Union Calendar No. 599

106th Congress, 2d Session – – – – – – – – – – House Report 106–1037

THE TRAGEDY AT WACO: NEW EVIDENCE

EXAMINED

ELEVENTH REPORT

BY THE

COMMITTEE ON GOVERNMENT REFORM

Available via the World Wide Web: http://www.gpo.gov/congress/house

http://www.house.gov/reform

DECEMBER 28, 2000.—Committed to the Committee of the Whole House

on the State of the Union and ordered to be printed

THE TRAGEDY AT WACO: NEW EVIDENCE EXAMINED

U.S. GOVERNMENT PRINTING OFFICE

67–357 WASHINGTON : 2000

Union Calendar No. 599

106th Congress, 2d Session –––––––––– House Report 106–1037

THE TRAGEDY AT WACO: NEW EVIDENCE

EXAMINED

ELEVENTH REPORT

BY THE

COMMITTEE ON GOVERNMENT REFORM

Available via the World Wide Web: http://www.gpo.gov/congress/house

http://www.house.gov/reform

DECEMBER 28, 2000.—Committed to the Committee of the Whole House

on the State of the Union and ordered to be printed

(II)

COMMITTEE ON GOVERNMENT REFORM

DAN BURTON, Indiana, Chairman

BENJAMIN A. GILMAN, New York

CONSTANCE A. MORELLA, Maryland

CHRISTOPHER SHAYS, Connecticut

ILEANA ROS-LEHTINEN, Florida

JOHN M. MCHUGH, New York

STEPHEN HORN, California

JOHN L. MICA, Florida

THOMAS M. DAVIS III, Virginia

DAVID M. MCINTOSH, Indiana

MARK E. SOUDER, Indiana

JOE SCARBOROUGH, Florida

STEVEN C. LATOURETTE, Ohio

MARSHALL ‘‘MARK’’ SANFORD, South

Carolina

BOB BARR, Georgia

DAN MILLER, Florida

ASA HUTCHINSON, Arkansas

LEE TERRY, Nebraska

JUDY BIGGERT, Illinois

GREG WALDEN, Oregon

DOUG OSE, California

PAUL RYAN, Wisconsin

HELEN CHENOWETH-HAGE, Idaho

DAVID VITTER, Louisiana

HENRY A. WAXMAN, California

TOM LANTOS, California

ROBERT E. WISE, JR., West Virginia

MAJOR R. OWENS, New York

EDOLPHUS TOWNS, New York

PAUL E. KANJORSKI, Pennsylvania

PATSY T. MINK, Hawaii

CAROLYN B. MALONEY, New York

ELEANOR HOLMES NORTON, District of

Columbia

CHAKA FATTAH, Pennsylvania

ELIJAH E. CUMMINGS, Maryland

DENNIS J. KUCINICH, Ohio

ROD R. BLAGOJEVICH, Illinois

DANNY K. DAVIS, Illinois

JOHN F. TIERNEY, Massachusetts

JIM TURNER, Texas

THOMAS H. ALLEN, Maine

HAROLD E. FORD, JR., Tennessee

JANICE D. SCHAKOWSKY, Illinois

———

BERNARD SANDERS, Vermont

(Independent)

KEVIN BINGER, Staff Director

JAMES C. WILSON, Chief Counsel

THOMAS G. BOWMAN, Senior Counsel

MARC CHRETIEN, Senior Counsel

ANDRE D. HOLLIS, Senior Counsel

JOHN F. CALLENDER, JR., Counsel

ROBERT A. BRIGGS, Clerk

PHILIP SCHILIRO, Minority Staff Director

PHILIP S. BARNETT, Miniority Chief Counsel

MICHAEL J. YEAGER, Minority Senior Oversight Counsel

JULIAN A. HAYWOOD, Minority Counsel

(III)

LETTER OF TRANSMITTAL

HOUSE OF REPRESENTATIVES, Washington, DC, December 28, 2000.

Hon. J. DENNIS HASTERT,

Speaker of the House of Representatives,

Washington, DC.

DEAR MR. SPEAKER: By direction of the Committee on Government Reform, I submit herewith the committee’s eleventh report to

the 106th Congress.

DAN BURTON,

Chairman.

(V)

C O N T E N T S

Page

I. Why the Committee Conducted This Investigation ....................................... 1

II. How the Committee Conducted This Investigation ....................................... 3

III. Findings ............................................................................................................. 4

A. The Events of April 19, 1993 .......................................................... 4

B. Failure To Disclose the Use of Pyrotechnic Tear Gas Rounds ..... 5

C. The Justice Department Internal Review ...................................... 6

D. The Role of the Military .................................................................. 6

IV. Further Analysis of the Events of April 19, 1993 .......................................... 7

A. Development of the Operational Plan ............................................ 7

B. The Use of Pyrotechnic Devices on April 19, 1993 ........................ 11

C. Allegations of Government Gunfire on April 19, 1993 .................. 16

V. Actions and Omissions of the Department of Justice Since 1993 ................ 23

A. Introduction ...................................................................................... 23

B. What the American People Were Told Between 1993 and 1999 .. 26

C. The Attorney General Takes Office in Mid-Crisis ......................... 37

D. April 16, 1993—Attorney General Reno Rejects the FBI’s Proposed Operations Plan and Then Reverses her Decision ................ 39

E. April 19, 1993—Seasoned FBI Officials Within Sight of Attorney General Reno Failed To Warn Her that the FBI’s Actions

at Waco Deviated From the Operations Plan That She Approved 43

F. The Department of Justice’s Failure To Conduct a ‘‘Thorough

and Vigorous Investigation’’ in 1993 as Ordered ............................. 46

G. Conclusions and Recommendations ................................................ 59

VI. Department of Defense Support ...................................................................... 61

A. Introduction ...................................................................................... 61

B. Was the Posse Comitatus Act Violated in Providing DOD Support? .................................................................................................... 63

C. The General Accounting Office Report ........................................... 75

D. Inaccurate Accounting of Military Personnel Support Within

Department of Justice Internal Review ........................................... 85

E. The Department of Defense Did Not Conduct a Review and

Assessment of Military Assistance Provided ................................... 87

F. Recommendations ............................................................................. 89

VIEWS

Minority views of Hon. Henry A. Waxman, Hon. Tom Lantos, Hon. Major

R. Owens, Hon. Edolphus Towns, Hon. Paul E. Kanjorski, Hon. Carolyn

B. Maloney, Hon. Eleanor Holmes Norton, Hon. Chaka Fattah, Hon. Elijah

E. Cummings, Hon. Dennis J. Kucinich, Hon. Rod R. Blagojevich, Hon.

Danny K. Davis, Hon. John F. Tierney, Hon. Jim Turner, and Hon. Harold

E. Ford, Jr. ........................................................................................................... 1471

1 ‘‘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., 163 (1995). 2 H. Rept. No. 104–749.

Union Calendar No. 599

106TH CONGRESS REPORT " ! HOUSE OF REPRESENTATIVES 2d Session 106–1037

THE TRAGEDY AT WACO: NEW EVIDENCE EXAMINED

DECEMBER 28, 2000.—Committed to the Committee of the Whole House on the State

of the Union and ordered to be printed

Mr. BURTON, from the Committee on Government Reform

submitted the following

ELEVENTH REPORT

On October 19, 2000, the Committee on Government Reform approved and adopted a report entitled, ‘‘The Tragedy at Waco: New

Evidence Examined.’’ The chairman was directed to transmit a

copy to the Speaker of the House.

The Committee on Government Reform has conducted a yearlong investigation of the actions of the Federal Bureau of Investigation, the Department of Justice, and the Department of Defense

with regard to the standoff which occurred at the Mt. Carmel Center outside Waco, TX, from February 28, 1993, through April 19,

1993, as well as actions taken after the tragic end of the standoff.

I. WHY THE COMMITTEE CONDUCTED THIS INVESTIGATION

From July 26 through August 1, 1995, this committee’s Subcommittee on National Security, International Affairs, and Criminal Justice and the Committee on the Judiciary’s Subcommittee on

Crime held joint hearings on all aspects of the Federal Government’s role in the 1993 tragedy at the Mt. Carmel Center, a religious community about 10 miles northeast of Waco, TX.1 On August 2, 1996, the committees released a joint report.2 Major findings of the report included:

• The BATF’s investigation of the Branch Davidians was incompetent.

2

3 Id. at 4.

4 Id. at 68.

5 Id. at 69.

6 ‘‘Events Surrounding the Branch Davidian Cult Standoff in Waco, Texas,’’ hearing before the

Committee on the Judiciary, 103d Cong., 16 (Apr. 28, 1993) (statement of Attorney General

Janet Reno). 7 ‘‘Events Surrounding the Branch Davidian Cult Standoff in Waco, Texas,’’ hearing before the

Committee on the Judiciary, 103d Cong., 85 (Apr. 28, 1993) (statement of William Sessions,

former FBI Director). 8McNulty was a producer of ‘‘Waco: The Rules of Engagement’’ (Fifth Estate Productions,

1997) and ‘‘Waco: A New Revelation’’ (MGA Films, 1999).

• The affidavit filed in support of the ATF’s arrest and search warrants included knowingly false statements.

• The BATF fraudulently claimed that the Branch Davidians were

producing methamphetamine, in order to obtain non-reimbursable and prompt military support.

• The BATF’s military-style raid was deeply flawed, in concept, in

planning, and in execution.

• The decision to end the standoff on April 19, 1993, was ‘‘premature, wrong, and highly irresponsible.’’ 3 The possibility of a

negotiated end should have been further pursued.

• President Clinton should have accepted Attorney General Reno’s

resignation.

• The committees found no evidence that the FBI discharged firearms or set the fires, either intentionally or inadvertently, on

April 19, 1993.

• The actions of the military, including the National Guard, did

not violate the Posse Comitatus Act.

It was the committees’ understanding that on April 19, 1993, the

FBI’s Hostage Rescue Team used only two means to insert CS gas

into the Branch Davidians’ residence: spraying devices attached to

the booms of M–728 Combat Engineering Vehicles 4 and plastic,

non-pyrotechnic ferret rounds fired from 40mm M–79 grenade

launchers.5 This understanding was consistent with the public

statements of Attorney General Janet Reno in 1993 and with the

position of the Department of Justice until 1999.

Attorney General Reno, along with other Department of Justice

and FBI officials, had been emphatic in their public statements

about the means by which the HRT inserted gas into the Branch

Davidian residence. Before the House Committee on the Judiciary,

on April 28, 1993, Reno stated in a prepared statement that, ‘‘I

wanted, and received assurances that the gas and its means of delivery were not pyrotechnic’’ 6 At the same hearing, FBI Director

William Sessions’ prepared testimony stated that ‘‘[o]ne critical factor [in formulating the plan] was that CS gas could be used without pyrotechnics. It will not start or contribute to a fire.’’ 7

Sometime in 1998, an independent filmmaker, Michael McNulty,8 obtained permission to review the physical evidence collected

at the scene of the tragedy, which was then in the custody of the

Texas Rangers Division of the Texas Department of Public Safety.

McNulty found pictures taken by the Texas Rangers during the

week after the April 19, 1993, fire which portrayed at least one expended M–651 projectile, a military CS gas projectile that uses pyVerDate 11-MAY-2000 10:08 Jan 03, 2001 Jkt 000000 PO 00000 Frm 00012 Fmt 6659 Sfmt 6601 C:\REPORTS\67357.TXT HGOVREF1 PsN: HGOVREF1
3

9 ‘‘Texas Rangers Division of the Texas Department of Public Safety, Investigative Report

Branch Davidian Evidence’’ (September 1999) (exhibit 1). 10Lee Hancock, ‘‘DPS Head Raises Questions About Davidian Fire,’’ the Dallas Morning News,

July 28, 1999 (exhibit 2). 11Lee Hancock, ‘‘2 Pyrotechnic Devices Fired at Davidians, Ex-official Says,’’ the Dallas Morning News, Aug. 24, 1999 at A1 (exhibit 3). 12 ‘‘U.S. General Accounting Office, Department of Defense: Military Assistance Provided at

the Branch Davidian Incident’’ (GAO/NSIAD/OSI–99–133, Aug. 26, 1999) (exhibit 4).

rotechnic means to expel gas. On June 14, 1999, Senior Captain

Bruce Casteel, Chief of the Texas Rangers, directed Ranger Sergeant Joey Gordon to review the evidence, particularly any evidence that pyrotechnic rounds may have been used.9 The chairman

of the Texas Public Safety Commission, James B. Francis, first

raised questions in public about the use of pyrotechnic rounds to

the Dallas Morning News in an article published July 28, 1999.10

A retired senior FBI agent, Danny Coulson (who also founded the

FBI Hostage Rescue Team) confirmed to the Dallas Morning News

on August 24, 1999, that pyrotechnic rounds had been used.11 Committee staff also traveled to Texas, interviewed Texas Rangers, and

examined the physical evidence in attempt to ascertain whether

the pyrotechnic rounds had been used.

In addition to the newly-revealed possibility that FBI use of pyrotechnic rounds may have contributed to the fire, allegations surfaced regarding the active participation of the military in the April

19, 1993, assault and regarding the possibility that videotapes

filmed on April 19, 1993, using aerial Forward-Looking Infrared

(FLIR) technology, depicted government agents firing weapons.

Also, a report issued by the General Accounting Office on August

26, 1999, called into question certain findings of the 1996 committee report with respect to the military’s support of the Bureau of

Alcohol, Tobacco and Firearms prior to their February 28, 1993,

raid.12

The 1996 joint report concluded that the BATF misled the Defense Department as to the existence of a drug nexus in order to

obtain non-reimbursable support in a prompt manner from the Defense Department. 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 committee’s investigation was limited to resolving these new

allegations, thereby building on, but not replacing, the report

issued in 1996. We have found no reason to revise the major findings of the 1996 report.

II. HOW THE COMMITTEE CONDUCTED THIS INVESTIGATION

In September 1999, the committee issued document subpoenas to

the Department of Justice, the Department of Defense, and the

White House. Over the course of the committee’s investigation,

committee investigators reviewed and analyzed over 1 million

pages of documents. Committee attorneys interviewed 20 representative members of the FBI Hostage Rescue Team who were

involved in the standoff, along with military personnel, numerous

senior Justice Department and FBI officials, and surviving Branch

Davidians.

4

13David A. Vise and Richard Leiby, ‘‘Expert Concludes FBI Fired Shots During Waco Siege,’’ the Washington Post, Oct. 6, 1999 at A6 (exhibit 5). 14 Id. 15The final version of the list Carlos Ghigliotty provided the committee is attached as exhibit

6. 16 ‘‘Office of the Chief Medical Examiner, State of Maryland, Post Mortem Examiantion Report

No. 00–2354–027 on Carlos Ghigliotty’’ (Apr. 28, 2000) (exhibit 7 on file with the committee). 17Donald S. Frankel, Photon Research Associates, ‘‘Assessment of Waco, Texas FLIR Videotape’’ (Sept. 11, 2000) (exhibit 8).

In September 1999, the committee retained a FLIR analyst, Carlos Ghigliotty, to analyze flashes that appeared on the FLIR tapes

taken on April 19, 1993, that were alleged to be gunfire. On October 6, 1999, the Washington Post published an article in which

Ghigliotty was quoted stating that he ‘‘conclude[d] that the FBI

fired shots on that day.’’ 13 According to the article, Ghigliotty’s conclusion was based on his review of both visual-range and FLIR videotapes.14 On October 12, 1999, Ghigliotty examined the original

FLIR tapes at an FBI lab and supervised the creation of first generation copies. Beginning in December 1999, Ghigliotty prepared a

list of all of the questionable thermal flashes he detected on the

four FLIR tapes taken on April 19, 1993.15 Ghigliotty died in the

spring of 2000 without having submitted to the committee a scientific report on the flashes. The Maryland Medical Examiner reported that his death was caused by cardiac arrhythmia and atherosclerotic cardiovascular disease.16

In December 1999, the committee retained a second FLIR analyst, Dr. Don Frankel of Photon Research Associates, Inc. On September 11, 2000, Frankel submitted a report to the committee concluding that the flashes analyzed by him on behalf of the committee do not depict gunfire.17 His report is discussed in detail in Section IV of this report.

III. FINDINGS

The committee has reached the following conclusions as a result

of its investigation:

A. THE EVENTS OF APRIL 19, 1993

• Aerial Forward-Looking Infrared videos filmed on April 19, 1993,

include flashes around the Mt. Carmel Center that at first blush

resemble muzzle blasts. Careful scientific analysis of the flashes

does not, however, appear to support allegations that these

flashes are the result of gunfire. Analysts who submitted reports

to both this committee and the Office of Special Counsel reached

similar conclusions: that the flashes they were asked to examine

appeared to be solar or other thermal reflections emanating from

debris. However, the analyst retained by this committee reported

that an overhead FLIR camera of the type used by the FBI on

April 19, 1993, would not record every muzzle flash occurring

within its field of view. Therefore, while the flashes that have

generated such controversy do not appear to represent gunshots,

it is within the range of possibility that gunshots may have occurred that were not captured by the FLIR camera. This conclusion is bolstered by the March 21, 2000, FLIR reenactment performed at Ft. Hood, TX.

5

18The FBI designated the front of the Center, which faced southwest toward the Double EE

Ranch Road, the ‘‘White side,’’ the side of the Center facing roughly southeast toward Elk Road

the ‘‘Red side,’’ the side of the Center facing roughly northwest toward the Perry Ranch and

beyond towards Old Mexia Road the ‘‘Green side,’’ and the rear of the Center the ‘‘Black side.’’ These designations are used throughout this report.

• Every FBI agent interviewed by the committee has denied discharging any weapons (other than for the delivery of CS gas) on

April 19, 1993, or knowing of any gunfire from government

sources. This committee has uncovered no evidence to contradict

these claims.

• There is no evidence that HRT snipers stationed at a house (designated the Sierra One sniper position) across the Double EE

Ranch Road from the compound fired shots on April 19, 1993.

Shell casings recovered at the house by the Texas Rangers have

been tested by the Office of Special Counsel and matched weapons used by the Bureau of Alcohol, Tobacco and Firearms on February 28, 1993.

• The operations plan approved by Attorney General Janet Reno

called for a gradual, section-by-section, insertion of CS gas over

the course of 2 days, followed by ‘‘deconstruction’’ of the building

if the Branch Davidians had not surrendered after 48 hours.

Nonetheless, on the morning of April 19, 1993, the HRT punched

large holes in the walls of the building, drove M–728 Combat Engineering Vehicles deep into the building, and destroyed one-half

of the gymnasium on the Black side of the building.

• At approximately 8 a.m. on April 19, 1993, HRT member David

Corderman, after obtaining authorization from HRT commander

Richard Rogers, fired either two or three pyrotechnic M–651

rounds in an attempt to insert gas in an underground tornado

shelter on the Green side of the Center.18 Corderman had fired

non-pyrotechnic ferret rounds at the shelter’s tarpaper and plywood roof, but they had failed to penetrate it. Although HRT

leadership was aware of the possibility that HRT personnel

might need to use M–651 rounds, they failed to include the contingent use of M–651 rounds in the operations plan they sent for

approval to the Attorney General. They also failed on April 19,

1993, to obtain authorization for this deviation from higher up

the chain of command.

• A Texas Department of Public Safety photographer took pictures

of an expended M–651 projectile during the crime scene investigation after the fire. The projectile was never logged into evidence by the Texas Rangers or FBI, and numerous searches have

failed to locate this expended projectile.

B. FAILURE TO DISCLOSE THE USE OF PYROTECHNIC TEAR GAS

ROUNDS

• Department of Justice attorneys William ‘‘Ray’’ Jahn, LeRoy

Jahn, and William Johnston, who were responsible for prosecuting the surviving Davidians, learned in 1993 that HRT personnel

had sought and received approval to fire the M–651s. They did

not disclose these facts to the criminal defendants, to the Congress in 1995, or by her account, to Justice Department civil trial

defense attorney Marie Hagen. The Jahns and Johnston arguably

6

had a legal and ethical duty to disclose these facts. Had they

done so, the considerable time and resources that have been devoted to uncovering these facts now would not have been expended.

• Former HRT Commander Richard Rogers approved the use of pyrotechnic M–651 rounds on April 19, 1993. He sat silently behind

Attorney General Reno and former FBI Director William Sessions during the 1993 House Judiciary Committee hearings as

they stated under oath that no pyrotechnic device had been used

by FBI personnel on April 19, 1993. Rogers claims that he was

distracted at the time.

C. THE JUSTICE DEPARTMENT INTERNAL REVIEW

• Attorney General Reno failed to ensure that the ‘‘vigorous and

thorough investigation’’ ordered by the President and promised

by Reno occurred. The Scruggs investigation was negligent and

was improperly rushed to its conclusion solely for political purposes. A thorough investigation in 1993 would have saved time

and resources later incurred to discover the truth.

• Had Scruggs and his colleagues conducted a ‘‘vigorous and thorough investigation,’’ they would have discovered the truth regarding: (a) the use of the pyrotechnic M–651 rounds; (b) the role

of active duty Army special operations personnel during the 51–

day standoff; and (c) FBI Special Agent Riley’s statement regarding gunfire from an HRT sniper position.

• Pressure from senior Justice Department officials, including

then-Deputy Attorney General Phil Heymann, caused the

Scruggs team to rush to conclude their investigation and to publish their report, thus failing to uncover and disclose facts which

could have fully accounted for the allegations made in the civil

trial and disclosed in the fall of 1999.

• All of the actions taken by the Justice Department were consistent with an organization that was not eager to learn the full

truth about what happened on April 19, 1993. This is made clear

by the fact that the original FLIR tapes made on that day sat

unanalyzed in an FBI office for 6 years.

• The committee recommends that in the case of future tragedies

of the scale and importance of Waco, an outside and independent

investigation should be commissioned to preclude the kind of

negligence that occurred in 1993 and to obviate the need for subsequent congressional and other investigations.

D. THE ROLE OF THE MILITARY

• The committee uncovered no evidence that any member of the

armed services present at Waco, including the National Guard,

violated the Posse Comitatus Act. Representatives from the U.S.

Special Operations Command were present, but the available evidence indicates that they acted only as observers and technicians.

• Relations between civilian officials and the military with regard

to Waco were characterized by disregard of the Posse Comitatus

7

19 H. Rept. No. 104–749. 20 Interview with Richard Rogers, former Assistant Special Agent in Charge and Commander,

HRT, FBI, in Phoenix, AZ (Aug. 9, 2000). In 1993, the SAC of the FBI Field Office within which

a critical incident occurred was in overall command of the incident. In 1995, the FBI created

the Critical Incident Response Group, which assumed responsibility for management of critical

incidents.

Act on the part of the civilians, and by diligence on the part of

the military. Two senior Army officers were asked to evaluate

the FBI’s proposed operations plan for April 19, and consistently

refused to do so, as such support would have made them direct

participants in planning the arrest of the Branch Davidians, and

would have therefore violated the Posse Comitatus Act.

• Two senior Army officers were asked to review the FBI’s proposed operations plan and attend a briefing with Attorney General Reno on April 14, 1993. While Attorney General Reno has

stated that these officers told her the FBI’s plan was ‘‘excellent’’

in one case, and ‘‘sound’’ in another, both officers have clearly

stated they were careful not to evaluate the plan during the

meeting. President Clinton and Attorney General Reno have deceived the American people for over 7 years by misrepresenting

that the military endorsed, sanctioned or otherwise approvingly

evaluated the plan.

IV. FURTHER ANALYSIS OF THE EVENTS OF APRIL 19, 1993

A. DEVELOPMENT OF THE OPERATIONAL PLAN

1. Emergency Plans During the 51-Day Standoff

On February 28, 1993, the Bureau of Alcohol, Tobacco and Firearms (BATF) attempted to serve a search warrant on the Branch

Davidian religious community near Waco, TX, and an arrest warrant on the community’s leader, David Koresh. That raid ended in

tragedy, as four BATF Special Agents and six Branch Davidians

were killed in an ensuing gunfight. The flaws in the conception,

planning and execution of the BATF raid are well documented in

the 1996 joint report of the Committee on the Judiciary’s Subcommittee on Crime and this committee’s Subcommittee on National Security, International Affairs, and Criminal Justice.19

In the aftermath of that failed raid, the Treasury Department requested that the Federal Bureau of Investigation (FBI) assume

command of the situation. The FBI deployed its Hostage Rescue

Team (HRT), a full-time counterterrorist unit based at the FBI

Academy at Quantico, VA, along with part-time Special Weapons

and Tactics (SWAT) teams from various FBI Field Offices and hundreds of other Special Agents and support personnel. HRT assumed

tactical command of the site on March 1, 1993, and began deploying its members to various positions around the compound.

Upon arrival at an incident site, HRT commanders, as standard

procedure, formulate an emergency plan for approval by the Special Agent in Charge (SAC) in overall command of an incident.20

Soon after arriving in Waco, HRT commanders developed emergency plans to deal with various contingencies, including the possibility that the Davidians would attempt suicide. The first such

plans were oral, and were later committed to writing.

8

21The M–79 is a Vietnam War-era shotgun-like weapon that fires 40-milimeter, spin-stabilized rounds such as tear gas, buckshot, high explosive, illumination and smoke. 22 A discussion of CS gas generally, and ferret rounds in particular, can be found at H. Rept.

No. 104–749 at 69–75. 23 ‘‘Texas Rangers Division of the Texas Department of Public Safety, Investigative Report

Branch Davidian Evidence’’ (September 1999) (exhibit 1). 24 Interview with Richard Rogers, former Assistant Special Agent in Charge and Commander,

HRT, FBI in Phoenix, AZ (Aug. 9, 2000).

Under the early versions of HRT’s emergency plans, in the event

of a mass suicide attempt by the Davidians or under similar circumstances, HRT personnel would have attempted to disable those

inside by firing non-pyrotechnic ‘‘ferret’’ rounds from M–79 40 millimeter grenade launchers 21 through the doors and windows. Ferret rounds are plastic projectiles with stabilizing fins containing 25

grams of CS, a type of tear agent, suspended in a liquid solvent.22

Upon impact, the front of the round ruptures, releasing its contents. Ferret rounds are often used to deploy CS gas indoors or in

areas where flammable materials are present, because there is little risk of fire from the round. Another type of CS gas round in

HRT’s inventory at Waco was the M–651, or ‘‘military’’ round. Inside the M–651’s metal projectile, a fuse ignites a chemical mixture

a short time after the round is fired, propelling CS gas from its

base.23 The pyrotechnic M–651 round is the preferred round for use

when flammability is not a concern, as it expels a large cloud of

visible CS gas and can be used to deny large areas to threats.

The emergency plans evolved over the course of the 51–day

standoff. The written plan was lengthened, and incorporated the

use of M728 Combat Engineering Vehicles (CEVs) on loan from the

Texas National Guard. The CEVs were equipped with mounted CS

gas spraying devices, which were to be used to insert CS gas directly in the building through windows and through holes punched

in the walls. The plan continued to include the use of M–79 grenade launchers to launch ferret rounds through the doors and windows.

2. The Proposed Operations Plan

As it became clear that the standoff with the Davidians could be

a protracted one, a formal, written operations plan was drafted

under the direction of FBI SAC Jeff Jamar and HRT Commander

Richard Rogers.24 As was the case with the emergency plan, the

operations plan was sent up the FBI’s chain of command, except

this time it was presented to Attorney General Janet Reno.

Several earlier versions had been drafted and proposed, and

these earlier versions provided for immediate insertion of tear gas

by the combined use of CEVs with boom-mounted gas cylinders

along with ferret rounds shot into every opening into the compound. These earlier versions were not approved.

The FBI’s proposed operations plan, as submitted and approved

by Attorney General Janet Reno, described what was to occur on

April 19, 1993, in the following manner:

On order, two CEVs will enter the compound inside the

concertina wire prior to sunrise. One CEV will penetrate

the structure on the 1st floor, at the White/Green corner

utilizing the boom and project tear gas via the Mark 5 delivery system secured to the boom. After delivery, the CEV

9

25 ‘‘WACMUR: Major Case #80—Assault on a Federal Officer,’’ briefing for the Attorney General at Bates Stamp No. WWC142–0441, 26 (Apr. 12, 1993) (exhibit 9). 26 Exhibit 10.

will retreat from the structure and stand-by. The second

CEV will stand by and upon retreat by the 1st CEV, will

insert additional tear gas into the 2nd floor of the White/

Green corner. Prior to the entry of the CEVs, the BVs

[Bradley Fighting Vehicle, a type of armored personnel

carrier] will be engaged in routine spotlight maintenance.

Upon delivery of the tear gas by the CEV, a BV on the

Green side will deliver Ferret liquid tear gas rounds into

the top of the black covering on the unfinished and unoccupied construction in order to deny access in this area. If

firing commences from the Compound, the BVs will be prepared to deliver Ferret liquid tear gas rounds into all windows/openings in the compound structure. If all subjects

fail to exit the compound structure after 48 hours of tear

gas, then, on order, a modified CEV will proceed to open

up/disassemble the structure at the location where the

structure was least gassed until all subjects are located.25

The operations plan clearly outlines the tactics to be employed.

That is, the two CEVs would ‘‘penetrate the structure . . . utilizing

the boom and project tear gas via the Mark 5 delivery system secured to the boom.’’ The CEVs would insert tear gas incrementally,

and only one CEV would insert gas at a time. Right after the CEVs

first began inserting tear gas, a Bradley would approach the ‘‘unfinished and unoccupied’’ tornado shelter and fire ferret rounds

through the top. If the Davidians fired at the HRT, then the HRT

would shoot ferret rounds into all openings in the compound.

The plan also details the type of tear gas to be used; the CEVs

would discharge tear gas from the cylinders mounted on their

booms and the HRT would be firing liquid ferret rounds. There is

no mention in the operations plan of the possibility of using any

pyrotechnic types of tear gas rounds.

3. Deviation in the Execution of the Plan

This plan, as approved by the Attorney General, bears little resemblance to what actually occurred on April 19, 1993. The plan

antiseptically describes ‘‘[o]ne CEV will penetrate the structure

. . . utilizing the boom and project tear gas.’’ On April 19, 1993,

HRT members operating the CEVs repeatedly entered the structure at different points, causing damage to the building far exceeding what one would expect from reviewing the plan. One photograph shows holes in the compound walls that exceeded the width

of a CEV.26 The photograph also shows that the gymnasium in the

rear of the compound has collapsed and entire sections of the first

floor walls on the compound are missing.

At mid-morning on April 19, 1993, the CEV that was tasked to

insert gas into the Black side of the compound, designated CEV–

2, became disabled as it attempted to return to the T-intersection

to reload its CS cylinders. The driver and the vehicle commander

exited CEV–2 and entered a reserve CEV that did not have the capability to inject CS gas. This CEV returned to the Black side, and

10

27 Interview with Jim Walden, Special Agent, FBI, in Washington, DC (Dec. 10, 1999). 28 Interview with Richard Rogers, former Assistant Special Agent in Charge and Commander,

HRT, FBI, in Phoenix, AZ (Aug. 9, 2000). 29 Interview with Jim Walden, Special Agent, FBI, in Washington, DC (Dec. 10, 1999); interview with Jeff Jamar, former Special Agent in Charge, FBI, in Austin, TX (Feb. 16, 2000). 30Memorandum from Danny Coulson, former Deputy Assistant Director, FBI, undated, 2, at

Bates Stamp No. WWC130–0247 (exhibit 11).

was ordered to open up a path to the area around the base of the

tower for CEV–1.27 This was an area that the HRT commander believed had not had any tear gas inserted.28 The path to the tower

between the swimming pool and the gymnasium was not much

wider than a CEV, so CEV–2’s commander opted to push through

the walls of the gymnasium rather than risk collapsing the side of

the pool with the weight of his vehicle. CEV–2 repeatedly entered

the gymnasium until the structure collapsed a short time before

noon. During their interviews with committee staff, the tank commander and the on-site commander both claimed that this collapse

was an accidental result of their attempts to insert tear gas in the

tower area, and not a deliberate attempt to demolish the building.29

The operations plan did include a provision for the demolition of

the compound, but only after 48 hours of deliberate gas insertion.

Nonetheless, the gymnasium was demolished less than 6 hours

after the HRT implemented their operations plan.

4. Foreknowledge of Need to Deviate from the Plan

Of concern to the committee is why the possibility of early, serious structural damage to the compound was not put forth in the

operational plan. The shoddy nature of the construction of the compound was well known to the FBI, and concerns had previously

been noted concerning its fragility, especially the gymnasium’s:

HRT has talked to military engineers and have developed

information regarding the construction of the compound. It

is not of good quality. Information has been obtained from

individuals who have worked in the compound regarding

construction. They believe that if they use the rail on the

CEV to penetrate into the white side, the result will be a

peeling away of the siding exposing the rooms on that side.

They anticipate the roof will remain intact [sic] The construction of the black side (gym) is not of good quality. It

is believed that the same type of activity directed toward

the gym will result in the collapse of the roof. HRT advised

that they have on occasion ‘‘bumped’’ the compound using

the CEVs and it is not very stable.30

Despite the foreknowledge of the poor quality of the construction,

and despite the fact that the operational plan did not call for a systematic ‘‘disassembly’’ of the compound until after 48 hours had

elapsed, the gymnasium was demolished within 6 hours of the implementation of the plan.

Jeff Jamar, the on-scene commander at Waco, claimed in his deposition taken in preparation for the civil trial that he had the discretion to allow deviations from the operational plan:

Q. My question is, is it your testimony that there was a

specific reference contained in the plan of operations, the

11

31Transcript of Deposition of Jeffrey Jamar, former Special Agent in Charge, FBI, at 6–10:48,

Andrade v. Chojnacki (W.D. Tex. Mar. 15, 2000) (No. W–96–CA–139) (exhibit 12). 32Findings of facts and conclusions of law at 9, Andrade v. Chojnacki (W.D. Tex. Sept. 20,

2000) (No. W–86–CA–138) (exhibit 13). 33Transcript of Deposition of Jeffrey Jamar, former Special Agent in Charge, FBI, at 2–10:31,

Andrade v. Chojnacki (W.D. Tex. Mar. 15, 2000) (No. W–86–CA–138) (exhibit 12). 34 ‘‘WACMUR: Major Case #80—Assault on a Federal Officer,’’ briefing for the Attorney General at Bates Stamp No. WWC142–0441 (Apr. 12, 1993) (exhibit 9).

written plan of operations that was approved for April 19,

1993, that permitted you the authority to order penetration of the building with more than simply the tear gas insertion booms?

A. . . . Yes, that was part of my discretion as—in implementing plan was to do that, yes.31

The court, in the civil litigation arising from the issues centering

on the FBI’s deviation from its operational plan, agreed:

FBI agents operating the military vehicles inserted tear

gas in accordance with the approved Plan of Operations on

April 19, 1993. Because the plan could not provide for

every contingency, it necessarily afforded discretion to the

FBI agents on the scene to adapt to the evolving conditions, including, among other things, the failure of the

Davidians to leave the building, the relative ineffectiveness

of the tear gas due to the wind and the Davidians’ gas

masks, and the possibility that certain individuals were

prevented from leaving because the exits were barricaded.

Any deviation from the written plan was within the authority delegated to the agents on the scene.32

The on-scene commander clearly felt he had the implied, if not explicit, authority to deviate from the operational plan, and the court

ultimately came to the same conclusion.

Of interest to the committee, however, is that earlier, more aggressive proposed operational plans which allowed for immediate

and total tear gas bombardment from M–79 grenade launchers

along with CEVs were not approved by FBI headquarters personnel

from Washington, DC.33 The plan as approved for April 19, 1993,

allowed only incremental increases in tear-gassing. Only if the

Davidians fired at the HRT was the gassing to be accelerated, and

the M–79s employed.

This appears to have been a self-fulfilling prophecy, as Jamar

told committee staff he believed the Davidians would start shooting

as soon as the HRT approached the compound with the CEVs. It

is an issue of serious concern that the plan, as executed, was more

aggressive and destructive than the plan that was approved, and

resembled closely earlier plans which had not been approved.

B. THE USE OF PYROTECHNIC DEVICES ON APRIL 19, 1993

1. No Contingency for Use of Pyrotechnic Rounds

The FBI’s operations plan did not include as a contingency the

use of pyrotechnic M–651 rounds against the Branch Davidians.

The plan only referred to the use of ferret tear gas rounds and the

use of CEVs modified to insert tear gas from boom-mounted cylinders.34 No mention was made concerning the possible use of M–

12

35 Id. 36 Id. at Bates Stamp No. WWC142–0440. 37See memorandum from Danny Coulson, former Deputy Assistant Director, FBI, undated,

at Bates Stamp No. WWC130–0247 (exhibit 11). 38 Interview with David Corderman, Special Agent, FBI, Washington, DC (Nov. 4, 1999).

651s in the proposed operation plan given to the Attorney General.35 Further, the plan mentioned the need to insert tear gas into

the outdoor tornado shelter, but only with ferret rounds:

Four Bradley Vehicles (BV) will be positioned around the

compound ready to supplement the CEV in gas delivery, if

needed. One of the four BV’s will insert Ferret liquid tear

gas rounds into the black covering of the new unoccupied

construction on the green side immediately after the introduction of tear gas into the previously referenced white/

green section of the compound structure.36

Moreover, HRT personnel were aware that the use of ferret rounds

against the unfinished tornado shelter would likely prove ineffective:

THE UNFINISHED AREA OF THE COMPOUND ON

THE GREEN SIDE WILL BE THE TARGET OF CS INTRODUCTION USING THE M–79 GRENADE LAUNCHERS. IT DOES NOT APPEAR TO BE POSSIBLE TO USE

HAND HELD CANISTERS TO ENGAGE THIS PART OF

THE COMPOUND. THERE IS SOME QUESTION AS TO

WHETHER THE FERRET WILL PENETRATE THE

TARPAPER-COVERED PORTION OF THE UNFINISHED AREA. (DUE TO THE ANGLE), SOME OR ALL

FERRETS MAY NOT PENETRATE. THE INTRODUCTION OF CS INTO THE WHITE GREEN COVER

SHOULD GIVE SOME COVERAGE OF THE TRAP

DOOR ENTRANCE TO THE TUNNEL, THUS DENYING

SUBJECTS ACCESS TO THE TUNNEL AND THE UNDERGROUND BUS. THERE IS SOME INDICATION

THAT THIS PORTION OF THE COMPOUND IS FLOODED.37

It is obvious that there was prior awareness on the part of the

HRT that ferret rounds were likely to be ineffective against the

roof of this structure. Why the operations plan failed to describe

the possible need to use a more dangerous round remains a troubling question.

2. Use of Pyrotechnic Rounds

On April 19, 1993, HRT member David Corderman fired ferret

rounds from a Bradley Fighting Vehicle using an M–79 grenade

launcher at the shelter from the White/Green corner. Since he was

shooting at a downward and shallow angle, the ferret projectiles

merely bounced off the roof.38

At approximately 8 a.m., Corderman asked for approval to use

M–651 tear gas rounds on the shelter’s roof. The request went up

the HRT’s chain of command to HRT commander Richard Rogers,

13

39 Interview with Richard Rogers, former Assistant Special Agent in Charge and Commander,

HRT, FBI in Phoenix, AZ (Aug. 9, 2000). 40Transcript of FBI FLIR Tape (Apr. 19, 1993) (exhibit 14). 41 Exhibit 15. 42 Interview with David Corderman, Special Agent, FBI, in Washington, DC (Nov. 4, 1999);

interview with David Corderman, Special Agent, FBI, in Washington, DC (Apr. 13, 2000).

who granted permission.39 Portions of these conversations are

clearly audible on the overhead FLIR tapes:

[‘‘HR 1’’ is Richard Rogers, Commander of the HRT. ‘‘HR

2’’ is Stephen McGavin, Supervisory Special Agent, HRT.]

