
prepare a written raid plan in advance of the raid. While two ATF agents
took it upon themselves to create one, it was never reviewed by the
senior raid planners and commanders, and never distributed to any of the
agents who were to participate in the raid.\98\
---------------------------------------------------------------------------
\98\ Id. at 207-208. Additionally, Agent Rodriguez testified before
the subcommittees that he never saw any written raid plan. Hearings Part
1 at 821.
---------------------------------------------------------------------------
During the hearing before the subcommittees, several tactical
experts testified that the drafting of a written raid is an important
part of developing an overall operational plan. Indeed, the ATF's own
National Response Plan, which was drafted to establish ``consistent
policies and procedures'' when several Special Response Teams are
involved in an operation,\99\ requires that a written plan ``for
managing the critical incident or major ATF operation'' be produced
before the operation begins.\100\ Yet this was not done in this case.
---------------------------------------------------------------------------
\99\ Treasury Department Report at 152.
\100\ Id. at 207.
---------------------------------------------------------------------------
3. Lack of depth in the raid plan
One problem with overall planning was the fact that no written plan
existed. A factor that may have exacerbated the losses the ATF sustained
on February 28 was the lack of depth in the oral raid plan. The plan
involved agents in two cattle cars driving up an exposed driveway to the
front of the Davidian residence and running out of the cars, with one
group storming through the front doors while the other went to the side
of the building, climbed ladders carried by agents onto the roof and in
through the second-story windows.\101\ There was little else to the plan
and, importantly, little or no discussion of what might go wrong.
---------------------------------------------------------------------------
\101\ Id. at 54-64.
---------------------------------------------------------------------------
There was almost no training given on how to withdraw from the
residence.\102\ Even the written plan created after the raid and given
to the Texas Rangers during their investigation (which was never
distributed to the commanders or any agents in advance of the raid)
devoted much of its 8\1/2\ pages to administrative issues. It contained
no mention of what agents were to do if anything went wrong with the
``dynamic entry'' into the residence. The three short paragraphs under
the heading ``contingencies'' simply mentioned the presence of an
ambulance and nurse near the scene.\103\
---------------------------------------------------------------------------
\102\ Id. at 151.
\103\ Id. at C-19.
---------------------------------------------------------------------------
As discussed above, the most grievous failure on the part of ATF
officials on February 28 was the failure to understand and appreciate
the significance of undercover agent Rodriguez's report that the
Davidians knew the ATF raid was imminent. Yet, the omission of any
contingency planning was a failure that may have led to the deaths of
agents who might otherwise have survived. Contingency planning might
have been effective at a number of stages: when the agents turned into
the driveway; when they first realized they were coming under fire from
the Davidians; or when the order was given to retreat in the face of the
Davidians' fire.
The Treasury Department Report states ``the failure of the planners
to consider that their operation might go awry and prepare for that
eventuality is tragic, but somewhat understandable.'' \104\ It notes
that most ATF agents were used to operations going without incident, or
at least being resolved in favor of the ATF, and that the only other ATF
operation similar in magnitude to the one against the Davidians had been
resolved peacefully. The report places stronger blame on ATF's national
leadership for this failure, calling its failure to ensure that some
contingency planning was done ``simply unacceptable.'' \105\
---------------------------------------------------------------------------
\104\ Id. at 151.
\105\ Id.
---------------------------------------------------------------------------
The subcommittees agree that ATF leadership shares the blame for the
failure of this operation and that, clearly, it would have been
beneficial had they been involved in a meaningful way in the planning of
the operation. But it should not take directives from Washington to
ensure that agents in charge of the ATF's various field offices and
Special Response Teams, the people who actually conduct an operation,
will know enough to ask the simple question ``what happens if this
doesn't go as planned.'' No amount of past success is reason enough to
explain why this possibility wasn't considered and planned for. The fact
that it was not done is, at best, additional evidence of the lack of
skill and sophistication of senior ATF commanders involved. At worst, it
is evidence of grievous negligence on their part.
4. Tactical teams trained together for only 3 days before the raid
Another fact which indicates a lack of skill on the part of both
senior ATF officials and the ATF on-site commanders, particularly
overall incident commander Chojnacki, is the fact that the Special
Response Teams (SRT's) involved in conducting the operation trained
together for only 3 days prior to the operation.\106\ The ATF does not
maintain a large standing force of specially trained agents which can be
dispatched to the site of a disturbance, such as the FBI's Hostage
Rescue Team. Instead, the ATF put together its team for the operation
against the Davidians by combining special response teams from several
of the ATF's regional offices.
---------------------------------------------------------------------------
\106\ Id. at 73.
---------------------------------------------------------------------------
While the subcommittees do not conclude that the ATF should have
created a special team such as the FBI's Hostage Rescue Team in advance
of the raid (and does not conclude that it need do so now), it appears
that the reason why the FBI maintains its HRT as a single unit is
because coordination of the agents involved in a tactical operation,
especially one involving great risk, is of the utmost importance. Senior
ATF officials and the ATF's on-site commanders either were unaware of
this fact or, more likely, simply ignored it for reasons which are
unknown to the subcommittees. Regardless of the reason, however, the
fact that ATF officials believed that they could create a force of over
70 agents, adequately trained to conduct an operation of this complexity
against a heavily armed opposing force, indicates a lack of foresight on
the part of these senior officials which is unacceptable.
5. True National Guard role only made clear 24 hours prior to the raid
The subcommittees have learned that when the Texas National Guard
was asked to provide helicopters to the ATF, the purpose given was that
they would be used as an observation platform or command and control
platform.\107\ When the National Guard pilots arrived at Fort Hood to
train with the ATF the day before the raid they learned for the first
time that the ATF intended to use the helicopters as a diversion just
before the raid was to begin. The helicopters were to fly close to the
residence, attracting the attention of those inside to the back side of
the building, while the ATF agents arrived at the front of the
structure.\108\
---------------------------------------------------------------------------
\107\ Interviews of National Guard personnel. [See documents
produced to the subcommittees by the Department of the Treasury T005368,
T005376 at Appendix [hereinafter Treasury Documents]. The Appendix is
published separately.]
\108\ Treasury Department Report at 95.
---------------------------------------------------------------------------
While the National Guard was conducting its role in its Title 32
status,\109\ and so was not limited by the terms of the Posse Comitatus
Act,\110\ this change in plan is still troubling. The failure to inform
National Guard commanders of the true role for the National Guard troops
and equipment well in advance of the raid is an omission that is, at
best, additional evidence of the poor planning for the raid done by the
ATF commanders. At worst, this may have been an attempt by ATF
commanders to obtain operational assistance that, while not prohibited
by law, might have been declined by the Governor of Texas as commander
of the Texas National Guard had the ATF given sufficient notice for word
to have reached her. In any event, it does not appear that senior ATF or
Treasury officials gave any consideration to the negative image of
military helicopters being used as part of a raid on American civilians.
---------------------------------------------------------------------------
\109\ For an explanation of the three ``statuses'' in which National
Guard forces operate, see Section V of this report.
\110\ See Section V of this report.
---------------------------------------------------------------------------
d. service of the warrant
One of the issues considered by the subcommittees was whether the
ATF agents serving the arrest and search warrants on February 28 were
required to ``knock and announce'' their intention to serve the warrant
before entering the Davidian residence. When the ATF agents conducted
the raid on the Davidian residence the agents did not knock on the
Davidians' front door and announce their intentions to serve the
warrant. Rather, the ATF agents dismounted from the cattle trailers in
which they were riding on the run. One group attempted to enter the
residence forcibly through the front door. A second group attempted to
enter the second floor windows via the roof.
The subcommittees' review of videotapes made of the training
sessions during which ATF practiced the raid plan revealed that the plan
was designed around this type of dynamic entry and did not involve a
knock and announce approach. In other words, the use of these tactics
was not the result of any circumstances which had occurred on February
28.
In 1917,\111\ Congress enacted the Federal knock and announce
statute.\112\ Generally speaking, the statute permits forcible entry for
the purpose of executing a search warrant only after the officer gives
notice of his authority and his purpose but is refused admittance.
Courts interpreting the statute, however, have adopted a number of
exceptions to the rule allowing unannounced police entries in limited
exigent circumstances. For example, courts have held that such an
announcement is unnecessary when the facts known to officers would
justify them in being virtually certain that the person on whom the
warrant is to be served already knows the officers' purpose and that an
announcement would be a useless gesture.\113\ Courts also have held that
police need not knock and announce their intent to serve a warrant if
they fear that to do so would allow the person on whom the warrant is to
be served to destroy the evidence to be seized under the warrant.\114\ A
third general exception to the rule requiring the police to knock and
announce their intent to serve a warrant is when to do so would increase
the risk of danger to the officers serving the warrant.\115\
---------------------------------------------------------------------------
\111\ See generally Robert J. Driscoll, Unannounced Police Entries
and Destruction of Evidence After Wilson v. Arkansas, 29 Colum. J.L. &
Soc. Probs. 1, 10 (1995).
\112\ The Federal knock and announce statute is found in 18 U.S.C.
Sec. 3901. That section states, ``The officer may break open any outer
or inner door or window of a house, or any part of a house or anything
therein, to execute a search warrant, if, after notice of his authority
and purpose, he is refused admittance or when necessary to liberate
himself or a person aiding him in the execution of the warrant.''
\113\ Driscoll, supra note 111, at 11.
\114\ Id.
\115\ Id.
---------------------------------------------------------------------------
Given the fact that the arrest and search warrants were based, in
part, on the evidence that the Davidians were in possession of illegal
automatic weapons, the subcommittees believe it was reasonable for the
ATF to have presumed that the Davidians might fire on them had they
announced their intent to serve the warrants in advance. The Davidians
own behavior in firing on the ATF agents proves the reasonableness of
that belief.
e. unresolved allegations
1. Who shot first?
Much has been made of the issue as to which side in the gun battle
shot first. Conflicting evidence on this point was presented to the
subcommittees by the ATF agents who were involved in the raid, the Texas
Rangers who conducted an investigation into the events of the raid
following the end of the standoff on April 19, and by the attorneys for
the Davidians.
ATF Special Agent John Henry Williams, a member of the SRT team
assigned to enter the front door of the Davidian Residence, and who
spoke to David Koresh at the front door of the Davidian residence as the
raid began, testified that he was convinced that the Davidians shot
first. As Williams testified before the subcommittees,
As we approached the front door, David Koresh came to the
front door dressed in black cammo fatigues.
As he closed the door, before we reached the door, one agent
reached the door, and at that point that is when the doors
erupted with gunfire coming from inside. It was 10 seconds or
more before we even fired back.\116\
---------------------------------------------------------------------------
\116\ Hearings Part 1 at 725.
Later on that same day, Williams testified at greater length about the
---------------------------------------------------------------------------
start of the gun battle.
Mr. Scott: Can you go through just very briefly, you were
walking up to the door, and how close to the door were you when
the shooting started?
Mr. Williams: About 10 feet from the door.
Mr. Scott: Was it your intention prior to that to--had Koresh
come out by then?
Mr. Williams: Yes.
Mr. Scott: And how far from the door were you when he closed
the door in your face?
Mr. Williams: Approximately 15 feet from the door.
Mr. Scott: And did you continue walking forward?
Mr. Williams: Yes.
Mr. Scott: And how close were you when the shooting started?
Mr. Williams: I--basically about 10 feet. After that, the
shooting started immediately after he closed the door.
Mr. Scott: Is there any question in your mind as to where the
shooting began?
Mr. Williams: None.
Mr. Scott: Thank you--excuse me, that was from the inside
coming out.
Mr. Williams: Yes, from the inside coming out.\117\
---------------------------------------------------------------------------
\117\ Id. at 756.
Senior officers of the Texas Rangers also testified as to the
findings of their investigation into these events after April 19. The
Rangers interviewed virtually everyone who was present at the Branch
Davidian residence on February 28, including several of the surviving
Davidians and all of the ATF agents who were present. As Texas Ranger
---------------------------------------------------------------------------
Captain David Byrnes testified to the subcommittees:
I believe the evidence was to me overwhelming in the trial
that the Davidians fired first. The cameraman and the reporter,
although very reluctantly, finally I believe conceded that. He
had broadcast that several times. He was more or less a hostile
witness. But in my mind there is no doubt who fired first.\118\
---------------------------------------------------------------------------
\118\ Hearings Part 2 at 150.
But the attorneys for the Davidians testified that they believed the gun
battle erupted as the result of an accidental discharge by one of the
ATF agents. Jack Zimmerman, attorney for David Koresh during the
---------------------------------------------------------------------------
standoff, testified
My personal opinion is that it was an accidental discharge by
one of the ATF agents as he was dismounting and that that was a
signal to open fire, which you haven't heard a testimony about.
Nobody asked them, what was the signal to open fire if you did
open fire? Who made that decision? What command was it?
But I believe that what the evidence from the trial, the
criminal trial, was that somebody off to the side heard,
somebody fired, and they testified that it came from behind them
. . . . I will point out to you from talking to the foreman of
the criminal trial jury, who heard 6 weeks of testimony by the
Government in 2 days of testimony from the defense, they could
not decide, he told me. The foreman of the jury told me they
could not decide because the evidence was in such conflict as to
who fired first.\119\
---------------------------------------------------------------------------
\119\ Hearings Part 2 at 26.
---------------------------------------------------------------------------
2. Were shots fired from the helicopters?
Allegations were leveled by the Davidians' attorneys that agents in
the National Guard helicopters used in the raid fired into the Branch
Davidian residence from the air. The Davidians' attorneys testified that
they were shown holes in the roof of the structure which appeared to
them to be bullet holes fired from the outside into the structure.
Phillip Chojnacki, who was riding in one of the helicopters,
testified, however, that no shots were fired from the helicopters. He
testified that ATF personnel on the helicopters were armed only with 9
millimeter sidearms and that he observed no shots fired from the
helicopters.\120\ His testimony is supported by the sworn statements of
each of the pilots of the helicopters, taken on April 20, 1993, that the
helicopters were unarmed and that no ATF agents fired from the
helicopters.\121\ Texas Ranger Captain David Byrnes also testified as to
what the Rangers' investigation concluded with respect to this issue. He
stated that the Rangers found no evidence that shots were fired from the
helicopters.\122\
---------------------------------------------------------------------------
\120\ Hearings Part 2 at 821-822.
\121\ See Documents produced to the subcommittees by the Department
of the Treasury T005723, T005730, T005731, at Appendix [hereinafter
Treasury Documents]. The Appendix is separately published.
\122\ Mr. McCollum: What about with regard to firing from the
helicopters? Did any of the ATF agents tell you that there had been
shots fired from the helicopters?
Mr. Byrnes: Quite to the contrary, we could find no evidence that
there was ever any shots fired. Our best evidence is that they peeled
off at about 300, 350 meters, because there was gunfire, and those
pilots were not going to fly over that residence.
Hearings Part 2 at 197.
---------------------------------------------------------------------------
The subcommittees reviewed videotape of the raid shot by agents in
the helicopters as well as videotape of the exterior of the helicopters
involved in the raid after the helicopters withdrew from the scene. At
no point in the videotape does any ATF agent fire a weapon from the
helicopters and the helicopters do not appear to have been equipped with
machine guns or other weaponry. The video tape reviewed, however, is not
continuous from the point from which the helicopters lifted off to the
point at which they landed. The fact that videotape was taken at some
points in the raid and not at others has not been explained to the
subcommittees.
It has been suggested that the bullet holes in the roof of the
Branch Davidian residence may have come from ATF agents on the roof who
were firing into the structure as the firefight continued. Jack
Zimmerman, the attorney for Branch Davidian Steve Schneider during the
standoff, conceded that this was a possible explanation for the presence
of the bullet holes during his testimony before the subcommittees.\123\
Given that there were several ATF agents who were on the roof of the
residence during the firefight with the Davidians, this explanation
seems plausible.
---------------------------------------------------------------------------
\123\ ``I couldn't tell you whether those rounds were fired from a
helicopter or not. All I could tell you is they come from the sky
downward. If somebody were standing on top of the roof shooting down
into the ceiling, it would look exactly the same way.'' Hearings Part 2
at 27 (statement of Jack Zimmerman).
---------------------------------------------------------------------------
f. the firing and rehiring of chojnacki and sarabyn
In October 1994, following the Treasury Department's review of the
failed raid against the Davidians, the Department terminated the
employment of the two senior raid commanders, Chojnacki and
Sarabyn.\124\ Both of them filed complaints with the Merit System Review
Board. While that complaints were pending, the Treasury Department
reached agreements with both Chojnacki and Sarabyn.\125\ As a result of
those agreements, both were rehired by the ATF. However, neither is
assigned to positions of authority over other agents and neither is
presently empowered to carry a weapon.
---------------------------------------------------------------------------
\124\ Memorandum to Charles D. Sarabyn from ATF Deputy Director,
``Decision to Remove from Position and from the Federal Service''
(October 26, 1994); Memorandum to Phillip J. Chojnacki from ATF Deputy
Director, ``Decision to Remove from Position and from the Federal
Service'' (October 26, 1994). Treasury Documents T00012743-T00013735.
\125\ Settlement Agreement, Phillip J. Chojnacki v. Department of
the Treasury, Case No. DA-0752-95-0126-I-1, Merit Systems Protection
Board, Denver Field Office (December 1994). Treasury Documents
T00013868-T00013874. Settlement Agreement, Charles D. Sarabyn v.
Department of the Treasury, Case No. DA-0752-95-0127-I-1, Merit Systems
Protection Board, Denver Field Office (December 1994). Treasury
Documents T00013428-T00013434.
---------------------------------------------------------------------------
At the hearings before the subcommittees, Treasury Department
officials were asked why a deal was struck with the two people on whom
the Treasury Department blamed the failure of the Davidian raid. No
sufficient answers to this question were provided. In light of the
Treasury Department Report's conclusion that ``raid commanders Chojnacki
and Sarabyn appeared to have engaged in a concerted effort to conceal
their errors in judgment,'' \126\ it is difficult to imagine any basis
upon which the rehiring of these two individuals can be justified by
Treasury Department officials.
---------------------------------------------------------------------------
\126\ Treasury Department Report at 193.
---------------------------------------------------------------------------
g. findings concerning the raid execution
1. Chojnacki and Sarabyn jointly share most of the responsibility
for the failure of the ATF raid against the Davidians. The blame for the
failure of the raid, and for the loss of life that occurred, must be
born by the senior ATF raid commanders, Phillip Chojnacki and Chuck
Sarabyn. They either knew or should have known that the Davidians had
become aware of the impending raid and were likely to resist with deadly
force. Nevertheless, they recklessly proceeded with the raid, thereby
endangering the lives of the ATF agents under their command and the
lives of those residing in the compound. This, more than any other
factor, led to the deaths of the four ATF agents killed on February 28.
2. The former Director and Deputy Director of the ATF bear a portion
of the responsibility for the failure of the raid. Former ATF Director
Stephen Higgins and former ATF Deputy Director Daniel Hartnett bear a
portion of the responsibility for the failure of the raid because they
failed to become involved in the planning for the raid. Had they done
so, they might have ensured that a procedure was in place through which
the undercover agent's information was relayed to them and they could
have acted upon it. At the very least, they share some blame for not
instilling in the senior raid commanders an understanding of the need to
ensure that secrecy was maintained in an operation of this type.
3. The planning for the raid was seriously flawed. There were
numerous problems with the ATF's planning for the raid. These failures
evidence the lack of experience and sophistication of the senior ATF
agents charged with developing the ATF's raid plan. They also suggest
that the ATF's senior officials failed to fully train or monitor the
actions of its senior operational commanders. Included among the
failures were:
The ATF's own internal guidelines resulted in less
qualified people being placed in command and control of the
operation when other, more qualified agents, were available for
these positions. The commanders also made strategic command and
control errors on raid day, placing themselves in positions that
hampered their ability to receive and act upon important
information that might have led them to postpone the raid or
redirect it to minimize casualties.
The raid plan itself lacked significant depth,
principally in that it contained almost no contingency planning
which might have minimized the losses suffered by the ATF on
February 28.
ATF commanders also failed to adequately train the
agents involved in the raid or to fully inform the Texas
National Guard of the intended role that its personnel would
play in the raid.
ATF commanders failed to reduce the raid plan to
writing, as was required by ATF internal guidelines. Had this
been done, and the written plan circulated to those involved in
the raid, the errors in the raid planning might have been
brought to light and corrected.
The activation of the ATF National Command Center
occurred only because it was required by the National Response
Plan, and not because it was to have any meaningful role in the
implementation of the raid plan. Had the senior ATF officials
written the National Response Plan in such as way as to ensure
that command center personnel would be briefed on the
significant details of the operation and would have the clear
authority to question on-scene commanders, the raid might have
been called off by command center officials asking about the
report made by Rodriguez.
4. The ATF agents executing the raid were not required to knock and
announce their intention to serve the arrest and search warrants. Given
that the arrest and search warrants were based, in part, on the evidence
that the Davidians were in possession of illegal automatic weapons, the
subcommittees believe it was reasonable for the ATF to have presumed
that the Davidians might fire on them had they announced their intent to
serve the warrants in advance. Accordingly, the subcommittees conclude
that the ATF was not required to knock and announce their intention to
serve either the arrest warrant or the search warrant because to do so
would have measurably increased the risk to the ATF agents involved.
5. The evidence suggests that the Davidians fired the first shots on
February 28, 1993. The subcommittees believe that the question of who
fired the first shot on February 28 cannot decisively be resolved given
the limited testimony presented to the subcommittees. It appears more
likely, however, that the Davidians fired first as the ATF agents began
to enter the residence.
6. The evidence presented to the subcommittees generally supports
the conclusion that no shots were fired from the helicopters at the
Branch Davidian residence. The subcommittees believe, however, that
there is insufficient evidence to determine with certainty as to who
fired the shots that made the bullet holes in the roof of the Davidian
residence.
7. After the raid failed, Clinton administration officials
inaccurately stated that the ATF raid commanders had been given explicit
orders to not proceed with the raid if the secrecy of the raid was
compromised. After the raid failed, Assistant Treasury Secretary Ronald
Noble attempted to lay the blame entirely on the ATF despite the fact
that Treasury officials, including Noble, failed to properly supervise
ATF activities leading to the raid. Moreover, Treasury officials, having
approved the raid, failed to clearly and concisely communicate the
conditions under which the ATF was to abort the raid.
8. The subcommittees find no justification for the rehiring of
Chojnacki and Sarabyn. Given that the largest portion of blame for the
failure of the raid against the Davidians must be born by Chojnacki and
Sarabyn, the subcommittees find no justification for their rehiring by
the ATF. The fact that senior Clinton administration officials approved
their rehiring indicates a lack of sound judgment on their part. It also
further begs the question as to whether there are facts not disclosed to
the subcommittees that led administration officials to agree to rehire
these men.
h. recommendations
Because the largest single cause of the ATF raid disaster was the
failure of ATF's senior field commanders to recognize or act upon the
undercover agent's information that the Davidians knew the ATF raid was
underway, there is no overriding recommendation which, if implemented,
would prevent similar tragedies from occurring in the future. The
subcommittees believe, however, that had more experienced ATF agents
been involved in the planning of this raid the many deficiencies in the
raid plan itself would have been avoided. Most importantly, the
subcommittees believe that had more experienced commanders been assigned
to this operation, the information that the Davidians knew that the raid
was impending would not have been ignored but, rather, understood for
what it was and acted upon accordingly. There are, however, a number of
steps that should be taken to correct other problems associated with the
failed raid and which, taken together, might help prevent similar
failures in the future.
1. Congress should conduct further oversight of the Bureau of
Alcohol, Tobacco and Firearms, the oversight of the agency provided by
the Treasury Department, and whether jurisdiction over the agency should
be transferred to the Department of Justice. Congress should consider
whether the lack of Treasury Department oversight of ATF activities in
connection with the investigation of the Davidians, and the failures by
ATF leadership during that investigation, indicate that jurisdiction
over the ATF should be transferred to the Department of Justice.
2. The ATF should revise its National Response Plan to ensure that
its best qualified agents are placed in command and control positions in
all operations. As discussed above, the ATF's National Response Plan in
effect in 1993 led to the placement of Chojnacki as incident commander
and Sarabyn as technical commander for the raid, when more experienced
ATF personnel were available. The subcommittees recommend that the
National Response Plan be revised to provide that incident commanders
for significant operations be selected by ATF headquarters personnel
from among the most experienced agents in the ATF, rather than based
upon any consideration of the agent who may have administrative
responsibility for a given geographic area. Likewise, the subcommittees
recommend that other senior positions in significant operations, such as
tactical commander, also be selected by ATF headquarters personnel from
ATF agents most experienced in these areas, regardless of geographical
assignment.
3. Senior officials at ATF headquarters should assert greater
command and control over significant operations. Just as the National
Response Plan should be revised to allow greater control by ATF
headquarters, the subcommittees recommend that ATF's most senior
officials be personally involved in the planning and oversight of every
significant operation. While the ATF did activate its National Command
Center in Washington just prior to the commencement of the ATF raid
against the Davidians, command center personnel played no actual role in
the planning or the implementation of the operation until after it went
awry.
The subcommittees recommend that ATF's most senior officials be
directly involved in the planning of all significant operations and
personally approve each operation in advance of its implementation.
Additionally, the subcommittees recommend that the National Command
Center be activated well before the commencement of an operation, that
it be staffed with persons experienced in tactical operations and
knowledgeable of the operation in question, and that these persons be
given the authority to suspend the operation or revise the operation
plan as the situation develops.
4. The ATF should be constrained from independently investigating
drug-related crimes. Given that the ATF based part of its investigation
of the Branch Davidians on unfounded allegations that the Davidians were
manufacturing illegal drugs, and as a result improperly obtained
military support at no cost, the subcommittees recommend that Congress
restrict the jurisdiction of the ATF to investigate cases involving
illegal drugs unless such investigations are conducted jointly with the
Drug Enforcement Administration as the lead agency.
V. Military Involvement in the Government Operations at Waco
U.S. military involvement is one of the least explored and most
misunderstood elements of the events that took place near Waco, TX in
1993. The Treasury Department Report dedicated only 3\1/2\ of 220 pages
to explaining the military's involvement, and the Department of Defense
and National Guard Bureau have only recently taken an interest in
addressing some of the military issues that Waco raised.
a. the expansion of military assistance to law enforcement
Historically in America, there has been a general principle that the
military should not be involved in civilian law enforcement. Congress
codified this principle by enacting the Posse Comitatus Act \127\ in
1878. The subcommittees have found that subsequent congressional actions
and legal cases have eroded the Posse Comitatus Act to an alarming
degree and blurred its legal restrictions.
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\127\ Posse Comitatus means ``the power or force of the county. The
entire population of a county above the age of fifteen, which a sheriff
may summon to his assistance in certain cases; as to aid him in keeping
the peace, in pursuing and arresting felon, etc.'' Black's Law
Dictionary (1st ed. 1891) (citing 1 William Blackstone, Commentaries
343).
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In determining whether the military assistance provided at Waco was
illegal, the subcommittees reviewed the current status of the Posse
Comitatus Act and other laws governing the use of the military in
civilian law enforcement, why changes in the laws have occurred and what
effects those changes have had on the use of the military in civilian
law enforcement.\128\ Additionally, the subcommittees have addressed the
common practice of Governors using National Guard (NG) personnel across
State lines.
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\128\ Roger Blake Hohnsbeen, Fourth Amendment and the Posse
Comitatus Act Restrictions on Military Involvement in Civil Law
Enforcement, 54 Geo. Wash. L. Rev. 404, 404 (1986).
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1. The Posse Comitatus Act
a. Overview of the law
The Posse Comitatus Act was enacted in the United Stated in 1878 in
response to the improper use of military troops in the South during the
post-Civil War Reconstruction period.\129\ The Posse Comitatus Act
provides:
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\129\ ``Until passage of the Posse Comitatus prohibition in 1878,
the improper use of troops became a common method of aiding revenue
officers in suppressing illegal production of whiskey; assisting local
officials in quelling labor disturbances; and insuring the sanctity of
the electoral process in the South by posting guards at polling
places.'' Clarence I. Meeks, III, Illegal Law Enforcement: Aiding Civil
Authorities in Violation of the Posse Comitatus Act, 70 Mil. L. Rev. 83,
90 (1975).
Whoever, except in cases and under circumstances expressly
authorized by the Constitution or Act of Congress, willfully
uses any part of the Army or the Air Force as a posse comitatus
or otherwise to execute the laws shall be fined not more than
$10,000 or imprisoned not more than 2 years, or both.\130\
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\130\ 18 U.S.C. Sec. 1385 (1988). A post-Waco amendment changed the
penalty portion to read, ``shall be fined under this title or imprisoned
not more than two years, or both.'' Violent Crime Control and Law
Enforcement Act of 1994 Sec. 330016(L), Pub. L. 103-322, 108 Stat. 2147.
However, as early as the Magna Carta, prohibitions against the use
of the military in civilian affairs were being established.\131\ These
prohibitions are based on the principle that the military should never
be employed against the citizenry of the Nation it supports and is
buttressed by the clear separation, in this country, between civilian
authority and military support for that authority. The clear separation
between civilian and military authority is embodied in the Declaration
of Independence \132\ and the U.S. Constitution.\133\
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\131\ Congressional Research Service, The Posse Comitatus Act &
Related Matters: The Use of the Military to Execute Civilian Law 3
(1995) (citing Magna Carta, ch. 39 (1215)).
\132\ The Declaration of Independence (U.S. 1776).
\133\ U.S. Const. Amend. II, III.
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Nevertheless, no one has ever been prosecuted for violating the
Posse Comitatus Act.\134\ Due in part to a creeping acceptance of
military involvement in law enforcement actions, the Posse Comitatus Act
has been invoked very rarely.\135\ Until the criminal cases arising from
the 1973 Indian uprising at Wounded Knee,\136\ civilian law enforcement
apparently relied upon military support without fear of recourse.\137\
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\134\ Meeks, supra note 129, at 128.
\135\ Id.
\136\ In the 1973 Wounded Knee uprising, a dissident Indian group
forcibly took control of the Wounded Knee Village on Pine Ridge
Reservation, SD. This group entered a U.S. Post Office by force, held
hostages and refused to allow Federal investigators into the area. In
support of Federal law enforcement agents, military personnel provided
an array of assistance, closely resembling the military assistance
provided to Federal law enforcement agents during the Waco incident.
\137\ Peter M. Sanchez, The ``Drug War:'' The U.S. Military and
National Security, 34 A.F. L. Rev. 1, 109 (1991).
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Specifically, at Wounded Knee, the Nebraska National Guard and U.S.
Air Force personnel conducted aerial reconnaissance photography of the
site, while the South Dakota National Guard maintained military vehicles
in the area of the siege.\138\ Two regular Army colonels (Title 10
personnel) \139\ were present at Wounded Knee as Defense Department
``observers''; however, these military personnel also provided ``advice,
urging and counsel . . . to Department of Justice personnel on the
subjects of negotiations, logistics and rules of engagement.'' \140\
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\138\ As at Wounded Knee, aerial reconnaissance photography and
maintaining military vehicles were also conducted by military personnel
at Waco.
\139\ These two soldiers at Wounded Knee were on active duty, i.e.
full-time duty in the active military service of the United States. See
10 U.S.C. Sec. 101 (d)(1), codified as amended by Pub. L. 102-484.
\140\ Meeks, supra note 129, at 121. Ironically, approximately 10
active duty Special Forces soldiers were present at Waco as
``observers'' during various stages of the post-raid siege, including
the day of the use of CS riot control agent and the fire. Additionally,
at the request of the commander of the FBI Hostage Rescue Team, two
senior Army Special Forces officers were present when Attorney General
Reno was briefed on the FBI's plan to end the standoff. Prior to the
meeting, one of those officers visited the site of the standoff by
helicopter accompanied by the HRT commander.
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Four criminal cases resulted from the Wounded Knee incident. Each
raised similar challenges to the military's involvement.\141\ The
diverse rulings on these challenges raised questions about the legality
of much of the military assistance being broadly and regularly provided
to law enforcement agencies. The courts in United States v. Banks and
United States v. Jaramillo found certain military activities to be in
violation of the Posse Comitatus Act, while the court in United States
v. Red Feather found the military involvement at Wounded Knee
permissible.\142\ The Red Feather court determined, that as long as
military assistance was passive or indirect, such assistance did not
violate the Posse Comitatus Act.\143\
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\141\ United States v. Jaramillo, 380 F. Supp. 1375 (D.Neb. 1974),
appeal dismissed, 510 F.2d 808 (8th Cir. 1975); United States v. Banks,
383 F.Supp. 368 (D.S.D. 1974); United States v. Red Feather, 392 F.Supp.
916 (D.S.D. 1975); United States v. McArthur, 419 F.Supp. 186 (D.N.D.
1976), aff'd sub nom., United States v. Casper, 541 F.2d 1275 (8th Cir.
1976), cert. denied, 430 U.S. 970 (1977).
\142\ Congressional Research Service, supra note 54, at 23 n.63. The
court in McArthur ruled that the Posse Comitatus Act is violated only
when the civilians are subjected to the direct ``regulatory,
proscriptive or compulsory'' aspect of the military involvement. United
States v. McArthur, 419 F.Supp. at 194.
\143\ Sanchez, supra note 137.
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In order to resolve questions raised by the Wounded Knee cases, and
at the urging of the Defense Department and Justice Department, Congress
adopted the above distinctions set forth by the Red Feather court \144\
and, in 1981, enacted a number of general exceptions to the Posse
Comitatus Act.\145\ In general, the 1981 exceptions authorized the
military to make available to civilian law enforcement agencies
information collected during military operations, training and advice,
the use of military equipment and facilities, and the use of some
Defense Department personnel.\146\ However, direct participation in law
enforcement activities like search, seizure and arrest was
prohibited.\147\
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\144\ Id. at 7 (citing to 10 U.S.C. Sec. 371-375, as subsequently
amended by Pub. L. No. 100-456, 102 Stat. 117 (1988)).
\145\ Congressional Research Service, supra note 54, 23. See also
Defense Department Authorization Act of 1982 Sec. 905, Pub. L. No. 97-
86, 95 Stat. 1114, as amended by National Defense Authorization Act
Fiscal Year 1989 Sec. 1004, Pub. L. No. 100-456, 102 Stat. 2043
(codified as amended at 10 U.S.C. Sec. 377).
\146\ 10 U.S.C., Ch. 18.
\147\ Id.
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b. The war on drugs
By the mid-1980's, there was little question that the Nation was
struggling with a major increase in illegal drug importation and use,
and Congress summoned a massive increase of resources to confront this
modern scourge. The fiscal year 1989 Department of Defense Authorization
Act significantly expanded the role of the National Guard in support of
law enforcement agencies.\148\ The following year, the role of the
military was expanded further in the fiscal year 1990 Department of
Defense Authorization Act which ``directed the U.S. Armed Forces, to the
maximum extent possible, to conduct military training in drug
interdiction areas.'' \149\
---------------------------------------------------------------------------
\148\ JTF-6 Operational Support Planning Guide (citing Pub. L. 100-
456, 102 Stat. 1218, 2042, codified at 10 U.S.C. Sec. 124 [See Documents
produced to the subcommittees by the Department of the Treasury T08786,
T08788, at Appendix [hereinafter Treasury Documents]. The Appendix is
published separately.] See also 32 U.S.C. Sec. 112 for the National
Guard.
\149\ JTF-6 Operational Support Planning Guide, Treasury Documents
T08786, T08788. See also 10 U.S.C. Sec. 371(b).
---------------------------------------------------------------------------
After Congress and the courts expanded permissible military
assistance to civilian law enforcement and the Defense Department
assumed the lead in the war on drugs, military assistance to law
enforcement greatly increased. This increased use of military personnel
is most noticeable with the National Guard because of fewer legal
restrictions on its use.
c. The National Guard and the Posse Comitatus Act under
current law
The National Guard, for reasons that are at least partially
historical, is not subject to the same legal restrictions placed on
active duty and reserve military personnel with regard to involvement in
civilian law enforcement.\150\ Having evolved from the State militia
concept, the National Guard holds the unique position as both a State
and a national military force. Thus, a National Guard member can wear a
U.S. Army or Air Force uniform, fly in a military aircraft, receive
Federal military pay and allowances, be covered by the Federal Torts
Claims Act and Federal military medical care. Yet, he or she can perform
this military service not only as a member of the U.S. Armed Forces, but
as a member of the State militia, having a Governor for a Commander-in-
Chief rather than the President of the United States.
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\150\ Rich, The National Guard, Drug Interdiction and Counterdrug
Activities, and Posse Comitatus: The Meaning and Implications of ``in
Federal Service,'' 35 Army Law. 1 (1994). Active and Reserve military
personnel are both subject to the proscriptions found in the Posse
Comitatus Act, while the Posse Comitatus Act only applies to National
Guard personnel when they have been called ``into federal service.''
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The ability of the National Guard to perform military service in
this capacity exists because the National Guard has three different
``statuses'' under the law. The first two are a Title 32 status (also
called ``state active duty'' status) and a ``pure state'' status. Under
either a Title 32 or ``pure state'' status, National Guard troops are
under the command and control of the Governor of their State and the
Posse Comitatus Act does not apply.\151\ However under current law,
while the National Guard is in a Title 32 status and under the command
and control of the Governor, it is still funded with Federal funds.\152\
An example of the National Guard being in a Title 32 status is when
National Guard personnel are conducting counterdrug operations.
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\151\ During the Waco incident, the National Guard was operating
under Title 32 or ``state active duty'' status as it provided assistance
to the ATF and FBI. By contrast, the status of the Nebraska and South
Dakota National Guard units during the 1973 Wounded Knee incident is
unclear, since the courts did not rule on whether the Posse Comitatus
Act applied to the National Guard personnel based upon their status. In
Jaramillo, the court did not indicate whether or not the National Guard
had been ``federalized.'' Similarly, the Red Feather court decided the
issue of improper military assistance based on whether the assistance
was ``active'' or ``passive,'' not on the legal status of the National
Guard units.
\152\ In a pure State status, no Federal funding occurs.
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The third National Guard status is called ``Title 10'' or ``federal
active duty'' status. Title 10 status occurs when Congress or the
President takes affirmative action to ``federalize'' a National Guard
unit as in the case of a natural disaster or civilian disturbance. Only
in a federalized status are National Guard troops under command and
control of the President of the United States. Under this status, the
Posse Comitatus Act applies.
Aside from the Title 10 status and Wounded Knee cases, the Posse
Comitatus Act has been widely interpreted as not applying to the
National Guard. Thus under current law, the leading interpretation of
the Posse Comitatus Act is that unless otherwise prohibited by policy
directive, regulation or State law, the National Guard can participate
actively in civilian law enforcement. The National Guard, however, does
implement similar proscriptions as the Posse Comitatus Act by regulation
even while in a Title 32 status.\153\
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\153\ Rich, supra note 150. The National Guard Bureau policy on
authorized support to law enforcement currently lists 16 approved
counterdrug missions. Any mission outside the parameters of the approved
list must receive Department of Defense approval. See also NGB Reg. 500-
2 and National Guard Counterdrug Coordinator's Handbook.
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d. Active duty personnel & the Posse Comitatus Act under
current law
Unlike the National Guard, active duty military personnel clearly
fall within the proscriptions of the Posse Comitatus Act. Any assistance
they provide to civilian law enforcement personnel must be either within
a statutory exception or expressly authorized by the U.S. Constitution.
Many of the statutory exceptions to the Posse Comitatus Act have
been enacted in the last 15 years and evolved from a desire to support
counterdrug efforts. Title 10 U.S. Code, Section 371 et. seq. outlines
the types of routine law enforcement assistance that active duty
military personnel may provide. Such assistance, includes equipment,
training and advice.
One of the most important issues for a civilian law enforcement
agency in deciding whether to seek and accept military assistance, is
whether the agency must reimburse the military for the assistance
provided. Generally, a civilian law enforcement agency must reimburse
the military for the cost of assistance, except under three
circumstances. Reimbursement may be waived if the assistance: (1) is
provided in the normal course of military training; \154\ (2) results in
a benefit to the unit providing the support ``that is substantially
equivalent to that which would otherwise be obtained from military
operations or training;'' \155\ or (3) is for counterdrug
operations.\156\
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\154\ 10 U.S.C. Sec. 377.
\155\ Id.
\156\ Pub. L. No. 102-190 Sec. 1088, 105 Stat. 1484 (1991). See also
Pub. L. No. 101-510 Sec. 1004, 104 Stat. 1629 (1990) and Pub. L. No.
101-189 Sec. 1212, 103 Stat. 1567 (1989).
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The counterdrug statutory waiver has come to mean in practice that
before a waiver of reimbursement can occur under the counterdrug
operation exception, the civilian law enforcement agency must
demonstrate the existence of a sufficient ``drug nexus'' in the
investigation.\157\ Although there is no defined standard for what
constitutes a ``drug nexus,'' it is essentially a quantum of credible
evidence that links an otherwise non-drug investigation with the
existence, or well-founded belief of the existence, of significant
illegal drug crimes.
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\157\ Office of the Department of Defense coordinator for Drug
Enforcement Policy and Support Memorandum, Subject: Priorities,
Policies, and Procedures for DoD CD Support to Domestic Law Enforcement
Agencies, 26 Jan. 95. Defense Documents 109-115, at 111.
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This waiver for counterdrug operations developed when Congress
created a specialized subset of military assistance for counterdrug
operations in 1990.\158\ Military assistance for counterdrug operations
provided under this statutory authority is on a non-reimbursable basis,
which means civilian law enforcement agencies do not have to reimburse
the military for the assistance. Instead, Congress provides a separate
fund to the military for this type of assistance. However, these funds
must be used solely for military assistance to civilian law enforcement
agencies for counterdrug operations. Significant portions of military
assistance provided to ATF and even the FBI were funded through these
counterdrug funds.
---------------------------------------------------------------------------
\158\ Id.
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A further formalization of the military's increased support to the
war on drugs involved the creation of Joint Task Forces \159\ between
civilian drug law enforcement agencies and the regular army. The Defense
Department created these Joint Task Forces to increase the coordination
between the military and civilian law enforcement agencies and to
increase the civilian agencies' accessibility to regular army assets for
counterdrug operations. For the Southwest border region where the ATF
investigation of the Davidians took place, Joint Task Force-Six (JTF-6)
\160\ was responsible for the operational support to ATF by active duty
military personnel.
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\159\ In early 1989, the Defense Department, at the direction of
Congress and the President, ``tasked four war fighting, regional
Commander's in Chief (CINCs) to carry out the drug interdiction mission.
The CINC of Atlantic Command (USCINCLANT) created Joint Task Force, JTF-
4 at the Key West Naval Air Station, Florida. The Pacific Command CINC
(USCINCPAC) established JTF-5 at the Alameda Naval Air Station,
California. And, the CINC for Continental Defense (USCINCFOR)
established JTF-6 at Fort Bliss, Texas.'' Sanchez, supra note 137, at
17.
\160\ JTF-6 was created in 1989 to serve as the planning and
coordinating (operational) headquarters for military assistance to
counterdrug operations of drug law enforcement agencies. JTF-6 is
located at El Paso, TX (Fort Bliss), and supports the Federal, State,
and local law enforcement agencies within the southwest border region.
It's region of responsibility mirrors that of Operation Alliance and
includes the States of Texas, New Mexico, Arizona, and Southern
California. [JTF-6 Operational Support Planning Guide, Treasury
Documents T08786-08789.] As of October 1, 1995, JTF-6's area of
responsibility expanded from the southwest border to the entire
continental United States, Puerto Rico and the U.S. Virgin Islands.
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JTF-6's Operational Support Planning Guide, in explaining its
support capabilities, states, ``No list of military support capabilities
is ever all-inclusive. Innovative approaches to providing new and more
effective support to law enforcement agencies are constantly sought, and
legal and policy barriers to the application of military capabilities
are gradually being eliminated.'' \161\ This quote from the JTF-6
Operation Support Planning Guide clearly and succinctly describes the
weakening of the Posse Comitatus Act proscriptions since the 1973
Wounded Knee cases. This observation foreshadowed the potential for
military involvement that was realized eventually at the 1993 Waco
events.
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\161\ JTF-6 Operational Support Planning Guide, Treasury Documents
T08786, 08791 (emphasis added).
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2. Interstate use of National Guard by Governors
There is a common practice among the States of using National Guard
personnel across State lines.\162\ States enter into memoranda of
agreement with one another which provide for the mutual use of National
Guard forces across State lines. However, these agreements raise several
legal concerns, particularly when the National Guard personnel are used
to assist civilian law enforcement.
---------------------------------------------------------------------------
\162\ The interstate use of National Guard personnel occurred at
Waco with the use of the Alabama National Guard in Texas.
---------------------------------------------------------------------------
Although a thorough examination of memoranda of agreement is far
beyond the scope of the subcommittees' Waco investigation, the most
significant legal issues arising from the use of memoranda of agreement
will be highlighted. While the National Guard has attempted to address
these legal issues, the Defense Department and the States have failed to
adequately address the potential legal problems which memoranda of
agreement raise. Two major legal concerns are (1) whether these
memoranda of agreement, or other similar agreements between states are
either a treaty, an alliance, or confederation in violation of the U.S.
Constitution, or at the very least a compact requiring congressional
ratification; and (2) whether these memoranda of agreement or similar
agreements attempt to supersede State constitutions and statutes without
legal authority.
a. States' power to enter memoranda of agreement
Only the Congress \163\ and the President (to the extent presently
delegated by law) have the power to use military force across State
lines. Many argue that any agreement between States to concert their
military forces for the use of force for any purpose constitutes a
treaty or an alliance.\164\ However, the U.S. Constitution specifically
prohibits States from entering into treaties in any instance,\165\ and
into alliances or confederations without congressional consent.\166\
Applying such an argument would mean that the use of the National Guard
for law enforcement purposes across State lines is strictly prohibited
by the U.S. Constitution. The National Guard Bureau takes the position
that such interstate use of force is prohibited, but the contrary
opinion is advanced by the Defense Department General Counsel and the
Army Staff Judge Advocate.\167\
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\163\ ``The Congress shall have Power . . . to provide for calling
forth the Militia to execute the laws of the Union, suppress
insurrections, and repel invasions.'' U.S. Const. art. I, Sec. 8, cl.
15.
\164\ The U.S. Supreme Court, in U.S. Steel Corp. v. Multistate Tax
Commission, 434 U.S. 452 n.12 (1978) discussed the distinctions between
treaties, compacts and mere agreements. ``Military alliances'' are cited
as examples of treaties. The Court quotes Story to the effect that:
``Treaties, alliances, and confederations . . . generally connote
military and political accords and are forbidden by the States. Compacts
and agreements, such as questions or boundary; interests in land situate
in the territory of each other; and other internal regulations for the
mutual comfort and convenience of States bordering each other.'' 434
U.S. at 464. See also 32 U.S.C. Sec. 109 (b) which infers that States do
not have the authority to employ their militia (i.e., the National
Guard) outside their boundaries, ``Nothing in this title limits the
right of a State or Territory . . . to use the National Guard or its
defense forces authorized by subsection (c) within its border in time of
peace, or prevents it from organizing and maintaining police or
constabulary.''
\165\ The treaty-making power is exclusively vested by the
Constitution, in the President, with the advice and consent of the
Senate. U.S. Const. art. 2, Sec. 2, cl. 1.
\166\ U.S.C.A. Const. art. I, Sec. 10, cl. 1.
\167\ National Guard Draft Legal Memorandum, ``Cross Border use of
National Guard for Law Enforcement: Constitutional Issues and Need for
Congressional Ratification of Interstate Agreements'' (Received by
subcommittees on March 12, 1996).
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The National Guard Bureau further argues, also contrary to the
Defense Department General Counsel and the Army Staff Judge Advocate,
that even if such agreements among States are not treaties, they are at
the very least compacts which require the consent of Congress.\168\ If
an agreement among States results in a potential encroachment on Federal
authority or a tendency to enhance State power, then it would constitute
a compact requiring congressional consent.\169\ The National Guard
Bureau argues that these National Guard memoranda of agreement enhance
State power by allowing Governors to command militia employed for force
across State lines, and therefore, encroach on the President's power to
either deny or command and control such interstate use. Thus, the
National Guard Bureau believes they require congressional
ratification.\170\
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\168\ U.S. Const. art. I, Sec. 10, cl. 3. ``Not all agreements
between states are subject to strictures of this clause; application of
this clause is limited to agreements that are directed to the formation
of any combination tending to increase the political power in the states
and which may encroach on or interfere with the just supremacy of the
United States.'' U.S. Steel Corp. v. Multistate Tax Commission, 434 U.S.
452 n.43 (1978) (citing U.S. Const. art. 1, Sec. 10, cl. 3). See also,
Virginia v. Tennessee, 148 U.S. 503 (1893).
\169\ ``Appellants further urge that the pertinent inquiry is one of
potential, rather than actual, impact on federal supremacy. We agree.''
U.S. Steel Corp. v. Multistate Tax Commission, 434 U.S. 452, 472 (1978).
This is the current position of the National Guard Bureau. However, the
position of the Defense Department and the Army SJA is that these
agreements violate the Compact Clause of the Constitution only if they
actually encroach of Federal power or enhance State power.
\170\ National Guard Draft Legal Memoranda, supra note 167.
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Currently, none of the memoranda of agreement (or compacts)
involving the use of National Guard personnel across State lines for law
enforcement purposes have been ratified by Congress. Although the
Southern Governors' Association recently amended its Southern Regional
Emergency Management Assistance Compact at the advice of the National
Guard Bureau, to preclude the use of force across State lines and seek
congressional approval of the compact, most of the interstate National
Guard assistance to law enforcement agencies is occurring under the
guise of memoranda of agreement, not congressionally approved compacts.
Moreover, this issue expands beyond direct involvement in law
enforcement actions, such as Waco, to the use of the National Guard for
interstate assistance in disaster \171\ and emergency relief. In fact,
the issue has arisen with respect to the proposed use of non-Georgia
National Guard units to assist the Georgia National Guard during the
1996 Summer Olympics, in Atlanta, GA.
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\171\ The subcommittees have been informed during meetings and
follow-up discussion with National Guard Bureau personnel that the
Bureau opposed the loan of Puerto Rico National Guard personnel to the
Virgin Islands to suppress looting during Hurricane Marilyn based on
these constitutionality concerns.
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b. Memoranda of agreement may attempt to supersede State law
without legal authority
During the ATF investigation of the Branch Davidians, National Guard
assistance to ATF came not only from the Texas National Guard, but from
the Alabama National Guard.\172\ At the behest of the ATF, the Adjutant
General of the Texas National Guard requested and received support from
the Alabama National Guard to take aerial photographs. Those aerial
photographs were taken on January 14, 1993. This assistance was
authorized by a ``memorandum of agreement'' between the Adjutant
Generals of the Texas and Alabama National Guards which simply provided
for the use of the Alabama National Guard at the request of the Texas
Adjutant General. However, a review of the State laws of both Texas and
Alabama raises legal concerns with the legal authority for conducting
this interstate National Guard operation.
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\172\ After Action Report of Texas National Guard Counterdrug
Support in Waco, TX as (April 29, 1993). [See Documents produced to the
subcommittees 2344, at Appendix [hereinafter Defense Documents]. The
Appendix is published separately.]
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Texas law requires that, ``[a] military force from another state,
territory, or district, except a force that is part of the United States
armed forces, may not enter the state without the permission of the
governor.'' \173\ Yet, National Guard personnel who were involved in
post-raid National Guard investigations of the Waco incident have stated
that Governors Richards did not approve the use of the Alabama National
Guard. Military documents indicate that Governor Richards was unaware of
the extent of even the Texas National Guard's involvement until after
the failed raid occurred.
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\173\ Tex. Code Ann., Title 4, Sec. 431.001.