7:48:55 a.m. (4/19/93)

HR 2. HR 2 to HR 1.

HR 1. Go ahead, it’s HR 1.

HR 2. [unintelligible] supplying Charlie 1 [unintelligible]

with relative safety utilizing the vehicle for cover and attempt to get [unintelligible] penetrate the construction

project.

HR 1. You’re talking about the block over top the construction?

HR 2. Say again, HR 1.

HR 1. Are you saying he can penetrate the block covering

over the construction on the green side?

HR 2. Ten-four. He thinks he can get into position with

relative safety utilizing the track for cover and attempt to

penetrate it with military rounds.

HR 1. Roger. Of course, if there’s water underneath that’s

just going to extinguish them but you can try it.

HR 2. Ten-four. Copy. He can try it?

HR 1. Yeah, that’s affirmative.

8:08 a.m. (4/19/93)

Charlie 1. Charlie TOC to HR 1.

[Pause]

CHARLIE 1. YEAH, THE MILITARY GAS DID NOT

PENETRATE THAT, UH, BUNKER WHERE THE BUS

WAS. COPY.

[Pause]

CHARLIE 1. IT BOUNCED OFF.40

Corderman told committee staff that he fired two or three M–651

rounds. These rounds also bounced off the roof. A photograph from

an FBI surveillance plane shows a small cloud of white smoke near

the outdoor structure.41 Corderman identified this photograph to

committee staff as depicting the effects of the military round that

he fired.42 Corderman stated that he used the M–651 round because he thought this heavier metal projectile would be more likely

to penetrate the shelter roof than the lighter, plastic ferret projectile.

14

43 Interview with Richard Rogers, former commander, HRT, FBI, in Phoenix, AZ (Aug. 9,

2000). 44 Id. 45 Interview with Joey Gordon, Sergeant, Texas Rangers Division, Texas Department of Public

Safety, in Ft. Hood, TX (Mar. 19, 2000). 46See ‘‘Texas Rangers Division of the Texas Department of Public Safety, Investigative Report

Branch Davidian Evidence,’’ attachment I (September 1999) (exhibit 1). 47 ‘‘Texas Rangers Division of the Texas Department of Public Safety Investigative Report #2

Branch Davidian Evidence’’ (January 2000) (exhibit 16). 48Telephone interview with Wallace Higgins, former Special Agent, FBI (Oct. 2, 2000).

The HRT personnel at Waco did not consider the fact that

Corderman fired military tear gas rounds extraordinary. All HRT

personnel were interviewed by the FBI soon after the fire and none

of them mentioned the use of M–651 rounds because none of them

had been asked if such rounds had been used. In November 1993,

when HRT members were again interviewed, this time by Department of Justice prosecutors preparing for trial, Rogers and other

HRT members readily admitted that M–651s had been used.43 By

their accounts, none thought it significant and they did not recall

any response from the Justice Department prosecutors at that

time.44

Curiously enough, in addition to the fact that the possession and

eventual use of M–651 rounds were never mentioned in the operational plan, neither was the fact that the Bradleys also contained

high explosive (HE) rounds for the M–79 grenade launchers. Although no evidence whatsoever has been found that these rounds

were fired on April 19, 1993, their existence for use as a contingency should have been explicit in the operational plan.

3. Disappearance of the Pyrotechnic Rounds

An issue that has long plagued the Waco civil litigants as well

as law enforcement officials concerns the whereabouts of the expended M–651 projectiles. The rounds were known to have been

fired, one was photographed, another was seen on the ground

shortly after the fire, but none were ever logged in as evidence by

the Texas Rangers or the FBI.

Shortly after the end of the fire, evidence technicians from both

the FBI and the Texas Department of Public Safety took over the

crime scene to collect and inventory all evidence. A few days after

April 19, 1993, a photographer for the Texas Department of Public

Safety took photographs of an expended M–651 projectile.45 Adjacent to the round in the photograph is what appears to be the wire

shaft of a flag used to mark objects to be inventoried into evidence.46 However, the evidence log maintained by the Texas Rangers shows no entry for this projectile.47

Wallace Higgins, an FBI Hazardous Devices and Explosives Examiner for the FBI’s Explosives Unit, told committee staff that he

observed two M–651 projectiles at the crime scene following the

fire. One was in water and he couldn’t see the end of it in order

to determine whether or not it was live. Borrowing a .45 pistol

from a Texas Ranger, he shot at it twice, hitting it and denting the

projectile. According to Higgins, this was a ‘‘render safe’’ action

that was done in order to determine if the round was still live. The

round did not initiate; indicating it had been fired and activated

previously. This round was found between the silo and the outdoor

tornado shelter.48

15

49 Id. 50 Interview with James Cadigan, Supervisory Special Agent, FBI, in Washington, DC (Oct.

3, 2000).

Higgins found a second round in the dirt near the underground

walkway, which abutted the tornado shelter. Higgins determined

that the round had been expended and he left it in place. Higgins

recalled that he told someone on the FBI evidence collection team

about the rounds. However, he wasn’t certain whether it was Rick

Crum, an FBI firearms expert, or James Cadigan, the on-scene

leader of the FBI’s evidence collection team. Higgins further recalled that he didn’t believe the rounds were still present on the

ground by the time that the evidence collection was finished. Higgins stated he did not know what became of the rounds. He acknowledged that the FBI laboratory subsequently erred in labeling

certain 40 millimeter flashbang rounds at the crime scene as M– 651s, but the rounds he saw near the compound were M–651s and

not flashbang rounds.49

FBI Special Agent James Cadigan, who led the on-scene evidence

collection for the FBI, stated to committee staff that he arrived at

Waco on April 19, 1993. Cadigan stated that his expertise is in

small arms identification, up to and including .50 caliber weapons,

but not larger ordinance such as 40mm rounds. When Cadigan arrived at the crime scene, the rubble from the compound was still

smoldering. Within 24 hours he met with members of the ATF,

Texas Rangers, and Federal prosecutors Ray and LeRoy Jahn.

They established a protocol to divide the crime scene into grids.

The Jahns told him the Texas Rangers were in charge of the evidence search. Cadigan became the administrative person on the

site. He was primarily located at a mobile home brought to the

compound, where he was responsible for locating equipment to be

used by the evidence collection teams. Cadigan stated that he

never observed any M–651s at the site. Cadigan recalled that some

time after the fire, the Texas Rangers shipped a truckload of evidence to the FBI lab in Washington, DC. Federal prosecutors Ray

and LeRoy Jahn, along with John Lancaster and, possibly, John

Phinizy, reviewed each item at the lab for its probative value. The

prosecutors logged probative value items, or those that might be

used at trial, and sent the non-probative items back to the Texas

Rangers. Cadigan also acknowledged that the FBI laboratory had

misidentified certain 40mm flashbang rounds as M–651s.50

The Texas Rangers collected and stored the evidence from the

compound at two primary sites. Items that might be used at the

criminal trial in 1994 were stored at a large locker at the Texas

Department of Public Safety in Austin, TX. In 1999, the Texas

Rangers searched this area and found no military tear gas projectile. The other site was a warehouse in Waco, TX. This site contained many large, locked Conex containers. These containers were

filled with hundreds of five gallon sealed drums; most of which contained hundreds of thousands of rounds of ammunition from the

Branch Davidian compound, many of which had ‘‘cooked off’’ in the

fire.

On November 17 and 18, 1999, the Texas Rangers and U.S. Postal Inspectors working for the Office of Special Counsel conducted

an exhaustive hand search of the many tons of physical evidence

16

51 Committee staff were present and participated in this search. 52The search did produce the remains of 40mm illumination rounds, presumably fired over

the compound to illuminate the area prior to the installation of search lights. 53FBI telephone interview with Charles Riley, Special Agent, FBI, 2 (June 2, 1993) (exhibit

17). 54See ‘‘Waco: The Rules of Engagement’’ (Fifth Estate Productions, 1997) and ‘‘Waco: A New

Revelation’’ (MGA Films, 1999).

stored at the warehouse in Waco.51 The search failed to produce

any military tear gas rounds. Only the photograph of the projectile

was found in the inventory.52

C. ALLEGATIONS OF GOVERNMENT GUNFIRE ON APRIL 19, 1993

The tragic outcome of the FBI’s attempt to end their standoff

with the Branch Davidians has been understandably difficult for

most, if not all, Americans to comprehend. The fact that approximately 80 men, women and children did not flee tear gas and

flames, and instead met gruesome deaths, has led a large cross section of the American public to suspect that the government somehow prevented the Davidians from escaping their residence on

April 19, 1993. These suspicions have centered on the allegation

that HRT or military personnel fired upon the Davidians both before and during the fire.

These suspicions have been further raised by troubling evidence

brought to light during the discovery process in a wrongful death

lawsuit and by independent investigators, Freedom of Information

Act plaintiffs, and other private parties. This evidence includes:

• An FBI witness statement given by an HRT member that states

that the agent ‘‘heard shots fired from sniper position #1.’’ 53

• Spent shell casings recovered from the FBI sniper position.

• Infrared footage taken by an FBI surveillance airplane on April

19, 1993, which to many viewers appears to include images of

muzzle blasts directed at the rear of the compound.

One example of such an image on the FLIR tape, pointed out by

documentary filmmaker Michael McNulty, concerned what appeared to be dark forms located directly behind CEV–2, which was

making repeated entries into the gymnasium located on the back

side of the compound. Flashes appeared on the FLIR tape from the

edges of the forms, which McNulty alleged represented automatic

gunfire from government agents located immediately behind CEV–

2.54 Dr. Allard, a FLIR expert retained by the plaintiffs in the civil

case, described this event:

A tank (CEV) was used to smash into a building before the

complex fire. As the tank approached the building, two appeared on the videotape behind the tank. They rolled over

and began shooting into the building with automatic gunfire. (The airborne FLIR recorded only part of the operation). A short time later, the tank backed out of the building. Standing behind the tank were three men. The tank

appeared to roll over the men, as they disappeared under

the tank. It stopped for a few seconds, turned, and left the

scene. No men were observed after the tank left the scene.

17

55 Edward Allard, ‘‘Preliminary Analysis of the Waco FLIR Tapes’’ 5 (Aug. 30, 1999) (exhibit

18). 56 Interviews with 10 current and former USSOCOM Army Special Forces personnel at Ft.

Bragg, NC; Raleigh, NC; and Washington, DC. The identities of these individuals remain classified by the Department of Defense. 57 Interview with Kenneth G. Vincent, Special Agent, FBI, Washington, DC (Apr. 12, 2000). 58 Id.

The men had to enter and leave the tank through its bottom escape hatch.55

1. Sites Manned by the FBI

By April 19, 1993, the HRT had occupied various outbuildings

and other sites around the compound for nearly 51 days. Immediately following the failed BATF raid on February 28, 1993, HRT

personnel had taken over two pre-existing observation and sniper

sites that had been used by the BATF on February 28, 1993. These

sites provided cover for the agents while affording them a fairly unobstructed view of the compound. Both of these sites were fortified

by the HRT. These sites were designated by the HRT as ‘‘Sierra

One’’ and ‘‘Sierra Two.’’ Sierra One was a house across the Double

EE Ranch Road from the compound. The driveway leading from the

compound entered the road almost directly in front of the house.

Sierra One, and the house next to it (designated ‘‘Sierra One

Alpha’’) were less than 300 yards from the compound and allowed

full observation of the entire front or ‘‘white’’ side.

Sierra Two was a cinderblock garage located several hundred

yards behind or on the black side of the compound. Between the

two locations, HRT personnel had direct views of the white and

black sides of the compound, with peripheral views of the red and

green sides. These locations were provided with spotting scopes,

rifle scopes and night vision equipment.

By early March 1993, HRT had heavily fortified both Sierra One

and Sierra Two with sandbags and metal plates. Both sites had

machine-gun emplacements as well as sniper/observer positions. As

additional protection from attack, these sites had seismic sensors,

on loan from the U.S. Special Operations Command (USSOCOM),

placed around them.56 These proved of little value, however, as cattle and deer often set the sensors off.

In order to more effectively monitor the right, or red side of the

compound, HRT members constructed a new sniper position, designated ‘‘Sierra Three,’’ up the driveway approximately 180 yards

from the white/red corner. This position consisted of a trench fortified by metal plates and sandbags. It was occupied only part-time

when HRT members needed to monitor special events. The HRT

also constructed dummy sites on the red side to deceive the

Davidians as to the snipers’ true location.57 Three HRT snipers

manned Sierra Three on April 19, 1993.58

FBI agents from various FBI field office SWAT teams were also

located on the left, or green side of the compound along a driveway

that ran roughly parallel to the green side, on the neighboring

Perry ranch. Personnel were stationed along this road, approximately 550 yards from the green side. This location was designated

‘‘Sierra Four.’’ There was also an outer perimeter, consisting of

roadblocks and other positions manned by various Federal, State

and local law enforcement agents, including the BATF and FBI

18

59 Interviews with 10 current and former USSOCOM Army Special Forces personnel at Ft.

Bragg, NC; Raleigh, NC; and Washington, DC. The identities of these individuals remain classified by the Department of Defense. 60 Id. 61 ‘‘WACMUR: Major Case #80—Assault on a Federal Officer,’’ briefing for the Attorney General at Bates Stamp No. WWC142–0433. (Apr. 12, 1993) (exhibit 9). 62 Although these rounds are pyrotechnic in nature, none are known to have been fired on

Apr. 19, 1993. 63 ‘‘WACMUR: Major Case #80—Assault on a Federal Officer,’’ briefing for the Attorney General at Bates Stamp No. WWC142–0437 (Apr. 12, 1993) (exhibit 9). 64FBI aerial photograph with outline of fence as described to committee staff by Steve

McGavin, former Deputy Commander, HRT, FBI (exhibit 19).

SWAT. This outer perimeter had been manned since the early days

of the standoff.

In addition to manned sites, HRT personnel observed the

Davidians through various technical devices, which the HRT obtained from U.S. Special Operations Command. Two remotely operated closed circuit TV cameras were placed; one on the green side

and one on the red.59 In addition, a thermal imager, also on loan

from U.S. Special Operations Command, was placed on top of a

water tower at an intersection of the Double EE Ranch Road and

Elk Road, situated on the red side of the compound.60 These devices, coupled with transmissions from several bugging devices inside the compound, allowed fairly close observation of the compound as well as intelligence from inside the compound.

In spite of the HRT’s 360-degree coverage, and in spite of the

hundreds of other law enforcement officers surrounding the

Davidians, two individuals had been able to enter the compound

undetected during the standoff.61 In addition, the FBI had prohibited the Davidians from exiting their building without first obtaining permission. However, several times during the standoff,

Davidians went outside unannounced and HRT members fired

40mm ‘‘flashbang grenades’’ over the Davidians’ heads.62

In order to prevent continued unauthorized entries and exits,

HRT members had erected a concertina (razor wire) fence on April

10, 1993,63 which encircled the compound except for an opening on

the driveway off the white/red corner of the compound. The fence,

remnants of which remain at Mt. Carmel today, consisted of two

stacked rolls of concertina wire, supported by metal posts. It was

constructed by the HRT utilizing various armored vehicles as cover

from potential gunfire from the compound. The fence was approximately 5 to 6 feet high and followed the contours of the compound,

at a distance anywhere from 15 to 25 yards.64

During the operation of April 19, 1993, all HRT sites were

manned, allowing close observation of the compound from all sides.

Committee staff interviewed individuals from all positions. All consistently stated that not one government agent fired any gunshots

at the compound. Numerous photographs and numerous videotapes

taken of the compound from all angles were examined. None

showed any government personnel on foot in close proximity to the

compound, except for those that were involved in rescuing

Davidians from the burning structure.

2. Gunfire from HRT Sniper Position

Two houses across the Double EE Ranch Road from the Mt. Carmel Center were manned both by BATF snipers on February 28,

19

65 ‘‘Criminal Law Enforcement Division of the Texas Department of Public Safety, Report of

Investigation,’’ RF093021–U.12, at 3 (May 1993) (exhibit 20). 66 ‘‘Texas Rangers Division of the Texas Department of Public Safety, Investigative Report #2

Brance Davidian Evidence’’ at 3, 4 (January 2000) (exhibit 16). (Pages are not numbered in

text). 67 John C. Danforth, Special Counsel, U.S. Department of Justice, ‘‘Interim Report to the Deputy Attorney General Concerning the 1993 Confrontation at the Mt. Carmel Complex,’’ 15 (July

21, 2000). 68 Id. See also Andrade Plaintiffs’ motion to dismiss claims with prejudice against Lon

Horiuchi. (W.D. Tex., Mar. 30, 2000) (No. W–86–CA–138) (exhibit 21). 69FBI telephone interview with Charles Riley, Special Agent, FBI, 2 (June 2, 1993) (exhibit

17). 70FBI telephone interview with Charles Riley, Special Agent, FBI, 1 (Nov. 19, 1996) (exhibit

22).

1993, and by HRT snipers (who designated the two houses Sierra

One and Sierra One Alpha, as described above) throughout the 51– day standoff. The BATF snipers had been armed with .308 caliber

sniper rifles as well as .223 caliber assault rifles, and admitted firing both during the February 28, 1993 shoot-out. The HRT snipers

who manned the same positions throughout the standoff were

armed with the same types of weapons, but denied ever firing

them.

On April 20, 1993, an HRT member who had been stationed at

the Sierra One sniper position handed over to the Texas Rangers

11 .308 caliber shell casings and 24 .223 caliber shell casings which

the HRT member stated he had found at Sierra One.65 On April

22, 1993, Texas Rangers searched the houses. Pursuant to this

search, the Rangers sifted through sand found throughout the

house (which had apparently leaked from sandbags used to fortify

the sniper position) and found an additional .308 caliber shell casing.66 The presence of spent shell casings at the sniper position as

late as April 22, 1993, raised the disturbing possibility that the

FBI had fired from the position on April 19, 1993, or sometime during the standoff.

Despite this possibility, firing pin and ejector impressions on the

shell casings were not compared with test firings of BATF weapons

until this year, by the Office of Special Counsel. The Special Counsel found that the shell casings found on April 20 and 22, 1993,

matched BATF weapons used on February 28.67 In light of this evidence, a claim in the civil suit was withdrawn by the plaintiffs.68

Another indication that HRT personnel may have fired from Sierra One on April 19, 1993, was the notes of an FBI interview with

Charles Riley, a former HRT member who was positioned at Sierra

Three on April 19, 1993. Supervisory Special Agent Gail Seavey,

who conducted the interview, wrote that, on April 19, 1993, Riley

‘‘heard shots fired from sniper position #1.’’ 69 Riley stated that he

did not review this statement prior to its final draft, but that he

had been misunderstood. Riley later clarified that he had heard a

radio report from Sierra One that someone at that position had

witnessed gunfire from within the compound.70

3. Allegations that FLIR Tape Depicted Muzzle Flash

During the standoff, the FBI employed various aircraft for observation purposes. In addition to small fixed wing aircraft and helicopters, the FBI utilized their primary observation plane known as

the Nightstalker. This plane was equipped with a Forward Looking

Infrared imager or ‘‘FLIR,’’ essentially a video camera which films

20

71 Interview with Isaac Nakimoto, Special Agent, FBI, in Washington, DC (Dec. 15, 1999). 72 Edward Allard, ‘‘Preliminary Analysis of the Waco FLIR Tapes’’ (Aug. 30, 1999) (exhibit 18). 73FLIR tape #3, local time 11:24:11, tape counter 00:37:36. 74FLIR tape #3, local time 12:08:31, tape counter 01:21:54. 75FLIR tape #3, local time 12:08:51, tape counter 01:22:13. 76FLIR tape #3, local time 12:10:55, tape counter 01:24:14. 77Lee Hancock, ‘‘Government Rejects Attorney’s Effort to Test if Agents Used Guns at Waco,’’

the Dallas Morning News, Oct. 27, 1999 (exhibit 23).

in the infrared range. Since it measures in this range, the plane

is useful in low light and nighttime conditions.

At Waco, the Nightstalker was often employed to circle the compound during the evening hours in order to detect unauthorized entries or exits. Since the FLIR operators had video monitors as well

as recorders onboard, FLIR operators could make real-time observations and communicate with the HRT commanders. The FLIR recorders on the plane recorded on two tapes, allowing the operator

to switch to another tape when the first tape ran out, without ceasing to record. This created some overlap at times.71 On April 19,

1993, the plane also provided daytime overhead surveillance to

monitor the execution of the HRT’s tear gassing plan. On April 19,

1993, the plane circled the compound for periods of time, landed

and refueled at a nearby airport, then returned to the compound.

As a result, several FLIR videotapes were made, some of which

overlapped. Certain portions of FLIR tapes, one starting at 10:41

a.m. and ending at 12:16 p.m., and one starting at 12:16 p.m. and

ending at 1:39 p.m., were analyzed by experts hired by the committee.

The committee retained Dr. Donald Frankel, of Photon Research

Associates in Newton, MA, to perform an analysis of the FLIR

tapes from April 19, 1993, and from the planned March 19, 2000,

FLIR test at Ft. Hood, TX. His report, attached as exhibit 8, focused on analyzing four segments of FLIR tape from April 19,

1993. The four segments that Dr. Frankel analyzed were selected

because three out of the four contained footage that the plaintiffs

in the civil litigation had asserted represented muzzle flashes.72

The first segment, as discussed earlier in this report, contained the

FLIR footage that depicted flashes from directly behind the CEV

that was penetrating the gymnasium at the rear of the compound.73 The second segment contained what appeared to be bright

flashes at the corner of the gymnasium.74 The third segment contained flashes appearing to the left of the CEV.75 The fourth segment contained a flash located in the center of the courtyard.76

In addition, on March 19, 2000, Special Counsel Danforth, pursuant to an order of the civil trial court and with the concurrence of

the civil litigants, conducted a FLIR test at Ft. Hood, TX, in an attempt to shed light on what, if any, muzzle flashes were observable

by the type of FLIR in use in 1993. The Department of Justice was

initially reluctant, but eventually consented to the test.77 The test

protocols, agreed to by all the parties in the civil suit, provided for

flying FLIR-equipped aircraft over a group of individuals firing

weapons of different calibers and firing rates. It also provided for

the creation of a ‘‘rubble field’’ which was believed to approximate

the construction debris found at the compound late in the morning

of April 19, 1993, when the FBI’s CEVs were forcibly penetrating

the compound walls to insert tear gas. The committee sent observVerDate 11-MAY-2000 10:08 Jan 03, 2001 Jkt 000000 PO 00000 Frm 00030 Fmt 6659 Sfmt 6601 C:\REPORTS\67357.TXT HGOVREF1 PsN: HGOVREF1
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78Dr. Donald S. Frankel, Photon Research Associates, ‘‘Assessment of Waco, Texas FLIR Videotape,’’ 1 (Sept. 11, 2000) (exhibit 8). 79 Id. 80 Id. 81 Id. at 5, 6. 82 Id. at 6. 83 Id. at 13–20. 84 Id. at 1.

ers to this test. Both the FLIR videotapes taken by the FBI’s

Nightstalker surveillance airplane (utilizing a more advanced, digital version of the FLIR camera in use in 1993) and a British Lynx

helicopter (utilizing the same model FLIR camera as used by the

FBI in 1993) were obtained and analyzed by Dr. Frankel. These

tapes were then compared with the four segments of FLIR tape

from April 19, 1993.

In his 34-page report submitted to the committee on September

11, 2000, Dr. Frankel concluded that the flashes exhibited in the

four tape segments referenced above could not depict gunfire.78 Dr.

Frankel drew three conclusions from his analysis of the FLIR

tapes. He first concludes:

(1) The flashes seen on the tape during the four critical

time periods cannot be weapons muzzle flash. Their duration is far too long and their spatial extent is far too great.

They are almost certainly the result of solar energy or heat

energy from nearby vehicles reflected toward the FLIR by

debris or puddles.79

Dr. Frankel’s report breaks down the elements involved in detecting muzzle flashes. Muzzle flashes have distinct spatial and

temporal characteristics.80 Frankel measured the spatial proportions and the durations of the flashes found on the FLIR tapes and

compared the results with standard reference works in the field.81

For example, a rifle firing the .308 caliber NATO round (7.62mm)

leaves a muzzle flash that is 0.4 meters long and lasts for approximately 2 milliseconds.82 By contrast, Dr. Frankel reported that the

flashes seen on the April 19, 1993 FLIR tape ranged from one

tenth of a second to over 1 second long.83

(2) The FLIR video technology has a very low probability

of detecting small arms muzzle flash.84

Due to the limitations of the FLIR camera, events such as muzzle flashes are of such short duration as to limit the camera’s

chances of depicting muzzle flash. Since the FLIR camera uses a

scanning apparatus which scans the field of view 60 times per second, or any given point in the field of view once every 16.67 milliseconds, shorter duration events such as muzzle flash may not appear on the FLIR tape:

The FLIR video scanning arrangement described in the

previous section implies that the detector is observing only

a small part of the scene at any given instant. For ordinary objects that persist for long periods of time, the effect

is not noticeable. For fast motion, it results in blurring.

For very brief events, such as muzzle flash, it can result

in the event being missed entirely. . . . The FLIR camera

scans a field in 1/60 s [1/60 of one second]. During the 1

22

85 Id. at 3. 86 Id. at 1. 87 Id. at 13. 88 Id. at 32, 33.

ms that a muzzle flash is observable, the camera therefore

scans only 6% of the scene. This figure may be taken as

a first order approximation of the probability that the

FLIR can detect a small arms muzzle flash that occurs

within its field of view. This estimate does not take into

account the sensitivity of the camera, which may prevent

muzzle flash from ever being detected at useful ranges.85

Dr. Frankel’s third conclusion concerns the possibility that muzzle flash may have occurred, but wouldn’t necessarily be picked up

on the FLIR:

(3) As a consequence of (2) above, the absence of muzzle

flash detection on the FLIR tape does not prove that weapons were not actually fired during the final assault. Indeed, there is ample evidence (not presented here) that the

Davidians were firing at the federal agents throughout

this period, but none of their muzzle flashes are detectable

on the videotape.86

Dr. Frankel then examines the four specific segments of FLIR

tape. The first segment, containing the purported flashes behind

the CEV, are measured temporally:

As Figure 7 shows, the ‘‘rhythmic flashes last for several

tenths of a second (several hundred ms). Since this is 50

to 100 times longer than the muzzle flash from small arms

lasts, these flashes cannot be muzzle flash. They are most

likely a reflection of the CEV engine’s hot parts, which

themselves are clearly visible in the videotape.87

The other three segments also contain flashes with duration

times that preclude them from being muzzle flashes:

[I]t is possible to state with 100% confidence that the

bright flashes that occur at the four 1993 time periods covered by this report are not muzzle flash. They are all far

too long in duration to be muzzle flash. Comparison with

the re-enactment videos also indicates that they are too

bright compared to their surroundings, and too great in

spatial extent. The most plausible sources for these flashes

varies from case to case, but include sunlight reflected

from debris, puddles of water, or window glass, and CEV

engine hot parts thermal radiation reflected from debris or

puddles of water. After the compound catches fire, it is

hard to discount burning construction material as the

source of flashes.88

Although Dr. Frankel rules out that any of the four segments depicted muzzle flash, that does not rule out the possibility that muzzle flashes were present, but not recorded by the FLIR:

Examination of the FLIR videotape of the last day of the

siege of the Branch Davidian compound fails to identify

any events that resemble the muzzle flashes observed durVerDate 11-MAY-2000 10:08 Jan 03, 2001 Jkt 000000 PO 00000 Frm 00032 Fmt 6659 Sfmt 6601 C:\REPORTS\67357.TXT HGOVREF1 PsN: HGOVREF1
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89 Id. at 32. 90President William Clinton, remarks by the President in question and answer session with

the press in Washington, DC at 2 (Apr. 20, 1993) (exhibit 24). 91 John C. Danforth, Special Counsel, U.S. Department of Justice, ‘‘Interim Report to the Deputy Attorney General Concerning the 1993 Confrontation at the Mt. Carmel Complex, Waco,

Texas’’ 52 (2000). 92 Interview with Richard Scruggs, Assistant U.S. Attorney, Department of Justice, in Miami,

FL (Jan. 5, 2000). 93Dennis is a former U.S. Attorney and served as the Justice Department’s Assistant Attorney

General (Criminal Division) during the Bush administration. Dennis now practices law as a

partner with the law firm of Morgan, Lewis & Bockius.

ing the re-enactment. One might have hoped that the apparent lack of muzzle flash would prove that the FBI

agents did not fire their weapons. But because of the

FLIR’s low probability of muzzle flash detection, it is not

possible to make such a statement with much confidence.89

It is extremely unlikely that anyone will ever be able to prove,

scientifically, that no government agent ever fired a shot at the

Davidians on April 19, 1993. The committee, however, has not

found sufficient evidence to support the allegations that law enforcement or military personnel directed gunfire toward the Branch

Davidians on April 19, 1993.

V. ACTIONS AND OMISSIONS OF THE DEPARTMENT OF JUSTICE SINCE

1993

A. INTRODUCTION

There is a stark contrast between what should have occurred

after the April 19, 1993, tragedy and what, in fact, did occur. On

April 20, 1993, President Clinton made the following clear pronouncement:

I have directed the United States Departments of Justice

and Treasury to undertake a vigorous and thorough investigation to uncover what happened and why, and whether

anything could have been done differently. . . . Finally, I

have directed the departments to cooperate fully with all

congressional inquiries so that we can continue to be fully

accountable to the American people.90

Seven years later, Special Counsel Danforth explained what he

thought of the Justice Department investigation:

The failure of the Scruggs team to discover and report that

the FBI used pyrotechnic tear gas rounds was the result

of initiating the investigation with the assumption that the

FBI had done nothing wrong, was inconsistent with the responsibility to conduct a thorough and complete investigation, and was clearly negligent.91

Special Counsel Danforth’s conclusions, and the conclusions of

this committee, show how empty the President’s promise has been.

Following the tragic deaths of the Branch Davidians on April 19,

1993, Attorney General Reno asked her assistant, former Federal

prosecutor Richard Scruggs, to conduct an investigation into the

facts surrounding the tragedy.92 Justice Department officials later

asked former Justice Department official Edward Dennis, Jr.,93 to

conduct an analysis of those facts. The Department of Justice pubVerDate 11-MAY-2000 10:08 Jan 03, 2001 Jkt 000000 PO 00000 Frm 00033 Fmt 6659 Sfmt 6601 C:\REPORTS\67357.TXT HGOVREF1 PsN: HGOVREF1
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94 Richard Scruggs, U.S. Department of Justice, ‘‘Report to the Deputy Attorney General on

the Events at Waco, Texas, Feb. 28–Apr. 19, 1993,’’ (Oct. 8, 1993) (unredacted version); Edward

S.G. Dennis, Jr., U.S. Department of Justice, ‘‘Evaluation of the Handling of the Branch

Davidian Stand-off in Waco, Texas’’ (Oct. 8, 1993) (redacted version). 95 Andrade v. Chojnacki, (No. W–96–CA–139) (W.D. Tex. 1994) (civil litigation). 96See memorandum from Phyllis Pyles, Assistant Director, Torts Branch, Federal Torts Claim

Act Section, (FTCA), Civil Division, Department of Justice, to Thomas Kelley, Inspector—Deputy

General Counsel, Office of the General Counsel, FBI (Apr. 25, 1997); memorandum from Helene

Goldberg, Director, Torts Branch, Constitutional and Specialized Torts Section, Civil Division,

Department of Justice, to Jeffrey Axelrad, Director, Torts Branch, FTCA, Civil Division, Department of Justice (May 14, 1997); memorandum from Marie Hagen, Trial Attorney, Torts Branch,

FTCA, Civil Division, Department of Justice, to Jeffrey Axelrad, Director, Torts Branch, FTCA,

Civil Division, Department of Justice and Pyles (May 29, 1997); memorandum from Jeffrey

Axelrad, Director, Torts Branch, FTCA, Civil Division, Department of Justice, to Helene Goldberg, Director, Torts Branch, Constitutional and Specialized Torts Section, Civil Division, Department of Justice (May 29, 1997); memorandum from Jeffrey Axelrad, Director, Torts Branch,

FTCA, Civil Division, Department of Justice, to Thomas Kelley, Inspector—Deputy General

Counsel, Office of the General Counsel, FBI (May 29, 1997) (exhibit 29); memorandum from Helene Goldberg, Director, Torts Branch, Constitutional and Specialized Torts Section, Civil Division, Department of Justice to Jeffrey Axelrad, Director, Torts Branch, FTCA, Civil Division,

Department of Justice, (June 4, 1997); outline for June 5, 1997 meeting between staff of FTCA

and CSTL [sic] Branches, author unknown (exhibit 31); memorandum from Jeffrey Axelrad, Director, Torts Branch, FTCA, Civil Division, Department of Justice, to Thomas Kelley, Inspector—Deputy General Counsel, Office of the General Counsel, FBI (Sept. 5, 1997).

lished their respective findings on October 8, 1993.94 Both Scruggs

and Dennis stated publicly and during their interviews with committee staff that their findings were based upon a complete review

of all relevant documents and interviews with numerous Justice

Department, Federal and State law enforcement officials. Neither

report, however, constituted a substantial review of the evidence.

The Justice Department investigations were not as thorough as required by a tragedy of this magnitude.

Critical Justice Department errors include failures to:

• Conduct an outside, objective, independent analysis of FLIR

tapes to determine if Federal law enforcement officers fired

weapons other than M–79 grenade launchers on April 19, 1993—

even after the plaintiffs in the tragedy-related civil litigation

challenged the actions of the FBI at the scene on April 19,

1993,95 and despite the fact that line attorneys within the Department of Justice argued for such an independent analysis in

1997; 96

• Disclose and explain the authorized use of pyrotechnic devices by

HRT next to the compound on the morning of April 19, 1993;

• Mention the HRT’s possession of 40–millimeter high explosive

rounds during the siege;

• Determine whether Attorney General Reno knew that pyrotechnic devices were used on April 19, 1993;

• Determine whether Attorney General Reno had knowledge of the

possible use of high explosive devices;

• Discuss Attorney General Reno’s rejection of the FBI’s proposed

operations plans days before the fire and later reversal;

• Provide a full accounting of the use of military personnel and

equipment;

• Produce final and complete reports of the events on April 19,

1993; and

• Provide Congress with relevant information in a timely manner.

25

97Richard Scruggs, U.S. Department of Justice, ‘‘Report to the Deputy Attorney General on

the Events at Waco, Texas, Feb. 28–Apr. 19, 1993,’’ (Oct. 8, 1993) (unredacted version) at 12– 14 (emphases added). 98 Edward S.G. Dennis, Jr., U.S. Department of Justice, ‘‘Evaluation of the Handling of the

Branch Davidian Stand-off in Waco, Texas’’ (Oct. 8, 1993) (redacted version) at 1–2 (emphasis

added). Commenting in the fall of 1999 on the scope of his investigation, however, Dennis stated

that his report ‘‘was not intended to be a comprehensive, all-encompassing report.’’ Stephen

Labaton, ‘‘Reno Admits Credibility Loss in Waco Case,’’ the New York Times, Aug. 27, 1999 at

A18, col. 4 (exhibit 33).

Scruggs alleged that he conducted a thorough review of all relevant documents and interviewed all Justice Department, Federal

and State law enforcement officials with knowledge of the events

on April 19, 1993:

What follows is an attempt to explain what actually happened at the Branch Davidian compound between the arrival of the FBI on February 28, and the aftermath of the

fire that occurred on April 19. . . . [W]e believe this report

to be accurate and based upon solid evidentiary grounds;

we expect additional details to be revealed at trial. This report has been prepared with the cooperation of literally

hundreds of individuals. Approximately 950 interviews

were conducted, and tens of thousands of pages of documents and transcripts were read and analyzed.97

Dennis stated that he largely relied upon the facts discovered

and interviews conducted by Scruggs in order to prepare his report:

To make this evaluation, I have reviewed the procedures

followed by the Department and the FBI, giving particular

attention to the means employed, the alternatives considered and the decisions made in attempting to resolve the

stand-off.

I have not been called upon to conduct a de novo factual

inquiry. A comprehensive factual report is being prepared

by the Department and the FBI. I have primarily relied

upon the record gathered by the Department as the basis

for the conclusions in this Report, supplemented by a number of follow-up interviews. However, I am satisfied that

the factual inquiry by the Department was conducted in a

thorough and objective manner. . . . I have been afforded

access to documents gathered in that effort and to the reports of interviews conducted for factual investigation. In

addition, since my appointment I participated in a number

of Department interviews. I have also conducted independent interviews of some witnesses.98

It is troubling that the Waco tragedy did not seem to merit a

‘‘vigorous and thorough investigation.’’ President Clinton called for

such an inquiry. Attorney General Reno promised that such an inquiry would take place. Neither took the steps necessary to make

sure it would happen. Congress and the American people demanded a ‘‘vigorous and thorough’’ analysis of the events leading

up to the tragedy. While Scruggs admitted to committee staff that,

at first, he believed that the FBI had in fact committed some sort

of error on April 19, 1993, he changed his mind early in the invesVerDate 11-MAY-2000 10:08 Jan 03, 2001 Jkt 000000 PO 00000 Frm 00035 Fmt 6659 Sfmt 6601 C:\REPORTS\67357.TXT HGOVREF1 PsN: HGOVREF1
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99 Interview with Richard Scruggs, Assistant U.S. Attorney, Department of Justice, in Miami,

FL (June 22, 2000). 100 ‘‘Events Surrounding the Branch Davidian Cult Standoff in Waco, Texas,’’ hearing before

the Committee on the Judiciary, 103d Cong., 13, 16 (Apr. 28, 1993) (emphasis added) (statement

of Janet Reno, U.S. Attorney General). 101 Id. at 83, 85 (emphasis added) (statement of William Sessions, former FBI Director). 102 Reno disclosed classified information regarding an Army special operations unit. That information remains classified.

tigation.99 An objective, thorough analysis should have been the

Justice Department’s top priority.

B. WHAT THE AMERICAN PEOPLE WERE TOLD BETWEEN 1993 AND 1999

1. 1993–1994—the Department of Justice Conducts the Post-Tragedy Investigation and the Criminal Trial

Congress and members of the media expressed concern with regard to the thoroughness of the Justice Department’s investigations

of BATF’s and the FBI’s handling of the Waco tragedy. In 1993, the

Committee on the Judiciary requested documents from several

agencies, including the Departments of Justice and Defense, the

FBI and Bureau of Alcohol, Tobacco and Firearms, regarding the

planning and execution of the initial BATF raid on February 28,

1993, and the subsequent FBI assault on April 19, 1993.