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An examination of Alabama law indicates that the Alabama National
Guard had no authority to conduct military operations outside Alabama
because the Governor's authority over the Alabama National Guard appears
only to extend to the State's boundaries.\174\ Thus, it appears that the
Alabama National Guard entered and conducted military operations in
Texas without the proper authority to do so.
---------------------------------------------------------------------------
\174\ Ala. Code Sec. 31-2-7.
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If the Alabama Governor's command and control authority ended at the
Alabama State line and Gov. Richards did not approve the Alabama
National Guard's entrance into the State of Texas, then several
questions are raised: Which governor had command and control of the
Alabama National Guard unit? Who (Texas, Alabama or the Federal
Government) would have been liable for claims of injury and property
damage had any occurred? If the Alabama unit is considered to be
operating outside its scope of employment, would its personnel lose
Federal Torts Claims Act's protection against personal liability? And,
would the National Guard personnel risk losing their military health
care and other military benefits in the event of an accident?
Memoranda of agreement currently used fail to address the
intricacies which State laws present and they do not appear to have
legal authority to supersede State constitutions and statutes. Because
State laws differ, these questions must be addressed on a case by case
basis if States are going to engage in the interstate use of National
Guard personnel.
b. the bureau of alcohol, tobacco and firearms' request for military
assistance and the military assistance actually provided
The pre-raid military assistance in Waco was provided through active
duty and National Guard counterdrug units based on an alleged drug
nexus. Much of the post-raid military assistance to the FBI and ATF also
came from counterdrug units and funds. Central to understanding how the
military became involved in the Waco matter is an understanding of how
ATF's initial request for military assistance, based on alleged drug
involvement, progressed.
1. Overview
a. The process for requesting military assistance along the
southwest border
Military support to counterdrug operations along the Southwest
border of the United States is designed ``to assist law enforcement
agencies in their mission to detect, deter, disrupt, and dismantle
illegal drug trafficking organizations.'' \175\ Thus, military support
acts as a ``force multiplier,'' allowing law enforcement agencies to
focus on ``interdiction seizure actions.'' \176\
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\175\ JTF-6 Operational Support Planning Guide, Treasury Documents
T08786.
\176\ Id. at T08790.
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When a drug law enforcement agency \177\ requests counterdrug
military assistance along the Southwest border, that request is received
and reviewed by Operation Alliance, which acts as the
clearinghouse.\178\ The request is then coordinated with support
organizations such as JTF-6 \179\ , the North American Aerospace Defense
Command (NORAD),\180\ the Regional Logistics Support Office \181\ and
the pertinent National Guard. Operational support is provided as a joint
effort by JTF-6, NORAD and the National Guard.\182\ Non-operational
support which would include, but is not limited to, equipment,
institutional training, and use of facilities would be provided by the
Regional Logistics Support Office.\183\
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\177\ A drug law enforcement agency is a law enforcement agency that
has jurisdiction over drug laws. ATF was authorized to investigate
narcotics traffickers who use firearms and explosives as tools of their
trade, especially violent gangs.
\178\ Operation Alliance is the clearinghouse for all civilian law
enforcement requests for military support along the Southwest border.
Operation Alliance reviews all requests and coordinates the requests of
Federal, State and local agencies, and determines the appropriate
military agency to provide the support. JTF-6 Operational Support
Planning Guide, Treasury Documents T08786, 08790.
\179\ See note 160 and accompanying text.
\180\ NORAD incorporated the counterdrug mission into its command
structure in 1989.
\181\ The Regional Logistics Support Organizations are under the
direct supervision of the Office of the Defense Department Coordinator
for Drug Enforcement Policy and are the primary point of contact for
Drug Law Enforcement Agency requests for equipment i.e., non-operational
support.
\182\ JTF-6 and NORAD employ active duty military personnel. The
State National Guard personnel are in a Title 32 status.
\183\ JTF-6 Operational Support Planning Guide, Treasury Documents
T08786, 08789.
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To receive assistance through Operation Alliance and from these
organizations, the civilian law enforcement investigation must involve
criminal violations of U.S. drug laws, i.e., have a ``drug nexus.''
Having initiated 232 Operation Alliance investigations through fiscal
year 1989,\184\ ATF was no stranger to Operation Alliance's counterdrug
mission and its drug nexus prerequisite. In fact, documents dated as far
back as March 15, 1990, designated ATF Special Agent Sarabyn, and ATF
Special Agent Pali, the ATF coordinator for Operation Alliance during
the Branch Davidian investigation, as ATF coordinators for military
assistance.\185\
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\184\ Hearings before the Subcommittee on the Treasury, Postal
Service, and General Government Appropriations of the House Committee on
Appropriations, 101st Cong., 2d Sess. 688, 695 (1991) (statement of
Stephen E. Higgins, Director, Department of Treasury, Bureau of Alcohol,
Tobacco and Firearms).
\185\ Memorandum from Special Agent Eddie Pali, Tactical Operations
Coordinator to the ATF SAC's in Dallas, Houston, and Los Angeles (March
15, 1990). Treasury Documents T006661.
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b. Chronology of ATF's request
The chronology of ATF's request for military assistance provides
insight into how early ATF wanted military assistance, how the military
and ATF became concerned with the drug nexus issue, and how the
military's concerns changed the scope of military assistance provided.
As early as November 1992, ATF agents were discussing the need for
military support with Lt. Col. Lon Walker, the Defense Department
representative to ATF.\186\ In his ``summary of events'' \187\ November
entry, Lt. Col. Walker specifically states that, at that time, he was
not told of any drug connection.\188\
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\186\ Lt. Col. Lon Walker's summary of events. Treasury Documents
T007884.
\187\ Id.
\188\ Id.
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By December 1992 (almost 3 months before the raid), ATF agents were
requesting Close Quarters Combat/Close Quarters Battle \189\ (CQB)
training by U.S. Army Special Forces soldiers for ATF agents.\190\ A
basic CQB course takes a minimum of 2 months and advanced CQB training
takes a minimum of 6 months. Moreover, CQB is the type of specialized
training a terrorist or hostage rescue team such as the FBI Hostage
Rescue Team would use. CQB is also a perishable skill requiring
frequent/continuous training that ATF, as an agency, is not designed to
maintain or utilize. Somewhat surprisingly, neither the documents from
the Treasury investigation, nor the Treasury Report, itself, never refer
to this request.
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\189\ Close Quarters Battle involves ``combative techniques which
include advanced marksmanship, use of special purpose weapons,
munitions, demolitions and selective target engagement conducted by
small, specially trained units against static or halted man-made targets
to defeat a hostile force with a minimum of collateral damage.''
Headquarters, U.S. Army Special Forces Command, Policy Letter on Close
Quarters Combat (CQC) Training (24 November 1993). The terms CQC and CQB
have been used interchangeably for a number of years. CQC is the
military doctrinally correct term. However, in this Report the
subcommittees will continue to use CQB since that was the term used
throughout the post-Waco investigations and the congressional hearings.
\190\ After discussions between the Special Operations Command and
Special Forces Command had taken place regarding U.S. Army Special
Forces Command (Airborne) participation in conducting CQB/SOT for drug
law enforcement agencies, the Commander of the U.S. Army Special
Operations Command (USASOC) informed the Commander of JTF-6 by military
message, dated 4 January 93 (within a very close proximity to ATF's
request for CQB), that the USASOC would provide CQB Special Operations
Training CQB/SOT training to law enforcement agencies. ``It is
anticipated that CQB/SOT training support requests may be filled by the
U.S. Army John F. Kennedy Special Warfare Center and School (USAJFKSWCS)
or other units that include CQB/SOT as part of their METL.'' The
memorandum goes on to state that USASOC and USASFC(A) have only agreed
to provide CQB/SOT instruction to the U.S. Border Patrol Tactical Unit
(BORTAC).
---------------------------------------------------------------------------
However, one military document furnished to the subcommittees as
part of their document request specifically states that no written
documentation is available on this extraordinary request by ATF for CQB
training.\191\ This is the case despite ongoing discussions in 1992 and
early 1993 within the senior ranks of the U.S. Army Special Operations
Command regarding the prudence of making SOT \192\ /CQB training
available to civilian law enforcement and foreign military
personnel.\193\ These discussions are significant because they again
foreshadow the potential use in civilian law enforcement of highly
specialized military training, designed and intended for military
operations.
---------------------------------------------------------------------------
\191\ ``SOF Assistance to Federal Law Enforcement in Waco, Texas.''
Defense Documents D-1116A.
\192\ SOT stands for Special Operations Training. Although SOT is
not an official military term for Special Operations Training, i.e., it
is an acronym for a course taught at the U.S. Army John F. Kennedy
Special Warfare Center and School (USAJFKSWCS), it will be used here to
identify Special Operations Training because that is how it is used by
the military documents referred to by the subcommittee investigators.
See Headquarters, USASFC (A) Policy Letter on Close Quarters Combat
Training (24 Nov. 1993) (unnumbered) for discussion on proper usage of
SOT.
\193\ See memorandum of 3rd Special Forces Group, Headquarter's
Memorandum on Special Operations Training and Close Quarters Battl (21
Sept. 1992) (unnumbered); See also memorandum of U.S. Army Special
Forces Command (Airborne) on USASFC policy for conducting counterdrug
operations in the continental United States (23 Feb. 1993) (unnumbered)
and Headquarters U.S. Army Special Forces Command (Airborne) Policy
Letter on Close Quarters Combat Training (24 Nov. 1993) (unnumbered).
---------------------------------------------------------------------------
On December 4, 1992, several ATF Special Agents, including the SAC's
of the Dallas and Houston ATF offices, met at Houston's ATF field office
for the first time to discuss the Waco investigation.\194\ In attendance
were SAC Phillip J. Chojnacki; SAC Ted Royster; Assistant Special Agent
in Charge James Cavanaugh; Resident Agent in Charge Earl K. Dunagan;
Special Agents Aguilera, Lewis, Petrilli, Buford, K. Lattimer, Williams,
Carter, and John Henry.\195\ Also present at that meeting was Lt. Col.
Lon Walker, the Defense Department representative to ATF. Lt. Col.
Walker's notes of the meeting reveal that he explained to those present
``that the military probably could provide a great deal of support and
[that he] suggested things like aerial overflight thermal photography.''
\196\ Lt. Col. Walker's notes also state that he explained ``that
without a drug connection the military support would be on a
reimbursable basis.'' \197\ This reference to reimbursement is
significant because it reveals that military aid was, as of that date,
understood to require reimbursement by ATF unless a drug nexus could be
identified and articulated with sufficient specification to warrant
military aid on a non-reimbursable basis. Lt. Col. Walker's December 4th
entry is followed by a handwritten note that states ``Aguilera said
there was no known drug nexus.'' \198\
---------------------------------------------------------------------------
\194\ Lt. Col. Lon Walker's summary of events. Treasury Documents
T007884.
\195\ Memorandum from Colleen Callahan and Robert Tevens to Geoff
Moulton and Lew Merletti, ``Chronology and Witnesses Re: Military
Support of ATF'' (July 14, 1993). Treasury Documents T004589.
\196\ Lt. Col. Lon Walker's summary of events. Treasury Documents
T007884.
\197\ Id.
\198\ Id.
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On December 11, 1992, Special Agent Jose G. Viegra, the Resident in
Charge (RAC) of the Austin, TX ATF Office, met with representatives for
the Texas Governor's Office about the role of the military in any
potential ATF action involving the Davidians.\199\ Representatives of
the Texas Governor's Office present at the meeting were William R.
Enney, Texas State Interagency Coordinator and his assistant Lieutenant
Susan M. Justice, Assistant Interagency Coordinator of the National
Guard Counterdrug Support Program.\200\
---------------------------------------------------------------------------
\199\ Memorandum from Colleen Callahan and Robert Tevens to Geoff
Moulton and Lew Merletti, ``Chronology and Witnesses Re: Military
Support of ATF'' (July 14, 1993). Treasury Documents T004589.
\200\ Id. Mr. Enney was designated by Texas Governor Richards as the
Texas State representative for Defense Department coordination of the
Texas National Guard Counterdrug Support Program.
---------------------------------------------------------------------------
This meeting was requested by ATF to discuss specifically what types
of military assistance were available to the ATF for its raid on the
Branch Davidian residence \201\ in Waco, TX. During the meeting, Special
Agent Viegra was told that military assistance through Operation
Alliance would not be available unless there was a ``drug nexus.'' That
meeting constituted the second time in 8 days that ATF agents inquiring
about military assistance were told of a drug nexus prerequisite. At the
December 11, 1992, meeting, Enney asked the ATF agents to determine
whether a drug nexus did in fact exist.
---------------------------------------------------------------------------
\201\ The Branch Davidian residence was termed a ``compound'' by
ATF, during the investigation, and the media and other commentators
subsequently adopted this militaristic term for a fortified or highly
secure structure.
---------------------------------------------------------------------------
Three days after their meeting with ATF, the Texas counterdrug
representatives received a facsimile of a letter dated December 14,
1992, on ``Houston SAC letterhead'' from the RAC of the Austin ATF
office, Earl K. Dunagan, requesting military assistance from the Texas
Counterdrug Program.\202\ The military assistance requested from the
Texas National Guard was for aerial reconnaissance photography,
interpretation and evaluation of the photos, and transportation of ATF
agents aboard the aircraft during the reconnaissance.\203\ Although the
request did not mention suspected drug violations (drug nexus), as would
be required to secure non-reimbursable assistance or military assistance
from a counterdrug unit, Lt. Col. Pettit, the Texas Counterdrug Task
Force Commander, initialed his approval on the request.\204\
---------------------------------------------------------------------------
\202\ Memorandum from Colleen Callahan and Robert Tevens to Geoff
Moulton and Lew Merletti, ``Chronology and Witnesses Re: Military
Support of ATF'' (July 14, 1993). Treasury Documents T004589, T004590.
\203\ Id.
\204\ Id.
---------------------------------------------------------------------------
Lt. Col. Pettit told National Guard investigators that he provided
his approval because the request required another person's approval as
well.\205\ However this decision, in itself, raises several unanswered
questions. Did Lt. Col. Pettit assume a drug nexus existed or that one
was not needed? Did he believe that the request should be approved
despite the absence of legally required drug nexus? Or did he believe
that ATF would reimburse the National Guard? These questions repeat
themselves throughout the approval process, and are raised here to
illustrate the difficulties encountered in disentangling a past approval
of military aid involving a drug nexus.
---------------------------------------------------------------------------
\205\ Meeting with Army National Guard Brigadier General Sagsveen,
in Washington, DC (October 19, 1995).
---------------------------------------------------------------------------
Two days after Lt. Col. Pettit's approval, Special Agent Aguilera
informed Lt. Col. Walker on December 16, 1992, that he received a
facsimile from Mark Breault in Australia suggesting the existence of a
methamphetamine lab at the Branch Davidian residence.\206\ Mr. Breault
was a former Branch Davidian who left the group on bad terms, and
exhibited strong personal animosity toward Koresh and several of the
Davidians.
---------------------------------------------------------------------------
\206\ Memorandum from Colleen Callahan and Robert Tevens to Geoff
Moulton and Lew Merletti, ``Chronology and Witnesses Re: Military
Support of ATF'' (July 14, 1993). Treasury Documents T004589. This
document lists the date as Dec 17th. Lt. Col. Walker's Waco Summary of
Events lists the date as the 16th. Treasury Documents T007884.
---------------------------------------------------------------------------
The following day, December 17, 1992, SAC Phillip Chojnacki held a
meeting in his office with Special Agent Ivan Kallister, Special Agent
Davey Aguilera, and Lt. Col. Walker regarding the Waco
investigation.\207\ According to ATF, Lt. Col. Walker told SAC Chojnacki
during the meeting that the Defense Department could provide non-
reimbursable military support if there is a ``suspicion of drug
activity.'' \208\ Aguilera was subsequently instructed to ``actively
pursue information from his informants about a drug nexus.'' \209\
Additionally, ATF Intelligence Research Specialist Sandy Betterton
searched criminal records to determine if Branch Davidians had ``some''
prior drug offenses.\210\ It later was determined that only one Branch
Davidian had a prior narcotics conviction.\211\
---------------------------------------------------------------------------
\207\ Memorandum from Colleen Callahan and Robert Tevens to Geoff
Moulton and Lew Merletti, ``Chronology and Witnesses Re: Military
Support of ATF'' (July 14, 1993). Treasury Documents T004589.
\208\ Id.
\209\ Id.
\210\ Id.
\211\ Id.
---------------------------------------------------------------------------
January 6, 1993 was the first National Guard overflight of the
Branch Davidian residence and their auto body shop, called the ``Mag
Bag.'' This overflight was conducted by the Texas National Guard
Counterdrug unit in a UC-26 counterdrug aircraft. Forward Looking
Infrared (FLIR) \212\ videotape taken during the overflight indicated a
``hot spot'' inside the residence and three persons outside behind the
residence whom ATF designated as ``sentries.'' \213\ The Texas National
Guard conducted five more reconnaissance/surveillance overflights over
the Branch Davidian property from February 3, 1993, to February 25,
1993. These overflights were conducted to ``search for armed guards and
drug manufacturing facilities.'' \214\
---------------------------------------------------------------------------
\212\ A FLIR, also called a Thermal Imaging System (TIS), is a type
of photography which images thermal heat sources.
\213\ Memorandum from Special Agent Robert Tevens, ``Chronology and
Witnesses Re: Military Support of ATF'' (July 14, 1993). Treasury
Documents T004589, T004591.
\214\ Treasury Department Report at 44 n.18.
---------------------------------------------------------------------------
On the same day as the first National Guard overflight, January 6,
1993, Richard Garner, Chief of Special Operations Division of ATF,
drafted another request on ATF Headquarters letterhead directly to
Colonel Judith Browning, Director of Plans and Support, of the Office of
the Department of Defense Coordinator for Drug Enforcement Policy and
Support.\215\ ATF requested the loan of various office equipment, a
refrigerator, cots and sleeping bags to be made available on January 11,
1993. The letter states that the ATF was investigating violations of
``firearms and drug laws'' and requested the equipment as ``part of
Defense Department support for counterdrug effort.'' Col. Browning
responded by letter on January 15 approving the support to be provided
by the Regional Logistics Support Office \216\ in El Paso, TX.\217\ The
same questions asked of Lt. Col. Pettit above must be asked here of Col.
Browning. Here, as with Lt. Col. Pettit, key documentation justifying
the deployment of non-reimbursable military aid on the basis of a proven
or suspected drug nexus is missing. Yet, Col. Browning approved the
request and directed further ATF requests to be made directly to the
Regional Logistics Support Office in Texas.
---------------------------------------------------------------------------
\215\ Treasury Documents T004601, T004602. The proper procedure for
requesting military assistance along the Southwest border is to go
through Operation Alliance. Letter from Operational Alliance to Special
Agent Eddie Pali, ATF Coordinator for Operation Alliance (January 26,
1990). Treasury Documents T006663-006664. Despite ATF not following this
process, documents provided by Treasury indicate their agents were aware
the procedural requirements. Id.
\216\ See note 181.
\217\ Treasury Documents T004603.
---------------------------------------------------------------------------
Within a week after Col. Browning's response, Garner sent a further
request to Major Victor Bucowsky, the Officer-in-Charge of the Regional
Logistics Support Office requesting an MOUT \218\ site for Special
Response Team training, driver training and maintenance support for
Bradley fighting vehicles, seven Bradley fighting vehicles, and on-call
support in the event a siege occurred.\219\ This was the largest request
for assistance in Regional Logistics Support Office's history and
eventually had to be supplied by Texas National Guard because the
Regional Logistics Support Office was unable to handle a law enforcement
request of such magnitude.\220\
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\218\ MOUT stands for Military Operations on Urbanized Training
``which would include all military actions that are planned and
conducted on a terrain complex where man-made construction impacts on
the tactical options available to the commander. These types of
operations are characterized by large-scale offensive and defensive
operations. The primary objective is to seize and hold ground using all
available means. This often results in extensive damage to the area.''
Memorandum from U.S. Army Special Forces Command regarding Policy Letter
on Close Quarters Combat (CQC) Training (November 24, 1993).
\219\ Treasury Documents T004606 (dated January 22, 1993), T004612.
Treasury Document T004610 is a duplicate of the letter except it is
dated January 21, 1993 and has handwritten notes along the border. The
notes along the border appear to indicate that JTF-6 was responsible for
the SRT training and ``No, T-32 TX'' is written next to the Bradley
training (T-32 apparently refers to Title 32).
\220\ Memorandum of interview from Special Agent Robert Tevens for
the Waco Administrative Review (September 14, 1993). Treasury Documents
T005397, T005399.
---------------------------------------------------------------------------
On February 2, 1993, Operation Alliance made a request to the
Commanding General of JTF-6 for the use of Special Forces personnel
assigned to his organization.\221\ Lt. Col. Philip W. Lindley,\222\ the
U.S. Army Special Forces Command Staff Judge Advocate, was notified of
this request and advised JTF-6,
---------------------------------------------------------------------------
\221\ Memorandum from Colleen Callahan and Robert Tevens to Geoff
Moulton and Lew Merletti, ``Chronology and Witnesses Re: Military
Support of ATF'' (July 14, 1993). Treasury Documents T004589, T004590.
\222\ At the time of the Waco incident Philip Lindley served as a
Major in the U.S. Army. However, since that time, he has been promoted
and testified before the subcommittees with the rank of the Lieutenant
Colonel. He will be referred to as Lt. Col. Lindley throughout the
Report.
. . . that Rapid Support Unit (RSU) \223\ assistance in actual
planning and rehearsal of proposed ``takedown'' could violate
posse comitatus law, expose RSU to liability. [A q]uestion also
arises as to appropriateness of RSU giving non-METL, \224\ i.e.,
SOT/CQB training to ATF.\225\
---------------------------------------------------------------------------
\223\ A Rapid Support Unit (RSU) is comprised of a Special Forces
Company with attached aviation asset. Rapid Support Unit Description
Paper. Defense Documents D-1353. The subcommittees are aware of no RSU
aviation assets being used at Waco. ``RSU missions are characterized by
small, short duration, interdiction missions normally limited to border
areas.'' Id. (emphasis added). The paper states under Mission Parameters
that ``the mission must be related to the Special Operations Mission
Essential Task List (wartime tasks) and should be intel-prompted.'' Id.
\224\ Mission Essential Task List (METL) includes soldiers' wartime
tasks, i.e. what skills a soldier has been trained in and capable of
training others in. Special Forces units who were assigned to Operation
Alliance were restricted to their METL training law enforcement agents.
\225\ Defense Department Documents D118.
However, there again is no written documentation of ATF's request for
this highly controversial training.
Within days, the training mission by Special Forces soldiers was
revised to include only coordination on Army ranges and teaching ATF how
to develop an operations order.\226\
---------------------------------------------------------------------------
\226\ Id.
---------------------------------------------------------------------------
c. Pre-raid military assistance requested by ATF and
assistance actually received
The military assistance provided to ATF can be separated into four
areas: (1) surveillance overflights by counterdrug National Guard units
in January and February 1993; (2) training by Special Forces soldiers
assigned to JTF-6 for counterdrug missions in late February 1993; (3)
direct support by Texas National Guard counterdrug personnel who
conducted an aerial diversion the day of the raid on February 28, 1993;
and (4) post-raid support to FBI and ATF.
Six surveillance overflights were conducted by counterdrug National
Guard units. Aerial photography missions by the Texas National Guard
began on January 6, 1993.\227\ The January 6 missions and subsequent
missions on February 3, 18, and 25, 1993, were taken by a Texas National
Guard Counterdrug UC-26 aircraft.\228\ On January 14, 1993, aerial
photographs were taken by the Alabama National Guard.\229\ And, on
February 6, 1993, the Texas National Guard provided infrared video
(FLIR) and aerial photography in a Counterdrug UC-26 aircraft.\230\
---------------------------------------------------------------------------
\227\ Texas National Guard After-Action Report (April 29, 1993).
Defense Documents D2344 at D2346.
\228\ Id.
\229\ Id.
\230\ Id.
---------------------------------------------------------------------------
ATF's request for training of ATF agents by Special Forces soldiers
went through several alterations before the actual training took place.
Although ATF initially requested Bradley fighting vehicles, SOT/CQB
training, on-site medical evacuation assistance and planning assistance,
legal restrictions caused the ATF request to be scaled down.\231\ A
Special Forces Rapid Support Unit, assigned to Operation Alliance,
trained ATF on 25-27 February 1993, in company-level tactical C2,
Medical Evacuation training, IV ABC's,\232\ and assistance with Range
and MOUT sites.\233\ According to military documents and military
witnesses who appeared before the subcommittees, no non-Mission
Essential Task List (wartime tasks) training, SOT/CQB, or direct
involvement in actual planning occurred.\234\
---------------------------------------------------------------------------
\231\ ``SOF Assistance to Federal Law Enforcement in Waco, Texas.''
Defense Documents D-1116A.
\232\ Medical techniques for treating battlefield injuries including
intravenous injections of fluids, clearing airways, controlling bleeding
and treating shock. Sworn statement of Maj. Petree. Defense Documents D-
1147.
\233\ ``SOF Assistance to Federal Law Enforcement in Waco, Texas.''
Defense Documents D-1116A.
\234\ Id.
---------------------------------------------------------------------------
For the February 28 raid, the Texas National Guard supplied three
helicopters and 10 counterdrug personnel. When ATF requested National
Guard assistance, their stated mission to the National Guard was to use
the helicopters as a command and control platform during the raid, and
to transport personnel and evidence after the area was secured.\235\
Only when the National Guard team arrived at Fort Hood for the pre-raid
training, less than 24 hours before the raid, did ATF agents inform the
National Guard personnel that the helicopters would be used as an aerial
diversion during the raid itself. ATF had even assigned one of the
National Guard counterdrug soldiers to hang from a monkey sling outside
the helicopter to film the raid.\236\ The soldier was in that position
when the helicopters took incoming fire.\237\ Although all of the three
helicopters sustained damage from weapons fire, none of the National
Guard crews or ATF personnel aboard were injured.\238\ Since such direct
involvement is prohibited by National Guard Bureau regulations \239\ and
placed National Guard personnel in imminent danger, it is unclear why
the National Guard consented to ATF's ``last-minute'' changes.
---------------------------------------------------------------------------
\235\ Treasury Investigation interviews of National Guard personnel.
Treasury Documents T005368.
\236\ Treasury Investigation interviews of National Guard personnel.
Treasury Documents T005376.
\237\ Id. Interviews indicate that the helicopters were 350 feet
from the Branch Davidian residence when they were hit. Treasury
Documents T005370.
\238\ Treasury Investigation interviews of National Guard personnel.
Treasury Documents T005371.
\239\ NGB-500-2.
---------------------------------------------------------------------------
The National Guard's focal group review of the incident did not shed
much light on the issue. The summary of its report, dated April 28,
1993, and the report itself ``reveal only one major issue. The issue
deals with the pre-raid threat assessment of the Davidians provided by
ATF to the Texas National Guard as a `docile' environment. A second
issue, which is not included in the written report of the focal group
but has been vocalized by Colonel Spence, deals with the suspected
methamphetamine laboratory at the Branch Davidian residence. Colonel
Spence contends that the drug issue is not included in the focal group
report due to the potential media interest and any resulting Freedom of
Information Act inquiries.'' \240\
---------------------------------------------------------------------------
\240\ Memorandum of Interview from Special Agent Tevens for the Waco
Administrative Review (March 16, 1995). Treasury Documents T008300.
---------------------------------------------------------------------------
d. Without the alleged drug nexus, the ATF most likely would
not have received the same military assistance as
was provided
Treasury and Defense Department officials have repeatedly maintained
that ATF would have received military assistance even without a drug
nexus, but that ATF would had to have paid for it. However, this
statement is misleading because it fails to answer whether ATF would
have received the same training it requested from units other than
counterdrug units and for purposes other than counterdrug operations.
What is clear is that the ATF would not have received military
assistance from the highly trained Special Forces units in such a short
time frame and through the streamlined approval process which it
enjoyed. As stated above, the ATF originally requested Close Quarters
Combat training, a type of training available only from specialized
military units like Special Forces. ATF's request was also the largest
law enforcement request for military assistance in many of the
counterdrug organizations' histories, such as the Regional Logistics
Support Office. ATF further requested that its military training be
conducted less than 30 days after its request, while even the
streamlined Operation Alliance process normally required 90 days.
Requesting through Operation Alliance also allowed ATF to avoid an
approval process with a greater potential of independent oversight.
The same conclusion can be reached for the National Guard support.
Had there been no drug nexus, there again would have been a different
approval process. Without a drug nexus (i.e., non-counterdrug purpose),
ATF's request for National Guard assistance would only be permitted if
both the Texas State Constitution authorized the National Guard's
involvement in the type of assistance ATF requested and the Governor was
willing to expend State funds for that purpose.\241\ National Guard
personnel have indicated that the assistance would not have been
provided under those circumstances.\242\ This is supported by the fact
that the National Guard Bureau regulations prohibit the type of direct
involvement ATF received from the National Guard counterdrug personnel,
i.e., acting as a diversion during the ATF raid.\243\ Further, since the
Texas National Guard depleted its fiscal year 1993 counterdrug funds
during its assistance to ATF at Waco and had to request additional
funding during it assistance, it is doubtful that Governor Richards
would have approved State funding of so expensive an operation.
---------------------------------------------------------------------------
\241\ Memorandum from Debra Diener, Senior Counsel to Geoffrey
Moulton, Director of the Treasury Waco Administrative Review regarding
the statutory and regulatory criteria and requirements for requesting
military assistance and National Guard assistance (August 12, 1993).
Treasury Documents T008304 at T008307.
\242\ Post hearing briefing by National Guard personnel.
\243\ Memorandum of Interview of Special Agent Tevens for the Waco
Administrative Review (March 16, 1995). Treasury Documents T008300;
Treasury Department Report at 95.
---------------------------------------------------------------------------
2. Concerns of military legal advisors
Assistant Secretary of Defense Allen Holmes and Maj. Gen. John M.
Pickler both appeared before the subcommittees. They testified that the
approval process worked as it was intended.\244\ Yet, documents show
that this was so only because Special Forces Command legal advisors at
the U.S. Special Forces Command Headquarters, who were outside the
normal approval process, but who had learned of ATF's request for
assistance from Special Forces soldiers at Operation Alliance, strongly
voiced objections to the Special Forces training mission of ATF as
proposed by JTF-6. As a result of these concerns reaching extremely
senior levels of command within the Department of Defense, the training
missions were scaled back significantly and potential violations of the
law were avoided.
---------------------------------------------------------------------------
\244\ Hearings Part 1 at 385-386.
---------------------------------------------------------------------------
a. Involvement of Special Forces Command legal advisors
As referred to earlier, a Rapid Support Unit (RSU) from Third
Company, Third Division, Special Forces Group was deployed on a regular
rotation to JTF-6 for counterdrug missions. When the original ATF
request was assigned to this RSU team, Maj. Ballard, the Special
Operations Representative at JTF-6, telephoned Special Operation Command
at Fort Bragg and expressed his concern with the ATF training mission to
Mr. Crain, a civilian employee at Special Operations Command.\245\
---------------------------------------------------------------------------
\245\ Id. at 368.
---------------------------------------------------------------------------
Upon hearing the details of the original request, Mr. Crain also
became concerned and immediately notified Lt. Col. Lindley.\246\ Lt.
Col. Lindley subsequently spoke with Maj. Petree, the Special Forces
Rapid Support Unit Commander, who also expressed similar concerns about
the scope of the mission.\247\
---------------------------------------------------------------------------
\246\ Id. at 352-353.
\247\ Id. at 368.
---------------------------------------------------------------------------
Lt. Col. Lindley testified before the subcommittees that he was
principally concerned with three areas of the support requested--the
review and scrub of the ATF operation plan, medical support in close
proximately to the scene, and assistance in developing and constructing
the rehearsal sites.\248\ Lt. Col. Lindley's first concern was the
review and scrub which is an analysis of a mission that has already been
planned. The review and scrub of the operation plan and the review of
the discriminating fire plan would have been done by the Special Forces
unit assigned to JTF-6, which ultimately provided the military training
to ATF.\249\ Lt. Col. Lindley was of the opinion that the actual
planning and rehearsal of the take down was ``active'' and therefore
illegal.\250\ He also believed that the Special Forces unit was not
authorized to offer expert advice on deconstructing a drug lab.\251\
---------------------------------------------------------------------------
\248\ Id. at 350.
\249\ Id. at 351.
\250\ Memorandum for record of Lt. Col. Philip Lindley (3 February
1993). Defense Documents D-1168 at D-1169.
\251\ Id. at D-1172.
---------------------------------------------------------------------------
Lt. Col. Lindley's second concern dealt with the use of military
medical personnel. According to ATF's request, these military medical
personnel would be on-site and directly involved in potential searches
of individuals apprehended and in the collection of evidence, resulting
in Posse Comitatus Act implications. This degree of direct involvement
would also create liability issues associated with the treatment of the
civilians.\252\ The medical personnel potentially would be treating
gunshot wounds of children, and military medical personnel do not have
the training or equipment to treat such trauma wounds (gunshots) in
small children. For example, some medical equipment for children such as
breathing tubes require special sizes with which these medical teams are
not be equipped.\253\
---------------------------------------------------------------------------
\252\ Hearings Part 1 at 350-351.
\253\ Interview of Lt. Col. Phillip Lindley by Glenn R. Schmitt,
Counsel to the Subcommittee on Crime, and Michele Lang, Special Counsel
to the Subcommittee on National Security, International Affairs, and
Criminal Justice, in Washington, DC (July 19, 1995).
---------------------------------------------------------------------------
According to Lt. Col. Lindley, the JTF-6 informed him that the law
enforcement action was a raid on a methamphetamine lab.\254\ Having been
involved in law enforcement actions involving methamphetamine labs as a
civilian, Lt. Col. Lindley was aware of concerns with the physical
characteristics of methamphetamine production and the dangers in the
chemicals, as well as ammunition considerations given the explosive
nature of methamphetamine labs.\255\ Contamination of soldiers' clothing
by chemicals used in the production of methamphetamines would involve
those soldiers in the collection of physical evidence.\256\ Again, such
direct involvement would violate the Posse Comitatus Act.
---------------------------------------------------------------------------
\254\ Hearings Part 1 at 367.
\255\ Id. at 367-368.
\256\ Id.
---------------------------------------------------------------------------
Upon completing his discussions with the Special Operations
personnel, Lt. Col. Lindley directly contacted JTF-6 personnel to
express his concerns about the mission. When Lt. Col. Lindley informed
JTF-6 personnel that, from his initial analysis of the information
presented, the request was impermissible as proposed, he received a
hostile response from Lt. Col. Rayburn, the JTF-6 Legal Advisor.\257\
After his conversation with JTF-6 personnel, Lt. Col. Lindley began a
memorandum for record detailing the chronology of events and
conversations as they took place.\258\ JTF-6, not Lt. Col. Lindley,
subsequently provided the legal review of the request.
---------------------------------------------------------------------------
\257\ Id. at 353.
\258\ Id.
---------------------------------------------------------------------------
After the requests for additional evidence of methamphetamine
production, the military assistance allowed was drastically restricted.
3. Evidence indicating problems in the approval process
Contrary to assertions by Assistant Secretary Holmes, Brig. Gen.
Huffman, and Maj. Gen. Pickler, the approval process did not work as it
was supposed to.\259\ First, although concerns had been raised that JTF-
6 had been providing military assistance to non-counterdrug activities,
little documentation of ATF's requests for military assistance exists.
Second, while some senior military officers and DEA officials had
opportunities to voice concerns about ATF's alleged drug nexus, they
chose not to exercise those opportunities. Third, because a few military
officers identified major legal problems with the training mission and
alerted senior military commanders, despite threats by other senior
military officers, the mission was altered to avoid violations of the
law. Finally, after Waco hearings were scheduled, the Secretary of
Defense acknowledged problems with the military assistance process and
created a working group to review the process.\260\
---------------------------------------------------------------------------
\259\ Id. at 385-386.
\260\ Memorandum of Military Support to Civil Authorities by William
Perry, Secretary of Defense, to the Secretary of the Army, Chairman of
the Joint Chiefs, Under Secretary of Defense (Policy), Under Secretary
of Defense (Comptroller), and the General Counsel of the Department of
Defense (May 17, 1995).
---------------------------------------------------------------------------
a. Concerns of cheating by JTF-6
Military documents indicate that a problem existed with JTF-6
providing military assistance to law enforcement agencies in the absence
of a drug nexus.\261\ These concerns apparently had reached the highest
levels of the Department of Defense.\262\
---------------------------------------------------------------------------
\261\ ``Desires to know the [U.S. Army Special Operations Command]
position regarding the attached draft [message]. Intent is to go on
record confirming the phonelon arrangements, and to reinforce [Special
Operations Forces] Resistance to potential `cheating' which seems to
recur at JTF-6.'' Comments from a U.S. Special Operations Command
facsimile (February 17, 1993). The facsimile cover was attached to the
February 3, 1993 message regarding the Special Forces training mission
of ATF and had multiple routing destinations. (Unnumbered).
\262\ Id.
---------------------------------------------------------------------------
When JTF-6 provides military assistance in non-counterdrug related
law enforcement actions, it is referred to as ``cheating'' because it
allows the law enforcement agency to obtain military assistance without
reimbursing the military. Moreover, military assistance provided under
these circumstances is funded with money specifically appropriated for
counterdrug activities.\263\ Furthermore, cheating allows JTF-6 to
provide military assistance to non-counterdrug activities, outside the
scope of its authorized purpose.\264\ Interviews with Defense Department
counterdrug personnel revealed that self preservation in part fuels JTF-
6 efforts to secure healthy budget allocations.\265\ Documents provided
by the Treasury Department show that in the months following the tragic
end of the Branch Davidian siege, JTF-6 and Operation Alliance were
actively promoting their services to ATF. This was occurring even as
senior military officials expressed concern that ATF misrepresented the
required drug nexus in order to obtain military assistance.\266\
---------------------------------------------------------------------------
\263\ National Defense Authorization Act Fiscal Year 1991,
Sec. 1004, Pub. L. 101-510 (as amended by National Defense Authorization
Act Fiscal Year 1991 Sec. 1088, Pub. L. 102-190, and by National Defense
Authorization Act Fiscal Year 1993 Sec. 1041, Pub. L. 102-484, FY 93
NDAA.).
\264\ Hearings Part 1 at 367.
\265\ The subcommittees discovered a number of post-Waco promotions
of military assistance and ATF requests for military assistance. A
sampling of those include: According to a Defense Department memo dated
September 9, 1993, ATF requested and received approval for 2 weeks of
Special Forces Training for 20 ATF agents less than 5 months after the
tragic incident at Waco. Defense Documents D-1167. Another Special
Operations Judge Advocate memo addressing this Special Forces training,
indicates that ATF again was attempting to obtain military assistance
without reimbursing Defense Department: ``we cannot waive reimbursement
under the fiction that we are `training the trainer' as is not so subtly
suggested by the 3 Aug BATF letter.'' Defense Documents D-1166. A June
15, 1993 ATF memorandum from Special Agent Pali, the ATF Deputy Senior
Tactical Coordinator at Operation Alliance to the Chief of the Special
Firearms Division and the Special Agents in Charge of the Dallas,
Houston and Los Angeles Field Divisions enclosing an Regional Logistics
Support Office document describing the ``latest information regarding
the types of support and procedures for Drug Law Enforcement Agencies to
request excess property, non-operational support or training from the
Department of Defense.'' Treasury Documents T006665.
\266\ ``[T]he only question I have is related to how we got
involved. Was the `methamphetamine' lab a subterfuge to get our
(military) (506) (?) Involvement? Seems to me we need to be sure that
what the ground rules are. Reasonable man rule applies.'' Unsigned
handwritten note on a lieutenant general's note paper. Defense Documents
D-1363.
---------------------------------------------------------------------------
Assistant Secretary Holmes stated that JTF-6 does not verify whether
a ``drug nexus'' exists before providing military assistance because it
would potentially place the military in a capacity of conducting
surveillance and investigations of American citizens, which is a
violation of U.S. law.\267\ Secretary Holmes' purported concern is not
responsive to the issue. Contrary to Mr. Holmes' assertion, the
verification of a drug nexus would not require military personnel to
conduct surveillance of or otherwise investigate American citizens.
Rather, verification could be accomplished simply by establishing a
standard which requires sufficient documentation by the law enforcement
agency of the existence of drug offenses, as opposed to mere speculation
or suspicion. In addition, JTF-6's own planning guide states that it
``reviews and validates all requests for support'' in conjunction with
Operation Alliance, the National Guard, and the Regional Logistics
Office.\268\
---------------------------------------------------------------------------
\267\ Pre-hearing meetings with Assistant Secretary Allen Holmes.
See also Hearings Part 1 at 367 (statement of Maj. Gen. John M.
Pickler).
\268\ JTF-6 Operational Support Planning Guide at 16. Treasury
Documents T08786, T08803.
---------------------------------------------------------------------------
b. Special Forces paper and ATF's response
Further evidence suggesting a serious problem in the military's
approval of assistance to ATF in this case involves ATF agents'
reactions to the Bureau's own claim that a methamphetamine lab existed
in the Branch Davidian residence.
The alleged presence of a methamphetamine lab was the basis for
which the Special Forces assistance provided to ATF. After Special
Forces legal advisors concerns' with the proposed training and ATF's
alleged drug nexus, Maj. Petree, the Commander of Special Forces Rapid
Support Unit which was assigned to provide ATF support, ordered two of
his Special Forces medics to research and write a paper on
methamphetamine labs for ATF. These Special Forces medics, who are
highly skilled military personnel with far more advanced training than a
typical civilian paramedic, spent 3 to 4 days researching and writing a
memorandum on methamphetamine labs for ATF.\269\
---------------------------------------------------------------------------
\269\ Hearings Part 1 at 361.
---------------------------------------------------------------------------
There is no doubt that a central purpose of the memorandum on
methamphetamine labs was to inform the ATF of the potential dangers and
special precautions required when dealing with an active methamphetamine
lab. Yet, when Maj. Petree presented the paper to ATF agents during the
February 4-5, 1993, Houston meeting, these agents openly chose to ignore
this information in front of the soldiers who prepared the document. In
fact, the ATF agents' dismissal of such vital information was so obvious
that these agents' reactions alone made to clear that the ATF believed
that a methamphetamine lab did not exist.\270\
---------------------------------------------------------------------------
\270\ Id. at 372. Maj. Petree had to have known, or certainly should
have known, as a senior military officer assigned to JTF-6, that a drug
nexus was absolutely necessary to receive assistance from his unit
through JTF-6. Even though Staff Sgt. Fitts, one of the writers of the
paper, noticed the ATF agents' disinterest in the vital paper and
clearly came to the conclusion that a methamphetamine lab did not exist,
Maj. Petree indicated that he did not notice any remarkable reaction by
the agents.
---------------------------------------------------------------------------
Maj. Petree indicated that the purpose of the Special Forces paper
was for the informational use of Special Forces units who might be
involved in future counterdrug activities involving methamphetamine
labs. Yet, when the subcommittees requested a copy of the Special Forces
paper during a visit by subcommittees' staff to the U.S. Special
Operations Command in Fort Bragg, NC, they were informed that it could
not be located.\271\ Sgt. Fitts had not seen the Special Forces paper
since the meeting in Houston and had no idea what became of the Special
Forces paper after the meeting. If the Special Forces paper was written
as an information resource, the Special Operations Command would be
expected to have a copy of this paper on file.
---------------------------------------------------------------------------
\271\ The presence of the Special Forces paper alone would provide
evidence to produce charges that: (1) Special Forces trainers were
deficient in their training of ATF in failing to ensure ATF took proper
precautions; (2) Special Forces trainers knew from ATF's failure to
incorporate proper precautions that no methamphetamine lab existed and
thus they inappropriately provided military assistance in a non-
counterdrug law enforcement operation. Neither of these potential
charges is flattering to JTF-6, and especially to Maj. Petree, who
presented the paper to ATF and who commanded the Special Forces units
which trained ATF.
---------------------------------------------------------------------------
c. Two DEA agents were members of the Operation Alliance
board
Military officers were not alone in their inaction. Documents show
that two senior DEA agents were assigned to Operation Alliance at the
time of ATF's request for military assistance at Waco.\272\ Yet, none of
the documents indicate that either of these DEA agents expressed
concerns about the evidence ATF offered in support of its claim of an
active methamphetamine lab or how ATF was planning to take down the
alleged methamphetamine lab.
---------------------------------------------------------------------------
\272\ Senior DEA Representative William C. Rochon and DEA Staff
Coordinator Richard G. Thomas were on the Operation Alliance board.
However, Special Agent Thomas was on sick leave from approximately
October 1992 until his retirement in January 1993, so he has no personal
knowledge of Operation Alliance's activities in support of ATF's
investigation of the Branch Davidians. Letter from the U.S. Department
of Justice to the subcommittees (January 5, 1996) (responding to the
subcommittees' October 25, 1995, request for information).
---------------------------------------------------------------------------
These two senior DEA agents were members of the Operation Alliance
Board which provides the final approval of military assistance missions
to drug law enforcement agencies. It is reasonable to assume that these
DEA agents were aware of the safety and health risks a methamphetamine
lab would present.
Treasury and Defense Department documents provided to the
subcommittees indicate that Operation Alliance at least twice requested
additional information on ATF's drug nexus, that a very contentious
discussion between legal advisors and senior military officials of
Special Operations Command and Operation Alliance had taken place, and
that this was the largest raid in law enforcement history. Yet, no
evidence was presented to show that these DEA agents expressed any
concerns that ATF was not addressing these risks in their operational
planning.
d. Approval process did not work
Contrary to the testimony of Assistant Secretary Holmes and Maj.
General Pickler, the training mission did not violate laws because the
approval process worked, but in spite of it. Only because certain
soldiers recognized a legal problem and had the courage to raise the
issue in light of opposition from their chain of command at JTF-6, was a
``major incident avoided, lives were saved, and the law was not
violated.'' \273\
---------------------------------------------------------------------------
\273\ Handwritten memorandum on the letterhead of Judge Advocate
General's Corp, U.S. Army. Defense Documents D-1155 at D-1157. The memo
refers to the soldiers actions as ``doing the right thing, not the easy
thing.''
---------------------------------------------------------------------------
JTF-6 and Operation Alliance have the approval authority for law
enforcement requests for military assistance along the Southwest border,
which means their legal advisors conduct the legal review of the
proposed assistance, not Special Operations Command legal advisors at
Fort Bragg.\274\
---------------------------------------------------------------------------
\274\ All law enforcement agency requests for military assistance
along the Southwest border must be routed through Operation Alliance.
Once the request is received, it is reviewed by Operation Alliance. If
Operation Alliance accepts the request, it is then sent to JTF-6 for
processing. JTF-6 Operations Section will develop a draft operations
order with the law enforcement agency. Once the planning is complete,
the draft order is returned to Operation Alliance for its approval. A
final approval of the operations order is then determined at a joint
meeting of the heads of supporting field drug law enforcement agencies,
the Special Forces Rapid Support Unit tasked by JTF-6 and the tactical
coordinator for Operational Alliance. Letter from Operational Alliance
Special Agent Eddie Pali, ATF Coordinator for Operation Alliance
(January 26, 1990). Treasury Documents T006663-006664.
---------------------------------------------------------------------------
Soldiers are taught that they should always go through their chain
of command to address a problem. Only under significant circumstances
are soldiers encouraged to go outside their chain of command for
assistance. The Special Forces soldiers assigned to assist ATF,
apparently had been properly trained to go outside their chain of
command, which at the time was at JTF-6, by contacting their legal
advisor at Special Operations Command, (USAFC) if they had concerns
about a mission.
The Special Forces soldiers assigned the ATF mission did just that.
Maj. Ballard, the Special Operations Representative at Operation
Alliance, contacted Mr. Crain at Special Operations Command. Crain then
informed Lt. Col. Lindley of their concerns.
It was Lt. Col. Lindley, the legal advisor of the Special Operation
Command, who raised the legal concerns with JTF-6. Lt. Col. Lindley
received a hostile response from Lt. Col. Rayburn, the JTF-6 legal
advisor who accused him of attempting to ``undermine'' and ``undercut''
JTF-6's mission.\275\ Lt. Col. Lindley was also told that he could
consider Lt. Col. Rayburn's words a personal attack.\276\ Subsequent to
Lt. Col. Lindley's telephone conversation with Lt. Col. Rayburn, these
concerns were raised with the Commanding Generals of both Special
Operations Command and JTF-6 and eventually reached the Office of the
Secretary of Defense. When the legal concerns were reviewed at that
level, the Special Forces training mission was modified to comply with
the law.\277\
---------------------------------------------------------------------------
\275\ Memorandum for record from Lt. Col. Philip Lindley. Defense
Documents D-1168 at D-1170.
\276\ Id.
\277\ Handwritten memo on the letterhead of The Judge Advocate
General's Corps, U.S. Army. Defense Documents D-1155 at D-1156.
---------------------------------------------------------------------------
e. The working group established by the Secretary of Defense
The final piece of evidence that serious problems exist in the
process by which the military provides support to civilian law
enforcement agencies is the Secretary of Defense's creation of a working
group to review the process in the wake of the subcommittees'
announcement of Waco hearings which would also explore the military's
role in the incident.
On May 17, 1995, Secretary of Defense William J. Perry directed the
Under Secretary of Defense for Policy to establish a working group ``to
conduct a comprehensive review of the current system by which Defense
Department evaluates and responds to requests for assistance initiated
by outside agencies.'' \278\ Perry acknowledged in his memorandum that,
``several recent events suggest that the process by which Defense
Department evaluates and approves outside requests for assistance may be
less than adequate'' and that ``there are indications that Defense
Department's ability to respond smoothly is encumbered by conflicting
directives, multiple entry points and diverse funding authorities.''
\279\
---------------------------------------------------------------------------
\278\ Memorandum of Military Support to Civil Authorities by William
Perry, Secretary of Defense, to the Secretary of the Army, Chairman of
the Joint Chiefs, Under Secretary of Defense (Policy), Under Secretary
of Defense (Comptroller), and the General Counsel of the Department of
Defense (May 17, 1995).
\279\ Id.
---------------------------------------------------------------------------
c. the alleged drug nexus
As explained earlier, in order to receive military assistance at
Waco from the military counterdrug units, ATF was required to have a
drug nexus. The existence of a drug nexus also would have allowed ATF to
receive that military assistance without being required to reimburse the
military for the cost of the training. ATF's allegation that a drug
nexus existed at the Davidians' residence raised two concerns: (1)
whether ATF used this alleged drug nexus as a subterfuge in order to
obtain free military assistance from specially trained Special Forces
counterdrug units; and (2) assuming ATF actually believed a drug nexus
existed, whether ATF ensured that its agents were aware of the extreme
health and safety hazards that a methamphetamine lab presents, and were
properly trained and equipped to address those hazards.
1. Methamphetamine laboratories
ATF alleged to the military that it had evidence of an ``active
methamphetamine lab'' on the premises of the Davidians' residence.
Unlike general narcotics seizures, clandestine labs, by their very
nature, ``present a unique series of hazards and risks to law
enforcement personnel.'' \280\ Therefore, an allegation of an active
methamphetamine lab should alarm any law enforcement official, because
of the extreme safety and health dangers involved.
---------------------------------------------------------------------------
\280\ The Joint Task Force of the Drug Enforcement Administration,
the U.S. Environmental Protection Agency, and the U.S. Coast Guard,
Guidelines for the Cleanup of Clandestine Drug Laboratories 8. See also,
Bureau of Justice Assistance, Developing a Strategy for a Multiagency
Response to Clandestine Drug Laboratories 4 (September 1995).
---------------------------------------------------------------------------
a. Dangers associated with methamphetamine labs
Hazards which law enforcement agents may expect to encounter in
clandestine lab operations include exposure to toxic chemicals,
explosive and reactive chemicals, flammable agents, irritant and
corrosive agents, booby traps, and physical injury from close quarter
contact with illegal lab operators.\281\
---------------------------------------------------------------------------
\281\ Id. at 8.
---------------------------------------------------------------------------
Illegal methamphetamine labs use highly volatile chemicals during
the production process. Notwithstanding the booby traps law enforcement
agents frequently encounter at methamphetamine labs, the firing of a
single bullet, sparks from turning off and/or on light switches,
flashlights, or even a flash from a typical photography flashbulb can
easily trigger an instantaneous explosion. Toxic vapors produced during
chemical reactions can permeate a building's structure and buildings
with poor ventilation and temperature controls (like the Davidians'
residence) ``add to the potential for fire, explosion, and human
exposure.'' \282\ One chemical used in clandestine drug labs is so
deadly that an amount small enough to fit on the head of a pin, could
kill a room full of people.\283\
---------------------------------------------------------------------------
\282\ Id. at 3.
\283\ Drug Enforcement Administration briefing to the subcommittees
(June 8, 1995) and subsequent telephonic interviews with DEA chemists.
---------------------------------------------------------------------------
Other health concerns are no less serious. In the absence of proper
safety precautions and cleanup procedures, law enforcement agents may
``experience both acute and chronic adverse health effects as a result
of exposure to solvents, reagents, precursors, by-products, and drug
products improperly used or generated during the manufacture of illegal
drugs.'' \284\ Toxic materials produced at these labs can injure the
lungs or the skin, damage the liver, kidneys, even the central nervous
system.\285\ Some toxins have been linked to malformation of embryos,
other genetic damage, cancers, and reproductive failure.\286\
---------------------------------------------------------------------------
\284\ Id. at iii.
\285\ Bureau of Justice Assistance, supra note 280, at 5.
\286\ Id.
---------------------------------------------------------------------------
In determining appropriate safety and health precautions, the
subcommittees relied on standards set forth by the Drug Enforcement
Administration (DEA). DEA has primary jurisdiction over investigations
of clandestine drug labs. As the lead Federal agency, it has established
procedures that DEA agents must follow during the investigation and
seizure of drug labs.\287\ Moreover, this approach by DEA has been a
model for State and local agencies in developing their own clandestine
drug lab programs.\288\
---------------------------------------------------------------------------
\287\ The Joint Task Force of the Drug Enforcement Administration,
the U.S. Environmental Protection Agency, and the U.S. Coast Guard,
supra note 280, at 4.
\288\ Id.
---------------------------------------------------------------------------
b. Certification/training requirements for deconstruction of
methamphetamine labs
Law enforcement personnel engaged in the investigation and seizures
of clandestine drug labs should have specialized training in the
investigation of such labs, in appropriate health and safety procedures,
and in the use of the protective equipment.\289\
---------------------------------------------------------------------------
\289\ Id.
---------------------------------------------------------------------------
The DEA requires all of its personnel to complete a course on
clandestine methamphetamine labs and be certified prior to ever
participating in a methamphetamine lab raid.\290\ Simply stated, no DEA
agent may participate in ``take downs'' of methamphetamine labs without
proper certification. Annual recertification also is required. In
addition, DEA provides seminars on clandestine methamphetamine labs
throughout the Nation to other local, State, and Federal law enforcement
personnel.
---------------------------------------------------------------------------
\290\ Id. at 5.
---------------------------------------------------------------------------
DEA agents are also required to receive a ``baseline medical
screening, including an occupational/medical history, a complete
physical examination, a blood chemistry screen, pulmonary function and
spirometry testing, and a stress-treadmill test prior to assignment.''
\291\ Agents have regular follow-up medical evaluations and, because of
the risks associated with long-term exposure, regularly are rotated out
of the Clandestine Lab Program.
---------------------------------------------------------------------------
\291\ Bureau of Justice Assistance, supra note 280, at 16.
---------------------------------------------------------------------------
The initial entry team also must have and be trained in the use of
``appropriate monitoring instrumentation, such as air-sampling pumps,
explosimeters, oxygen meters, organic-vapor analyzers . . . that are
used to determine the lower explosive limit and the concentration of
organic vapors in the laboratory atmosphere.'' \292\ All of the
monitoring devices must be ``designed to suppress sparks'' that may
ignite and cause fires or explosions.\293\
---------------------------------------------------------------------------
\292\ The Joint Task Force of the Drug Enforcement Administration,
the U.S. Environmental Protection Agency, and the U.S. Coast Guard,
supra note 280, at 8.
\293\ Id.
---------------------------------------------------------------------------
c. The special precautions required when law enforcement
actions involve a methamphetamine lab
After an investigation has gathered sufficient probable cause to
establish that a drug lab is operating on a premises, DEA agents obtain
a search warrant. Agents may request in the warrant the authority to
destroy any hazardous bulk chemicals and equipment.\294\ A forensic
chemist is consulted prior to and during the seizure.\295\ Once the
warrant is obtained, the case agents begin a six step process for
conducting the seizure: planning, entry, assessments, processing, exit,
and follow-up.\296\ Because ATF entered the Branch Davidian residence,
only the first two steps will be discussed in detail.
---------------------------------------------------------------------------
\294\ ATF did not mention a drug lab or possession of illegal drugs
as suspected crimes in its search warrant.
\295\ The Joint Task Force of the Drug Enforcement Administration,
the U.S. Environmental Protection Agency, and the U.S. Coast Guard,
supra note 280, at 5.
\296\ Id.
---------------------------------------------------------------------------
In the planning stage, the case agents must first assess of the
hazards likely to be encountered and determine who needs to be notified
before the raid (i.e. police, fire department, hospitals, hazardous
waste contractors.) \297\ This includes a determination of what
chemicals the agents might encounter. Once the assessment is complete,
certified teams, including a forensic chemist and site safety agent
trained and equipped with the requisite safety equipment, are assigned.
---------------------------------------------------------------------------
\297\ ``In seizing a clandestine drug laboratory, the law
enforcement agency may encounter materials that technically qualify as
hazardous wastes and therefore are `subject to regulation.' If those
wastes exceed certain minimal quantities, the law enforcement agency
becomes a hazardous waste generator and is required to adhere to waste
disposal regulations promulgated under RCRA, and to regulations
governing the transportation of hazardous materials promulgated by the
Department of Transportation.'' Id. at iv.
---------------------------------------------------------------------------
The second stage is the initial entry to apprehend and remove the
operators and to secure the lab. Typically in methamphetamine lab
operations, law enforcement agents will attempt to arrest the suspects
away from the premises to avoid many of the aforementioned dangers. This
is usually accomplished through surveillance and investigative
techniques which provide law enforcement agents with sufficient
information to determine the lab's exact location, what chemicals are
being used, the stage of the production process and when the suspects
will leave the premises.
If the lab operators cannot be apprehended away from the premises,
then the initial entry takes place. ``DEA protocol calls for the initial
entry team to employ ballistic protection equipment and fire retardant
clothing.'' \298\ Other safety procedures include avoiding the use of
shotguns or diversionary devices such as flash bangs, smoke, or tear gas
canisters which can ignite fumes.\299\ Additionally, agents should avoid
turning light electrical switches on or off, use only explosion-proof
flashlights, and use electronic strobes, not flashbulbs.\300\ Once the
premises are secure and everyone is evacuated, the assessment step
begins.
---------------------------------------------------------------------------
\298\ Id. at 8.
\299\ Id.
\300\ Id.
---------------------------------------------------------------------------
d. Did ATF address the extreme safety and health concerns a
methamphetamine lab presents in its raid on the
Branch Davidian residence?
In 1990, Stephen E. Higgins,\301\ the Director of the Bureau of
Alcohol, Tobacco and Firearms, testified before the Subcommittee on the
Treasury, Postal Service, and General Government Appropriations of the
Committee on Appropriations. In written responses to questions from
subcommittee members, Higgins acknowledged:
---------------------------------------------------------------------------
\301\ Mr. Higgins was Director of the ATF both during the
investigation and at the time of the February 28, 1993, raid on the
Branch Davidian residence.
[W]e [at the ATF] are aware of the considerable hazards
presented by the careless storage of chemicals and the
sensitivity of the explosive mixtures at these [clandestine
methamphetamine] laboratories. In an effort to ensure a safe and
thorough investigation, ATF has proposed specific, specialized
training for select ATF personnel to readily identify narcotics
laboratories and to recognize certain hazardous materials
associated with the laboratories.\302\
---------------------------------------------------------------------------
\302\ Hearings before the Subcommittee on Treasury, Postal Service,
and General Government Appropriations of the House Committee on
Appropriations, 101st Cong., 2d Sess. 688, 695 (1991).
Given that Higgins was still the ATF Director during the period when
David Koresh was being investigated, when the Waco raid took place and
during the post-raid investigation, it is reasonable to conclude ATF was
aware of the safety and health hazards presented by methamphetamine
labs. Furthermore, since the case had the ``highest interest of BATF
Washington and had been approved at that level,'' \303\ ATF headquarters
was aware of the alleged presence of a methamphetamine lab.
---------------------------------------------------------------------------
\303\ Operations Order, February 17, 1993, Defense Documents D-587.
---------------------------------------------------------------------------
Even so, in response to the subcommittees' inquiries, ATF has
acknowledged that no ``ATF agent who was present on February 28, 1993, .
. . had received specific, specialized training in investigating
methamphetamine laboratories.'' \304\ In reviewing videotapes of the
Fort Hood training, subcommittee investigators also found no discussion
of the potential safety and health hazards that the suspected active
methamphetamine lab would present. In other words, ATF agents
participating in the raid had little or no notice of the dangers they
might have forced in the active methamphetamine labs.
---------------------------------------------------------------------------
\304\ Undated Department of Treasury response to subcommittees'
request for information.
---------------------------------------------------------------------------
From numerous briefings and a review of videotape shot on the day of
the raid, it appears that ATF agents did possess ballistic protection
equipment and fire retardant clothing. ATF agents also possessed regular
flashlights and regular cameras (i.e. flash photography), shotguns and
flash bangs,\305\ each of which could trigger instantaneous explosions
if used in the vicinity of a methamphetamine lab. Nor is there any
evidence that any ATF agents possessed appropriate monitoring equipment
to determine the lower explosive limit and the concentration of vapors
in the atmosphere, or explosion proof flashlights.
---------------------------------------------------------------------------
\305\ ATF policy on the use of ``flash bang'' diversionary devices
states, ``Drug laboratories or other explosive environments may be so
hazardous as to preclude the use of [flash bang] devices.'' and ``If [a
flash bang] lands on a combustible material a fire is not only possible
but likely, (laundry, newspaper, clothing, etc.).'' [Page 66 of the ATF
training manual on the use of diversionary devices] no mention of the
alleged presence of a methamphetamine lab is mentioned in ATF's request
to the Chief of Special Operations Division for the use of flash bangs
during the raid. [Request to use flash bangs, dated February 5, 1993,
Treasury Documents 008213-14].
---------------------------------------------------------------------------
Clearly, ATF disregarded the safety of its agents and innocent
civilians. Agencies involved in clandestine lab operations fall under
OSHA regulations requiring the following actions by employers: \306\
---------------------------------------------------------------------------
\306\ Bureau of Justice Assistance, supra note 280, at 7 (citing 29
C.F.R. Part 1910).
---------------------------------------------------------------------------
``Communication to employees of clear, unambiguous
warnings, as well as provision of educational programs on the
hazards of chemical substances.''
``Training of all employees who may be exposed to
hazardous substances in how to recognize and handle safety and
health hazards at laboratory sites, in the use of protective
equipment, and in safe work practices.'' Training must meet OSHA
standards.
Examining and monitoring the health of all employees
exposed to hazardous substances including documentation of any
exposure.
Provide information to employees regarding any
hazardous conditions in their work environments.
When agencies fail to adhere to these requirements, ``supervisors can be
held strictly and severally liable for situations involving employee
exposure to hazardous substances and the resulting adverse health
effects.'' \307\
---------------------------------------------------------------------------
\307\ Id. at 8.
---------------------------------------------------------------------------
2. Evidence purporting to show the alleged drug nexus
a. Mark Breault's statement
Coincidentally, after repeatedly being informed by military
officials of the drug nexus requirements, Aguilera received a facsimile
on December 16, 1992, from Mark Breault in Australia, which according to
ATF ``suggest[ed] the existence of an illicit methamphetamine laboratory
at the Branch Davidian compound.'' \308\ Mr. Breault's facsimile relays
that upon taking over the Mount Carmel (Residence of the Branch
Davidians) property from George Roden, the former Branch Davidian
leader, Koresh found methamphetamine lab equipment and ``recipes'' and
called the Sheriff's Department to turn over the materials.\309\ It had
been long rumored that an individual who used to rent from Mr. Roden was
into drugs but he had later gone to prison.\310\ This individual was no
longer on the property when Koresh took over.\311\
---------------------------------------------------------------------------
\308\ Memo from Colleen Callahan and Robert Tevens to Geoff Moulton
and Lew Merletti, ``Chronology and Witnesses Re: Military Support of
ATF'' (July 14, 1993). Treasury Documents T004589, 004590. Actual
facsimile, Treasury Documents T008912.
\309\ Facsimile from Mark Breault to Special Agent Davey Aguilera
(December 16, 1992). Treasury Documents T00008912.
\310\ Id.
\311\ Id.
---------------------------------------------------------------------------
Mr. Breault's facsimile to Special Agent Aguilera also indicated
that although Koresh did call the Sheriff's Department and Sheriff's
Department personnel did come out to the property, one individual
present at the residence when the Sheriff's Department visited said she
did not personally observe Koresh turn the lab equipment over to the
Sheriff's Department.\312\ Mr. Breault also stated in his facsimile that
one night in 1989, Koresh ``was talking about trafficking drugs as a way
of raising money.\313\ He [Koresh] seemed very interested in getting
money through this means.'' \314\ However, Mr. Breault also admits in
his facsimile that he was the only ex-member who was present for this
statement.\315\ Mr. Breault goes on to say in the same document that the
building in which he implies the drug lab equipment was located burned
down in Spring 1990.\316\ Lt. Col. Gen. Pickler testified before the
subcommittees that this information from Mr. Breault regarding a
methamphetamine lab also was told to the military by ATF.\317\ However,
military documents indicate that ATF was conveying to the military the
presence of an active methamphetamine lab.\318\
---------------------------------------------------------------------------
\312\ Id.
\313\ Id.
\314\ Id.
\315\ Id.
\316\ Id.
\317\ Hearings Part 1 at 369-370.
\318\ There are numerous examples of where ATF indicated to the
military there was an ``active methamphetamine lab'' and ``deliveries of
precursor chemicals.'' A few are the February 17, 1993, Operations
Order, and the February 2, 1993, letter from Operation Alliance to the
Adjutant General of the Texas National Guard counterdrug unit informing
them that ATF had requested National Guard assistance in serving a
Federal search warrant ``to a dangerous, extremist organization believed
to be producing methamphetamine.'' Treasury Documents T005551. See also
Defense Documents D-581.
---------------------------------------------------------------------------
There were at least six significant problems with its credibility as
evidence that the Branch Davidians were operating a methamphetamine lab
prior to ATF's raid. First, the allegations were very stale by legal
standards. ATF received the information more than 5 years after the
methamphetamine lab equipment was found and the Sheriff's Department
visited the premises to investigate the claim. Second, it is undisputed
that Koresh found the methamphetamine lab equipment and Koresh himself
called the Sheriff to pick up the equipment. Third, the person rumored
to have been involved in drugs was an occupant of the premises prior to
Koresh taking over, and subsequently was sent to prison. Fourth, the
former leader, Mr. Roden, not Koresh, was suspected of having been
involved in illegal drugs. Fifth, the alleged statement by Koresh about
drugs could not be verified independently. Sixth, the building Mr.
Breault implies housed the methamphetamine materials burned down in
1990, 3 years before the raid.
Perhaps the most disturbing fact about this information, however, is
that all of this drug nexus information originated with Mr. Breault, a
disgruntled former member who left the group in 1989. The fact that Mr.
Breault maintained an extensive biographical database on present and
former members and was working with a self-proclaimed cult-buster Rick
Ross in and of itself should have raised questions about Mr. Breault's
intentions and credibility to the ATF agents.
Lt. Robert A. Sobozienski, a New York City Police officer who acted
as an expert consultant to the Treasury Department's Waco Review Team,
summarized the problem with the information Breault provided when he
wrote in his Waco Raid Assessment, ``Former cult members were
interviewed and, apparently much, if not all of their statements are
reported to be facts. No thought is given to the idea that these ex-cult
members had been away from the residence for some time, or to the
individual biases, or if they had an ax to grind with present cult
members.'' \319\
---------------------------------------------------------------------------
\319\ Waco Raid Assessment by Lt. Robert A. Sobozienski. Treasury
Documents T00021383.
---------------------------------------------------------------------------
ATF agents did check with the McLennan County Sheriff's Department
personnel who acknowledged Koresh's request but ``found no record'' of
the removal of methamphetamine lab equipment.\320\ However, Joyce Sparks
\321\ states in written testimony, that during her child protective
services investigation in 1992 she checked with the Sheriff's Department
and was told that Department personnel did receive drug evidence from
David Koresh.\322\ During her interviews with him, Koresh told her that
he had given the Sheriff's Department information, pictures, and drug
evidence but nothing had ever come of it.\323\ Koresh complained in his
interviews with Sparks that the Sheriff's Department was aware of the
illegal methamphetamine lab.\324\
---------------------------------------------------------------------------
\320\ Treasury Department Report at 212.
\321\ Ms. Sparks was an investigations supervisor for the Texas
Department of Protective and Regulatory Services, Children's Protective
Services, who was interviewed repeatedly by ATF.
\322\ Prepared statement of Joyce Sparks. See Appendix. [The
Appendix is published separately.]
\323\ Id.
\324\ Id.
---------------------------------------------------------------------------
The disposal of methamphetamine lab equipment and chemicals presents
great risk and significant problems. As a matter of routine, DEA hires
certified State and local chemical disposal companies to remove the lab
equipment and chemicals for proper disposal under EPA guidelines.\325\
Because the cleanup costs can easily total $20,000, or significantly
more, depending on the size and condition of the lab site, local law
enforcement officials sometimes choose not to remove the lab equipment
and chemicals or not to follow the proper environmental guidelines for
removal in an effort to avoid the legal liabilities and costs associated
with such labs.\326\
---------------------------------------------------------------------------
\325\ The hiring of State and local chemical companies was the
result of legislation which corrected the problem of DEA disposing of
the methamphetamine lab materials. Each time DEA disposed of a
methamphetamine lab, the agency came under the Hazardous Waste laws, as
a hazardous waste generator.
\326\ Although the Sheriff's Department acknowledged visiting the
Branch Davidian residence to remove methamphetamine lab materials at Mr.
Koresh's request in 1989, there was no record of the actual removal of
the methamphetamine lab materials. However, there could be numerous
reasons why no such record existed from a Sheriff's call 4 years prior,
and without further evidence of the methamphetamine lab's continued use
or even its continued existence there is little probative value to Mr.
Breault's information. Neither ATF's search warrant nor its supporting
affidavit contain any information about suspected illegal drug activity.
---------------------------------------------------------------------------
b. The National Crime Center check
As mentioned earlier, after a December 17, 1992, meeting of SAC
Chojnacki, Aguilera and Lt. Col. Walker in which Lt. Col. Walker
informed the ATF agents that ATF could receive non-reimbursable military
support if a drug nexus existed, ATF Intelligence Research Specialist
Sandy Betterton was instructed to search criminal records of Davidians
to identify prior drug offenses.\327\ However, when ATF Special Agent
Pali was interviewed by Treasury Agents during the Post-Waco review, he
admitted that only one Branch Davidian had a prior drug conviction.\328\
---------------------------------------------------------------------------
\327\ Memorandum from Colleen Callahan and Robert Tevens to Geoff
Moulton and Lew Merletti, ``Chronology and Witnesses Re: Military
Support of ATF'' (July 14, 1993). Treasury Documents T004589, 004590.
\328\ Id.
---------------------------------------------------------------------------
c. FLIR hot spot
Treasury Department documents provided to the subcommittees indicate
that at the request of ATF, Forward Looking Infrared Radar (FLIR)
imaging was taken on January 6, 1993, by the Texas National Guard
Counterdrug unit in a National Guard counterdrug aircraft. Eugene
Trevino, a Texas National Guard airman aboard the aircraft, offered an
unofficial interpretation of the FLIR photos to the Austin ATF agents in
which he stated that the ``hot spot'' inside the residence ``could be
indicative of `a methamphetamine lab.' '' \329\ It is unclear whether
ATF agents solicited Trevino's personal interpretation or if he offered
it on his own volition.
---------------------------------------------------------------------------
\329\ Id.
---------------------------------------------------------------------------
Regardless of the impetus for the interpretation, Lt. Col. Pettit
and Lieutenant Justice ``maintained that only information about grid
coordinates was officially provided to ATF'' and that ``no official
interpretation was ever provided to ATF regarding the `hot spot.' ''
\330\ Even though ATF never sought an official interpretation,\331\ ATF
agents later offered the ``hot spot'' as direct evidence of a
methamphetamine lab to the military when JTF-6 requested additional
proof of the drug nexus at a February 4, 1993 meeting.\332\
---------------------------------------------------------------------------
\330\ Id.
\331\ Id.
\332\ Id.
---------------------------------------------------------------------------
Major General Pickler testified that at the February 4 meeting there
was some pictorial evidence (i.e., FLIR evidence) that an active
methamphetamine lab was on the site of the residence and ATF expected
the lab to be there.\333\ Interviews with DEA agents have revealed that
FLIR imaging is not a technique used to identify clandestine drug labs
because using ``hot spots'' as signatures for methamphetamine labs is
too unreliable.\334\ DEA agents have informed subcommittee staff that
the use of FLIR imaging to identify an active methamphetamine lab would
be a last resort and only as ``icing on the cake'' under that
circumstance.
---------------------------------------------------------------------------
\333\ Hearings Part 1 at 363.
\334\ Drug Enforcement Administration briefing to the subcommittees
(June 8, 1995) and telephone interviews with Drug Enforcement
Administration chemists.
---------------------------------------------------------------------------
d. The DEA lab team
Only when General Pickler of JTF-6 continued to request additional
evidence of a methamphetamine lab, did ATF indicate it intended to
include a lab team from the DEA in the operation.\335\ Treasury
documents indicate that two DEA officials were at the Command Post at
the Texas State Technical Institute on the day of the raid; but ATF
declined the DEA offer of direct assistance from a DEA Clandestine
Certified Laboratory Team.\336\ Such a lab team is specially trained and
certified to ``take down'' active methamphetamine labs. These teams also
have the specialized equipment and tactical training required for
methamphetamine lab operations.
---------------------------------------------------------------------------
\335\ General Pickler testified that Lt. Col. Berthal was told at
the February 4 and 5, 1993, meeting in Houston that ATF had intended to
include a DEA lab team in the Waco operation. Hearings Part 1 at 369-
370.
\336\ Treasury Document T4589.
---------------------------------------------------------------------------
e. The precursor chemicals used to produce methamphetamine
There are numerous methods to produce methamphetamine. However,
certain chemicals required in the synthetic process are themselves
incorporated into the molecule of the target drug (in this case
methamphetamine).\337\ These chemicals are referred to as precursor
chemicals and their delivery would be evidence that methamphetamine was
being produced. While ATF agents repeatedly proffered evidence of
deliveries of precursor chemicals to the Branch Davidian residence as
proof of an active methamphetamine lab, the Treasury Department has
since been unable to locate or produce the documents offered to support
its precursor contentions.\338\
---------------------------------------------------------------------------
\337\ U.S. Department of Justice, Drug Enforcement Administration
publication, Chemicals Used in the Clandestine Production of Drugs at ii
(March 1995).
\338\ On February 2, 1993, ATF Special Agents Pali and Phil Lewis
met with representatives of the JTF-6, Texas National Guard and
Operation Alliance. Lewis mentioned the delivery of precursor chemicals
to the residence. On February 4, 1993, ATF Special Agents Lewis, Pali,
and ATF Special Agent Chuck Sarabyn met with representatives from JTF-6
and the Texas National Guard to discuss evidence of a possible drug
nexus. Attendees recall Sarabyn showing documents detailing the delivery
of precursor chemicals to the residence. However, Treasury has been
unable to find those documents. Letter from Department of Treasury to
the subcommittees (January 26, 1996) (responding to the subcommittees'
request for information on November 16, 1995.)
---------------------------------------------------------------------------
Treasury documents outlining the series of meetings between
military, Texas National Guard, and ATF officials, describe a February
4, 1993, meeting held at the SAC/Houston office regarding military
support. In attendance were Special Agent Lewis; Special Agent Sarabyn;
Lt. Col. Bertholf; Special Agent Pali, ATF coordinator to Operation
Alliance; William Enney, Texas State Interagency Coordinator; and Maj.
Lenn Lannaham, JTF-6 Liaison. During the meeting, Sarabyn offered ATF
documents including a list of methamphetamine precursor chemicals, in
support of the drug nexus.\339\ As a result of the meeting, military
support of the Branch Davidian investigation continued.
---------------------------------------------------------------------------
\339\ Again, the subcommittees have never received this document
listing the methamphetamine precursor chemicals, nor has ATF
documentation on the delivery of such chemicals to the Branch Davidian
residence been provided.
---------------------------------------------------------------------------
According to General Pickler's testimony before the subcommittees,
Lt. Col. Berthal was told at the February 4, 1993 meeting in Houston
that precursor chemicals were discussed as one of the elements of proof
proffered by ATF that an active methamphetamine lab existed and those
chemicals may have been on site at the Branch Davidian residence.\340\
General Pickler testified that the ATF representative, while giving a
background briefing as to why ATF had targeted the Davidians, indicated
that UPS or shipping documents ATF was tracking included a great deal of
precursor chemicals consistent with the production of illegal
drugs.\341\ However, General Pickler also testified that precursor
chemicals were discussed in the context of the possibility of a delivery
of those kinds of chemicals much earlier than 1993, but he is not
exactly certain which precursor chemicals were there.\342\
---------------------------------------------------------------------------
\340\ Hearings Part 1 at 363, 369-370.
\341\ Id. at 378. The Treasury Department has been unable to locate
these documents.
\342\ Id.
---------------------------------------------------------------------------
General Pickler's testimony raises several questions: First, what
did ATF actually tell the military about precursor chemicals? Second,
General Pickler's testimony implies it was that information about
deliveries of precursor chemicals that ATF offered when the military
requested additional evidence. If General Pickler was uncertain when
precursor chemicals were present at the Branch Davidian residence, why
did he approve the ATF training by an elite Special Forces military unit
assigned to do counterdrug missions? Third, did General Pickler simply
rely on the absence of a defined drug nexus standard in approving the
training mission? Fourth, after he requested additional information
before approving the military training, why did General Pickler and
other military officials say it is not the position of the military to
question the veracity of a drug law enforcement declaration that a drug
nexus exists? Especially, since JTF-6's own planning guide States that
in conjunction with Operation Alliance, the National Guard and Regional
Logistics Office ``reviews and validates all requests for support.''
\343\
---------------------------------------------------------------------------
\343\ JTF-6 Operational Support Planning Guide, p. 16-T08786, 08803.
---------------------------------------------------------------------------
3. Evidence refuting ATF's claim of a drug nexus
a. ATF failed to address the issue of an active
methamphetamine laboratory into raid planning
Undermining ATF's claim that a methamphetamine lab existed at the
Branch Davidian residence, is the fact that briefing papers which went
up to ATF Headquarters, status reports and other requests failed to
mention the existence of a methamphetamine lab at the planned raid site
or suspected illegal narcotics production.
A review of the January 5, 1993, briefing paper sent to ATF's
Washington, DC. Headquarters reveals that no mention of the subject of
drugs or military involvement even though senior ATF officials at
headquarters were signing off on requests for military assistance under
the guise of a counter-narcotics operation.\344\ Treasury documents
indicate that this briefing paper was forwarded to the Assistant
Secretary of the Treasury for Enforcement after review by the ATF
Director and his staff.\345\ The forwarding of this type of briefing
paper was the normal procedure the ATF Director used to notify Treasury
of major on-going cases.\346\
---------------------------------------------------------------------------
\344\ Treasury Documents T004634-T004642.
\345\ Treasury Documents T004621-T004624.
\346\ Id.
---------------------------------------------------------------------------
In addition to the January 5 briefing paper, monthly status reports
were prepared by Aguilera, reviewed by Dunagan, the Assistant Resident
Agent in Charge of the Austin, TX office and approved by Chojnacki, the
Special Agent in Charge of the Austin, TX office who then forwarded the
reports to the Special Agent in Charge of the Houston Office. Although
these reports being provided over a 9 month period and almost daily
during the weeks leading up to the raid, they never mention the case as
a counter-narcotics investigation or any military involvement.
As late as February 5, 1993, Chojnacki requested the use of flash
bangs and failed to mention the possible existence of an ``active
methamphetamine lab,'' even though ATF policy states that drug
laboratories or other explosive environments may be so hazardous as to
preclude the use of flash bangs.\347\ In fact, the only consistent
mention of any drug activity by Branch Davidians in any of the ATF Waco
documents on Waco is in requests for military assistance which required
drug activity to justify military intervention and assistance.
---------------------------------------------------------------------------
\347\ Treasury Documents T008213-T008214.
---------------------------------------------------------------------------
b. ATF agents were not properly trained and certified
The second piece of evidence refuting ATF's claim that a drug nexus
actually existed is the fact that ATF agents involved in the raid on the
Branch Davidian residence were not trained and/or certified in
methamphetamine operations. Furthermore, the lack of necessary safety
precautions taken in the planning, training and operation indicate that
these agents were ill-equipped and unprepared for the ``suspected''
presence of an active methamphetamine lab. These failures are in direct
conflict with ATF's own guidelines on clandestine lab operations.
c. The DEA's offer of assistance
ATF's claim that a drug nexus actually existed is called into
question by ATF's response to DEA's offers of assistance. The Drug
Enforcement Agency is the lead Federal agency in enforcing narcotics and
controlled substance laws and regulation. While Operation Alliance was
assisting ATF with its investigation of the Davidians, DEA had a Senior
Special Agent, Mr. William Roshon, acting as a Coordinator for DEA at
Operation Alliance. On January 22, 1993, Deputy Tactical Coordinator
William Roshon offered DEA assistance in the form of on-sight laboratory
technicians to ATF Special Agent Pali. Pali placed DEA Agent Roshon in
touch with the SAC/Houston Office.\348\
---------------------------------------------------------------------------
\348\ Special Agent Robert Tevens' ``Chronology and Witnesses re:
Military Support of ATF'' (July 14, 1993). Treasury Documents T004589-
T004593.
---------------------------------------------------------------------------
Post-raid interviews of Pali by the ATF Waco Review Team revealed
that ATF refused twice DEA's offer of on-sight lab technicians, but did
have two DEA officials from the Austin DEA office present at the Command
Post the day of the raid.\349\ Two DEA agents from the Waco office were
on stand-by for the raid.\350\
---------------------------------------------------------------------------
\349\ Id.
\350\ Id.
---------------------------------------------------------------------------
On February 2, 1993 ATF Agent Lewis provided a briefing to Operation
Alliance members on the ``suspected methamphetamine lab'' at the Branch
Davidian residence which, according to the ATF summary of events, was
known at that date ``to have received deliveries of chemical precursors
for the manufacture of methamphetamine.'' After the briefing by Lewis,
Gen. Pickler, Commander of JTF-6, stated ``that it is not the position
of the military to question the veracity of a law enforcement request
regarding a drug nexus.'' \351\ DEA Agent Rochon told Waco Review Team
interviewers, after the February 2, 1993, briefing, that he had offered
the assistance of a DEA Clandestine Certified Laboratory Team and Pali
declined the request. However, Agent Rochon did provide Lewis the phone
number of the Austin DEA Resident in Charge. Agent Roshon `` `opined'
that precursor chemicals for methamphetamine could also be used in the
manufacture of explosives.'' \352\ However, senior DEA chemists told
subcommittee investigators when interviewed regarding the use of
methamphetamine chemicals to make explosives, ``that they had never
heard that one before'' and they were unaware of any chemicals used to
produce methamphetamine which could be used to make explosives. Although
some methamphetamine chemicals are very volatile in nature, using them
to make explosives is another matter entirely. Given that ATF has
jurisdictions over explosives and DEA has jurisdiction over illegal
narcotics, it seems odd that ATF agents and DEA agent Rochon would
attempt to blur this distinction.
---------------------------------------------------------------------------
\351\ Treasury Documents T004589-T004594.
\352\ Id.
---------------------------------------------------------------------------
Although DEA was never informed officially of the Waco investigation
by ATF, two senior DEA officials were well aware of the facts
surrounding the ATF investigation of the Davidians. Two senior DEA
officials were members of the Operation Alliance board which reviewed
law enforcement agency requests. Documents indicate that at least one of
these DEA agents did offer DEA methamphetamine lab assistance and ATF
declined that offer. However, no documents received by the subcommittees
indicate that these DEA agents expressed any concern with ATF's apparent
plan to raid an active methamphetamine laboratory.
In addition, when the subcommittees requested copies of the UPS
receipts as proof of the delivery of chemicals that are required for the
production of methamphetamine or any other evidence of the delivery of
these chemicals, the subcommittees were informed that none could be
found.
d. The Special Forces paper and the ATF response to it
The fourth piece of evidence undermining ATF's claim that a drug lab
existed is ATF's own reaction to the Special Forces paper on the
methamphetamine lab. Sergeant Fitts testified that he and another
Special Forces medic where directed by Major Petree, their Commander, to
research and draft a paper on methamphetamine labs.\353\ Interviews with
Sgt. Fitts revealed that the paper addressed the dangers of
methamphetamine labs from both tactical and exposure perspectives.\354\
Sgt. Fitts and the other medic took 3 or 4 days to complete the
project.\355\
---------------------------------------------------------------------------
\353\ Hearings Part 1 at 361. Special Forces medics are considered
to be highly trained.
\354\ The subcommittees requested a copy of the paper and were told
that it could not be located. In its production of documents to the
subcommittees, the Treasury Department failed to supply a copy of the
paper although testimony before the subcommittees indicated that the
paper was presented to ATF agents at a meeting on February 4-5, 1993 in
Houston, TX.
\355\ Hearings Part 1 at 361.
---------------------------------------------------------------------------
During the February 4-5 Houston meeting, Maj. Petree presented the
paper to ATF agents who showed no interest in its contents. Sgt. Fitts
testified that ATF agents never expressed any concern about the dangers
that would be presented by a methamphetamine lab and that it was his
impression that the subject of a methamphetamine lab ``dropped off the
face of the earth after the paper was presented.'' \356\ In his opinion,
it was obvious from the reaction of the ATF agents that no
methamphetamine lab existed.\357\
---------------------------------------------------------------------------
\356\ Hearings Part 1 at 372; subcommittees' interview of Staff Sgt.
Steve Fitts, in Washington, DC (July 11, 1995).
\357\ Id. Although it was very clear from the interview of Staff
Sgt. Fitts and his testimony before the subcommittees, that this paper
was drafted to be presented to ATF at a Houston meeting on February 4-5,
1993, Maj. Petree during a pre-hearing review at first said that he
could not recall the paper and later whether it was presented to ATF.
After Staff Sgt. Fitts answered under oath that he was present when Maj.
Petree himself presented ATF the paper, Maj. Petree acknowledged that he
had received it.
---------------------------------------------------------------------------
d. post-raid military assistance to the federal bureau of investigation
(february 28-april 19)
The standoff between the government and the Branch Davidians began
on February 28, 1993, as the cease-fire went into effect following the
ATF's failed raid on the Branch Davidian residence. During that time
personnel and equipment of the U.S. Armed Forces were present at or near
the Branch Davidian residence.
1. Military equipment and personnel provided
a. Active duty personnel and equipment
During the standoff, a limited number of active duty military
personnel were present at the Branch Davidian residence providing
services to the FBI in support of the FBI's activities during the
standoff. Most of these troops were dressed in uniforms which indicated
their, rank, service, and function. A small number of troops present at
the site were assigned to Army Special Forces units. Because the
military occupational specialties of these troops are classified, they
dressed in civilian clothes while at or near the Branch Davidian
residence and did not identify themselves as military personnel.
Additionally, one of the two senior Army officers present at the April
14 meeting with the Attorney General also visited the Branch Davidian
residence in order to personally view the tactical situation. This
officer was present at the Branch Davidian residence for part of 1 day.
The type of support provided by the active duty troops consisted
primarily of performing repairs and maintenance on sophisticated
observation and electronics equipment \358\ provided by the Defense
Department to the FBI. Active duty, enlisted military personnel set-up
the equipment and performed necessary maintenance on it. There is no
evidence that military personnel actually operated the equipment.
Instead, it appears that FBI agents operated this equipment. In one
instance, however, civilian employees of the Department of Defense
operated one piece of sophisticated electronics equipment.\359\ In
addition, active duty, enlisted military personnel performed repair and
maintenance work on the electronics equipment belonging to the FBI. The
accounts given by all personnel familiar with this aspect of the
operation and who were interviewed by the subcommittees confirm that,
with this one exception, only FBI personnel operated the equipment
during the standoff.
---------------------------------------------------------------------------
\358\ The electronics equipment was used to block the Davidians'
television reception.
\359\ Hearings Part 3 at 315 (statement of Allen Holmes, Assistant
Secretary of Defense for Special Operations and Low Intensity Conflict).
---------------------------------------------------------------------------
b. National Guard personnel and equipment
During the standoff, the Texas National Guard provided a number of
military vehicles to the FBI. Principal among these were 10 Bradley
Fighting Vehicles (Bradleys), 4 M728 Combat Engineering Vehicles
(CEV's), 2 M1A1 Abrams tanks, and 1 M88 tank retriever. The weapons
systems in those of these vehicles which are normally armed were removed
before they were transported to the Branch Davidian residence.\360\
---------------------------------------------------------------------------
\360\ Id. at 314.
---------------------------------------------------------------------------
During the standoff the Bradleys were used primarily as armored
personnel carriers to transport FBI officials to meetings with the
Davidians, to transport FBI agents to their observation posts around the
Branch Davidian residence, and by FBI agents to guard the perimeter of
the operation. During the insertion of the CS agent on April 19, the
Bradleys were used by FBI agents to maneuver close enough to the Branch
Davidian residence so that the agents could fire Ferret round
projectiles containing CS agent into the windows of the residence.
The CEV's were not used until April 19. Attached to each CEV was a
long triangular boom-like arm. Attached to the booms of two of the CEV's
were mounted devices that sprayed CS agent mixed with carbon dioxide. On
April 19, these CEV's were used to ram holes into the Davidians
residence. The operators in each CEV then inserted CS agent into the
building using the devices affixed to the boom. Insertions of CS agent
occurred in four distinct phases throughout the morning of the 19th. At
one point, one of the CEV's became damaged and could no longer spray CS
agent. As the day progressed, the FBI began to use the CEV's to
``deconstruct'' the Branch Davidian residence, using them to ram into
the corners and sides of the building, creating large openings in the
building. At one point, part of the rear roof collapsed after one CEV
made multiple entries into the side of the building.
In addition to these vehicles, a number of support vehicles (e.g.,
Humvees, used to transport personnel, and flatbed trucks, used to haul
the Bradleys and CEV's to Waco) were located at or near the Branch
Davidian residence. Additionally, Defense Department provided support
equipment (e.g., tents, generators, concertina wire) to the FBI.
An unknown number of Texas National Guard personnel were present
during the standoff. Most of these personnel performed maintenance on
the military vehicles loaned to the FBI or to provide support services
for these troops (i.e., National Guard cooks were present to prepare
meals for the mechanics). Other National Guard troops provided remedial
training to the FBI's HRT members who were to operate the Bradleys and
CEV's. Additionally, on April 19, some National Guard troops assisted
FBI agents in refilling the CEV's with the CS riot control agent.
c. Reimbursement
The Economy Act \361\ requires the Justice Department to reimburse
the Department of Defense for the cost of the equipment and personnel
support provided to it. The subcommittees have been informed that this
reimbursement has been made.
---------------------------------------------------------------------------
\361\ 31 U.S.C. Sec. 1535.
---------------------------------------------------------------------------
2. Advice/consultation provided by military officers
a. Request by Texas Governor
When Texas Governor Ann Richards learned of the failed ATF raid on
February 28, she requested to consult with a knowledgeable military
officer about the incident. In response to her request, the commander of
the U.S. Army's III Corps at Fort Hood, TX, asked the assistant division
commander of the First Cavalry Division of the III Corps, also at Fort
Hood, to meet with Governor Richards. That officer met with the Governor
on the evening of February 28. During the meeting, the officer answered
the Governor's questions concerning the types of military equipment the
ATF had used during the raid and the types of military equipment which
Federal law enforcement officials might use in the future. The Governor
also requested that the officer meet with the Texas Adjutant General
(the commander of the Texas National Guard), who only recently had been
appointed to his position.
b. Visit to the Branch Davidian residence with FBI officials
Two senior Army officers participated in a meeting of Justice
Department and FBI officials with the Attorney General on April 14.
During the meeting, the participants discussed the FBI's plan to end the
standoff. The subcommittees' investigation revealed that one of the Army
officers visited the Branch Davidian residence on April 13, accompanied
by HRT commander Rogers.
During a briefing of the subcommittees these officers indicated that
Rogers had arranged for the officers to be included in the April 14
meeting and had invited one of them to view the Branch Davidian
residence to better understand the tactical situation. Rogers met the
officer at the Branch Davidian residence and arranged for a helicopter
tour of the perimeter of the area. The officer informed the
subcommittees that he only observed the FBI's activities there and did
not take part in the ongoing operation. The officer and Rogers then left
Waco to travel to Washington for the meeting with Attorney General Reno.
The officer further informed the subcommittees that his visit to the
Branch Davidian residence was his first visit and that he did not return
to the Branch Davidian residence after April 14. The other officer
present at the April 14 meeting stated that he did not visit the Branch
Davidian residence at any time. The subcommittees' interviews with both
FBI and other military personnel present at Waco during the standoff
confirmed the statements of the Army officers.
c. April 14, 1993 meeting with Attorney General Reno
On April 14, 1993, a meeting was held in the office of the Director
of the FBI with Attorney General Reno and several Justice Department and
FBI officials. According to the Justice Department Report, ``several
military representatives'' were also present.\362\ The subcommittees'
investigation identified the two senior military officers present at the
meeting. These two officers briefed the members of the subcommittees in
a classified briefing in July of 1995 in conjunction with the
subcommittees' public hearings. Additionally, a Defense Department
representative testified before the subcommittees in open session
generally as to the discussions between the officers and Attorney
General Reno on April 14, 1993.
---------------------------------------------------------------------------
\362\ Justice Department Report at 266.
---------------------------------------------------------------------------
The officers present at the April 14 meeting at the invitation of
FBI officials were to answer any questions Attorney General Reno might
pose about the FBI's plan to end the standoff. The officers understood
they had been selected to attend the meeting because of their special
tactical training and experience. Additionally, HRT commander Rogers
knew one of the officers personally and had facilitated the request from
the Justice Department to Defense Department that the officers attend
the meeting.\363\
---------------------------------------------------------------------------
\363\ Hearings Part 3 at 304, 314 (statement of Allen Holmes,
Assistant Secretary of Defense for Special Operations and Low Intensity
Conflict).
---------------------------------------------------------------------------
The officers informed Attorney General Reno that they could not
comment on specific FBI plans to end the standoff.\364\ One of the
officers did inform Attorney General Reno that if the HRT had been a
military force under his command, he would recommend pulling it away
from the Branch Davidian residence for rest and retraining.\365\ They
also explained to Attorney General Reno that if the military had been
called in to end a barricade situation as part of a military operation
in a foreign country, it would focus its efforts on ``taking out'' the
leader of the operation.
---------------------------------------------------------------------------
\364\ Id. at 304.
\365\ Id. at 304, 314.
---------------------------------------------------------------------------
The officers believed Attorney General Reno understood their
comments as an illustration of the tactical principal that a group
heavily dependent on a charismatic leader for direction, such as the
Davidians, can best be controlled if the leader is removed from control.
The officers believe Attorney General Reno understood that their
comments were appropriate to a military operation abroad but were not
directly applicable to the domestic law enforcement situation facing
Attorney General Reno.
3. Foreign military personnel
Foreign military personnel were present at the Branch Davidian
residence during the standoff sometime in March. The two persons present
were members of the 22nd Regiment of the British Army's Special Air
Service (SAS). This branch possesses special tactical military skills
and has a role similar to U.S. Army Special Forces troops. American
military personnel present during the standoff informed the
subcommittees that the SAS personnel observed the activities of the FBI
and took no part in the actions of the military or the FBI. The two SAS
representatives were not present on April 19, the date the standoff
ended.
Accordingly to the Justice Department's written response to
questions submitted by the subcommittees, the SAS personnel were present
at Fort Bragg, NC in early 1993 on other business and requested to
observe the FBI's HRT command post and forward tactical positions at
Waco. FBI officials have informed the subcommittees that the HRT
maintains liaison with the military and law enforcement counter-
terrorist units of friendly foreign countries, including the United
Kingdom, Germany, Italy, Spain, Australia, and Denmark. HRT commanders
occasionally invite representatives of these units, a well as the U.S.
Army Special Forces, to observe operations in which the HRT is engaged,
as each of the organizations has similar skills and performs similar
functions. This professional courtesy apparently is extended to FBI
officials as well by the U.S. Special Forces and the counter-terrorist
units of the countries listed above. The FBI explained the presence of
the SAS personnel at the Branch Davidian residence as an example of this
type of information-sharing.
The subcommittees' investigation finds no support for the assertions
made by some that SAS personnel, or any other foreign persons, took part
in the activities of U.S. Government agencies at the Branch Davidian
residence. Accordingly, the subcommittees conclude that the two SAS
personnel were the only foreign persons present at the Branch Davidian
residence \366\ and that they took no part in the government's
activities there.
---------------------------------------------------------------------------
\366\ Other than some of the Davidians, several of whom were foreign
nationals.
---------------------------------------------------------------------------
e. findings concerning military involvement in the government operations
at waco
1. The Posse Comitatus Act was not violated.
a. No violations of the Posse Comitatus Act occurred up to February
28, 1993. The subcommittees conclude that no actual violation of the
Posse Comitatus Act occurred as a result of the military support
provided to the ATF through February 29, 1993. The subcommittees review
of this question was divided into two parts: the support provided by
active duty military personnel prior to February 28 and the support
provided by Texas National Guard troops up to and on February 28, 1993.
The subcommittees find no violation of the Posse Comitatus Act as a
result of the support provided by the active duty military personnel who
facilitated the training of ATF agents at Fort Hood, TX in late February
1993. The ATF's initial request to Operation Alliance included a request
that military medical personnel actually participate in the raid on the
Branch Davidian residence. The ATF also requested that military
personnel participate in the formulation of the ATF's overall raid plan
against the Davidians' residence. These requests raised the concern of
military lawyers due to their Posse Comitatus implications. The
subcommittees conclude that these officers were correct to raise these
concerns and that their actions helped prevent a violation of the Posse
Comitatus Act.
As a result of the concern by these officers as to ATF's request,
less support was provided than initially requested. That support was
limited to providing and staffing a training area for the ATF at Fort
Hood, teaching basic first aid, and providing general advice on
communications questions. Because these activities do not rise to the
level of direct participation in a law enforcement action, they did not
violate the Posse Comitatus Act.
The subcommittees also find no violation of the Posse Comitatus Act
as a result of the support provided by the Texas National Guard which
participated in the training that the ATF conducted for its agents at
Fort Hood, TX in late February 1993 and which flew the helicopters on
February 28 that were part of the ATF's raid on the Branch Davidian
residence. The Texas National Guard troops who participated in these
activities were acting in their ``state national guard'' status under
the command and control of the Governor of Texas, even though the costs
of the operation were paid by the Federal Government pursuant to title
32 of the U.S. Code.
The Posse Comitatus Act does not govern the actions of the National
Guard when it is acting in a non-Federal (i.e., State) status. Because
the Texas National Guard troops participating in the ATF's training and
the raid itself were acting in this status, the Posse Comitatus Act did
not apply to them. Accordingly, no violation was possible and none,
therefore, occurred.
b. No violations of the Posse Comitatus Act occurred after February
28, 1993. The subcommittees conclude that no actual violation of the
Posse Comitatus Act occurred as a result of the military support
provided to the FBI after February 28, 1993. The subcommittees review of
this question involved two issues: the support provided by active duty
military personnel prior to February 28 and the support provided by
Texas National Guard troops through April 19, 1993.
The subcommittees find no violation of the Posse Comitatus Act as a
result of the support provided by the active duty military personnel who
were present at the Branch Davidian residence from February 28, 1993 to
April 19, 1993. The subcommittees' investigation indicates, and the
testimony of the witnesses who testified at the hearings confirmed that
no active duty military personnel actively participated in any actions
that can be characterized as the exercise of the law. The actions of the
enlisted personnel appear to have been limited to setting up equipment
and performing maintenance on it, or providing support to other military
personnel (e.g., transportation, food service). All of the military
personnel interviewed by the subcommittees confirmed that only FBI
employees operated the military equipment during the law enforcement
activities conducted at the Branch Davidian residence. The subcommittees
found no evidence to the contrary.
As discussed above, the Posse Comitatus Act does not govern the
actions of the National Guard when it is acting in a non-Federal (i.e.,
State) status. Accordingly, none of the actions taken by the National
Guard during the standoff violated the Posse Comitatus Act. The
subcommittees note, however, that it appears that the National Guard's
role during the standoff was very limited. The National Guard role
generally involved troops transporting to the Branch Davidian residence
all of the military vehicles used by the FBI during the standoff and
performing routine maintenance on them.
On April 19, National Guard troops assisted the FBI in refilling the
CEV's with the CS agent used in the unsuccessful effort to induce the
Davidians to leave the residence. Because the National Guard troops are
not subject to the Prohibitions of the Posse Comitatus Act when acting
in their State status, no violation occurred. The subcommittees note,
however, that had the National Guard troops instead been active duty
personnel, or acting in a Federal status, their participation in the
execution of the CS gas plan would have violated the Posse Comitatus
Act.
2. The ATF misled the Defense Department as to the existence of a
drug nexus in order to obtain non-reimbursable support from the Defense
Department. The subcommittees conclude that the ATF intentionally misled
Defense Department and military personnel as to whether the Davidians
were operating an illegal drug manufacturing operation at the Davidian
residence. It appears that the ATF agents involved in planning the raid
knew that they could obtain support from the military at no cost in
preparation for their raid. It also appears that the ATF knew that this
support would be provided promptly if the presence of a drug
manufacturing operation was alleged. While there had been allegations
that a drug manufacturing operation was located at the Davidian
residence at some point in the mid to late 1980's before Koresh took
control of the group, there was no evidence that the drug operation
continued into late 1992. The ATF's misrepresentations improperly
enabled it to obtain military assistance from forces which otherwise
would not have provided it, more quickly than might have been possible,
and without having to reimburse the Defense Department as otherwise
would have been required under Federal law.
The subcommittees also conclude that the commander of the military
personnel providing the training knew or should have known that the
ATF's allegations as to the existence of a drug manufacturing operation
at the Davidian residence were, at best, overstated and were probably
untrue. His failure to raise this issue with his superiors is troubling.
The subcommittees believe this failure should be reviewed by Defense
Department authorities.
3. No foreign military personnel or other foreign persons took part
in any way in any of the government's actions toward the Branch
Davidians. While some foreign military personnel were present in Waco
during the government's operations toward the Davidians, there is no
evidence that any of these persons took part in the government's
operations in any way.