On April 28, 1993, Justice Department and FBI officials, including Attorney General Reno, then-HRT Commander Richard Rogers

and then-FBI Director William Sessions, testified before the House

Committee on the Judiciary regarding Attorney General Reno’s decisionmaking prior to, and HRT’s actions on, April 19, 1993. Attorney General Reno testified that HRT personnel did not employ pyrotechnic devices on the day of the fire:

I wanted, and received, assurances that the gas and its

means of use were not pyrotechnic.100

Sessions likewise stated that the tear gas that HRT personnel employed was in itself non-pyrotechnic:

CS gas, which is actually a powder, was selected because

it was best suited to be used in the circumstances we

faced. . . . One critical factor was that CS gas can be used

without pyrotechnics. It will not start or contribute to a

fire.101

No Justice Department or FBI official present at that hearing—

most significantly, HRT Commander Richard Rogers—corrected Attorney General Reno or Sessions or advised them that their testimony was misleading or inaccurate. According to Rogers, moreover,

other portions of Attorney General Reno’s testimony earlier that

afternoon so bothered him that he failed to listen to the remainder

of her testimony and, therefore, did not take note of her

misstatements with regard to HRT’s use of pyrotechnic tear gas on

April 19, 1993.102 In any case, Rogers told committee staff that he

would not have corrected Attorney General Reno because, in his

opinion, her statement was technically correct in light of the fact

that he deemed the tornado shelter, into which HRT personnel

fired pyrotechnic tear gas rounds, to be separate from the main

27

103 Interview with Richard Rogers, former Assistant Special Agent in Charge and Commander,

Hostage Rescue Team, FBI, in Phoenix, AZ (Aug. 9, 2000). Rogers’ statement, however, as discussed in ch. IV, above, is flatly contradicted by the language within the FBI’s proposed operations plan which suggests that HRT personnel considered everything within the concertina wire

surrounding the Branch Davidian residence as the ‘‘compound.’’ ‘‘WACMUR: Major Case #80— Assault on a Federal Officer,’’ briefing for the Attorney General at Bates Stamp No. WWC142– 0441 (Apr. 12, 1993) (exhibit 9). 104 Richard Scruggs, U.S. Department of Justice, ‘‘Report to the Deputy Attorney General on

the Events at Waco, Texas, February–Apr. 19, 1993,’’ (Oct. 8, 1993) (unredacted version) at 278– 279, 324 (emphases added) (footnotes omitted). 105 ‘‘Activities of Federal Law Enforcement Agencies Toward the Branch Davidians (Part I),’’ hearing before the Subcommittee on Crime of the Committee on the Judiciary and the Subcommittee on National Security, International Affairs, and Criminal Justice of the Committee

on Government Reform and Oversight, 104th Cong., 100, 107 (July 19, 1995) (statement of Ray

Jahn, Assistant U.S. Attorney) (emphasis added). 106Sadly, the Justice Department did not produce the requested documents until 3 days before

the start of the hearings. As Special Counsel Danforth noted, Justice Department officials were

more concerned in 1995 with their own political self-preservation than their duty of full disclosure to the American people and the Congress. John C. Danforth, Special Counsel, U.S. Department of Justice, ‘‘Interim Report to the Deputy Attorney General Concerning the 1993 ConContinued

Branch Davidian compound.103 Roger’s opinion on this matter defies logic and credulity.

Later in 1993, Scruggs reported to the American people that,

after receiving adequate briefings from Justice Department, FBI,

military and scientific advisors, the Attorney General approved the

dissemination of tear gas into the compound on April 19, 1993:

On April 12, 1993, the FBI presented the tear gas plan to

the Attorney General for her approval. Over the next several days the Attorney General and senior Justice Department and FBI officials discussed, debated and dissected,

every aspect of the plan . . . After becoming convinced

that some action was needed, the Attorney General vigorously questioned every aspect of the proposed plan, and

the FBI provided her the answers to all her questions.

* * * * *

In addition, a nationally recognized team of arson experts.

. . . has also concluded that the Davidians started the fire,

that the fire could not have been started by accident at a

single point of origin, and that the gas delivery systems

the FBI used were completely nonincendiary.104

As was discovered in 1999 and will be discussed below, Scruggs’ investigation was incomplete and his conclusion was wrong with

respect to the means by which HRT personnel delivered tear gas

on April 19, 1993.

In 1995, the subcommittees of the Committee on the Judiciary

and this committee (committees) convened joint hearings to review

the Waco tragedy. Among others, the subcommittees subpoenaed

William ‘‘Ray’’ Jahn, the Assistant U.S. Attorney who, with his

wife, LeRoy, prosecuted the surviving Davidians in the criminal

trial, to testify. Mr. Jahn told the subcommittees that no HRT

member fired ammunition other than the non-pyrotechnic tear gas:

‘‘On the 19th of April, though repeatedly fired upon by the occupants of [the Branch Davidian compound], the FBI did not fire a

shot, other than non-lethal ferret rounds which carried the CS

gas.’’ 105 This was not true.

In preparation for those hearings, the subcommittees requested

documents from the Justice Department, FBI and BATF.106 Many

28

frontation at the Mt. Carmel Complex, Waco, Texas’’ iii (2000). Justice Department officials refused to produce documents requested by the subcommittees until 3 days prior to the first day

of the hearings in 1995 and then produced disorganized collections of documents that were heavily redacted. While it may not have been possible to have reviewed and analyzed every document prior to the hearings, a thorough analysis might have found several documents that now

raise questions about the truthfulness of prior Justice Department and FBI testimony and/or

the completeness of the Justice Department-sponsored post-tragedy investigations. A reasonable

amount of time for congressional review of the documents would also have allowed the subcommittees to more substantively question law enforcement witnesses, such as FBI negotiator

Byron Sage and HRT Commander Rogers, regarding the specific use of M–651s in the FBI’s proposed operations plan. A reasonable period for such a review would also have allowed staff to

ask whether the use of those projectiles was expressly approved by Reno. The actions of those

within the Department of Justice responsible for it’s response to the subcommittees’ requests

does not stand as an endorsement of the Department’s professionalism. 107 Randy Haight, BATF Special Agent, ‘‘FBI Waco Detail After Action Report’’ 4 (Aug. 24,

1993) (exhibit 34). 108FBI interview with Mark Tilton, Special Agent, FBI at 1 (Apr. 20, 1993) (exhibit 35); FBI

telephone interview with Cort Traylor, Special Agent, FBI at 1–2, (June 21, 1993) (exhibit 36);

FBI telephone interview with David Corderman, Special Agent, FBI at 1–2 (June 8, 1993) (exhibit 37); FBI interview with Richard Intellini, Special Agent, FBI at 1, Waco, Texas (Apr. 21,

1993) (exhibit 38). 109FBI interview with R. Wayne Smith, Special Agent, FBI, in Richmond, VA at 5 (June 9,

1993) (exhibit 39). 110 Handwritten notes of interview with unidentified HRT personnel, Quantico, VA, date unknown, author unknown, at Bates Stamp No. WACO 004164 (emphasis added) (exhibit 40). 111 Id. at Bates Stamp Nos. H090899 018–H090899 019 (emphases added) (exhibit 41). 112 Id. at Bates Stamp No. H090899 023 (exhibit 42). 113WACMUR—F.B.I. H.R.T. interview schedule, 11/9/93, author unknown, at Bates Stamp

No. H090899 031 (exhibit 43).

of those documents likewise indicated that HRT personnel did not

use weapons or devices capable of fire ignition. For example, an

after-action report drafted by the BATF Special Agent who logged

the FBI’s tactical communications on April 19, 1993, and spoke

with various FBI agents regarding the FBI’s proposed operations

plan indicated that the FBI decided not to use devices or weapons

capable of fire ignition due to the risk of loss of life: ‘‘[n]on-military

rounds were utilized because they do not have a pyrotechnic deployment system which burns and creates a fire hazard.’’ 107 Other

documents also indicate that, once HRT agents heard the code

phrase ‘‘compromise’’ via radio, they delivered tear gas via non-pyrotechnic ferret projectiles.108

However, several documents gave cryptic indications that HRT

personnel had delivered tear gas by firing pyrotechnic, M–651 tear

gas rounds via M–79 grenade launchers:

• [Special Agent] Smith recalls one conversation, relative to the

utilization of some sort of military round to be used on a concrete

bunker and additional traffic pertaining to the need for additional gas rounds for the M–79 grenade launchers; 109

• 1 military tear gas round—goal—to deny that area and to channel exit.—did not want to send men into tunnel to flush out.— rounds bounced off; 110

• Corderman . . . Fired 1–4 incendiary rounds . . . 1 military

round at cement underground. . . . [Special Agent] Mohr—loaded military. . . . Hit front door; 111

• Bunker—Firing cupcake round—[black] roof . . . tried to penetrate—to open it up . . . CS bounced off; Beginning operation— to deny them access; 112

• [Special Agent] Bob Hickey . . . says [HRT Charlie Team personnel’s] unsuccessful attempt to put gas in the bunker—smoke in

big lie film; 113

29

114 Id. at H090899 033 (exhibit 44). 115 Handwritten notes of Interview with unidentified HRT personnel, Quantico, VA, date unknown, author unknown, at Bates Stamp No. H090899 037 (emphasis added) (exhibit 45). 116 Handwritten notes of interview with unidentified HRT personnel, Quantico, VA, date unknown, author unknown, at Bates Stamp No. WACO 004134 (exhibit 46). 117The plaintiffs included several of the surviving Branch Davidians and the estates of

Davidians who died on Apr. 19, 1993. 118Lawsuits were filed in several jurisdictions and were later transferred and consolidated

into the civil litigation heard by Judge Walter Smith, Jr., in the Federal district court for western Texas. 119 Hagen has served as a line attorney within the Justice Department’s Civil Litigation

Branch for several years and led the U.S.’ defense in the lawsuit concerning the U.S.S. Iowa’s 16-inch gun turret explosion, which, coincidentally, occurred on Apr. 19, 1986. 120 Under Federal and State law, it is proper to file a motion for summary judgment when:

(a) there is no material issue of genuine fact—i.e., no factual dispute exists; or (b) as a matter

of law, the action must be dismissed. See e.g., Fed. R. Civ. Pro. 56. 121See e.g., exhibits 40–46.

• [Special Agent] Dave Corderman . . . Smoke on film came from

a attempt to penetrate bunker w/1 military and 2 ferret rounds;

military [projectile] was grey [sic] bubblehead w/green base; Dave

fires 3 rounds into kitchen and less than 30 sec[onds] later sees

smok [sic]; 114

• Military [green] ring—outdoor pyrotechnic; 115 and

• Rebuttle [sic] Smoke from Bunker—came when these guys tried

to shoot gas into the Bunker. (Military gas round)—dark grey

bubblehead w/green base. 1 military round—2 others ferret. . . .

1st target ferret into Bunker . . . military bounced off also.116

Justice Department and FBI officials failed to inform the Congress in 1995 of these facts however, in an apparent hope that, 3

days before the hearings convened, no one would have the opportunity to find these documents and ask relevant questions. Their

failure raises serious concerns regarding why these officials did not

simply tell the Congress and the American people what they did

and why.

2. 1995–1996—The Civil Litigation Plaintiffs Allege that HRT Personnel Started the Fire

In 1994, the civil litigation plaintiffs 117 filed lawsuits that

sought compensation for the loss and damage that occurred.118 The

plaintiffs alleged, among other things, that the FBI and specific

HRT members violated the plaintiffs’ civil rights. The Department

of Justice assigned the defense of the case to an experienced Washington, DC-based, Justice Department attorney, Marie Hagen.119

Hagen filed a Motion for Summary Judgment to dismiss the action.120 The trial court took the matter under advisement.

As part of pre-trial discovery, the civil litigation plaintiffs obtained copies of handwritten notes created by Justice Department

attorneys and staff during November 1993 interviews of HRT personnel.121 The plaintiffs’ expert, Dr. Richard Sherrow, claimed in

support of the plaintiffs’ opposition to the government’s motion for

summary judgment and dismissal that the material collected and

stored by the Texas Department of Public Safety’s Texas Rangers

included at least one expended pyrotechnic tear gas grenade which

could have started the April 19, 1993, fire:

Besides the . . . Ferret cartridges, information from documents obtained from the FBI through the United States

30

122Declaration of Richard L. Sherrow, president, Richard L. Sherrow and Associates, at 6,

Andrade v. Chojnacki (S.D. Tex. Jan. 16, 1996) (No. H–94–0923) (Sherrow declaration) (exhibit

47). 123 Interview with Jacqueline Brown, Assistant General Counsel, Office of the General Counsel, FBI, in Washington, DC (Jan. 7, 2000). 124See facsimile from Jacqueline Brown, former Assistant General Counsel, Civil Litigation

Unit, Office of the General Counsel, FBI, to Monty Jett, Instructor, Firearms Training Unit, FBI

1 (Feb. 9, 1996) (exhibit 48). 125Memorandum from Robert Hickey, Supervisory Special Agent, FBI to Jacqueline Brown,

Assistant General Counsel, Civil Litigation Unit, Office of the General Counsel, FBI at 2–3 (Feb.

15, 1996) (Hickey memorandum) (emphasis added) (exhibit 49). As will be discussed, below, documents indicate that Brown spoke with both her supervisor, FBI Civil Litigation Unit Chief Virginia Buckles, and Hagen regarding the substance of the Hickey memorandum.

Department of Justice indicates that military pyrotechnic

munitions may have been fired into [the Branch Davidian

compound]. Documents disclosed indicate that agents could

not penetrate either the underground shelter roof or the

top of the rear four-story tower with Ferrets. Therefore,

they fired at least one ‘‘military’’ round and referred to this

munition as a ‘‘bubblehead’’. . . . The exact identity of a

‘‘bubblehead’’ would have to be determined before any possible contribution to the fire could be established.122

Upon receipt of the plaintiffs’ opposition and, particularly, the

Sherrow Declaration, Hagen asked FBI Assistant General Counsel

Jacqueline Brown to discover the basis for Sherrow’s allegation. In

response, Brown sent HRT Supervisory Special Agent Robert Hickey, an HRT member present at the Branch Davidian compound on

April 19, 1993, a copy of the Sherrow declaration.123 Brown also

spoke with an FBI tear gas expert, Monty Jett, to seek his assistance regarding the Sherrow Declaration allegations and asked his

help in responding to those allegations.124

Almost 1 year after the conclusion of the joint committee hearings in 1995, Hickey sent Brown a memorandum in February 1996

that analyzed the Sherrow declaration. Hickey did not refute the

Sherrow declaration charges but, in fact, corroborated the fact that

HRT personnel had employed pyrotechnic tear gas during the early

morning hours of April 19, 1993:

All chemical agents purchased and used at Waco were

non-flammable with the exception of two (2) or three (3)

military 40mm CS round [sic] as detailed later under the

‘‘Tactical Considerations’’ portion of this communication.

* * * * *

Shortly after the operation commenced on 4/19/93, the

HRT (Charlie Team) determined, after two (2) or three (3)

ferret rounds, that they were unable to penetrate the underground shelter roof which was their first target. Charlie

Team then requested to use 40mm military CS rounds in

an effort to penetrate the roof. Charlie Team was granted

authority to fire the military CS rounds. A total of two (2)

or three (3) rounds were fired at the underground shelter

roof.125

Brown received the Hickey memorandum. Brown’s diary indicates that she intended to speak with Hagen regarding the Hickey

memorandum but it is unclear as to whether Brown sent a copy of

31

126 Interview with Jacqueline Brown, Assistant General Counsel, Office of the General Counsel, FBI, in Washington, DC (Jan. 7, 2000); interview with Marie Hagen, Trial Attorney, Torts

Branch, FTCA, Civil Division, Department of Justice in Washington, DC (Nov. 16, 1999); interview with Marie Hagen, Trial Attorney, Torts Branch, FTCA, Civil Division, Department of Justice, in Washington, DC (Nov. 23, 1999); see also e-mail from James Touhey, Jr., Trial Attorney,

Torts Branch, FTCA, Civil Division, Department of Justice to Marie Hagen, Trial Attorney,

Torts Branch, FTCA, Civil Division, Department of Justice, et al., (Aug. 19, 1999) (‘‘[Brown] has

no recollection of having seen the memo. . . .’’). (Exhibit 50). 127See e.g., defendants’ reply memorandum at fn. 4, Andrade v. Chojnacki (W.D. Tex. Apr.

1, 1996) (No. W–96–CA–139) (emphasis added) (citations omitted) (due to the large size of this

memorandum, it will not be included as an exhibit to this report). 128 Id. at fn. 53, (citations omitted) (emphasis added).

the Hickey memorandum to Hagen or anyone else within the FBI

or the Justice Department.126

Rather than find the answer to the question that she asked

Brown, Hagen, instead, argued in 1996 to the trial court that

Sherrow’s allegation was baseless and unworthy of consideration.

Hagen made this representation even though Hickey had disclosed

the truth of the allegation to Brown:

Similarly, plaintiffs’ statement that the projectiles used to

insert tear gas ‘‘could have hit’’ persons inside the compound and ‘‘could’’ have started a fire is mere speculation

as to causation; there is no evidence that such incidents

actually occurred.127

* * * * *

The degree to which plaintiffs’ expert testimony is based

on speculation is demonstrated by Mr. Sherrow’s conclusion that the 40mm ordinance found within the compound

‘‘probably was fired by the U.S.’’ because it ‘‘could be fired

only from a military weapon and civilian possession of

these weapons is severely restricted.’’ This statement is extraordinary in that it ignores the virtual arsenal gathered

by the Davidians. . . . [Plaintiffs’ military munitions expert Rick] Stauber’s claim that these same munitions are

‘‘not of standard military issue,’’ . . . and therefore ‘‘only

a military organization probably would possess them’’ ...

even if true, does not warrant plaintiffs’ inference that the

United States must have fired them.128

Hagen continued to argue in 1997 that Sherrow’s declaration was

meritless and undeserving of consideration, even though Brown

had received the Hickey memorandum over a year beforehand:

3. Supplemental Declarations of Richard Sherrow.

Likewise, plaintiffs’ supplemental evidence concerning the

start of the fire on April 19, 1993, is legally inadequate to

avoid summary judgment. Testimony as to what could

have occurred amount to mere speculation which is insufficient to create a genuine issue of material fact. . . .

Sherrow’s declarations offer nothing but conclusory opinions.

* * * * *

Sherrow fails to explain how the mere presence of a 40

mm ordnance at the site justifies an opinion that, more

32

129Defendants’ reply to plaintiffs’ supplemental response to U.S.’ motions for summary judgment and supplemental declaration of Ramsey Clark at 5–6, Andrade v. Chojnacki (W.D. Tex.

Apr. 3, 1997) (No. W–96–CA–139) (emphasis in original) (citations omitted) (exhibit 51). 130Defendants’ reply memorandum of law at 66–67, Andrade v. Chojnacki (W.D. Tex. Mar.

19, 1998) (No. W–96–CA–139) (citations omitted) (emphases added) (exhibit 52). 131Defendants’ opposition to plaintiffs’ motion for leave to file supplemental evidence and

briefing at 2, Andrade v. Chojnacki (W.D. Tex. May 14, 1999) (No. W–96–CA–139) (emphases

added) (exhibit 53).

likely than not, conduct of the United States led to the

fire.129

On March 20, 1998, 2 years after Hickey wrote his memorandum

alerting, at a minimum, FBI officials that HRT personnel employed

pyrotechnic tear gas rounds on April 19, 1993, Hagen filed a reply

to the plaintiffs’ opposition and re-requested that the trial court

dismiss the lawsuit as meritless. With respect to Sherrow’s allegation about the use of pyrotechnic tear gas grenades, Hagen denied

that the allegation had any basis:

Plaintiffs also argue that the fire may have been started

by ‘‘munitions fired by the U.S.’’ . . . Like the testimony

regarding the start of the fire, however, this theory is mere

speculation which simply ignores the recorded words of the

Davidians who spread the fuel and lit the fires. Such speculation dissolves in the face of the recording made on April

19.130

As late as 1999, Hagen and the Department of Justice failed to

ascertain whether Sherrow’s declaration was based upon any fact.

A telephone call to the HRT personnel located 30 miles from Justice Department Headquarters would have likely led to the discovery of the Hickey memorandum. Instead, Hagen continued to argue

to the trial court that the allegations that HRT personnel fired pyrotechnic rounds on April 19, 1993 were unworthy of, at a minimum, an internal review within the Justice Department and the

FBI:

. . . [P]laintiffs have submitted nothing other than vague

generalizations and speculation about the existence of evidence that they claim was somehow missed by the prosecutors and defense attorneys in [the criminal prosecution], as

well as by congressional investigators. Such unsworn, unsupported speculation is insufficient to warrant discovery

at this juncture. Plaintiffs have had ample opportunity to

make their case for discovery in their prior submission to

the Court. After almost four years of litigation and submissions by the parties, the Court has more than enough information on which to base a ruling as to whether further discovery is necessary on any of the factual issues.131

Again, Justice Department officials failed to take advantage of

numerous opportunities to find and disclose the truth surrounding

the events of April 19, 1993. In failing to do so, those officials created the circumstances where dark suspicions regarding the actions

of Federal law enforcement on that day could grow.

33

132See letter from William Johnston, Assistant U.S. Attorney, Department of Justice, to Janet

Reno, U.S. Attorney General, at 1 (Aug. 30, 1999) (exhibit 54). 133 Id. 134 ‘‘Texas Rangers Division of the Texas Department of Public Safety, Investigative Report

Branch Davidian Evidence’’ 6 (Sept. 9, 1999) (exhibit 1). 135See memorandum from Marie Hagen, Trial Attorney, Torts Branch, FTCA, Civil Division,

Department of Justice, to Donald Remy, Deputy Assistant Attorney General, Department of Justice at 1 (Sept. 2, 1999) (exhibit 55). 136See e-mail from Marie Hagen, Trial Attorney, Torts Branch, FTCA, Civil Division, Department of Justice to Bert Brandenberg, former Director, Office of Public Affairs, Department of

Justice (Apr. 30, 1999) (exhibit 56). 137See e-mail from Bert Brandenberg, former Director, Office of Public Affairs, Department

of Justice to Marie Hagen, Trial Attorney, Torts Branch, FTCA, Civil Division, Department of

Justice (May 1, 1999) (exhibit 57). 138See letter from Marie Hagen, Trial Attorney, Torts Branch, FTCA, Civil Division, Department of Justice to William Johnston, Assistant U.S. Attorney, Department of Justice (May 3,

1999) (exhibit 58). 139See letter from Jeffrey Axelrad, Director, Torts Branch, FTCA, Civil Division, Department

of Justice, to James Blagg, U.S. Attorney for the Western District of Texas, Department of Justice (May 3, 1999) (exhibit 59). 140 E-mail from William Johnston, Assistant U.S. Attorney, Department of Justice to James

Blagg, U.S. Attorney for the Western District of Texas, Department of Justice (Aug. 2, 1999)

(exhibit 60); e-mail from William Johnston, Assistant U.S. Attorney, Department of Justice, to

James Blagg, U.S. Attorney for the Western District of Texas, Department of Justice (Aug. 17,

1999) (exhibit 61); e-mail from William Johnston, Assistant U.S. Attorney, Department of Justice, to William ‘‘Ray’’ Jahn, Assistant U.S. Attorney, Department of Justice (Aug. 19, 1999) (exhibit 62) (‘‘[t]he casing is labelled [sic] M–118 and it is said to fire the M–651 tear gas round.

. . . [A]t least that was the original information that I recall from [Texas Ranger] Joey Gordon.’’); e-mail from William Johnston, Assistant U.S. Attorney, Department of Justice, to Myron

Marlin, Director, Office of Public Affairs, Department of Justice (Aug. 26, 1999) (exhibit 63).

3. What the American People Learned in 1999

Documentary filmmaker Michael McNulty followed the civil litigation and found the plaintiffs’ allegation that FBI personnel started the fire to be of interest. McNulty contacted then-Assistant U.S.

Attorney William Johnston, the Assistant U.S. Attorney for Waco,

TX, and asked permission to inspect the material within the Rangers’ custody.132 Johnston contacted Department of Justice Director

of Public Affairs Bert Brandenberg, who authorized the request.133

Johnston authorized the Rangers to escort McNulty during his inspection. During six inspections, McNulty found a picture taken by

the Rangers during the week after the April 19, 1993, fire that portrayed at least one expended M–651 projectile.134

On April 30, 1999, Hagen learned from reading a McNultysigned declaration filed by the plaintiffs that McNulty had reviewed the Waco-related evidence after receiving permission to do

so from Johnston.135 Hagen telephoned Johnston who told her that

Brandenberg had authorized McNulty’s review. Hagen contacted

Brandenberg to confirm Johnston’s statement.136 Brandenberg confirmed Johnston’s statement.137 Hagen wrote Johnston and ordered

him to permit no further inspections.138 Justice Department Torts

Branch Director James Axelrad likewise wrote Johnston’s supervisor, U.S. Attorney for the Western District of Texas, James

Blagg, and ordered that no further inspections take place.139

Johnston concluded that the existence of evidence regarding the

use of potentially pyrotechnic tear gas grenades required further

study. Johnston repeatedly notified Blagg and other Justice Department officials about what the Rangers were discovering as the

Rangers continued their investigation.140

On July 27, 1999, Texas Department of Public Safety Chairman

James Francis announced that McNulty and the Texas Rangers

had discovered at least one 40 millimeter pyrotechnic round within

34

141Lee Hancock, ‘‘2 Pyrotechnic Devices Fired at Davidians, Ex-Official Says Government Denies Former FBI Agent’s Statements,’’ the Dallas Morning News, Aug. 24, 1999 at 1A (exhibit

3).142 Coulson participated in the 1993 standoff as a Washington, DC-based, FBI manager.

Coulson, as the founder and first commander of HRT, possessed knowledge regarding the tactics

and equipment available to HRT personnel. Coulson also spoke often with Rogers, assisted in

the draft of the FBI’s proposed operations plan, attended briefings for Attorney General Reno

and Sessions and watched the tragedy on CNN from within the FBI’s Strategic Incident Operations Center (SIOC) on Apr. 19, 1993. See FBI interview with Danny Coulson, former Deputy

Assistant Director, FBI at 3–7 (July 13, 1993) (exhibit 64); see also Transcript of Coulson Deposition at 27:9–28:19, Andrade v. Chojnacki (W.D. Tex. Feb. 22, 2000) (No. W–96–CA–139) (exhibit 65).

the evidence maintained by the Rangers.141 Lee Hancock, a reporter for the Dallas Morning News who had reported on the

Branch Davidian tragedy since 1993, contacted retired FBI Deputy

Assistant Director Danny Coulson regarding the Rangers and

McNulty’s findings.142

Hancock explained to Coulson that Sherrow had alleged that

HRT personnel fired pyrotechnic tear gas grenades on April 19,

1993, and that those rounds may have started or exacerbated the

fire. Hancock also told Coulson of McNulty’s discovery of the pictures of the expended rounds. Coulson told Hancock that the use

of those rounds had been a well-known fact among HRT personnel.

The Dallas Morning News highlighted Coulson’s statements in its

article:

The former official, Danny O. Coulson, said in an interview

that two devices known as M–651 CS tear gas grenades

were fired from FBI grenade launchers hours before the

compound erupted in flames April 19, 1993. He said they

were used with permission from FBI supervisors and that

they played no role in starting the fire.

* * * * *

But Mr. Coulson, then a deputy assistant director for the

FBI’s criminal investigative division, said he learned . . .

that two M–651 CS cartridges were fired at an area known

as ‘‘the pit,’’ an underground structure that led to tunnels

that opened into the compound.

‘‘There were at least two pyrotechnic devices used that

day,’’ said Mr. Coulson, who helped supervise the government’s handling of the siege.

* * * * *

Mr. Coulson said two devices were fired after the request

was approved by FBI supervisors, including rescue unit

Commander Richard Rogers.

* * * * *

Mr. Coulson said he had no idea why FBI officials did not

acknowledge the use of the pyrotechnic devices in their

statements to Congress and to investigators who conducted

a lengthy Justice Department review of FBI actions at

Waco.

35

143Lee Hancock, ‘‘2 Pyrotechnic Devices Fired at Davidians, Ex-Official Says Government Denies Former FBI Agent’s Statements,’’ the Dallas Morning News, Aug. 24, 1999 at 1A (exhibit

3).144 Id. (citing statement of Justice Department Director of Public Affairs Myron Marlin). 145See memorandum from the Office of Inspections, Inspection Division, FBI, to Inspection

Division, FBI (Aug. 26, 1999) (exhibit 66). 146Lee Hancock, ‘‘FBI to Acknowledge Use of Pyrotechnic Devices; New Account on Branch

Davidian Fire Expected,’’ the Dallas Morning News, Aug. 25, 1999 at 1A, (citing statement by

Francis) (exhibit 67). 147Lee Hancock, ‘‘Reno Says FBI Had Assured Her on Raid; She Says Pyrotechnics Not Part

of Plan,’’ the Dallas Morning News, Aug. 27, 1999 at 1A (exhibit 68).

‘‘The first thing they should’ve said, if we knew, they

should’ve said we fired,’’ said Mr. Coulson. . . . ‘‘That’s a

problem.’’ 143

In response to Coulson’s statements, Justice Department officials

flatly denied that FBI agents had fired any such device: ‘‘ We are

aware of no evidence to support the notion that any pyrotechnic devices were used by the federal government on April 19. . . . We’ve

said that all along.’’ 144 FBI officials, however, prepared another internal investigation into what incendiary or pyrotechnic rounds

HRT personnel possessed on April 19, 1993.145

In support of Coulson’s revelation, Texas Public Safety Commission Chairman James Francis stated that the Rangers possessed

‘‘overwhelming’’ evidence that confirmed that HRT personnel had

in fact fired pyrotechnic tear gas grenades on April 19, 1993:

There are written reports by Rangers, there is photographic evidence, there is physical evidence, all three of

which are problematic.

* * * * *

I would suggest that Janet Reno get a full briefing of the

facts. She’s not getting the facts,’’ he said. ‘‘I can’t understand for the life of me why a senior FBI official’s statement was flatly contradicted by the Department of Justice

without even checking the facts.’’ 146

Two days later and in reaction to public and congressional outrage, Attorney General Reno stated that, prior to April 19, 1993,

she had directed FBI officials not to use pyrotechnic devices during

the assault: ‘‘I did not want those used. I asked for and received

assurances that [the tear gas projectiles used on April 19, 1993]

were not incendiary. . . .’’ 147 Unfortunately, a ‘‘thorough and vigorous investigation’’ had not been done to learn if those assurances

were, in fact, true.

Further controversy erupted in the press on August 30, 1999,

when the Dallas Morning News obtained a copy of a five page letter from the Waco-based Assistant U.S. Attorney, William Johnston, to Attorney General Reno. In his letter, Johnston detailed his

efforts to resolve the mystery of the pyrotechnic devices, accused

Justice Department officials of trying to intimidate him, and asserted that individuals within the Justice Department were trying

to keep the truth hidden:

Last week, a fax originated with the Department of Justice

came to me. The fax was in three pages. . . . It has been

suggested to me that these documents were sent to me to

‘‘hang over my head,’’ or to say that I’d better look out stirVerDate 11-MAY-2000 10:08 Jan 03, 2001 Jkt 000000 PO 00000 Frm 00045 Fmt 6659 Sfmt 6601 C:\REPORTS\67357.TXT HGOVREF1 PsN: HGOVREF1
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148Letter from William Johnston, Assistant U.S. Attorney, Department of Justice, to Janet

Reno, Attorney General 3–4 (Aug. 30, 1999) (emphases added) (exhibit 69). Committee staff contacted Johnston and asked him to speak to staff and produce relevant documents. To avoid conflict with Justice Department regulations with respect to the production of material to outside

sources, Johnston asked for and received a committee subpoena that ordered him to produce

this information. 149 Exhibits 40–46. 150 Report from the FBI Laboratory to James Miller, Sergeant, Texas Rangers, Texas Department of Public Safety at 49 (Dec. 6, 1993) (exhibit 70). The committee became concerned in September 1999 that Justice Department officials had failed to produce a complete copy of the 49

page lab report to the committees in 1995. Committee staff found that the committee had received the first 48 pages of the lab report but had not received the last page that identified the

expended, military tear gas projectile. At least two additional complete copies of the lab report

were located in the mass of documents produced to the committees after lengthy delays, and

just 3 days before the hearings convened in 1995. As noted earlier, the documents were produced at a time and in a fashion that made it difficult, if not impossible, to review them in

a systematic way and make use of them. It remains a mystery as to why the Justice Department

produced to the committees a version of the lab report that omitted the page that mentioned

a pyrotechnic device. Similar tactics have been employed time and time again by the Justice

Department and the White House in other investigations. On Oct. 10, 2000, the day that this

committee delivered copies of this report to its members for their preliminary consideration, the

Justice Department delivered additional documents responsive to the committee’s Sept. 1, 1999

subpoena. 151See memorandum from James Touhey, Jr., Trial Attorney, Torts Branch, FTCA, Civil Division, Department of Justice, to Jeffrey Axelrad, Director, Torts Branch, FTCA, Civil Division,

Department of Justice (Sept. 2, 1999) (exhibit 71).

ring this matter up, as I may have to explain [these documents]. So long as it is the truth ‘‘hanging over my head,’’

I am not afraid. I will not be intimidated by anyone with

the Department of Justice.148

On September 8, 1999 in response to this committee’s subpoena,

the Department of Justice produced documents to this committee

which indicated that FBI personnel informed superiors within the

FBI that HRT agents employed M–651 rounds to deploy tear gas

onto the compound on April 19, 1993.149 One of these documents,

a 49 page report prepared by the FBI crime laboratory on December 6, 1993, (FBI lab report) further indicated that, among the objects found in the remains of the compound after April 19, 1993,

the Rangers had located at least one and possibly three spent 40

millimeter projectiles.150 On August 19, 1999, Justice Department

Torts Branch trial attorney James Touhey, Jr. conducted a search

of documents via computer and not only located the missing 49th

page but, furthermore, located additional documents that Justice

Department officials failed to produce to the committee after the

1995 hearings. Touhey found that the Department of Justice could

account for 63 copies of the FBI lab report. The Justice Department: (1) produced at least one and possibly three full, 49 page copies of the FBI lab report to plaintiffs in the civil litigation; (2) produced a 48 page copy of the FBI lab report (missing the final page

that identified the spent rounds as M–651s) and at least two, fortynine pages of the Lab Report to the Committee on the Judiciary in

1995 in response to their requests; and (3) possessed as many as

56, full copies and at least three 48 page copies of the FBI lab report within Justice Department, FBI or U.S. Attorney files.151

The need for this committee, therefore, to commence its investigation into the actions and omissions of Federal law enforcement,

Justice Department and the military was both manifest and timely.

Until Attorney General Reno was forced to appoint Special Counsel

Danforth to investigate this matter, only this committee possessed

37

152FBI interview with Janet Reno, U.S. Attorney General, in Washington, DC 1 (Aug. 2, 1993)

(exhibit 72). 153FBI interview with Bruce Lindsey, Advisor to the President and Director of the Office of

Presidential Personnel, in Washington, DC (Sept. 1, 1993) (exhibit 73). 154See ‘‘WACMUR: Major Case #80—Assault on a Federal Officer,’’ briefing for the Attorney

General at Bates Stamp Nos. WWC142–0440—0441 (Apr. 12, 1993) (emphases added) (exhibit

9).155 Id. Neither individual, however, attended the Apr. 12, 1993, briefing and Attorney General

Reno never met Jamar until well after the end of the standoff.

the necessary jurisdiction and interest in finding true and complete

answers that the American people demanded for the last 6 years.

C. THE ATTORNEY GENERAL TAKES OFFICE IN MID-CRISIS

On February 28, 1993, the Department of the Treasury requested

FBI assistance in response to the murder of four BATF agents that

day. Republican holdover and Acting Attorney General Stuart

Gerson managed the Justice Department and the Branch Davidian

crisis with the assistance of Acting-Deputy Attorney General Mark

Richard, Deputy Assistant Attorney General John Keeney, others

within the Justice Department, Judge Sessions and the FBI.

Gerson approved the request and authorized the deployment of

HRT advance personnel and equipment, including HRT Commander Richard Rogers to Waco. Justice Department and FBI officials based in Washington, DC received briefings from Jamar and

Rogers and visited the FBI positions near the compound to witness

FBI efforts. These officials also received briefings on contingency

plans that the FBI would employ if the Branch Davidians attempted to escape or assault FBI positions before full HRT deployment on site could be accomplished.

Janet Reno was confirmed as Attorney General on March 12,

1993 and received her first detailed briefing on the standoff during

the week of March 15, 1993.152 In response to a suggestion from

President Clinton through Hubbell and Presidential Advisor Bruce

Lindsey, Attorney General Reno asked if the military had been consulted with respect to the merits of the FBI’s proposed operations

plan.153 A briefing in response to Attorney General Reno’s query

was scheduled for April 14, 1993.

On April 12, 1993, the FBI representatives briefed Attorney General Reno for the first time on their proposed operations plan designed to resolve the standoff at the Branch Davidian compound.

FBI representatives presented Attorney General Reno with a briefing book that contained, among other things: (1) a summary of

events to that date; (2) the FBI’s strategy to resolve the standoff;

(3) the proposed operations plan; (4) the FBI’s method of gas delivery; and (5) other key facts.154

The April 12, 1993, briefing book identified Jamar and Rogers as

in charge of the tactical situation surrounding the Branch Davidian

compound.155 The April 12, 1993, briefing book also enclosed the

FBI’s proposed operations plan that described the means by which

HRT personnel hoped to resolve the standoff:

II. Mission

* * * * *

On order, utilize two Combat Engineer Vehicles (CEVs) to

deliver tear gas (CS) into White/Green section of the comVerDate 11-MAY-2000 10:08 Jan 03, 2001 Jkt 000000 PO 00000 Frm 00047 Fmt 6659 Sfmt 6601 C:\REPORTS\67357.TXT HGOVREF1 PsN: HGOVREF1
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156 ‘‘WACMUR: Major Case #80—Assault on a Federal Officer,’’ briefing for the Attorney General at Bates Stamp Nos. WWC142–0440 (Apr. 12, 1993) (emphases added) (exhibit 9). 157 Id. at Bates Stamp No. WWC142–0448.

pound structure. Four Bradley Vehicles (BV) will be positioned around the compound ready to supplement the CEV

[sic] in gas delivery, if needed. One of the four BVs will insert Ferret liquid tear gas rounds into the black covering of

the new unoccupied construction on the green side immediately after the introduction of tear gas into the previously

referenced white/green section of the compound structure.

* * * * *

Wait a period of time, which will depend on the subjects

[sic] response to the initial gas delivery and subsequent negotiations if any are possible, and deliver additional tear

gas utilizing a CEV into the Black/Red corner. Again, demand surrender by the occupants. Continue delivery of tear

gas into different parts of the compound structure at regular intervals for 48 hours or until all subjects have exited

compound and surrendered.156

The FBI’s proposed operations plan identified the two methods

by which it intended to insert the tear gas:

CS Gas Delivery methods (Tear Gas)

A. M79, grenade launcher uses a 40 mm liquid-filled ferret

round which delivers 25 grams of CS liquid on impact. In

Waco there are approximately 400 rounds of the 40mm liquid-filled gas ferret rounds available for HRT and SWAT

use. These rounds when fired from 20 yards or less are capable of penetrating a hollow core door.

* * * * *

B. M60 CEV with cylinder delivery system. One cylinder

has 15 one-second bursts per charge. Each burst will extend out approximately 55 feet from the cylinder creating

a fog or gas mist in the area. Each cylinder can be recharged 20 times. There are six cylinders on hand in Waco

with enough raw materials to recharge all 6 cylinders 20

times each.157

Nowhere in the FBI’s proposed operations plan or in the April

12, 1993, briefing book did the FBI indicate that the black covering

of the new unoccupied construction on the green side was considered by FBI on-site personnel as separate and apart from the

Branch Davidian compound. FBI officials also did not indicate to

Attorney General Reno that the FBI might, should the need arise,

utilize pyrotechnic devices more capable of penetrating that structure. The FBI’s proposed operations plan also did not indicate to

Attorney General Reno that HRT personnel, as a contingency, intended to use M–651 pyrotechnic tear gas rounds, automatic machine guns or high explosive grenades, if the need arose. Finally,

no FBI representative told Attorney General Reno during the week

prior to April 19, 1993, that HRT personnel might employ pyrotechnic or high explosive ammunition if they believed that the circumstances warranted their use.

39

158 In 1993, the former unit commander, then-Brigadier General Peter Schoomaker, served as

an Assistant Division Commander at Ft. Hood, TX. In response to a request from then-Texas

Governor Ann Richards, General Schoomaker’s superior asked him to travel to Waco and report

to the Governor on the situation. The then-unit commander, an Army Colonel, served at Fort

Bragg, NC. 159Transcript of interview with Janet Reno, U.S. Attorney General, in Washington, DC at

78:13–80:12 (Oct. 5, 2000) (exhibit 74 on file with the committee). 160In light of Special Counsel Danforth’s charter—to investigate ‘‘bad acts,’’ rather than ‘‘bad

judgment,’’ this omission from his report is not of concern. John C. Danforth, Special Counsel,

U.S. Department of Justice, ‘‘Interim Report to the Deputy Attorney General Concerning the

1993 Confrontation at the Mt. Carmel Complex, Waco, Texas’’ 2 (2000) (footnote omitted).

Rogers telephoned personal friends, the then-current and thenformer Army special operations unit commanders158 on the evening

of April 13, 1993, and asked them to travel to Washington, DC for

the purpose of briefing Attorney General Reno. As will be discussed

in detail below, the officers were reluctant to do so, in light of the

Posse Comitatus Act proscriptions, without the express authorization from their respective chains of command.

On April 14, 1993, Attorney General Reno attended a meeting at

FBI Headquarters to speak with FBI and military representatives

regarding the FBI’s proposed operations plan. During that meeting,

Attorney General Reno asked Schoomacher and the Colonel their

thoughts on the FBI’s proposed operations plan. Both officers, to

their credit, declined to offer a critique of the plan because of their

orders not to do so and their awareness of the Posse Comitatus Act

proscription. Both spoke generally about: (1) the effects of tear gas

on humans; (2) the eventual need to rest and retrain on-site HRT

personnel who, at that time, had been on duty for up to 42 days;

and (3) the fact that, if it were a military situation, they might

order an immediate, inclusive application of tear gas rather than

employing an incremental approach.

D. APRIL 16, 1993—ATTORNEY GENERAL RENO REJECTS THE FBI’S

PROPOSED OPERATIONS PLAN AND THEN REVERSES HER DECISION

April 16, 1993, is a key date in the Branch Davidian tragedy

timeline. On this date, Attorney General Reno disapproved execution of the FBI’s proposed operations plan at that time.159 Later

that morning, FBI Director Sessions requested an opportunity to

ask that the Attorney General reconsider her disapproval. After

meeting with Associate Attorney General Webster Hubbell, Attorney General Reno decided to reconsider her decision and the next

day she approved execution of the FBI’s proposed operations plan.

While Richard Scruggs, in 1993, and Special Counsel Danforth, in

2000, did find that Attorney General Reno in fact disapproved the

FBI’s proposed operations plan on this date, they did not discuss

why she reconsidered her decision.160 Attorney General Reno

wields substantial discretion to approve or disapprove the actions

of Federal law enforcement personnel. Concurrent with that responsibility, however, is the duty to account fully for the bases of

her actions. Attorney General Reno has never fully explained what

led her to reverse her decision.

As Special Counsel Danforth’s interim report noted, Hubbell

called Deputy Assistant Attorney General Mark Richard into his ofVerDate 11-MAY-2000 10:08 Jan 03, 2001 Jkt 000000 PO 00000 Frm 00049 Fmt 6659 Sfmt 6601 C:\REPORTS\67357.TXT HGOVREF1 PsN: HGOVREF1
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161 John C. Danforth, Special Counsel, U.S. Department of Justice, ‘‘Interim Report to the

Deputy Attorney General Concerning the 1993 Confrontation at the Mt. Carmel Complex, Waco,

Texas’’ 108 (2000). 162FBI interview with Mark Richard, Deputy Assistant Attorney General, Department of Justice in Washington, DC at 5 (July 15, 1993) (exhibit 75). 163 Interview with Mark Richard, senior counsel for the European Union and International

Criminal Matters and former Deputy Assistant Attorney General, Department of Justice in

Washington, DC (Apr. 20, 2000). 164 Id.; telephone interview with William Sessions, former FBI Director (Oct. 9, 2000). 165Director Sessions’ 1993 statement to the post-fire investigators indicates that he argued

to Attorney General Reno for approval of the FBI’s proposed operations plan on Apr. 16, 1993.

FBI interview with William Sessions, FBI Director, in Washington, DC at 7 (July 14, 1993) (exhibit 76). This statement seemed inconsistent with other statements and committee staff interviews with the Apr. 16, 1993, meeting participants. See e.g., FBI interview with Mark Richard,

Deputy Assistant Attorney General, Department of Justice in Washington, DC at 5 (July 15,

1993) (exhibit 75); interview with Mark Richard, senior counsel for the European Union and

International Criminal Matters and former Deputy Assistant Attorney General, Department of

Justice, in Washington, DC (Apr. 20, 2000); telephone interview with Carl Stern, former Director, Office of Public Affairs, Department of Justice, in Washington, DC (May 11, 2000); interview

with Floyd Clarke, former FBI Deputy Director, in Washington, DC (May 4, 2000). Committee

staff interviewed Sessions regarding this matter. During that interview, Sessions corrected his

1993 statement and stated that while he certainly wanted the Attorney General to approve the

proposed operations plan, he could not recall any conversation with the Attorney General during

which he argued for reconsideration of the FBI’s proposed operations plan. Telephone interview

with William Sessions, former FBI Director (Oct. 9, 2000). Sessions recalled no discussions during the Apr. 16, 1993, meeting after the Attorney General asked the FBI to prepare the additional materials. Id. Finally, Sessions recalled no conversations with the Attorney General after

the Apr. 16, 1993, meeting and prior to the Apr. 17, 1993, meeting during which the Attorney

General approved the FBI’s proposed operations plan. Id. 166FBI interview with Mark Richard, Deputy Assistant Director, Department of Justice, in

Washington, DC at 5 (July 15, 1993) (exhibit 75); see also interview with Mark Richard, senior

counsel for the European Union and International Criminal Matters and former Deputy Assistant Attorney General, Department of Justice, in Washington, DC (Apr. 20, 2000). 167The ‘‘statement’’ that the FBI prepared for the Attorney General became a second, detailed

briefing book. ‘‘WACO INVESTIGATION—Second Attorney General Briefing Book’’ at Bates

Stamp WWC425–0892–WWC425–2044, undated (due to the large size of these materials, it will

not be included as an exhibit to this report); see also FBI interview with Janet Reno, U.S. Attorney General, in Washington, DC at 5 (Aug. 2, 1993) (exhibit 72); FBI interview with Mary

Incontro, Deputy Chief, Terrorism and Violent Crimes Section, Criminal Division, Department

of Justice, in Washington, DC at 3–4 (July 22, 1993) (exhibit 77); Edward S.G. Dennis, Jr., U.S.

Department of Justice, ‘‘Evaluation of the Handling of the Branch Davidian Stand-off in Waco,

Texas’’ (Oct. 8, 1993) (redacted version) at 57–58.

fice the morning of April 16, 1993.161 Richard recalled that then

Justice Department Director of Public Affairs Carl Stern was already present in Hubbell’s office. Hubbell told Richard that Attorney General Reno had ‘‘disapproved’’ the FBI’s proposed operations

plan.162 Richard told committee staff that he was surprised at Hubbell’s pronouncement.163

Hubbell asked Richard what Richard thought would be the FBI’s

reaction to this news. Richard responded that the FBI would be

upset. Hubbell asked Richard if Richard thought that the FBI

should be told and offered the opportunity to discuss the matter.

Richard agreed and Hubbell telephoned FBI Director William Sessions and, without telling him the reason, asked Sessions to come

to his office.164

Sessions left FBI Headquarters, accompanied by then-FBI Deputy Director Floyd Clarke and, shortly, arrived at Hubbell’s office.

When Hubbell reiterated to the gathered individuals that Attorney

General Reno had ‘‘disapproved’’ the FBI’s proposed operations

plan, Sessions requested an opportunity to speak directly to the Attorney General.165 Hubbell responded by telling Sessions to wait

while Hubbell went to her office. Hubbell was gone, according to

Richard, for approximately 10 minutes.166

Hubbell reappeared with Attorney General Reno and, almost immediately, she told the attendees that she wanted the FBI to prepare a statement 167 for her that would include all facts in support

41

168FBI interview with Janet Reno, U.S. Attorney General, in Washington, DC at 5 (Aug. 2,

1993) (exhibit 72); FBI interview with Webster Hubbell, Associate Attorney General, Department of Justice, in Washington, DC at 5 (Aug. 3, 1993) (exhibit 78); telephone interview with

Carl Stern, former Director, Office of Public Affairs, Department of Justice, in Washington, DC

(May 11, 2000); interview with Floyd Clarke, former FBI Deputy Director, in Washington, DC

(May 4, 2000). 169See e.g., interview with Mark Richard, senior counsel for the European Union and International Criminal Matters and former Deputy Assistant Attorney General, Department of Justice, in Washington, DC (Apr. 20, 2000). 170 ‘‘Waco Investigation—Second Attorney General Briefing Book’’ at Bates Stamp WWC425–

0892–WWC425–2044, undated; Richard Scruggs, U.S. Department of Justice, ‘‘Report to the

Deputy Attorney General on the Events at Waco, Texas, Feb. 28–Apr. 19, 1993,’’ (Oct. 8, 1993)

(unredacted version) at 287–288; see also interview with Floyd Clarke, former FBI Deputy Director, in Washington, DC (May 4, 2000); interview with Mary Incontro, former Deputy Chief,

Terrorism and Violent Crimes Section, Criminal Division, Department of Justice, in Washington, DC (Apr. 14, 2000). 171 John C. Danforth, Special Counsel, U.S. Department of Justice, ‘‘Interim Report to the

Deputy Attorney General Concerning the 1993 Confrontation at the Mt. Carmel Complex, Waco,

Texas’’ 108–109 (2000); Richard Scruggs, U.S. Department of Justice, ‘‘Report to the Deputy Attorney General on the Events at Waco, Texas, Feb. 28–Apr. 19, 1993,’’ (Oct. 8, 1993) (unredacted

version) at 287–289 (‘‘On April 17, the Attorney General met in her conference room with Hubbell [and other Justice Department and FBI officials] to review the statement she had requested

the previous day. . . . The AG approved the plan with an execution date of Monday, April 19.

. . . [On April 18, 1993] The FBI provided her with the remainder of the supporting documentation for the statement, which Richard subsequently gave to the Attorney General’’) (footnotes

omitted). 172FBI interview with Janet Reno, U.S. Attorney General, in Washington, DC at 5 (Aug. 2,

1993) (exhibit 72) (‘‘She read only the chronology, gave the rest a cursory review, and satisfied

herself that the documentation was there.’’); Richard Scruggs, U.S. Department of Justice, ‘‘Report to the Deputy Attorney General on the Events at Waco, Texas, Feb. 28–Apr. 19, 1993,’’

(Oct. 8, 1993) (unredacted version) at 287, fn. 36. The Attorney General’s statement during the

2000 interview with committee staff that, in fact, she did review this second briefing book is

consistent only with the fact that she read the ‘‘chronology.’’ Transcript of Interview with Janet

Reno, U.S. Attorney General, in Washington, DC at 85:23–25 (Oct. 5, 2000) (exhibit 74 on file

with the committee).

of the FBI’s proposed operations plan.168 Several of the attendees

were surprised at Attorney General Reno’s directive, since, based

upon Hubbell’s information, she had ‘‘disapproved’’ the plan.169 In

hopes of satisfying her request, however, Sessions and Clarke returned to FBI Headquarters and directed subordinates to prepare

the requested materials.170 FBI representatives gave this second

briefing book to Attorney General Reno sometime on April 17. After

reconsidering her earlier disapproval, Attorney General Reno approved the FBI’s proposed operations plan during the evening of

April 17, 1993.171 Attorney General Reno has stated that she did

not carefully review the materials from the FBI prior to approving

the FBI’s proposed operations plan.172

Scruggs learned of Attorney General Reno’s unexplained reversal

during the course of his investigation. Richard and others, at a

minimum, told the investigators of these events and Richard, in

particular, expressed to them his surprise at her change of heart:

RICHARD related that on Friday, April 16, 1993, he was

called to HUBBELL’s office where he met with HUBBELL

and CARL STERN. HUBBELL advised that the Attorney

General had disapproved the FBI plan to end the siege.

RICHARD related he was asked by HUBBELL what the

reaction of the FBI might be. RICHARD stated he related

that the FBI would not be pleased, but would accept it

however, may talk in terms of withdrawal. RICHARD related that HUBBELL further asked if RICHARD would

like to speak with the Attorney General, but RICHARD

42

173FBI interview with Mark Richard, Deputy Assistant Attorney General, Department of Justice, in Washington, DC at 5 (July 15, 1993) (exhibit 75). 174 Richard Scruggs, U.S. Department of Justice, ‘‘Report to the Deputy Attorney General on

the Events at Waco, Texas, Feb. 28–Apr. 19, 1993,’’ (Oct. 8, 1993) (unredacted version) at 286–

287; Edward S.G. Dennis, Jr., U.S. Department of Justice, ‘‘Evaluation of the Handling of the

Branch Davidian Stand-Off in Waco, Texas’’ (Oct. 8, 1993) (redacted version) at 57–58. 175See e.g., Transcript of Interview with Janet Reno, U.S. Attorney General, in Washington,

DC at 78:13–85:25 (Oct. 5, 2000) (exhibit 74 on file with the committee); interview with Mark

Richard, senior counsel for the European Union and International Criminal Matters and former

Deputy Assistant Attorney General, Department of Justice, in Washington, DC (Apr. 20, 2000);

interview with Floyd Clarke, former FBI Deputy Director, in Washington, DC (May 4, 2000);

telephone interview with Carl Stern, former Director, Office of Public Affairs, Department of

Justice, in Washington, DC (May 11, 2000); interview with Larry Potts, former FBI Assistant

Director, in Washington, DC (May 30, 2000). 176See generally, FBI interview with Janet Reno, U.S. Attorney General, in Washington, DC

(Aug. 2, 1993) (exhibit 72); ‘‘WACMUR: Major Case #80—Assault on a Federal Officer,’’ briefing

for the Attorney General (Apr. 12, 1993) (exhibit 9). See ‘‘Activities of Federal Law Enforcement

Agencies Toward the Branch Davidians (Part 3),’’ hearings before the Subcommittee on Crime

of the Committee on the Judiciary and the Subcommittee on National Security, International

Affairs, and Criminal Justice of the Committee on Government Reform and Oversight, 104th

Cong., 357, 357–359, 370–372 (Aug. 1, 1995); see also Transcript of Interview with Janet Reno,

U.S. Attorney General, in Washington, DC at 78:13–79:10 (Oct. 5, 2000) (exhibit 74 on file with

the committee).

advised he had nothing more to tell her then [sic] what she

already knew.

* * * * *

HUBBELL stated that he was going to contact Director

SESSIONS and shortly thereafter, the Director, [FBI Deputy Director Floyd] CLARKE and [then-FBI Assistant Director for Criminal Investigations Larry] POTTS arrived.

RICHARD related that HUBBELL advised of the Attorney

General’s disapproval of the plan to end the siege and Director SESSIONS acknowledged that he would like to

speak to the Attorney General.173

Scruggs attached no particular significance to this event. Dennis,

moreover, failed to even mention this reversal and discuss its import.174

Committee staff questioned several of the April 16, 1993, meeting participants with respect to Attorney General Reno’s decision

to disapprove, reconsider and, finally, approve the FBI’s proposed

operations plan.175 It seemed curious that, in light of her numerous

public statements that she considered all facts carefully before approving the FBI’s proposed operations plan, in fact, she disapproved the plan, reconsidered her decision on April 16, 1993,

and, finally, approved the plan on April 17, 1993. Attorney General

Reno has yet to account fully for this decisionmaking process and

the facts that she considered during this forty-eight hour period.

Prior to her April 16, 1993, decision to disapprove the FBI’s proposed operations plan, Attorney General Reno received all the information relating to: (1) the tactical situation; (2) HRT personnel

fatigue; (3) the potential for harm if tear gas were employed; (4)

the status of water and food supplies within the Branch Davidian

compound; (5) the safety and well being of the children that resided

within the compound; and (6) the timing of the execution of the

plan—the factors that she publicly has stated she relied upon to

reach her decision.176 Based upon this information, in fact, she disapproved the FBI’s proposed operations plan on April 16, 1993. The

Attorney General did not carefully review all the requested additional information from the FBI prior to her later reversal. AttorVerDate 11-MAY-2000 10:08 Jan 03, 2001 Jkt 000000 PO 00000 Frm 00052 Fmt 6659 Sfmt 6601 C:\REPORTS\67357.TXT HGOVREF1 PsN: HGOVREF1
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177 Judiciary Committee Chairman Henry Hyde asked the Attorney General in 1995 to explain

the basis for this reversal and to disclose what Hubbell told her during the 10–15 minutes on

Apr. 16, 1993, when Hubbell left Sessions, Clarke, Richard and Stern in his office to bring Attorney General Reno back to discuss her disapproval with those officials. The Attorney General,

instead, discussed the information that she had learned prior to Apr. 16, 1993—information

which led her to ‘‘disapprove’’ the FBI’s proposed operations plan. ‘‘Activities of Federal Law Enforcement Agencies Toward the Branch Davidians (Part 3),’’ hearings before the Subcommittee

on Crime of the Committee on the Judiciary and the Subcommittee on National Security, International Affairs, and Criminal Justice of the Committee on Government Reform and Oversight,

104th Cong., 357, 370–372 (Aug. 1, 1995). 178 Even though in 1993 the SIOC was advanced in its ability to communicate in a secure

fashion with on-site crisis managers, it lacked access to real-time, tactical information, such as

the tactical radio frequencies and forward-looking infrared (FLIR) camera images that were

available to on-site FBI personnel. Consequently, those within the SIOC on Apr. 19, 1993, gathered around several large television screens to watch CNN’s coverage of the unfolding tragedy. 179Since 1993, the FBI has significantly expanded and improved the size and capability of

its SIOC. 180 A door normally kept closed, however, separated each room.

ney General Reno has yet to explain what information caused her

to reconsider and, later, approve the FBI’s proposed operations

plan.177

As stated earlier, the Attorney General, like any senior government official, must use discretion with respect to decisionmaking.

The concurrent duty to account for that discretionary decisionmaking authority, however, also exists. The Attorney General’s failure to disclose fully her reasons for reversing her decision is inconsistent with the President’s directive to make all of the facts public.

E. APRIL 19, 1993—SEASONED FBI OFFICIALS WITHIN SIGHT OF ATTORNEY GENERAL RENO FAILED TO WARN HER THAT THE FBI’S ACTIONS

AT WACO DEVIATED FROM THE OPERATIONS PLAN THAT SHE APPROVED

The FBI maintained a Significant Incident Operations Center

(SIOC) within FBI Headquarters from which senior, Washington,

DC-based Justice Department and FBI officials were able to send

and receive communications pertaining to the Waco stand-off. The

SIOC was the location within FBI Headquarters from which Attorney General Reno, Hubbell, Sessions, Clarke, Stern and other senior and mid-level Justice Department and FBI officials were able

to witness the unfolding developments of Waco.178

An understanding of the SIOC’s layout is important to understanding how the tragic events of April 19, 1993, occurred.179 The

SIOC contained three rooms. In one was a large, main room in

which mid-level FBI personnel maintained communications with

on-site crisis personnel and had several large television screens.

The second, smaller room contained technical equipment used to

secure communications with on-site tactical personnel and was

manned at all times by technical personnel. The final room was a

small conference room used by senior Justice Department and FBI

personnel. All three rooms were connected 180 and the conference

room included three glass windows looking into the main room. On

April 19, 1993, personnel moved freely from one room to another

in response to requests for information or other tasks.

FBI Deputy Assistant Director Danny Coulson and Michael

Kahoe, Chief of the FBI’s Violent Crimes and Major Offenders Section, sat in the main SIOC room and, in addition to traversing the

rooms when requested to perform tasks, watched the operation unfold on one of the television screens. Attorney General Reno, HubVerDate 11-MAY-2000 10:08 Jan 03, 2001 Jkt 000000 PO 00000 Frm 00053 Fmt 6659 Sfmt 6601 C:\REPORTS\67357.TXT HGOVREF1 PsN: HGOVREF1
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181The participants all recalled that many people moved in and out of the conference room

that morning. 182 Central Standard Time. 183See FBI interview with Danny Coulson, former Deputy Assistant Director and Special

Agent in Charge, FBI in Washington, DC at 4–8 (July 13, 1993) (exhibit 64); FBI interview with

E. Michael Kahoe, former Section Chief, Violent Crimes and Major Offenders Section, Criminal

Investigation Division, FBI in Washington, DC at 1–2 (July 14, 1993) (exhibit 80); Transcript

of Coulson Deposition at 11:24–12:4; 34:22–42:6, Andrade v. Chojnacki (W.D. Tex. Feb. 22, 2000)

(No. W–96–CA–139) (exhibit 64). 184 Id.

bell, Clarke, Stern, Sessions and others 181 watched the events from

within the conference room.

HRT personnel commenced execution of the FBI’s proposed operations plan at 5:55 a.m.182 Approximately 5 hours later, Rogers directed an HRT-manned CEV to drive into the walls of the compound. Both Kahoe and Coulson expressed surprise at the action.

Coulson and Kahoe, based upon their personal experience and

training, participated in the initial drafting and editing of the FBI’s

proposed operations plan and briefed senior Justice Department

and FBI personnel regarding the stand-off.183 Both men had participated in numerous meetings during the previous week during

which she was briefed. Both men had also communicated extensively with Rogers since February 28, 1993, on the specifics of the

FBI’s proposed operations plan.184 In sum, both men knew the details, intent and specific orders of the plan that Attorney General

Reno had approved.

When Coulson and Kahoe noticed the actions of the CEV, they

expressed surprise at the actions. Coulson and Kahoe knew that

any penetration of the Branch Davidian compound was not supposed to have occurred until 2 days later—after attempts to force

the Davidians out of the compound through tear gas insertion had

failed. As Coulson stated during his deposition, both verbally communicated their surprise:

Q. Okay, Okay. Where were you located on April 19, 1993,

within SIOC?

A. I was in the main SIOC area, but not in the [conference

room]

Q. And who were you in close proximity to? And I realize

we’re talking about a period of several hours, so——

A. Mr. Kahoe was out in that main part of the SIOC area.

I believe that Mr. Evans was. Mr. Betz, probably Mr.

Lovin and Mr. Glasser, and various agents and support

staff.

Q. Now, at some point, during the day on April 19, 1993,

you were able to see, from the television broadcasts from

[the Branch Davidian compound], the tanks penetrating

the building, not with a boom and not just at a window,

but, actually, you saw CEV–1 go fully into the building on

the front side, correct?

* * * * *

A. I don’t know if it was CEV–1, CEV–2, C—I have no idea

of the nomenclature for——

Q. All right, sir.

45

185Transcript of Coulson Deposition at 59:5–60:22; 150:9–151:5, Andrade v. Chojnacki (W.D.

Tex. Feb. 22, 2000) (No. W–96–CA–139) (exhibit 65).

A. The CEV. I did see a tracked vehicle go, penetrate further into the building that I’d seen them earlier.

Q. And we’ve had testimony that there was some surprise,

when that happened, within SIOC, and people made comments and that sort of thing. Who were you with or seated

next to, for example, when that CEV went into the building, fully penetrated the building?

A. Mike Kahoe.

Q. Did you say anything, or did Mr. Kahoe say anything

at that time?

A. Yes. He said something, and I said something.

Q. What did he say?

A. ‘‘Holy shit.’’

Q. Did he say anything else other than ‘‘Holy shit?’’

A. That’s all I recall.

Q. All right, sir. What did you say?

A. I said, ‘‘I hope that’s a bad camera angle.’’

Q. Meaning that you hoped it looked worse on television

than it was?

* * * * *

A. I had hoped that it didn’t penetrate as far as it appeared on television, which is often the case.

* * * * *

Q. All right, sir. Now, do you recall the [FBI’s proposed operations plan] contemplating the penetration of the tanks,

the body of the tanks fully into the building on the front

of [the Branch Davidian compound] on April 19, 1993?

A. No.

Q. And that’s when Mr. Kahoe said ‘‘Holy shit’’ and that’s

why you said ‘‘I hope that’s a bad camera angle?’’

* * * * *

A. I can’t speak for Mr. Kahoe. I can speak for myself, in

that my first reaction is, we’re going to lose that tank, that

the tank could be disabled and trapped inside the building.

That was my very first thing 0when I saw it. And I did—

I was surprised to see the activity.

Q. And it was not something that you had contemplated,

based on your understanding of the plan, would occur on

April 19, 1993; correct ?

A. No, I did not contemplate that.185

The statements of surprise from both Coulson and Kahoe—seasoned FBI officials who participated in the draft of the FBI’s proposed operations plan is disturbing for two reasons. First, the fact

46

186President William Clinton, remarks by the President in question and answer session with

the press in Washington, DC at 2 (Apr. 20, 1993) (exhibit 24). 187 Corderman radioed McGavin who contacted and received authorization from Rogers. Interview with David Corderman, Special Agent, FBI, in Washington, DC (Nov. 4, 1999); interview

with Steven McGavin, Special Agent and former Deputy Commander, Hostage Rescue Team,

FBI, in Washington, DC (June 5, 2000); interview with Richard Rogers, former Assistant Special

Agent in Charge and Commander, HRT, FBI, in Phoenix, AZ (Aug. 9, 2000).

that these two men were alarmed by the HRT Commander Richard

Rogers’ orders and the actions of HRT personnel in response reflects the fact that Rogers deviated from the plan as approved by

the Attorney General. Second, the fact that these individuals did

not communicate their concerns to the Attorney General and other

senior, Justice Department and FBI officials sitting 10 to 20 feet

away from them is of great concern. In light of the fact that both

possessed practical experience in situations such as Waco and direct knowledge relating to the specific tactics to be employed that

morning, Attorney General Reno, FBI Director Sessions and other

senior officials should have been requested that they make themselves directly available for consultation during the morning of

April 19, 1993. At a minimum, they should have felt free or been

directed to offer their advice to the Attorney General and Director

Sessions if they had concerns or felt that they possessed information necessary for the Attorney General to possess. This failure of

communication among seasoned tactical professionals and the political leadership within the Department of Justice and the FBI may

lead to future tragedy if not corrected.

F. THE DEPARTMENT OF JUSTICE’S FAILURE TO CONDUCT A

‘‘THOROUGH AND VIGOROUS INVESTIGATION’’ IN 1993 AS ORDERED

On April 20, 1993, one day after the tragic resolution of the

stand-off at the Branch Davidian compound, President Clinton

stated that the Department of Justice would begin a ‘‘vigorous and

thorough investigation’’ into the responsibility for the deaths at

Waco.186 Attorney General Reno supported this command. As the

American people now realize, however, a ‘‘vigorous and thorough’’

investigation was not done by the Justice Department. The Justice

Department’s failure to conduct a ‘‘vigorous and thorough investigation’’ has resulted in a loss of confidence on the part of the public in their government and in millions of dollars spent to examine

legitimate concerns that the entire story about Waco had not been

disclosed.

1. The Failure to Disclose the Use of Pyrotechnic Tear Gas Grenades

During the early morning hours of April 19, 1993, HRT member

David Corderman requested and received approval from Rogers to

fire pyrotechnic tear gas grenades into the underground structure

located adjacent to the main Branch Davidian compound.187 The

use of these rounds was neither contemplated in the FBI’s proposed

operations plan nor approved by the Attorney General. Rogers

granted his permission in deviation from his express orders not to

use any pyrotechnic device. While this deviation is of great concern,

it is unlikely that the use of these devices caused or exacerbated

the fire that began around noon on April 19, 1993. The rounds

were fired almost 4 hours prior to the start of the fire and there

47

188 Brady v. Maryland, 373 U.S. 83 (1963); United States v. Augurs, 427 U.S. 97 (1976). 189Superseding indictment at 6–7, United States v. Schroeder, (W.D. Tex. Aug. 6, 1993)

(Criminal No. W–93–CR–046) (exhibit 81). 190The Jahns, as co-lead counsel for the criminal trial, were responsible for collecting all relevant information regarding the events on Apr. 19, 1993, and the conduct of the prosecution

of the surviving Branch Davidian defendants. Justice Department officials relieved Johnston of

his responsibilities prior to Apr. 19, 1993, although he did assist in the conduct of the criminal

trial. As will be discussed below, Johnston interviewed Corderman and, like the Jahns, recognized the value of Corderman’s potential testimony. 191 Exhibits 40–45. 192 Exhibit 46.

is no indication that the use of these pyrotechnic rounds had any

relevance to the fire that began around noon on April 19, 1993.

Of more concern, however, is the fact that Federal law required

that the prosecutors disclose to the criminal defendants evidence

that would either: (1) tend to prove their innocence; (2) challenge

the prosecution witnesses’ statements regarding the start of the

April 19, 1993, fire; (3) impeach the prosecution witnesses’ credibility; or (4) support an alternative theory as to how the fire began.188

On August 6, 1993, lead criminal Justice Department prosecutors

Ray and LeRoy Jahn sought and received a criminal indictment of

several of the surviving Branch Davidians for, among other things,

conspiracy to murder HRT personnel on April 19, 1993. In doing

so, the Jahns alleged that the surviving Branch Davidians had

started the April 19, 1993, fire:

It was a part of the conspiracy that, on April 19, 1993 Vernon K. Howell, also known as David Koresh, would give instructions to spread flammable fuel within the [Branch

Davidian] Compound upon learning that the FBI was to

introduce tear gas into the Compound to end the siege. It

was part of the conspiracy that a coconspirator would and

did give instructions at about noon on April 19, 1993, to

start the fires with [the Branch Davidian Compound].189

In order to prove this allegation, the Jahns, Bill Johnston and a

paralegal named Reneau Longoria interviewed several HRT personnel regarding their recollections.190

Rogers and McGavin told the Jahns on or about November 9,

1993, that, in addition to employing non-pyrotechnic tear gas

rounds and tear gas deployed via the M–728 CEVs, HRT personnel

had sought and obtained authorization to fire pyrotechnic M–651

rounds during the morning of April 19, 1993. Rogers and McGavin

described in detail the rounds’ characteristics—such as the shape

and color of the rounds—and the reasons for their use.191 Rogers,

McGavin and other HRT personnel did not withhold from the

Jahns or the other criminal prosecutors information relating to the

use of these rounds. In fact, the prosecutors found this information

pertinent to their efforts to prosecute the criminal defendants, but

planned to disclose the use of these rounds but only if necessary

to rebut the defendants’ defense:

• ‘‘Rebuttle [sic] Smoke from Bunker—came when these

guys tried to shoot gas into the Bunker. (Military gas

round)—dark grey bubblehead w/green base. 1 military

round—2 other ferret. 1st target ferret into Bunker . . .

military bounced off also.’’ 192

48

193 Handwritten interview notes by Johnston with unidentified HRT personnel, date unknown,

location unknown at 1 (emphasis added) (exhibit 82). Johnston was the subject of much controversy during the summer and fall of 2000, after the media reported that Special Counsel

Danforth intended to seek an indictment of Johnston for, among other things, obstruction of justice and perjury. After the trial court ordered all Federal agencies to produce all relevant Wacorelated documents, Johnston found these three pages among his personal notes. According to

those press accounts, Johnston withheld these documents from production and thereafter lied

to Special Counsel Danforth’s investigators about his actions. As will be discussed below, Johnston also had a legal and ethical duty to comply with subpoenas issued by this committee on

Aug. 30, 1999, and Oct. 1, 1999, to produce these documents to Congress. He failed to do so. 194 Brady, Augurs; see also Fed. R. Crim. Pro. 16. 195 e.g., Garrison v. Maggio, 540 F.2d 1271 (5th Cir. 1976); United States v. Herberman, 583

F.2d 222 (5th Cir. 1978). The 5th Circuit Court of Appeals is the appellate court to which the

criminal defendants sought review of their convictions. In 1999, Justice Department Assistant

Attorney General and Criminal Division Chief Richard Durbin wrote the U.S. Attorney for the

Western District of Texas, William Blagg, and recommended that the information within the

Jahns’ possession in 1993—the fact that HRT personnel fired pyrotechnic tear gas grenades on

Apr. 19, 1993—be disclosed, pursuant to Brady to the plaintiffs in the civil litigation. E-mail

from Richard Durbin, Jr., Assistant Attorney General, Criminal Division, Department of Justice,

to William Blagg, U.S. Attorney for the Western District of Texas, Department of Justice (Sept.

8, 1999) (exhibit 83). 196Margolis served as the Associate Deputy Attorney General under then-Deputy Attorney

General Heymann and continues to do so. As he explained to committee staff, he possesses substantial experience, as a former Organized Crime Task Force Chief and Criminal Division Chief,

in determining Brady disclosure requirements. Interview with David Margolis, Associate Deputy

Attorney General, Department of Justice, in Washington, DC (Aug. 18, 2000). 197See e.g., e-mail from Richard Durbin, Jr., Assistant Attorney General, Criminal Division,

Department of Justice, to William Blagg, U.S. Attorney for the Western District of Texas, Department of Justice, et al. (Aug. 8, 1999) (exhibit 84); e-mail from William Blagg, U.S. Attorney

for the Western District of Texas, Department of Justice, to Richard Durbin, Jr., Assistant AtSimilarly, Johnston also learned that Corderman’s employment

of ‘‘military’’ incendiary rounds on the morning of April 19, 1993,

could explain issues that might arise during the trial: ‘‘one green

military (incind) . . . smoke . . . [s]hot bunker before compromise

. . . then military round. . . . [c]an explain smoke.’’ 193

These prosecutors failed to ascertain whether they had to disclose these facts to the criminal trial defendants—although they

may have been required to do so.194 The prosecutors also failed to

disclose these facts to senior Justice Department personnel. The

prosecutors may contend that these facts were not exculpatory because they were irrelevant to the defense. Such an assertion, however, fails to justify their actions. If the use of the pyrotechnic

rounds on April 19, 1993, was irrelevant or otherwise immaterial

to the case, then it should not have had rebuttal value. If the information had impeachment value or was otherwise material to the

defendants, Brady, its progeny and the 5th Circuit Court of Appeals’ interpretation of Brady required its disclosure.195 As Justice

Department Associate Deputy Attorney General David Margolis 196

told committee staff, Brady required the Jahns, as co-lead counsel,

to refer any question with respect to the disclosure of even potentially relevant material to the U.S. Attorney for the Western District of Texas, William Blagg, or to Washington, DC-based, Justice

Department officials for a Brady analysis. The criminal prosecutors

failed to do so.

In 1999, senior Justice Department officials reviewed Mrs. Jahn’s

1993 notes and the November 19, 1993, HRT interview schedule

that revealed the fact that Corderman had attempted to penetrate

the Branch Davidian’s underground bunker with pyrotechnic

rounds. The officials concluded that the information: (1) was potentially Brady material that the Jahns and Johnston should have disclosed; and (2) that the Justice Department should produce the material to the civil litigation plaintiffs.197

49

torney General, Criminal Division, Department of Justice (Aug. 8, 1999) (exhibit 85); memorandum from Richard Durbin, Jr., Assistant Attorney General, Criminal Division, Department of

Justice, to David Margolis, Associate Deputy Attorney General 1 (Sept. 9, 1999) (exhibit 86). 198 ‘‘Activities of Federal Law Enforcement Agencies Toward the Branch Davidians (Part I),’’ hearing before the Subcommittee on Crime of the Committee on the Judiciary and the Subcommittee on National Security, International Affairs, and Criminal Justice of the Committee

on Government Reform and Oversight, 104th Cong., 100, 107 (July 19, 1995) (statement of Ray

Jahn, Assistant U.S. Attorney) (emphasis added). 199Letter from Andre ́ Hollis, senior counsel, Committee on Government Reform, U.S. House

of Representatives, to Gerald Goldstein, partner, Goldstein, Goldstein and Hilley, and counsel

for William ‘‘Ray’’ Jahn and LeRoy Jahn (Sept. 12, 2000) (exhibit 87); letter from Gerald Goldstein, partner, Goldstein, Goldstein and Hilley, and counsel for William ‘‘Ray’’ Jahn and LeRoy

Jahn, to Andre ́ Hollis, senior counsel, Committee on Government Reform, U.S. House of Representatives (Sept. 21, 2000) (exhibit 88). 200Lee Hancock, ‘‘Waco Prosecutor Warns Reno Evidence Possibly Withheld; Notations About

File on Pyrotechnics Use Raised His Concerns,’’ the Dallas Morning News, Aug. 31, 1999 at 1A

(emphasis added) (exhibit 89).

Ray Jahn, as co-lead counsel and a participant in the November

1993 briefings with HRT personnel, knew that HRT personnel had

employed pyrotechnic rounds on April 19, 1993, and likewise

planned to introduce that fact as rebuttal evidence during the

criminal trial. Ray Jahn swore to the Congress in 1995, however,

that, ‘‘. . . the FBI did not fire a shot, other than the non-lethal ferret rounds. ...’’ 198 The Jahn’s decision to withhold from the defendants and the Congress the fact that HRT personnel employed

these rounds on April 19, 1993, arguably constitutes a significant

and material ethical lapse.

Johnston’s recognition of the value of Corderman’s testimony also

made him responsible for asking the Jahns or other Justice Department superiors for a Brady analysis. Either the Jahns and Johnston asked for such an analysis and were rebuffed, or they failed

to do so. The Jahns refused to meet with committee staff to explain

this possible lapse.199

Additional concerns are raised by the fact that Johnston, after

sending his August 30, 1999, letter to Attorney General Reno,

spoke to the press and further accused Washington, DC-based Justice Department officials of withholding information related to

Corderman’s actions:

Assistant U.S. Attorney Bill Johnston said he felt compelled to warn Ms. Reno after he was given a 5-year-old

document that discusses the use of ‘‘military gas’’ by the

FBI on April 19, 1993. He said he was concerned because

the document, a three page set of notes detailing an interview with members of the FBI’s hostage rescue team, included handwritten notations suggesting that it be kept

from anyone outside the department’s legal staff.