4. Civilian law enforcement's increasing use of militaristic tactics
is unacceptable. The FBI's and ATF's reliance on military type tactics
greatly concerns the subcommittees. The Waco and Ruby Ridge incidents
epitomize civilian law enforcement's growing acceptance and use of
military type tactics. The subcommittees find this trend unacceptable.
When ATF faced the option of conducting a regulatory inspection or
tactical operation, it chose the tactical operation. When ATF had to
decide between arresting Koresh away from the Branch Davidian residence
or a direct confrontation, it chose direct confrontation. ATF also
decided to conduct a dynamic entry as opposed to a siege.
The subcommittees are not recommending that the use of militaristic
tactics should always be precluded. The subcommittees acknowledge that
there are certain circumstances in which military type tactics may be
necessary. The subcommittees urge all Federal law enforcement agencies
to review their policies on military training and tactics and develop
appropriate guidelines for when such tactics are acceptable. Military
training, especially specialized training in combat tactics, should be
highly restricted and the use of military tactics, such as a dynamic
entry should be approved at the highest agency levels.
f. recommendations
1. Congress should consider applying the Posse Comitatus Act to the
National Guard with respect to situations where a Federal law
enforcement entity serves as the lead agency. The subcommittees
acknowledge that the Posse Comitatus Act has been and continues to be a
significant protection for the rights of the people. The events in Waco,
however, suggest that these protections may not be as strong as most
citizens assume.
As discussed above, the Posse Comitatus Act does not apply to the
National Guard when it is acting in its State status. As the events at
Waco illustrate, actions taken by National Guard troops can never
violate this law, even when those same acts would violate the law were
they undertaken by active duty military personnel. The subcommittees
question whether this distinction is acceptable to the American people.
The purpose of the Posse Comitatus Act is to prevent the government
from using the military against its own citizens. Yet the National Guard
and the Reserve exists in part, to augment the active duty military in
times of need. National Guard troops receive military training. National
Guard units are equipped with military equipment, in some cases the most
sophisticated and lethal military equipment in the Defense Department's
arsenal, including tanks, fighter and bomber aircraft, and armored
personnel carriers. These units, by design, possess many of the same
capabilities as active military units. In fact, almost one-half of the
U.S. Armed Forces is composed of National Guard and Reserve forces. When
activated by the President, the National Guard becomes part of the
active duty military.
While Federal law distinguishes between the National Guard in its
various ``statuses,'' this distinction is unclear to the vast majority
of the public. Many citizens no doubt would be surprised and concerned
to learn that components of the same forces the United States used in
Operation Desert Storm, Somalia, and Bosnia also can be used against
them in the United States as long as the ``status'' of the troops used
fits within the proper category. Given that many National Guard units
have force capabilities similar to that of active duty units, it makes
little common sense that one unit's activities may be constrained by the
Posse Comitatus Act while another's are not. In short, if it is
important to prevent military force from being used to enforce the civil
laws, it should matter little the ``status'' of the force used against
the citizenry.
The question of applying the Posse Comitatus Act to the National
Guard has not been examined recently by the Congress. Accordingly, the
subcommittees recommend that Congress hold hearings on this matter to
determine whether the Posse Comitatus Act should be broadened to apply
to the National Guard and what exceptions to the act's prohibitions, if
any, are appropriate to the National Guard in light of its role and
mission.
2. The Department of Defense should streamline the approval process
for military support so that both Posse Comitatus Act conflicts and drug
nexus controversies are avoided in the future. The subcommittees'
investigation revealed that Department of Defense procedures for
receiving, evaluating, and deciding upon requests for assistance from
domestic law enforcement agencies was unclear in early 1993. Generally,
requests for military assistance to domestic law enforcement agencies
were channeled through the Director of Military Support (DOMS), an Army
two-star general headquartered at the Pentagon who heads a staff that is
on-call 24 hours a day. In some cases, commanders of local military
bases are authorized to provide support without approval of the DOMS if
the requests are limited in scope.
As of 1993, requests for military support relating to counterdrug
operations were not required to be submitted to the DOMS for approval
but instead were channeled through Operation Alliance, a group
representing agencies such as the ATF, the Border Patrol, and other
Federal law enforcement agencies together with military representatives.
Operation Alliance serves merely as a clearinghouse for requests,
tasking actual military organizations to provide the support. In this
case, Operation Alliance tasked Joint Task Force-6 and the Texas
National Guard, two of the military organizations at its disposal.
Requests for support involving the use of lethal equipment, such as
Bradley Fighting Vehicles and tanks,\367\ were to be made through the
Office of the Secretary of Defense in the Pentagon. Apparently, however,
that requirement was not complied with in this case.
---------------------------------------------------------------------------
\367\ As discussed above, however, while some of these vehicles are
considered lethal equipment the weapons systems in all of the military
vehicles used by the FBI during the standoff had been rendered
inoperative prior to the delivery of the vehicles to the Branch Davidian
residence. Hearings Part 3 at 314 (statement of Allen Holmes, Assistant
Secretary of Defense for Special Operations and Low Intensity Conflict).
---------------------------------------------------------------------------
The subcommittees believe that authority for approving military
support for domestic law enforcement operations should be located within
one office within the Office of the Secretary of Defense. Centrally
locating this responsibility will help ensure that uniform standards are
applied in evaluating all requests for military support and that no
agencies can successfully ``end-run'' the approval process. It also will
reduce confusion among law enforcement agencies which, under the process
as it existed in 1993, first had to determine without Defense Department
guidance the purpose for the support (i.e., counterdrug or not
counterdrug) and the type of military assets that might be involved
(i.e. lethal assets or strictly non-lethal assets). The subcommittees
believe that it is best left to the military, in the first instance, to
determine the nature and type of support it is able to provide, in
keeping with the Posse Comitatus Act and it own need to fulfill its
primary defense mission.
The process for civilian law enforcement agencies receiving military
assistance must require that all requests and approvals be in writing,
specifying in detail the requested and approved military assistance.
Additionally, the Department of Defense needs to establish a clear and
concise standard for what constitutes a sufficient drug nexus. Congress
should specifically establish criminal and pecuniary penalties for
willful violations of the drug nexus standard.
The subcommittees acknowledge that in May 1995, the Secretary of
Defense directed the Under Secretary of Defense for Policy to establish
a working group ``to conduct a comprehensive review of the current
system by which Defense Department evaluates and responds to request for
assistance initiated by outside agencies.'' As a result of the working
group's recommendations, the Secretary recently directed that requests
for military support are to be channeled through the Office of the
Assistant Secretary of Defense for Special Operations and Low Intensity
Conflict. The subcommittees commend this decision to centralize the
approval process for providing this type of support. This policy should
be frequently monitored so as to ensure that law enforcement agencies,
and field commanders, are complying with it.
3. Congress should review the legal status of memoranda of agreement
for the interstate use of National Guard personnel for civilian law
enforcement purposes. The subcommittees' investigation revealed that the
use of National Guard personnel across State lines for law enforcement
purposes is a common practice. This practice is conducted through
simple, pro forma memoranda of agreement which rarely take into account
State laws governing the use of the National Guard. The subcommittees
believe that, in practice, many of these agreements supersede State
constitutions and statutes without legal authority. The subcommittees
are concerned that these agreements do not comply with Federal laws and
may violate the U.S. Constitution.
The subcommittees recommend that Congress, the Department of
Defense, and its National Guard Bureau come to an agreement on the
proper legal status of these National Guard Memoranda of Agreement. If
it is determined these agreements require congressional ratification,
procedures to obtain such approval should be established by the National
Guard Bureau.
Regardless of whether these memoranda of agreement require
congressional ratification, however, the National Guard Bureau should
establish a centralized review process for all Memoranda of Agreement
involving the interstate use of the National Guard personnel. This
review process must include a per case legal determination that
pertinent State law is not violated by the agreement.
4. The General Accounting Office should audit the military
assistance provided to the ATF and to the FBI in connection with their
law enforcement activities toward the Branch Davidians. Given that the
subcommittees have been unable to obtain detailed information concerning
the value of the military support provided to the ATF and the FBI, the
subcommittees recommend that the General Accounting Office conduct an
audit of these agencies to ascertain the value of the military support
provided to them and to ensure that complete reimbursement has been made
by both agencies. If violations of the Anti-Deficiency Act or other
Federal laws are found, the appropriate legal action should occur,
including criminal prosecution if permitted under existing law.
5. The General Accounting Office should investigate the activities
of Operation Alliance in light of the Waco incident. The subcommittees
concluded that Operation Alliance personnel knew or should have known
that ATF did not have a sufficient drug nexus to warrant the military
support provided to it on a non-reimbursable basis. Senior DEA agents
were members of the Operation Alliance board which approved requests for
military assistance, yet they voiced no concerns regarding ATF's plan to
directly assault an alleged active methamphetamine laboratory. Military
officers were present when ATF was presented a paper detailing the
potential dangers and special precautions required when dealing with an
active methamphetamine laboratory. The purpose of the meeting was to
determine whether a drug nexus existed. Even though there was evidence
that no drug existed, those military officers present took no action.
UPS receipts which allegedly detailed deliveries of precursor chemicals
to the Branch Davidian residence and were used to substantiate the drug
nexus were nowhere to be found when the subcommittees requested copies.
Additionally, the subcommittees' review of military documents
provided at their request and the results of interviews with persons
involved in this matter clearly demonstrate that there was a continuing
concern from senior military officers that JTF-6 was providing support
to non-counterdrug activities, and that the Special Operations Command
was attempting to reinforce resistance to this recurring misuse of
military counterdrug assets and funds, referred to as ``cheating.''
Given that the military assistance to ATF for Waco under dubious
circumstances appears to not have been an anomaly, and the fact that
Operation Alliance's jurisdiction has significantly expanded since Waco,
the subcommittees recommend that the General Accounting Office
investigate the activities of Operation Alliance.
VI. Negotiations To End the Standoff With the Davidians
Negotiations between the FBI and the Branch Davidians continued for
51 days during which time the negotiators utilized generally accepted
negotiation techniques. The FBI was unwilling to engage in a novel
approach toward the Davidians.
While American hostage negotiation training, especially FBI
training, is thought to be the best in the world, there remains
considerable room for reassessment and, based on the Waco record,
improvement. The FBI possesses exceptional negotiators, but the Bureau
was unwilling to engage outside experts and too eager to ignore the
advice given by its own experts. The evolving nature of hostage
barricade situations necessitates that in the future the FBI continually
strive for the preparedness to confront more emotional and unpredictable
barricaded subjects. At Waco, FBI resistance to different negotiation
methods may have contributed to a premature decision to end the
standoff.
a. the conflict between tactical commanders and negotiators
1. The problem with two teams: one negotiating team and a tactical team
At Waco, the FBI Crisis Management Team was deployed. The Crisis
Management Team is made up of a variety of law enforcement
professionals, among them agents trained as tactical agents and as
negotiators. The team was divided into groups with separate leadership
and different responsibilities. Each team gave its perspective to
Jeffrey Jamar, the Special Agent in Charge, who determined which
strategy to employ in negotiations. There often was a conflict between
these two approaches.
Although disposed to the active approach, Jamar allowed the
proposals of each team to be implemented simultaneously, working against
each other.
a. Standard Procedure in Negotiations
According to the FBI's Chief Negotiator, Gary Noesner, the conflict
between tactical and negotiating teams is the one universal element in
law enforcement operations of this type.\368\ FBI tactical forces are
trained to act in stressful, violent situations. Agents are inclined
toward the ``action imperative,'' the sense among agents that motivates
them to act.\369\ Negotiators are more inclined to seek a nonviolent
resolution of the standoff simply by virtue of their training.
---------------------------------------------------------------------------
\368\ Briefing by Federal Bureau of Investigation Supervisory
Special Agent Gary Noesner to the subcommittees, November 1995.
\369\ Id.
---------------------------------------------------------------------------
The FBI has a policy in place that favors a negotiated
settlement.\370\ Through a type of negotiation called active listening,
negotiators attempt to find ways to explain to the barricaded subject
why it is in his best interest to seek a nonviolent solution. This FBI
policy and training of negotiators conflicts with the ``action
imperative.''
---------------------------------------------------------------------------
\370\ Id.
---------------------------------------------------------------------------
b. Major disagreements between the two teams
Each team adamantly argued to Jamar on behalf of its perspective and
adamantly opposed the other's.\371\ Dr. Alan A. Stone \372\ chronicled
the progression in strategy that occurred among the FBI Commanders at
Waco in his Report and Recommendations. At first, according to Stone,
``the agents on the ground proceeded with a strategy of conciliatory
negotiation, which had the approval and understanding of the entire
chain of command. Pushed by the tactical leader, the commander on the
ground began to allow tactical pressures to be placed on the residence
in addition to negotiation.'' \373\ Stone summarized the feelings of
negotiators of this inevitable progression. Stone writes, ``This
changing strategy at the residence from (1) conciliatory negotiating to
(2) negotiation and tactical pressure and then to (3) tactical pressure
alone, evolved over the objections of the FBI's own experts and without
clear understanding up the chain of command.'' \374\
---------------------------------------------------------------------------
\371\ U.S. Dept. of Justice, Report to the Deputy Attorney General
on the Events at Waco, TX 75 (1993) [hereinafter Justice Department
Report]. ``The guiding principle in negotiation and tactical employment
is to minimize the risk to all persons involved--hostages, bystanders,
subjects, and law enforcement officers.'' But the Justice Department
report states that the negotiating components of the FBI strategies were
``more often contradictory than complimentary.''
\372\ Alan A. Stone, M.D., Touroff/Glueck Professor of Psychiatry
and Law at Harvard University, originally was asked to participate in
the Department of Justice Waco review team. For a variety of reasons,
including time constraints, Dr. Stone submitted an individual report
apart from the Justice Department Report. See infra note 373.
\373\ Alan A. Stone, Report: To Deputy Attorney General Philip
Heymann, Report and Recommendations Concerning the Handling of Incidents
Such as the Branch Davidian Standoff in Waco, TX, Panelist, Alan A.
Stone, M.D., (November 8, 1993) [hereinafter Stone Report].
\374\ Id.
---------------------------------------------------------------------------
The disagreement was called a ``fundamental strategy disagreement.''
\375\ The negotiators suggested that tactical maneuvers worked against
the negotiation process. The tactical team wanted to employ aggressive
tactics. Regarding the conflict with tactical people, McClure says
simply, ``Tactical people think in tactical terms and negotiators think
in negotiation terms.'' \376\ Byron Sage, a Supervisory Special Agent
and the lead day-to-day FBI negotiator at Waco, testified before the
subcommittees, ``[The conflict between tactical and negotiation teams]
presented difficulties, for sure, but that is not unusual. These are not
matters that we were not prepared to attempt to negotiate through.''
\377\ In the end, however, the tactical team won the endorsement of
Jamar.
---------------------------------------------------------------------------
\375\ Hearings Part 2 at 316. Gary Noesner testified before the
subcommittees, ``At Waco, there was a fundamental strategy disagreement
on what was the best way to proceed. In Waco, the negotiation team
wanted to have a lower-keyed approach and the tactical team's approach
was more to apply pressure.'' Id.
\376\ Id. at 147.
\377\ Id. at 321.
---------------------------------------------------------------------------
Jamar decided to constrict the perimeter of the building by moving
vehicles closer to the residence. On March 9, 1993 the FBI began to use
Bradley Fighting Vehicles to clear debris (including automobiles and
boats) from the front of Mount Carmel. On March 14, 1993 the FBI focused
bright lights on the residence in an effort to disrupt the sleep of
those inside. Four days later, loudspeakers were set up to communicate
messages from the FBI to the Davidians inside the residence. Soon
thereafter, the FBI began playing recordings of Tibetan chants, rabbits
being slaughtered, and other sound effects.\378\
---------------------------------------------------------------------------
\378\ Justice Department Report at 78.
---------------------------------------------------------------------------
While negotiators were trying to gain the trust of Koresh and the
Davidians, the actions of the tactical team gave Davidians reason to
distrust FBI's negotiators. At the hearings, Sage explained, ``It is not
uncommon to, as part of the negotiation process, to actually try to
ingratiate yourself a little bit more with Koresh and his followers by
saying, look, this is out of our hands, but that is why you need to give
us something to work with.'' \379\ It is difficult to imagine that use
of tactical force could be a beneficial tool with those whom experts say
should be treated with caution and conciliation. Notwithstanding Sage's
description of the tactical maneuvers as helpful to negotiations, any
consequences of aggressive movements on the part of FBI were not ones it
intended. They were predicted, however. Gary Noesner remarked, ``I do
not awake from nightmares or have trouble sleeping at night . . .
because everything that I predicted would happen, did happen.'' \380\
---------------------------------------------------------------------------
\379\ Id.
\380\ Briefing by Gary Noesner to the subcommittees.
---------------------------------------------------------------------------
c. Insufficient communication between the two teams and
their commanders
In testimony before the subcommittees, Jamar described the strategic
decisionmaking process. He said, ``The supervisors of each component
would get together and report and discuss matters. And we would have
various meetings.'' \381\ Noesner said the problem was not one of
communication. Jamar's office was across from the negotiation room.
Noesner communicated the desired approach of negotiators with regularity
and often in heated exchanges. Jamar heard opinions from the negotiators
and tactical agents given with equal force. He let each strategy go
forward as if it was the primary one.\382\
---------------------------------------------------------------------------
\381\ Hearings Part 2 at 300.
\382\ Briefing by Gary Noesner to the subcommittees.
---------------------------------------------------------------------------
d. Decisions between the options presented by the two teams
In early 1993, FBI policy was to place the Special Agent in Charge
of the FBI's regional office in charge of making operational decisions
in a crisis like Waco. Noesner described the role of the SAC saying,
``He has to take the information and couple that with the information he
receives from other intelligence sources, from the tactical team and he
has to weigh all those things, weigh them with his own experiences and
his own perceptions and he has to come to a decision.'' \383\
---------------------------------------------------------------------------
\383\ Hearings Part 2 at 311.
---------------------------------------------------------------------------
Noesner emphasized the fact that the real problem in Waco was one of
leadership. The situation at Waco required someone to make the decision
on what strategy to utilize to confront this ``unconventional'' group.
He characterized Jamar as an action-oriented agent, one who fell prey to
the ``action imperative.'' \384\
---------------------------------------------------------------------------
\384\ Briefing by Gary Noesner to the subcommittees.
---------------------------------------------------------------------------
Stone describes the action imperative in terms of the FBI's ``group
psychology.'' The options available to the FBI, according to Stone, fell
somewhere between ``doing nothing (passivity) and a military assault
(the action imperative).'' \385\ In light of the fact that ``the appeal
of any tactical initiative to an entrenched, stressed FBI must have been
overwhelming,'' Stone reasons, ``the desultory strategy of simultaneous
negotiation and tactical pressure was enacted as a compromise.'' \386\
Stone concluded that tactical maneuvers were initiated as a way to
relieve agents' desire to act. It is left to the SAC to override the
group psychology of the agents on the ground and make the decisions
necessary to reach a peaceful conclusion. Stone writes, ``The FBI should
not be pushed by their group psychology into misguided ad hoc decision
making the next time around.'' \387\
---------------------------------------------------------------------------
\385\ Stone Report at 23.
\386\ Id.
\387\ Id. at 24.
---------------------------------------------------------------------------
e. The effect on negotiations of the decision to employ
tactical maneuvers
The decision to employ tactical maneuvers had the exact result
negotiators and experts predicted. The experts advised against
antagonizing the Davidians.\388\ In a memorandum coauthored by Peter
Smerick, an FBI Criminal Investigative Analyst, and Park Dietz, Clinical
Professor of Psychiatry and Biobehavioral Sciences at the UCLA School of
Medicine, the FBI was advised that ``negotiations coupled with ever
increasing tactical presence . . . could eventually be counter-
productive and could result in loss of life.'' \389\ When tactical
maneuvers were utilized, negotiations were set back. The Davidians were
unable to sleep with sounds of loud music and rabbits being slaughtered.
The Davidians were angered by movements of the armored personnel
carriers. They were angered by the clearing of debris from the
grounds.\390\ As Richard DeGuerin, the lawyer representing Koresh, says,
tactical maneuvers appeared to be ``calculated to discourage anyone from
coming out.'' \391\
---------------------------------------------------------------------------
\388\ Memorandum from Criminal Investigative Analyst Peter Smerick
and Dr. Park Dietz, Clinical Professor of Psychiatry and Biobehavioral
Sciences at the UCLA School of Medicine (March 5, 1993).
\389\ Id.
\390\ Hearings Part 2 at 74-75.
\391\ Id.
---------------------------------------------------------------------------
The effect that the tactical maneuvers had on negotiations was only
one of the problems resulting from that decision. In fact, some believe
that playing loud music bonded the Davidians closer together.\392\
---------------------------------------------------------------------------
\392\ Id. at 195. Captain McClure thought the playing of chants and
rabbit slaughters was unwise.
---------------------------------------------------------------------------
f. Tactical maneuvers may have fed into the vision
anticipated by Koresh
Koresh often warned Davidians that they would die in a fire brought
on by ``the Beast.'' \393\ In Smerick's March 8 memo, he recommended
that tactical pressure ``should be the absolute last option we should
consider, and that the FBI might unintentionally make Koresh's vision of
a fiery end come true.'' \394\ When the FBI began to play loud music and
inch closer to the residence in armored vehicles, experts maintained
that those were exactly the wrong tactics.\395\ More than simply bonding
the Davidians together, experts concluded that these actions proved
Koresh right in the minds of the Davidians. The Justice Department
Report notes, ``Some of the experts felt that the aggressive tactical
moves played into Koresh's hands.'' \396\ Even Jamar, who made the
decision to use these tactics, said, ``I did not like it.'' \397\
---------------------------------------------------------------------------
\393\ Thomas Robbins & Dick Anthony, Sects and Violence: Factors
Enhancing the Volatility of Marginal Religious Movements, in Armegeddon
in Waco: Critical Perspectives on the Branch Davidian Conflict 236, 240
(Stuart Wright ed., 1996). ``Koresh clearly anticipated a government
assault, and the actual military-style raid that the BATF perpetrated
against the Waco Davidian settlement in late February 1993 `seemed to
those inside to validate at least part of Koresh's prophecy.' '' Id.
\394\ Memorandum from Criminal Investigative Analyst Peter Smerick
(March 8, 1994).
\395\ Justice Department Report at 185.
\396\ Justice Department Report at 185.
\397\ Hearings Part 2 at 317.
---------------------------------------------------------------------------
b. negotiation opportunities lost
1. Why the FBI changed negotiators
Soon after the raid, the FBI was called to take command of the
situation at the Davidian residence. Edward Dennis writes that ``ATF
requested assistance from the FBI on February 28, 1993 after ATF agents
had attempted to serve an arrest and search warrant on the Branch
Davidian Compound.'' \398\ Before the FBI took over, negotiations with
the Davidians had begun. Lieutenant Larry Lynch, of the McClennan County
Sheriff's Department, and Branch Davidian Wayne Martin talked over the
Waco 911 Emergency line.\399\ Soon thereafter, ATF Assistant Special
Agent in Charge James Cavanaugh and Davidians Steve Schneider and Koresh
spoke by telephone in an attempt to resolve the initial firefight.\400\
Finally, Cavanaugh successfully negotiated an end to the shooting.
---------------------------------------------------------------------------
\398\ Edward S.G. Dennis, Jr., Evaluation of the Handling of the
Branch Davidian Standoff in Waco, TX 5 (1993) [hereinafter Dennis
Report].
\399\ McLennan County Sheriff's Department, 911 Transcripts
(February 28, 1993).
\400\ Id.
---------------------------------------------------------------------------
Cavanaugh, with the help of the Texas Department of Public Safety,
made measurable progress toward release of Davidians. Communication was
extremely difficult between Davidians inside and ATF agents outside.
Nonetheless, Cavanaugh manipulated the dialog from the hysterical
screaming during the gun battle to productive conversation leading to a
cease fire.
a. Cavanaugh's rapport with the Davidians
The most difficult task after the raid failed was to establish a
reliable, common sense method for communicating with those inside Mount
Carmel. Communicating the agreed upon cease fire was made difficult by
the size of Mount Carmel and the fragmentation of ATF agents.\401\
Eventually, however, the shooting stopped and negotiations began.
---------------------------------------------------------------------------
\401\ Justice Department Report at 105. [E]ven after Schneider and
Cavanaugh had agreed to call a cease-fire, it took several minutes to
achieve one. Schneider for his part had to walk throughout the residence
to tell people inside to stop shooting. Cavanaugh, who had no direct
radio link to each agent, had to advise the team leaders of the cease
fire and the team leaders in turn had to communicate with their agents.
The cease-fire was negotiated for a period of time before the shooting
finally stopped. Id.
---------------------------------------------------------------------------
In his statement to the Department of Justice, Agent Cavanaugh gave
a compelling description of the first moments after the raid.\402\ The
atmosphere was frenetic and hostile. Cavanaugh's tone was friendly as he
sought to gain the trust of those in the residence.
---------------------------------------------------------------------------
\402\ Department of the Treasury Document, statement of James
Cavanaugh:
``I called the compound directly on the phone from the undercover
house. I reached a man named Steve, later identified as Steve Schneider.
I told him I was an ATF agent and I wanted to talk to him about this
situation. As should be expected, the activity inside the compound was
very frantic, people were screaming and yelling, and there was still
shooting going on both sides. Steve was very excited and very hostile.
``I wanted to negotiate a cease fire, and he [Schneider] was
agreeable. I am not going to be good on the time of how long it took,
but it took a little while to negotiate that. He had to go throughout
the compound, which is very large, telling everyone not to shoot. While
he was doing this, there was still shooting going on both sides. I had
to get on the command net frequency and tell the commanders on the
ground there not to shoot, and they had to relay that to all 100 agents,
who were around there, so it took a little time to arrange it.
``Once I returned to the rear command post I called back in on the
telephone to the residence about 2:00 p.m. and I spoke with Steve and
David Koresh about what was going on. We had long conversations about
the warrant and we also had a lot of conversations about Biblical
passages and Mr. Koresh's belief that he was the Lamb of God, who would
open the Seven Seals. As you might assume, he was very hostile, very
angry, and very upset.''
---------------------------------------------------------------------------
Cavanaugh gained the Davidians' trust by acknowledging the
Davidians' point of view.\403\ He granted many of their requests.\404\
He talked with them as though they were ``equals'' trying to achieve the
same goals. Cavanaugh assuaged their concerns by promising that they
would be addressed. Most importantly, Cavanaugh established a routine
that produced the release of some Davidians.\405\
---------------------------------------------------------------------------
\403\ Hearings Part 2 at 187. ATF agent James Cavanaugh, the initial
negotiator during the standoff, testified before the subcommittees,
``[The FBI] established trust with Koresh. Id. Cavanaugh appears to have
been accomplished at active listening. The FBI, however, did not choose
to retain Cavanaugh.
\404\ A summary of the Davidians' requests can be found in the
Justice Department Report in the Appendix.
\405\ Hearings Part 2 at 74. Representative Peter Blute, when
questioning a witnesses, stated, ``We also know that, after the raid,
when the siege started, the initial negotiator was getting through to
Koresh and they had a kind of relationship intellectually that allowed
numerous people to be released during that period. . . .'' Id.
---------------------------------------------------------------------------
Cavanaugh established a rapport with Koresh and other Davidians.
When Cavanaugh left the negotiations, Koresh mentioned that he missed
Cavanaugh. He noted that Cavanaugh promised to be there until the
end.\406\ But on March 4, 1995 Cavanaugh left Waco, only to return
briefly in April. After Cavanaugh's departure, the negotiations were an
FBI operation.
---------------------------------------------------------------------------
\406\ Transcripts of the Negotiations Between the FBI and the
Davidians (March 4, 1993) [hereinafter Negotiation Transcripts].
---------------------------------------------------------------------------
b. Why the FBI was brought in
The ATF asked for the aid of the FBI and agreed that it would be
best for the FBI to assume operational control of the entire siege.\407\
All of the official reports note that the FBI was asked to take over the
siege.\408\
---------------------------------------------------------------------------
\407\ Justice Department Report at 22.
\408\ Treasury Department Report at 114. Justice Department Report
at 1.
---------------------------------------------------------------------------
According to the Justice Department Report, the FBI Hostage Rescue
Team was the law enforcement organization best equipped to handle the
standoff.\409\ It is because of its expertise that the FBI is called in
to take control of complex barricade situations throughout the country
and the world. According to the Treasury Department Report on the
incident, ATF knew immediately after the raid began that it would need
the help of the FBI. The apparent unanimity is expressed in the
Department of Treasury Department Report.\410\ Once the decision was
made to turn the operation over to the FBI, the FBI was in charge of the
scene in Waco within a matter of hours.
---------------------------------------------------------------------------
\409\ Justice Department Report at 144. At the time, the FBI's HRT
consisted of a 50 person force. It was trained to deal with highly
dangerous missions. The team boasts ``sophisticated armament including
infra-red aiming devices, daytime and nighttime sniper capabilities,
explosive and mechanical breaching abilities, and certain non-lethal
weapons.'' The agents are trained for tactical operations on land and at
sea. The HRT was created in the 1980's to confront a growing number of
unusually dangerous and complicated criminal situations.
\410\ U.S. Dept. of the Treasury, Report of the Department of the
Treasury on the Bureau of Alcohol, Tobacco, and Firearms Investigation
of Vernon Wayne Howell also known as David Koresh at 113-114 (1993)
[hereinafter Treasury Department Report].
Shortly after the shoot-out, Chojnacki spoke with Hartnett, who was
in Washington, DC and recommended that the FBI Hostage Rescue Team be
brought to Waco to handle what had become a siege situation. At roughly
the same time, FBI Director William Sessions learned of the shoot-out,
contacted ATF Director Stephen Higgins and offered his condolences and
his agency's assistance. After Hartnett arrived at the National Command
Center and was fully briefed, he determined that the FBI HRT should be
sent to Waco.
Soon after the cease-fire Hartnett contacted Douglas Gow, FBI
Associate Deputy of Investigations, and formally requested FBI
assistance. Gow, in turn, contacted FBI SAC Jeffrey Jamar (San Antonio)
and briefed him on the situation. FBI Special Agent James Fossum (Waco)
was informed of the crisis by both AUSA Phinizy and another local FBI
agent. Shortly after [Fossum] arrived, Chojnacki told him the ATF would
welcome whatever assistance the FBI could provide.
* * *
Clark informed [Noble] that a request for the HRT had already been
made by ATF and that the HRT was on its way to the residence to evaluate
the situation.
Jeffrey Jamar (San Antonio), as the SAC of the affected district,
was given command of the FBI operation. He arrived in Waco at about 5:30
p.m. and together with Fossum and several other local FBI agents,
immediately began to establish a command post and assess the situation.
The balance of the HRT members began arriving on March 1. After further
discussions with FBI, ATF and Treasury officials, Noble spoke with ATF
Director Higgins and ADLE Hartnett early March 1. Noble advised them
that if the FBI determined that the HRT was needed for a long term, the
FBI should have operational command to resolve the standoff. Id.
---------------------------------------------------------------------------
2. Why the FBI didn't allow others to participate in the negotiations
The FBI was disinclined to allow anyone, other than the FBI's own
negotiators, to participate in negotiations with the Davidians. Many
were offering their assistance, but few were allowed to participate.
McLennan County Sheriff Jack Harwell and the Texas Rangers were
suggested and offered their help. Attorneys for Davidians repeatedly
asked to speak with the Davidians. It was with great hesitance that the
FBI allowed Sheriff Harwell to speak with the Davidians, and with even
greater reluctance that the FBI allowed the attorneys into the
residence.\411\
---------------------------------------------------------------------------
\411\ Justice Department Report at 133.
---------------------------------------------------------------------------
a. Sheriff Jack Harwell
Early in the negotiations, Koresh and the Davidians told the
negotiators they had a cordial relationship with Sheriff Jack Harwell.
On March 13, Jamar allowed Sheriff Harwell to participate in
negotiations. According to the Justice Department Report, to allow an
untrained negotiator to participate in such operations was a ``departure
from conventional negotiation doctrine.'' \412\ In preparation for these
negotiations, Noesner and the FBI negotiations put Harwell through quick
and intense training in professional negotiations. Harwell was put in
this position only because he was a person whom both sides trusted. And
although the negotiators were worried about Harwell making the situation
worse, negotiators' worries were soon quelled when they discovered,
according to Noesner, ``Harwell was a natural.'' \413\
---------------------------------------------------------------------------
\412\ Id.
\413\ Briefing of Gary Noesner to the subcommittees.
---------------------------------------------------------------------------
Two days after he began participating in negotiations, Harwell
participated in a face-to-face meeting with Sage and Davidians Martin
and Schneider. The meeting produced no substantial change in the
situation. Harwell and Sage attest to the fact that a ``rapport was
established, particularly with Schneider.'' \414\ Unfortunately,
whatever success may have been brought about by Harwell's participation
was hindered by what Sage called a ``distinct change in negotiation
strategy.'' \415\ From that point on, Harwell's participation in the
negotiations consisted of having his previous conversations broadcast
into the residence via loudspeaker.
---------------------------------------------------------------------------
\414\ Justice Department Report at 133.
\415\ Id. at 134.
---------------------------------------------------------------------------
b. The Texas Rangers
Another group for which Davidians expressed their trust was the
Texas Rangers. A longstanding and well respected law enforcement entity,
the Texas Rangers were charged with conducting the final investigation
into the raid on the Davidians. The Rangers were never allowed to
participate in negotiations with the Davidians. They often had concerns
about the conduct of the siege and attempted to express these concerns
to Jamar. The Rangers were frustrated by a lack of communication with
Jamar. As Captain Byrnes testified before subcommittees, ``[I]f I went
over there, the door was already closed to where Mr. Jamar was. Several
times I waited a half hour, 45 minutes to see him and never saw him, and
I finally quit going over there. We couldn't even get a phone call
through. It was total lack of communication.'' \416\
---------------------------------------------------------------------------
\416\ Hearings Part 2 at 159.
---------------------------------------------------------------------------
c. The attorneys for the Davidians
Another concern of the Rangers was the FBI's decision to allow face-
to-face meetings between the Davidians and their attorneys. While it is
common for a client under investigation or prosecution to meet with his
attorney, it is rare for an attorney to meet with his client while his
client is the subject of a ``hostage barricade situation.'' \417\ The
negotiators and the tactical agents had different opinions on the wisdom
of letting the attorneys into the residence.\418\
---------------------------------------------------------------------------
\417\ Id. at 23. DeGuerin says it's a frequent practice of attorneys
to meet with their clients before they are arrested. Id. Texas Ranger
Captain Byrnes testified before the subcommittees, ``We went to see Mr.
Jamar and offered a Ranger to help with the negotiations, if that would
be helpful--not one of the captains but one of the Rangers that had been
trained, most of them, by the FBI. He thanked us for that offer, and we
never heard anything else about it.'' Id. at 297.
\418\ Id. at 23.
---------------------------------------------------------------------------
The negotiators were concerned that any third party intermediary was
ill equipped to be thrust into the fragile negotiations that consume
barricade situations. Negotiators were willing to use the attorneys in
ways that would jumpstart the negotiations.\419\ The tactical team,
along with the Texas Rangers, were concerned about the opportunity that
DeGuerin and Jack Zimmerman, the attorney for Steve Schneider, would
have to destroy evidence. But even Texas Ranger Senior Captain Maurice
Cook agreed with the wisdom of letting the attorneys into the residence
by saying, ``[Y]ou got to do what works.'' \420\ Jamar made the decision
because he was ``focused on resolving the standoff peacefully.'' \421\
DeGuerin and Zimmerman entered the residence on several occasions. The
attorneys spent a total of 32 hours with Koresh.\422\
---------------------------------------------------------------------------
\419\ FBI Commander Jeffrey Jamar testified before the
subcommittees, ``I was hopeful they could appeal to his self-interest.
Everything Mr. Koresh did was to his self-interest.'' Id. at 312-313.
\420\ Texas Ranger Captain Cook testified before the subcommittees
that when all else fails in negotiations, ``you got to do what works. I
think you can get too formalized.'' Although formal training opposes
this. McClure says it can be used as a last resort. Id. at 146.
\421\ Justice Department Report at 91. ``The proposed face-to-face
meeting between Koresh and DeGuerin caused significant controversy
within law enforcement. SAC Jamar made the decision to permit the
meeting, clearing it with U.S. Attorney Ederer. The AUSA's [Assistant
U.S. Attorney] and the Texas Rangers, who would be responsible for the
eventual prosecutions, strongly opposed the meeting. Jamar was focused
on resolving the standoff safely, while the prosecutors and the Texas
Rangers were focused on the integrity of future court proceedings. The
prosecutors and Texas Rangers were afraid that the defense attorney
would give advice to Koresh which could result in the destruction of
evidence and cause a more difficult prosecution.'' The attorneys met
inside the residence approximately seven times.
\422\ Hearings Part 2 at 79.
Mrs. Thurman: How many total hours did you spend with [Koresh], do
you think, in the period of time that you represented him.
Mr. DeGuerin: About 32 hours.
---------------------------------------------------------------------------
(i) Progress was made from the visits.--Negotiators and Jamar had
the sense that the meetings were ``positive.'' \423\ On April 1, when
the attorneys requested extensions of the pre-approved time limits, they
described their progress as ``terrific.'' In that meeting, David Koresh
promised to come out ``after Passover.'' \424\ The actual date of
Passover, however, was a matter of controversy.
---------------------------------------------------------------------------
\423\ Id. at 304-306.
\424\ Id. at 47.
---------------------------------------------------------------------------
On April 14, a telephone conversation between DeGuerin and Koresh
produced what DeGuerin called a promise to come out.\425\ The FBI called
this promise ``a new precondition for his coming out.'' \426\ The
precondition was the completion of David Koresh's written interpretation
of the ``Seven Seals,'' discussed in the Bible's Book of Revelation.
---------------------------------------------------------------------------
\425\ Negotiation Transcripts (April 14, 1993).
\426\ Hearings Part 2 at 304-306.
---------------------------------------------------------------------------
A letter attesting to the surrender offer followed the verbal
promise. But the FBI remained skeptical.\427\
---------------------------------------------------------------------------
\427\ Jamar testified before the subcommittees, ``They would build
their [DeGuerin and Zimmerman] spirits up. I can remember one instance
when DeGuerin came out and, believe me, he put his best effort in and I
give him all the credit in the world for the effort he made. He would
build him up and then cut his legs out from under him. I remember one
instance where he said he was making a point with him and Koresh feigned
illness. It happened to us all the time.'' Id. at 297-298.
---------------------------------------------------------------------------
(ii) Negotiator and lawyers consultation after the first visit.--
After each visit and on occasion when there was no visit, the FBI and
the lawyers had discussions about strategy and about arranging more
visits with Davidians. The agents worked closely with the attorneys
before each visit and attorneys cooperated with the FBI.
Before the trips into the Davidian residence, the agents and
attorneys arranged time limits and topics for discussion while the
attorneys were inside.\428\ On only one occasion did the attorneys ask
to remain in the residence longer than the arranged time.
---------------------------------------------------------------------------
\428\ Id.
---------------------------------------------------------------------------
c. lack of appreciation of outside information
1. Why the FBI did not rely more on religious advisors to understand
Koresh
Many argue that the reason negotiations failed was that the FBI
failed to grasp the nature and strength of Branch Davidian beliefs.
There exists a conflict among those who believe negotiators should never
become sympathetic with the ``hostage taker'' and others who believe the
only way to negotiate is to understand the subject of the
negotiations.\429\ The FBI became frustrated with endless dissertations
of Branch Davidian beliefs and ignored assertions of religious experts
that Koresh could be negotiated with on a theological level.\430\ The
FBI grew skeptical that Koresh could be convinced that ending the siege
was in his best interest.
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\429\ Noesner Briefing. Noesner maintains that a negotiator should
never become embroiled in a discussion of the beliefs of the subject of
the negotiations; never give the barricaded person the benefit of
believing he has control of the conversation. Dr. Phillip Arnold, of the
Reunion Institute in Houston, TX, and Dr. James Tabor, Associate
Professor of Religious Studies at the University of North Carolina at
Charlotte, suggest that Koresh could have been dealt with through a
discussion of his biblical interpretations. According to the Harvard
Negotiation Project, ``negotiating [with people acting out of religious
conviction] does not require compromising your principles. More often
success is achieved by finding a solution that is arguably consistent
with each side's principles.'' Roger Fisher et al., Getting to Yes
(1991).
\430\ Justice Department Report at 26-28. The Department of Justice
report recounts Koresh's attempt to tell his side of the situation.
---------------------------------------------------------------------------
a. The FBI standard in negotiations
Mainstream negotiation tactics call for the negotiator to remain
aloof from the subject of the negotiations, to pursue crisis management
team goals, and never become embroiled in the message of the hostage
taker.\431\ The focus of negotiation training is ``active listening.''
The negotiator is supposed to find out what the subject wants or
demands.
---------------------------------------------------------------------------
\431\ Noesner Briefing.
---------------------------------------------------------------------------
Negotiation training gives preference to those with a social science
background. The FBI negotiation curriculum includes abnormal psychology
and the social sciences. Time after time, David Koresh, and Davidians
Wayne Martin and Steve Schneider, sought to speak with someone who could
understand the Branch Davidian interpretation of the Seven Seals. The
FBI resisted the desire to engage Koresh in such a discussion, saying
that it was sure to be fruitless.\432\ McClure testified at the hearings
that he had been involved in a similar situation when religious
discussions of a barricaded group had proved fruitless. He said, ``In
1987, I was involved in a situation in Atlanta where 1,400 Cubans were
holding 121 hostages. Their religious belief was very important to them
during that period of time. Those hostages were held for 12 days. Every
time that we gave a negotiations and responded to their religious
questions and got in their head or tried to get into their head and they
tried to get into our about religion, no progress was made. When we
talked about secular issues, we got people out.'' \433\ This experience
appears to have led the FBI to avoid religious discussions with the
Davidians.
---------------------------------------------------------------------------
\432\ Hearings Part 2 at 181.
\433\ Id.
---------------------------------------------------------------------------
b. Experts consulted
When the FBI first arrived in Waco, it had little information about
David Koresh and the Davidians. Negotiators sought as much information
as possible about the group. It was left to the experts hired by the FBI
to create a profile of David Koresh and develop a plan to negotiate with
the Davidians.
Dr. Eugene Gallagher, professor of Religion at Connecticut College,
calls Glenn Hillburn, Dean of the Baylor University Department of
Religion, ``the one expert with a firm grasp of the history of the
Davidians within the framework of the Seventh Day Adventists.'' \434\
According to the Justice Department Report, Glenn Hillburn, Dean of the
Baylor University Department of Religion, ``provided information on the
Book of Revelations, the Seven Seals, and other Biblical matters.''
\435\ The report makes no mention of special insight Hillburn provided
into the peculiar habits of the Davidians or David Koresh. Other than
Dr. Hillburn, Dr. Gallagher concludes, the FBI consulted few religious
experts with knowledge of Branch Davidians and what they believed.
Indeed, Stone says in his Report and Recommendations, ``One of my fellow
panelists believes--and I am convinced--that the FBI never actually
consulted with a religious expert familiar with the unconventional
beliefs of the Davidians.'' \436\
---------------------------------------------------------------------------
\434\ Interview of Dr. Eugene Gallagher by Robert J. Shea, Special
Assistant to the Subcommittee on National Security, International
Affairs, and Criminal Justice, in New London, CT (October 23, 1995).
\435\ Justice Department Report at 189.
\436\ Stone Report at 43, 44.
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c. The failure to consult outside experts
The FBI relied on experts with whom it was familiar. But, there were
individuals who embraced the peaceful resolution of the situation in
Waco as their personal crusade. Among those who made serious efforts to
help were Philip Arnold, Associate Professor of Religious Studies at the
University of North Carolina at Charlotte, and Gene Tabor of the Reunion
Institute in Houston, TX. It was difficult for Arnold and Tabor to
intercede. The Justice Department Report mentions that ``[t]he FBI
refused to permit a live telephone conversation'' between Arnold and
Schneider although Schneider requested Arnold by name.\437\
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\437\ Justice Department Report at 186. ``On March 17, Schneider
told the FBI that he and some of the other residence members had heard
of Dr. Arnold as someone with expertise about the Book of Revelations
and the Seven Seals, and that they wanted to speak with him. The FBI
refused to permit a live telephone conversation, but offered an exchange
of audiotapes instead. On March 19, the FBI sent an audiotape that Dr.
Arnold had made into the compound.'' Id.
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d. What communications did they have with Koresh?
Tabor and Arnold saw a video sent out by Koresh and thought
effective negotiation was possible if the FBI dealt with Koresh within a
framework of the Bible, particularly the Seven Seals.\438\ Koresh had
heard Arnold giving his interpretation of the Seven Seals and offering
assistance on the KJBS radio.\439\
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\438\ Hearings Part 2 at 46-47.
\439\ Id.
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Neither Arnold nor Tabor ever spoke with Koresh. Koresh and
Schneider repeatedly asked to speak with Philip Arnold. Arnold and Tabor
were allowed to send in tapes of their interpretations at the request of
DeGuerin, Zimmerman and Koresh, himself. But at no time were they
allowed to participate in the negotiations.
e. Did the FBI take any of this advice?
It goes against standard negotiation policy to allow outsiders to
participate in serious and dangerous ``hostage'' negotiations.
Consistent with the advice of FBI experts, the negotiators in Waco did
not allow outsiders to participate in negotiations out of fear that
something they said might inflame David Koresh. Arnold and Tabor were no
exception, they were ignored.
From the very beginning, negotiators failed to take seriously the
point of view of the Davidians.\440\ According to the Justice Department
Report, ``There were certain areas of activity in which the FBI did not
seek outside help. The FBI did not request assistance . . . with
negotiations, since the FBI's best negotiators were assigned to Waco
throughout the fifty-one day standoff.'' \441\ It appears that the FBI
paid no attention to those experts who believed Koresh could have been
reasoned with within the proper religious and biblical context.
---------------------------------------------------------------------------
\440\ Id. at 362. Cavanaugh testified before the subcommittees, ``I
fully respected their religious beliefs. I think all the other
negotiators did, also. I do not mean to be sarcastic, but my feeling was
they can worship a golden chicken if they want to, but they cannot have
submachine guns and hand grenades and shoot Federal agents. I played the
role as policeman. I did not try to fool the Davidians that I was
something else. I think that is one reason that Koresh certainly trusted
me from the beginning.'' Id.
\441\ Justice Department Report at 157.
---------------------------------------------------------------------------
Koresh and Davidians talked frequently in religious terms. In their
book, Tabor and Gallagher quote the following passage from the
negotiation tapes to point out frustration with the FBI's lack of
familiarity with theology:
HENRY: Let's not talk in those terms, please.
KORESH: No. Then you don't understand my doctrine. You don't
want to hear the word of my God.
HENRY: I have listened to you and listened to you, and I
believe in what you say, as do a lot of other people, but the,
but the bottom line is everybody now considers you David who is
going to either run away from the giant or is going to come out
and try to slay the giant. For God's sake, you know, give me an
answer, David. I need to have an answer. Are you going to come
out?
KORESH: Right now, listen.
HENRY: Right now you're coming. . .
KORESH: ``He that dasheth in pieces is come up before thy
face: keep the munition.'' What's the munition? ``Watch the
way.''
HENRY: One of the things, one of the things is I don't
understand the scriptures like you, I just don't.
KORESH: Okay, if you would just listen, then I would show you.
It says here--it says here, ``The Chariots shall be with flaming
torches.'' That's what you've got out there [referring to the
tanks].\442\
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\442\ James Tabor and Eugene Gallagher, Why Waco? 110 (1995).
FBI negotiators maintain that they never discounted Branch Davidian
beliefs. However, in one conversation with Koresh, Byron Sage responds
to another long dissertation by Koresh. Sage says, ``That's garbage.''
Later in that same conversation, Sage says, ``No one in the FBI has ever
scoffed at your beliefs.'' \443\
---------------------------------------------------------------------------
\443\ Negotiation transcripts, March 17, 1993.
---------------------------------------------------------------------------
In their book about Waco, Tabor and Gallagher are critical of the
negotiations. They write, ``Koresh's interpretations went completely
over the heads of the FBI negotiators, who were understandably put off
by this approach.'' \444\ Despite the fact that the overwhelming
majority of David Koresh's communications involved intense and lengthy
dissertations on biblical text, the FBI refused to allow a religious
expert to engage David Koresh or to consult in negotiations.
---------------------------------------------------------------------------
\444\ Id.
---------------------------------------------------------------------------
Much of the criticism of negotiations centered on the fact that the
FBI never engaged Koresh or the Davidians in a discussion of theology.
Noesner said ``there are two consistent themes that you will hear from
every mental health expert that knows anything about crisis
intervention, crisis negotiation, and that is that you neither embrace
someone's belief system nor do you discount it.'' \445\ Some are
convinced that a prerequisite to successful negotiations with the
Davidians is a firm grasp of the religious doctrine on which they base
their beliefs.\446\ In hearings before the subcommittees, Arnold
testified that the FBI negotiators were ill prepared for productive
discourse with the Davidians, ``[The negotiators] were not able to
perceive the meaning of the religious language the Davidians were using.
They were not able to understand the actions the Davidians took. Had
they had knowledge of the religious faith of the Davidians, this story
could have ended in a much better and happier way.'' \447\ Others simply
suggested that negotiators should search out experts to grasp better the
subjects of the negotiations. As Representative Henry Hyde, chairman of
the Committee on the Judiciary, said, ``There is an unwillingness to
understand or believe that there are people in the world who are persons
of belief and they believe strange things by our standards. [H]ad the
understanding been these weren't hostages, these were willing members of
a religious group, and to get in there and to dissipate them would take
persuasion, argumentation from their frame of reference, not tear gas
and tanks.'' \448\ With at least a good background on the subject of
religion, particularly the religious dogma professed by the Davidians,
the negotiators could have better manipulated the conversations.
---------------------------------------------------------------------------
\445\ Hearings Part 2 at 325.
\446\ Nancy T. Ammerman, Waco, Federal Law Enforcement and Scholars
of Religion, in Armegeddon in Waco: Critical Perspectives on the Branch
Davidian Conflict 282, 282-283 (Stuart Wright ed., 1996). Ammerman
writes, ``Did [the FBI] not know that apocalyptic beliefs should be
taken seriously, that they were playing the role of the enemies of
Christ? Did they not know that any course of action that did not seem to
come from the Bible would be unacceptable to these students of
Scripture? I have yet to encounter a single sociologist or religious
studies scholar who has the slightest doubt that the strategies adopted
by the FBI were destined for tragic failure.'' Id.
\447\ Hearings Part 2 at 144-145.
\448\ Id. at 47-48.
---------------------------------------------------------------------------
2. Others who contributed information
It is clear that all of the attention focused on Waco and the
standoff at Mount Carmel encouraged many people to contribute their
ideas to the negotiations. The method for processing this information is
central to discerning whether any valuable advice or data was omitted
or, inadvertently or intentionally, ignored. In this case, as in others,
the actions taken by the FBI depended largely upon the information used,
and to whom it was made available when key decisions were being made.
a. How much information was coming in?
It is clear that a great deal of unsolicited information was being
sent to Waco. In addition to people honestly offering assistance, a
variety of people came to Waco to express a variety of sentiments to
officials on site.\449\ This was in addition to the experts retained by
the FBI. As the Justice Department report suggests, ``The FBI also
received unsolicited advice and offers of assistance from many
individuals; not surprisingly, this input was rarely useful.'' The
report continues, ``A smaller number of offers came from individuals
lacking a firm grip on reality, such as people claiming to be God or
Jesus offering to `order' Koresh to leave the compound.''
---------------------------------------------------------------------------
\449\ Justice Department Report at 156. The report discusses the
among and type of information coming into Waco. ``The FBI also received
unsolicited advice and offers of assistance from many individuals; not
surprisingly, this input was rarely useful.'' For example, on March 16,
1993 a well-known rock band contacted the FBI and offered to perform
outside the Mount Carmel Residence, and to play a song that U.S.
helicopters broadcast at enemy troops to demoralize them during the
Vietnam war. On the other hand, the FBI received an unsolicited letter
from the Harvard Negotiation Project containing thoughtful and specific
suggestions to assist the negotiators in formulating a framework for
further negotiations with Koresh. A smaller number of offers came from
individuals lacking a firm grip on reality, such as people claiming to
be God or Jesus offering to ``order'' Koresh to leave the compound. One
person was arrested on his way to the compound brandishing a samurai
sword, which he said ``God had told him to deliver to Koresh.'' Id.
---------------------------------------------------------------------------
Negotiator Byron Sage recounted in a Justice Department interview
that ``an incredible number of people called the negotiators offering
help.\450\ [I] tried to field these offers early on, but then [I] farmed
it out to the behavioral science people to weed out the good stuff.''
\451\ Others indicate that information was indiscriminately delivered to
negotiators.\452\ According to Dr. Stone, ``all kinds of experts . . .
allegedly were consulted . . . and took it upon themselves to offer
unsolicited advice.'' Stone continues, ``the prevailing pattern in the
information flow during the crisis was for each separate expert to offer
the FBI an opinion.'' The problem, it seems, was too much
information.\453\
---------------------------------------------------------------------------
\450\ All incidents investigated by the Department of Justice
contain interviews of those involved in the incident. This interview was
conducted in conjunction with the investigation of the incident at Waco.
\451\ U.S. Dept. of Justice, record of interview of Byron Sage by
Susan DeBusk (August 26, 1993).
\452\ Stone Report at 43.
\453\ Hearings Part 2 at 145. Tabor registers his sympathy for the
FBI in the fact that they were on information overload. He also suggest
some procedural way of compiling information and discerning the ``nuts
from the bolts.'' Id.
---------------------------------------------------------------------------
b. The method set up to communicate with people calling to
help
Many people called who were deemed ``lacking a firm grip on
reality.'' When asked about such contacts with agents and officials in
Waco, Chief Negotiator Gary Noesner said he knew nothing about them.
Offers for help, however, were referred to the consulting experts. The
experts analyzed the information provided or the assistance offered and
passed it along to the negotiators in the form of memoranda.\454\ Rarely
did these people talk to negotiators, themselves, and never were they
allowed to speak to the Davidians.
---------------------------------------------------------------------------
\454\ U.S. Dept. of Justice, record of interview with Byron Sage by
Susan DeBusk (August 26, 1993). In this interview, Sage recounted how he
got information from those offering assistance. In that interview, Sage
says, ``Many of the contacts with experts would be through the
behavioral science people rather than through the negotiators. The
negotiators would get the end result of their input from people like
Smerick, Young and Van Zandt.''
---------------------------------------------------------------------------
Sage maintains that the theologian on whom he depended the most was
Glenn Hillburn, the chairman of the Baylor School of Religion. In
addition to his role as religious advisor to Sage, Hillburn ``provided .
. . his feeling as to the credibility and bona fides of people who
called in offering their help.'' \455\ In one instance, an offer of
assistance was made by the Harvard Negotiation Project.\456\ The letter
sent to Waco was written by Roger Fisher, director of the Harvard
Negotiation Project, and was based on an analysis of the situation that
was underway at the project and utilized the principles of negotiation
that the project taught every day. The proposal made in the letter to
Jamar included putting together ``a small team . . . as familiar as
possible with Koresh and the situation inside the residence'' that would
``find a potential `third party' and work urgently on putting together a
package that would be attractive to Koresh.'' The letter suggested that
the government allow ``the third party to come to Waco and make the
offer, which will inherently expire if not accepted before the third
party leaves Waco in two or three days.'' \457\ The advice that the
Harvard Negotiation Project offered was disregarded. Although the letter
is mentioned in the Justice Department report, there is little evidence
that the negotiators took any of that advice.
---------------------------------------------------------------------------
\455\ Id.
\456\ The Harvard Negotiation Project is an enterprise of Harvard
Law School that attempts to present alternatives to traditional
negotiation techniques.
\457\ Letter from the Harvard Negotiation Project to Jeffrey Jamar
(March 29, 1993).
---------------------------------------------------------------------------
Despite a steady flow of information and advice, the FBI did not
make any serious attempt to evaluate and disseminate the suggestions
that came to its attention. The Justice Department maintains that it
kept ``meticulous'' \458\ track of the offers of assistance. It also
concedes that it did not need or accept help in many areas.\459\ Yet it
is difficult to understand why the offers of help from respected,
credible religious experts and experts in negotiations were rejected.
---------------------------------------------------------------------------
\458\ Justice Department Report at 156.
\459\ Id. at 156 ``Throughout the Waco standoff, the FBI
meticulously kept track of all unsolicited offers of assistance, and
followed up on those that seemed to promise any reasonable chance of
producing helpful information. There were certain areas of activity in
which the FBI did not seek outside help. For example, the FBI did not
request assistance from any outside law enforcement agencies in
performing any of its tactical operations; it did not request assistance
with negotiations, since the FBI's best negotiators were assigned to
Waco throughout the 51-day standoff, and it did not consult with outside
experts regarding the decision to play loud music and Tibetan Monk
chants over the loudspeakers to irritate those inside the residence.''
Id.
---------------------------------------------------------------------------
d. the fbi's failure to follow its own expert's recommendations
1. What the FBI's own experts recommended
According to Stone, ``the FBI investigative support unit and trained
negotiators possessed the psychological/behavioral science expertise
they needed to deal with David Koresh and an unconventional group like
the Davidians.'' \460\ Among the many experts, the talent was
extraordinary and the amount of information they had to use was
enormous. It was not difficult for the experts to come to a consensus.
---------------------------------------------------------------------------
\460\ Stone Report at 12.
---------------------------------------------------------------------------
The clearest consensus among the FBI experts and others was not to
provoke the Davidians. The experts feared that any provocation could
lead Koresh to initiate the fiery end he predicted. FBI experts agreed
with this approach.\461\ As Stone writes in his separate evaluation, ``I
believe the FBI behavioral science experts had worked out a good
psychological understanding of Koresh's psychopathology. They knew it
would be a mistake to deal with him as though he were a con-man
pretending to religious beliefs so that he could exploit his
followers.'' \462\
---------------------------------------------------------------------------
\461\ Edward Dennis summarized the opinions of the experts as
follows:
On March 3, 1993 the behavioral experts wrote a joint memo
recommending a strategy of trying to work within the Davidians own
belief system to talk them out. They recommended acknowledging the
conspiracy against the Davidians and their right to defend themselves,
and creating an illusion that Koresh could win in court and in the press
and would not go to jail. On March 5 behavioral experts wrote a memo
advising that the negotiation strategy focus on insuring the safety of
the children and facilitating the peaceful surrender of the Davidians.
This memo recommended a de-escalation of tactical pressure because
movement of tactical personnel would validate Koresh's prophesy that his
followers must die defending their faith. As an alternative tactic, the
memo recommends that efforts be made to drive a wedge between Koresh and
his followers by convincing them that a battle is not inevitable.
Dennis Report at 49.
\462\ Stone Report at 13.
---------------------------------------------------------------------------
Smerick coauthored six memoranda on David Koresh based on Koresh's
past behavior and listening to negotiations. In each of the early
memoranda, Smerick proposed that the FBI approach the Davidians with
caution and avoid provocation. Smerick said that the cautionary
memoranda were written expressly because ``the FBI commanders were
moving too rapidly toward a tactical solution, and were not allowing
adequate time for negotiations to work.'' \463\ In his final memorandum,
Smerick proposed ``'other measures' . . . because negotiations had met
with only limited success.'' \464\ As the Justice Department Report
maintains, ``those other measures included sporadically terminating and
reinstating of utilities; moving equipment and manpower suddenly;
downplaying the importance of Koresh in the daily press conferences;
controlling television and radio reception inside the compound; and
cutting off negotiations with Koresh.'' \465\ Although these suggested
measures are exactly the tactics the FBI used in Waco, Smerick suggests
that while the ``negotiators were building bonds . . . the tactical
group was undermining everything.'' \466\ Smerick continued, ``[e]very
time the negotiators were making progress the tactical people would undo
it.'' \467\
---------------------------------------------------------------------------
\463\ Justice Department Report at 182.
\464\ Id.
\465\ Id.
\466\ U.S. Dept. of Justice, record of interview of Peter Smerick
(August 24, 1993).
\467\ Id.
---------------------------------------------------------------------------
During the hearings before the subcommittees, Smerick was questioned
about this abrupt change in his advice; and whether senior Justice
Department officials pressured him to change his advice to match the
course of action preferred by the on-scene commanders. Smerick testified
that he felt ``no overt pressure'' \468\ to alter his memoranda. But he
said that he was aware that the FBI wanted different advice. Smerick
told the subcommittees:
---------------------------------------------------------------------------
\468\ Hearings Part 2 at 238.
I had received information from FBI headquarters that FBI
officials were not happy with the tone of my memos. From the
standpoint that they felt it was tying their hands, meaning they
were not going to be able to increase any type of pressure
within that compound and instead were going to have to rely on
strictly negotiations.\469\
---------------------------------------------------------------------------
\469\ Id.
Smerick developed profiles and memoranda that corroborated the
opinions of qualified experts both in and outside the FBI. Smerick's
opinion on this matter is the only expert opinion that changed as the
crisis continued.
e. the decision to dismiss the surrender plan
On March 2, everyone in the residence was lined up, ready to exit,
when Koresh was ``told by God to wait.'' \470\ As far as the FBI was
concerned, Koresh's credibility was broken. After a trip into the
residence, DeGuerin and Zimmerman told Jamar of a new surrender plan
based on the writing of the Seven Seals. The FBI did not believe it. But
there was evidence that pointed to a genuine change in attitude.\471\
---------------------------------------------------------------------------
\470\ Justice Department Report at 35.
\471\ Hearings Part 2 at 68-69.
---------------------------------------------------------------------------
1. ``Kids lined up with their jackets on''
The surrender plan on March 2 was marked by evidence that everyone
but Koresh was prepared to exit the residence. After making much of his
promise to come out, Koresh maintained that God told him to wait. In
preparation for the surrender, the FBI and the Davidians worked out a
complicated plan that involved everything from buses that would carry
the Davidians to the order in which everyone would stand. A proposal to
involve the Texas Rangers in a surrender ``wasn't rejected, but it
wasn't greeted with a lot of enthusiasm.'' \472\
---------------------------------------------------------------------------
\472\ Id. at 49.
---------------------------------------------------------------------------
In connection with the DeGuerin and Zimmerman visits to the
residence, Jamar negotiated a similar surrender plan with the attorneys.
The only change that the attorneys and the Davidians suggested was that
the children come out with their parents, rather than separately.\473\
---------------------------------------------------------------------------
\473\ Id. at 77.
---------------------------------------------------------------------------
2. Breakthrough with Koresh's letter
Following one visit to the residence by DeGuerin and Zimmerman,
Koresh sent out a letter attesting to the fact that he was working on
the Seven Seals.\474\ On April 13 and 14, Koresh said that he had
``received his mission'' from God and that he would be out of the
residence soon. According to DeGuerin, ``everyone was relieved they did
not have to die.'' \475\ Koresh had written letters before. Most had
been rambling biblical dissertations. The final letter was different,
because it mentioned a deadline by which to determine when Koresh would
surrender. That deadline was the writing of Koresh's interpretation of
the Seven Seals.
---------------------------------------------------------------------------
\474\ Letter from David Koresh to Dick DeGuerin (April 4, 1993).
\475\ Hearings Part 2 at 77.
---------------------------------------------------------------------------
There were other reasons that some saw the letter as a true
breakthrough. The April 14 letter was written in a prosaic form
different from the other letters. Koresh's letter expressed the desire
to come out of the residence and to ``stand before man to answer any and
all questions regarding my actions.'' \476\ More important to some
religious scholars and observers than a professed desire to surrender,
however, was the fact that the letter indicated Koresh had found a basis
for surrender in his own religious doctrine.\477\ Tabor and Arnold had
been attempting to persuade Koresh that adequate reason for surrendering
could be found in the Bible. The major change in the April 14 letter,
according to Tabor, was that ``Koresh used the religious arguments in
this letter for why he had now seen that the scriptures told him to come
out.'' \478\ Arnold and Tabor, among others, found affirmative evidence
that Koresh would surrender in the fact that ``[Koresh] could come out
and preach his message.'' \479\ Tabor told the subcommittees that
``[t]hat was the positive end. And court was negative. But DeGuerin
convinced [Koresh] that court would end positively.'' \480\ Tabor,
Arnold, DeGuerin and Zimmerman believed that a surrender was eminent.
---------------------------------------------------------------------------
\476\ Letter from David Koresh to Dick DeGuerin (April 14, 1993).
\477\ Hearings Part 2 at 68-69.
\478\ Id.
\479\ Id. at 199-200.
\480\ Id.
---------------------------------------------------------------------------
Further evidence of the fact that Koresh's letter was a genuine
breakthrough was the reaction of those in the residence to the news of
the surrender. Upon discovery that Koresh had given a deadline for
surrender, there was obvious ``jubilation'' at the prospect of ending
the siege.\481\ In the background of the tapes, cheering can be heard.
As Tabor told the subcommittees, ``You can exactly see the mental state
of the people inside. It is buoyant. They are talking about coming out.
They are excited about it.'' \482\ And in interviews on the subject,
Tabor quotes surviving Davidians as saying, ``We were so joyful that
weekend because we knew we were coming out, that finally David had got
his word of how to do this legally, the lawyers, and theologically in
terms of his system.'' \483\ The Davidians believed that they were
coming out.
---------------------------------------------------------------------------
\481\ Negotiation transcripts April 14, 1993.
\482\ Hearings Part 2 at 172.
\483\ Id.
---------------------------------------------------------------------------
3. The breakthrough communicated to Jamar
On April 14, DeGuerin gave Koresh's letter to Jamar. Jamar testified
that he knew of the ``breakthrough.'' Upon reading the letter and
talking with DeGuerin and Zimmerman, Jamar told them ``that there was
plenty of time.'' \484\ In his testimony before the subcommittees, Jamar
recalled, ``What I said was, if there is writing of a manuscript, if
there is progress, we will take the time.'' \485\ Jamar gave DeGuerin
and Zimmerman the impression that he believed the offer to surrender was
serious. DeGuerin and Zimmerman were so confident that Koresh was
writing the seals and would soon surrender, that they returned to
Houston. Jamar, however, never took the surrender offer seriously. He
told the subcommittees, ``It was serious in [DeGuerin's and Zimmerman's]
minds. I think they were earnest and really hopeful but in Koresh's
mind, never a chance. I'm sorry.'' \486\
---------------------------------------------------------------------------
\484\ Id. at 42.
\485\ Id. at 305.
\486\ Id. at 323.
---------------------------------------------------------------------------
4. The failure to communicate this breakthrough up the chain of command
In the final days of the standoff, no one communicated to the
Attorney General or anyone senior to Jamar that there might be a genuine
attempt to end the siege by Koresh. No one put forth the possibility
that a surrender was in the future. When asked by the subcommittees
whether the Attorney General had been notified of the surrender plan,
Jamar said, ``I doubt it because it was not, from our understanding . .
. a serious plan.'' \487\ In an April 15 conversation, Sage told
Associate Attorney General Webster Hubbell that there was little use in
negotiating further.\488\ Sage, Jamar, and Ricks all acted as though
nothing out of the ordinary had occurred in Waco on April 14. They did
not give the Department of Justice all of the information they had about
the situation in Waco and misled them about the previous success of some
negotiators.
---------------------------------------------------------------------------
\487\ Id. at 305.
\488\ Justice Department Report at 270. ``Hubbell recalls that Sage
said further negotiations with the subjects in the residence would be
fruitless. The only people Koresh had released were older, or people who
had given him problems during the time they were in the residence, or
children who he had not fathered.'' Sage further advised Hubbell that
Koresh had been disingenuous in his discussions with Sage about the
``Seven Seals.'' He was also convinced that the FBI had not succeeded in
getting anyone released from the residence through negotiation. Sage
indicated that he had never been in any previous situation in which he
had experienced such an impasse. Id.
---------------------------------------------------------------------------
It appears that DeGuerin and Zimmerman were the only people involved
in the negotiations who took Koresh's promise seriously. SAC Jamar and
the FBI negotiators saw this as another attempt at delay by Koresh. As a
result, they did not give this new surrender offer a chance to work.
5. Evidence that Koresh was writing his interpretation of the Seven
Seals
The FBI had no concrete evidence that the Seals were being
written.\489\ Even negotiation transcripts give conflicting indications
as to whether the work was in progress. Only after physical evidence was
removed from the destroyed residence did the FBI find proof that the
Seals were being written. Surviving Branch Davidian Ruth Riddle said
that the Seals were being written.\490\ Judy Schneider was transcribing
the Seals and Riddle had the computer disc containing that writing.\491\
It is clear that some work was being done on Koresh's interpretation of
the Seven Seals.
---------------------------------------------------------------------------
\489\ Hearings Part 2 at 323.
\490\ Id.
\491\ Id. at 69.
---------------------------------------------------------------------------
6. Why the FBI disregarded the evidence that the Seven Seals were being
written
Although Koresh indicated he was writing his interpretation of the
Seven Seals, the FBI was not willing to give the surrender plan an
opportunity to work. The FBI was frustrated and appeared to give to
Justice Department officials only one option. Of the breakthrough to
write the Seals, Sage testified before the subcommittees that ``this
first of all was not a new revelation to us as far as the Seven Seals.''
\492\ From early in the standoff it appeared that the FBI had made up
its mind that the Davidians weren't coming out of the residence of their
own free will. Of the possibility of surrender, Jamar testified, ``From
[Koresh's] conduct from February 28th until April 19th, I would have
every reason to believe he would not [surrender].'' \493\ The FBI was
convinced Koresh would never surrender.
---------------------------------------------------------------------------
\492\ Id. at 357.
\493\ Id. at 306.
---------------------------------------------------------------------------
f. findings concerning the negotiations to end the standoff with the
davidians
1. The FBI allowed negotiators to remain in position at the Branch
Davidian residence for too long, resulting in the physical and emotional
fatigue, affecting the course of the negotiations. The negotiators were
in place for 51 days. Negotiations occurred almost constantly 24 hours a
day. Despite a steady rotation of negotiators, it is clear from the
transcripts that negotiators allowed their emotions to influence the
discussions.
2. The FBI did not take appropriate steps to understand the mindset
of the subjects of the negotiations. Numerous experts offered their
advice on the specific beliefs of Koresh and the Davidians. Throughout
the process, it is clear that the negotiators did not engage the
Davidians in meaningful negotiations by ignoring the Davidian point of
view. The subcommittees believe that the course of the negotiations
could have been better directed by an increased understanding of the
Davidians' religious perspective.
3. The FBI leadership failed to make crucial decisions about which
strategy to employ. Two separate strategies were enacted simultaneously.
The tactical pressure constantly worked against the strategy of
negotiation. FBI leadership engaged these two strategies in a way that
bonded the Davidians together and perpetuated the standoff.
g. recommendations
1. Federal law enforcement agencies should redesign negotiation
policies and training so that physical and emotional fatigue will not
influence the course of negotiations. In anticipation of future
negotiations involving unusually emotional subjects, such as Koresh, or
those which may involve prolonged periods of time during which
negotiators may become physically or emotionally fatigued, law
enforcement agencies should implement procedures to ensure that these
factors do not influence the recommendations of negotiators to senior
commanders. Such procedures may involve using additional negotiators in
a team approach, limiting the amount of time a particular negotiator
remains on duty, limiting the amount of interaction between law
enforcement officials and the subject of the negotiations until
satisfactory behavior is elicited from the subject, or applying other
``rewards'' and ``punishments'' in order to elicit positive responses
from the subject during negotiators.
2. Federal law enforcement agencies must take steps to foster
greater understanding of the target under investigation. The
subcommittees believe that had the government officials involved at Waco
taken steps to understand better the philosophy of the Davidians, they
might have been able to negotiate more effectively with them, perhaps
accomplishing a peaceful end to the standoff. The training, policies and
procedures of Federal agencies should be revised to emphasize the
importance of developing an understanding of their investigative
targets.
3. Federal law enforcement agencies should implement changes in
operational procedures and training to provide better leadership in
future negotiations. The subcommittees believe that senior commanders
should be given additional training in critical decisionmaking and that
operational procedures be modified in accordance with this training. The
subcommittees believe that the result of these changes should be that
commanders will be better equipped to make necessary decisions from
limited options with limited information during critical incidents. The
benefits of these changes will protect not only the targets of
government action but, by making it more likely that Federal law
enforcement officials will carry out their mission in the manner most
likely to succeed, but will help to protect the safety of the law
enforcement officers as well.
4. Federal law enforcement agencies should take steps to increase
the willingness of its agents to consider the advice of outside experts.
The subcommittees recommend that Federal law enforcement officials
expand their capacity to obtain behavioral analyses of the targets of
their investigations. This could be done through an expansion of those
parts of the agencies in which behavioral analyses is performed.
Additionally, this capacity could be enhanced through more formal
arrangements with reputable outside consultants. The Nation's
universities contain a wealth of experts whose expertise cuts across all
fields of human behavior. Federal law enforcement should consider a more
formal process for identifying qualified experts and entering into
arrangements with them whereby they would be available when called upon.
5. Federal law enforcement agencies should modify standard
negotiation policies to allow senior commanders to seek outside expert
participation in negotiations when warranted by special and extenuating
circumstances and the absence of in-house expertise. The immense number
of people seeking to assist in the negotiations at Waco provided a good
pool of resources from which to choose experts. Some of those people
offering their assistance could have proven useful in the negotiations.
The FBI should encourage agents to reach out for creative solutions to
barricade situations in the future.
VII. The Attorney General's Decision to End the Stand-off
a. overview of the plan to end the standoff
On April 12, 1993, the FBI presented Attorney General Janet Reno
with a plan to end the standoff with the Branch Davidians. On April 17,
1993, the Attorney General gave her approval for the plan to be
implemented on April 19. The stated mission of the plan was to ``secure
the surrender/arrest of all adult occupants of the residence while
providing the maximum possible security for the children within the
compound.'' A key component of the plan was the decision to use CS, a
chemical riot control agent, which would be sprayed into the Branch
Davidian residence in an attempt to induce the Davidians to leave. The
plan was implemented on April 19, but the Davidians did not leave their
residence as government officials suggested. Instead, 6 hours after the
beginning of the operations, a fire erupted inside the structure,
ultimately consuming it and the more than 70 persons inside.
b. the operation plan for april 19, 1993
1. Overview of the written operation plan to end the standoff
As early as March 22, 1993 the FBI began formulating an operation
plan to end the standoff with the Davidians.\494\ On April 12, 1993, the
FBI presented its plan to the Attorney General for her approval.\495\
According to the Justice Department Report, ``Over the next several days
the Attorney General and Senior Justice Department and FBI officials
discussed, debated and dissected every aspect of the plan.'' \496\
---------------------------------------------------------------------------
\494\ U.S. Dept. of Justice, Report to the Attorney General on the
Events at Waco, Texas 79 (1993) [hereinafter Justice Department Report].
Larry Potts, Assistant Director of the FBI in 1993, testified before the
subcommittees that ``[I]n terms of the formation of the gas plan, I
think that Mr. Jamar first contacted me around March 27th or sometime
near the very end of March, to indicate that such a plan was being
submitted [to senior FBI officials].'' Hearings Part 2 at 480.
\495\ Justice Department Report at 263.
\496\ Id.
---------------------------------------------------------------------------
The operations plan provided that its mission was to ``secure the
surrender/arrest of all adult occupants of the residence while providing
the maximum possible security for the children within the compound.''
The key component of the plan was the delivery of a chemical riot
control agent, known as CS, into the Branch Davidian residence in order
to induce the Davidians to leave. While the CS agent was being inserted,
FBI officials planned to use a loud speaker system and the telephone to
advise the Davidians that tear gas was being inserted into the residence
to force them to leave, but that an attack was not underway. The plan
also provided for a demand that all subjects leave the building and
surrender to authorities.\497\
---------------------------------------------------------------------------
\497\ Federal Bureau of Investigation, Briefing for the Attorney
General, at 25. [See Documents produced to the subcommittees by the
Department of Justice 003370-003480, at Appendix [hereinafter Justice
Documents]. The Appendix is published separately.]
---------------------------------------------------------------------------
The plan provided for the operation to last up to 48 hours or until
all subjects had exited the residence and surrendered. The plan provided
for the first insertion of CS agent to be made into the front/left
portion of the residence. After a period of time, which was to be
dependent on the Davidians' response to the initial delivery of the CS
agent and any subsequent negotiations that were possible, an additional
tear gas delivery was to be made into the back/right portion of the
residence. After a third delivery of CS, into an area not specified in
the plan, all subsequent deliveries of CS agent were to be made into the
upper and lower windows of the residence.\498\
---------------------------------------------------------------------------
\498\ Id.
---------------------------------------------------------------------------
During the first three insertions, the CS agent was to be delivered
into the residence by two combat engineering vehicles (CEV's), an
armored vehicle similar to the Bradley Fighting Vehicle (Bradley), but
which is unarmed. The CEV's at Waco were mounted with boom-like arms
which were capable of penetrating the walls of the structure. Mounted on
the arms of the CEV's were mechanical devices designed to spray a stream
of CS agent into the holes made by the booms. After the third insertions
of CS agent, the operations plan called for agents located in unarmed
Bradley Fighting Vehicles to maneuver close enough to the residence so
that they could fire Ferret round projectiles through the windows of the
structure. These small non-explosive grenade-like projectiles contained
CS agent which would rise into the air when the projectile broke open
upon impact. The use of Ferret rounds was to be in addition to
continuing insertions of CS by agents in the CEV's.
The plan also provided for specific assignments for the different
HRT and SWAT teams involved in the operation. It specified the maneuvers
to be made by the two CEV's, the nine Bradley Fighting Vehicles, and the
M-88 tank retrieval vehicle, and provided for miscellaneous
administrative and logistical issues such as types of uniforms to be
used and the appropriate manner for handling prisoners.
Additionally, the plan provided to the Attorney General on April 12,
1993 included details concerning where the FBI's snipers were to be
positioned and the positioning and capabilities of SWAT team members.
The plan contained a ``medical annex'' providing for a means to treat
``the potentially large number of casualties which could exceed the
current medical capabilities of any single agency present'' as well as
procedures to be followed to arrest persons who had been exposed to CS.
The annex also provided for locations where the injured were to be
treated, provided a list of local and secondary hospitals (including
address, latitude/longitude location, and estimated air travel time).
And the medical annex provided instructions to the agents on the
procedure to handle a mass surrender by the Davidians.
Finally, the plan provided for the possibility that the Davidians
might not surrender. The final contingency provision in the plan stated
that ``if all subjects failed to surrender after 48 hours of tear gas,
then a CEV with a modified blade will commence a systematic opening up/
disassembly of the structure until all subjects are located.''
2. Acceleration provisions of the operations plan
While the operations plan called for the government's actions to end
the standoff to unfold over a period of 2 days, the plan also contained
contingency provisions that allowed for a departure from the concept of
a methodical insertion of CS. One of these provisions was implemented on
April 19 and resulted in a rapid acceleration of the insertion of CS
agent.
The first of the two contingency provisions in the plan provided
that if the Davidians were observed in the tower during the operations,
after having been informed not to be there, agents were permitted to
insert CS gas into the tower by firing Ferret round projectiles into the
tower. More importantly, however, the second contingency provision in
the plan provided:
If during any tear gas delivery operations, subjects open fire
with a weapon, then the FBI rules of engagement will apply and
appropriate deadly force will be used. Additionally, tear gas
will immediately be inserted into all windows of the compound
utilizing the four Bradley Vehicles as well as the CEV's.\499\
---------------------------------------------------------------------------
\499\ Id.
---------------------------------------------------------------------------
c. the way the plan actually unfolded
At approximately 5:55 a.m., Dick Rogers, commander of the FBI's
Hostage Rescue Team, ordered the two CEV's, which were to insert the CS
riot control agent, deployed to the compound. At 5:56 a.m., the FBI's
chief day-to-day negotiator, Byron Sage, telephoned the residence and
asked to speak with Davidian Steve Schneider. It took approximately 3
minutes for someone to come to the phone.\500\ At 5:59 a.m., Sage
informed the person answering the telephone that ``We are in the process
of putting tear gas into the building. This is not an assault. We will
not enter the building.'' The person on the other end of the telephone
responded ``You are going to spray tear gas into the building?''
whereupon Sage replied, ``In the building . . . no, we are not entering
the building.'' \501\ While the Justice Department Report is ambiguous
on the person to whom Sage was speaking, Sage testified at the hearings
before the subcommittees that the person he talked with was
Schneider.\502\ At the conclusion of this conversation, someone threw
the telephone outside of the building.\503\
---------------------------------------------------------------------------
\500\ Justice Department Report at 285.
\501\ Justice Department Report at 286.
\502\ Hearings Part 3 at 269.
\503\ Justice Department Report at 286.
---------------------------------------------------------------------------
From 6 a.m. to approximately noon on April 19, 1993, FBI agents
implemented the operations plan and injected a large quantity of CS riot
control agent into the Branch Davidian residence in four distinct
phases. The agents moved close to the Davidian residence in CEV's
equipped with devices \504\ which could shoot a horizontal stream of CS
agent in short bursts or continuously for up to 15 seconds.\505\ The
device uses carbon dioxide as a disbursant to propel a stream of CS
agent, suspended in methylene chloride, horizontally into the air. Once
the CS stream is fired, the carbon dioxide quickly evaporates and the
methylene chloride gas disperses the CS evenly through a room, until the
methylene chloride itself evaporates. The CS agent, which is a fine
powder, then slowly falls to the floor, where it remains. The capacity
of each delivery system on the CEV's was 30 grams of CS agent.
---------------------------------------------------------------------------
\504\ The delivery systems mounted on the CEV's were Protecto-jet
Model 5 Tear Gas Delivery Systems manufactured by ISPRA, Ltd., an
Israeli company. The systems were sold to the FBI by Advanced Materials
Laboratories, Inc. of Forrest Hills, NY. The Justice Department Report
refers to the systems as Mark V systems. See Justice Department Report
at 287. The subcommittees investigation indicates that while the Mark V
system does exist, there is no evidence that it was used at Waco. The
evidence indicates that only the Protecto-jet Model 5 system was mounted
on the CEV's furnished to the FBI by the Defense Department. The
references to the Mark V system in the Justice Department Report appear
to be in error.
\505\ The Protecto-jet Model 5 system consists of a cylinder
approximately 27 inches long, 4\1/8\ inches in diameter, weighing
approximately 16 lbs., which is connected to a hose with a nozzle. The
device uses carbon dioxide to propel a chemical agent, such as CS, mixed
in a suspension of methylene chloride, into the air. The range of the
device is 15-20 yards in still air. The device can be used to shoot 13-
17 1-second bursts or a continuous burst for up to 15 seconds.
---------------------------------------------------------------------------
The insertion of CS agent into the Branch Davidian residence was
performed in four phases. The first two phases employed two CEV's. On
one CEV was mounted two CS delivery systems, while four systems were
mounted on the second CEV. The CEV's were operated in tandem, each
inserting the entire contents of the six CS agent delivery systems
during the first two phases of the operation, at 6 a.m. and again at
approximately 8 a.m. In each of the first two phases, a total of 180
grams of CS was delivered. The third and fourth phases, also 2 hours
apart, involved only one CEV, as the second CEV had experienced
mechanical difficulties and no longer operated. Four cylinders of CS
were delivered in each of these two phases, for a total 120 grams of CS
inserted into the residence. Thus, over the entire 6 hours of the
operation, a total of 600 grams of CS agent was inserted into the Branch
Davidian residence.
During the standoff with the Davidians, FBI agents used unarmed
Bradley Fighting Vehicles as a means of transportation while guarding
the perimeter of the residence. The FBI's overall operational plan for
April 19 provided for the Bradleys to be used in a contingency plan to
be implemented in the event the Davidians began to fire on the CEV's. If
that occurred, agents in Bradleys who had maneuvered close to the
building and were standing ready were to insert additional quantities of
CS agent into all parts of the building. Agents in the Bradleys were to
fire Ferret round projectiles into the residence. Ferret rounds \506\
resemble large plastic bullets, and are fired from hand-held grenade
launchers. Each projectile carries 3.7 grams of CS agent, mixed in a
suspension of methylene chloride.
---------------------------------------------------------------------------
\506\ Ferret Rounds are 37, 38, and 40 millimeter projectiles which
can be fired from hand-held grenade launchers. Each projectile carries
3.7 grams of CS riot control agent, mixed in a suspension of methylene
chloride.
---------------------------------------------------------------------------
Once the Davidians began firing on the CEV's Rogers gave the order
to implement the contingency plan. The agents in the Bradleys then
maneuvered close to the Branch Davidian residence and began to fire the
Ferret round projectiles through the windows of the building. During the
6-hour operation, 400 Ferret round projectiles were fired at the Branch
Davidian residence, a number of projectiles struck the side of the
building and did not enter the building. Estimates of the number of
projectiles that actually entered the residence range from 300 to 380.
Had all 400 projectiles fired at the residence actually entered the
residence, however, the total quantity of CS agent delivered by the
Ferret round projectiles would have been 1,480 grams.
d. overview of the use of cs chemical agent
1. Introduction
Chlorobenzylidene malononitrile, commonly called CS, is one of a
family of approximately 15 chemical compounds used to control civilian
populations during periods of disturbance and unrest. These ``riot-
control agents'' cause acute irritation to the eyes, mouth, nose, and
upper respiratory tract, that is relatively brief and not usually
accompanied by permanent toxic effects. Exposure to riot-control agents
renders the victim temporarily incapacitated, but the symptoms typically
persist for only a few minutes after cessation of exposure.\507\
---------------------------------------------------------------------------
\507\ F.W. Beswick, Chemical Agents Used in Riot-Control and
Warfare, 2 Hum. Toxicology 247-256.
---------------------------------------------------------------------------
The first riot control agent was developed in the early 1900's.\508\
In 1928, two chemists, Corson and Stoughton, developed 2-
chlorobenzylidene malononitrile, code named CS. However, CS was not
developed as riot-control agent until the 1950's, when the British War
Office began to search for a chemical that was more potent than either
CA or CN.\509\ By the 1960's, CS had replaced CN as the preferred tear
gas among police authorities around the world. Its popularity stemmed
from the fact that it was shown to be a more potent irritant than CN,
and appeared to cause less long-term injury, particularly to the
eye.\510\ Military forces also saw CS as a potent weapon for particular
operations. Large quantities of CS were used by the United States during
the Vietnam War. CN is no longer used by the U.S. military operations,
but it is still used by some civil authorities, and by individuals for
self-defense. Among civilian law enforcement agencies CS is, by far, the
most widely-used riot control agent.
---------------------------------------------------------------------------
\508\ The first riot-control agent may have been ethyl bromacetate,
which was used by the Paris police in a hand grenade to disable criminal
gangs. The German chemical industry that produced many lethal chemical
weapons during World War I (e.g., nerve gases) also developed new tear
gases. For example, xylyl bromide was packed in 150-mm artillery shells
and used during the battle against the Russians at Bolimow in January
1915. This early military use of a tear gas was not judged to be a
success, owing to the failure of the chemical to vaporize in the sub-
zero temperatures on the battlefield. However, it provided an early
indication of the importance of weather conditions to the effectiveness
of these agents. By 1918, the French had developed bromobenzylcyanide,
known by the military code CA, and the British and Americans had
developed chloroacetophenone, known by the military code CN, which
became the most effective and widely used tear gas. In the postwar
period, the urban crime wave and emergence of gangsters in the 1920's in
the United States spurred renewed efforts to develop riot-control
agents. By the mid-1920's, small explosive cartridges containing CN were
available over the counter for personal protection. CN rapidly became
the tear gas of choice for law-enforcement authorities. Howard Hu,
Toxicodynamics of Riot-Control Agents (Lacriminators) 271, 273 in
Chemical Warfare Agents (Satu M. Somani ed., 1992).
\509\ J. Cookson and J. Nottingham, A Survey of Chemical and
Biological Warfare (1969).
\510\ Hu, supra note 508.
---------------------------------------------------------------------------
2. Concerns over use of CS
CS has gained wide acceptance as a means of controlling and subduing
riotous crowds. However, its widespread use has raised questions about
its safety. Most published studies have concluded that, if used
correctly, the irritant effects of exposure are short-lived and do not
cause permanent damage.\511\ However, there have been isolated reports
of fatalities from the use of riot control agents. The most common
reports involve deaths attributed to the use of riot control agents by
American miltary personnel in Vietnam.\512\ Additionally, other reports
involve injury and death from the use of CS in Chile, Panama, South
Korea, and the Gaza Strip and West Bank of Israel.\513\ It has been
unclear from these reports, however, whether the riot control agent used
was CS or another, more toxic, agent.\514\ Of particular concern,
however, has been the indiscriminate use of riot control agents in
enclosed and indoor spaces where it is feared that resulting high
concentrations may have resulted in harmful levels of exposure. Severe
injuries from exploding tear gas grenades as well as deaths from the
toxicity of riot control agents used in confined, indoor spaces have
been reported.
---------------------------------------------------------------------------
\511\ The most thorough study of the use of CS agent against humans
is the Himsworth Report, which investigated the use of CS agent in
Northern Ireland in 1969. It concluded that exposure to CS did not
produce long-term injury or death in humans. Home Office, report of the
enquiry into the Medical and Toxicological aspects of CS (Ortho-
chlorobenzylidene malononitrile), Part II: Inquiry into Toxicological
Aspects of CS and its use for Civil Purposes (1971) [hereinafter
Himsworth Report]. A recent study of the use of CS on 1,500 persons in a
confined area space made the same findings. P.J. Anderson et al., Acute
effects of the potent lacrimator o-chlorobenzylidene malonitrile (CS)
tear gas, 15 Hum. & Experimental Toxicology 461, 464-465 (1996).
\512\ The United States used large amounts of CS during the Vietnam
War in both offensive and defensive military operations. The basic
doctrine for the use of CS weapons by U.S. sources is summarized in the
following passage taken from a 1969 Army training circular:
The employment of riot-control agents (CS, CN) in Counter guerilla
operations is most feasible in tactical situations characterized by
close combat in which rapidly responding systems are essential and
permanent effects are undesirable. Riot-control munitions can be used
tactically to temporarily disable hostile troops, to suppress their
fire, or to cause them to abandon their position. Offensively, riot-
control agents can be used to ``flush out'' unprotected enemy troops
from concealed positions or to reduce their ability to maneuver or use
their weapons. Defensively, riot-control munitions can be integrated
into defensive perimeters to provide rapid CS delivery in case of enemy
attack.
CS was employed for defensive purposes such as in the event of a
surprise attack from superior enemy forces, and to help secure
helicopter extractions of combat units or downed airman. It was used
extensively in area-denial operations to render terrain uninhabitable by
the enemy. CS was also used routinely in direct engagement of the enemy
during offensive combat operations.
U.S. forces were issued gas masks to protect themselves against use
of CS and other tear gases by the enemy. According to one U.S.
evaluation, the North Vietnamese had only a limited supply of tear gas,
but they used it to good effect. During the conflict, the general
service respirator was replaced by a lighter mask, which went through a
number of further modifications. The protection which it conferred was
adequate but not complete, because dense CS aerosols can have a strong
irritant effect on bare skin, especially in hot and humid conditions
when the skin is moist.
\513\ See generally, H. Jack Geiger & Robert M. Cook-Deegan, The
Role of Physicians in Conflicts and Humanitarian Crises, Case Studies
from the Field Missions of Physicians for Human Rights, 1988 to 1993,
270 JAMA 616 (1993).
\514\ In a 1989 report, the General Accounting Office noted that the
group Physicians for Human Rights had conducted a fact-finding trip to
investigate allegations of deaths from the use of CS in the occupied
territories but that the members of the group could not confirm that any
of the reported deaths were attributable to tear gas inhalation. See
e.g., U.S. General Accounting Office, Isreal: Use of U.S.--Manufactured
Tear Gas in the Occupied Territories 3 (1989) (citing Physicians for
Human Rights, ``The Casualties of Conflict: Medical Care and Human
Rights in the West Bank and Gaza Strip,'' Report of a Medical Fact
Finding Mission by Physicians for Human Rights (1988)). The GAO report
also noted that while Amnesty International had reported concerns over a
``pattern of death [that] appeared to follow expose to high
concentrations of tear gas'' they also stated that ``Amnesty
International noted that it was in no position to verify the exact cause
of death in every case.'' Id. at 4.
---------------------------------------------------------------------------
Critics of the use of these agents argue that the available
toxicological data is insufficient to describe with any confidence the
potential for long-term pulmonary, carcinogenic, and reproductive
effects. One recently published review of the toxicological data on riot
control agents concluded that relatively little has been published in
the mainstream medical literature and that epidemiologic studies
following tear gas use under actual field conditions are almost
nonexistent. The author of this review wrote:
There is clearly a great need for openly conducted research
illuminating the full health consequences of exposure to riot-
control agents including outcomes such as tumor formation,
reproductive effects, and pulmonary disease. Consideration must
be given to the possible effects of these agents on the young,
the elderly, and other persons who might have increased
susceptibility.\515\
---------------------------------------------------------------------------
\515\ Hu, supra note 508, at 284-285.
---------------------------------------------------------------------------
e. clinical effects and toxicity of cs
1. Common effects of exposure to CS
All riot control agents, including CS, produce intense sensory
irritation even in the most minute concentrations. For most of these
agents, the eye is the most sensitive organ, with pain arising rapidly,
accompanied by conjunctivitis, excessive tearing, and uncontrolled
blinking. The inside of the mouth and nose experience a stinging or
burning sensation, and there is usually excessive discharge of nasal
mucus. Chest tightness and burning are accompanied by coughing,
sneezing, and increased secretions from the respiratory passageways. A
burning sensation is felt on the skin, often followed by inflammation
and redness, and in some cases, actual burning of the skin occurs. Tear
gas exposure may also irritate the stomach, leading to vomiting and
possibly diarrhea. In addition to the physical symptoms, panic and
severe agitation are common among those individuals with no prior
experience of exposure to tear gas.\516\
---------------------------------------------------------------------------
\516\ See generally Id. at 276; Anderson, supra note 511, at 461.
---------------------------------------------------------------------------
Most of the symptoms are felt within 10 to 30 seconds after exposure
to the agent. After cessation of exposure, however, most symptoms
continue to persist for a period of minutes before subsiding and
disappearing.\517\ The effects of expose vary among individuals.
Additionally, weather conditions, such as temperature and humidity, can
heighten the potency of these agents.\518\
---------------------------------------------------------------------------
\517\ Hu, supra note 508, at 276.
\518\ Id. at 277.
---------------------------------------------------------------------------
2. Toxicity of CS
A review of the scientific literature concerning the use of CS
indicates that limited conclusions as to the toxicity and lethality of
CS are known. It seems generally accepted by the scientific community
that the concentration of CS agent which is noticeable by humans and
which will provoke physical responses in humans is 4 milligrams per
cubic meter (4 mg/m\3\).\519\ While no studies on humans have been
conducted concerning the lethality of CS, several studies have projected
the concentrations at which CS is lethal to humans from the effects of
studies performed on animals. Those studies estimate that the
concentration of CS agent which would prove lethal to 50 percent of any
given human population ranges from as low as 25,000 \520\ to as high as
150,000 mg-min/m\3\.\521\ Recent estimates by the U.S. military,
however, estimate that the lethal concentration for humans is 61,000 mg-
min/m\3\.\522\ That study projects that the concentrations which would
be injurious to the health of approximately 50 percent of any human
population range from between 10-20 mg-min/m\3\.\523\
---------------------------------------------------------------------------
\519\ Bryan Ballantyne, Riot Control Agents, Biomedical and Health
Aspects of the Use of Chemicals in Civil Disturbances 27 (1977); Hu,
supra note 508, at 279.
\520\ Dow Chemical Co., Material Data Safety Sheet (1988);
Ballantyne, supra note 519.
\521\ Id.
\522\ Headquarters, Departments of the Army, Navy, and the Air
Force, Potential Military Chemical/Biological Agents and Compounds 59
(1989).
\523\ Id.
---------------------------------------------------------------------------
It is important to note, however, that there are no published
studies which find that any human death has been caused by exposure to
CS agent. While a number of unverified reports of human deaths can be
found in the literature, in all of these reports it is unclear precisely
whether CS or some other, more toxic, riot control agent was used or
whether some other circumstance could have caused the deaths. The most
extensive study of the use of CS agent on humans, by United Kingdom
forces in Northern Ireland in the late 1960's, found that no deaths (and
no long-term injuries) resulted from the widespread use of CS agent
there.\524\ The only other documented study of the effects of CS used on
a large number of humans confirms this finding.\525\
---------------------------------------------------------------------------
\524\ Himsworth Report, supra note 511, at 23-25.
\525\ Anderson, supra note 511, at 464-465.
---------------------------------------------------------------------------
Some people may find curious the fact that all of these studies (and
similar studies on the effects of chemical agents) uniformly give
estimates of the level at which CS is lethal or injurious to 50 percent
of a given population of humans. It appears from the literature that the
effect of CS on humans (and on other animals) is not ``linear,'' i.e.,
that proportionately greater concentrations do not have equally
proportionate increases in effect. While scientists can estimate the
levels which would prove lethal to 50 percent of a given population, it
would be incorrect to presume that half of that quantity would kill 25
percent of that population. In fact, the most well-known study of the
effects of CS on humans estimates that the likelihood of death after
exposure to a dose of CS that is one-tenth the estimated lethal does is
less than 1 in 100,000.\526\ Accordingly, any analysis of the lethality
of the CS agent used in the concentrations that resulted on April 19 can
only be performed in light of the 50 percent lethality estimates.
---------------------------------------------------------------------------
\526\ Himsworth Report, supra note 511, at 55-56; Ballantyne, supra
note 519, at 30.
---------------------------------------------------------------------------
Even when the quantities of CS riot control agent used do not reach
lethal toxic levels, there are, nevertheless, significant physical
consequences that occur from exposure to CS, and often severe emotional
reactions caused by the symptoms brought on from exposure to CS. As
discussed above, one recent study of the use of large quantities of CS
against a population unable to leave the area in which the CS was used
indicated that first, second, and even third degree burns are possible
when skin is exposed to CS.\527\ Additionally, some studies have shown
that exposure to CS can cause allergic contact dermatitis.\528\ Other
studies have shown that when CS can cause severe gastroenteritis when
ingested, whether directly or as a result of ingesting mucus secretions
containing CS from oral inhalation.\529\
---------------------------------------------------------------------------
\527\ Anderson, supra note 511, at 463-464.
\528\ Hu, supra note 508, at 280.
\529\ Id.
---------------------------------------------------------------------------
Additionally, some studies on animals have suggested that exposure
to CS might cause cancer and genetic abnormalities.\530\ Some studies
have stated that exposure to high concentrations of CS for prolong
periods could result in inflammatory changes in the respiratory tract
that might be conducive to secondary respiratory infection.\531\ And it
is believed that CS may exacerbate existing medical conditions of
persons with bronchitis or asthma, although no reports of death from
these conditions exist.
---------------------------------------------------------------------------
\530\ Id.
\531\ Ballantyne, supra note 519, at 30.
---------------------------------------------------------------------------
f. effect of the cs and methylene chloride in the quantities used on
april 19th
1. Lethality of CS as used at Waco
Testimony before the subcommittees presented contradictory evidence
on the effects of CS riot control agent. The published literature
described above, however, is more consistent in the conclusions drawn.
While it cannot be concluded with certainty, it is unlikely that the CS
riot control agent, in the quantities used by the FBI, reached lethal
toxic levels. The evidence presented to the subcommittees does indicate,
however, that CS insertion into the enclosed bunker at a time when women
and children were assembled inside that enclosed space could have been a
proximate cause of or directly resulted in some or all of the deaths
attributed to asphyxiation in the autopsy reports.
In order to answer the question of whether the quantities of CS
agent inserted into the residence might have reached lethal levels, the
subcommittees attempted to determine the concentrations that were
present in the residence under the ``worst-case'' circumstances. To make
this determination, a number of assumptions must be made. Many of these
assumptions were overstated solely for the purpose of calculation in
order to place the greatest scrutiny on the government's actions.
In each of the first two phases of insertion into the Branch
Davidian residence, a total of 180 grams (180,000 mgs) of CS was
delivered.\532\ For the purposes of analysis, the subcommittees assumed
an ``extreme case'' scenario, where all 180 grams were delivered into
the building by the two CEV's at the same instant, and that one-quarter
of the Ferret rounds fired at the residence were fired at the precise
moment that the CS delivered by the CEV's entered the residence.\533\ If
so, then during the first and second phases of the CS operation, 550
grams (550,000 mgs) of CS were delivered to the residence.\534\ During
the first and second phases, therefore, the total concentration of CS
delivered into the compound was 108.92 mgs/m\3\.\535\ During the third
and fourth phases, due to the mechanical failure of the second CEV, only
490 grams (490,000 mgs) of CS agent was delivered into the
residence.\536\ During each of the third and fourth phases the total
concentration at the (assumed) moment of insertion was 97.04 mgs/
m\3\.\537\
---------------------------------------------------------------------------
\532\ CEV-1 emptied its four 30-gram cylinders while CEV-2 emptied
the contents of its two 30-gram cylinders. The total delivered was thus
(4 x 30) + (2 x 30) = 180 grams.
\533\ Each Ferret round carried 3.7 grams of CS agent. A total of
400 Ferret rounds were fired at the residence. Thus, the total quantity
of CS agent in one quarter of the Ferret rounds used was 370 grams (3.7
x 100).
\534\ On each of the first two phases, 180 grams of CS agent was
delivered by the CEV's and approximately 370 grams was delivered by
Ferret Rounds. This totals 550 grams, or 550,000 milligrams.
\535\ The Branch Davidian residence contained approximately 178,310
cubic feet of living area. Converted into meters, the volume of the
residence was 5,049.7 cubic meters. The concentration inside the
building, therefore, was 108.92 mgs/m\3\ (550,000 mgs/5,049.7m\3\ =
108.92 mgs/m\3\).
\536\ The 180 grams from CEV-1 and the approximately 370 grams from
100 of the Ferret Rounds totals 490 grams, or 490,000 milligrams.
\537\ 490,000 mgs/5049.7 m\3\ = 97.04 mgs/m\3\.
---------------------------------------------------------------------------
Assuming the Branch Davidian residence been air-tight, so that none
of the CS agent escaped the building (which was not the case), the total
amount of CS agent delivered present in the building would have been
411.92 mgs/m\3\.\538\ This concentration is far below the 61,000 mgs/
m\3\ amount projected to be lethal to 50 percent of a given population
of humans. Stated in another way, it would take a concentration of CS
148 times greater than the greatest amount that could have been present
at the Branch Davidian residence on April 19 to reach that lethal level.
---------------------------------------------------------------------------
\538\ The concentration inside the building, therefore, was 108.92
mgs/m\3\ + 108.92 mgs/m\3\ + 97.04 mgs/m\3\ + 97.04 mgs/m\3\ = 411.92
mgs/m\3\).