‘‘There are handwritten notes on the documents discussing

whether or not they should be disclosed, and, obviously,

they have not been,’’ said Mr. Johnston. . . . There was

discussion about whether they should be turned over,’’ he

said. ‘‘Obviously, the decision was made somewhere in

Washington that they ought not to be.’’ 200

As mentioned above, Johnston searched his own records in 1999

or 2000 and discovered his Corderman interview notes that also described Corderman’s employment of the pyrotechnic tear gas

50

201David Vise, ‘‘Waco Whistleblower Faces Indictment,’’ the Washington Post, Sept. 1, 2000

at A1 (exhibit 90). 202Subpoena duces tecum from the Honorable Dan Burton, chairman, Committee on Government Reform, U.S. House of Representatives, to William Johnston, Assistant U.S. Attorney, Department of Justice 3 (Aug. 30, 1999) (emphasis added) (exhibit 91). 203 Interview with Marie Hagen, Trial Attorney, Torts Branch, FTCA, Civil Division, Department of Justice, in Washington, DC (Nov. 23, 1999).

rounds.201 Even after finding these notes, Johnston failed to correct

his statements. Johnston could have produced the notes to the trial

court for a private review. Johnston should have produced them to

the committee in response to its August 30, 1999, or October 1,

1999, subpoenas. The committee’s August 30, 1999, subpoena to

Johnston, personally, ordered Johnston to produce documents related to the use of pyrotechnic tear gas rounds employed by HRT personnel. The request was continuing in nature, and, even if he had

discovered the documents long after the subpoena was issued, he

had a legal obligation to produce them to the committee. The terms

of the subpoena received by Johnston were as follows:

This subpoena is continuing in nature. Any record, document, compilation of data or information, not produced because it has not been located or discovered by the return

date shall be provided immediately upon location or discovery subsequent thereto.

* * * * *

Please provide the Committee with all records relating to

CS pyrotechnic tear gas rounds employed at the Waco

standoff.202

There is no ambiguity regarding the terms of this subpoena.

While Johnston deserves credit for his role in bringing to light

the use of pyrotechnic devices on April 19, 1993, a secret that

lasted for 7 years, his record in this matter is a mixed one. Had

Johnston not taken the initiative, the American people might have

remained badly misinformed about the entire tragedy. In this respect, Johnston performed a public service for which he suffered

undeserved reprisals from the Department of Justice. On the other

hand, Johnston’s apparent decision to withhold his handwritten

notes on the subject from Special Counsel Danforth and to this

committee cannot be overlooked or excused.

As mentioned earlier, Justice Department civil litigation lead attorney Marie Hagen asked FBI Assistant General Counsel Jacqueline Brown in 1996 to ascertain the basis for Sherrow’s assertion. Brown told committee staff that, after receiving Hickey’s

memorandum confirming the use of these rounds, she communicated these facts, orally or otherwise, to Hagen. Hagen disagreed

with Brown’s assertion and told committee staff that she never had

such a communication with Brown.203

Documents made available to committee staff indicate that

Brown did in fact share the Hickey memorandum with her supervisor, Virginia Buckles, and Hagen. For example, Brown, who

maintained a daily checklist of action items, recorded on February

19, 1996, the fact that she spoke with Hagen and other Justice Department officials regarding the Hickey memorandum and showed

them the document: ‘‘meet w/DOJ re dec[laration] . . . Sherrow

51

204 Jacqueline Brown, Assistant General Counsel, Civil Litigation Unit, Office of the General

Counsel, FBI, Dayplanner task list (Feb. 19, 1996) (exhibit 92). 205Matters of interest memorandum from Virginia Buckles, Unit Chief, Civil Litigation Unit,

Office of the General Counsel, FBI to Howard Shapiro, General Counsel, FBI 1–2 (Feb. 12, 1996)

(exhibit 93); see also matters of interest memorandum from Virginia Buckles, Unit Chief, Civil

Litigation Unit, Office of the General Counsel, FBI to Howard Shapiro, General Counsel, FBI

4–5 (Nov. 12, 1996) (Exhibit 94).

206 E-mail from James Touhey, Jr., Trial Attorney, Torts Branch, FTCA, Civil Division, Department of Justice, to Marie Hagen, Trial Attorney, Torts Branch, Civil Division, FTCA, Department of Justice et al., (Aug. 19, 1999) (exhibit 50).

Dec[laration] memo to M[arie] H[agen].’’ 204 Second, Buckles’ own

memoranda to then-FBI General Counsel Howard Shapiro detailing the status of then-ongoing FBI civil litigation referenced Buckles’ and Brown’s involvement in assisting Hagen and the Justice

Department to clarify the Sherrow declaration statements.205

When the use of pyrotechnic tear gas rounds became public in

1999, Justice Department attorneys spoke with Brown specifically

about the statements within the Hickey memorandum. Those Justice Department attorneys concluded that Brown had not knowingly withheld the Hickey memorandum:

I spoke to Lyn Brown about the document I found . . ., 2/

15/96 memo by Robert A. Hickey to attn. of Jacqueline F.

Brown. Lynn said that the first she heard of this memo

was during her conversation with Greg Parsons, her HRT

liaison [sic], which she related to Marie this morning. She

had no recollection of having seen the memo. . . . She

asked me to fax her a copy, which I did, as she has been

trying unsuccessfully to track down a copy. She bristled a

bit when I said that finding the memo this late in the day

had caused concern over here, in that we have been trying

to learn about the accusations of the use of military munitions for several weeks. . . . I tried to defuse the situation

by stating that I was not accusing Lynn of having hidden

anything (I do believe she’s telling the truth when she

states that she can’t recall having seen the memo before).206

Attorney General Reno also wondered whether Justice Department officials had attempted to confirm or deny the Sherrow declaration allegations and, if so, how Hagen responded. At first, those

officials told Reno that Hagen had not responded to the Sherrow

declaration allegations. Later, however, Justice Department officials admitted to the Attorney General that Hagen had in fact dismissed the Sherrow declaration allegations without first discovering the truth:

At our recent meeting, you asked whether we had responded in any way to Mr. Sherrow’s January 17, 1996,

declaration in support of the plaintiffs’ opposition to the

defendants’ motion to dismiss in the civil case. While it

was indicated to you that we had not responded because

the allegations were not germane to the main issues in the

case, our exhaustive search of all United States’ pleadings

after the meeting has resulted in the discovery of many inVerDate 11-MAY-2000 10:08 Jan 03, 2001 Jkt 000000 PO 00000 Frm 00061 Fmt 6659 Sfmt 6601 C:\REPORTS\67357.TXT HGOVREF1 PsN: HGOVREF1
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207Memorandum from Donald Remy, Deputy Assistant Attorney General, Civil Division, Department of Justice, to Janet Reno, U.S. Attorney General (Aug. 30, 1999) (exhibit 95 on file

with the committee). 208 Interview with Jacqueline Brown, Assistant General Counsel, Office of the General Counsel, FBI, in Washington, DC (Jan. 7, 2000); interview with Marie Hagen, Trial Attorney, Torts

Branch, FTCA, Civil Division, Department of Justice, in Washington, DC (Nov. 23, 1996); see

also John C. Danforth, Special Counsel, U.S. Department of Justice, ‘‘Interim Report to the Deputy Attorney General Concerning the 1993 Confrontation at the Mt. Carmel Complex, Waco,

Texas’’ 56 (2000). 209 Interview with Richard Scruggs, Assistant U.S. Attorney, Department of Justice, in Miami,

FL (Jan. 4, 2000); interview with Richard Scruggs, Assistant U.S. Attorney, Department of Justice, in Miami, FL (June 22, 2000). 210Scruggs served as an Assistant U.S. Attorney in Miami where he met and worked often

with Attorney General Reno who was then a State prosecutor for Dade County, FL. 211 Interview with Richard Scruggs, Assistant U.S. Attorney, Department of Justice, in Miami,

FL (Jan. 4, 2000).

stances where Mr. Sherrow’s declaration was mentioned or

argument was in reaction to it.207

Whether or not Brown in fact told Hagen of the contents of Hickey’s memorandum, Hagen specifically asked Brown for this information.208 As the civil litigation lead counsel, Hagen had the duty

to follow up on her query prior to denying the use of these rounds

in response to the plaintiff’s assertion. Instead of simply ignoring

the allegation, moreover, Justice Department officials informed the

Attorney General that Hagen had, in fact, attacked the Sherrow

Declaration allegations as baseless without first asking whether

they were true. The recklessness of Hagen’s conduct cannot be

downplayed. The fact that she has not been reprimanded as a result of her actions similarly remains curious.

Had Hagen acted as required in accordance with her responsibilities, the fact that Corderman requested and received permission to

fire these rounds almost 4 hours prior to the start of the fire—and

therefore not likely to be material to the cause of the fire on April

19, 1993—would have been disclosed in 1996. The startling revelations in 1999 regarding the use of these rounds would have been

moot. The time-consuming investigations started in 1999 would not

have been necessary.

2. The ‘‘Negligent’’ Scruggs Investigation

During the afternoon of April 19, 1993, Attorney General Reno

asked her Special Assistant Richard Scruggs to conduct a post-fire

investigation.209 While Scruggs was an experienced Federal prosecutor,210 the rushed and incomplete efforts that he made to investigate the tragedy caused substantial harm. Had Attorney General

Reno ordered an investigation similar to that conducted by thenTreasury Secretary Lloyd Bentsen—an investigation by experienced, outside investigators free of arbitrary time limits—it is hard

to believe that the facts now available would have taken so long

to come to public light.

Attorney General Reno asked Scruggs early in April 1993, to

serve as her assistant at Justice Department Headquarters. When

Scruggs arrived on April 5, 1993, he had no portfolio of specific responsibilities. Attorney General Reno told Scruggs, however, to remain uninvolved in the then-ongoing Branch Davidian standoff.211

Ultimately, the fact that Attorney General Reno later placed

Scruggs in such a position of responsibility in light of her role in

53

212The Department of Justice also assigned two additional young attorneys, Steven

Zipperstein and Rob Lyon, to assist Scruggs. Interview with Steven Zipperstein, former Special

Counsel to the Assistant Attorney General, Criminal Division, Department of Justice, in Los Angeles, CA (June 14, 2000). The FBI assigned a senior FBI Inspector, Victor Gonzalez, and two

additional Inspectors, Herb Cousins and Roderick Beverly, to assist in the investigation. Interview with Victor Gonzalez, former Inspector, Inspection Division, FBI, in Washington, DC (Apr.

18, 2000); telephone interview with Victor Gonzalez, former Inspector, Inspection Division (Apr.

27, 2000); interview with Herbert Cousins, former Inspector, Inspection Division, FBI, in Washington, DC (May 5, 2000); telephone interview with Roderick Beverly, former Inspector, Inspection Division, FBI, (May 18, 2000). Cousins told committee staff that he worked with Scruggs

and Reno while assigned to the FBI’s Miami field offices. Interview with Herbert Cousins,

former Inspector, FBI, in Washington, DC (May 5, 2000). Scruggs told committee staff that he

may have in fact asked the FBI to assign Cousins to the investigation. Interview with Richard

Scruggs, former Special Assistant to the Attorney General and current Assistant U.S. Attorney,

Department of Justice, in Miami, FL (Jan. 4, 2000). Both Cousins and Beverly lacked substantive experience as FBI Inspectors. Cousins and Beverly became Inspectors in March 1993

after attending several hours of classes and working on one or two field audits. Interview with

Herbert Cousins, former Inspector, FBI, in Washington, DC (May 5, 2000); telephone interview

with Roderick Beverly, former Inspector, FBI, (May 18, 2000). 213 Interview with Richard Scruggs, former Special Assistant to the Attorney General and current Assistant U.S. Attorney, Department of Justice, in Miami, FL (June 22, 2000). 214 Id.

the tragedy and his personal relationship with her also is puzzling.212

Scruggs began the investigation with the belief that the FBI had

in fact committed some error on April 19, 1993.213 Scruggs employed FBI Inspectors and Washington, DC-based agents from various field offices to interview witnesses or participants in the tragedy.214 He also drafted an outline of tasks for which one of several

FBI Inspectors were assigned the responsibility of completion. The

tasks included gathering and reviewing: (1) all witness statements,

including those of military personnel involved in the tragedy; (2)

copies of all video and audio tapes; and (3) all FLIR tapes made

or within the possession of the FBI in conjunction with the Branch

Davidian standoff. Scruggs’ failure to ensure that these tasks were

in fact completed is the major evidence of the ‘‘negligent’’ manner

by which he oversaw the post-fire investigation:

Recommended Investigative Steps in Waco Inquiry

(1) Obtain and correlate all chronologies from all relevant

parties and agencies. Check with Assistant Attorney General Mark Richard, FBI Assistant Director Larry Potts,

and Waco on-sight [sic] supervisors. Complete chronology

needed from first call to FBI to FBI’s clearing of crime

scene. Chronology should include all activities on site, all

meetings and briefings in [Washington, D.C.], etc. [Special

Agent] Cousins

(2) Develop full witness list. . . . Create and maintain a

‘‘Witness file’’ for each individual, reports of interviews,

grand jury transcripts, etc. This includes all law enforcement, military, civilian, and material witnesses. [Special

Agent] Beverly/Schenck

* * * * *

(4) Obtain or create full listing of all physical evidence, including audiotapes (T[itle] III and consensual), videotapes,

correspondence, crime scene evidence, etc. obtain copies of

54

215 Richard Scruggs, Assistant to the Attorney General, Department of Justice, ‘‘Recommended

Investigative Steps in Waco Inquiry’’ 1–2 (May 7, 1993) (exhibit 96). 216The FBI Inspection Division conducts audits of field offices and units within FBI Headquarters. Interview with Victor Gonzalez, former Inspector, Inspection Division, FBI, in Washington, DC (Apr. 18, 2000). 217 Handwritten notes of meeting, author unknown, 1 (May 19, 1993) (exhibit 97). 218 In contrast, the Department of Treasury’s employment of the Secret Service, with the assistance of that Department’s Office of the Inspector General, minimized the risk of conflict of

interest and, therefore, enhanced the substance of its conclusions. Special Counsel Danforth,

likewise, employed Postal Service investigators, not FBI personnel, to conduct its investigation. 219 Interview questions/instructions at Bates Stamp Nos. WWC429–2012–WWC429–2022, undated, author unknown (exhibit 98). 220 Interview with Richard Scruggs, Assistant U.S. Attorney, Department of Justice, in Miami,

FL (Jan. 4, 2000).

all audiotapes, videotapes, transcripts, correspondence, etc.

and maintain in evidence files. [Special Agent] Prouty.215

The fact that Scruggs decided to employ FBI personnel to investigate whether the FBI had caused or exacerbated the April 19,

1993, tragedy remains puzzling. Indeed, during the early stages of

his investigation, the Washington Post published an article that

raised concerns as to whether the FBI’s Inspection Division could

conduct an independent investigation of the tragedy.216 On May 20,

1993, Scruggs and his colleagues discussed this issue and the

Washington Post article but, in response to arguments from Gonzalez in support of the involvement of the Inspection Division,

Scruggs decided that their involvement would not create an appearance of conflict: ‘‘Mr. Gonzalez discussed the Washington Post

[sic] article re this inquiry. The article addresses some questions

regarding the independence of the Inspection staff in conducting

the inquiry. Gonzalez gave Scruggs examples of other inquiries

that FBI [sic] conducted with independence despite controversies.’’ 217 The fact that the FBI was a part of the largest domestic

law enforcement tragedy in American history should have been the

reason for an outside investigation into the FBI’s activities.218

To ensure that the Inspectors and agents asked the same questions, Scruggs prepared questions and sent them to the FBI personnel questions for use during these interviews.219 These questions

included a request as to whether the witness had, if they were FBI

employees, discharged their weapon. All witnesses were asked if

they witnessed any FBI employee firing any weapon during the 51-

day standoff. The questions failed, however, to direct FBI personnel

to ask about other FBI actions, such as the possible use of pyrotechnic tear gas grenades or other ammunition. Had Scruggs and

his colleagues thoroughly reviewed all the documents available to

them, they would have found references to ‘‘military’’ rounds.

Scruggs and his colleagues, however, failed to do so. The failure of

the Scruggs team to come to an understanding that pyrotechnic

rounds were used was, as discovered in 1999, a significant shortcoming.

Before he and his colleagues completed the fact-finding process,

Scruggs changed his belief that the FBI was at fault for the Waco

tragedy.220 Scruggs thereafter presumed that the FBI had done

nothing to create or exacerbate the April 19, 1993, fire. In doing

so, Scruggs did not consider directing the FBI Inspectors and

agents to ask the necessary additional questions, such as whether

HRT personnel had employed any device capable of starting the

April 19, 1993 fire. For example, on June 2, 1993, FBI Supervising

55

221 Riley was called to Waco to assist his former colleagues on HRT. Before Apr. 19, 1993,

Riley served as a sniper/observer at the Sierra Two and Three positions. On Apr. 19, 1993, Riley

served as an observer at the Sierra Three sniper position, approximately 180 yards from the

Branch Davidian compound. The civil litigation plaintiffs named Mr. Horiuchi as a defendant

in the case as a result of what Seavey wrote. 222FBI telephone interview with Charles Riley, Special Agent, FBI at 1 (June 2, 1993) (exhibit

17). 223FBI interview with R. Wayne Smith, Special Agent, FBI in Richmond, VA at 5 (June 9,

1993) (exhibit 39). 224 Richard Scruggs, U.S. Department of Justice, ‘‘Report to the Deputy Attorney General on

the Events at Waco, Texas, Feb. 28–Apr. 19, 1993,’’ (Oct. 8, 1993) (unredacted version) at 266–

270.

Special Agent Gail Seavey interviewed FBI Special Agent and

former HRT member Charles Riley 221 regarding his involvement in

the Branch Davidian standoff. Seavey wrote that, on April 19,

1993, Riley witnessed gunfire from the Sierra One position commanded by Horiuchi.222 Riley did not review this statement prior

to its final draft. Seavey, moreover, failed to ask follow-up questions regarding this stunning statement, such as whether the gunfire might have, in fact, been directed at Sierra One or whether

any other HRT personnel likewise noticed this gunfire. Seavey

transmitted the statement to FBI Headquarters.

Similarly, on June 9, 1993, FBI Special Agent and aircraft pilot

Wayne Smith told an FBI Inspector working with Scruggs that he

overheard FBI personnel radio Rogers and ask for his permission

to employ ‘‘military’’ tear gas rounds. Had Scruggs performed even

a cursory review of Smith’s statement, he would have, or should

have, known that HRT personnel fired non-ferret pyrotechnic tear

gas rounds—an issue worthy of investigation and disclosure:

Regarding radio transmissions heard on April 19, 1993,

[Special Agent] Smith advised that there was a high volume of HRT traffic and Sniper [Tactical Operations Center] instructions regarding requests for the insertion of gas

by ground units. [Special Agent] Smith recalls one conversation, relative to the utilization of some sort of military round to be used on a concrete bunker[.] * * * 223

It is surprising that this statement went unnoticed and that

Scruggs’ investigators failed to ask Smith what he meant by ‘‘military’’ rounds. If Smith could not answer the question, one would expect investigators to interview—or, in all likelihood re-interviewed—Rogers or Jamar and asked whether the ‘‘military’’ rounds

to which Smith referred were ferret rounds. A minimal investigatory effort would have led to the timely disclosure that HRT personnel employed these pyrotechnic rounds.

Scruggs and his colleagues also interviewed the senior Justice

Department and FBI officials who attended the April 14, 1993,

briefing for Attorney General Reno.224 She stated that she relied

upon the statements of Schoomaker, the Army Colonel and a Dr.

Harry Salem, an Army civilian tear gas expert, to satisfy her concerns regarding the introduction of tear gas into the Branch

Davidian compound on April 19, 1993. In addition, an Army major

stationed at the Pentagon attended the briefing and took notes of

the conversations. Hubbell, furthermore, stated in response to

questions during his interview that the Army representatives comVerDate 11-MAY-2000 10:08 Jan 03, 2001 Jkt 000000 PO 00000 Frm 00065 Fmt 6659 Sfmt 6601 C:\REPORTS\67357.TXT HGOVREF1 PsN: HGOVREF1
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225FBI interview with Webster Hubbell, Associate Attorney General, Department of Justice,

in Washington, DC, 3 (Sept. 9, 1993) (exhibit 78). Hubbell was the only person to make such

statements that, if believed, would indicate a violation of the posse comitatus proscriptions. His

statements to the Scruggs report investigators were not challenged then or during the subsequent investigation. Scruggs’ colleagues also failed to corroborate Hubbell’s statements by interviewing Schoomaker, the Colonel, the Major or Dr. Salem. No other attendee made similar

statements. Records that documented that meeting likewise contradict Hubbell’s statement.

Hubbell refused to cooperate in the committee’s investigation and be interviewed by its staff.

Letter from John Nields, Jr., partner, Howrey, Simon, Arnold & White, and counsel for former

Associate Attorney General Webster Hubbell, to James Wilson, chief counsel, Committee on

Government Reform, U.S. House of Representatives (July 26, 2000) (exhibit 79). 226 As will be discussed below, Scruggs and his colleagues failed to interview the Apr. 14,

1993, meeting military participants and the special operations personnel who traveled to Waco

to observe and assist the FBI with equipment. This failure, and the resulting rumors about the

actions of special operations personnel during the 51 day standoff, are additional examples of

harm caused by the failure to conduct a thorough investigation. 227The Department of Justice refused to make its Office of Professional Responsibility Assistant Counsel Robert Lyon available for interview with committee staff because, as its representatives contended, Lyon served as a line attorney and, to do so, would violate the Justice Department’s long-standing policy of making line attorneys available for congressional investigations.

This argument lacks merit. Scruggs returned to Miami on or about Dec. 10, 1995, where he resumed his service as an Assistant U.S. Attorney. The Department of Justice made Scruggs

available for two interviews with committee staff. It also made Hagen, Brown and other Justice

Department attorneys available for interview. Special Counsel Danforth’s investigators interviewed all of the attorneys. In any case, Justice Department documents make clear that Reno

possesses the authority to make line attorneys available for congressional questioning in limited

situations. See ‘‘Talking Points for the Attorney General—Production of Line Prosecutors,’’ au- thor unknown (July 13, 1995) (exhibit 99). The Justice Department also failed to make the

Jahns available for an interview by committee staff and, instead, referred the committee to their

attorneys. The Jahns, through their attorney, refused to cooperate. Letter from Andre Hollis,

senior counsel, Committee on Government Reform, U.S. House of Representatives, to Gerald

Goldstein, partner, Goldstein, Goldstein and Hilley, and counsel for William ‘‘Ray’’ Jahn and

mented extensively to Attorney General Reno on the FBI’s plan to

introduce tear gas into the compound:

The military representatives stated that the FBI plan to

introduce tear gas into the compound was reasonable and

practical. The only aspect of the plan that the military

would do differently concerned the timing of the gas insertion.

* * * * *

Hubbell recalls [that] the military representatives indicated [that] they believed [that] the FBI plan as presented

would work and that after the gas was inserted people in

the [Branch Davidian compound] would come out.225

Even though Scruggs and his colleagues knew that a ‘‘vigorous

and thorough investigation’’ required that they collect statements

from ‘‘all law enforcement, military, civilian, and material witnesses’’—especially those of individuals upon whom Attorney General Reno so greatly relied—no Justice Department or FBI investigator contacted any military representative to interview them as

to their recollection of the meeting. Scruggs likewise failed to collect contemporaneous notes of that meeting made by the Army

Colonel, the Army Major and Dr. Salem.226 Had they done so, they

would have discovered that the Army officers who attended the

April 14, 1993, meeting had a far different recollection of events.

Scruggs and his colleagues collected over 900 witness statements

during the course of their efforts. Surprisingly, however, they failed

to review these statements for potential follow up investigation, or,

even worse, reviewed the documents but failed to realize their importance. For example, Scruggs, Zipperstein, Cousins, Beverly and

Gonzalez 227 all told committee staff that they were certain that

57

LeRoy Jahn (Sept. 12, 2000) (exhibit 87); letter from Gerald Goldstein, partner, Goldstein, Goldstein and Hilley, and counsel for William ‘‘Ray’’ Jahn and LeRoy Jahn, to Andre ́ Hollis, senior

counsel, Committee on Government Reform, U.S. House of Representatives (Sept. 21, 2000) (exhibit 88). In light of President Clinton’s and Attorney General Reno’s numerous public statements that the Justice Department would ‘‘fully cooperate’’ with the ‘‘all Congressional inquiries,’’ these refusals to cooperate further damage the Department and Reno’s credibility with the

American people and the Congress. In contrast, the committee received full cooperation from the

FBI and, in particular, from: (1) the FBI Civil Discovery Review Unit, ably led by Unit Chief

Paul Cignoli; (2) FBI Office of Public and Congressional Affairs Supervisory Special Agent Ann

Todd; and (3) former Special Counsel to the Assistant Director and current FBI Office of Public

and Congressional Affairs Section Chief Eleni Kalisch. 228FBI telephone interview with Charles Riley, Special Agent, FBI (Nov. 19, 1996) (exhibit

22); John C. Danforth, Special Counsel, U.S. Department of Justice, ‘‘Interim Report to the Deputy Attorney General Concerning the 1993 Confrontation at the Mt. Carmel Complex, Waco,

Texas’’ 19, fn. 22 (2000). 229 Rogers told committee staff that he never spoke with Scruggs until at least 1995. Interview

with Richard Rogers, former Assistant Special Agent in Charge and Commander, HRT, FBI, in

Phoenix, AZ (Aug. 9, 2000).

someone on their team interviewed and recorded statements from

the April 14, 1993, Army attendees. No statements exist, however

and, when challenged, they had no explanation for their omissions.

Scruggs would have learned or should have realized from even

a cursory review of, for example, Riley’s witness statement, that

evidence contradicting the FBI and Attorney General Reno’s statements that ‘‘no FBI agent fired their weapon on April 19, 1993’’ might exist. Had Scruggs or his colleagues reviewed the document,

they could have further questioned Riley and resolved the issue. In

fact, Riley was not contacted until November 1996, when the FBI’s

attorney, Jacqueline Brown, contacted him. The civil litigation

plaintiffs also asserted in the response to the motion for summary

judgment that Riley’s witness statement created a material fact in

dispute since it purported to record his recollection of witnessing

gunfire from the Sierra One position. Once contacted, Riley offered

a supplemental statement stating that: (1) he had witnessed gunfire directed towards the Sierra One position, not from Sierra One;

and (2) that Seavey had mis-recorded his statement.228 Again, had

this error been identified in 1993, the correction could have been

made in a timely fashion, included in Scruggs’ 1993 Report and

deemed a non-issue by the American people, the civil litigation trial

court, Special Counsel Danforth and the Congress.

Even more astounding, however, is the fact that Scruggs failed

to interview HRT Commander Richard Rogers personally regarding

the implementation of the FBI’s proposed operations plan. FBI Inspectors, as part of the FBI’s standard operating procedure, interview personnel when a shooting occurs. They interviewed Rogers

on April 21, 1993, and, again as a follow-up, on June 7, 1993. It

appears astounding, in hindsight, that Scruggs, as the lead Justice

Department attorney investigating the events leading up to and including April 19, 1993, did not speak with Rogers, who: (1) was the

HRT commander and the primary tactical advisor to Jamar; (2) selected the Army officers who briefed Attorney General Reno on

April 14, 1993; and (3) was responsible for the creation and execution of the FBI’s proposed operations plan.229 Had Scruggs interviewed Rogers regarding these issues, he would have learned, as

committee staff learned, that Rogers granted Corderman permission to employ the pyrotechnic tear gas grenades because he believed that Attorney General Reno had not proscribed the use of

those rounds. In addition, Scruggs would have learned that active

58

230 Richard Scruggs, U.S. Department of Justice, ‘‘Report to the Deputy Attorney General on

the Events at Waco, Texas, Feb. 28–Apr. 19, 1993,’’ 324 (Oct. 8, 1993) (unredacted version)

(Scruggs agrees with the arson team conclusion that the FBI’s methods of gas delivery was ‘‘non- incendiary’’); John C. Danforth, Special Counsel, U.S. Department of Justice, ‘‘Interim Report

to the Deputy Attorney General Concerning the 1993 Confrontation at the Mt. Carmel Complex,

Waco, Texas’’ 48 (2000). 231 Interview with Professor Philip Heymann, former Deputy Attorney General, Department

of Justice, and current professor of law, Harvard Law School, in Boston, MA (July 19, 2000). 232To their credit, Scruggs and his colleagues did resist perceived pressure from senior Justice

Department officials including David Margolis, Associate Deputy Attorney General, Department

of Justice and Carl Stern, Director, Office of Public Affairs, Department of Justice to amend

their draft findings to reflect more favorably upon the Attorney General. See e.g., handwritten

notes of September 20, 1993, meeting (author unknown) 1 (exhibit 100) (‘‘[Steve Zipperstein] objects to [this] meeting, [because] [Mark] Richard + [Carl] Stern are precipient witnesses. . . .

Objects again—that kind of input is not supposed to occur in this process.’’). 233 Interview with Professor Philip Heymann, former Deputy Attorney General, Department

of Justice, and current professor of law, Harvard Law School, in Boston, MA (July 19, 2000);

interview with Richard Scruggs, Assistant U.S. Attorney, Department of Justice, in Miami, FL

(Jan. 4, 2000); interview with Steven Zipperstein, former Special Counsel to the Assistant Attorney General, Criminal Division, Department of Justice, in Los Angeles, CA (June 14, 2000).

duty Army special operations personnel were present inside the

outer, State law enforcement-maintained perimeter on April 19,

1993, and that HRT personnel possessed high explosive grenades

in case the Branch Davidians located within their compound attempted to overrun FBI positions. All of these facts surfaced in

1999 and led to committee and Special Counsel Danforth’s investigations.

Finally, had Scruggs asked HRT members, particularly Rogers

and Corderman, to detail what they did and when, they could have,

at least, learned of the use of the pyrotechnic tear gas grenades.

If Scruggs had collected all the audio and videotapes as he contemplated, he would have learned of Corderman’s request for permission to fire the pyrotechnic rounds. In light of Scruggs’ statement that ‘‘the gas delivery systems the FBI used were completely

non-incendiary,’’ 230 it is clear that a ‘‘vigorous and thorough investigation’’ did not take place in 1993.

In addition to its failure to conduct a thorough investigation, the

Scruggs team also encountered pressure from senior Justice Department officials to conclude the investigation as quickly as possible. Deputy Attorney General Philip Heymann told committee

staff that he wanted Scruggs to complete the investigation in order

to release their findings at the same time as the Department of

Treasury released its report regarding the actions of Bureau of Alcohol, Tobacco and Firearms.231 To presume that an investigation

relating to a 51 day standoff that resulted in the deaths of 80 men,

women and children could be conducted, concluded and published

at the same time as the BATF investigation—an investigation that

concerned the actions of a horrible, but a less fatal prelude, is incredible.

In addition to the appearance of impropriety that this type of

pressure creates, it is fair to question whether Scruggs and his colleagues might have in fact conducted a more thorough investigation had they not been pressured to finish the Scruggs report in a

politically expedient fashion.232 Scruggs, former Special Counsel to

Assistant Attorney General Steve Zipperstein, Heymann and others

told committee staff that Heymann often questioned Scruggs regarding when the investigation would be concluded.233 Attorney

General Reno’s sensitivity to these appearances of impropriety was

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234When she and other Justice Department officials concluded that an outside, analytical review of Scruggs’ findings was necessary, Attorney General Reno considered requesting former

Attorney General Benjamin Civiletti to conduct the review. According to Heymann, however, she

decided against Civiletti because Civiletti had written to her to express his support of her in

the aftermath of the fire. Interview with Professor Philip Heymann, former Deputy Attorney

General, Department of Justice, and current professor of law, Harvard Law School, in Boston,

MA (July 19, 2000).

obvious.234 The Attorney General did not assign to Heymann oversight responsibility for Scruggs’ efforts. Scruggs did not report his

interim findings to the Attorney General, since she was a subject

of the investigation. In order to avoid additional appearances of impropriety, moreover, Scruggs should not have reported to the Attorney General’s subordinates. The fact that Heymann was allowed to

pressure Scruggs to complete the investigation remains disturbing.

G. CONCLUSIONS AND RECOMMENDATIONS

The committee does not suggest that, when tragedy strikes a law

enforcement effort to resolve a crisis, senior Justice Department officials are always wrong or inexperienced. In this case, however,

the Department of Justice’s failure to exercise the level of oversight

that is expected during crises such as Waco is of great concern. It

is clear that no one within the Department of Justice or the FBI’s

leadership knew prior to April 19, 1993, that HRT was prepared

to use pyrotechnic and high explosive ammunition against the

Branch Davidians. Attorney General Reno and other officials within the Department of Justice were concerned about the risk of fire

and repeatedly asked Rogers to minimize this risk. Rogers was

aware of these concerns but authorized use of pyrotechnic devices.

Rogers was duty-bound to notify his superiors of these plans so

that Attorney General Reno might fully understand the FBI’s proposed operations plan and, based upon that full understanding,

grant her approval. Had Rogers fulfilled his responsibility, it is

doubtful that Attorney General Reno would have approved their

use without specific, express limitations. It was also incumbent

upon Rogers to correct the Attorney General when she testified to

the Congress in 1995 that HRT personnel used no device which

could have caused or exacerbated the April 19, 1993, fire. Justice

Department officials directed Rogers to sit behind Attorney General

Reno during the hearings in order to ensure that she relied upon

accurate information and that she testified truthfully. Rogers’ claims that: (1) he did not hear Attorney General Reno testify inaccurately; and (2) even if he had heard the Attorney General make

the statement, in his mind the statement was technically correct

because he had believed that the underground bunker was separate

from the main Branch Davidian compound, may or may not be

true. The fact, however, that Rogers failed to communicate this important distinction to Attorney General Reno or the Congress, in

1993 or 1995, is troublesome.

Justice Department attorneys William ‘‘Ray’’ Jahn, his wife,

LeRoy Jahn and Bill Johnston, the criminal trial prosecutors,

learned in November 1993 that HRT personnel fired pyrotechnic

tear gas rounds on April 19, 1993, but failed to disclose this fact

to their Justice Department superiors, to the criminal trial defendants or to Marie Hagen. The Jahns and Johnston recognized the

importance of this information but decided to disclose it during the

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235 ‘‘Activities of Federal Law Enforcement Agencies Toward the Branch Davidians (Part I),’’ hearing before the Subcommittee on Crime of the Committee on the Judiciary and the Subcommittee on National Security, International Affairs, and Criminal Justice of the Committee

on Government Reform and Oversight, 104th Cong., 100, 107 (July 19, 1995) (statement of Ray

Jahn, Assistant U.S. Attorney) (emphasis added).

criminal trials only if necessary. The Jahns and Johnston’s failure

to disclose this information was irresponsible, possibly unethical,

an additional reason for this committee’s investigation, and a reason for the appointment of the Special Counsel. Ray Jahn, furthermore, told the Congress and the American people that, ‘‘[o]n the

19th of April, though repeatedly fired upon by the occupants of [the

Branch Davidian compound], the FBI did not fire a shot, other than

non-lethal ferret rounds which carried the CS gas.’’ 235 Jahn cannot

now state that his testimony was merely negligent when he and

other members of the criminal prosecution team knew in 1993 that

Corderman had requested and received authorization to fire pyrotechnic tear gas grenades.

Likewise, Johnston also learned of Corderman’s actions and likewise did not ask for a Brady analysis. Johnston, furthermore, requested and received the August 30, 1999, subpoena that commanded the production of all documents to this committee. In addition to the legal requirements of the committee’s September 8,

1999, subpoena to the Department of Justice, to which Johnston

also had to comply, the committee provided Johnston ample opportunity to produce the documents that he later found and withheld

from Special Counsel Danforth and this committee. His actions,

while mitigated by his assistance to and cooperation with the committee’s investigation in other respects, should be thoroughly investigated.

In response to a request from Hagen, FBI Assistant General

Counsel Jacqueline Brown likewise learned in February 1996, that

HRT personnel fired pyrotechnic tear gas grenades on April 19,

1993. Unlike the Jahns, however, Brown did not recognize the importance of this information. It is probable, however, that Brown

did discuss the information that she received with her FBI supervisor and Hagen. In any case, Hagen, as the Justice Department’s

lead civil litigation attorney had a duty, once she asked Brown to

research the issue, to ensure that Brown provided her with the results of her research. Hagen is responsible for the belated disclosure of this information to the civil trial court and the plaintiffs.

Similarly, it is also clear that Scruggs failed to conduct a ‘‘vigorous and thorough investigation.’’ Beset by time limitations enforced

by then-Deputy Attorney General Philip Heymann, Scruggs and his

colleagues failed to ask basic questions, review evidence and conduct an agnostic investigation. Information relating to the actions

of HRT personnel, consequently, was not disclosed. While the belated disclosure of this information does not lead to the conclusion

that law enforcement or military personnel were responsible for the

April 19, 1993, fire, it did cause substantial damage to the trust

that the American people had in, and should expect from, Federal

law enforcement. The investigations conducted by Special Counsel

Danforth and this committee, therefore, became necessary.

The disclosure of these facts by this committee and Special Counsel Danforth’s investigation could have been avoided had the DeVerDate 11-MAY-2000 10:08 Jan 03, 2001 Jkt 000000 PO 00000 Frm 00070 Fmt 6659 Sfmt 6601 C:\REPORTS\67357.TXT HGOVREF1 PsN: HGOVREF1
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236 John C. Danforth, Special Counsel, U.S. Department of Justice, ‘‘Interim Report to the

Deputy Attorney General Concerning the 1993 Confrontation at the Mt. Carmel Complex, Waco,

Texas’’ i (2000). 237See H. Rept. No. 104–749 (1996). 238 Id. at 3. 239The term ‘‘military’’ as used within this report includes units, personnel and equipment

of the Active and Reserve Components, to inlcude the National Guard, unless otherwise indicated.

partment of Justice conducted a thorough investigation in 1993, as

had been promised. Had Attorney General Reno appointed an outside, objective investigator, as the Department of Treasury had and

as became necessary in 1999, the American people could have

learned the complete truth behind the tragedy. Public confidence in

the Department of Justice and Federal law enforcement would

have been greater and, perhaps, 61 percent of the American people

would not have had the grounds to believe that Federal law enforcement murdered over 80 Branch Davidian men, women and

children.236

If similar tragedies occur in the future, the committee recommends that future Attorneys General recognize the need for objective, independent investigations to determine the complete truth

regarding the event. The conduct of an investigation that is not

thorough and supervised by an independent analyst creates the

real possibility of negligence.