---------------------------------------------------------------------------
In reality, the concentrations of CS inside the Branch Davidian
residence did not reach even these levels. The Branch Davidian residence
was a poorly constructed structure which allowed for air to move in and
out of the residence continuously. The air circulation carried some of
the CS agent out of the building. Adding to the air circulation inside
the Davidians residence that day was the fact that the FBI began to use
the CEV's to ram openings into the building, ostensibly to create a
means of escape for the Davidians and, later, to ``deconstruct''
portions of the structure in an effort to prevent the Davidians from
occupying those areas of the residence. These actions greatly enhanced
the circulation into the residence and further depleted the
concentration of CS agent inside the residence. Additionally, on April
19th, the winds were gusting up to 25 mph.\539\ This fact greatly
enhanced the air circulation inside the residence, adding to the
dissipation of the concentration of CS agent in the residence. Thus, the
actual levels of CS inside the Davidian residence were less than those
calculated above.
---------------------------------------------------------------------------
\539\ The National Oceanic and Atmospheric Administration recorded
high winds beginning at noon on April 18, 1993. The winds continued
through April 19. At 11:52 a.m. on April 19, winds were recorded at 25
mph with gusts to 30 mph.
---------------------------------------------------------------------------
Some who have contacted the subcommittees have suggested that the
above analysis is flawed because it does not allow for the possibility
that some CS agent was concentrated in certain areas of the residence
rather than being evenly distributed throughout the entire structure.
The subcommittees believe that it is important to address that
possibility.
Because the largest group of bodies recovered after the fire was
found in the area of the residence commonly known as the gun room or
bunker \540\ consideration was given to the concentrations of CS in that
area.\541\ The bunker was a solid concrete room inside the Davidian
residence. It had no windows or other access to the outside of the
building, but did open into a hallway inside the residence. It appears
that there was little opportunity for CS to have been directly sprayed
into the bunker and that any CS that was present in the bunker likely
drifted into that room after it was sprayed into one or more of the
rooms along the outside of the structure. The subcommittees note,
however, that the videotape of the insertion of CS on April 19 indicates
that one of the CEV's drove into the structure near the bunker during
the fourth phase of the CS insertion. If the door to the bunker had been
open at that time, it is possible that CS might have been injected
directly into the bunker.
---------------------------------------------------------------------------
\540\ See Justice Documents at the Appendix for a diagram of the
floorplan of the Branch Davidian residence.
\541\ It should be noted, however, that none of the autopsies of the
persons found in the bunker indicate the cause of death was from
exposure to CS.
---------------------------------------------------------------------------
Based on this possibility the subcommittees attempted to determine,
as a worst case scenario, the concentration of CS that would have been
present in that room had the CEV emptied the entire contents of one of
its CS containers into the bunker. It appears, however, that even in
that event the concentration of CS would not have reached lethal levels.
The volume of the bunker room was approximately 44.40 cubic meters.
Assuming that an entire cylinder (30 grams) of CS was injected into the
room, the concentration at that moment would have been 675.67 mgs/
m\3\.\542\ As discussed above, the concentration level estimated to be
lethal to humans is 61,000 mgs-min/m\3\. Even had the CEV which was
mounted with four containers of CS inserted the contents of all four
containers into the bunker, the resulting concentration would have been
2,702.70 mgs/m\3\.\543\ Again, this figure is well below the
concentration level estimated to be lethal to humans.
---------------------------------------------------------------------------
\542\ Each cylinder of CS contained 30 grams, or 30,000 milligrams,
of CS. 30,000 mgs/44.40 m\3\ = 675.67 mgs/m\3\.
\543\ 120,000 mgs/44.4 m\3\ = 2,702.70 mgs/m\3\.
---------------------------------------------------------------------------
Another worse case scenario considered by the subcommittees was the
possibility that one of the CEV's might have delivered the entire
contents of one of its cylinders of CS agent into one of the smallest
rooms of the residence, and that that room was inhabited at the time. It
still appears that the concentration of CS would not have reached lethal
levels. The smallest rooms in the structure were the women's quarters
located on the second floor of the residence. The smallest of these had
a total volume of 16.17 cubic meters. Assuming that an entire cylinder
of CS had been injected into this room, the concentration at that moment
would have been 1855.29 mgs/m\3\.\544\ Assuming further that a number of
Ferret rounds also happened to be fired into the room at the exact
moment that the CS was injected by the CEV (assume an impossible event
such as 20 rounds entering the room at the same instant), the
concentration at that instant would have been 6,431.66 mgs/m\3\.\545\
Again, these figures fall far below the concentrations estimated to be
lethal to humans.
---------------------------------------------------------------------------
\544\ Each cylinder of CS agent contained 30 grams, or 30,000
milligrams. 30,000 mgs/16.17 m\3\ = 185.52 mgs/m\3\.
\545\ 30 grams of CS agent from a CEV plus 74 grams of CS agent from
20 Ferret rounds is a total of 104 grams (30 + (3.7 x 20) = 104), or
104,000 milligrams. 104,000 mgs/16.17 m\3\ = 6,431.66 mgs/m\3\.
---------------------------------------------------------------------------
While concluding that it is unlikely that the CS reached toxic
levels, the subcommittees note the level of exposure to CS experienced
by an individual Davidian cannot be determined. It is possible that a
person near one of the CEV's injecting the CS may have been subject to a
level of CS that was high enough to cause death. Additionally, 10 of the
autopsies indicate asphyxiation as the cause of death, but do not
indicate whether CS or other factors may have lead to this. The
subcommittees are unable to conclude that CS did not play a part in the
deaths of these persons.
2. Lethality of methylene chloride used with CS at Waco
During the gassing operation, each cylinder of the CS riot control
agent introduced into the Branch Davidian residence by the CEV's was
mixed with approximately 1,070 grams of methylene chloride. This
suspension was then dispersed into the structure by carbon dioxide,
which almost immediately evaporated, leaving the suspension of CS and
methylene chloride. Additionally, each of the Ferret round projectiles
contained 33 grams of methylene chloride as the dispersant medium for
the CS agent.
The four phases of insertion of CS agent into the Branch Davidian
residence were conducted approximately 2 hours apart. During the first
and second phases six cylinders of CS agent were inserted into the
residence, delivering approximately 6,420 grams of methylene chloride in
each phase.\546\ During the third and fourth insertions only four
cylinders of CS agent were inserted, accounting for approximately 4,280
grams of methylene chloride during each insertion. Assuming a worse case
scenario of all of the CS insertions in one phase occurring at the same
moment and approximately \1/4\ of the Ferret round projectiles entering
the building at that same time, thus adding an additional 3,300 grams of
methylene chloride in each phase,\547\ the total concentration of
methylene chloride delivered into the building during the first and
second insertions was 1,924.87 mgs/m\3\.\548\
---------------------------------------------------------------------------
\546\ Each cylinder contained 1,070 grams of methelyene chloride.
Six cylinders totaled 9,720 grams.
\547\ Each Ferret round contained 33 grams of methylene chloride.
One hundred Ferret rounds thus inserted 3,300 grams of the chemical into
the building.
\548\ In the first two phases the total quantity of methylene
chloride delivered was 9,720 grams ((6 x 1,070) + (100 x 33)) or
9,720,000 milligrams. Divided by the cubic footage of the building
(5,049.7 m\3\) the distribution of the substance throughout the building
in these phases was 1,924.87 mgs/m\3\. In the third and fourth two
phases the total quantity of methylene chloride delivered was 7,580
grams ((4 x 1,070) + (100 x 33)) or 7,580,000 milligrams. Divided by the
cubic footage of the building (5,049.7 m\3\) the distribution of the
substance throughout the building in these phases was 1,501.08 mgs/m\3\.
---------------------------------------------------------------------------
A review of the scientific literature concerning CS agent has
located no estimates of the concentration of methylene chloride which
would prove harmful or lethal to humans. The only estimates which do
exist are with respect to mice and rats. For example, the concentration
that would prove lethal to 50 percent of a rat population is estimated
to be 2,640,000 mgs-min/m\3\.\549\ As can be seen from the above
figures, therefore, the total concentrations of methylene chloride at
the Davidian residence on that day were less than the concentrations
that would prove lethal to even rats.\550\ It appears, therefore, that
the methylene chloride used with the CS agent could not have caused the
death of any of the Davidians.
---------------------------------------------------------------------------
\549\ See generally Mallinckrodt, Inc., Material Data Safety Sheet 2
(1989); Dow Chemical, Inc., Material Data Safety Sheet 3 (1988).
\550\ The total quantities from each of the four insertions of CS
agent was only 5,356.74 mgs/m\3\. ((2 x 1,924.87) + (2 x 1,501.08) =
5,356.74).
---------------------------------------------------------------------------
As in the case with CS, the subcommittees considered the possibility
that some methylene chloride was concentrated in certain areas of the
residence rather than being evenly distributed throughout the entire
structure. Because the largest group of bodies recovered after the fire
was found in the area of the residence commonly known as the gun room or
bunker, consideration was given to the concentrations of methylene
chloride in that area.\551\ As discussed above, the bunker was a solid
concrete room with no windows or other access to the outside of the
building, but did open into a hallway inside the residence. Again, it
appears that there was little opportunity for the methylene chloride
carrying the CS agent to have been directly sprayed into the bunker and
that any methylene chloride that was present in the bunker likely
drifted into that room after it was sprayed into one or more of the
rooms along the outside of the structure. But the subcommittees again
note that the videotape of the insertion of CS on April 19 indicates
that one of the CEV's drove into the structure near the bunker during
the fourth phase of the CS insertion. If the door to the bunker had been
open at that time, it is possible that methylene chloride carrying the
CS agent might have been injected directly into the bunker.
---------------------------------------------------------------------------
\551\ It should be noted, however, that none of the autopsies of the
persons found in the bunker indicate the cause of death was from
exposure to methylene chloride.
---------------------------------------------------------------------------
Based on this possibility the subcommittees attempted to determine,
as a worst case scenario, the concentration of methylene chloride that
would have been present in that room had the CEV emptied the entire
contents of one of its CS containers into the bunker. It appears,
however, that even in that event the concentration of CS would not have
reached lethal levels.
The volume of the bunker room was approximately 44.40 cubic meters.
Assuming that an entire cylinder of CS (with 1,070 grams of methylene
chloride as a disbursant) was injected into the room, the concentration
at that moment would have been 24,099 mgs/m\3\.\552\ Even if the CEV
that was mounted with four cylinders of CS inserted the contents of all
four containers into the bunker, the resulting concentration would have
been 96,396 mgs/m\3\.\553\ Both of these figures are well below the
concentrations estimated to be lethal to rats.\554\
---------------------------------------------------------------------------
\552\ Each cylinder of CS contained 1,070 grams, or 1,070,000
milligrams, of methylene chloride. 1,070,000 mgs/ 44.40 m\3\ = 214,099
mgs/m\3\.
\553\ 4,280,000 mgs/ 44.40 m\3\ = 96,396 mgs/m\3\.
\554\ As stated, there are no studies estimating the lethal
concentration levels to humans of exposure to methylene chloride.
---------------------------------------------------------------------------
Another worse case scenario considered by the subcommittees was the
possibility that one of the CEV's might have delivered the entire
contents of one of its cylinders of CS agent into one of the smallest
rooms of the residence, and that that room was inhabited at the time. It
still appears that the concentration of methylene chloride would not
have reached lethal levels. The smallest rooms in the structure were the
women's quarters located on the second floor of the residence. The
smallest of these had a total volume of 16.17 cubic meters. Assuming
that an entire cylinder of CS had been injected into this room, the
concentration of methylene chloride at that moment would have been
66,171.93 mgs/m\3\.\555\ Assuming further that a number of Ferret rounds
also happened to be fired into the room at the exact moment that the CS
was injected by the CEV (assume, for example, an event as unlikely as 20
rounds entering the room at the same instant), the concentration at that
instant would have been 106,988 mgs/m\3\.\556\ Again, these figures fall
far below the concentrations estimated to be lethal to rats.
---------------------------------------------------------------------------
\555\ Each cylinder of CS agent contained 1,070 grams of methylene
chloride, or 1,070,000 milligrams. 1,070,000 mgs/ 16.17 m\3\ = 66,171
mgs/m\3\.
\556\ 1,070 grams of methylene chloride from a CEV plus 660 grams of
methylene chloride from 20 Ferret rounds is a total of 1,730 grams
(1,070 + (33 x 20) = 1,730), or 1,730,000 milligrams. 1,730,000 mgs/
16.17 m\3\ = 106,988 mgs/m\3\.
---------------------------------------------------------------------------
3. Other possible effects of methylene chloride used with CS at Waco
While the subcommittees conclude that the levels of methylene
chloride did not reach lethal toxic levels, the subcommittees also
considered whether the levels of methylene chloride may have affected
the Davidians in other ways. At levels over 1,000 parts per million
(ppm) anaesthetic effects begin to occur in humans.\557\ At levels above
2,300 ppm, exposure to methylene chloride may cause dizziness.\558\
---------------------------------------------------------------------------
\557\ 2 G. Clayton & F. Clayton, Patty's Industrial Hygiene and
Toxicology 3449-3455 (1981); R. Stewart et al., Methylene Chloride:
Development of a Biological Standard for Industrial Workers by Breath
Analysis (1974).
\558\ Id.
---------------------------------------------------------------------------
Because methylene chloride evaporates rapidly when released into the
air, the subcommittees considered separately the concentrations of
methylene chloride during each of the four phases of the CS agent
insertion. The levels of methylene chloride were greatest during the
first two phases (because one of the CEV's was unable to inject the CS
agent/methylene chloride mixture during the third and fourth phase).
During the first and second phases, six cylinders of CS agent were
inserted into the residence, delivering approximately 6,420 grams of
methylene chloride in each phase.\559\ Assuming that all of the CS
inserted by the CEV's during one phase was inserted at a single moment,
and that approximately \1/4\ of the Ferret round projectiles used during
the entire operation also entering the building at that same time (thus
adding an additional 3,300 grams of methylene chloride in each phase
\560\), and that the Davidian residence was airtight, the concentration
of methylene chloride during each of the first two phases would have
been 548 ppm.\561\ At this concentration, studies have shown no
observable effects in humans.\562\
---------------------------------------------------------------------------
\559\ Each cylinder contained 1,070 grams of methylene chloride. Six
cylinders totaled 9,720 grams.
\560\ Each Ferret round contained 33 grams of methylene chloride.
One hundred Ferret rounds thus inserted 3,300 grams of the chemical into
the building.
\561\ The molecular weight of methylene chloride gas is 85. One mole
of methylene chloride gas is 24.2 liters. 9,720g MC/ 85 = 114 moles. 114
moles x 24.2 liters/mole = 2758 liters of MC. There was 5,049,700 liters
of volume in the Davidian residence (5.049.7 m\3\ x 1000 liters/m\3\ =
5,049,700). Thus 2767.34/ 5,049,700 x 10\6\ = 548 ppm.
\562\ U.S. Dept. Of Commerce, Agency for Toxic Substances and
Disease Registry, Toxicological Profile for Methylene Chloride (1993).
---------------------------------------------------------------------------
In considering the possibility that some methylene chloride was
concentrated in certain areas of the residence, rather than being evenly
distributed throughout the entire structure, the subcommittees found
that it was possible that the levels of methylene chloride reached
concentrations that might have caused levels that produced an
anaesthetic effects in humans.
Again, the subcommittees considered the possible concentration in
the bunker, as the largest group of bodies recovered after the fire was
found there. The volume of the bunker room was approximately 44.40 cubic
meters. Assuming that an entire cylinder of CS (with 1,070 grams of
methylene chloride as a disbursant) was injected into the room, the
concentration at that moment would have been 6,861 ppm.\563\ This
concentration was sufficient to induce dizziness and other anaesthetic
effects in humans.
---------------------------------------------------------------------------
\563\ 1,070 g MC/ 85 = 12.59 moles. 12.59 moles x 24.2 liters/mole =
304.63 liters of MC. There was 44,400 liters of volume in the bunker
(44.40 m\3\ x 1000 liters/m\3\ = 44,400). Thus 304.63/ 44,400 x 10\6\ =
6,861 ppm.
---------------------------------------------------------------------------
As stated, however, the evidence is not determinative as to whether
one of the CEV's did, in fact, insert CS directly into the bunker.
Additionally, it is unknown if the bunker door was open or closed, a
factor that would have significantly affected the concentration levels
inside the room. Finally, the air circulation inside the building would
have affected the levels of methylene chloride present at any one time.
The subcommittees conclude, however, that it is possible that the levels
of methylene chloride in the bunker were such that the chemical impaired
the Davidians' ability to escape the room. Additionally, the possibility
cannot be dismissed that other Davidians, in other areas of the
residence, might have been similarly adversely affected if they were
directly exposed to an insertion of an entire cylinder of the CS agent/
methylene chloride mixture. Thus, the levels of methylene chloride that
were present in the Davidian residence as a result of the use of the CS
riot control agent might have impaired the ability of some of the
Davidians to be able to leave the residence had they otherwise wished to
do so.
g. analysis of the attorney general's decision to end the standoff on
april 19, 1993
1. The decision not to storm the residence
The subcommittees received testimony concerning the FBI's decision
not to storm the residence in order to end the standoff. Additionally,
the Justice Department Report on these events also discusses the factors
that went into this decision. According to that report, FBI tactical
experts believed that there was a substantial likelihood of significant
casualties to FBI agents if a frontal assault on the residence was
attempted. The FBI believed that the Davidians had fortified the
residence and were ready to offer resistance equal to or perhaps even
greater than that they had showed during the failed February 28 assault
on the residence by the ATF. The FBI was also concerned about the
possibility of suicide by the Davidians in the event of such an
assault.\564\
---------------------------------------------------------------------------
\564\ Justice Department Report at 259.
---------------------------------------------------------------------------
Experts on tactics testified before the subcommittees that a frontal
assault is one of the riskiest types of tactical operations.\565\ That
risk was even greater in this situation given the large size of the
structure and the wide-open areas around the structure with the
resulting lack of cover for any approach to the residence.
---------------------------------------------------------------------------
\565\ Hearings Part 2 at 315, 318 (statement of Donald A. Bassett).
---------------------------------------------------------------------------
The FBI's decision to pursue options other than a frontal assault in
order to end the standoff was a wise one. It seems clear that a raid,
even one better planned than that of the ATF of February 28, was of
unacceptably high risk. It is likely that FBI agents would have
sustained casualties in such an assault. Any assault on the Branch
Davidian residence also risked the lives of the Davidians. Additionally,
the FBI appropriately considered the possibility of suicide by the
Davidians in the event of an assault.
2. The reasons asserted for ending the standoff on day 51
a. The situation would not soon be resolved
One of the key factors influencing the FBI's decision to recommend
to the Attorney General that the standoff be ended on day 51 was the
belief by FBI officials that continuing to negotiate with the Davidians
would not lead to their peaceful surrender. At the hearings held by the
subcommittees, FBI chief negotiator Byron Sage testified that he
believed that further negotiations would not be fruitful.\566\ Tactical
commander Jeffrey Jamar testified that he was skeptical that
negotiations would end the stand-off, and that he became even more
skeptical after Koresh reneged on a promise to come out on March 2.\567\
Documentary evidence reviewed by the subcommittees indicated, however,
that some of the FBI's behavioral experts believed that there were
further steps that could be taken through negotiations. Additionally, at
the subcommittees' hearings, testimony was received from the attorneys
for the Davidians that they believed further negotiations could have led
to the Davidians' peaceful surrender.\568\
---------------------------------------------------------------------------
\566\ ``I never abandoned the concept or the hope that negotiations
could successfully and peacefully resolve this matter. My statement to
[Hubbell] at the time . . . was that I felt that negotiations were at an
impasse . . . .'' Hearings Part 2 at 345 (statement of Byron Sage).
\567\ Hearings Part 2 at 306-307.
\568\ See section VI E of this report.
---------------------------------------------------------------------------
Sage's view was that Koresh had broken many of the promises he had
made throughout the standoff. After a experiencing a number of these
broken promises, Sage and the other FBI commanders believed that they
could not rely on Koresh's assurances.
Another factor that may have affected the FBI commanders' view of
the situation, but which was given little emphasis in the Justice
Department Report, is mental and emotional fatigue affecting the FBI
decisionmakers. Sage was one of the first FBI agents on the scene on
February 28. He worked every day, all day, of the 51 day standoff, and
only returned to his home in Austin for a short period of time on 1 day
to gather more clothes. Jamar and the other senior FBI commanders were
also on site for almost the entire time of the standoff. It seems only
natural then, that physical and mental fatigue would begin to set in and
that dealing with Koresh's rhetoric and disingenuousness would lead to
emotional fatigue as well. Indeed, the Justice Department Report
indicates that the law enforcement personnel present were tired and that
their ``tempers were fraying.'' \569\
---------------------------------------------------------------------------
\569\ Justice Department Report at 271.
---------------------------------------------------------------------------
Nevertheless, FBI commanders to become firmly convinced that nothing
more would come from further negotiations with Koresh. That belief was
communicated by Sage to Associate Attorney General Webster Hubbell
during a 2-hour telephone conversation on April 15.\570\ This belief
played a crucial role in influencing Attorney General Reno's decision to
end the standoff on April 19.\571\
---------------------------------------------------------------------------
\570\ Id. at 270.
\571\ Id.
---------------------------------------------------------------------------
During the hearings, however, the subcommittees received testimony
from the Davidians' attorneys that Koresh was hard at work writing his
interpretation of the Seven Seals discussed in the Book of Revelation in
the Bible. They believe that Koresh was willing to surrender when he
finished his writing.
The FBI's commanders knew of Koresh's desire to write this
manuscript but did not believe he was actually working on it. It appears
that fatigue and frustration at the lack of achieving success in
obtaining the release of additional Davidians may have led the
negotiators to be less than receptive to this information. That the
negotiators were not open to this new information, and did not pass it
on to their superiors, played a part in the Attorney General's decision
to end the standoff on April 19 and in the manner chosen to end it.
b. The Davidians might attempt a breakout, possibly using
the children as shields
Another factor that went into the FBI's recommendation to the
Attorney General to end the standoff on day 51 was the fear that the
Davidians might attempt to breakout of the residence using the children
as human shields. According to the Justice Department Report, ``some
[unnamed] experts'' had suggested this possibility and that to combat
this possibility, the FBI had to be certain that its best trained troops
(the Hostage Rescue Team members) would be on the scene.\572\ There was
some doubt as to how much longer the HRT could remain at the residence.
---------------------------------------------------------------------------
\572\ Id. at 261.
---------------------------------------------------------------------------
There was little evidence to support this fear. At no time did
Koresh or Schneider threaten that the Davidians might attempt to break
out of the residence or take any other offensive action. In fact, from
February 28 to April 19 all of the Davidians' actions could be viewed as
defensive in nature--defending what they believed to be sacred ground,
their residence. Given the Davidians' professed devotion to their
residence, it is difficult to understand why the FBI thought the
Davidians would try to leave. Given that the FBI also knew that the
Davidians were very much aware of the perimeter security around the
residence it is difficult to understand why the FBI thought the
Davidians believed they could escape. In short, there appears to have
been little support for the FBI's concern that the Davidians would try
to break out of the residence. To the extent it played a part in the
FBI's decision to recommend that the standoff be ended on April 19, this
unfounded fear contributed to the tragic results of that day. The
Attorney General knew or should have known that the fear of breakout
argument was unfounded.
c. The FBI Hostage Rescue Team needed rest and retraining
According to the Justice Department Report, another important factor
that played a part in the Attorney General's decision to end the
standoff on April 19 was concern over the continuing readiness of the
Hostage Rescue Team.\573\ It is unquestioned that the HRT possesses more
skills and skills that are more highly developed that any other civilian
tactical unit within the Federal Government. These skills need constant
use in order to be retained, much as a superior athlete must train each
day to maintain his or her level of athletic skill. Without that
training, these skills begin to deteriorate.
---------------------------------------------------------------------------
\573\ The FBI's HRT is comprised of FBI special agents selected
through a rigorous screening program. Unique in Federal law enforcement,
the HRT trains 5 days a week, all year in tactics related to its mission
to take control of and end hostage and barricade situations without loss
of life to any innocent persons who may be involved. Unlike the several
FBI SWAT teams or ATF SRT teams, HRT members do not carry an
investigative case load in addition to their tactical duties. Thus, they
train each working day, whereas the SWAT and SRT members conduct
tactical training only a few days each month.
---------------------------------------------------------------------------
According to the Justice Department Report and testimony presented
to the subcommittees, the concern about the possible deterioration in
HRT skills was raised at a meeting of Justice Department and FBI
officials with the Attorney General on April 14, 1993.\574\ By that
date, the HRT members had been present at the Branch Davidian center for
almost 7 weeks without the opportunity for the type of training that
they otherwise would be pursuing every day. Also present at that meeting
were several military officers. As a Defense Department witness
testified before the subcommittees, the officers explained that they
were present at the April 14, 1993 meeting at the invitation of FBI
officials in order to answer any questions that the Attorney General
might pose to them about ending the standoff. The officers had been
selected because of their special tactical training and experience.
During the meeting, one of the officers advised the Attorney General
that if the HRT were military troops under his command he would
recommend pulling them away from the Branch Davidian center for rest and
retraining.\575\
---------------------------------------------------------------------------
\574\ Justice Department Report at 268.
\575\ Hearings Part 3 at 304, 314 (statement of Allen Holmes,
Assistant Secretary of Defense for Special Operations and Low Intensity
Conflict).
---------------------------------------------------------------------------
According to the Justice Department report, HRT commander Dick
Rogers informed the Attorney General that the HRT members ``were not too
fatigued to perform in top capacity in any tactical operation at that
time'' but that if the standoff continued for any extended period of
time he would recommend that they ``stand down'' for rest and
retraining.\576\ At the subcommittees' hearings Mr. Rogers and Floyd
Clarke, Deputy Director of the FBI in early 1993, each testified that
they believed the HRT could have remained on site for at least 2
additional weeks before he would have recommended that they ``stand
down.'' \577\
---------------------------------------------------------------------------
\576\ Justice Department Report at 268.
\577\ Hearings Part 2 at 577 (statement of Dick Rogers); Hearings
Part 3 at 73 (statement of Floyd Clarke).
---------------------------------------------------------------------------
The point at which the deterioration of HRT members skills becomes
unacceptable is not a fact which appears to be readily quantifiable, but
rather is a matter of informed judgment. Nothing in the evidence
presented to the subcommittees leads to the conclusion that the HRT
members' skills were not deteriorating or that the recommendation of the
military officers and the HRT commander to remove the HRT members for
rest and retraining was not well-informed. But this observation does not
answer the questions of what weight this fact should have played in the
Attorney General's decision to end the standoff on day 51.
The Justice Department Report states that the Attorney General
discussed with the FBI the possibility of using FBI SWAT teams to
relieve the HRT for a time so that the HRT could be pulled from the
scene, rested, and retrained but that the FBI discouraged that option
and took the position that it should be used only as a last resort. At
the hearings before the subcommittees, however, Floyd Clarke, Deputy
Director of the FBI in early 1993, testified that the FBI was
formulating plans to use FBI SWAT teams in place of the HRT teams if the
Attorney General did not approve the plan to end the standoff in mid-
April.\578\
---------------------------------------------------------------------------
\578\ Hearings Part 3 at 73 (statement of Floyd Clarke).
---------------------------------------------------------------------------
The FBI testified that the qualification of its several SWAT teams
do not equal that of the HRT. What must be considered, however, is the
actual task for which the SWAT teams would have been used. It would not
have been an attempt to enter and take control of the residence. As the
Justice Department Report and hearing testimony made clear, during the
51 day standoff the HRT was used only for perimeter security--keeping
the Davidians in and outsiders out of the residence. Had the HRT had
been relieved by SWAT teams, they would have been assigned to the same
task. In short, while HRT capabilities exceed SWAT capabilities, the
HRT's additional capabilities are not those essential to the task of
securing the perimeter of a crime scene.
Given that the threat of a Branch Davidian breakout was minimal at
most, it appears that the FBI was overcautious in informing the Attorney
General that its own SWAT teams were not capable of securing the
residence perimeter.\579\ While the HRT might best have done the job of
securing the residence, nothing in the record suggests that the SWAT
teams could not have done that job adequately for a short time. Indeed,
had the Attorney General not approved the plan to end the standoff in
mid-April, the FBI was planning to use its SWAT teams to relieve the
HRT. It does not appear that the FBI informed the Attorney General of
this fact, however.
---------------------------------------------------------------------------
\579\ For example, the Justice Department points to the fact that
HRT members had been training in the maneuvering of the armored vehicles
loaned to the FBI by the military, implying that the SWAT teams did not
have this training. Yet, even the HRT members had to receive remedial
training on the use of these vehicles while at the residence. In fact,
at one point, an armored vehicle driven by an HRT member who was being
retrained drove over an automobile belonging to a member of the press,
destroying the vehicle. Surely it would not have taken much more
training to enable the SWAT members to perform their task adequately,
even if it were not up to HRT skill levels. It is unclear why the SWAT
members could not have received sufficient training to drive these
vehicles around the perimeter of the residence.
---------------------------------------------------------------------------
Representatives of the Texas Rangers testified before the
subcommittees that they believed that State police SWAT teams could have
relieved the FBI HRT and maintained the perimeter while the HRT was
rested.\580\ Representatives of the Texas Rangers interviewed by
subcommittees' staff stated that the Texas State police did offer to
assist the FBI in maintaining the perimeter during the standoff but that
this offer was rejected.
---------------------------------------------------------------------------
\580\ Mr. McCollum: In your opinion, knowing the Texas officers, you
all don't have SWAT teams, do you, the Texas Rangers, but the State
police do, don't they?
Mr. Byrnes: Yes, they have a SWAT team.
Mr. McCollum: Either the State police or the local officials in the
area, were there SWAT teams or combinations thereof that could have been
put together from State law enforcement or local law enforcement that
could have maintained that perimeter for a few days or a week or two, if
necessary, to let this FBI hostage team regroup had the negotiations
continued for another month or something?
Mr. Byrnes: Well, to answer your question, just generically, yes.
Frankly, I don't know. And let me say that the HRT team, in my opinion,
is probably the most highly trained unit for what they are doing in the
world, and I think they were the people to be there.
Mr. McCollum: I don't doubt that for a minute. I am not even
questioning that, I am just asking because I know you may not know all
of this, but we have looked into it, and it appears that is a factor. We
are going to hear more from them.
Mr. Byrnes: I never heard that before.
Mr. McCollum: Whether it is or not, the question I was really
asking, just because you are here tonight, you believe that, at least
form the standpoint of holding the perimeter--and I would ask that to
you as well, Captain Cook--that State police or SWAT teams from local
police units could have been mustered if you had been asked and
consulted with to do that, even though they wouldn't have been as
effective at it perhaps as the FBI's HRT team. Is that right or not?
Mr. Cook: I think it could have been accomplished. I think that is
just a basic law enforcement trait, No. 1. We have police officers
trained in different areas. Hearings Part 2 at 198.
---------------------------------------------------------------------------
The FBI's decision to reject outside assistance is consistent with
the prevailing FBI attitude of resisting any involvement from other
agencies, whether Federal, State, or local. This attitude is
counterproductive. While the subcommittees cannot evaluate the
capabilities of the Texas State police, and are mindful of the command
and control problems that may be encountered when bringing together
members for organizations that have had no previous experience together,
it appears short-sighted for the FBI to have rejected out of hand the
offer of assistance from the State police and, specifically for not
considering using State police SWAT teams to help maintain the perimeter
around the Branch Davidian residence. Given FBI concerns with the size
of the perimeter to be maintained, it would seem that these additional
personnel could have been of some assistance to the FBI, even if they
were used in a merely supporting role, such as at a secondary perimeter
established beyond that maintained by the FBI.
While using FBI SWAT teams to relieve the HRT might not have been
the optimal approach to the problem, using them (perhaps augmented by
State police teams) would have enabled the FBI to rest and retrain the
HRT so that it could have been redeployed to the scene after an
appropriate time. The FBI's failure to recommend to the Attorney General
that SWAT teams be used to relieve the HRT, or to inform her that the
FBI planned to use them for this very purpose had she not approved the
plan to end the standoff, limited the options and created an unnecessary
sense of urgency about ending the standoff. The Attorney General knew or
should have known that the HRT did not need to stand down to rest or
retrain for at least 2 more weeks after April 19, and if and when it did
stand down, FBI and local law enforcement SWAT teams could have been
brought in to maintain the perimeter. If she did not know the true facts
it is because she did not ask the questions of the FBI that a reasonably
prudent person faced with the decision would have asked. If the Attorney
General did ask these questions, someone in the FBI lied to her or was
grossly negligent in reporting the facts. If the latter was the case,
the responsible party should have been disciplined long ago. The absence
of such action leads the subcommittees to conclude that the Attorney
General was herself negligent.
d. Conditions inside the residence were deteriorating
Another factor that the Attorney General says played a part in her
decision to end the standoff on April 19 was a concern about
deteriorating conditions inside the residence. There is little support
for this concern and it should not have played any significant part of
the decision to end the standoff.
The concern about deteriorating conditions is mentioned in only two
places in the Justice Department Report.\581\ The report also States,
however, that the FBI became convinced that while Koresh was rationing
water to ensure discipline he was continuing to replenish the water
supply.\582\ The report further States that the FBI believed that the
Davidians had food to last up to 1 year.
---------------------------------------------------------------------------
\581\ Justice Department Report at 269, 275.
\582\ Id. at 269-270.
---------------------------------------------------------------------------
In short, if the concern about conditions inside the residence was a
factor in the Attorney General's decision, it could only have been about
lack of electricity or the lack of sanitation inside the residence.
While electricity to the residence was cut off for the final time on
March 12,\583\ the Davidians had kerosene lamps inside the residence
which they used to illumine the interior. And while the Davidians had no
way to cook food, they had ample stores of food that did not need to be
cooked. In short, there is no evidence that the lack of electricity
resulted in any real harm to the Davidians.
---------------------------------------------------------------------------
\583\ Id. at 67.
---------------------------------------------------------------------------
The purported concern over sanitary conditions inside the residence
is also exaggerated. Even before the February 28 raid, the Davidians had
never had running water or other sanitation inside the residence. Human
waste was collected in buckets and other containers each day and taken
outside to an designated dumping site for the waste. During the
standoff, waste was dumped into the half-finished swimming pool next to
the residence. Apart from the odor from the swimming pool, however,
there is no evidence that the materials in the pool was leaking or
leeching into the residence. At the hearings before the subcommittees,
one of the surviving Davidians testified that sanitation ``was no worse
on the last day than it was throughout the fifty-one days.'' \584\ The
assertion in the Justice Department Report that ``sanitary conditions
had deteriorated significantly'' is simply incorrect.
---------------------------------------------------------------------------
\584\ Hearings Part 3 at 195 (statement of Clive Doyle).
---------------------------------------------------------------------------
In summary, the conditions inside the residence had changed only
slightly from those in which the Davidians lived before February 28. The
conditions appear to not have presented any immediate health risk to the
adults or children inside the residence. If concerns about these
conditions played a role in the Attorney General's decision to end the
standoff on April 19, they were unfounded and she knew or should have
known this.
e. There was the possibility of on-going physical and sexual
child abuse
The Justice Department Report states that during the week of April
12, an (unnamed) individual informed the Attorney General that the FBI
had learned that the Davidians were physically abusing the children in
the residence and that this abuse had occurred after February 28. The
report states, ``[T]he Attorney General had no doubt that the children
were living in intolerable conditions.'' The report goes on to State
that the Attorney General had been told that Koresh had sexually abused
minors in the past and ``continued to have sex while recovering from his
wounds.'' \585\ The report does not State on what intelligence these
assertions were based.
---------------------------------------------------------------------------
\585\ Justice Department Report at 275.
---------------------------------------------------------------------------
In another part of the report, however, the Justice Department
admits that the FBI had no direct evidence of physical or sexual abuse.
As the reports states,
[T]here was no direct evidence establishing that any children
were being either sexually abused of physically abused the
February 28 through April 19 time period. There were
circumstantial indications, however, that the children were
living in a deteriorating environment, and that the prospect of
living in a deteriorating environment, and that the prospect of
sexual or physical abuse was likely as the standoff
continued.\586\
---------------------------------------------------------------------------
\586\ Id. at 226.
There is little circumstantial evidence revealed in the report as well.
It is clear that Koresh sexually abused minor females at the
residence, in addition to having consensual sexual relations with a
several of the adult females who lived there. A number of former
Davidians provided affidavits detailing these sexual relations,
including the sexual abuse involving minors females. Joyce Sparks, an
employee of the Texas Children's Protective Services agency provided the
FBI with a report of an interview she conducted with a child who lived
at the residence detailing an incident of sexual abuse. This child
testified about her experience before the subcommittees at the July
hearings. Also, during conversation between the FBI and Steve Schneider
during the week of April 14, Schneider admitted that he knew of Koresh's
sexual abuse of a minor female.\587\ While all of these incidents
occurred prior to February 28, FBI behavioral expert Dr. Park Dietz, in
an April 17 memoranda to the FBI, opined that ``Koresh may continue to
make sexual use of any minor female children who remain inside.'' \588\
---------------------------------------------------------------------------
\587\ Id. at 222-223.
\588\ Id. at 223.
---------------------------------------------------------------------------
It also appears certain that Koresh employed severe physical
punishments as a means of disciplining the children. A March 26 report
of Dr. Bruce Perry, a child psychiatrist who interviewed the children
who had been released during the standoff, confirmed that Koresh
physically abused children who had misbehaved.\589\
---------------------------------------------------------------------------
\589\ Id. at 223-224.
---------------------------------------------------------------------------
On April 19, the Attorney General made several television statements
during which she stated that her concern of on-going child abuse was
factor that led her to decide to end the standoff. While the Attorney
General's concerns for the children's welfare were real, there was no
reliable evidence that conditions inside the compound had worsened
substantially from those existing prior to the February raid or that the
Davidian children were suffering greater harms than they had in the
past. Additionally, as the Justice Department report makes clear, the
Attorney General was aware of the potential for extreme danger to the
children in pursuing the FBI's assault plan.\590\
---------------------------------------------------------------------------
\590\ The Attorney General ruled out a proposal to end the standoff
during the weekend of April 17 because of her concern about the
availability of emergency rooms. In addition, during pre-raid approval
meetings she questioned the FBI's planned response to the potential
threat of individuals carrying children while firing weapons, and to the
possibility of children being held up windows and being threatened to be
shot. Id. at 272-273.
---------------------------------------------------------------------------
Given the lack of evidence that the children inside the compound
faced immediate life-threatening harm from the ongoing standoff and the
Attorney General's awareness of the extreme risks of an assault,
including the potential for serious or even life-threatening injury to
the children, the Attorney General's decision to approve the raid based
on concerns for the children's welfare was flawed.
While the Justice Department Report tries to downplay this factor by
asserting that the Attorney General was more influenced by other
factors,\591\ the Attorney General's public statements on and after
April 19 indicate otherwise. Particularly troublesome is the statement
in the Justice Department report that ``[u]ltimately, it made no
difference whether the children were undergoing contemporaneous abuse,
because the environment inside the residence was intolerable in any
event.'' \592\ This statement is an attempt to mask the fact that the
Attorney General either was misinformed or misunderstood what was
happening inside the residence as of the third week of April or
intentionally exaggerated the conditions to provide an excuse for
approving the plan she knew could likely end in violence and put the
children at greater risk.
---------------------------------------------------------------------------
\591\ Id. at 216.
\592\ Id. at 217.
---------------------------------------------------------------------------
3. The decision as to how to implement the plan
a. The FBI's mindset--``This is not an assault''
At 5:59 a.m. on April 19, FBI chief negotiator Byron Sage spoke with
Steve Schneider by telephone and told him, ``[W]e're in the process of
putting tear gas into the building. This is not an assault. We will not
enter the building.'' \593\ Schneider responded by throwing the
telephone out of the residence. Sage then began to broadcast the
following message over loudspeakers pointed toward the residence:
---------------------------------------------------------------------------
\593\ Id. at 286.
We are in the process of placing tear gas into the building.
This is not an assault. We are not entering the building. This
is not an assault. Do not fire your weapons. If you fire, fire
will be returned. Do not shoot. This is not an assault. The gas
you smell is a non-lethal tear gas. This gas will temporarily
render the building uninhabitable. Exit the residence now and
follow instructions.
You are not to have anyone in the tower. The tower is off
limits. No one is to be in the tower. Anyone observed to be in
the tower will be considered to be an act of aggression and will
be dealt with accordingly.
If you come out now, you will not be harmed. Follow all
instructions. Come out with your hands up. Carry nothing. Come
out of the building and walk up the driveway toward the Double-E
Ranch Road. Walk toward the large Red Cross flag.
Follow all instructions of the FBI agents in the Bradleys.
Follow all instructions.
You are under arrest. This standoff is over.
We do not want to hurt anyone. Follow all instructions. This
is not an assault. Do not fire any weapons. We do not want
anyone hurt.
Gas will continue to be delivered until everyone is out of the
building.\594\
---------------------------------------------------------------------------
\594\ Id. at 286-287.
Immediately after Sage spoke with Schneider, two CEV's approached the
residence. Both CEV's were fitted with a long triangular boom-like arm
on which was fitted a device that would spray CS agent mixed with carbon
dioxide. The CEV's were maneuvered close enough to the residence so that
the boom could be rammed into and through the wall of the building. The
operator then inserted CS agent into the building using the device
affixed to the boom of the CEV. Insertions of CS agent by the CEV's
occurred in four distinct phases throughout the morning of the April 19.
During this phase of the plan, FBI agents in the Bradleys also
maneuvered close to the residence. The agents used hand-held grenade
launchers to fire CS agent in projectiles knows as Ferret rounds
thorough a firing port in the Bradleys and into the windows of the
residence. This activity also went on throughout the morning of the
19th.
As Sage testified at the subcommittees' hearings, the FBI did not
consider these actions to be an assault against the residence. To Sage,
the fact that the FBI did not plan to enter the residence at any time,
and did not enter the residence, was determinative as to whether the
operation was an assault. While this distinction may have made complete
sense to the FBI, it made sense only because FBI agents, and especially
HRT members, deal with these concepts each day as part of their duties.
The FBI assessed the situation only on their terms. They failed to
consider how their actions would be perceived by those who were the
targets of their actions--the Davidians inside the residence. This
failure was a significant error.
b. The FBI's failure to consider the ``Reasonable Branch
Davidian''
As the FBI implemented its plan to end the stand-off the Branch
Davidians were confronted with the sound of military vehicles
approaching their home, the vibrations from holes being rammed into the
sides of their home, and by the effects of a gas-like substance being
sprayed into their home. Most people would consider this to be an attack
on them--an ``assault'' in the simplest terms. If they then saw other
military vehicles approaching, from which projectiles were fired through
the windows of their home, most people are even more likely to believe
that they were under an assault. If those vehicles then began to tear
down their home there would be little doubt that they were being
attacked. These events are what the Davidians inside the residence
experienced on April 19, yet the FBI did not consider their actions an
assault.
Compounding this situation is the fact that the Davidians were not
``most people.'' They were a close-knit group with ties to their home
stronger than those of most people. The Davidians considered their
residence to be sacred ground. Their religious leader led them to
believe that one day a group of outsiders, non-believers, most likely in
the form of government agents, would come for them. Indeed, they
believed that this destiny had been predicted 2,000 years before in
Biblical prophecy. Given this mindset, it can hardly be disputed that
the Davidians thought they were under assault at 6 a.m. on April 19.
The FBI's failure to consider how the Davidians might respond to
their actions was important. The FBI's operations plan called for a
systematic insertion of the CS riot control agent at different intervals
throughout the day. But the plan also called for a back-up operation if
the armored vehicles used in the operation came under fire. This
contingency plan involved rapid insertion of CS agent and the eventual
``deconstruction'' or tearing down of the residence itself. The vehicles
came under fire almost immediately after the gas insertion began. The
FBI resorted to their fall-back plan as of 6:07 a.m.\595\
---------------------------------------------------------------------------
\595\ Id. at 288-289.
---------------------------------------------------------------------------
As the Justice Department Report makes clear, the majority of the
FBI's briefing to the Attorney General involved the main FBI plan
involving the deliberate, slow insertion of CS agent. Little discussion
apparently took place about the contingency provision in the plan
calling for the rapid insertion of CS agent and the deconstruction of
the residence.
Curiously, the FBI seemed to know that their principal plan would
not govern the way that events would actually unfold on April 19. The
FBI's overall commander, Jeffrey Jamar, testified at the subcommittees'
hearings that he had a belief to a 99 percent certainty that the
contingency plan would be implemented, as he believed the Davidians
would open fire on the CEV's. As he testified before the subcommittees,
``I believed it was 99 percent when we approached with the tank they
would fire. I believe that. Not all people agree with me on that, but I
believed that at the time, yes.'' \596\ Although the Justice Department
Report does not mention that Jamar informed his superiors of his belief,
it is clear the Attorney General also believed the Davidians would open
fire on the FBI. In referenced to firing on the FBI, the Attorney
General testified that she ``knew what these men would do.'' \597\
---------------------------------------------------------------------------
\596\ Hearings Part 2 at 484.
\597\ Hearings Part 3 at 367. The Attorney General testified:
``I think it is important that when you consider the use of tanks
that they be considered as vehicles providing the armored capacity to
prevent the penetration of these--this ammunition that we knew Koresh
had. I can't speak to whatever was done prior to the time I took office,
but, clearly, with respect to the day of April the 19th, I could not put
FBI agents out there exposed when I knew what these men would do and
when they started immediately to fire on the FBI. Id. [emphasis added].
---------------------------------------------------------------------------
It cannot be known whether the Attorney General would have decided
differently had she known that the FBI expected the contingency
provisions of the operations plan to be implemented. What is clear is
that she never had the opportunity to consider this fact because the FBI
believed that their actions did not constitute an attack, based on an
incomplete understanding of the Davidians. Had the FBI considered how
the Davidians would perceive their actions they might have been able to
predict that the fall back plan would be used. If this fact had been
communicated to the Attorney General she might have decided things
differently.
h. presidential involvement in the events at waco, tx
The involvement of the White House occurred in several ways.
According to White House Chief of Staff Mack McLarty, two parallel lines
of communication existed--one from Acting Assistant Attorney General
Stuart Gerson to McLarty, and the other from Gerson to White House
Counsel Bernard Nussbaum. Senior advisor Bruce Lindsey also kept
informed on developments in Waco.\598\
---------------------------------------------------------------------------
\598\ Justice Department Report at 242.
---------------------------------------------------------------------------
No White House officials objected to the plan to end the standoff at
an April 13, 1993 meeting between White House and Justice Department
officials, including Hubbell, Nussbaum, Lindsey and Deputy White House
Counsel Vince Foster. On Sunday, April 18, 1993, Reno called the
President to inform him that she had decided to approve the FBI's
request to use CS as part of a plan to end the standoff. The President
told Reno ``it is your decision.'' \599\ Clinton later told the American
people, ``I was aware [of the plan to insert CS into the residence.] I
think the Attorney General made the decision. I knew it was going to be
done, but the decisions were entirely theirs.'' \600\
---------------------------------------------------------------------------
\599\ Id.
\600\ White House statement, April 19, 1993.
---------------------------------------------------------------------------
i. findings concerning the plan to end the standoff
1. The Attorney General's decision to end the standoff on day 51 was
premature, wrong, and highly irresponsible. The decision by Attorney
General Janet Reno to approve the FBI's plan to end the standoff on
April 19 was premature, wrong, and highly irresponsible. In authorizing
the CS assault to proceed Attorney General Reno was seriously negligent.
The Attorney General knew or should have known that the plan to end the
stand-off would endanger the lives of the Davidians inside the
residence, including the children. The Attorney General knew or should
have known that there was little risk to the FBI agents, society as a
whole, or to the Davidians from continuing this standoff and that the
possibility of a peaceful resolution continued to exist.
a. The ``benefits'' of avoiding problems were not properly
evaluated. The FBI's belief that the standoff was likely to continue
indefinitely was too pessimistic given the advice of behaviorist Dr.
Murray Myron and the Davidians' attorneys that Koresh was turning his
attention to what he considered to be his principal theological work,
his interpretation of the meaning of the Seven Seals. As they believed
that no resolution was possible through further negotiations, the FBI
wrongly concluded and convinced the Attorney General that there was no
alternative to going forward with the plan to end the standoff. The only
issue was timing. There was also no need to rush into action on April
19, but having lost patience with the negotiating process and facing an
initially reluctant Attorney General, FBI officials manufactured or
grossly exaggerated arguments for urgency.
There was never any overt act or even a statement made by Koresh to
support the FBI's asserted fear that the Davidians might try a breakout.
Using the threat of a breakout as a reason to go forward with the CS
assault plan sooner rather than continue the negotiations was wrong. The
FBI and the Attorney General knew or should have known there was no
remotely imminent threat of such a breakout. Also, there was no reason
to go forward on April 19 out of concern that the HRT was exhausted and
needed to step down for retraining. According to the HRT's own
commander, the HRT could have remained on duty at the residence for at
least 2 more weeks. In addition, FBI and local law enforcement SWAT
teams could have been brought in to maintain the perimeter if the HRT
had to step down for a short time. The FBI and the Attorney General knew
or should have known this.
The Attorney General wrongly based her decision to act in part on
concerns that the conditions inside the residence were deteriorating and
that children were being abused. There was no evidence that sanitary and
other living conditions inside the residence, stark at the beginning of
the standoff, had deteriorated appreciably during the standoff. Further,
while there is no question that physical and sexual abuse of minors
occurred prior to February 28 and may have continued thereafter, there
is no evidence that minors were being subjected to any greater risk of
physical or sexual abuse during the stand-off than prior to February 28.
The Attorney General knew or should have known this. In light of the
risk to the children from a forced end to the stand-off, and the
remaining possibility of a peaceful resolution, it was inappropriate for
the Attorney General to have been occupied with apprehending Koresh for
violations of State law which were outside her jurisdiction to enforce.
b. The risks of ending the standoff were not fully appreciated. In
deciding to end the standoff on April 19, the FBI and the Attorney
General failed to properly evaluate the risks to the Davidians of the
FBI's operational plan. The FBI's plan was based on an assumption that
most reasonable people would flee the residence when CS agent was
introduced. The FBI failed to fully appreciate the fact that the
Davidians could not be relied upon to act as other reasonable people
might. The FBI failed to properly account for the Davidians' resolve,
group cohesiveness, and loyalty to what they believed to be sacred
ground.
More troubling is the fact that the FBI commanders either knew or
should have known that the contingency provisions of the plan presented
to the Attorney General would likely be implemented. While the plan as
described to the Attorney General called for a slow and deliberate
insertion of CS agent in an effort to deny the Davidians access to some
areas of the residence and encourage them to exit the residence in
specific locations, the contingency provision in the plan called for
much larger quantities of CS to be inserted all at once, and in all
areas of the residence, if the Davidians opened fire on the agents
inside the CEV's. The result of the contingency provision would be much
larger quantities of CS being present inside the residence with the
attendant greater likelihood that harmful concentrations might be
reached, and also the strong likelihood that the all-out assault would
cause panic in the people inside the residence.
Jeffrey Jamar, the FBI's overall commander at the residence
testified before the subcommittees that he believed there was 99 percent
chance that the contingency provision would be implemented because the
Davidians would open fire on the FBI against. Clearly, given the
Davidians' actions in response to the ATF raid on February 28, it was
almost certain that the Davidians would respond to the FBI's actions
with gunfire. Yet, Jamar never communicated his opinion to the Attorney
General, or apparently to anyone else for that matter. Other senior FBI
officials, however, should have realized that the Davidians would
respond with gunfire and that the contingency provision of the plan
would be quickly implemented. Given this, they should have more fully
briefed the Attorney General on this aspect of the plan.
More importantly, however, the Attorney General herself admitted
during her testimony before the subcommittees that she expected the
Davidians to fire on the tanks, and that she understood that if they did
the rapid acceleration of contingency plan would be implemented. It is
evident the Attorney General knew or should have known that the
contingency provision of the plan would be implemented once the
operation began on April 19, that the Davidians would not react by
leaving the residence as suggested by the FBI, and that there was a
possibility that a violent and perhaps suicidal reaction would occur
within the residence. At no time has the Attorney General indicated that
she reflected on the consequences of the possibility. At the very least
this demonstrates gross negligence on the part of the Attorney General
in authorizing the plan to proceed.
3. FBI commanders in Waco prematurely ruled-out the possibility of a
negotiated end to the stand-off. After Koresh and the Davidians broke a
promise to come out on March 2, FBI tactical commander Jeffrey Jamar
viewed all statements of Koresh with extreme skepticism and thought the
chances for a negotiated surrender remote. While chief negotiator Byron
Sage may have held out hope longer, FBI officials on the ground had
effectively ruled out a negotiated end long before April 19 and had
closed minds when presented with evidence of a possible negotiated end
involving Koresh's work on interpreting the Seven Seals described in the
Bible's Book of Revelation.
4. FBI tactical commander Jeffrey Jamar and senior FBI and Justice
Department officials acted irresponsibly in advising the Attorney
General to go forward with the plan to end the stand-off on April 19.
Jamar and senior FBI and Justice Department officials advising the
Attorney General knew or should have known that of the reasons given to
end negotiations and go forward with the plan to end the stand-off on
April 19 lacked merit. To urge these as an excuse to act at the time the
Attorney General made the decision to do so was wrong and highly
irresponsible.
5. The FBI's refusal to ask for or accept the assistance of other
law enforcement agencies during the stand-off demonstrated an
institutional bias at the FBI against accepting and utilizing such
assistance. Throughout the 51 day stand-off the FBI refused to ask for
the assistance of other law enforcement agencies and even refused offers
of such assistance. The subcommittees find that there is an
institutional bias inside the FBI against allowing other agencies to
participate in FBI operations. Such bias is short-sighted and, in this
case, proved to be counter-productive in that the failure to seek or
accept assistance added to the pressure to end the stand-off on April
19.
6. It is unlikely that the CS riot control agents used by the FBI
reached toxic levels, however, in the manner in which the CS was used
the FBI failed to demonstrate sufficient concern for the presence of
young children, pregnant women, the elderly, and those with respiratory
conditions. CS riot control agent is capable of causing immediate, acute
and severe physical distress to exposed individuals, especially young
children, pregnant women, the elderly, and those with respiratory
conditions. In some cases, severe or extended exposure can lead to
incapacitation. Evidence presented to the subcommittees show that in
enclosed spaces, such as the bunker, the use of CS riot control agent
significantly increases the possibility that lethal levels will be
reached, and the possibility of harm significantly increases. In view of
the risks posed by insertion of CS into enclosed spaces, particularly
the bunker, the FBI failed to demonstrate sufficient concern for the
presence of young children, pregnant women, the elderly, and those with
respiratory conditions. While it cannot be concluded with certainty, it
is unlikely that the CS riot control agent, in the quantities used by
the FBI, reached lethal toxic levels. The presented evidence does
indicate that CS insertion into the enclosed bunker, at a time when
women and children were assembled inside that enclosed space (i.e.,
during the fourth CS riot control agent insertion), could have been a
proximate cause of or directly resulted in some or all of the deaths
attributed to asphyxiation in the autopsy reports.
It is clear from the testimony at the hearings that the FBI expected
the adult members of the community to care for the children by removing
them from exposure to the CS agent by coming out of the residence with
them. This presumption was flawed. As the Defense Department's witness
testified before the subcommittees, one of the two senior military
officers who attended the meeting with the Attorney General on April 14,
told the Attorney General that during the use of CS mothers might ``run
off and leave their children.'' Yet the Attorney General failed to
appreciate the fact that this possibility was in direct contravention to
a key assumption of the plan's provision for the use of the CS agent--
that the adult members of the community would care for the children.
The FBI failed to properly inform the Attorney General of the risks
of using CS agent on children by not appreciating the military officer's
warning that parents might abandon their children and by not fully
apprising the Attorney General that there was little scientific
information on the effects of CS on children. While the Attorney General
cannot be faulted for relying on the advice given her by persons whose
job it was to be fully informed about the use of CS, it appears that the
Attorney General failed to fully consider the flawed assumption in the
FBI's plan once it should have become obvious to her.
7. There is no evidence that the FBI discharged firearms on April
19.
8. Following the FBI's April 19 assault on the Branch Davidian
compound, Attorney General Reno offered her resignation. In light of her
ultimate responsibility for the disastrous assault and its resulting
deaths the President should have accepted it.
j. recommendations
1. Federal law enforcement agencies should take steps to foster
greater understanding of the target under investigation. The
subcommittees feel strongly that government officials failed to fully
appreciate the philosophy or mindset of the Davidians. If they had,
those officials might have been better able to predict how the Davidians
would react to the plans to raid the residence on February 28 and the
plan to end the standoff on April 19. If so, perhaps many of the errors
made on February 28 and during the standoff could have been avoided.
The subcommittees found troublesome the fact that many of the ATF
and FBI officials involved in this matter seemed uninterested in
understanding the Davidians' goals and belief system. The views of these
officials ranged from assumptions that the Branch Davidian were rational
people likely to respond to authorities as would most citizens to a
belief that the Davidians were a ``cult'' which could not be dealt with
in any way other than by force. Seldom did these officials seem
interested in actually trying to understand this group of people and
their motivations. This attitude was shortsighted and contributed to
several of the mistakes that the government officials made at different
points from February 28 through April 19.
This change in organizational culture can only result if senior
officials in the Federal law enforcement agencies implement changes in
training and operational procedures. The benefits of these changes will
not only protect the targets of government action but, by making it more
likely that Federal law enforcement officials will carry out their
mission in the manner most likely to succeed, will help to protect the
safety of the law enforcement officers as well.
2. Federal law enforcement agencies should revise policies and
training to encourage the acceptance of assistance from other law
enforcement agencies, where possible. The subcommittees recommend that
FBI officials take steps to change the prevailing FBI culture that leads
agents to believe that only the FBI knows best how to handle a
situation. While agency pride is appropriate, and deserving in the case
of the FBI, this pride appears to have caused the agents to have been
foreclosed to other possibilities of dealing with the situation at hand,
such as by allowing other persons whom the Davidians trusted to become
more involved in negotiations or using other law enforcement agency
forces to maintain the Branch Davidian center perimeter and thus relieve
pressure on the HRT. The FBI could have been open to these possibilities
while maintaining its ultimate control of the situation. The FBI needs
to take steps now to ensure that this close-mindedness does not occur in
the future.
3. The government should further study and analyze the effects of CS
riot control agent on children, persons with respiratory conditions,
pregnant women, and the elderly. The subcommittees recommend that the
FBI and Department of Defense investigate further the effects of
exposure to CS on children, pregnant women, the elderly, and persons
with respiratory problems. Until such time as more is learned about the
actual effects of exposure to this agent, the subcommittees recommend
that CS not be used when children, persons with respiratory conditions,
pregnant women, and the elderly are present.
4. The FBI should expand the size of the Hostage Rescue Team. One of
the pressures that led the FBI to recommend to the Attorney General that
the standoff be ended on April 19 was the need to rest and retrain the
HRT. There were not sufficient numbers of HRT members to both guard the
perimeter of the residence and to relieve members on the line
periodically. Given this limitation, the subcommittees also note that if
another hostage or barricade situation had developed involving a Federal
law enforcement agency while the standoff with the Davidians was
continuing, the FBI would have been faced with the choice of not
responding to that situation or pulling the HRT out of Waco and moving
them to the new location.
Both of these scenarios suggest the need to enlarge the size of the
HRT. While the subcommittees are aware that the FBI has increased the
size of the HRT from the 48 ``operator'' agents on the team as of early
1993 to 78 operators as of July 1996, the subcommittees recommend that
further consideration be given to this issue. As the subcommittees have
concluded that the government should have waited beyond April 19 and
continued to negotiate with the Davidians, inherent in that
recommendation was that the HRT or some other tactical force should have
remained at the residence. The FBI should ensure that the HRT is large
enough to maintain a long standoff in the future, should the need arise,
while also having the capacity to respond to another hostage or
barricade situation elsewhere in the country during the standoff.
VIII. The Fire
At 12:07 p.m., Central Standard Time, more than 6 hours after the
FBI began to implement the plan to end the standoff, fire was detected
inside the Branch Davidian residence. Within a period of 2 minutes, two
additional fires were detected in two other parts of the structure. In
less than 8 minutes the fire had spread throughout the structure. By the
end of the afternoon, the structure was completely destroyed.
The subcommittees received testimony from the leader of a team of
fire experts called together by the Texas Rangers to investigate the
origins of the fire,\601\ a fire expert retained by the Justice
Department to join with the team assembled by the Texas Rangers,\602\
and an independent arson investigator.
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\601\ U.S. Dept. of Justice, Report to the Deputy Attorney General
on the Events at Waco, Texas 329 (1993) [hereinafter Justice Department
Report].
\602\ These individuals visited the scene of the fire on April 22-
24, 1993. Hearings Part 3 at 119 (statement of James Quintiere).
---------------------------------------------------------------------------
During the testimony of these witnesses, the subcommittees also
reviewed videotape recordings of the development and spread of the fire.
Included in this review was a videotape using ``forward looking
infrared'' (FLIR) technology, which was taken from an FBI observation
plane circling the Branch Davidian residence throughout the morning and
afternoon of April 19. The FLIR type of video, also called a Thermal
Imaging System, is a type of video photography which images thermal heat
sources. Because of its sensitivity to changes in the quantity of heat
given off by an object the FLIR videotape showed the beginning of the
fires within the Branch Davidian residence prior to the point at which
was the flames were visible to persons on the outside of the structure.
Time lapse indicators on the video tape recordings were used by the
witnesses to establish the times at which each fire within the Branch
Davidian residence began.
a. summary of the development of the fire
During the hearings, James Quintiere, professor of Fire Protection
Engineering at the University of Maryland and one of two fire experts
retained by the Justice Department to join the fire review team
assembled by the Texas Rangers, used the FLIR video tape to demonstrate
the development of the fire on April 19. Dr. Quintiere's
responsibilities as a part of the Review Team were to analyze the
development of the fire and draw interpretations and conclusions from
that analysis.\603\ In addition to reviewing the FLIR video, the fire
investigation team reviewed television coverage of the fire by the
Canadian Broadcasting Corp., which was also time dated, and television
coverage of the fire by a local Waco television station. The team also
reviewed aerial photographs and other materials. During his testimony to
the subcommittees, Dr. Quintiere played a video tape that simultaneously
played each of the three video tapes of the fire synchronized to the
same time.
---------------------------------------------------------------------------
\603\ Id.
---------------------------------------------------------------------------
The videotape demonstration showed that the first fire began at
12:07:42 p.m. As part of his testimony to the subcommittees, Dr.
Quintiere narrated the videotape demonstration. As the first fire
developed, Dr. Quintiere testified,
If you look at this point here, you will see this window begin
to turn slightly grayish, it does right now. Nine seconds later
the window on the opposite side right here is going to also show
an illumination which is due to this temperature rise, and in my
opinion that is due to smoke being transported from the fire
started at one end of the room to the other end of the room. . .
. The room was a second floor room approximately 16 x 11 in
dimensions and about 8 feet high, which is presumed to have been
a bedroom. One minute later the second fire begins on the first
floor at the rear of the dining room.\604\
---------------------------------------------------------------------------
\604\ Hearings Part 3 at 135.
---------------------------------------------------------------------------
Dr. Quintiere then described the development of the second fire.
We are looking at the development of the fire in that bedroom
area, the second floor right tower. What we are going to see
here at 12:09:42, we will see an event known to people who
investigate and study fire. That event is called flashover, and
that is a point when we have a transition in this fire in which
the fire goes from a discrete object that you could discern very
readily burning in a room such as this to a point where flames
now fill the room, and that transition can occur in seconds. It
is known as flashover. Before that time the room might be
survivable.
After that time it is definitely not, and now the fire is a
threat to spreading to other rooms.\605\
---------------------------------------------------------------------------
\605\ Id. at 136.
Finally, Dr. Quintiere described the inception of the third fire, which
occurred on the first floor in the chapel area.\606\ He also noted that
38 seconds later there emerged hot gases at a point 45 feet away from
the point where the third fire began. He testified that this could have
been a separately set, fourth fire, but that the development of this
fire was consistent with someone placing a trail of gasoline or other
liquid fuel between those two points and allowing the third fire to
spread over that trail.\607\
---------------------------------------------------------------------------
\606\ Id.
\607\ Id. at 136-137.
---------------------------------------------------------------------------
As Dr. Quintiere summarized his conclusions:
If we can just pause at this point, you can see the fire here,
the first fire. A minute later, a fire began in the dining room
area, and a minute after that a fire began in this chapel. It
has not burned through the roof yet, but the ignition in the
debris area because of the wind has now propagated significantly
over that debris area. These are three distinct fires.
From this information I can conclude that these three fires
that occurred nearly 1 minute apart were intentionally set from
within the compound. Also, you have the time periods involved
and the very discrete different locations. None of these three
fires could have caused any of the others because their growth
rates would not provide sufficient heating to cause such remote
ignitions.\608\
---------------------------------------------------------------------------
\608\ Id. at 138.
The experts testified that they believed the fires were
intentionally set by Branch Davidian members in order to destroy the
structure.\609\ Supporting this conclusion is that fact that the fire
review team found that a number of accelerants were present in the
structure and on the clothing of some of the surviving Davidians,
including gasoline, kerosene, Coleman fuel, and other accelerants.\610\
As Dr. Quintiere testified,
---------------------------------------------------------------------------
\609\ Id. at 138, 191 (``I don't discount that the fires were
started inside by the people inside.'') (statement of Rick Sherrow).
\610\ Id. at 166, 187-188 (statement of Paul Grey).
Although normal furnishings and interior construction
characteristics would provide a means for fire propagation, the
more than usual rapid spread of these fires, especially in the
dining room and the chapel areas, indicates to me that some form
of accelerant was used to encourage to the rapid spread of these
fires.\611\
---------------------------------------------------------------------------
\611\ Id. at 138.
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b. other theories concerning the development of the fire
1. Whether the methylene chloride in the CS riot control agent used by
the FBI caused the fire
One of the theories forwarded to the subcommittees concerning the
origin of the fire is that methylene chloride, a chemical used as a
dispersant to carry the CS riot control agent injected into the Branch
Davidian residence, may have ignited and started the fire. During the
hearings Dr. Quintiere testified that it was his opinion that the
methylene chloride in the CS agent neither caused nor contributed to the
spread of the fire.
According to Dr. Quintiere, methylene chloride, when a vapor in air,
is flammable at ambient air levels of 12 percent or greater.\612\ This
conclusion is supported by information provided by the manufacturers of
methylene chloride.\613\ The subcommittees review of the evidence
presented indicates that the levels of methylene chloride present in the
residence on April 19 was far below this concentration.\614\
Additionally, a spark, flame, or other source of heat is necessary for
methylene chloride to ignite and a fireball-like event would have
resulted. As Dr. Quintiere testified,
---------------------------------------------------------------------------
\612\ Id. at 140.
\613\ Letter from Peter Voytek, executive director, Halogenated
Solvents Industry Alliance, Inc. to Glenn R. Schmitt, counsel to the
Subcommittee on Crime (July 25, 1995). See also generally Mallinckrodt,
Inc., Material Data Safety Sheet 1 (1989); Dow Chemical, Inc., Material
Data Safety Sheet 1 (1988).
\614\ See section VII F of this report.
In other words, anything above 12 percent to approximately 20
percent, it would be in the flammable range, and if we had a
spark or a small match and if we had conditions like that, we
would have a fire propagating through the atmosphere much like a
fireball. There was no observation like that made for this
fire.\615\
---------------------------------------------------------------------------
\615\ Hearings Part 3 at 140.
The only fireball which did occur took place well after the fires had
engulfed the building, and was most likely due to the explosion of a
canister of propane gas.\616\ Accordingly, because there was no
explosion prior to the beginning of the fire, there is no evidence that
methylene chloride vapor present in the air caused the outbreak of the
fire.
---------------------------------------------------------------------------
\616\ ``[T]he explosion happened well after the building was totally
destroyed. It was very unlikely that that explosion was anything other
than a propane cylinder. . . . There was, in fact, a hundred pound
propane cylinder with a piece of the top blown out about the size of a
football exactly where that explosion occurred, and I have no doubt that
that is what the big explosion is. . . .'' Id. at 175-176 (statement of
Paul Gray).
---------------------------------------------------------------------------
Dr. Quintiere also noted that methylene chloride is generally in a
liquid state and that as the methylene chloride vapor condensed and fell
in droplets to the floor of the structure after the CS was inserted the
methylene chloride generally would have evaporated. In some instances,
however, the chemical could have collected in a puddle. He testified
that such a puddle would have been difficult to ignite due to the
presence of chlorine in the chemical. He testified that ``in some sense
[methylene chloride] acts like an inhibitor.'' \617\ He further
testified that he conducted experiments using methylene chloride as a
``wetting'' agent by depositing it on wood, paper, and other flammable
objects that might have been found in the structure in an effort to
determine whether the methylene chloride might have burned along with
these items. As a result of these experiments, he concluded ``that the
methylene chloride had no enhancement effect on the fires spread over
the room furnishings and other things that burned in the compound.''
\618\
---------------------------------------------------------------------------
\617\ Id. at 140.
\618\ Id.
---------------------------------------------------------------------------
2. Whether the irritant chemical in the CS riot control agent used by
the FBI caused or contributed to the spread of the fire
At the hearings Dr. Quintiere testified that he had reviewed the
literature concerning the ignition point of the chemical irritant in CS
agent and noted that the temperature at which that chemical would ignite
was comparable ``to what we would find from most fuels around us.''
\619\ Based upon his review of the literature, Dr. Quintiere testified
that it was his opinion that the CS powder that is an active irritant in
the riot control agent did not enhance the spread of the fire.\620\
---------------------------------------------------------------------------
\619\ Id.
\620\ Id.
---------------------------------------------------------------------------
3. Whether the combat engineering vehicles used by the FBI on April 19
started the fire
Some theories concerning the origin of the fire involve an
explanation that one of the combat engineering vehicles used by the FBI
to inject CS chemical agent and to demolish portions of the Branch
Davidian residence may have actually caused the fire, either
intentionally or unintentionally.
At one point in the video record of the operation on April 19, a
combat engineering vehicle is seen driving into a portion of the
residence. The first fire begins in that same location shortly
thereafter. Some have suggested that the CEV might have overturned a
lighted kerosene lantern inside the residence, causing the fire to
begin. The fire that begins in that area, however, is not discernable in
the FLIR video until 1\621\ During the hearings, Dr. Quintiere was
questioned on the significance of this fact.
---------------------------------------------------------------------------
\621\ Id. at 135 (statement of James Quintiere).
Mr. Schiff: Well, if there were lanterns in use and if you
had, either through vibrations of tanks hitting walls or through
a number of people, panicking inside at what they might have
perceived was an assault, notwithstanding the FBI broadcast
going to them, couldn't either or both of those factors easily
overturned lanterns inside the compound?
Dr. Quintiere: Well, the only evidence of a tank being in the
vicinity of one of the fires is the first fire, and that tank
has not left 1\1/2\ minutes after the fire has begun. If that
tank knocked over a lantern and the lantern were lit, we would
have seen it in that FLIR video because it would have been
sensitive enough to see that. If the tank had spilled a lantern
and there was no flame there to ignite it, that's possible, but
somebody would have to come in and put a flame in that.\622\
---------------------------------------------------------------------------
\622\ Id. at 143.
---------------------------------------------------------------------------
Some citizens have contacted the subcommittees to suggest that the
combat engineering vehicles used by the FBI at Waco carried flame
throwing devices which were used to intentionally set the fires inside
the Branch Davidian residence. During the hearings, the fire experts
were questioned about this theory.
Mr. Schumer: Another theory we have heard mentioned is that a
flame thrower from the tanks started the fire. Now as I
understand it, we would have to have seen on the FLIR a hot
streak going from the tank to the building for that to happen.
Dr. Quintiere: Absolutely.
Mr. Schumer: And we did not; is that correct?
Dr. Quintiere: Absolutely.
Mr. Schumer: So you are saying a flame thrower from the tanks
starting the fire--is that consistent--is that theory consistent
with what we saw on the tape?
Dr. Quintiere: No, indeed. There was no such thing as a flame
thrower on those vehicles.\623\
---------------------------------------------------------------------------
\623\ Id. at 144. See also Id. at 172 (``The flame-throwing tank
absolutely did not happen.'') (statement of Rick Sherrow).
On another day of the hearings, a Defense Department witness testified
that all of the military vehicles loaned by the Defense Department to
the Department of Justice and used at Waco were unarmed.\624\
Additionally, the subcommittees' interviews with other persons present
at the Branch Davidian residence on April 19 confirms that none of these
vehicles was armed.
---------------------------------------------------------------------------
\624\ Id. at 314 (statement of Allen Holmes, Assistant Secretary of
Defense for Special Operations and Low Intensity Conflict).
---------------------------------------------------------------------------
c. whether the davidians could have left their residence after the fire
began
Throughout the morning of April 19, none of the Davidians left their
residence. After the fire broke out, however, nine persons left the
building.\625\ This indicates that at least some opportunity existed for
the Davidians to safely leave the structure had they wanted to do so.
One of those who escaped the fire left the residence almost 21 minutes
after the outbreak of the first fire.\626\ Clearly, some means of escape
from the residence existed for a significant period of time after the
fire broke out.
---------------------------------------------------------------------------
\625\ Justice Department Report at 298. Two of these persons, Clive
Doyle and David Thibodeau testified before the subcommittees at the
hearings.
\626\ Hearings Part 3 at 139 (statement of James Quintiere).
---------------------------------------------------------------------------
An important question, however, is whether the Davidians might have
been overcome by smoke and prevented from leaving the residence. The
autopsies of the Davidians indicate that deaths from smoke inhalation or
asphyxiation from carbon monoxide poisoning accounted for only half of
the Davidians who died in the residence. The other causes of death were
gunshot wounds, burns, or other trauma. Thus, even after the fires began
to consume the structure, at least half of the Davidians were not so
affected by the smoke and fumes from the fire that they were physically
unable to leave the structure.
Additionally, the location of the bodies of the Davidians indicates
that few of the Davidians actually attempted to escape the building.
Many of the bodies were huddled together in locations in the center of
the building.\627\ Few of the bodies were located at points of exit from
the building, and autopsies indicates that the cause of death of several
of the bodies at exit points were self-inflicted gunshot wounds or
gunshots from very close range.
---------------------------------------------------------------------------
\627\ A chart indicating the location of the bodies found after the
fire in the remains of residence is contained in the Appendix.
---------------------------------------------------------------------------
At the hearings before the subcommittees, Dr. Quintiere testified as
to his opinion as to whether the Davidians could have left the
structure. He testified,
I've estimated . . . that the occupants would have had
sufficient warning in no doubt [sic] that the fire occurred, and
this would have enabled them to escape for up to five minutes
from the start of that first fire or perhaps as many as 20
minutes in some protected areas of the building.
So between and interval of five minutes after the fire started
and maybe as much as 20 minutes, a person could have escaped
from some parts of the building.\628\
---------------------------------------------------------------------------
\628\ Hearings Part 3 at 139.
Paul Gray, Assistant Chief of the Houston Fire Department and leader of
the fire review team assembled by the Texas Rangers, agreed with this
opinion, ``I would take an educated guess of about 20 to 22 minutes from
the inception of the fire, from the first ignition that there may have
been some viable conditions inside the building.'' \629\ As the report
of the team led by Gray summarized,
---------------------------------------------------------------------------
\629\ Id. at 183.
[A] great many of the occupants could have escaped to the
outside of the compound even as the building burned. . . .
[C]onsidering the observable means of exit available, we must
assume that many of the occupants were either denied escape from
within or refused to leave until escape was not an option.\630\
---------------------------------------------------------------------------
\630\ Justice Department Report at 335.
In light of this evidence, the subcommittees conclude that there was
a period of time after the fires began within which the Davidians could
have escaped the residence. The evidence presented to the subcommittees
indicates that the Davidians did not attempt to leave the building
during the fire. In light of the Davidians' religious beliefs that fire
would play a part in the end of their worldly lives, the subcommittees
conclude that most of the Davidians either did not attempt to leave
their residence during the fire or were prevented from escaping by other
Davidians. Had they made such an attempt and not been hindered in the
attempt, however, conditions were such that for sufficient period of
time after the fires broke out many of the Davidians could have
survived.
d. the fbi's planning for the fire
According to the Justice Department Report, at a meeting in early
April, one of the government attorneys raised the possibility of fire at
the compound and suggested to the FBI that ``fire fighting equipment be
placed on standby on the scene.'' \631\ Additionally, the Medical Annex
to the operations plan for April 19, which listed the locations of
``primary'' and ``secondary'' hospitals in the area noted that local
hospitals should not be used to treat major burns but that one of the
secondary hospitals was ``primary for major burns.''
---------------------------------------------------------------------------
\631\ Id. at 302.
---------------------------------------------------------------------------
According to the Justice Department Report, the FBI decided to not
have fire fighting equipment at the scene ``for fear that they would be
fired upon by Koresh and his followers.'' \632\ Yet shortly after the
reports of fire, the FBI command post requested fire fighting assistance
be requested. The first fire fighting vehicles arrived in the vicinity
20 minutes later and, at 12:41 p.m., approached the structure. In total,
the fire crews did not reach the structure until 31 minutes after the
fire had first been reported.\633\ The report also asserts that Jeffrey
Jamar, the FBI's on-scene commander at Waco, stated to Justice
Department officials during the their internal investigation of the
incident that ``even if the fire fighters had arrived at the compound
earlier he would not have permitted them to enter due to the great risk
to their lives.'' \634\
---------------------------------------------------------------------------
\632\ Id.
\633\ Id.
\634\ Id.
---------------------------------------------------------------------------
The subcommittees do not dispute the Justice Department's position
that at the outbreak of the fire it would have been dangerous for fire
fighters to approach the structure. Yet, the subcommittees find it
troubling that even though the government clearly believed there existed
a strong possibility of fire, no provision was made for fire fighting
units to be on hand, even as a precaution. If, as the Justice
Department's Report implies, the government had decided in advance that
it would not attempt to fight any fire that occurred (and thus did not
make provision for fire fighting units to be present at the compound),
it is difficult to understand why the FBI placed a call for fire
fighting units to be summoned to the scene immediately upon the
commencement of the fire.
e. findings concerning the fire
1. The evidence indicates that some of the Davidians intentionally
set the fires inside the Davidian residence. While the evidence is not
dispositive, the evidence presented to the subcommittees suggests that
some of the Davidians set the fires that destroyed their residence. The
evidence demonstrated that three distinct fires began in three separate
parts of the Branch Davidian residence within a 2 minute period on April
19. Additionally, the fire review team found that a number of
accelerants were present in the structure, including gasoline, kerosene,
and Coleman fuel, and that in at least one instance these accelerants
contributed to the spread of the fire in a manner that indicates an
intention to spread the fire.
2. The methylene chloride in the CS riot control agent used by the
FBI did not cause the fire. There is no evidence that methylene chloride
vapor in the air in the residence, present as the result of its use as a
disbursant for the CS riot control agent, caused the outbreak of the
fire. The evidence presented to the subcommittees indicated that for the
methylene chloride to have burned some spark must have ignited the
methylene chloride vapor and that a fireball would have resulted.
Because no fireball was observed until well after the fire had become
established, the subcommittees conclude that methylene chloride did not
cause the fire.
3. The subcommittees conclude that Federal law enforcement agents
did not intentionally set the fire. The evidence before the
subcommittees clearly demonstrates that no fire began at or near the
time when any of the combat engineering vehicles used by the FBI came
into contact with the structure. Had a flamethrower or similar device
been installed on one of the CEV's and used to start the fire its use
would have been observable in the infrared videotape of the fire. No
such use is recorded on the that videotape. Accordingly, the
subcommittees conclude that the FBI did not use any of the CEV's
intentionally to cause the fire.
4. The subcommittees conclude that Federal law enforcement agents
did not unintentionally cause the fire. The evidence presented to the
subcommittees suggests that it is highly unlikely that Federal law
enforcement officials unintentionally caused the fires to occur. The
evidence demonstrates that the fires broke out at points in time when no
vehicle used by the FBI was in contact with the structure or had been in
contact with the structure immediately prior to those points. Because
this would have been the case had these vehicles inadvertently caused
the fires to break out by disturbing flammable materials inside the
Davidian residence, the subcommittees conclude that it is highly
unlikely that the vehicles inadvertently caused the fires to occur.
5. The FBI should have made better preparations to fight the fire.
While it may have been too dangerous to fight the fire when it initially
erupted, it remains unknown as to whether it might have been safe for
fire fighters to approach the building at some point earlier than the
half hour later when they were allowed access. While fire fighting
efforts might not have extinguished the fire, they could have delayed
the spread of the fire or provided additional safe means of escape for
some of the Davidians. It also does not appear as though the FBI
considered obtaining armored fire-fighting vehicles from the military.
In any event, given the government's strong belief that a fire might
take place, and its action in summoning fire fighting units to the
scene, the subcommittees conclude that the FBI should have made better
provision for the presence of fire fighting equipment as part of its
overall plan to end the standoff.
6. The Davidians could have escaped the residence even after the
fire began. After the fire broke out on April 19, nine persons left the
Davidian residence. This indicates that at least some opportunity
existed for the Davidians to safely leave the structure had they wanted
to do so. As one person left the structure 21 minutes after the outbreak
of the first fire, some means of escape from the residence existed for a
significant period of time after the fire broke out. The autopsies of
the Davidians indicate that many of the Davidians were not so affected
by the smoke and fumes from the fire that they were physically unable to
leave the structure. Additionally, the location of the bodies of the
Davidians indicates that few of the Davidians actually attempted to
escape the building. In light of this evidence, the subcommittees
conclude that there was a period of time after the fires began within
which the Davidians could have escaped the residence.
ADDITIONAL VIEWS OF HON. ILEANA ROS-LEHTINEN
For the record, while I agree with the Waco-specific conclusions in
the report, I want to note that Janet Reno has had a distinguished
career in public service beginning in 1971 with the Judiciary Committee
of the Florida House of Representatives. Her record of service and
history of public integrity is long and worthy of additional comment.
From the Florida House, she held positions with a State Senate
committee, Dade County State Attorney's Office, was eventually appointed
State Attorney for Dade County and elected to the position for five
consecutive terms, culminating in her present position as Attorney
General of the United States.
Ms. Reno is widely respected as a woman of integrity and a selfless
public servant. Indicative of her sincerity, she took complete
responsibility and offered her resignation for the actions of Federal
agencies toward the Branch Davidians near Waco, TX in 1993, after
serving only a month as Attorney General. Ms. Reno has endeavored to
improve the U.S. Justice System as shown by her recent and complementary
handling of the Montana Siege which ended in a peaceful resolution. Her
leadership in the Department of Justice has, in my view, since Waco been
of considerable benefit to the citizens of the United States.
Hon. Ileana Ros-Lehtinen.
ADDITIONAL VIEWS OF HON. WILLIAM H. ZELIFF, JR.
In response to concerns raised by two members of the minority at the
committee mark-up, I want to set the record straight regarding the
extensive majority efforts to cooperate with the minority throughout the
entire investigative process.
First, the subcommittees made an unprecedented attempt at genuine
accommodation in holding 10 days of investigative hearings. In a
concession that had no apparent precedent during prior Congresses, the
majority accepted 90% of the witnesses suggested by the Democrats.
Second, minority members were invited on key fact-finding trips,
such as to Waco itself.
Third, the majority shared all available documents, set up a
document room accessible to all staff, and shared all indexes received
to those documents; by contrast the majority subsequently learned that
the minority staff received and intentionally withheld from majority
staff the key Treasury Department index to tens of thousands of
documents. This minority tactic led to the unnecessary expenditure of
tens of hours of indexing by the majority prior to being able to use the
documents they received. As another indication of the difficulties the
majority facted, two Democrat staffers apparently met secretly with the
Texas Rangers and told them that they should not or did not need to
honor subpoenas issued by the majority; these kinds of obfuscatory
tactics during and prior to the hearings did not enhance majority-
minority cooperation.
Fourth, the appendix to this report consists largely of documents
that are in the public domain from the hearings, or are otherwise
available to the minority; we have never had a request to see these
documents, and we know that most were separately sent to the minority
staff by the departments themselves; accordingly, complaints about not
seeing the appendix ring hollow.
Fifth, the 10 footnotes missing from the distributed draft are
either in documents the minority already have or are merely ids or ibids
to documents already once cited elsewhere in the report's other 600
footnotes.
Sixth, the post-hearing investigation consisted largely of asking
for documents that the majority had already asked for on June 5, 1995,
and never received from the departments; interrogatories that pertained
to unanswered hearing questions; and issues first raised at the hearings
or interviews. There were no surprises in these requests.
Seventh, the press conference held on the day the report was
distributed to Members simply made available the recommendations of the
two subcommittee chairmen to the respective subcommittees and
committees, and the summary--well within the House Rules--was made
available to the minority at the same time. Ironically, the week prior
to the business meeting, one of my staffers received a call from the
Justice Department in which the Department indicated that they had
received--presumably from a minority staff member or member--a copy of
the whole Waco report. For the record, that is a clear and unequivocal
violation of Rule 4, if any majority member had wished raise it--and
when asked for a chance to correct facts that might be unclear or wrong,
the department made no such proffer. In fact, they never sent any
corrections whatsoever, despite five follow-up telephone calls to get
fact corrections.
Eighth, cooperation with the departments was, frankly, an exercise
in extreme patience; the majority even had to suffer having the
Secretary of Treasury calling Democrats and telling them not to ask any
embarrassing questions at the hearings. Surely, that is not the proper
reaction to congressional oversight, and it is not consistent with
President Clinton's promises of full cooperation. In a further example
of unjustifiable manipulation, the Treasury Department also flew the
Texas Rangers who were going to testify to Washington ahead of time and
at taxpayer expense--to brief them for 2 days on what they should say.
In my view, there can be little question that that action was patently
offensive to both the word and spirit of cooperation.
Ninth, the majority has actually allowed the minority four times the
amount of time normally allowed--and under House rules required--to
review a report prior to a business meeting. On balance, I believe the
record will show clearly that the entire investigative process was
conducted not only patiently, inclusively, exhaustively and with an
extraordinary emphasis on cooperation, but with an incontrovertible
premium on fairness. In fact, I know of no set of investigative hearings
or report that has ever been conducted with this level of inclusiveness,
cooperation, or fairness.
Hon. William H. Zeliff, Jr.
THE SUBMISSION BY HON. STEVEN SCHIFF, OF THE SUBCOMMITTEE ON NATIONAL
SECURITY, INTERNATIONAL AFFAIRS, AND CRIMINAL JUSTICE OF THE COMMITTEE
ON GOVERNMENT REFORM AND OVERSIGHT, OF EXTRANEOUS MATERIAL PROVIDED TO
HIM BY HON. BOB BARR, OF THE SUBCOMMITTEE ON CRIME OF THE COMMITTEE ON
THE JUDICIARY
The hearings into the 1993 Waco tragedy, conducted jointly in June
1995 by the Crime Subcommittee of the House Committee on the Judiciary
and the Subcommittee on National Security, International Affairs, and
Criminal Justice, of the House Committee on Government Reform and
Oversight, was a painful expose of perhaps the greatest law enforcement
tragedy in American history. Yet, it was a necessary exercise, because
it gave those of us on the subcommittees, and all Americans, the
opportunity to examine why it happened and to at least begin to
implement steps to avoid a recurrence of the tragedy. It would not be a
significant overstatement to describe the Waco operation from the
Government's standpoint, as one in which if something could go wrong, it
did. The true tragedy is, virtually all of those mistakes could have
been avoided.
After nearly 2 weeks of hearings, the subcommittees closed down the
proceedings, and moved on to other business. Now, over a year later, we
have a report. While the report contains many conclusions that I believe
are accurate and appropriate, along with several important
recommendations, it fails to address several extremely important matters
that came to light during the hearings and which deserve far more
scrutiny than accorded heretofore.
I would hope that in the next Congress, followup hearings are held,
and legislative measures introduced and passed. Avoiding tragedies such
as Waco ought to be a top priority for the Congress and the
administration.
Rather than repeat all the conclusions and recommendations of the
report, many of which I agree with (especially those concerning the ATF,
the Treasury Department failure to monitor, and the decisionmaking at
the FBI and the top levels of the Justice Department), I will note those
with which I have serious disagreement, from my perspective as a Crime
Subcommittee member, as a former U.S. attorney, and as a citizen deeply
concerned with the militarization of domestic law enforcement and the
lack of accountability by Federal law enforcement.
Militarization of Law Enforcement
Law enforcement officials have long been required to abide by the
Bill of Rights, enshrined in our Constitution. These principles underlie
virtually everything they do in their capacity as officers sworn to
protect our citizens; and they limit what they can do in fulfilling
their specific responsibilities.
However, with the phenomenal growth in the power of the Federal
Government, touching virtually every facet of our lives--personal,
business, educational, government, religious, recreational, etc.--there
has developed a mentality on the part of law enforcement that they can
do anything and not be held accountable for it. Along with this we have
witnessed the development of a militaristic approach to domestic law
enforcement, in everything from dress (black military uniforms and
helmets), to equipment (armored vehicles and military surplus
helicopters), to outlook, to execution.
Our armed forces, in carrying out their mission to protect and
project our national interests abroad, are not bound by the
constitutional restraints placed on domestic law enforcement. This
reflects the significant differences between conducting domestic law
enforcement operations, and conducting warfare overseas. In a war
situation, our armed forces do not and should not have to give
``Miranda'' warnings before shooting the enemy; they need not have
``probable cause'' before an attack. Domestically, our law enforcement
officers must do these things.
Unfortunately, we saw in the Waco tragedy one logical result of the
blurring of lines between domestic law enforcement and military
operations: an operation carried out pursuant to a strategy designed to
demolish an ``enemy,'' utilizing tactics designed to cut off avenues of
escape, drive an enemy out, and run roughshod over the ``niceties'' of
caring for the rights of those involved. The protestations of the
Attorney General to the contrary, that she authorized the injection of
debilitating CS gas into closed interior quarters with no ventilation
where dozens of women and children were concentrated, out of concern for
the children do not match the Government's actions. While the report
reflects this view to some extent, I believe very firm steps must be
taken to ``demilitarize'' Federal domestic law enforcement, through
substantive legislation and funding restrictions.
Posse Comitatus and Military Involvement
While the report touches on the issue of military involvement in
this operation, focusing primarily on disingenuous steps taken by the
civilian law enforcement agencies in order to obtain military assistance
without paying for it, my concerns go deeper.
I seriously question the role of military officers being involved in
strategy sessions, on sight ``observers'' and the presence of foreign
military personnel, and the use of military equipment such as armored
vehicles. Contrary to the conclusion of the report, I am not convinced
that the separation between military operations and domestic law
enforcement, codified in the U.S. Code's ``Posse Comitatus'' provisions,
was not violated in the Waco operation.
Hostage Rescue Teams
During the questioning of Attorney General Reno on the last day of
the hearings, I asked her what specific steps had been taken by the
Government to ensure that another Waco would not recur. The only
specific step the Attorney General cited to me in response to my
question, was that the ``Hostage Rescue Teams'' (HRT's) had been
expanded. The report agrees that HRT's should be expanded. I disagree.
In my view, based on the Waco incident (and others), part of the
problem is the HRT's themselves; they are relied on too heavily, and are
used in circumstances in which no hostages are present, or which do not
lend themselves to HRT tactics. Rather than expanding the size and use
of HRT's, I believe they ought to be more carefully circumscribed,
controlled and scaled back.
FLIR Tapes and What They Show
Forward Looking Infrared Radar (FLIR) was used by the Government, in
cameras aboard helicopters and planes flying over the Branch Davidian
compound on the day of the final assault. Portions of the FLIR tapes
were shown at the hearings; these were under the control of the
Government. Of course, the Government used the tapes to buttress its
arguments that no shots were fired on April 19 (the day of the assault
on the compound) from outside the compound into the compound, and that
the fire that destroyed the compound was not started from the outside or
by the Government vehicles.
Given the severe limitations on questioning by subcommittee members,
and the inability to truly review and analyze the Government's evidence,
I do not agree with the conclusions in the report that the evidence
clearly establishes the Government's position on these issues.
On further examination of FLIR tapes, after the hearings, and in
discussions with private parties who have reviewed the tapes, I believe
sufficient questions have been raised to warrant further study of these
two issues: were there shots fired from outside the compound into the
compound on April 19th, and were the fires started--intentionally or
unintentionally--by the armored military vehicles or personnel therein?
Unlike the report, I do not dismiss out of hand the civilian
analyses of these tapes and other evidence. (On a related issue, I also
believe further study ought to be made, and additional evidence
examined, concerning the cause of the explosion that occurred during the
fire on April 19.)
Use of CS Gas
The Government's use of CS gas in the manner it did, that is,
clearly designed to incapacitate men, women and children in a confined,
unventilated space, after avenues of escape had been deliberately cut
off, was unconscionable; as was the cursory manner in which the
Government, and especially Attorney General Reno ``bought into'' the
conclusory and simplistic analyses that the use of CS gas posed an
``acceptable'' level of risk.
The fact is, while experts may--and did--differ over the precise
effects of CS gas on children, or how and in what ways the use of CS gas
might act as a catalyst for a fire, no rational person can conclude that
the use of CS gas under any circumstances against children, would do
anything other than cause extreme physical problems and possibly death.
For the Government of this country to consciously use CS gas in the
way it did on April 19, 1993 in Waco is utterly indefensible and should
never be allowed to be repeated. I believe the deaths of dozens of men,
women and children can be directly and indirectly attributable to the
use of this gas in the way it was injected by the FBI.
I would go further than the report, and call for a prohibition on
the use of CS gas in situations in which children or the elderly are
present or are the targets.
The Fire
While the report concludes that the evidence clearly establishes
that the fire that eventually consumed the Branch Davidian structure was
started inside by the Davidians, I think that the most that can be said
is that the fire may have been started inside, and even if it did, the
evidence that it was deliberately set is inconclusive. I believe there
is also the possibility that the fire, or at least some of the fires,
may have been caused as a result of the demolishing efforts of the
armored military vehicles. While there is no direct evidence that the
fire was started from the outside, further study (of the FLIR tapes, for
example) ought to be conducted.
Escape
The report concludes that there was opportunity for the Davidians to
escape. While obviously this is true--a handful did escape the
maelstrom--I conclude there was no opportunity for the vast majority of
the Davidians to have any hope of escape, because of the Government's
tactics the morning of the 19th of April.
Essentially, the use of the armored vehicles, methodically smashing
down portions of the building, cutting off avenues of escape (for
example, smashing the walls down to cover the ``escape'' hatch to the
tunnel out of the main building), intimidated the inhabitants into
seeking ``safety'' in the one secure part of the structure (the concrete
``bunker'' in the center). With massive quantities of CS gas pumped into
this area, it virtually guaranteed that most inhabitants would be
incapacitated; which they were, and they died in the ensuing fire
because of the incapacitating effects of the CS gas and the cutting off
of escape routes.
Breach of Ethics and Possible Obstruction
One area of inquiry which I pursued during the hearings involved
what clearly are breaches of ethics, and possible obstruction of justice
by Government attorneys and investigators. This aspect of the hearings
is completely overlooked by the report. Government documents clearly
show deliberate efforts by Government attorneys to stop the collection
of evidence and possibly cover up evidence the Government did not want
to be available later on. While the Department of Justice went so far as
to issue a news release during the hearings, to refute my conclusions, I
consider it extremely serious; especially when considered with evidence
that two of the ATF agents first disciplined and fired and then later
reinstated and records sealed, to raise very troubling questions of
ethical violations at best and obstruction at worst. Attorneys who
testified at the hearings also raised serious concerns about the
attitude and policies reflected in these documents.
Documents explicitly showed that ``DOJ [Department of Justice] does
not want Treasury to conduct any interviews . . . [that might] generate
. . . material or oral statements which could be used for impeachment''
of Government witnesses, and that hopefully if such material is not
gathered, ``the passage of time will dim memories.'' (Memorandum from
Treasury Assistant General Counsel for Enforcement, dated April 14,
1993.)
Earlier, on March 1, 1993, in interview notes, the ATF's initial
``shooting review'' of the February 28, 1993 initial assault at which
time ATF agents fired their weapons, the ATF is advised to ``stop the
ATF shooting review because ATF was creating Brady material.'' (Note:
``Brady'' material is evidence that would tend to establish innocence or
which could be used in mitigation of guilt.)
In handwritten notes, taken at some point during the siege,
Government attorney Ray Jahn directs that interviews are to stop because
exculpatory statements may be generated.
This pattern of activity to deliberately avoid collection of
relevant evidence, because it might tend to establish a person's
innocence, or, as is apparent from other documents, might embarrass the
ATF, raises very troubling questions to say the least, about the
interests of the Government in establishing the truth and in seeing that
justice is done. Neither goal would be met under the circumstances
evidenced by these documents. That the Department of Justice casually
dismisses these concerns should be of concern to the Congress and to the
people of this country.
Committee Rules and Restrictions
The procedures under which these hearings were conducted did not
lend themselves to adequate inquiry. Important evidence was not
available because of tactics by the Government and minority members of
the subcommittees to keep evidence out of our hands; such as the weapons
taken by the Government from the burned Davidian compound. We were never
able to test the weapons to establish whether they were in fact unlawful
weapons as the Government charged (which provided a primary
justification for the Government's initial action against Koresh and the
Branch Davidians).
The method of questioning employed--in 5-minute increments,
alternating back and forth between majority and minority--with no comity
from the minority to provide both sides with longer periods within which
to question, lent itself to a scenario whereby savvy witness (most
Government witnesses are very familiar with how to answer questions and
stall so as to use up large segments of the questioner's time) were
able, time and again, to minimize or completely neutralize the member's
ability to obtain answers to questions.
Starting out at the mercy of the minority to control and minimize
the majority's ability to effectively question and elicit timely,
forthcoming and nondilatory responses, set the stage for hearings much
less productive than these could have been. Some exploration of
instituting other methods of conducting investigative hearings ought to
be explored. Moreover, many witnesses who simply did not answer members'
questions, were allowed to escape with dilatory or nonresponsive
tactics; which again limited the productivity of the hearings.
Conclusions
Despite the severe limitations in procedure, and the other matters
noted above, these hearings were extremely valuable; perhaps historic.
They resulted in very important evidence which, if properly followed-up,
can help establish, through laws, regulations, and procedures, more
effective and more accountable Federal law enforcement. However, that
follow up has not yet occurred, and many troubling questions, some going
to the very integrity of the Government's actions and personnel, remain.
These hearings in June 1995 should be viewed not as the conclusion of
the efforts by the Congress to get to the bottom of the Waco tragedy,
but the beginning of that process.
Hon. Steven Schiff.
ADDITIONAL VIEWS OF HON. TOM LANTOS
I welcome the dissenting views on the majority report, which I have
signed with a large number of my colleagues. That statement points out
clearly the many serious deficiencies of the majority report.
One issue, which is completely ignored in the majority report but
which was raised at the time of the original hearings and which is
raised in the dissenting views which I have signed, is the issue of the
highly questionable involvement of an outside interest group--the
National Rifle Association--in the investigation which preceded the
hearing.
It is my view that this issue deserves greater attention and
investigation. The active involvement of an outside organization in a
subcommittee investigation raises the most fundamental questions about
the integrity of the entire investigation, and the failure to address
this important matter is a fundamental flaw of the majority report.
The outside organization--the National Rifle Association (NRA)--is
not a disinterested third party. That organization and its leaders have
made it clear that they had a particular point of view on the matters
being considered by the subcommittee. Members of the subcommittee
repeatedly urged the chairman of the subcommittee to investigate these
matters, and the chairman has repeatedly refused to do so. In the
interest of fairness and integrity, it is important that these issues be
made part of this report.
The first matter is the subcommittee majority's use of outside
``experts'' to test firearms. These ``experts'' were contracted for and
paid for (at a cost of some $25,000) by the National Rifle Association.
Furthermore, the chairman of the subcommittee and members of the
majority staff initially tried to cover-up the involvement of the
National Rifle Association, and majority staff even refused to identify
to officials of the U.S. Department of Justice the name of the outside
advocacy group which selected and paid for the outside experts.
Furthermore, in conversation with Justice Department officials, majority
staff admitted that the so-called ``experts'' in fact had no expertise
whatsoever in firearms testing. Later, during the course of the hearings
the involvement of the National Rifle Association in this case did
become public.
The second issue is the matter of an employee of the National Rifle
Association identifying herself as a member of the subcommittee staff to
at least one individual who was called to testify before the
subcommittee. Furthermore, two witnesses testified under oath during the
hearings that they were contacted by an employee of the National Rifle
Association prior to testifying at the hearing. This raises serious
questions about witness tampering. Again this issue was not investigated
by the subcommittee chairman and is not dealt with in the majority
report.
Both of these instances regarding the involvement of the National
Rifle Association in the congressional hearing and investigative process
not only raise questions about the ethical behavior of the majority
staff, but also may be a violation of the law. This issue was raised in
a July 17, 1995, letter from Congressman John Conyers, Jr., and
Congressman Charles E. Schumer to the chairman of the Judiciary
Committee and the chairman of the Government Reform and Oversight
Committee. The instances of the National Rifle Association providing
valuable services to the subcommittee may have violated the law and the
Rules of the House. This issue should have been investigated and
resolved. It was not.
The refusal of the subcommittee chairman and the majority to
investigate these issues fully and openly--despite repeated requests by
me and other Members who participated in the hearings--raises the most
fundamental questions about the integrity of the majority report as well
as the hearing and investigation conducted by the subcommittee.
Hon. Tom Lantos.
DISSENTING VIEWS OF HON. CARDISS COLLINS, HON. KAREN L. THURMAN, HON.
HENRY A. WAXMAN, HON. TOM LANTOS, HON. ROBERT E. WISE, JR., HON. MAJOR
R. OWENS, HON. EDOLPHUS TOWNS, HON. LOUISE M. SLAUGHTER, HON. PAUL E.
KANJORSKI, HON. CAROLYN B. MALONEY, HON. THOMAS M. BARRETT, HON.
BARBARA-ROSE COLLINS, HON. ELEANOR HOLMES NORTON, HON. JAMES P. MORAN,
HON. CARRIE P. MEEK, HON. CHAKA FATTAH, AND HON. ELIJAH E. CUMMINGS
The text of the majority report entitled ``Investigation into the
Activities of Federal Law Enforcement Agencies Toward the Branch
Davidians'' is based on 10 days of hearings (July 19-August 2, 1995)
jointly held by the Committee on Government Reform and Oversight's
Subcommittee on National Security, Criminal Justice, and International
Affairs and the Committee on the Judiciary's Subcommittee on Crime.
During those hearings, the committees heard testimony from over 90
witnesses and viewed voluminous photographic, video and documentary
exhibits concerning the events at Waco.
Throughout those hearings, the minority repeatedly insisted that no
new facts or evidence emerged as a result of this extensive
investigation. The majority report proves that basic point.