VI. DEPARTMENT OF DEFENSE SUPPORT

A. INTRODUCTION

On August 2, 1996, subcommittees of the Committee on Government Reform and Oversight and the Committee on the Judiciary

published a report on their joint investigation into the activities of

Federal law enforcement agencies toward the Branch Davidians at

Waco, TX.237 The subcommittee report opens its discussion concerning the military’s involvement as follows:

U.S. military involvement is one of the least explored and

most misunderstood elements of the events that took place

near Waco, Texas in 1993. The Treasury Department report dedicated only 31⁄2 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.238

The committee’s current inquiry involved a review of recently

subpoenaed Department of Defense (DOD) documents, as well as

reports and other information associated with the subcommittees’

investigation in 1995. Committee staff also interviewed, where necessary, military personnel and other officials who were involved

with the Waco operation to ensure an enhanced understanding of

the involvement of the military at the time.239 The committee

found four areas worthy of comment regarding DOD’s involvement

with assistance to the BATF and FBI during the Waco incident,

and afterward when the American people looked to the White

House, the Department of Justice, Treasury and DOD for an accounting of what happened at Waco, and why.

62

240See 18 U.S.C. § 1385 (1988), as amended. 241See 10 U.S.C § 101(d)(1), codified as amended by Public Law 102–484. The term ‘‘active

duty’’ means full-time duty in the active military service of the United States. This does not

include full-time National Guard duty. See also 32 U.S.C. § 101(12). 242See H. Rept. No. 104–749 (1996) at 53–55.

The committee investigated whether any actions of the military

during the Waco incident would constitute a law enforcement use

of the military prohibited by the Posse Comitatus Act.240 The documents and information reviewed during the committee’s inquiry

support the same finding of the subcommittees in 1996 that no violation of the Posse Comitatus Act occurred as a result of the military’s support to the BATF and the FBI at Waco. However, information developed during the committee’s current inquiry revealed

that the Attorney General and other senior Federal law enforcement officials unwittingly attempted to involve two senior active

duty Army officers in activity that would have violated the Posse

Comitatus Act.241 This occurred on April 14, 1993, when an Army

general officer and a colonel were asked to review and comment

upon the tactical details discussed within the FBI’s proposed operations plan to insert tear gas into the Branch Davidian compound.

The committee found that it was the active vigilance of these officers that precluded a violation of the Posse Comitatus Act when

they declined to critique the details of the FBI’s proposed operations plan.

Throughout their investigation, the subcommittees endeavored to

elicit as much information as possible regarding the scope, equipment, expenditures and justification for the military support provided to the BATF and the FBI. Although the subcommittees developed a significant amount of information, they identified a need for

more detailed accounting of the military equipment and material

associated with DOD’s support; the legal authority for providing

the assistance; and, what costs were incurred by the American people.242 To address these concerns, the subcommittees asked the

General Accounting Office, the investigative arm of Congress, to

audit the military assistance provided to both the BATF and FBI,

as well as investigate the military counter-drug program through

which DOD’s support was provided. Upon review of the GAO inquiry, the committee discovered two notable omissions in the information DOD provided to the GAO. The discrepancies concerned a

failure to account fully for military aerial reconnaissance support

provided to the BATF, and an unsatisfactory resolution of questions surrounding the status of 250 high explosive 40-mm grenades

that Army documents indicate were issued to the FBI at Ft. Hood,

TX, during the Waco incident. Although the committee found no

evidence that high explosive grenades were used at Waco, the status of these munitions has not been formally resolved by DOD.

The Justice and Defense Departments have had a continuing

duty over the last 7 years to clarify the public record with a comprehensive and accurate accounting regarding the military’s involvement at Waco. Unfortunately, the Justice Department’s efforts

have fallen short. Appendix B of the Scruggs report was intended

to be a comprehensive accounting of the military personnel and

equipment that supported the 51-day standoff at the Branch

63

243See Richard Scruggs, U.S. Department of Justice, ‘‘Report to the Deputy Attorney General

on the Events at Waco Texas, Feb. 28–Apr. 19, 1993,’’ (Oct. 8, 1993) (unredacted version). 244See President William Clinton, remarks by the President in question and answer session

with the press in Washington, DC (Apr. 20, 1993) at 2 (exhibit 24).

Davidian compound.243 However, appendix B significantly understated the number of military personnel who supported the FBI

during the standoff. The Scruggs report indicated that a total of 28

military personnel supported the FBI throughout the standoff,

when in actuality, the number was approximately 330 active duty

and National Guard personnel who intermittently provided assistance both on and off-site. The regular duties of off-site military personnel were not exclusively Waco-related.

Although President Clinton directed the Departments of Justice

and Treasury to conduct an examination and assessment of what

occurred involving their personnel at Waco, DOD was not similarly

tasked to assess its involvement.244 The failure of DOD to conduct

its own internal review and prepare a comprehensive report over

the last 7 years has complicated congressional inquiries and contributed to simmering skepticism among the American people

about the military’s involvement at Waco. A DOD assessment of

support it provided would have been of immeasurable assistance to

both the Departments of Justice and Treasury in their efforts to

provide an accurate and complete accounting of what occurred at

Waco involving their personnel.

The actions and decisions of officials from three cabinet-level departments—Justice, Treasury and Defense—were inextricably

intertwined with the tragic events at Waco. All three are accountable to the American people for their involvement and the American people should have heard from each of them. DOD’s failure of

judgment in not conducting an assessment and preparing a report

of its involvement concurrently with the Justice Department and

Treasury investigations in 1993, has contributed to a persistent

public belief over the last 7 years that DOD engaged in wrongful

actions at Waco.

B. WAS THE POSSE COMITATUS ACT VIOLATED IN PROVIDING DOD

SUPPORT?

During the subcommittee hearings in 1995, the actions of military personnel and the use of military equipment at Waco was of

significant interest. Documents provided to the subcommittees by

DOD and the testimony of witnesses described the military actions

in support of both the ATF and FBI. During its current inquiry, the

committee reviewed the 1995 subcommittee material, as well as

documents produced by DOD in response to the committee’s current subpoena. Committee staff also conducted interviews of military personnel who were involved with the Waco incident.

The committee found no evidence of any violation of the Posse

Comitatus Act by the military regarding the assistance provided to

the BATF and FBI during the Waco incident. The committee’s inquiry, however, revealed that the active vigilance of two senior active duty Army officers precluded a Posse Comitatus Act violation

from occurring on April 14, 1993, when these officers declined to

actively critique the details of the FBI’s tactical operations plan for

inserting tear gas into the Branch Davidian compound.

64

245See H. Rept. No. 104–749 (1996) at 30–34. A more detailed discussion of the Posse Comitatus Act and its application to events at Waco is contained within the subcommittees’ report. The

discussion here is a distillation of that overview and focuses on its application to the participation by two senior Army officers in a meeting with Attorney General Reno on Apr. 14, 1993. 246 18 U.S.C. § 1385 (1988), as amended. 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 § 330016(L), Public Law 103–322, 108 Stat.

2147. 247 Clarence I. Meeks II, ‘‘Illegal Law Enforcement: Aiding Civil Authorities in Violation of the

Posse Comitatus Act,’’ 70 Mil. L. Rev. 83, 128 (1975). 248 Id. 249 In 1973, a dissident Indian group forcibly took control of the Wounded Knee Village on

Pine Ridge Indian Reservation, South Dakota. 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. 250Peter M. Sanchez, ‘‘The ‘Drug War’: The U.S. Military and National Security,’’ 34 A.F.L.

Rev. 1, 109 (1991). 251 Clarence I. Meeks II, ‘‘Illegal Law Enforcement: Aiding Civil Authorities in Violation of the

Posse Comitatus Act,’’ 70 Mil. L. Rev. 121 (1975). Similarly, during the Waco incident, two senior Army officers were present when the Attorney General was briefed on the FBI’s plan to end

the standoff and were asked to review the details of the plan. They discussed other general matters, but declined to comment on tactical details within the plan citing Posse Comitatus Act concerns. 252 United States v. Jaramillo, 380 F. Supp. 1375 (D.Neb. 1975), 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).

1. Overview of the Posse Comitatus Act

Historically, there has been a generally accepted principle that in

the United States the military should not be involved in civilian

law enforcement.245 The clear separation between civilian and military authority is embodied in the Declaration of Independence and

the U.S. Constitution. Congress codified the principle by enacting

the Posse Comitatus Act in 1878 in response to the improper use

of military troops in the South during the post-Civil War reconstruction period. The statute provides:

Whosoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress,

willfully uses any part of the Army or Air Forces as a

posse comitatus or otherwise to execute the laws shall 0be

fined not more than $10,000 or imprisoned not more than

2 years, or both.246

No one has ever been prosecuted for violating the Posse Comitatus Act.247 Due in part to a creeping acceptance of military involvement in law enforcement action, the Posse Comitatus Act has been

invoked very rarely.248 Until the criminal cases arising from the

1973 uprising at Wounded Knee,249 civilian law enforcement apparently relied upon military support without fear of recourse.250

Two active duty regular Army colonels were present at Wounded

Knee as DOD 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.’’ 251 Four criminal cases resulted from the Wounded

Knee incident. In each, defendants raised similar challenges to the

military’s involvement.252 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 at the time.

65

253See 10 U.S.C. § 371–377; Defense Department Authorization Act of 1982 § 905, Public Law

No. 97–86, 95 Stat. 1114, as amended by National Defense Authorization Act Fiscal Year 1989

§ 1004, Public Law No. 100–456, 102 Stat. 2043 (codified as amended at 10 U.S.C. § 377). 254 10 U.S.C., ch. 18. 255 Id. 256Steven B. Rich, ‘‘The National Guard, Drug Interdiction and Counterdrug Activities, and

Posse Comitatus: the Meanings 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 act only applies to National Guard personnel when they have

been called ‘‘into federal service.’’ 257 In pure State status, no Federal funding occurs. 258See ‘‘Investigation into the Activities of Federal Law Enforcement Agencies Toward the

Branch Davidians,’’ Committee on Government Reform and Oversight in Conjunction with the

Committee on the Judiciary, House of Representatives, H. Rept. No. 104–749 (1996) at 52.

In order to resolve questions raised by the Wounded Knee cases,

and at the urging of DOD and the Justice Department, Congress

enacted a number of general exceptions to the Posse Comitatus Act

in 1981.253 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 DOD personnel.254 However, direct involvement in activities that are fundamentally law enforcement functions such as search, seizure, and

arrest are prohibited.255

The National Guard is not subject to the same legal restrictions

placed upon active duty and reserve military personnel with regard

to civilian law enforcement. 256 Having evolved from the State militia concept, the National Guard holds the unique position as both

a State and a national military force. When acting as members of

the State militia, National Guardsmen are under the command and

control of their Governor, who is their Commander-in-Chief. When

acting as a part of the national military force, the President of the

United States is their Commander-in-Chief.

The National Guard has three different ‘‘statuses’’ under current

law. The first two are a Title 32 status (also called ‘‘state active

duty’’ status), and a pure ‘‘State status.’’ 257 Under either a Title 32

status or pure State status, the Posse Comitatus Act does not

apply. The third status is called ‘‘Title 10 status,’’ or ‘‘Federal active duty’’ status. Title 10 status occurs when the President or Congress takes affirmative action to ‘‘federalize’’ a National Guard

unit, as in the case of a natural disaster or civil disturbance. Only

in a federalized status are National Guard personnel under the

command and control of the President of the United States, and

subject to the restrictions under the Posse Comitatus Act. The

Texas and Alabama National Guards were in a Title 32 status at

the time they provided support and assistance to the BATF and

FBI during the Waco incident.258

2. FBI Briefing to the Attorney General on April 14, 1993, Regarding the Proposed FBI Operations Plan

a. Involvement of DOD Representatives

On April 14, 1993, Attorney General Reno, Associate Attorney

General Hubbell, FBI Director Sessions and several other Justice

Department and FBI officials met at FBI headquarters. Also in attendance were four DOD officials: then-Brigadier General Peter

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259 Interview with General Peter Schoomaker, U.S. Army, in McDill AFB, Florida (Jan. 13,

2000). At the time of the interview with committee staff, General Schoomaker was on active

duty as the Commander of the U.S. Special Operations Command, McDill AFB, Florida; interview with an Army general currently assigned to a unit within USSOCOM, in McDill AFB, Florida (Jan. 13, 2000). At the time of the Waco incident, this Army general was a colonel assigned

to a unit within USSOCOM, and he is referred to as ‘‘an Army colonel’’ throughout this report;

interview with LTC Scott Wells, U.S. Army, (Ret.) in Washington, DC (July 14, 2000). LTC

Wells was a major at the time of the Waco incident; interview with Dr. Harry Salem, Department of the Army, in Aberdeen Proving Grounds, Maryland (July 26, 2000). 260See Richard Scruggs, U.S. Department of Justice, ‘‘Report to the Deputy Attorney General

on the Events at Waco, Texas, Feb. 28–Apr. 19, 1993,’’ appendix B at 258 (Oct. 8, 1993)

(unredacted version). 261 Id. at 279. Attorney General Reno received her first briefing on the proposed FBI operations plan on Monday, Apr. 12, 1993. At that meeting Associate Attorney General Hubbell suggested that they consult with the military about the effects of gas. 262The committee found no evidence that Justice Department or FBI personnel consulted with

the military regarding the HRT operations plan prior to Apr. 14, 1993. 263 Interview with General Peter Schoomaker, U.S. Army, in McDill AFB, Florida (Jan. 13,

2000); interview with an Army general currently assigned to a unit within USSOCOM, at

McDill AFB, Florida (Jan. 13, 2000). 264Department of Defense document production Z0033619(U), Z0041496(U), Z0035388(U),

Z0036114(U), Z0041511(U)–Z004512(U), Z0041508(U)–Z0041509(U), Z0041506(U)–Z0041507(U),

Z0041510(U), Z0030706(U)–Z0030709(U) (exhibit 101). 265 Interview with General Peter Schoomaker, U.S. Army, in McDill AFB, Florida (Jan. 13,

2000).

sion at Ft. Hood, TX; an Army colonel assigned within the U.S.

Special Operations Command; then-Major Scott Wells, assigned to

the Pentagon; and Dr. Harry Salem, Chief Scientist for Life

Sciences, U.S. Army Chemical Biological Defense Command, Aberdeen Proving Ground, MD. Each of these DOD representatives was

interviewed by committee staff during this inquiry.259

On or about April 13, 1993, Assistant to the President and Deputy Counsel to the President Bruce Lindsey advised Associate Attorney General Webster Hubbell that the military should be consulted regarding the FBI’s proposed operations plan. Lindsey indicated that President Clinton would want to know that the military

had an opportunity to review it.260 Lindsey indicated to Hubbell

that President Clinton mentioned that the military had some involvement in the Ft. Chafee incident in Arkansas while he was

Governor. At the meeting, Hubbell indicated to Lindsey that plans

were under way to meet with the military.261 Hubbell reported

these developments to the Attorney General. The FBI was tasked

to have military representatives review the plan and attend the

meeting with Attorney General Reno scheduled for the next day.262

Based upon his professional interaction and personal regard for

them, Rogers contacted Brigadier General Schoomaker and the

Army colonel on April 13, 1993 and asked them to attend.263 DOD

approved the FBI’s request for the attendance of both senior Army

officers.264

The FBI flew Brigadier General Schoomaker and the Army colonel to Washington, DC, on FBI aircraft on the morning of April 14,

1993. On the aircraft, HRT commander Rogers briefed them regarding the proposed operations plan and provided them a copy for

their review. Brigadier General Schoomaker recalled Rogers asking

him for his opinion of the plan, and he indicated it was not appropriate for him to comment; he ‘‘couldn’t grade your paper.’’ 265 Both

officers believed Rogers wanted their support for the plan. Brigadier General Schoomaker indicated that the FBI viewed the Army

colonel and him as experts and wanted them to review the CS plan

and offer their opinion and support. The Army colonel indicated

67

266 Id. 267 Id. 268 Interview with an Army general currently assigned to a unit within USSOCOM, in McDill

AFB, Florida (Jan. 13, 2000). 269 Id. 270 Id. 271 Id. 272 Interview with General Peter Schoomaker, U.S. Army, in McDill AFB, Florida (Jan.13,

2000). 273 Id.

that Rogers never asked him directly for his opinion concerning the

plan. However, the Army colonel indicated that it seemed understood that Rogers wanted ‘‘feedback and input’’ from Brigadier

General Schoomaker and himself. The Army colonel further indicated that his superiors told him not to support or oppose the FBI’s

plan and not to give tactical advice.266

During the afternoon briefing, Attorney General Reno asked why

they ‘‘would not grade the plan.’’ Brigadier General Schoomaker responded that the Posse Comitatus Act prevented him from doing

so, as well as the fundamental differences in purpose and function

between the military and law enforcement. Brigadier General

Schoomaker further indicated that Attorney General Reno appeared to have a good grasp of the plan being briefed, and did not

appear too surprised at their refusal to ‘‘grade the paper.’’ 267 The

Army colonel recalled that at some point during the discussion of

the operations plan, Hubbell asked: ‘‘[I]s this legal?’’ The Army

colonel did not answer when Hubbell looked at him, but stated during his interview with committee staff that his private thought at

the time was: ‘‘[t]hat’s your job, not mine.’’ 268

According to the Army colonel, both officers were in an ‘‘uncomfortable’’ situation.269 They had high regard for HRT commander

Rogers and the HRT. However, they did not like the plan because

of its incremental approach to inserting tear gas, but were not in

a position to say so. They both indicated it was a law enforcement

plan, not a military operation. The Army colonel indicated that

Brigadier General Schoomaker made it very clear they were not

going to assess the plan one way or the other.270

Brigadier General Schoomaker and the Army colonel told committee staff that when they left the April 14, 1993, meeting, they

were convinced the FBI would never execute the proposed operations plan as it was briefed at the meeting. The Army colonel stated he believed the Attorney General ‘‘didn’t buy the plan being proposed by the FBI.’’ 271 Brigadier General Schoomaker stated that

Attorney General Reno made no decision regarding the plan at the

meeting, but his impression from the meeting was that no one

thought it was a smart way to proceed.272 He went on to state that

he was astonished when he saw the fire on TV on April 19, 1993.

According to Brigadier General Schoomaker, he wondered why anyone would make the decision to follow through with the FBI’s proposed operations plan as it had been described at the meeting.273

Brigadier General Schoomaker told committee staff that his

thought at the time of the meeting with Attorney General Reno

was that HRT should have put a fence around the compound and

waited until the Branch Davidians came out from hunger, but he

did not state this thought openly at the meeting. He further stated

that he was surprised that, given the efforts taken by the FBI to

68

274 Id. 275 Interview with General Peter Schoomaker, U.S. Army, in McDill AFB, Flordia (Jan. 13,

2000); interview with an Army general currently assigned to a unit within USSOCOM, in

McDill AFB, Florida (Jan. 13, 2000). 276See memorandum from Commander, [Army unit], to Commander, U.S. Army Special Operations Command, (May 13, 1993) Department of Defense document production Z0040342– 0040345 (exhibit 102). 277 Id at 4. 278 Interview with General Peter Schoomaker, U.S. Army, in McDill AFB, Florida (Jan. 13,

2000); interview with an Army general currently assigned to a unit within USSOCOM, in

McDill AFB, Florida (Jan. 13, 2000). 279 Interview with LTC Scott Wells, U.S. Army, in Washington, DC (July 14, 2000). On Apr.

14, 1993, LTC Wells was a major.

have the Army colonel and himself present for the meeting, there

was little consultation with them.274

During the meeting, Brigadier General Schoomaker and the

Army colonel offered general comments about the possible need for

HRT personnel, at some point, to be pulled away from the compound for rest and refresher training. They also indicated that in

a military operation, they would concentrate their action on ‘‘taking

out the leadership’’ of a target organization. They also discussed

their experiences with tear gas, as well as their knowledge of potential effects and reactions of people once exposed to tear gas.275

On May 13, 1993, approximately 1 month after the meeting with

Attorney General Reno, the Army colonel prepared a memorandum

for his commander providing a synopsis of what was discussed at

the meeting.276 Brigadier General Schoomaker and the Army colonel reviewed the memorandum during their interviews. Brigadier

General Schoomaker indicated that to the best of his recollection,

it was a ‘‘pretty accurate’’ synopsis of the meeting. The Army colonel indicated in his memorandum that he did not believe the FBI

or the Attorney General was trying to force them to support or defend the plan. He further stated it was his belief that they simply

wanted any observations that Brigadier General Schoomaker and

he felt comfortable in providing.277 Both officers indicated they

were never contacted or interviewed by anyone associated with the

Department of Justice’s after-action inquiry. Neither officer has

ever been asked to provide a written statement regarding their involvement with any Waco events, except for the memorandum prepared by the Army colonel for his commander.278

During his interview with committee staff, Major Wells indicated

his present memory was unclear regarding what exactly occurred

or was said at the meeting with Attorney General Reno. He did,

however, vaguely recall that one of the senior Army officers indicated something to the effect that they ‘‘could not grade their

paper’’ which, to him, referred to the FBI’s proposed operations

plan.279

Major Wells did not know he was to attend the meeting on April

14, 1993, as a DOD representative until that morning. He was not

informed who else was going to attend. Major Wells stated that if

it was known that the Attorney General and other senior Justice

Department officials would be attending, an officer more senior

than he would have been sent. Major Wells did know the topic for

the meeting related to Waco, but did not know that Brigadier General Schoomaker, the senior Army colonel, or Dr. Salem would be

there. In sum, he had no idea what was to occur or what his role

would be other than to attend and take notes. Major Wells did not

69

280 Id. 281See Department of Defense document production Z0003945–0003949 (exhibit 103). These

undated notes were prepared by Major Wells during the Apr. 14, 1993, meeting with Attorney

General Reno. 282See Department of Defense document production Z0013112–0013115, Z0023557–Z0023558

(exhibit 104). These documents were prepared by Dr. Salem shortly after the Apr. 14, 1993,

meeting with Attorney General Reno.

offer any comments at the meeting and was not asked any questions.280 He prepared very sketchy handwritten notes as the meeting progressed. Major Wells reviewed his notes with committee

staff during his interview.281

Dr. Salem was present at the April 14, 1993, meeting as an expert on the effects of CS tear gas. As with Major Wells, his recollection of what individuals said at the meeting was unclear at best.

After Dr. Salem attended the meeting, he returned to his command

and prepared notes to assist him when he discussed details of the

meeting with his superiors. In addition, he discussed the meeting

in an e-mail message, and prepared an information paper on CS

Riot Control Agent.282

b. Military Representatives Never Endorsed the FBI Operations Plan

Since April 19, 1993, there have been a number of statements by

or attributed to the Attorney General regarding the involvement

and comments of Brigadier General Schoomaker and the Army

colonel during the April 14, 1993, meeting. These comments and remarks give the clear impression that according to Attorney General

Reno, Brigadier General Schoomaker and the Army colonel endorsed or otherwise offered their approval of the FBI’s proposed operations plan on April 14, 1993. Both officers stated to committee

staff during their interviews that they made it clear to HRT Commander Rogers on the plane traveling to Washington, DC, and to

Attorney General Reno at the meeting, that they could not offer

any such endorsement. Examples of misleading statements concerning the involvement of these two officers include the following:

• Remarks by President Clinton on April 20, 1993

On April 20, 1993, President Clinton spoke to the American people regarding the tragic ending of the standoff at the Branch

Davidian compound. During his remarks he discussed the questions he asked Attorney General Reno during their telephone conversation on April 18, 1993, in which she discussed her decision to

approve the FBI proposed operations plan. President Clinton remarked:

The third question I asked was, has the military been consulted? As soon as the initial tragedy came to light in

Waco, that’s the first thing I asked to be done, because it

was obvious this was not a typical law enforcement situation. Military people were then brought in, helped to analyze the situation and some of the problems that were presented by it. And so I asked if the military had been consulted. The Attorney General said that they had, and that

they were in basic agreement that there was only one

minor tactical difference of opinion between the FBI and

70

283President William Jefferson Clinton, remarks by the President in a question and answer

session with the press, Washington, DC, at 3 (Apr. 20, 1993) (exhibit 24).

the military—something that both sides thought was not

of overwhelming significance.283

• The Attorney General’s Testimony Before Congress

The Attorney General testified before the House Committee on

the Judiciary on April 28, 1993, regarding the Waco incident and

the tragic ending of the standoff. During her testimony she commented upon the remarks made by Brigadier General Schoomaker

and the Army colonel. Attorney General Reno testified as follows:

But we continued to deliberate; and in the course of our

deliberations, we met with Gen. Peter Schoomaker and

[Army colonel], former and present commanders of [Army

unit], respectively, the Army’s equivalent to the FBI’s

HRT, to review the plan. Their comments were instructive.

While indicating the plan appeared to be sound, one suggestion was that rather than an incremental approach for

the use of the gas as proposed by the FBI, gas should be

inserted into all portions of the compound simultaneously.

I preferred the FBI approach which called for a gradual increase in pressure over time. It seemed to me that that

would be best to ensure the safety of those inside.

* * * * *

We had explored other possible alternatives. As I suggested to you, the FBI, before I had been sworn in, and

then I concurred totally with them, rejected any direct assault on the compound as being far too dangerous for the

agents and for those inside the compound.

We asked to meet with military officials. The general who

was the former commander of [Army unit] and the colonel

presently commanding the [Army unit] came to Washington and met with us and FBI officials after they reviewed

the plan and we consulted very carefully about that.

One of the points raised for the first time by the [Army

unit] commander and previous commander was that the

HRT had to be at a constant state of readiness and that

to keep them on a scene for the length of time that these

agents had been on the scene began to raise questions that

they could not remain there much longer and still be in

the state of readiness which should be expected of an HRT

team.

I asked, ‘‘Well, isn’t there another team,’’ and was advised

no, except for [Army unit], and then I believe the Navy has

a force for marine disasters. We explored the provisions of

posse comitatus and became convinced that you could not

use the [Army unit] in a civil situation.

* * * * *

Q. Once the decision was made to force the issue, then it

became a situation of how best to accomplish that

71

284 ‘‘Events Surrounding the Branch Davidian Cult Standoff in Waco, Texas,’’ hearings before

the House Committee on the Judiciary, 103d Cong., (1993) at 15–16, 19, 64.

tactically. It appears from your testimony that there was

uniform consensus that tear gas would be an effective

means of doing that. I note in your testimony that [Army

unit] advisors, General Schoomaker and [Army colonel],

suggested it be introduced in overwhelming amounts

quickly. Rapidly. I would presume to not only upset physically but to, just the shock value of such an event.

That recommendation was rejected for a more phased approach, which started at 6 a.m. in the morning until 12

noon when the fire began giving 6 hours in which plans

could have been hatched to incinerate the compound or

prearranged plans could have been put into effect.

In retrospect, and not in the sense to assess responsibility

but to look forward, could you elaborate on the advice you

received from [Army unit] and why that advice was not followed for a more comprehensive approach?

A.G. RENO. We discussed it at length, and both the head

of the Hostage Rescue Team was there, the FBI, and it

was a good and frank discussion with the [Army unit] on

what would be the appropriate way to proceed.

The more measured approach, again, went to the fact that

we hoped they would not panic and would come out in an

orderly way. That is what precipitated our decision. Ironically, once they fired, the FBI did not return the fire but

the FBI then began to insert the gas almost immediately

and so in effect, [Army unit’s] recommendation was carried

out.284

• The Attorney General’s 60 Minute Interview

On May 12, 1995, Attorney General Reno participated in a ‘‘60

Minutes’’ interview with Leslie Stahl. During the interview, Stahl

questioned Attorney General Reno regarding what factor finally enabled her to make the decision to approve the FBI’s proposed operations plan:

Q. Now key question. What did they tell you that finally

tipped the scales so that you said, OK, let’s do the tear

gas?

A.G. RENO. I can’t say there was one particular point that

finally tipped it. I think it was probably Saturday afternoon, April the 17th, which is the day I finally gave the

go-ahead. And as of Friday night I didn’t feel comfortable

enough with proceeding. But I think it was the culmination of all the factors, that the situation in the compound

was deteriorating, that we were concerned about people in

the compound and the fact that he could do what he did

at any time and we would be in the less favorable position

to control it. That the HR? I was influenced by the fact

that I had met with the United [——]

72

285Leslie Stahl, ‘‘60 Minutes’’ interview with Janet Reno, U.S. Attorney General and Leslie

Stahl, at 4 (May 12, 1995).

Q. Did you say HRI? I’m sorry, who was influenced, I

didn’t understand what you said?

A.G. RENO. I’m sorry.

Q. OK, Go ahead, I’m sorry.

A.G. RENO. I was influenced by the fact that I had had the

opportunity to meet with the two military commanders

who had commanded the HRT forces for the military.

Q. Oh, hostage rescue team?

A.G. RENO. Yes. They were concerned as they reviewed our

plan, they said it was an excellent plan but they were concerned that the HRT team after having been on the scene

for 51 days was getting so exhausted that it was not going

to be effective and that that was creating a dangerous

situation[.] 285

• Attorney General Reno’s Interview with Members and Staff of the

Committee on Government Reform on October 5, 2000

On October 5, 2000, committee staff interviewed Attorney General Reno regarding, among other issues, her actions and decisions

concerning the Waco matter:

Q. It is 263 of the Scruggs Report. It says, I asked that the

military be consulted. Attorney General Reno stated the

military had been consulted and that they were in basic

agreement with the FBI recommendation. She explained

that there was a minor technical difference of opinion, but

both the FBI and the military agreed that it was not of

overwhelming significance. Is this, to the best of your

knowledge, a correct statement?

* * * * *

A.G. RENO. I wouldn’t have called it a technical [——].

Q. That actually was going to be my next question. What

is that which was referred to as the minor technical difference of opinion?

A.G. RENO. The difference of opinion was whether, as I recall, they were fired on. The military indicated that it

would insert tear gas throughout the building and the Bureau wanted to do it in a more measured way.

Q. Okay. Shortly after the Waco tragedy on May 12, 1995,

you appeared with Leslie Stahl on 60 Minutes and during

that interview Ms. Stahl asked about your final decision to

approve the FBI plan to proceed. And if we could, let’s provide a copy of this.

* * * * *

The question is did the military commanders indicate to

you that the FBI’s plan was excellent?

A.G. RENO. That was my impression.

73

Q. What did they say to you about the plan to the extent

you recall?

A.G. RENO. My remembrance—and this was—I need the— here it is. The best information I have, and I will check to

see if there are others, actually of what was said at the

time from Hubbell’s 302 of August the 9th, 1993: The military representatives stated the plan to introduce tear gas

into the compound was reasonable and practical. The only

aspect of the plan that the military would do differently

concerned the timing of the gas insertion.

Q. Was there any reticence on behalf of the military personnel present to provide commentary on the plan?

A.G. RENO. I don’t recall any reticence, but none was expressed to me as I remember.

Q. Do you recall any comment to the effect that they could

not grade the paper?

A.G. RENO. They couldn’t grade the paper in terms of it

being a law enforcement initiative as opposed to a law enforcement initiative as opposed to a military initiative. In

a military initiative issues with respect to loss of life and

the use of force would be a different situation.

Q. Do you recall that comment being made?

A.G. RENO. I don’t recall the ‘‘grade your paper’’ comment,

but I recall the fact that whether they—and I recall it and

we’d have to double-check. My sense was that they

thought it was a reasonable and practical plan, but they

couldn’t be the judge and nobody was asking them to be

the judge of a law enforcement initiative where rules of engagement would apply that would be different than the

military.

Q. We have—through the interviews that we have conducted we have been told that the General that was

present told you that neither he nor the Army colonel

could approve or disapprove or offer you any opinion about

the plan thus there appears to be a slight divergence.

A.G. RENO. I don’t think so because they couldn’t approve

the plan. It was going to be me.

* * * * *

Q. Thank you very much. They did indicate to you though

that they were not able to offer an opinion about the plan?

Not just an approval or disapproval of the plan, but an

opinion.

A.G. RENO. I think they could not offer an opinion about

the plan from the law enforcement perspective.

Q. But that leads to a divergence between your indication

that they thought it was an excellent plan—I mean, if you

are telling the 60 Minutes individual [ ]

A.G. RENO. My impression, after this passage of time, is

based on what I see here and that statement is that they

74

286Preliminary Transcript of Interview with Janet Reno, U.S. Attorney General, in Washington, DC at 96:5–101:4 (Oct. 5, 2000) (on file with the committee). 287See H. Rept. No. 104–749, 39–40 (1996). A somewhat similar event occurred when the

BATF sought certain types of military assistance. Prior to the BATF raid on the Branch

Davidian compound on Feb. 28, 1993, BATF requested assistance be provided from an Army

Special Forces unit attached to JTF–6 at Ft. Bliss, TX. The request asked that the military assist in a ‘‘review and scrub’’ of the BATF operation, provide medical support close to the scene

of the raid, and assistance in constructing and developing rehearsal sites. The commander of

the unit, Major Mark Petree, U.S. Army, and Major Brent Ballard, U.S. Army, special operations representative to JTF–6, El Paso, TX, discussed their concern about the request with LTC

Phil Lindley, U.S. Army, legal advisor at Army Special Operations Command Headquarters at

Ft. Bragg, NC. LTC Lindley expressed serious concerns and objections to JTF–6 that the scope

of support involved possible Posse Comitatus Act violations and it was scaled back. Active vigilance of the military officers involved resulted in a reduction in the scope of support and precluded any Posse Comitatus Act violations.

made clear that they couldn’t approve a plan that was a

law enforcement plan as opposed to a military plan that

provided for the insertion of gas in a gradual way, even if

they were fired upon. As I indicated to you, they said that

if they were fired upon, they would go right back at them

and fully gas. And I think that was clear.286

c. The Statements of the Attorney General and the President

Stand in Stark Contrast to Those of the two Senior Army

Officers

The evidence developed during this inquiry clearly demonstrates

that the intent of having Brigadier General Schoomaker and the

Army colonel attend the April 14, 1993, meeting with Attorney

General Reno was to have them review and provide comments and

opinions regarding the merits of the FBI’s proposed operations plan

to end the standoff. The plan was specifically intended to force the

Branch Davidians out of the compound so law enforcement agents

could execute search and arrest warrants. While Attorney General

Reno says that General Schoomaker and the Army colonel indicated to her that the FBI’s proposed operations plan was ‘‘excellent,’’ in one case and ‘‘sound’’ in another, both officers in separate

interviews stated they were careful not to evaluate the plan—‘‘not

grade the paper’’ in any manner.

Brigadier General Schoomaker and the Army colonel should be

complimented for their vigilance in avoiding a violation of the

Posse Comitatus Act by refusing to give Attorney General Reno

and the FBI advice on the tactical details or merits of the plan.

Without their caution and concern, they would have become active

and direct participants in planning the FBI’s flawed operation.287

It is troublesome that Brigadier General Schoomaker and the

Army colonel were never interviewed by anyone during the Scruggs

inquiry. The committee finds it very disturbing that senior White

House officials and other senior law enforcement officials unwittingly or not, placed senior military officers in a situation where

the discussions at the meeting confronted them with violating the

Posse Comitatus Act. The committee finds it most disturbing that

President Clinton and Attorney General Reno have

mischaracterized what the military officers told her, and deceived

the American people for the last 7 years by indicating that the

military endorsed or otherwise approved the details of the FBI’s

proposed operations plan.

75

288 ‘‘See 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.,

163 (1995). 289 Id. at 406. 290See letter from the Honorable H. Allen Holmes, Assistant Secretary of Defense for Special

Operations/Low Intensity Conflict, Department of Defense, to the Honorable William H. Zeliff,

chairman, Subcommittee on National Security, International Affairs, and Criminal Justice,

Committee on Government Reform and Oversight, Department of Defense document production

Z0032599(U)–Z0032608(U), (Jan. 23, 1996) (exhibit 105). 291Operation Alliance is a government office which coordinates joint military and civilian

counter drug operations along the southwest border of the United States. 292See H. Rept. No. 104–749, 55 (1996) at 55. 293See ‘‘Department of Defense: Military Assistance Provided at Branch Davidian Incident,’’

1–2, (GAO/NSIAD/OSI–99–133, Aug. 26, 1999) (exhibit 4).

C. THE GENERAL ACCOUNTING OFFICE REPORT

During the subcommittees’ hearings in 1995, interest was expressed regarding the military support, especially material and

equipment, provided to the BATF and FBI in connection with their

law enforcement activities at the Branch Davidian Compound.288

On July 20, 1995, Assistant Secretary of Defense for Special Operations/Low Intensity Conflict, H. Allen Holmes, testified and

agreed to provide the subcommittees a complete accounting of military support provided to the BATF and FBI at Waco.289

On January 23, 1996, Secretary Holmes provided the subcommittees with an incomplete accounting.290 Troubled by the lack of

available detail concerning the scope and cost of military assistance, the subcommittees requested that the GAO audit the military

assistance provided at Waco and investigate the activities of Operation Alliance 291 in light of the Waco incident.292

GAO’s specific objectives were to:

• Determine whether the BATF’s requests for support from military counterdrug programs met requirements for authorizing

that support;

• Identify the measures the BATF took to deal with any drug activity it might find during its warrant service, and determine

whether those measures were appropriate for such operations

where a methamphetamine laboratory might be encountered;

and,

• Account for the type, costs, and reimbursements of all military

support, including that from counterdrug programs, provided to

the BATF and the FBI.293

On August 26, 1999, GAO concluded its inquiry and issued its report. It concluded:

The ATF requests for assistance from military counterdrug

programs met the requirements of the relevant statutes for

authorizing such support. In these written requests, ATF

cited its suspicions of drug activity. In both cases, the military reasonably exercised its discretion in providing that

support as authorized under the relevant statutes.

In planning how it would serve warrants at the compound,

ATF planned for the possibility of encountering a methamphetamine laboratory or other hazardous drug materials. As required by agency policy, ATF agents in the opVerDate 11-MAY-2000 10:08 Jan 03, 2001 Jkt 000000 PO 00000 Frm 00085 Fmt 6659 Sfmt 6601 C:\REPORTS\67357.TXT HGOVREF1 PsN: HGOVREF1
76

294 Id. at 17. 295See H. Rept. No. 104–749, 53 (1996). The subcommittees concluded that the BATF intentionally misled DOD and military personnel as to whether the Branch Davidians were operating

an illegal methamphetamine lab at the Branch Davidian compound. 296See letter from the Honorable H. Allen Holmes, Assistant Secretary of Defense for Special

Operations/Low Intensity Conflict, Department of Defense, to the Honorable William H. Zeliff,

chairman, Subcommittee on National Security, International Affairs, and Criminal Justice,

Committee on Government Reform and Oversight, U.S. House of Representatives, at 9 (Jan. 23,

1996) (exhibit 105). 297See ‘‘Department of Defense: Military Assistance Provided at Branch Davidian Incident,’’

28 (GAO/NSIAD/OSI–99–133, Aug. 26, 1999) (exhibit 4). 298See Department of Defense document production Z0022040, D635, D1822, D712, D1857–

1858, DTG 111550Z MAR93, DTG 121323Z MAR93, Z0010339 (exhibit 106).

eration were made aware of the suspected laboratory and

of the appropriate precautions. Moreover, DEA agents

were at the command post to handle any drug-related materials.294

BATF officials submitted two requests for military assistance as

they prepared for their dynamic entry upon the Branch Davidian

compound to serve arrest and search warrants upon David Koresh

during the January-February 1993 period. In order to receive nonreimbursable military assistance at Waco, BATF was required to

demonstrate a ‘‘drug nexus’’ within their investigation. The adequacy of the BATF’s evidence supporting a drug nexus was disputed by the subcommittees.295 In this current oversight investigation, the committee has not sought to reopen that issue. Rather, it

continues to hold to the conclusions reached in 1995, that the

BATF had insufficient evidence of a drug nexus to seek either a

search warrant or non-reimbursable military support.