The text of the report agrees with recommendations and positions
taken as a result of the 1993 Department of Justice and the 1993
Department of the Treasury investigations of the Waco incident. The
report agrees that the tragedy at Waco would not have occurred but for
the criminal conduct and aberrational behavior of David Koresh. The
report also confirms a number of other important points emphasized by
the minority during the hearings: that there was probable cause to issue
warrants to search the premises and arrest David Koresh; that the
military assistance received by ATF did not violate Posse Comitatus;
that planning and intelligence operations prior to the raid were
inadequate; that the Branch Davidians started the fire on April 19,
1993; that Koresh and his followers had ample time to leave the compound
after the fire started; and that the amount of tear gas the FBI used was
far below the quantities that would have been required to cause injury
or death. These are not new discoveries revealed as a result of the
majority's investigation, but previously known findings which the
majority has finally accepted.
While we accept those findings in the majority report that are
largely duplicative of the recommendations contained in previous
Department of Treasury and Department of Justice investigations, we
reject the false assumptions and unfounded allegations raised by the
majority's report. The report is fundamentally flawed in a number of
important areas. In an effort to correct those flaws and provide clarity
to facts obfuscated by the majority report, we in the minority file
these Dissenting Views to address basic factual errors, resolve internal
contradictions, meliorate certain deficiencies and express our
disagreement with certain original recommendations made by the majority
report. Additionally, we wish to express strong disagreement with the
majority's unfair criticism of Treasury Secretary Bentsen and their call
for the resignation of Attorney General Reno.
The majority report suffers from several deficiencies. First, the
findings reached are not supported by the hearing record or other
evidence. The text of the report states that the Davidians started the
fire, however the findings conclude that the evidence is not dispositive
on the question of who started the fire.
Second, the report is internally inconsistent. For example, while
critical of the FBI for failing to consult those outside of its control
during the negotiations, it then commends the FBI for allowing lawyers
representing the Davidians to enter the compound and conduct several
hours of discussions with their clients. Clearly, these attorneys were
not controlled or directed by the FBI. Their efforts to end the standoff
were discussed by the majority report.
Third, the report omits important evidence from the hearings. At no
point does the report discuss the allegations of child physical and
sexual abuse perpetrated by David Koresh. Additionally, the report fails
to mention the riveting testimony of Kiri Jewell who testified at the
hearings concerning Koresh' sexual molestation of her when she was 10
years old. Instead the report dismisses the criminal conduct of David
Koresh by summarily stating the Koresh was not subject to congressional
oversight.
Fourth, the report reflects a willingness to believe Koresh over
Federal law enforcement officers and personnel. For instance, the report
asserts that Koresh's lawyers negotiated a credible surrender agreement.
However, Federal law enforcement personnel on the advice of psychiatric
and linguistic experts determined that the ``agreement'' was a
continuation of prior manipulative stalling tactics. The report ignores
no fewer than four prior instances in which Koresh reneged on promises
that he and his followers would leave the compound. Moreover, the report
ignores that Koresh did not state a time certain for surrender and had
not allowed anyone to leave the compound for 3 weeks prior to the
``agreement'' or 5 days following the agreement.
The majority report criticizes Secretary Bentsen for failing to take
an active role in preraid planning but ignores testimony and evidence
presented at the hearing which conclusively showed that under the
structure that existed at the time, the ATF exercised independence in
planning and implementation of enforcement actions. This structure
existed under several administrations. Secretary Bentsen's post-Waco
order changed the structure to require additional oversight by main
Treasury.
Additionally, the majority report calls for Attorney General Janet
Reno's resignation because of her decision to allow the insertion of CS
tear gas. Attorney General Reno stated during the hearings that the
decision to use tear gas was a difficult one but all those consulted who
had personal knowledge or professional expertise agreed that the use of
tear gas was the only way to compel the Branch Davidians to leave the
compound without use of force or loss of life. Evidence and testimony
during the hearing clearly indicated that the CS tear gas was not
direct, or proximate cause of the ignition or acceleration of the fire.
Evidence conclusively found that the Branch Davidians started the fire.
Therefore, the deaths of the Davidians who remained in the compound
should not be laid at Attorney General Reno's feet. This finding of the
majority squarely contradicts their finding that Koresh was the author
of the events at Waco.
I. Committee Procedural Issues
During and following the Waco Hearings, certain procedural issues
arose which need to be addressed and remedied by the majority of this
committee.
Prior to the hearings, the majority conducted a series of interviews
in Waco, TX. Apparently, these interviews involved surviving members of
the Branch Davidians and other residents of Waco. The minority was not
informed of these interviews, invited to participate or allowed to
review interview notes. The minority first learned of these interviews
from the majority report. During this pre-hearing phase, the minority
was not allowed to participate in the formation of the document request
to the Federal agencies involved. Moreover, contrary to the implications
in the majority report, the majority of this committee did not willingly
grant the witness requests of the minority. In fact, our early witness
requests were summarily rebuffed. The minority of this committee was
only able to obtain witnesses by working with the minority staff of the
Judiciary Committee.
During the hearing, at least two witnesses acknowledged under oath,
that they were contacted by representatives of an outside interest group
prior to their appearance before the panel. One witness testified that
in at least one instance, an employee of the interest group identified
herself as a congressional staffer. We believe that this raises serious
questions of witness tampering by an outside group with congressional
proceedings. During the hearings, we requested that the majority
investigate whether this outside group was operating with the knowledge
or at the behest of the majority staff. To date, the majority has
refused further investigation of these instances of improper witness
tampering.
After the hearings, these practices of exclusion continued. At the
conclusion of the hearings, the majority conducted extensive
investigations and interviews without the knowledge or participation of
the minority. This fact did not come to light until the release of the
report.
Finally, one year after the hearings nothing had changed. On July
11, 1996, the majority released a summary of this report to the press.
This press summary was substantially similar if not identical to the
executive summary contained in the report and contained all
recommendations made by the majority report. On July 12, 1996, Members
and staff of the minority obtained a copy of the report.
This pattern of exclusion of the minority members of this committee
from the production of something that purports to be a committee
document should not be allowed. This practice is a serious departure
from prior practice and from the respect that members of this committee
have held for each other in the past. It serves as dangerous precedent
that should not continue.
II. Factual Background
On February 28, 1993 agents from the Bureau of Alcohol, Tobacco and
Firearms (ATF) attempted to serve an arrest warrant on David Koresh and
a search warrant on the Branch Davidian compound outside of Waco, TX.
While executing these lawful warrants, the agents were met with a hale
of gunfire. ATF agents Conway C. LeBleu, Todd W. McKeehan, Robert J.
Williams and Steven D. Willis died as a result of gunshot wounds
inflicted during the ambush. In addition to those agents who were
killed, 20 ATF agents were wounded by hostile fire emanating from the
compound. After negotiating a cease fire with the Branch Davidians, the
agents were allowed to remove the bodies of their fallen comrades.
Within hours of the initial shooting, the Bureau of Alcohol, Tobacco
and Firearms requested assistance from the Federal Bureau of
Investigation's Hostage Rescue Team. The FBI arrived on the scene of the
shooting within 24 hours. A 51-day standoff between Federal law
enforcement agents and the Branch Davidians led by David Koresh
followed. Between the time of their arrival and the tragic conclusion of
the events, the FBI conducted several hundred hours of negotiations with
Koresh and others within the Branch Davidian Compound. Despite these
efforts, only 14 children and 21 adults left the compound as of March
23.
Between March 23 and April 12, negotiations continued but no one
left the compound. During that period, the FBI held a conversation with
a 6-year-old girl who identified herself as Melissa Morrison. The FBI
negotiator asked Melissa whether she would like to leave the compound.
She replied in the affirmative. The FBI negotiator asked her why she did
not leave. Her response was that she could not leave because ``David
won't let me.'' Melissa died in the fire.
On April 12, the FBI presented its tear gas proposal to Attorney
General Reno. Between April 12 and April 17, the Attorney General
conducted no fewer than eight meetings with military and civilian tear
gas experts to debate the tear gas plan, advantages and disadvantages of
using tear gas in a barricade situation, the properties of the tear gas
chosen and the medical and scientific information concerning the
toxicity and flammability of the type of tear gas proposed and the
effects of tear gas on vulnerable populations such as children, the
elderly and pregnant women. On April 17, the Attorney General approved
the tear gas insertion plan and informed the President of her decision.
On April 19, 1993 the Federal Bureau of Investigation began to
insert tear gas via combat engineering vehicles into the Branch Davidian
compound. However, instead of advising his followers to leave, David
Koresh and other unknown members of the Branch Davidians spread highly
flammable liquids throughout the compound and set fire to the entire
building. Because of the poor construction of the building and the use
of chemical accelerants, the entire compound was engulfed in flames and
completely destroyed within 15 minutes.
In the aftermath of the fire, the bodies of over 70 Branch Davidians
were recovered. According to autopsy reports by the Tarrant County (TX)
Coroner, 30 people died of asphyxiation due to smoke inhalation, 2
people died of injuries resulting from blunt force trauma and 20 people,
including David Koresh and a 20-month-old infant, died of gunshot wounds
inflicted at close range by themselves or others within the compound. Of
the nine Branch Davidians who survived the fire, seven escaped through
openings in the walls and windows of the compound created by the combat
engineering vehicles. The shoes and clothing of several of those who
escaped contained concentrations of gasoline, kerosene and other
flammable liquids.
After the siege, the Texas Rangers conducted an extensive search of
the Branch Davidian compound. They discovered 48 illegal machine guns,
seven illegal explosives of various types, nine illegal silencers and
over 200,000 rounds of ammunition.
A series of indictments were returned against 10 Branch Davidians
between March 30 and July 20, 1993. The indictments contained charges
relating to the ambush of ATF officers on February 28 and various
firearms violations committed between February 1992 and February 1993.
On August 6, 1993, the U.S. Attorney's office in Waco obtained another
superseding indictment from the grand jury combining all previous
indictments into one and added two additional defendants.
On September 9, 1993, Kathryn Schroeder entered a guilty plea to one
count of armed resistance of a Federal law enforcement officer. As a
part of her plea agreement, she agreed to testify against the other 11
defendants. A Texas jury convicted 8 of the 11 Branch Davidian
defendants of various firearm offenses. The convicted defendants
received sentences ranging from 3 to 40 years with 7 of the 8 defendants
serving sentences of 40 years imprisonment.
Several congressional hearings were held which solely or
predominantly addressed the events at the Branch Davidian compound. The
President instructed the Department of the Treasury to conduct a review
of the actions of the Bureau of Alcohol, Tobacco and Firearms at Waco.
That report, entitled ``Report of the ATF Investigation of Vernon Wayne
Howell, a.k.a. David Koresh'' was released to the public on September
30, 1993. Additionally, the President ordered the Department of Justice
to conduct a review of the Federal Bureau of Investigation's actions at
Waco. That report, entitled ``Report to the Deputy Attorney General on
the Events at Waco, TX, February 28 to April 19, 1993'' was released to
the public on October 8, 1993.
Two years after the conclusion of the events at Waco, the Committee
on Government Reform and Oversight, Subcommittee on National Security,
International Affairs, and Criminal Justice and the Committee on
Judiciary, Subcommittee on Crime held extensive hearings on ``Matters
involving the Branch Davidians at Waco, TX.'' These hearings began on
July 19 and ended on August 2, 1995. During those hearings, the
committees heard testimony from over 90 witnesses and viewed voluminous
photographic, video and documentary exhibits concerning the events at
Waco. Despite the comprehensive nature of this examination, we believe
that no new facts emerged. However, we believe that there are certain
indisputable conclusions which can be reached by reasonable minds
regarding the events that transpired at the Branch Davidian complex in
Waco, TX between February 28, 1993 and April 19, 1993.
III. David Koresh was the Author of the Events at WACO
We agree with the majority's conclusion that the criminal conduct
and aberrational behavior of David Koresh and other Branch Davidians led
to the tragedies that occurred in Waco. We share their judgment that
David Koresh bore the ultimate responsibility for the deaths of 4
Federal law enforcement agents and 80 of his Branch Davidian followers.
Additionally, we note that Koresh should also be held responsible for
the serious gunshot and shrapnel wounds of 20 Federal law enforcement
officers and the nonfirearm associated injuries suffered by 11 Federal
officers.
IV. The Arrest and Search Warrants Were Legally Sufficient
We agree with the majority's finding that the ATF had probable cause
to obtain an arrest warrant for David Koresh and search warrants for the
Branch Davidian compound and the facility known as the ``Mag Bag.''
However, we disagree with the majority's assertion that the affidavit
filed in support of the warrant contained false statements.
The ATF began its investigation of Koresh after receiving complaints
from the McLennan County (TX) Sheriff's Department in May 1992. A deputy
sheriff asked ATF to investigate following a report from a concerned
United Parcel Service driver. The driver relayed his concern about a
recent delivery. In delivering the package, the container in which it
was shipped broke open and revealed suspicious materials including
grenade casings and a substantial quantity of black powder. The driver
relayed that this was not the first package he had delivered to the
compound that caused him concern. Following this conversation, the
deputy learned from neighbors of the compound and other members of the
community that the residents of the compound were constructing what
appeared to be a barracks-type cinder block structure; had buried a
school bus to serve as both a firing range and a bunker; and apparently
were stockpiling arms and other weapons.
Before opening a formal investigation, the ATF agent spoke with
local officials, interviewed gun dealers and searched national firearms
registries to determine if any resident of the compound was licensed as
a firearms manufacturer or dealer. Additionally, the agent searched the
national registry to determine if any resident of the compound was
licensed to own a fully automatic weapon. These searches revealed that
no resident of the compound had registered to manufacture or sell
weapons. Moreover, no resident of the compound was licensed to own a
fully automatic weapon. During these discussions, the ATF agent learned
of the delivery of grenade casings, black powder and large shipments of
firearms.
While initially focusing on the paper trail generated by the weapons
and explosives purchased by Koresh and his followers, the agent
determined that an Arms company had recently shipped a substantial
quantity of AR-15 parts to the ``Mag Bag.'' Although not within the
compound, the ``Mag Bag'' was an automotive repair facility operated by
the Branch Davidians which was situated less than a mile away from the
compound, on the grounds owned by the Branch Davidians. He also learned
that a gun dealer had sold more than a dozen AR-15 lower receivers to
Koresh a few months earlier. As the agent knew from previous
investigations, someone with access to metal milling machines and lathes
and the knowledge to use them could readily convert AR-15 semiautomatic
rifles into fully automatic machine guns (similar to M-16 machine guns),
by obtaining legally available parts. Additionally, the agent learned
that 36 weapons had been sold to Vernon Howell (a.k.a. David Koresh) and
additional weapons had been sold to other persons the agent knew to
reside on the Branch Davidian compound. Moreover, the agent learned that
approximately 65 AR-15 lower receivers reflected in a local gun dealers
records were not present in the inventory. When questioned about this
discrepancy, the dealer claimed that the firearms were being stored at
the house of David Koresh.
The agent obtained further evidence by speaking with one of Koresh's
neighbors who had served in an army artillery unit. The neighbor
reported that since 1992 he had frequently heard spurts of weapons fire
coming from the compound at night, including .50 caliber and automatic
weapons fire. In mid-November a deputy sheriff reported that while on
patrol a few days earlier he had heard a loud explosion at the compound
accompanied by large clouds of gray smoke.
In an attempt to gain additional information about the manufacture
and possession of illegal weapons at the compound, the agent spoke with
several former followers. They confirmed seeing numerous weapons
including grenades, pump shotguns, and AK-47 machine guns. Additionally,
they provided information on the extent that Koresh dominated the lives
of the residents of the compound. Branch Davidians had not only
surrendered monetary assets to Koresh but allowed him to administer
corporal punishment to children as young as 8 months old which often led
to bleeding and severe bruising; permitted him to dictate the
dissolution of marriages; empowered him to forbid married couples to
engage in sexual relations; and authorized him to engage in sexual
relations with all female members of the Davidians including girls as
young as 10 years old.
In January 1993, the agent spoke with David Block, who had been a
Branch Davidian from 1981 through 1992. Block relayed that he had seen
two other Branch Davidians using a metal milling machine and metal lathe
to produce weapons and which can be used to convert legal weapons to
illegal automatic weapons. Block described an arsenal that included .50
caliber rifles, AR-15s AK-47s, several 9mm pistols and three
``streetsweepers''.\1\
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\1\ A ``streetsweeper'' is a 12 gauge, 12 shot, shotgun with a
spring driven drum magazine and folding buttstock. Each time the trigger
is released after firing a shot, the magazine rotates to position the
next shot for firing.
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The findings of this extensive investigation formed the basis of the
agent's statements contained in the affidavit in support of an arrest
warrant for Koresh and a search warrant for the compound and the ``Mag
Bag.'' This affidavit was presented by an Assistant U.S. Attorney to a
Federal Magistrate who determined that the information contained therein
was credible and sufficiently current to issue warrants.
Therefore, while assertions contained in the underlying affidavits
concerning the physical and sexual abuse of children may have been
beyond the scope of the ATF's jurisdiction, it is abundantly clear that
probable cause existed to obtain an arrest warrant for David Koresh and
search warrants for the Mount Carmel compound and the facility known as
the ``Mag Bag.''
Any doubts Koresh or others may have had about the validity of the
warrants should have been expressed through lawful means. However,
instead of challenging the validity of the warrants through the judicial
system, Koresh chose to instruct his followers to open fire on Federal
agents in the lawful execution of their duties
It should be remembered that at the criminal trial of the 11 Branch
Davidians, none of the defense lawyers challenged the validity of the
warrants. A successful challenge by any of the defense attorneys at
trial would have excluded evidence of the firearms and would have been a
major step in acquitting the defendants of the firearms violations.
Therefore, it seems incomprehensible that had such a challenge been
possible, it would not have been mounted by one of the many able
attorneys representing the 11 Branch Davidians. However, no attorney
questioned the validity of the warrants.
Additionally, it should be noted that evidence obtained from the
scene after the fire, conclusively proved that Koresh amassed a huge
cache of weapons and materials to manufacture illegal weapons. Although
much evidence may have been destroyed by the April 19 fire set by the
Davidians, at least 47 fully automatic weapons, which are illegal under
Federal law, were recovered along with seven illegal explosives, several
grenade casings, nine illegal silencers and 200,000 rounds of
ammunition.
In its attack on the validity of the warrants, the majority does not
present any facts that would undermine the integrity of the core
paragraphs of the ATF affidavits establishing probable cause. Instead of
providing testimonial or documentary evidence to challenge the validity
of the warrants, the majority raises the unsupportable implication that
a Federal law enforcement officer made false statements in securing the
warrants. Such an unwarranted and unsupported attack on the credibility
of a Federal law enforcement officer is simply irresponsible.
V. Accelerated Service of the Warrants
We disagree with the majority's assertion that there was no
compelling reason to serve warrants on February 28. After a year long
investigation the ATF had probable cause to believe that Koresh had
amassed a substantial cache of illegal weapons and materials necessary
to manufacture additional illegal weapons. While the particular date is
not significant, it would have been extremely imprudent to wait long
enough for him to amass, manufacture and potentially distribute
additional illegal weapons. Additionally, we should note that the
original raid was planned for March 1. However, on February 27, a local
newspaper began a highly critical seven-part series of articles focusing
on Koresh and the Branch Davidians. The series detailed several
allegations against Koresh of child physical and sexual abuse which
could have potentially exposed him to serious State criminal charges.
Therefore, there was reason to believe that Koresh would expect a
heightened interest from State or Federal authorities following the
conclusion of the series and may have destroyed evidence of the illegal
weapons in anticipation of a search. The date of the raid was moved from
March 1 to February 28.
VI. Military Assistance Did Not Violate Posse Comitatus
We agree with the majority's conclusion that Posse Comitatus was not
violated and share their concerns over the implementation of formal
guidelines and criteria in the nonreimbursable use of Department of
Defense resources in drug cases. However, we are concerned that the
implementation of such a litmus test could result in the denial of
needed assistance in the fight against the importation, production,
distribution and use of illegal drugs. Therefore, although we understand
this concern, we cannot support a recommendation for such guidelines and
criteria when there is no objective evidence to believe that the
military has failed in its role to accurately and appropriately gage the
need of domestic law enforcement agencies for nonreimbursable
assistance. However, it would be appropriate and would not hamper the
fight against illegal drugs if the Department of Defense, the National
Guard and Federal law enforcement agencies developed operational
parameters for determining when a drug nexus is sufficient to justify
nonreimbursable assistance.
Posse comitatus is the statute that limits military participation in
civilian law enforcement. Military personnel may provide training to
Federal, State and local civilians law enforcement officials, as long as
it is not ``large scale or elaborate.'' Such assistance may not involve
DOD personnel in a direct role in law enforcement operations, except in
specific and narrowly drawn circumstances.
The Department of Defense provided minor nonreimbursable assistance
to the ATF in connection with the events at Waco. Under 10 U.S.C. 371
and 32 U.S.C. 112, the Secretary of Defense is authorized to provide
military support to law enforcement agencies engaged in counter drug
operations. The Secretary of Defense is authorized to pay for the
support pursuant to Section 1004 of P.L. 101-510, Section 1088 of P.L.
102-190, and Section 1041 of P.L. 102-484. If a drug nexus does not
exist, the Economy Act requires that as a general matter, reimbursement
is required when equipment or services are provided to agencies outside
the Department of Defense. An exception may be made if there is some
training value to the DOD personnel involved.
In the planning stages of the raid, the ATF requested Special Forces
assistance from the Department of Defense. This request was forwarded
through Operation Alliance and Joint Task Force 6. The initial request
raised legal questions with Special Forces attorneys regarding the
permissible scope of assistance. Specifically, Special Forces Attorneys
were concerned with the proposal for DoD to review the ATF raid plan and
perform on-site medical emergency services. Acceding to such a request
would have clearly violated the Posse Comitatus Act's mandate
prohibiting the military's ``participation'' in civilian law enforcement
activities. Therefore, the initial request was significantly scaled back
and limited to the facilitation of ATF training. The military did not
offer any training involving the specific details of the raid plan or
any advice concerning the accomplishment of the mission. Special forces
provided assistance limited to facilitating ATF training at Fort Hood.
This included helping to construct models of the doors and windows of
the compound; creating a schematic prototype of the compound's exterior;
operating firing ranges for weapons practice and providing limited
training in emergency medial assistance. Additionally, it should be
noted that there is no evidence to suggest that Department of Defense
personnel were present at the time of the raid or at any time during the
siege.
Federal courts have concluded that the National Guard is a State
force which is not subject to the restrictions of the Posse Comitatus
Act, except when called into Federal service, (United States v. Benish,
5 F.3d 20 (1993). While in State militia status, the range of
permissible activities are governed by the laws and constitutions of the
respective States. However, it is possible for a National Guard unit to
become a Federal law enforcement entity. A State National Guard Unit is
``federalized'' when it is called into service by the President to
suppress domestic violence or insurrection against a State government or
the authority of the United States (10 U.S.C. 331-333). When a State
guard unit is ``federalized,'' law enforcement actions taken pursuant to
that status are governed by the provisions of the Posse Comitatus Act.
The Texas and Alabama Air National Guard units provided pre-raid
assistance by conducting aerial reconnaissance to photograph the
compound. They conducted six flights over the compound and the facility
known as the ``Mag Bag'' from January 6 through February 25, 1993. In
addition to the reconnaissance flights, the Texas National Guard
supplied three helicopters for training exercises on February 27 and for
the raid on the following day.
In sum, there is no evidence to suggest that the Posse Comitatus Act
was violated by the Department of Defense. Additionally, the National
Guard units utilized by the ATF were not in a ``federalized'' status and
therefore were not subject to the proscriptions of the act.
VII. Despite Inadequate Intelligence Operations, ATF did not Prematurely
Reject the Siege Option
We disagree with the majority's findings that the primary reason
that the dynamic entry route was chosen was because ATF did not have the
experience, negotiators or capability to conduct a siege of any
significant duration.
Once ATF agents concluded that there was probable cause to obtain
warrants to search the premises and arrest Koresh, attention turned to
the execution of those warrants. Three options were considered (1)
arrest Koresh away from the compound and then serve the warrants; (2)
place the compound under siege and (3) serve the warrants by ``dynamic
entry or raid.''
The first option to arrest Koresh away from the compound followed by
a subsequent service of warrants was rejected after careful
consideration. Contrary to the majority's assertion, the ATF explored
the possibility of arresting Koresh away from the compound. However,
there are two problems with this assertion. The first problem is that it
ignores the fact that a lawful search warrant had to be served for the
premises. There is no reason to believe that the Davidians in the
compound would not have reacted in the same manner had the search
warrant been served without Koresh on the premises or attempted to
destroy evidence if time elapsed between Koresh's arrest and the
execution of the search warrant. Second, as of February 1993 the ATF had
conducted several hundred raids of this kind. There had only been one
case involving prolonged armed resistance. Moreover, Koresh had previous
encounters with the State officials, police authorities and the judicial
system. During these previous encounters, Koresh did not react violently
to searches or service of process. Therefore, neither the agency's
history nor Koresh's personal history yielded any information that would
tend to indicate a violent reaction. It is pure speculation for the
majority to argue that Koresh could have been arrested away from the
compound.
As acknowledged in the Treasury report, ATF failed to collect
sufficient information to determine whether an off-premises arrest of
Koresh could have been achieved. The ATF raid planners made serious
mistakes in the intelligence gathering operations conducted prior to the
raid. Successful intelligence operations require the development of
adequate and accurate information. That information must be distributed
to persons in the organizational hierarchy who are able to recognize the
meaning and limitations of that information.
On January 11, 1993, the ATF began an undercover operation in a
house across the road from the Branch Davidian compound. The agents
involved were given the cover of being students at a local technical
college. However, from the beginning several neighbors became suspicious
of the their activities because the agents appeared too old to attend
the college and the cars they drove were too new to belong to students.
However, even if the ``cover stories'' used by the agents had been
successful, the operations of the undercover investigation itself were
abysmal. They failed to keep accurate logs and failed to turn over the
available logs to raid planners. However, it should be noted that the
agents were given little if any meaningful direction from the raid
planners (Sarabyn and Chojnacki). Therefore, without adequate guidance
from their superiors, the agents were almost destined to fail. Although
Agent Rodrigues obtained a good deal of relevant and reliable
information about Koresh and the Davidians, those agents charged with
the responsibility of surveillance were poorly served by raid planners
Sarabyn and Chojanacki.
Because of this inadequate supervision, the surveillance operation
was not able to determine the frequency of Koresh's departures from the
compound, the routine activities within the compound or other
information that might have been useful in deciding the optimal time,
place and manner to effect service of the warrants.
However, based on the scant information possessed at the time, the
agents concluded that such an arrest was not a viable alternative. They
knew that Koresh's infrequent departures from the compound were
unpredictable. A social worker who had visited the compound to
investigate the health and safety of children present, had informed the
case agent that she thought Koresh did not leave the compound very
often. On February 17, Koresh told the undercover agent that he did not
often leave the compound. Further, it should be noted that after April
19, all reports of Koresh having been seen off the compound were
thoroughly investigated by the Treasury Review. The reviewers were able
to document only isolated trips off the compound, most occurring long
before the time of the raid.
Additionally, it should be noted that prior to the hearing, majority
subcommittee staff spent several days in Waco to gather facts and
interview prospective witnesses. It should be noted that in hearings
that lasted 10 days and had over 90 witnesses, no witnesses who were not
members of the Branch Davidians or lawyers for the Branch Davidians were
produced to testify supporting the majority's present contention that
Koresh left the compound with sufficient frequency to affect an arrest
away from the premises.
As noted in the Treasury report and by several witnesses, a siege
was rejected because of a belief that any protracted encounter with a
heavily armed and philosophically isolated and insular group would not
be likely to produce an optimal result. The majority incorrectly
concludes that the dynamic entry approach was prematurely abandoned. The
decision to pursue a dynamic entry was made during a meeting that took
place between January 27-29, 1993 after surveillance and undercover
operations had begun. Prior to that meeting a siege option was under
active consideration as was the possibility of luring Koresh off the
compound. The Treasury report noted that the surveillance operations
could have been better coordinated and intelligence better utilized in
making this tactical decision. While the Treasury report concluded that
the process used to decide that a dynamic entry should be undertaken was
flawed, a siege option presented its own risks of failure. Four of the
five independent reviewers who addressed the issue found that the
dynamic entry plan could have been successful if surprise had not been
lost.
VIII. Treasury Department Officials Should Have Taken a More Active Role
in Raid Planning
We disagree with the majority's assertion that officials at the
Treasury Department should have taken a more active role in pre-raid
planning. The majority seems to forget that prior to President Clinton
and Secretary Bentsen's order, the Bureau of Alcohol, Tobacco and
Firearms exercised independence in planning and implementation of
enforcement actions. Prior to this failed raid, there was no practice,
history or reason to believe that additional oversight was necessary.
The Treasury Secretary is responsible for the actions of over
165,000 people and numerous bureaus and offices. During his first month
in office, Secretary Bentsen relied on the Department's existing
organizational and operational structure. This structure had been used
by the previous Republican and Democratic administrations. In the
enforcement area, this organizational structure included a chain of
command from the law enforcement bureau head through the Assistant
Secretary of the Treasury for Enforcement to the Deputy Secretary and
then to the Secretary of the Treasury. This structure placed
responsibility on the law enforcement bureau head for bringing
significant matters to the attention of his or her immediate supervisor.
It is unfair, inaccurate and irresponsible to castigate Secretary
Bentsen for the adoption of an organizational structure and operational
approach that had been in place for years.
Under the structure that existed at that time, then ATF Director
Steven Higgins' immediate supervisor was Deputy Assistant Secretary John
Simpson, a career civil servant who had served at Treasury for many
years. Mr. Simpson was carrying out the duties of the Assistant
Secretary for Enforcement, pending the confirmation of an Assistant
Secretary for Enforcement designee Ronald Noble. Having been ATF's
Director for approximately 10 years, Mr. Higgins was very familiar with
the reporting process.
The suggestion that a meeting between Secretary Bentsen and ATF
Director Higgins would have led to earlier notification of ATF's planned
raid of the Branch Davidian compound is pure conjecture. In fact
Director Higgins did not tell his immediate supervisor in Treasury of
the planned raid until 2 days before its planned execution.
IX. The Raid Should Have Been Aborted When the Undercover Agent Reported
That Koresh Knew the Raid Was About to Occur
The majority report errs in concluding that Treasury officials
failed to clearly communicate the conditions under which the raid was to
be aborted. In fact, the Treasury Report and ATF Director Higgins'
testimony before Congress on several occasions made it clear that the
ATF knew it was supposed to call off the raid if Koresh learned that the
ATF had planned a law enforcement operation against them. Director
Higgins never questioned the clarity of his message from the Treasury
Department. He testified that he told his subordinates if anything
looked unusual, the raid should be called off. Consistent with the ATF's
plan, Agent Rodrigues clearly communicated Koresh's awareness of an
impending ATF law enforcement operation to his field supervisors.
Unfortunately, Mr. Sarabyn and Chojnacki failed to heed this clearly
communicated warning. All six of the independent tactical operations
experts who analyzed the ATF's failed raid concluded that based on Mr.
Rodrigues' information, the raid commanders should have called off the
raid.
We concur with the majority's finding that despite their contrary
testimony before this committee, evidence clearly shows that Agents-in-
Charge Sarabyn and Chojnacki understood yet consciously chose to
disregard warnings by Undercover Agent Rodrigues on the morning of the
raid. Rodrigues advised Sarabyn and Chojnacki that the ATF's operations
had been compromised and the element of surprise had been lost. The most
significant mistake was the decision of the on-site raid commander to
proceed after he had been informed by an undercover agent that Koresh
was aware that a raid was about to occur. This error in judgment allowed
Koresh to have an estimated 30-45 minute preparation time prior to the
arrival of the agents. Koresh used this opportunity to arm himself and
his followers. Despite the majority's assertions to the contrary,
Treasury acknowledged in its report that the raid commander was
questioned by the Washington commanders and knew or should have known
that the raid should not have proceeded if secrecy or surprise had been
lost or compromised.
X. The FBI Negotiations and Tactical Operations Were Sometimes
Contradictory
The Department of Justice has acknowledged that there could have
been better coordination and communication between the officials
responsible for tactical decision and the negotiators. Alternating
tactics of negotiating, granting demands and then using tactical
operations such as cutting off electricity to punish Koresh for reneging
on agreements, may have allowed Koresh to increase his hold on his
followers.
In an effort to improve coordination and communication between
negotiators and tactical command in the future, the Department of
Justice has created that Critical Incident Response Group. As a part of
this team, negotiators and tactical personnel train together to
facilitate improved coordination of operations.
However, the majority's main criticism of the FBI involves its
alleged reluctance to use outside experts. This criticism is not valid.
Following the suggestions of behavioral experts, FBI negotiators
repeatedly stressed to Koresh that if he left the compound, he would
have every opportunity to spread his message to a worldwide audience,
that he would be presumed innocent of any wrongdoing with respect to the
ATF raid, and that the judicial process would provide him with an
opportunity to tell his side of the conflict. The FBI negotiated with
Koresh for 51 days. During that course of time, over 36 demands by the
Davidians were documented and granted by the FBI. Contrary to the
majority's assertion, there is no indication that FBI negotiators were
adversely affected by physical or emotional fatigue.
We disagree with the majority's assertions that on the 46th day of
the siege, the FBI should have believed the representations of Koresh's
attorney who relayed Koresh's representation that he and his followers
would leave the compound if Koresh were allowed to write his exposition
on the Seven Seals of the Biblical Book of Revelations. Early in the
siege, Koresh was allowed to speak to religious scholars concerning his
interpretation. In response to a promise to surrender, an audiotape
containing his interpretation of the First Seal was played on a radio
broadcast. However, Koresh did not surrender at that time. FBI
behavioralist Murray Miron believed that this latest attempt was merely
another stalling tactic. Therefore, based on his prior behavior and
manipulative personality, it was not unreasonable for negotiators to
conclude that Koresh would not honor this latest promise. We would note
that had Koresh been interested in surrendering to authorities, he could
have done so at any time during the 51-day siege. During the same
period, 37 of his followers surrendered and called into the compound to
inform Koresh and others that they were being treated well and had not
been hurt. Therefore, whatever compelled Koresh to remain in the
compound and prevented other followers from leaving was not something
that a deal involving Koresh's composition of the written exposition of
his religious tenets would have resolved.
XI. Law Enforcement Officers Could Benefit From Future Use of Outside
Behavioral and Psychological Experts
We disagree with the majority's assertion that the FBI should have
developed a thorough understanding of the religious tenets of the
Davidians. During the course of the negotiations, the FBI attempted this
approach and abandoned it because it became clear that the tenets were
based on Koresh's personal thoughts and rapidly changed to suit the
occasion. Therefore, this would not only have been futile but would have
pushed back the time of the service of the warrants thereby allowing
Koresh to amass even more illegal weapons.
We disagree with the majority assertion that the FBI negotiators did
not appear to recognize the potential benefit of using religious experts
in working with Koresh. We refer the majority to the Department of
Justice report which listed the opinions of independent religious
experts and FBI behavioral experts consulted during the siege. The FBI
solicited and received input from various experts in many fields
including psychology, psychiatry, psycho linguistics, religion and
theology, cult theory and negotiation techniques. Religious experts and
theologians consulted by the FBI included Dr. Philip Arnold of the
Reunion Institute; Dr. Bill Austin, chaplain, Baylor University; Jeriel
Bingham, vice president, Davidian Seventh Day Adventist Association;
Reverend Trevor Delafield, Seventh Day Adventist Church; Dr. Robert
Wallace and Dr. John Fredericks, Lighthouse Mission; Dr. Michael Haynes,
Doctor of Theology and Psychology and Dr. Glenn Hilburn, Dean,
Department of Religion, Baylor University. Additionally, the majority of
those experts concluded that Koresh was manipulative and likely to
deceive. All the experts agreed that Koresh would not leave the compound
voluntarily. Therefore the FBI negotiators tactics which focused on
Koresh as a manipulative and deceitful individual were precisely in
accord with the viewpoint of the religious experts and psychological
experts and with the experience of those negotiators who spent over 400
hours talking to Koresh and his followers.
XII. The Use of Tear Gas Was Unfortunate But Necessary
The majority report suggests that the decision to use gas was not
the only option available to compel the Branch Davidians to leave the
compound. In support of their theory that additional time would have
yielded a nonviolent surrender, the majority report points to the
release of 21 children between February 28 and March 3 as an indication
that continued negotiations would have eventually secured the release of
the remaining 80 adults and children within the compound. They argue
that other options including expansion of and continuation of the
negotiation strategy, waiting for the depletion of food and water
supplies, or waiting for Koresh to complete his written exposition on
the meaning of the Biblical Seven Seals prophesy were prematurely
rejected in an effort to end the confrontation.
However, after March 23, additional releases had not been obtained.
Koresh repeatedly reneged following the FBI's performance of agreed upon
terms. Repeatedly, Koresh would explain his decision to remain in the
compound by saying that God had not yet told him it was time to leave.
Additionally, it should be noted that the ``regular'' conditions within
the compounds were austere (no running water or plumbing) and there was
a vast supply of military style MRE's (meals-ready to eat) and an
artesian well with water storage tank housed within the compound.
Because the FBI decided not to fire any shots during the standoff,
the Davidians walked outside of the building on several occasions to
smoke cigarettes, empty chamber pots, feed chickens and gather water
from rain water runoff. Finally, the large amount of firearms and
ammunition (200,000 rounds) found within the compound, and the gathering
of other interested and potentially dangerous individuals (para-military
and Militia groups) contributed to their concern about the continued
degradation of the situation and their ability to adequately secure the
perimeter of the compound.
In fact, during the standoff two people, not people previously
affiliated with the Davidians, infiltrated the perimeter and entered the
compound. The FBI was concerned that failing to end the standoff would
allow others (particularly para-military militia groups) who had begun
to descend upon the compound to enter the perimeter. Threats posed by
gathering militia and para-military groups in the area increased
security problems and underscored the need for a quick resolution to the
situation. There was a genuine concern as to whether these groups had
gathered as observers or sought to engage in the standoff.
On April 12, the FBI presented its tear gas plan to Attorney General
Reno. Over the ensuing days, several meetings were held to debate the
tear gas plan, the properties of the gas chosen and the effects of gas
on vulnerable populations such as pregnant women and children. Between
the initial presentation of the plan on April 12 and the Attorney
General's April 17 decision to use tear gas, Reno attended no fewer than
eight meetings to discuss the tear gas option. Those meetings were
attended by military and tactical experts who briefed the Attorney
General on the advantages and disadvantages of the use of tear gas in a
barricade situation as well as the available medical and scientific
information concerning the toxicity and flammability of CS tear gas.
CS tear gas is a common riot control agent used in the United States
and Europe. The purpose of tear gas is to cause irritation of the eyes,
skin and respiratory system sufficient to encourage an individual to
leave the premises or any open area. CS is considered the least toxic
agent in the family of chemical tear gas irritants. In order to reach a
level which would be lethal to fifty per cent of the population, CS must
be in concentrations of 25-150 thousand milligrams per minute, cubed.
The CS gas used at the Davidian compound was significantly less
concentrated than the lethal level. The CS gas used was in a
concentration which would only reach 16,000 milligrams per minute
(cubed) if all of the gas used had been released at the same time, in a
single closed room and the residents of that room had been exposed
continuously for 10 minutes. At Waco, CS tear gas was released
throughout different areas of the building while openings were created
in the windows and walls. The CS gas was inserted for a total of 5
minutes over a 6-hour period. A total of twenty CS canisters were
deployed on April 19. Additionally, several commentators discuss the
fact that the wind velocity reached 35 knots during the tear gas
delivery. Therefore, given the amount of tear gas used, the presence of
high winds, building ventilation and the delivery of gas to different
areas of the compound, it is highly unlikely that anything close to the
fifty percent lethality rate was reached.
There are no documented cases in which the use of CS gas caused
death. Reports that Amnesty International linked use of the gas to
deaths of Palestinians in the occupied territories, is an extremely
biased reading of the report. Released in June 1988, the report
discussed the use of two kinds of tear gas, CS and CN. CN gas has proven
to be lethal in closed quarters. The overwhelming majority of evidence
on ill-effects of CS was anecdotal. Medical care had not been sought or
documented. Moreover, because of religious prohibitions autopsies had
not been performed. Therefore, there is no reliable scientific data
which would lead to the conclusion that CS alone was implicated in any
of the deaths. As Physicians for Human Rights found when visiting the
occupied territories ``we could not confirm the reports of deaths from
tear gas inhalations.''
The Himsworth Report, issued by the British Government, found that
there is no evidence of any special sensitivity of the elderly, children
or pregnant women. Additionally, the Himsworth Commission chronicled the
effect of CS gas exposure on one infant and found that the child
recovered rapidly after removal from the area affected by CS tear gas.
This report was supported by a report which appeared in a Medical
journal. The author not only set forth a treatment protocol for children
exposed to CS tear gas but noted that full recovery was highly likely.
Moreover, the majority report contends that the presence of CS gas
may have acted as an accelerant during the fire. That is unlikely. While
CS is combustible (it will burn if ignited, much like paper), it is not
a chemical accelerant or a flammable agent. Additionally, the method of
delivery or the compounds in which the CS particulate was contained
(methylene chloride and carbon dioxide) will not burn and will actually
inhibit fire ignition.
The original CS. insertion plan required that the tear gas be
inserted by CEV's over a course of 2 to 3 days. The theory was that the
gas insertion over several days and in different parts of the compound
would gradually render the entire compound uninhabitable. However,
within 5 minutes of the initiation of the original plan, the insertion
of tear gas was dramatically escalated.
The original gas insertion plan provided that in the event that the
CEV's or others were fired upon during the insertion of gas, that the
insertion would be escalated. The plan vested authority with the SAC
Jamar to make the escalation decision. Therefore, when reports of
shooting coming from the compound were confirmed and it became clear
that the CEV's were being fired upon by the Davidians, Jamar decided to
escalate insertion of the tear gas delivery schedule.
We agree with the majority report that it should have been obvious
to all concerned that the insertion of CS tear gas would have prompted
Koresh to order the vehicles fired upon and that this would have
resulted in the acceleration of tear gas insertion. However, the
majority fails to recognize that if the vehicles were fired upon, the
parties at risk would be the FBI. Following the conclusion of the
insertion of tear gas, the building would be uninhabitable and the
occupants would have evacuated. Therefore, it seems that this
underscores the FBI's determination to compel the occupants to leave
without any loss of life inside the compound, despite potential harm to
themselves.
XIII. White House Officials Were Informed But Not Involved in the
Decision to Use Tear Gas
White House officials were informed but not consulted about the use
of tear gas.
On April 18, Web Hubbell, Justice Department White House Liaison,
and Attorney General Reno informed the President about the plan to
gradually insert tear gas into the compound over a 2 to 3 day period in
an effort to render the compound uninhabitable and compel the occupants
to leave. During that conversation, Reno told the President that April
19 was not envisioned as ``D-Day'' and that the use of the tear gas
would not be the beginning of an assault on the compound.
Critics maintain that the White House pressured Reno to end the
standoff by any means necessary. They contend that this directive led to
the lack of clear decisionmaking and a less than objective examination
of the potential hazards concerning the use of CS gas. The majority
report implies that had expediency not been a factor, Reno would have
continued to wait for the Davidians to surrender. This contention is
pure speculation that is not supported by the facts. As noted earlier,
Attorney General Reno held eight meetings to discuss various aspects of
the tear gas plan with tear gas experts. If speed had been her concern,
she would not have consulted with various experts and waited a week
between the first proposal of the plan and its implementation.
XIV. The Branch Davidians Started the Fire and Chose to Remain Within
the Compound While It Burned
On April 19, approximately 20 minutes after the last tear gas
insertion, the Davidian compound erupted in flames. The first indication
of fire was seen and noted at 12:07 p.m. By 12:11 p.m., the entire
compound was substantially involved.
There is no doubt that the Branch Davidians started the fire. We
disagree with the conclusion of the majority report which states that
the evidence concerning the origin of the fire is not dispositive. The
majority report ignores evidence contained in the arson report which
proved three separate ignition points within the compound and
conclusively found that chemical accelerants were placed throughout the
compound. Additionally, there was eyewitness testimony as well as film
footage which chronicled the rapid spreading of the blaze. Moreover, the
clothes of surviving Davidians who escaped the compound were laced with
gasoline and other flammable materials. Finally, and most poignantly,
several surviving Davidians admitted that those within the compound had
started the blaze. These statements are supported by recorded statements
in which voices are heard asking about the location and timing of fuel
pouring and lighting activities. Additionally, it should be noted that
an examination of the vehicles involved inserting tear gas was
conducted. These vehicles did not have flame throwing equipment and were
not of the type that could have been equipped with flamethrowing
equipment. All evidence clearly indicates that the fire which destroyed
the Branch Davidian compound on April 19 was ignited by individuals
inside the compound.
It should be noted that the fire department was called after the
blaze began. However, they did not attempt to put out the fire because
during the blaze gun shots were heard coming from and within the
compound. The safety of any firefighter who approached the compound
could not be assured. Therefore, the FBI determined that the local
firefighters should not be allowed to approach the compound. However, it
should be noted that after the fire began nine survivors exited the
compound.
There has been some speculation that the tear gas used may have
contributed to the fire. The CS tear gas did not act as an accelerant
for the fire. CS is a powdery particulate. When used in a tear gas
canister or other tear gas delivery system, CS particulate is suspended
in methylchloride and carbon dioxide. Neither CS particulate,
methylchloride or carbon dioxide are flammable. They actually inhibit
the outbreak of fire. We agree with the majority's conclusion that the
use of CS tear gas prior was not a direct, proximate cause or
contributing factor to the rapid ignition and expansion of the blaze.
The audiotape and forensic evidence clearly indicate that the rapid
ignition and spread of the blaze was due to the use of chemical
accelerants (including gasoline, kerosene and camp fuel oil) distributed
throughout the compound by individuals within the compound.
Additionally, the materials used in the construction of the building
itself (largely plywood) in conjunction with storage of materials such
as hay and propane gas containers and high winds combined to
significantly contribute to the rapid combustion of the building.
XV. Recommendations
Finally, the report makes 17 recommendations that are largely
duplicative of recommendations made by the extensive internal reviews
undertaken by the Department of Treasury and the Department of Justice.
Those recommendations and our responses are as follows:
1. Congress should conduct further oversight of the Bureau of
Alcohol, Tobacco and Firearms and jurisdiction should be transferred to
the Department of Justice. While additional oversight is always proper,
it should be noted that the proposal to transfer jurisdiction of ATF
first surfaced in the Carter administration and has been rejected
several times. Rejections have been based on concerns about placing
total enforcement of the firearms laws in one agency. A separation of
investigative and prosecutorial functions in separate agencies maintains
an important check and balance system.
2. If false statements were made in the affidavit filed in support
of the search and arrest warrants, criminal charges should be pursued.
There is absolutely no evidence to suggest that the agent in question
made false statements. This recommendation is an example of a
willingness to disbelieve Federal law enforcement personnel which is
manifest throughout this report.
3. Federal law enforcement should verify the credibility and
timeliness of the information used in obtaining warrants. An assistant
U.S. attorney and a Federal Magistrate reviewed the affidavit and found
the information sufficiently fresh to issue warrants. Additionally, in
finding that probable cause existed, the majority report implicitly
agrees with the determination that the information was not stale.
4. The ATF should revise it National Response Plan to ensure that
its best qualified agents are placed in command and control positions.
The Treasury Department made this finding in its internal review. The
ATF has implemented procedures to comply.
5. Senior officials at ATF should assert greater command and control
over significant operations. The Treasury Department made this finding
it its internal review. The ATF has implemented procedures to comply.
6. The ATF should be constrained from independently investigating
drug-related crimes. This recommendation may lack administrative and
operational feasibility.
7. Congress should consider applying the Posse Comitatus Act to the
National Guard with respect to situations where a Federal law
enforcement entity serves as the lead agency. This recommendation may
lack administrative and operational feasibility and may unduly hamper
the State's ability to use the guard in domestic law enforcement
operations (e.g. drug trafficking patrols, civil disturbance).
8. The Department of Defense should streamline the approval process
for military support so that drug nexus controversies are avoided in the
future. This recommendation may deprive the Department of Defense of the
operational flexibility necessary to provide assistance. The inability
to pass a ``litmus test'' should not preclude the provision of otherwise
justifiable assistance.
9. The GAO should audit the military assistance provided to the ATF
and to the FBI in connection with their law enforcement activities
toward the Branch Davidians. It should be noted that Members of Congress
can request GAO audits on any topic at anytime.
10. The GAO should investigate the activities of Operation Alliance
in light of the Waco incident. It should be noted that Members of
Congress can request GAO audits on any topic at anytime.
11. Federal law enforcement agencies should redesign their
negotiation policies and training to avoid the influence of physical and
emotional fatigue on course of future negotiations. The FBI has doubled
the size of the Hostage Rescue Team.
12. Federal law enforcement agencies should take steps to foster
greater understanding of the target under investigation. The Department
of Justice and the Department of the Treasury currently consult a wide
range of outside experts on various topics.
13. Federal law enforcement agencies should implement changes in
operation procedures and training to provide better leadership in future
negotiations. Recent successful negotiations with the Viper Militia and
the Freemen indicate implementation of successful negotiation policies.
14. Federal law enforcement agencies should revise policies and
training to increase the willingness of their agents to consider the
advice of outside experts. Recent successful negotiations with the Viper
Militia and the Freemen indicate policies evincing a willingness to
employ the advice of outside experts.
15. Federal law enforcement agencies should revise policies and
training to encourage the acceptance of outside law enforcement
assistance, where possible. Federal law enforcement officers currently
network within and among officers from Federal, State and local law
enforcement entities.
16. The FBI should expand the size of the hostage rescue team. The
HRT has been doubled in the 3 years since the events at Waco.
17. The Government should further study and analyze the effects of
CS tear gas on children, persons with respiratory problems, pregnant
women and the elderly. Numerous studies have concluded that there is no
increased toxicity or adverse effect when these populations are exposed
to CS tear gas. Currently, data is gathered by exposing new armed forces
recruits to tear gas. It seems that there would be a problem in
conducting tests on human subjects within the population categories
suggested by the majority report. Although traditional tests with
control and noncontrol groups would not be possible, persons should be
monitored and data collected whenever exposure occurs.
Conclusion
The events at Waco were a tragedy. However, the majority
investigation, hearing and report add nothing new to the understanding
of the tragedy or the prevention of future events similar to Waco.
We live in dangerous times where the threat of domestic terrorism is
real. The bombing of the Alfred P. Murrah Federal Building in Oklahoma,
more than any other single event, stands as a testament to the possible
impact that a few people with illegal weapons and destructive purposes
can have on a nation. Groups or individuals bent on undermining the
constitutional democracy of this country are a clear and present danger
to the rights, liberties and freedoms that every American enjoys.
In such troubling times, it seems irresponsible for the majority
report to engage in speculation and unsupported theories and unproven
allegations against Federal law enforcement agencies and officers. The
agencies involved should be commended for their extensive and unyielding
investigations as well as their quick and decisive efforts to take
corrective actions to ensure that there is no reoccurrence of this type
of event. It appears that the successful handling of events such as the
``Freeman'' standoff in Montana and the Viper Militia arrests in Arizona
are testament to the determination of these agencies to learn from
previous mistakes.
Hon. Cardiss Collins.
Hon. Karen L. Thurman.
Hon. Henry A. Waxman.
Hon. Tom Lantos.
Hon. Robert E. Wise, Jr.
Hon. Major R. Owens.
Hon. Edolphus Towns.
Hon. Louise M. Slaughter.
Hon. Paul E. Kanjorski.
Hon. Carolyn B. Maloney.
Hon. Thomas M. Barrett.
Hon. Barbara-Rose Collins.
Hon. Eleanor Holmes Norton.
Hon. James P. Moran.
Hon. Carrie P. Meek.
Hon. Chaka Fattah.
Hon. Elijah E. Cummings.