1. Unresolved Issues Concerning Accounting for the Type, Costs,

and Reimbursements of All Military Support within the GAO

Report

After reviewing the GAO report, committee staff found the summary of military assistance provided by Assistant Secretary

Holmes in January 1996 to be inaccurate and incomplete. It failed

to address two support issues. First, there was no discussion of the

aerial reconnaissance support provided by the Alabama National

Guard.296 Second, as GAO investigators discovered, the Army did

not bill the FBI for 500 rounds of 40-mm grenade launcher ammunition and cannot say definitively to this day whether the rounds

were actually provided. The munitions in question included 200

target-practice rounds, 50 illumination rounds, and 250 high explosive (HE) rounds.297

Documents and other evidence provided to the subcommittees in

1995, and later, to committee staff during this recent inquiry, indicate that HRT agents employed the target practice munitions at Ft.

Hood, TX, to gain firing familiarization in preparation for the FBI’s

plan to insert 40-mm ferret CS gas grenades into the Branch

Davidian compound.298 There was no discussion in the FBI’s proposed operations plan, however, that explained the need for highexplosive rounds to be issued to the FBI for their use at Waco.

DOD has failed to formally resolve the status of the 250 high explosive (HE) rounds purportedly issued to the FBI.

DOD considers the discrepancies between the GAO report and

the summary provided by Secretary Holmes to be minor. The comVerDate 11-MAY-2000 10:08 Jan 03, 2001 Jkt 000000 PO 00000 Frm 00086 Fmt 6659 Sfmt 6601 C:\REPORTS\67357.TXT HGOVREF1 PsN: HGOVREF1
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299See ‘‘After Action Report of Texas National Guard Counterdrug Support in Waco, Texas,’’ 3 (Apr. 29, 1993), DOD document production Z000465–Z000473 (exhibit 107). The report indicated that on Jan. 14, 1993, aerial photographs were taken by RF4–C aircraft from the Alabama

National Guard. 300Letter from the Honorable Dan Burton, chairman, Committee on Government Reform, to

the Honorable William Cohen, Secretary of Defense, Department of Defense (Nov. 16, 1999) (exhibit 108).

mittee disagrees. An accurate accounting of the use of military

combat aircraft and high explosive munitions provided by the military to support civilian law enforcement operations is an issue of

significance. This is especially true in the case of high explosive

grenades because ammunition of this nature does not have a routine law enforcement purpose.

a. DOD’s Failure to Account for the Participation of the Alabama National Guard in Support of Waco Operations in

Response to a Congressional Request

Secretary Holmes’ response to the subcommittees did not contain

any reference to the support provided by the Alabama National

Guard between January and April 1993. The fact of their participation was well known to DOD, especially the National Guard Bureau. The assistance provided by the Alabama National Guard was

requested by the Texas National Guard as a part of their ongoing

support to BATF during the Waco incident. The Texas National

Guard briefly commented upon the Alabama National Guard assistance in their April 29, 1993, after-action report on their

counter-drug support in Waco, TX. This report was addressed to

the Chief of the National Guard Bureau at the Pentagon.299

After reviewing GAO’s report, Committee Chairman Dan Burton

wrote to William Cohen, Secretary of Defense, to express his concern regarding not only this discrepancy, but also the broader issue

of DOD’s inability to provide a definitive, single-source document

cataloging in detail the military personnel, equipment, and material involved in the Waco incident. On November 16, 1999, Chairman Burton wrote:

The critical first step in understanding the military’s involvement during the Waco incident is to obtain a complete and accurate listing of the military units and personnel from any branch of the Armed Forces—Active Duty,

National Guard or Reserve—who were engaged in any

manner, means, or method of support to the BATF or FBI

at Waco; the dates, locations, and descriptions of the duties and responsibilities of military members providing

that support; and a complete listing and description of the

equipment and material, to include all munitions, supplied

to the BATF and FBI for their use during the Waco incident.

DOD is the only entity that possesses that information and

only DOD can produce such a document of record. The

Committee on Government Reform and the American people should not have to engage in a documentary shell

game to understand once and for all exactly what their

military forces did in support of law enforcement operations at Waco.300

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301Letter from Harold Kwalwasser, Deputy General Counsel, Department of Defense, to the

Honorable Dan Burton, chairman, Committee on Government Reform (Dec. 6, 1999) (exhibit

109). 302See letter from Douglas Dworkin, Acting General Counsel, Department of Defense, to the

Honorable Dan Burton, chairman, Committee on Government Reform, (Dec. 6, 1999) (exhibit

110).

On December 6, 1999, DOD’s Deputy General Counsel, Harold

Kwalwasser, responded on behalf of the Secretary of Defense. He

wrote:

While there are minor discrepancies between the matrix

we created following the 1995 hearings and the GAO report, we believe that these documents provide a generally

accurate picture of the support DOD provided to the federal law enforcement agencies.

* * * * *

With respect to your requests for information about the activities of the Texas and Alabama National Guards, we

suggest that those requests be directed to state authorities

since these Guard units were in a state, not federal, capacity during the Waco events. Although in 1995 we forwarded to Congress documents provided by the Texas and

Alabama National Guards concerning the support they

provided to federal law enforcement agencies, we are not

in a position to provide the comprehensive information the

Committee has requested about their activities, which

would require interviews with numerous Guard personnel

who are not federal employees. Such information should be

requested from the appropriate state officials.301

DOD’s Acting General Counsel, Douglas Dworkin, also corresponded with Chairman Burton on December 6, 1999, and provided some of the information requested in the chairman’s initial

letter of November 16, 1999.302 The reply was entirely unsatisfactory. Although some information was provided, DOD continued to

reiterate its opinion that the discrepancies between the GAO report

and Secretary Holmes’ 1996 response were generally minor. In addition, DOD continued to refer the committee to appropriate State

officials from Texas and Alabama for information regarding their

respective National Guard personnel and equipment.

On January 20, 2000, Chairman Burton again wrote to Secretary

Cohen regarding the issue of DOD’s obligation to provide a complete accounting of its support during the Waco standoff. Chairman

Burton wrote that when Secretary Holmes agreed during the subcommittee hearings to provide an accounting, Secretary Holmes’

obligation included providing information regarding the Texas and

Alabama National Guard involvement:

Although I do understand this position, the Honorable H.

Allen Holmes, Assistant Secretary of Defense (Special Operations and Low Intensity Conflict) testified as DOD’s

senior representative during the 1995 hearings and offered

to provide a complete accounting of DOD support provided

to both the BATF and the FBI during the Waco incident.

There were no qualifications discussed regarding which

military branch or component support would be provided,

79

303Letter from the Honorable Dan Burton, chairman, Committee on Government Reform, to

the Honorable William Cohen, Secretary of Defense, Washington, DC (Jan. 20, 2000) (exhibit

111). 304Letter from the Honorable John Hamre, Deputy Secretary of Defense, to the Honorable

Dan Burton, chairman, Committee on Government Reform (Feb. 15, 2000) (exhibit 112).

and the committee does not accept any being imposed at

this time. Additionally, the funds used to support the National Guard personnel at Waco were congressionally appropriated Federal funds. If there is a need to query The

Adjutants General or other state official from Texas or

Alabama, the Committee believes DOD has the responsibility to obtain the information and provide it to the

Committee.303

On February 15, 2000, John Hamre, Deputy Secretary of Defense, responded to Chairman Burton and again reiterated DOD’s

continuing reticence to take the steps necessary to provide the committee the requested information regarding support provided by

the Alabama and Texas National Guard:

We are not, however, able legally or practically to provide

the specific information you have requested for the National Guard. National Guard units are not actually part

of the Department of Defense. Congress has designated

them as ‘‘part of the organized militia of the several

states.’’ With limited exceptions, National Guard personnel

are under the command and control of the Governors unless they are called into active duty in their status as

members of the National Guard of the United States, a reserve component of the United States Armed Forces. The

Texas and Alabama National Guard units involved at

Waco were operating in a state, not federal, status. Consequently, the Department of Defense has no direct control

over their relevant documents or individuals with first

hand knowledge of the National Guard’s activities.304

It became clear at this point that DOD was not going to follow

through with its responsibilities to obtain the requested information. DOD’s position that they were not ‘‘legally or practically’’ able

to provide the requested information rings hollow. While technically true that Texas and Alabama National Guard personnel

were in a ‘‘state status’’ and under the ‘‘command and control’’ of

their respective Governors, in reality, Federal regulations, Federal

funding, and Federal equipment enabled all their actions:

• The Texas and Alabama National Guards were providing support

to Federal, not State, law enforcement agencies;

• The funds used by National Guards to support their activities

were from Federal appropriations provided to the State of Texas

for counter-drug missions approved by the Secretary of Defense;

• The National Guard military equipment (fixed wing aircraft and

helicopters, Armored Personnel Carriers, trucks and utility vehicles, Bradley Fighting Vehicles, Combat Engineer Vehicles, etc.)

used in support of the operations was provided by the Federal

Government to the States principally for their Federal, not State,

mission;

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305See letter from the Honorable Dan Burton, chairman, Committee on Government Reform,

to Major General Daniel James III, Air National Guard, Adjutant General, Texas National

Guard (Feb. 8, 2000) (exhibit 113). See also letter from the Honorable Dan Burton, chairman,

Committee on Government Reform, to Major General Willie A. Alexander, Army National

Guard, Alabama National Guard (Feb. 8, 2000) (exhibit 114); memorandum from Lt. Col. Michael Sanderson, staff judge advocate, Alabama National Guard, to Thomas Bowman, senior

counsel, Committee on Government Reform (Sept. 13, 2000) (exhibit 115). This was follow-up

correspondence regarding the dates of the Alabama National Guard flights in support of Federal

law enforcement in Waco. 306See memorandum from MG Willie A. Alexander, ARNG, Adjutant General, Alabama National Guard, to the Honorable Dan Burton, chairman, Committee on Government Reform (Feb.

17, 2000) (exhibit 116). See also memorandum from Lt. Col. Michael Sanderson, staff judge advocate, Alabama National Guard, to Thomas Bowman, senior counsel, Committee on Government Reform (Sept. 13, 2000) (exhibit 115). 307See ‘‘After Action Report of Texas National Guard Counterdrug Support in Waco, Texas,’’

3 (Apr. 29, 1993) at 3 (exhibit 107); DOD document production Z000465–Z000473. 308See letter from LTC Michael Sanderson, staff judge advocate, Alabama National Guard,

to Thomas Bowman, senior counsel, Committee on Government Reform (Sept. 13, 2000) (exhibit

115). 309See ‘‘Department of Defense: Military Assistance Provided at Branch Davidian Incident,’’

29 (GAO/NSIAD/OSI–99–133, Aug. 26, 1999) (exhibit 4).

• The terms and conditions governing the loan of National Guard

military equipment to the ATF and the FBI were Federal (NGB),

not State, regulations; and

• DOD (National Guard Bureau Headquarters) asked the Texas

National Guard to keep them informed of all their actions in support of the Waco operation; and,

To the American people, the convenient nuances and distinctions

concerning the National Guard’s ‘‘State’’ and ‘‘Federal status’’ were

meaningless at the time of the Waco incident, and probably remain

so today. They witnessed tanks, military vehicles, and uniformed

military personnel actively engaged in Federal law enforcement operations for 51 days. It is to DOD that they would and should look

for an explanation and accounting of their military’s involvement

at Waco. For the last 7 years, only Congress has attempted to fully

inform the American people concerning this issue. In the interest

of moving the committee’s inquiry forward, Chairman Burton wrote

directly to the Adjutants General of Texas and Alabama.305 Both

Adjutants General promptly provided the requested information.

Given the magnitude of the Waco tragedy, the committee simply

does not understand why DOD would not attempt to live up to Secretary Holmes’ promises to Congress in 1995.

The information provided to the committee from GAO, and the

Texas and Alabama National Guards, indicate that high altitude

aerial reconnaissance support was provided using camera-equipped

RF–4C aircraft from the 117th Tactical Reconnaissance Wing located at Birmingham, AL.306 There is disagreement, however, regarding how many missions were actually flown. The Texas National Guard indicated in its after-action report that one flight was

flown on January 14, 1993.307 The Alabama National Guard indicated that missions were flown on January 14th and 31st, March

4th, and April 7th, 1993.308 The GAO indicated that missions were

flown on January 6th and 14th.309 While all agree that a mission

was flown on January 14th, the total number of missions flown by

the Alabama National Guard remains unclear. A timely DOD review would have, in all probability, resolved this issue.

81

310See Richard Scruggs, U.S. Department of Justice, ‘‘Report to the Deputy Attorney General

on the Events at Waco, Texas, Feb. 28–Apr. 19, 1993,’’ 9–11 (Oct. 8, 1993); see ‘‘Department

of Defense: Military Assistance Provided at Branch Davidian Incident’’ 27 (GAO/NSIAD/OSI–99– 133, Aug. 26, 1999) (exhibit 4). 311Letter from Eleni P. Kalisch, Unit Chief, Office of Public and Congressional Affairs, FBI

to Thomas G. Bowman, senior counsel, Committee on Government Reform (Oct. 9, 2000) (exhibit

117). 312 Id. 313Letter from Harold Kwalwasser, Deputy General Counsel, Department of Defense, to

Thomas Bowman, senior counsel, Committee on Government Reform, tab 2 (July 26, 2000) (exhibit 118). 314 Id. 315 Id. at tab 1. 316 Id. at 3.

b. Discrepancy Surrounding the Alleged Transfer of 250 High

Explosive (HE) 40–MM Grenades from the Army to the

FBI at Fort Hood During March 1993

On March 1, 1993, HRT personnel began to arrive at Waco to assume control of the law enforcement operation from the BATF.

HRT personnel were flown to Waco by military aircraft from Andrews Air Force Base, MD.310 When they departed, HRT personnel

brought with them various weapons, munitions, communications,

and other operational safety and security equipment. Some of this

material was carried in two specially configured vehicles for HRT

use on operational commitments. The ammunition included 40-mm

high explosive grenades that were provided to the FBI by the ammunition storage facility at Marine Corps Base, Quantico, VA.311

At this time, the FBI is uncertain of the exact number of HE grenades brought to Waco. However, they believed it would have been

no more than approximately 12–18 grenades divided equally between the two vehicles. During the Waco standoff, HRT personnel

who were assigned to carry M–79 grenade launchers, were issued

a small number of HE grenades.312

Two documents on their face indicate that the Army issued 250

HE rounds to the FBI. Those documents were created by a Program Budget Analyst in the G–3 Budget Office at Ft. Hood, TX.

However, according to DOD, that person had no first-hand knowledge as to whether any of the munitions were actually provided to

the FBI.313 DOD further indicated that the analyst prepared these

two documents based upon information provided to her by the Deputy Range Officer for Ft. Hood and the Deputy G–3, for Headquarters, III Corps.314

The first document is an inventory attached to a loan agreement

between the FBI and the Commanding General, of III Corps and

Ft. Hood, dated July 30, 1993.315 It was created a number of

months after the Waco operation ended, and represented a preliminary effort to create a master list of the equipment and material

believed to have been provided to the FBI at Ft. Hood, TX. That

inventory reflected 250 HE rounds valued at $3,477.50; 200 target

practice rounds valued at $346.00; and, 50 illumination rounds valued at $1,242.00.

During the GAO investigation years later, GAO asked the Program Budget Analyst at Ft. Hood, TX to account for the equipment,

material, and ammunition listed on the equipment inventory.316

The Program Budget Analyst was asked to annotate the inventory

to assist the GAO, by writing ‘‘recovered’’ for items that were returned by the FBI, and ‘‘consumed’’ for items used or not reVerDate 11-MAY-2000 10:08 Jan 03, 2001 Jkt 000000 PO 00000 Frm 00091 Fmt 6659 Sfmt 6601 C:\REPORTS\67357.TXT HGOVREF1 PsN: HGOVREF1
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317 Id. 318 Id. at 1. 319 Id. at tab 1. 320See ‘‘Department of Defense: Military Assistance Provided at Branch Davidian Incident,’’ 28 (GAO/NSIAD/OSI–99–133, Aug. 26, 1999) (exhibit 4). 321See letter from Harold Kwalwasser, Deputy General Counsel, Department of Defense, to

Thomas Bowman, senior counsel, Committee on Government Reform, (July 26, 2000) at tab 2

(exhibit 118). 322 Id. 323 Id. 324 Id. 325 Id. 326See letter from the Honorable H. Allen Holmes, Assistant Secretary of Defense for Special

Operations/Low Intensity Conflict, Department of Defense, to the Honorable William H. Zeliff,

chairman, Subcommittee on National Security, International Affairs, and Criminal Justice,

Committee on Government Reform and Oversight (Jan. 23, 1996) (exhibit 105). 327See letter from Harold Kwalwasser, Deputy General Counsel, Department of Defense, to

Thomas Bowman, senior counsel, Committee on Government Reform (July 26, 2000) (exhibit

118).

turned.317 The Program Budget Analyst annotated ‘‘consumed’’ for

the HE rounds based on information provided to her by the Deputy

Range Officer that the FBI had been authorized to take any unexpended ammunition with them.318

The second document is a computer generated spreadsheet dated

August 31, 1993, that contains the items for which the Army

sought reimbursement from the FBI. The munition entries and values were the same as those indicated in the loan agreement.319

Upon review of Appendix IV of the GAO report, the committee

became aware that the Army did not bill the FBI for 500 rounds

of 40-mm grenade ammunition that were reportedly issued to the

HRT personnel at Ft. Hood, TX. This ammunition included 200 target-practice rounds, 50 illumination rounds, and 250 HE rounds.320

The ammunition of specific concern to the committee was the 250

HE rounds. Given the generally understood law enforcement objectives of HRT on April 19, 1993, it was unclear why HRT would

need 250 HE rounds in addition to the HE grenades they transported to Waco, or how that ammunition may have been factored

into the FBI’s proposed operations plan. It should be noted, however, that the committee is not aware of any evidence indicating

that FBI personnel, or any other persons, fired any HE rounds on

April 19, 1993, or at any other time during the Waco incident.

On March 11, 1993, the FBI requested that DOD provide 100 40-

mm practice rounds and 50 40-mm illumination grenades.321 On

March 12, 1993, the FBI increased its request for practice rounds

to 200.322 DOD approved the amended request.323 Additionally, the

FBI requested, and DOD approved, the use of an appropriate range

at Ft. Hood, TX on which to use the target-practice rounds for familiarization firing. The training occurred on March 13, 1993.324

There was no written request by the FBI for HE rounds. A handwritten note on the initial request authorized the FBI to depart the

practice range with any unfired ammunition.325

The personnel and equipment summary attached to Secretary

Holmes’ letter indicated that the Army provided the FBI 50 illumination rounds and only 100 rounds of target-practice ammunition.326 As stated above, the GAO investigators found that DOD

issued 200 target-practice rounds to FBI personnel. The summary

also indicated that the cost of the target-practice and illumination

rounds was $5,065.00, when the correct total should have been

$1,588.00.327 The summary reflected a total of $5,065.00 which can

83

328 Id. 329See letter from the Honorable Dan Burton, chairman, Committee on Government Reform,

to the Honorable William Cohen, Secretary of Defense, Department of Defense, (Nov. 16, 1999)

(exhibit 108). 330Letter from Harold Kwalwasser, Deputy General Counsel, Department of Defense, to

Thomas Bowman, senior counsel, Committee on Government Reform, 3 (July 26, 2000) (exhibit

118). 331 Id. at 2 332 Id. 333See letter from the Honorable Dan Burton, chairman, Committee on Government Reform,

to Henry L. Hinton, Assistant Comptroller General, General Accounting Office (Aug. 8, 2000)

(exhibit 119). 334See letter from the Honorable Dan Burton, chairman, Committee on Government Reform,

to the Honorable Louis Freeh, FBI Director, (Aug. 8, 2000) (exhibit 120). 335Letter from Carol Schuster, Associate Director, National Security Preparedness Issues,

General Accounting Office, to the Honorable Dan Burton, chairman, Committee on Government

Reform, at 3 (Aug. 21, 2000) (exhibit 121).

only be explained if 250 HE rounds, which cost $3,477.50, are included.328

Chairman Burton wrote Secretary Cohen and requested an accounting of support and assistance provided by DOD, to include an

accounting of all munitions supplied to the BATF and the FBI for

their use during the Waco standoff.329 On July 26, 2000, Harold

Kwalwasser, DOD’s Deputy General Counsel, wrote the committee

regarding the results of DOD’s inquiry and stated:

Based on our review of documents and interviews with relevant personnel, we have not been able to confirm that the

250 HE rounds were, in fact, ever provided by the Army

to the FBI.330

DOD’s response goes on to indicate that the Deputy Range Officer does not remember advising the Budget Office to seek reimbursement for the HE rounds. He recalls that FBI personnel were

prohibited from using HE rounds on the range assigned to them for

their training. Additionally, he believes that FBI personnel only

used training-practice rounds.331 The Deputy G–3 for the Army’s

III Corps Headquarters at Ft. Hood, also did not recall informing

the Budget Office that the FBI should be charged for the HE

rounds. The G–3 office was generally responsible for overseeing the

day-to-day operational activities at Ft. Hood. The Deputy G–3 was

responsible for processing all FBI requests for support during the

Branch Davidian operation.332

After reviewing DOD’s response, committee staff forwarded copies of the correspondence with its enclosures to the GAO 333 and

FBI 334 to give them an opportunity to review and comment.

With respect to GAO, committee staff was interested in finding

out if the information provided by DOD would change the finding

contained within the GAO report that 250 HE rounds were issued

to the FBI. GAO investigators concluded DOD’s response did not

warrant any changes and stated:

In closing, we see no need to change any of the information

in our report on the military assistance provided during

the Branch Davidian incident. As noted in our 1999 report,

DOD officials indicated that they accepted our findings on

the matters as presented. Moreover, the Department of

Justice and the FBI indicated that they agreed with the

substance of our report.335

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336Letter from John E. Collingwood, Assistant Director, Office of Public and Congressional Affairs, to the Honorable Dan Burton, chairman, Committee on Government Reform (Aug. 21,

2000) (exhibit 122). 337See ‘‘Department of Defense: Military Assistance Provided at Branch Davidian Incident’’ 17 (GAO/NSIAD/OSI–99–133, Aug. 26, 1999) (exhibit 4). 338Letter from Harold Kwalwasser, Deputy General Counsel, Department of Defense, to

Thomas Bowman, senior counsel, Committee on Government Reform, at 2–3 (July 26, 2000) (exhibit 118). 339See Army Regulation 190–11, ‘‘Physical Security of Arms, Ammunition, and Explosives’’

(Apr. 30, 1986) at 2–9, 6, (exhibit 123). This Army directive was in effect at the time of the

Committee staff also asked the FBI to review the DOD response

and inform the committee whether the FBI received any HE

rounds in connection with the Branch Davidian operation from any

munitions source within DOD. In response, the FBI stated:

The FBI has not identified any documentation or information which confirms that the FBI requested or received HE

rounds from any munitions source within DOD in connection with the Waco-related events. Numerous interviews of

the individuals deployed to Waco reflect no recollection of

the FBI requesting or receiving HE rounds from DOD for

any purpose, including training/target practice. The FBI

defers to the lengthy record submitted to you by DOD on

July 26, 2000, which suggests that HE rounds were not

provided to the FBI during the Branch Davidian operation.

Despite the best efforts of DOD and the FBI to ‘‘prove a

negative,’’ we recognize that the record before the Committee is inconclusive. As mentioned by DOD, however, the

critical point to remember is that the FBI did not fire any

HE rounds during the Branch Davidian operation.336

Distilled to its essence, the evidence presented to the committee

is one of documents versus inferences and dated recollections.

DOD’s response and the GAO report indicate the Army provided

the FBI with 250 rounds of HE ammunition. At the time GAO investigators finalized their report, both DOD and the FBI were allowed to review, take issue, and comment on the report prior to

publication. Neither DOD nor the FBI disputed the entries demonstrating that the Army issued the 250 HE rounds until the committee began its inquiry.337

DOD’s response seems to dispute the validity and accuracy of the

Army’s documents. DOD appears to rely on the statements of two

Army officers who indicated they have no recollection of providing

any information regarding the use of HE ammunition by the FBI

to the Program Budget Analyst who prepared the documents. The

analyst recalled that she obtained the information used to produce

the two documents from these two officers. DOD’s position that no

HE rounds were issued is bolstered, in their opinion, by the fact

there was no evidence that any HE rounds were fired on the range

at Ft. Hood.338 Additionally, DOD relies on the fact there are no

statements or other evidence from any source indicating HE rounds

were used during the Waco incident. In their response, the FBI

adopted the general findings and opinions of DOD regarding this

matter.

This issue involves properly accounting for the status of 250

rounds of lethal munitions. DOD’s own regulations require military

commanders, in similar situations, to conduct an inquiry.339 This

85

Waco events in 1993. See also Army Regulation 190–11, ‘‘Physical Security of Arms, Ammunition, and Explosives’’ (Sept. 30, 1993) at 2–9, 5, (exhibit 124). The requirement for a military

commander to direct that an inquiry be conducted regarding missing, lost, stolen or otherwise

unaccountable ammunition is essentially the same. 340See Richard Scruggs, U.S. Department of Justice, ‘‘Report to the Deputy Attorney General

on the Events at Waco, Texas, Feb. 28–Apr. 19, 1993,’’ at 9–11 (Oct. 8, 1993) (unredacted version). 341 H. Rept. No. 104–749 at 50.

committee is concerned that the DOD and FBI’s procedures regarding ammunition accountability were so lax during a matter as significant as the Waco standoff, that 250 rounds of lethal ammunition which are not designed for routine civilian law enforcement activity have remained unaccounted for. There is no information

available to the committee that an appropriate military commander

conducted an inquiry as required by DOD’s own regulations. This

issue, although it does not go to the actual events of April 19, 1993,

deserves a formal examination and resolution by appropriate military authorities, and the committee urges the Secretary of Defense

to direct that such action take place. The results of this inquiry

should be provided to the Congress and GAO.

D. INACCURATE ACCOUNTING OF MILITARY PERSONNEL SUPPORT

WITHIN DEPARTMENT OF JUSTICE INTERNAL REVIEW

1. Overview of Military Support Provided to the FBI

Almost immediately after the failed February 28, 1993, raid, the

limited training and light equipment support that had defined the

role of the Texas National Guard was dramatically transformed

into one involving armored personnel carriers, tanks, and combat

engineer vehicles. These items of equipment were deemed necessary for the safety and protection of law enforcement personnel

against the arsenal of weapons suspected to be within the compound.

On March 1, 1993, HRT personnel assumed control of law enforcement activity at the compound from the BATF. The transfer

of authority from BATF to the FBI was done at the request of the

Secretary of the Treasury and with the approval of Acting Attorney

General Stuart Gerson. Over the 51-day standoff, the scope of military support expanded from the Texas National Guard to include

military personnel and equipment assets from active duty military

units.340

A limited number of active duty military personnel were present

at the Branch Davidian compound at any one time during the

standoff. Most of these troops were dressed in uniforms indicating

their ranks and service, and were from units assigned at Ft. Hood,

TX. The type of support provided by these troops consisted primarily of performing repairs and maintenance on military equipment that had been provided to the FBI. The committee found no

evidence that the military personnel operated any of the equipment

during any law enforcement operation.341

The active duty Army also provided three observers and seven

technical equipment specialists from Army Special Forces units of

the U.S. Special Operations Command over the 51-day period of

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342Department of Defense document production Z0033619(U), Z0041496(U), Z0035388(U),

Z0036114(U), Z0041511(U)–Z004512(U), Z0041508(U)–Z0041509(U), Z0041506(U)–Z0041507(U),

Z0041510(U), Z0030706(U)–Z0030709(U) (exhibit 101). 343 Id. 344 Interviews with 10 current and former USSOCOM Army Special Forces personnel in Ft.

Bragg, NC; Raleigh, NC; and Washington, DC. The identities of these individuals remain classified by the Department of Defense. 345 Id. 346Department of Defense document production Z0033619(U), Z0041496(U), Z0035388(U),

Z0036114(U), Z0041511(U)–Z004512(U), Z0041508(U)–Z0041509(U), Z0041506(U)–Z0041507(U),

Z0041510(U), Z0030706(U)–Z0030709(U) (exhibit 101). 347 Interviews with 10 current and former USSOCOM Army Special Forces personnel in Ft.

Bragg, NC; Raleigh, NC; and Washington, DC. The identities of these individuals remain classified by the Department of Defense. 348 Id. 349 Id. 350See Richard Scruggs, U.S. Department of Justice, ‘‘Report to the Deputy Attorney General

on the Events at Waco, Texas, Feb. 28–Apr. 19, 1993,’’ at appendix B (Oct. 8, 1993) (exhibit

125) (unredacted version).

the standoff.342 The technical equipment specialist and their equipment were provided at the request of the FBI and with the approval of the Secretary of Defense.343 Committee staff interviewed

all 10 of these personnel.344 The technical equipment specialists

trained HRT personnel in the operation of a small amount of classified electronics and observation equipment, and provided necessary

maintenance for these items. As indicated above, the Commander

of U.S. Special Operations Command also provided an individual to

observe HRT’s actions and glean beneficial experiences that may be

helpful to the military.345 The decision to provide the observers

was made by the Commander of the U.S. Special Operations Command with the concurrence of the chairman of the Joint Chiefs of

Staff.346

As a general rule, there were no more than two technical equipment specialists and one observer from the U.S. Special Operations

Command at Waco at any one time.347 These personnel each stated

during their interviews that they did not participate in any of the

FBI’s law enforcement operations at Waco, nor did they possess

any weapons while there. They stated that, because of the classified nature of their normal duties, they wore civilian clothes and

did not identify themselves as being in the military. They further

stated that they did not assist in the planning or reviewing of any

HRT operational plans, and at no time did they enter the Branch

Davidian compound or its immediate area during the 51-day standoff.348 While at Waco, they indicated they were restricted to a support trailer approximately 1,000 yards from the compound. When

equipment maintenance was necessary, they stated that they were

accompanied and transported by HRT personnel to the equipment

location. When repairs were completed, they returned to their support trailer. They stated that they socialized very little with HRT

or other personnel when off duty away from operations at the Waco

compound.349

2. Inaccurate Accounting of Military Personnel

Appendix B of the Scruggs report was intended to reflect the

scope of military support and assistance provided to the FBI during

the 51–day standoff.350 FBI officials working with Scruggs provided

him the personnel and equipment figures. Scruggs indicated that

he could not recall who within the FBI provided the information,

but he accepted the accounting as accurate and included it within

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351 Interview with Richard Scruggs, Assistant U.S. Attorney, Department of Justice, in Miami,

FL (June 22, 2000). 352See memorandum from LTC Bill Reimer, TXARNG, STARC JAG, Texas National Guard,

to Thomas G. Bowman, senior counsel, Committee on Government Reform (Feb. 9, 2000) (exhibit

126). 353See memorandum from Director, Operations, Readiness and Mobilization, Office of the

Deputy Chief of Staff for Operations and Plans, Department of the Army, to Deputy Chief of

Staff for Operations and Plans, Director of the Army Staff, and Assistant Secretary of the Army

(Installations, Logistics, and Environment) (July 14, 1995) (exhibit 127). 354See letter from Douglas Dworkin, Acting General Counsel, Department of Defense, to the

Honorable Dan Burton, chairman, Committee on Government Reform (Dec. 6, 1999) (exhibit

110). 355Some of the off-site military personnel associated with providing or monitoring DOD’s assistance were not exclusively involved with Waco support. 356President William Jefferson Clinton, remarks by the President in a question and answer

session with the press, Washington, DC (Apr. 20, 1993).

his report to reflect the military’s support throughout the standoff.

Scruggs also stated that he did not seek DOD’s review of a draft

of his report to ensure the accuracy of his discussion of the military’s involvement prior to its release, although he did provide

Treasury officials with a draft.351

When appendix B of the Scruggs report is compared with information developed during the committee’s current inquiry, the personnel figures are grossly understated. Appendix B of the Scruggs

report reflects that a total of 28 active duty and National Guard

personnel supported the efforts of the FBI during the standoff.

During an interview with Richard Scruggs on June 5, 2000, he confirmed to committee staff his belief that the FBI was supported by

only 28 military personnel. Information provided to the committee

by the Texas National Guard indicates there were approximately

130 National Guardsmen intermittently involved, and they provided both on and off-site support to the FBI during the standoff.352 The personnel support on-site at Waco varied on a day-today basis, ranging from a minimum of 5 to a maximum of 35.353

According to information provided to the committee by DOD, there

were approximately 200 active duty military personnel intermittently providing support.354 As with the Texas National Guard,

this support was both on and off-site, with totals varying day-today.355 Taken together, the committee’s inquiry revealed that, approximately 330 active duty and National Guard military personnel

were involved in providing both on and off-site support to the FBI’s

law enforcement efforts at Waco. As discussed in section III, the

Scruggs investigation fell woefully short of a thorough accounting.

E. THE DEPARTMENT OF DEFENSE DID NOT CONDUCT A REVIEW AND

ASSESSMENT OF MILITARY ASSISTANCE PROVIDED

On April 20, 1993, President Clinton spoke to the American people from the Rose Garden regarding the tragic end of the 51–day

standoff at the Branch Davidian compound.356 Although he ordered

the Departments of Justice and Treasury to conduct ‘‘a vigorous

and thorough investigation’’ into what happened and why, he failed

to include DOD in this tasking. The committee believes President

Clinton’s omission of DOD was both unfortunate and shortsighted.

As the last 7 years have shown, the Departments of Justice and

Treasury inquiries fell short of presenting a complete accounting of

the military’s support role to their respective operations at Waco.

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357 Richard Scruggs, U.S. Department of Justice, ‘‘Report to the Deputy Attorney General on

the Events at Waco, Texas, Feb. 28–Apr. 19, 1993,’’ at 262–263 (Oct. 8, 1993) (unredacted version). 358 Id. at 263.

It is unfortunate that DOD has been content over the same period

to conduct no internal inquiry whatsoever.

President Clinton wanted Attorney General Reno to ensure that

the military had been consulted regarding the FBI’s proposed operations plan prior to its implementation. He was assured by Attorney General Reno during their telephone conversation on April 18,

1993, that the military had been consulted.357 In connection with

the Scruggs inquiry, President Clinton provided a statement regarding this telephone conversation which in part dealt with his

questioning of Attorney General Reno regarding consultation with

the military. The President stated in part:

I asked whether the military had been consulted. I had

previously asked that the military be consulted because,

based upon my experience as Governor of Arkansas in

dealing with a similar type situation in northwest Arkansas, I found that the military had a valuable perspective

on how to deal with situations of this type. Attorney General Reno stated that the military had been consulted and

that they were in basic agreement with the FBI recommendation. She explained that there was a minor technical difference of opinion, that both the FBI and the military agreed that it was not of overwhelming significance.358

Since April 19, 1993, the Department of Defense has been reactive, not proactive, in accounting for the military’s support during

the Waco incident. Whenever asked to provide information, briefings or witnesses, for inquiries, interviews or investigations, DOD

has complied, except when this committee requested assistance

with obtaining information concerning support provided by the

Texas and Alabama National Guards.

DOD is an organization that will, without hesitation, collect information and prepare reports regarding a myriad of incidents,

issues or allegations that involved their personnel or equipment.

DOD’s military and civilian leadership know that it is important to

find out what happened and whether there are any lessons to be

learned from events involving their personnel. These situations include vehicle accidents, plane crashes, ship collisions, military

training accidents involving injury or death, damage to military

equipment, and allegations of misconduct, fraud, waste or abuse. In

addition, DOD has provided military personnel and equipment in

support of significant national or international events like the 1992

Los Angeles riots; the 1996 Olympics; recent natural disaster assistance to State and local governments battling floods and fire;

and international humanitarian relief as we have seen throughout

the last decade in South America, the Caribbean, the Far East and

Africa.

In each case, whether it is a single vehicle involved in a training

accident, or a prolonged humanitarian assistance effort, DOD ensures that some level of after-action assessment and report is acVerDate 11-MAY-2000 10:08 Jan 03, 2001 Jkt 000000 PO 00000 Frm 00098 Fmt 6659 Sfmt 6601 C:\REPORTS\67357.TXT HGOVREF1 PsN: HGOVREF1
89

359See DOD Directive 5525.5, DOD Cooperation with Civilian Law Enforcement 4 (Jan. 15,

1986) (exhibit 128). The reporting requirements in this DOD directive were valid at the time

DOD was providing assistance at Waco in 1993 and remains valid as of the date of the committee’s report. DOD has indicated that this directive is currently under review.

360 Id. at 26. The directive requests information on various categories of support including facilities, information, equipment, aviation, explosives and ordinance, sensor equipment, personnel

and training.

complished for lessons-learned and historical record purposes. An

overall review of such events assists in evaluating whether current

practice, policy or procedures are appropriate. What is troubling to

the committee is that DOD did not independently exercise the

same wisdom, judgment, and leadership with regard to an overall

after-action accounting for their involvement and assistance at

such a significant domestic law enforcement event as Waco.

What exacerbates DOD’s failure in this regard even more, is that

the Secretary of Defense promulgated a regulation in 1986 requiring that the Secretaries of the Military Departments and the Directors of the Defense Agencies prepare a quarterly report of all requests for assistance from civilian law enforcement officials.359 The

reports were to be forwarded to various offices within the Office of

the Secretary of Defense. The reports were to outline the details of

assistance provided (approved, denied, or pending), and any other

information deemed appropriate. A sample report form was provided within the directive to assist in preparing the reports.360

Support involving the use of classified information or techniques

could be exempted from the reporting requirement if it was impractical to prepare an unclassified summary.

DOD has produced no documents indicating that any quarterly

reports were prepared as required by their directive regarding the

support provided by the military to the law enforcement agencies

concerning the Waco incident. At this late date, no explanation can

excuse DOD’s failure in this regard.

F. RECOMMENDATIONS

The committee recommends the following:

1. Legislative Recommendations

The Congress should enact legislation requiring the following actions by DOD when providing military assistance to Federal, State,

or local law enforcement agencies:

a. Notification to Congressional Leadership and Appropriate

Congressional Committees When any Special Mission

Unit, Personnel or Equipment, of the U.S. Special Operations Command, or Other Commands of the Armed

Forces of the United States, Will Provide Assistance in

Support of Domestic Federal, State or Local Law Enforcement Operations

The mission of the Armed Forces of the United States is to be

ready to confront and prevail in any national security challenge

that confronts the United States. Our Armed Forces must be the

most precise, most lethal, most versatile, best equipped, and best

trained forces in the world. The American people expect and demand no less. Congress directed the establishment of the U.S. Special Operations Command in 1987 to correct serious deficiencies in

90

the ability of the United States to conduct special operations activities. Their usual focus is to provide a full range of activities in support of our national security objective outside our country’s boundaries.

Because of their unique capabilities and equipment, special mission units are, at times, called upon to support law enforcement activities within the United States. Congress has recognized the importance of allowing law enforcement to have access to this unique

expertise and has authorized certain exceptions to the Posse Comitatus Act to enable such support. When such support occurs, it is

generally withheld from the public because of the classified nature

of special mission units, personnel and equipment within the special operations community. When the public does become aware

that such support has been provided domestically, it is generally

after the law enforcement event has ended. The public is not only

surprised, but to an increasing number of Americans, it is an issue

of concern. When law enforcement events have tragic conclusions,

as occurred at Waco, the American people expect and deserve a

full, complete and accurate accounting of what occurred, especially

when our country’s special mission units have been used domestically.

Congressional leadership and committees of appropriate jurisdiction need to be made aware in advance whenever special mission

units, personnel or associated equipment will be used in support of

domestic law enforcement activities. Congress has an oversight responsibility on behalf of the American people that can only be accomplished with advance awareness of when this type of support

will occur. Prior notification to Congress will also enable DOD to

conduct such support with the knowledge that the elected representatives of the American people have been consulted in the decision scenario that led to the use of these very specialized military

units in domestic law enforcement operations.

b. Annual Report to Congress by DOD Providing an Accounting of all Events in Which Active Duty, National Guard

or Reserve Units, Personnel, or Equipment Have Been

Provided in Support of Federal, State or Local Law Enforcement Operations

At the present time, DOD does have a requirement to collect a

certain level of law enforcement support information. The Secretary

of Defense has directed that a quarterly report of all such assistance (approved, denied, or pending) shall be submitted by the Secretaries of the Military Departments and the Directors of Defense

Agencies to the Office of the Secretary of Defense. However, there

is no concurrent requirement to provide Congress with this information. This same information would be of immeasurable benefit

to the Congress as they accomplish their oversight responsibilities.

2. Oversight Hearing Recommendation

Appropriate congressional committees should conduct oversight

hearings regarding: (1) the appropriateness of applying the Posse

Comitatus Act to the National Guard with respect to support situations where a Federal law enforcement agency serves as the lead

agency; and (2) the legal status of memoranda of agreements for

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361See H. Rept. No. 104–749 (1996) at 53–55.

the interstate use of National Guard personnel and equipment for

civilian law enforcement purposes.

Within the 1996 subcommittee report, it was recommended these

hearings occur. Our current inquiry reconfirms the need for such

congressional action for the reasons presented within the 1996 report.361

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(1471)

1 ‘‘Morning Edition,’’ NPR (Aug. 31, 1999). 2 ‘‘Fox News Sunday,’’ Fox News (Sept. 12, 1999). 3Letter from Representative Henry A. Waxman to Senator John C. Danforth (Sept. 13, 1999)

(attached as exhibit 1).

MINORITY VIEWS OF HON. HENRY A. WAXMAN, HON. TOM

LANTOS, HON. MAJOR R. OWENS, HON. EDOLPHUS

TOWNS, HON. PAUL E. KANJORSKI, HON. CAROLYN B.

MALONEY, HON. ELEANOR HOLMES NORTON, HON.

CHAKA FATTAH, HON. ELIJAH E. CUMMINGS, HON. DENNIS J. KUCINICH, HON. ROD R. BLAGOJEVICH, HON.

DANNY K. DAVIS, HON. JOHN F. TIERNEY, HON. JIM

TURNER, AND HON. HAROLD E. FORD, JR.

I. INTRODUCTION

The committee’s Waco investigation began as many of the committee’s other investigations have begun: with a false accusation.

In August 1999, after the media reported that the FBI had used

pyrotechnic tear gas rounds at Waco, Representative Dan Burton

accused Attorney General Janet Reno of covering up key facts and

said that she should be removed from office. On one nationally

broadcast radio program, Mr. Burton said that Attorney General

Reno ‘‘should be summarily removed, either because she’s incompetent, number one, or, number two, she’s blocking for the President and covering things up, which is what I believe.’’ 1

In September 1999, Mr. Burton renewed his accusations of a

cover-up by asserting that the Justice Department did not provide

Congress with documents detailing the FBI’s use of military tear

gas rounds near the Branch Davidian compound on April 19, 1993.

In particular, he accused the Justice Department of deliberately

concealing the 49th page of an FBI lab report, which contained a

reference to a spent military tear gas round. Prior to conducting

any meaningful investigation, Mr. Burton said on national television, ‘‘With the 49th page of this report not given to Congress,

when we were having oversight hearings into the tragedy at Waco,

and that was the very definitive piece of paper that could have

given us some information, it sure looks like they were withholding

information. And she’s responsible.’’ 2

Mr. Burton’s allegations turned out to be untrue. Representative

Henry A. Waxman pointed out that the Justice Department had

produced documents to the committee in 1995 that contained numerous explicit references to military tear gas rounds.3 Former

Senator John C. Danforth then thoroughly investigated the matter

as Special Counsel. He found that there was no cover-up by the Attorney General. In fact, Senator Danforth found that the 49th page

had never been missing at all. According to Senator Danforth’s report: ‘‘[T]he Committees were provided with at least two copies of

the lab report in 1995 which did contain the 49th page. The Office

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4 John C. Danforth, Special Counsel, ‘‘Interim Report to the Deputy Attorney General Concerning the 1993 Confrontation at the Mt. Carmel Complex, Waco, Texas’’ (July 21, 2000) (hereinafter ‘‘Danforth report’’) (attached as exhibit 2). 5 Amended findings of fact and conclusions of law, Andrade v. United States, No. W–96–CA– 139 (W.D. Tex. filed Sept. 27, 2000) (hereinafter ‘‘findings of fact and conclusions of law’’) (attached as exhibit 3). 6Danforth report at 51. The minority has no information to substantiate or refute Senator

Danforth’s interim findings that a staff attorney for the FBI failed to disclose that an FBI agent

used pyrotechnic tear gas rounds and gave conflicting information to Senator Danforth’s investigators. Committee staff interviewed this individual, Jacqueline Brown, on Jan. 7, 2000. The

minority staff found her to be cooperative and truthful in her responses to the questions posed

by committee staff. 7Danforth report at 5; findings of fact and conclusions of law at 10.

8 A report recently released by Representative Waxman describes many similar allegations

that have occurred over the last 6 years. See ‘‘Unsubstantiated Allegations of Wrongdoing Involving the Clinton Administration,’’ Minority Staff Report, Committee on Government Reform

(Oct. 2000) (attached as exhibit 4).

of Special Counsel easily located these complete copies of the lab report at the Committees’ offices.’’ 4

This committee’s investigation into Waco should have ended on

September 9, 1999, when Attorney General Reno appointed Senator Danforth to serve as Special Counsel to investigate lingering

questions related to the Branch Davidian standoff in 1993. Since

that date, Mr. Burton’s investigation has been unnecessary, expensive, and fruitless. He has required Federal agencies to produce

nearly 800,000 pages of documents, called more than 80 witnesses

to appear for interviews, and dispatched committee staff across the

country from Puerto Rico to Texas. And despite the duration and

cost to the Federal Treasury, his investigation has contributed virtually nothing to the public’s understanding of the Waco tragedy.

On the substance of this investigation, we concur with the major

findings of Senator Danforth and with the findings of fact issued

by Judge Walter S. Smith, Jr., of the U.S. District Court for the

Western District of Texas.5 Senator Danforth and Judge Smith

both concluded that the government did not cause the fire at the

Branch Davidian complex and did not direct gunfire at the Branch

Davidian complex on April 19, 1993. We also concur with Senator

Danforth’s conclusion that the government did not improperly employ U.S. armed forces during the Waco standoff and that senior

Justice Department and FBI officials—including Attorney General

Janet Reno and FBI Director William Sessions—did not knowingly

make false statements about the FBI’s use of pyrotechnic tear gas

rounds on April 19, 1993.6

Although one can with hindsight second guess decisions made at

virtually all levels of the FBI and Justice Department, the fact remains that the Federal officials involved in the Waco standoff acted

lawfully and with great restraint under difficult circumstances. As

both Senator Danforth and Judge Smith concluded, the responsibility for the Waco tragedy lies with certain Branch Davidians and

particularly their leader, David Koresh.7

II. MR. BURTON BEGAN HIS INVESTIGATION WITH ERRONEOUS

CHARGES

Mr. Burton, in a pattern that has become typical of this committee, first alleged wrongdoing by a Clinton administration official

and then proceeded to investigate.8 In August 1999, the press reported that pyrotechnic tear gas rounds had been used at Waco,

contrary to statements made by Attorney General Reno and other

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9 ‘‘FBI Reverses Its Stand on Waco,’’ Washington Post (Aug. 26, 1999). 10 ‘‘Hannity & Colmes,’’ Fox News (Aug. 30, 1999). 11Memorandum from FBI Laboratory to Sergeant James Miller, Texas Rangers (Dec. 6, 1993). 12Letter from Representative Dan Burton to Attorney General Janet Reno (Sept. 10, 1999). 13 ‘‘Fox News Sunday,’’ Fox News (Sept. 12, 1999).

officials that the FBI had only used nonpyrotechnic tear gas

rounds.9 Mr. Burton immediately attacked the Attorney General,

stating on one nationally broadcast television program, ‘‘I think she

either misled Congress and covered this up or she was totally incompetent. . . . [S]he should be removed because she’s just not

doing her job.’’ 10

Mr. Burton soon renewed his accusations of a cover-up, alleging

that the Justice Department failed to provide Congress documents

describing the FBI’s use of pyrotechnic tear gas rounds. In particular, Mr. Burton accused the Justice Department of concealing from

Congress the 49th page of an FBI lab report. This page, the last

in the document, contained the following reference to the FBI’s use

of a military-style tear gas round: ‘‘Specimen Q1237 (B160) is a

fired U.S. Military 40 mm shell casing which originally contained

a CS gas round.’’ 11 To a person with specialized knowledge of tear

gas projectiles, this would indicate the use of a pyrotechnic projectile, capable of igniting a fire.

Mr. Burton charged that Justice Department officials, including

the Attorney General of the United States, were involved in a

cover-up. Mr. Burton wrote in a September 10, 1999, letter to Attorney General Reno:

It is difficult for me to believe that the Department had

multiple copies of a document, produced only one copy of

the document to Congress, and then managed to lose the

one critical page of the document mentioning the use of pyrotechnic tear gas. Had page 49 of the FBI report been

produced to Congress when it was originally requested

years ago, it would have cast doubt onto the testimony of

a number of Department officials. The Department’s failure to produce this document when it was originally requested raises more questions about whether this Committee was intentionally misled during the original Waco investigation.12

Over the following weekend, Mr. Burton repeated his accusation

of a cover-up by the Attorney General, stating on one nationally

broadcast television program, ‘‘that was the very definitive piece of

paper that could have given us some information, it sure looks like

they were withholding information. And she’s responsible.’’ 13

Mr. Burton’s allegations were not only unsupported by the evidence, they were directly contradicted by information in his own

files.

In 1995, a subcommittee of the Government Reform and Oversight Committee and a subcommittee of the House Judiciary Committee conducted an investigation into the activities of Federal law

enforcement agencies toward the Branch Davidians. As part of that

inquiry, the subcommittees issued document requests to the White

House and the Departments of Justice, Treasury, and Defense. The

records produced in response to these requests were stored in over

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14Letter from Representative Henry A. Waxman to Senator John C. Danforth (Sept. 13, 1999). 15 Interview of Special Agent R. Wayne Smith, Federal Bureau of Investigation FD–302 (June

9, 1993). 16 Unidentified handwritten notes. 17 Id. 18 Unidentified handwritten notes. 19 Id.

40 boxes in congressional archives until August 1999, when they

were recalled by Mr. Burton.

At the time Mr. Burton alleged that the Attorney General had

withheld information on the use of military-style tear gas rounds,

he had documents in his own possession that explicitly discuss the

use of military-style tear gas rounds at Waco. Many of these documents were located by Representative Waxman’s staff in boxes in

Mr. Burton’s offices within a few days of Mr. Burton’s allegations.14

One document provided to Congress in 1995, for example, was a report of an interview of the FBI agent who co-piloted the surveillance aircraft flying above the Branch Davidian compound on the

morning of April 19, 1993. According to this document, the pilot reported hearing ‘‘a high volume of [Hostage Rescue Team] traffic

and Sniper [Tactical Operations Center] instructions regarding . . .

the insertion of gas by ground units,’’ including ‘‘one conversation

relative to utilization of some sort of military round to be used on

a concrete bunker.’’ 15

Another document produced to Congress in 1995 was a typewritten chart prepared by Justice Department prosecutors in connection with the criminal trial of surviving Branch Davidians. The

chart, which summarizes interviews with potential witnesses for

the prosecution, identifies each Hostage Rescue Team member

interviewed, the name of the interviewer, a summary of significant

observations made by the witness, and whether each witness would

be placed on the prosecution’s witness list for trial. According to

the chart, one witness, who was later identified as Special Agent

Dave Corderman, was expected to testify that ‘‘smoke on film came

from attempt to penetrate bunker w/1 military and 2 ferret

rounds.’’ 16 In addition, the document indicates that the witness described the appearance of the military round, stating: ‘‘Military was

grey bubblehead w/green base.’’ 17

Also among the documents produced by the Justice Department

to House investigators in 1995 were handwritten notes clearly describing the use of military rounds in the Waco operation and describing that such rounds were ‘‘incendiary.’’ One set of notes read, ‘‘Smoke from bunker—came when these guys tried to shoot gas into

the bunker. (Military gas round) . . . grey bubblehead w/green

base.’’ The term ‘‘military’’ or ‘‘military round’’ appears twice again

in the same paragraph, and an arrow points from the word ‘‘military’’ to the word ‘‘incendiary.’’ 18 Notes on the following page read, ‘‘Obj[ective]: to keep people from fleeing into bunker.’’ 19

Not only were there numerous references to the use of military

tear gas at Waco in Mr. Burton’s own files, but those files also contained the 49th page of the FBI lab report that Mr. Burton alleged

had never been produced to Congress. After thoroughly investigating this issue, Senator Danforth found:

Attorneys from the Department of Justice who produced

documents to the United States House of Representatives

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20Danforth report at 54. 21See majority report at 30 n. 106, 31. 22 Id. at 30 n. 106. 23See letter from Kent Marcus, Acting Assistant Attorney General for Legislative Affairs, to

Chairman William H. Zeliff, Jr., and Chairman William McCollum (July 6, 1995). 24See id.; letter from Jon P. Jennings, Principal Deputy Assistant Attorney General, to Chairman Dan Burton (Oct. 22, 1999).

Committee on Government Reform and Oversight and the

Committee on the Judiciary in advance of the 1995 hearings have come under public scrutiny for producing the

FBI laboratory report containing the reference to the military tear gas round without the 49th page, which contains

the relevant reference. In fact, however, while one copy of

the report did not contain the 49th page, the Committees

were provided with at least two copies of the lab report in

1995 which did contain the 49th page. The Office of Special

Counsel easily located these complete copies of the lab report at the Committees’ offices when it reviewed the Committees’ copy of the 1995 Department of Justice document

production. . . . The Special Counsel has concluded that

the missing page on one copy of the lab report provided to

the Committees is attributable to an innocent

photocopying error and the Office of Special Counsel will

not pursue the matter further.20

Mr. Burton has never apologized for making these unsubstantiated allegations of a government cover-up. To the contrary, in the

majority’s report, he renews the false accusation, suggesting that

Justice Department and FBI officials deliberately delayed production of these documents to this committee in 1995 in order to conceal the truth.21 The majority writes, ‘‘Sadly, the Justice Department did not produce the requested documents until three days before the start of the hearings.’’ 22 In fact, however, the Justice Department received broad document requests 6 weeks before this

committee held joint hearings with the Judiciary Committee in

1995 and, by agreement with the committee, produced 250,000

pages on a prioritized basis.23 The Justice Department produced

two complete copies of the FBI lab report to the committees on July

6, 1995.24 The committees thus received the FBI lab report not 3

days ahead of the 1995 hearings, but 13 days before the start of

the hearings, 26 days before the conclusion of the hearings, and

392 days before the committees issued their joint report on August

2, 1996.

III. MR. BURTON’S INVESTIGATION WAS UNNECESSARY AND

WASTEFUL

Since September 1999, the committee has conducted an unnecessary and wasteful investigation of Waco. Virtually every document

the committee has obtained and virtually every witness interviewed by committee staff was examined by Senator Danforth in

the course of his detailed Waco investigation.

A. SENATOR DANFORTH THOROUGHLY INVESTIGATED WACO

Despite a voluminous public record that had been developed on

the Waco tragedy between 1993 and 1997, three developments ocVerDate 11-MAY-2000 10:08 Jan 03, 2001 Jkt 000000 PO 00000 Frm 01485 Fmt 6604 Sfmt 6604 C:\REPORTS\67357.TXT HGOVREF1 PsN: HGOVREF1
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25 ‘‘Branch Davidian Compound—Waco, Texas,’’ press release, U.S. Department of Justice,

Federal Bureau of Investigation (Aug. 25, 1999) (on line at http://www.fbi.gov/pressrm/pressrel/

pressre199/presswaco2.htm). 26 ‘‘FBI Releases Waco Videotape,’’ press release, U.S. Department of Justice, Federal Bureau

of Investigation (Sept. 2, 1999) (on line at http://www.fbi.gov/pressrm/pressrel/pressre199/

wacorel.htm); ‘‘FBI Releases Second Waco Videotape,’’ press release, U.S. Department of Justice,

Federal Bureau of Investigation (Sept. 3, 1999) (on line at http://www.fbi.gov/pressrm/pressrel/

pressrel199/wacorel2.htm). 27Danforth report at 141. 28 E.g. ‘‘Burton Opens Investigation of Waco Tactics,’’ CNN.com (Aug. 30, 1999) (on line at:

http://www.cnn.com/allpolitics/stories/1999/08/30/tbi.waco); ‘‘FBI Suggests Outside Probe of Waco

Siege,’’ Washington Times (Sept. 1, 1999); ‘‘Marshals Acting on Reno’s Orders Seize FBI Tape,’’

New York Times (Sept. 2, 1999). 29 ‘‘FBI Admits Using Tear Gas at Waco,’’ Associated Press (Aug. 25, 1999). 30Danforth report at 2–3. 31 ‘‘Aggressive Waco Probe Is Promised: Danforth Takes Over, Reno Recuses Herself,’’ Washington Post, (Sept. 10, 1999). 32 ‘‘Reno Picks Waco Head,’’ Baltimore Sun (Sept. 9, 1999). 33 ‘‘Armey Questions Need for New Hearings On Davidian Siege,’’ Dallas Morning News (Oct.

8, 1999).

curring in August and September 1999 generated public interest in

whether the government caused or contributed to the deaths of

Branch Davidians at Waco and whether government officials had

engaged in a cover-up. First, the FBI acknowledged on August 25,

2000, that it used a limited number of pyrotechnic tear gas projectiles on April 19, 1993.25 Second, on September 2 and 3, 1999, the

FBI released videotapes taken the morning of April 19, 1993, by an

FBI surveillance aircraft using Forward Looking Infrared Radar

(FLIR).26 Prior to that time, the FBI and Justice Department had

maintained that they only had FLIR tapes beginning later in the

morning.27 Third, news stories around the country reported that

the Justice Department had evidence of the use of pyrotechnic tear

gas rounds but failed to produce it to Congress in 1995.28

These developments caused a number of Republican leaders in

the House and Senate to call for investigations, including Representative Henry Hyde, Representative Dan Burton, Senator

Orrin Hatch, and Senator Arlen Specter.29

Attorney General Reno quickly responded to concerns raised by

Members of Congress and by the media. On September 9, 1999, she

appointed John Danforth, a highly respected former Republican

U.S. Senator, as Special Counsel. As part of his mandate, Senator

Danforth agreed to investigate five principal issues: (1) whether the

government caused or contributed to the fire on April 19, 1993; (2)

whether the government directed gunfire at the Branch Davidians

on April 19, 1993; (3) whether the government used any incendiary

or pyrotechnic device on April 19, 1993; (4) whether the government illegally employed the armed forces at Waco; and (5) whether

government officials made false statements or concealed information about the events on April 19, 1993.30 After receiving his appointment, Senator Danforth said that he planned to conduct an

aggressive inquiry into whether there were ‘‘bad acts, not whether

there was bad judgment.’’ 31

Attorney General Reno’s appointment of Senator Danforth received wide praise. Republican Senator Fred Thompson said that

Senator Danforth ‘‘has an excellent reputation and the highest integrity.’’ 32 House Majority Leader Dick Armey questioned the need

for any congressional hearings and expressed confidence in Senator

Danforth, calling him ‘‘a man of impeccable integrity.’’ 33 Mr. BurVerDate 11-MAY-2000 10:08 Jan 03, 2001 Jkt 000000 PO 00000 Frm 01486 Fmt 6604 Sfmt 6604 C:\REPORTS\67357.TXT HGOVREF1 PsN: HGOVREF1
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34 ‘‘Hannity & Colmes,’’ Fox News (Oct. 19, 1999). 35Danforth report at 4. 36 Although Senator Danforth released his principal findings in his interim report, his investigation of certain issues is ongoing to date. 37 ‘‘Waco: Case Closed,’’ Washington Post (July 23, 2000). 38See subpoena duces tecum to Director Louis Freeh, Federal Bureau of Investigation (Sept.

1, 1999); subpoena duces tecum to Attorney General Janet Reno, U.S. Department of Justice

(Sept. 1, 1999); subpoena duces tecum to the Executive Office of the President (Sept. 1, 1999);

subpoena duces tecum to William S. Cohen, Secretary of Defense (Sept. 1, 1999); subpoena duces

tecum to Federal Bureau of Investigation (Sept. 15, 1999); subpoena duces tecum to U.S. Department of Justice (Feb. 16, 2000).

ton said, ‘‘He’s a fine man, and I think Senator Danforth is going

to do a commendable job.’’ 34

Senator Danforth proceeded to conduct a thorough and professional investigation of Waco. He hired over 70 staff to assist him

in the investigation. As of July 2000, the Office of Special Counsel

had interviewed 849 witnesses, reviewed over 2 million pages of

documents, and examined thousands of pounds of physical evidence.35

Senator Danforth released an interim report on his investigation

on July 21, 2000.36 The report found, among other things, that government agents did not start or spread the fire that consumed the

Branch Davidian compound, did not direct gunfire at the Branch

Davidians, and did not unlawfully employ U.S. armed forces at

Waco. The report was widely regarded as thorough and accurate.

An editorial in the Washington Post called it ‘‘a welcome clarification of the record on this seemingly endless saga’’ and concluded

that it was ‘‘time, finally, for Waco to recede into history.’’ 37

B. CHAIRMAN BURTON’S INVESTIGATION DUPLICATED THE DANFORTH

INVESTIGATION

Despite the appointment of Senator Danforth as Special Counsel,

Representative Burton persisted in conducting his own investigation. This investigation was substantial. It involved considerable

staff resources, required Federal agencies to produce hundreds of

thousands of pages of documents, resulted in extensive staff travel,

and included many witness interviews. And in almost every respect, it duplicated the work of Senator Danforth and his staff.

As part of the investigation, Mr. Burton issued subpoenas to the

Department of Justice, the FBI, the White House, and the Defense

Department. Among the categories of documents required by committee subpoenas, Mr. Burton demanded all documents related to

munitions issued to the Hostage Rescue Team; the various forms

of tear gas used at Waco; all briefings given by the FBI during the

siege; audio surveillance devices at Waco; contacts between the Department of Justice and the White House; contacts between the

FBI and the Department of Defense; infrared imagery and analysis; the use of aircraft, helicopters, or armored vehicles; all photographs of the Branch Davidian compound; military involvement at

Waco; military personnel at Waco; and ‘‘military personnel who

provided advice or assistance of any sort’’ to the Justice Department, the FBI, or the White House.38

To comply with these subpoenas, Federal agencies have produced

over 795,000 pages of documents. According to Attorney General

Janet Reno:

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39 Interview of Attorney General Reno at 29 (Oct. 5, 2000). By October 19, the number of documents the Justice Department had produced increased to 730,000. Letter from Robert Raben,

Assistant Attorney General for Legislative Affairs, to Chairman Dan Burton (Oct. 19, 2000). 40Letter from Robert Raben, Assistant Attorney General for Legislative Affairs, to Chairman

Dan Burton (Oct. 19, 2000). 41Letter from Representative Henry Waxman to Senator John Danforth (Sept. 22, 2000). 42These individuals were David Binney, Gregory Johnson, James Lockner, David Margolis,

Peter Proach, and Rod Rosenstein. 43The six witnesses provided information about the adequacy of the Justice Department’s internal investigation and the provision of military assistance at Waco. Both subjects were extensively discussed by Senator Danforth. See Danforth report at 51–52, 29–41.

Just on Waco alone we provided 724,169 pages of documents, 12 looseleaf binders of FBI lab reports, 18 diskettes

of documents, 101 videotapes, 729 audio tapes, 2,161 photographs, slides, charts, drawings, 8 CD ROMs of color

photographs.39

This extensive document production was costly and redundant.

According to representatives of the Justice Department, the FBI,

and the Defense Department familiar with both investigations, the

committee received few, if any, documents that were not also provided to Senator Danforth and his staff. In an October 19, 2000,

letter to Representative Burton, Assistant Attorney General Robert

Raben noted that the Justice Department had made over 80 separate productions of materials to the committee. He estimated that

the cost of producing Waco-related materials to this committee and

other congressional committees exceeded $800,000.40

The committee’s witness interviews were also duplicative of Senator Danforth’s efforts. Despite the ongoing efforts of Senator Danforth, this committee conducted more than 80 interviews of government employees and private citizens with knowledge on various aspects of the Waco standoff. The majority conducted 77 interviews

jointly with the minority staff. Five witnesses appeared for interview twice before the minority and majority staff. Two other known

witnesses were interviewed outside the presence of minority staff.

Most of these interviews lasted 2 or more hours and required the

subject of the interview to leave work and appear at the committee’s offices. On several occasions, committee staff traveled to conduct interviews outside the District of Columbia, including trips to

Florida, New York, North Carolina, Pennsylvania, Puerto Rico, and

Texas.

In a September 22, 2000, letter, Representative Waxman provided a list of joint interviews to Senator Danforth and asked how

many witnesses interviewed by the committee had been interviewed by the Office of Special Counsel.41 Senator Danforth responded on September 26, 2000, and identified only six individuals

who were not interviewed by the Office of Special Counsel.42 These

six individuals provided no significant information that is not addressed in Senator Danforth’s report.43

III. THE INVESTIGATION CONTRIBUTED VIRTUALLY NOTHING TO THE

PUBLIC’S UNDERSTANDING OF THE WACO TRAGEDY

Although the majority report spans 100 pages and includes approximately 1,390 pages of exhibits, it contributes virtually nothing

to the public’s understanding of Waco. To the extent that the maVerDate 11-MAY-2000 10:08 Jan 03, 2001 Jkt 000000 PO 00000 Frm 01488 Fmt 6604 Sfmt 6604 C:\REPORTS\67357.TXT HGOVREF1 PsN: HGOVREF1
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44 Id. at 4. 45 Id. at 4–5. 46 Id. at 47, 52–53, 56. 47 Id. at 52. 48 Id. at 29.

jority’s conclusions differ from those of the Office of Special Counsel, they consist largely of unsupported allegations of wrongdoing.

A. THE MAJORITY REPORT REPEATS MANY OF THE CONCLUSIONS OF

SENATOR DANFORTH

Many of the majority report’s findings mimic those of Senator

Danforth’s report. The Office of Special Counsel concluded that government agents did not direct gunfire at the Branch Davidian compound; 44 that a Hostage Rescue Team (HRT) member fired three

pyrotechnic tear gas rounds on April 19, 1993, but those rounds

had nothing to do with the fire that consumed the compound; 45

that certain government attorneys and the former commander of

the HRT had reason to know about the use of pyrotechnic tear gas

rounds on April 19, 1993, but failed to correct an inaccurate public

record; 46 that the Justice Department’s internal review failed adequately to investigate evidence that pyrotechnic rounds had been

fired on April 19, 1993; 47 and that the government did not improperly or unlawfully employ the U.S. military as part of its law enforcement operation at Waco.48

All these findings are echoed in the majority report. This committee’s recitation of similar facts and conclusions does not make a

meaningful contribution to the public record.

B. THE MAJORITY REPORT MAKES UNSUBSTANTIATED ALLEGATIONS OF

WRONGDOING

The majority report departs from Senator Danforth’s report primarily in its conclusions that Attorney General Reno and certain

current and former Justice Department employees engaged in

wrongdoing. But, as is discussed below, these conclusions are nothing more than unsupported allegations.

1. Allegations Involving Attorney General Reno

In its report, the majority makes several unsubstantiated allegations regarding the Attorney General. The majority concludes that

Attorney General Reno was uninterested in learning or disclosing

the true facts about Waco, that she ‘‘reversed’’ her decision disapproving of the FBI’s tear gas plan without any basis, and that

she misrepresented that the military approved or endorsed the

FBI’s tear gas plan. These allegations are unsupported by the facts

and have no merit.

a. Allegation That the Attorney General Was Not Interested

in Disclosing the Truth about Waco

The majority unfairly concludes that the Attorney General and

the Justice Department had no interest in learning or disclosing

the facts surrounding Waco. The majority writes that ‘‘[a]ll of the

actions taken by the Justice Department were consistent with an

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49Majority report at 6. 50 Id. at 27. 51 Interview of Richard Scruggs (Jan. 5, 2000). 52 Id. 53See Edward S.G. Dennis, Jr., ‘‘Evaluation of the Handling of the Branch Davidian StandOff in Waco, Texas By the United States Department of Justice and the Federal Bureau of Investigation’’ (Sept. 24, 1993); interview of Edward S.G. Dennis, Jr. (Jan. 14, 2000). 54 Interview of Edward S.G. Dennis, Jr. (Jan. 14, 2000). 55 Interview of Richard Scruggs (Jan. 5, 2000).

organization that was not eager to learn the full truth about what

happened on April 19, 1993.’’ 49 The majority also states:

It is troubling that the Waco tragedy did not seem to merit

a ‘‘vigorous and thorough investigation.’’ President Clinton

called for such an inquiry. Attorney General Reno promised such an inquiry would take place. Neither took the

steps necessary to make sure it would happen again.50

In fact, the Attorney General tried hard to investigate the events

at Waco. After the Waco fire on April 19, 1993, Attorney General

Reno directed her assistant Richard Scruggs, a career Federal prosecutor, to begin an investigation to find out what happened in

order to avoid a similar tragedy in the future. According to Mr.

Scruggs, the Attorney General did not limit the scope of the inquiry

in any way.51 Moreover, Mr. Scruggs received significant Justice

Department resources in conducting this investigation. Mr. Scruggs

was assisted by senior Justice Department attorneys and the Assistant Director of the FBI’s Inspection Division. According to Mr.

Scruggs, the Inspection Division made use of an army of FBI

agents from several offices around the country.52

In addition, Attorney General Reno asked a distinguished outside

attorney, Edward Dennis, Jr., to conduct an independent evaluation of the Justice Department’s and FBI’s conduct at Waco.53 Mr.

Dennis had served in several senior Justice Department positions,

including Acting Deputy Attorney General and Assistant Attorney

General for the Criminal Division during the Bush administration,

and, during the Reagan administration, U.S. Attorney for the Eastern District of Pennsylvania.54

It is true that there were deficiencies in these investigations. For

example, the investigations should have discovered and disclosed

the FBI’s use of pyrotechnic tear gas rounds and indicated that the

pyrotechnic tear gas rounds did not contribute to the fire in the

Branch Davidian compound. But these deficiencies cannot be fairly

attributed to the Attorney General. The Attorney General was not

involved in the details of either investigation. In fact, Mr. Scruggs,

who was primarily responsible for developing the factual record,

made a conscious decision not to report to the Attorney General because she was a fact witness.55

Senator Danforth specifically addressed whether the Attorney

General made knowing misstatements about the use of pyrotechnic

tear gas rounds and whether she took adequate steps to determine

the true facts. He concluded that Attorney General Reno was without fault and that she made diligent efforts to learn the truth. In

his report, he writes:

The Office of Special Counsel has concluded that Attorney

General Reno did not knowingly cover up the use of pyroVerDate 11-MAY-2000 10:08 Jan 03, 2001 Jkt 000000 PO 00000 Frm 01490 Fmt 6604 Sfmt 6604 C:\REPORTS\67357.TXT HGOVREF1 PsN: HGOVREF1
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56Danforth report at 51. 57See, e.g, ‘‘Waco’s New Question: Who Knew? Two Days After Blaze, Information on Grenades Was Withheld or Overlooked,’’ Washington Post (Sept. 3, 1999). 58See Danforth report at 2–3. 59The tear gas approved by the Attorney General and used inside the Branch Davidian residence was not delivered by means of a pyrotechnic projectile. Rather, the tear gas used in the

residence was sprayed from the nozzle of Model V Projecto-Jet canisters installed on combat engineering vehicles or fired from M–79 grenade launchers in ‘‘ferret rounds.’’ Ferret rounds disperse the CS gas on impact, without using a pyrotechnic mixture. See interview of Monty Jett

(Feb. 1, 2000). 60Majority report at 47. 61 E.g. ‘‘Press Conference on Branch Davidian April 19, 1993 Crisis’’ (Apr. 19, 1993) (Bates

Stamp No. CNG 3691272–300); House Committee on the Judiciary, ‘‘Events Surrounding the

Branch Davidian Cult Standoff in Waco, Texas,’’ 103d Cong., 21–39, 48–51, 80–82 (Apr. 28,

1993); interview of Attorney General Janet Reno, Federal Bureau of Investigation FD–302 (Aug.

2, 1993); deposition of Attorney General Janet Reno, Andrade v. Chojnacki, No. H–94–0923, 89–

96 (W.D. Tex). 62See House Committee on Government Reform and Oversight and House Committee on the

Judiciary, hearings on ‘‘Activities of Federal Law Enforcement Agencies Toward the Branch

Davidians,’’ 104th Cong., vol. 3, 371–72 (Aug. 1, 1995) (hereinafter ‘‘joint hearings’’); interview

of Attorney General Janet Reno at 78–83.

technic tear gas rounds by the FBI. The evidence is overwhelming that, prior to the execution of the gassing plan,

she sought and received assurances from the FBI that it

would not use pyrotechnic tear gas rounds. The evidence

is equally conclusive that the briefing materials and other

information she received after the fact stated that the FBI

had not used pyrotechnic tear gas rounds at Waco. Any

misstatement that she made was inadvertent and occurred

after diligent efforts on her part to learn the truth. The Office of Special Counsel has completed its investigation of

Attorney General Reno, [and] found her to be without direct fault for any false statements that she may have

made.56

Attorney General Reno first learned about the use of pyrotechnic

tear gas rounds in August 1999. She reacted with surprise and

anger to the revelation and acted quickly to determine the facts.57

By September 9, she had completed a search for an impartial outside investigator and appointed John Danforth, a respected Republican former Senator, as Special Counsel. As is detailed in the Danforth report, the Attorney General gave Senator Danforth extensive

resources and prosecutorial power to determine the truth.58

b. Allegation that the Attorney General Failed to Disclose Her

Reasons for Approving the FBI’s Tear Gas Plan

As part of the efforts to end the siege at Waco, the Attorney General approved an FBI plan to insert tear gas into the Branch

Davidian compound after initially withholding her approval of the

use of tear gas.59 In another unsubstantiated allegation, the majority asserts that the Attorney General has failed to disclose her reasons for ‘‘reversing’’ herself and allowing the use of the tear gas.

The majority states that her purported failure to explain her actions is inconsistent with President Clinton’s directive to make all

of the facts public.60

In fact, however, Attorney General Reno has explained on numerous occasions why she decided to approve the FBI’s plan to use

tear gas.61 Indeed, the Attorney General has explained her decision

at least twice to members of this committee.62 As recently as OctoVerDate 11-MAY-2000 10:08 Jan 03, 2001 Jkt 000000 PO 00000 Frm 01491 Fmt 6604 Sfmt 6604 C:\REPORTS\67357.TXT HGOVREF1 PsN: HGOVREF1
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63 Interview of Attorney General Reno at 81–82 (Oct. 5, 2000). 64 Joint hearings at 372. 65Danforth report at 108.

ber 5, 2000, Attorney General Reno repeated to committee members why she decided to approve the FBI’s plan. She said:

We were faced with a dangerous situation that was becoming more dangerous . . . Branch Davidians who had killed

four Federal agents had refused to yield to lawful authority for 51 days. The Branch Davidians held children in

conditions that were clearly unhealthful and deteriorating.

I had reviewed the gas plan carefully and received the advice of the experts that the gas, although uncomfortable,

would cause no lasting harmful effects for children or

adults. Koresh’s repeated failures to abide by his promises

led the negotiators, and ultimately me, to conclude that he

would not come out. This conclusion was buttressed by the

fact that none of the occupants had come out since March

21st and the fact that the Davidians had food and water

sufficient to last at least a year. I think this was one of

the deciding factors. The HRT was in immediate need of

retraining. This need for retraining was so severe that it

did not appear that they could continue to control the perimeter for significant time. They then, that day that I

gave the authority to go forward, said that . . . the threat

of cataclysmic end was there. He had talked about Armageddon, and the conclusion of the FBI was that he could

do it at any time, with or without us, . . . and that they

were in the best position to control it at this point that

they would be [in] for some foreseeable future.63

Despite the mystery that the majority attempts to ascribe to the

Attorney General’s decisionmaking process, it appears that she decided to approve the plan after senior FBI officials persuaded her

that the chances for a successful resolution would only diminish

with the passage of time.64 The facts recited by Senator Danforth

support this conclusion. He writes:

After further considering the issue, Attorney General Reno

changed her mind. She indicated that she was inclined to

approve the plan, but wanted to see an even more detailed

discussion of the plan and substantial supporting documentation setting out the conditions inside the complex,

the status of negotiations, and the reasoning behind the

plan. According to Attorney General Reno, she ultimately

changed her mind because she was convinced that the

Davidians would not come out voluntarily. She felt that

the FBI would eventually have to go forward with some

plan, and that it was better to proceed when the FBI was

ready and best able to control the situation.65

c. Allegation That the Attorney General and President Clinton Deceived the American Public by Representing That

the Military Endorsed the FBI’s Tear Gas Plan

In another unsupported allegation, the majority writes that ‘‘President Clinton and Attorney General Reno have deceived the

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66Majority report at 6–7. 67 Id. at 81. 68Danforth report at 105. 69 ‘‘60 Minutes’’ (May 12, 1995); House Committee on the Judiciary, ‘‘Events Surrounding the

Branch Davidian Cult Standoff in Waco, Texas,’’ 103d Cong., 15–16 (Apr. 28, 1993). 70 Interview of Attorney General Janet Reno at 79, 80 (Oct. 5, 2000). 71Majority report at 76 (quoting remarks by President Clinton on Apr. 20, 1993).

American people for over seven years by misrepresenting that the

military endorsed, sanctioned or otherwise approvingly evaluated

the [FBI’s tear gas] plan.’’ 66 According to the majority, the Attorney General’s and President Clinton’s statements about the military’s opinions stand in ‘‘stark contrast’’ to the recollections of two

senior Army officers.67

The ‘‘stark’’ differences cited by the majority are largely semantic, however. They reflect a range of subjective impressions of the

same meeting. The statements made by the Attorney General are

consistent with those of at least three other civilian participants at

the meeting and do not differ in any significant factual detail from

the recollections of the military officers involved.

After the FBI had proposed the use of tear gas to end the standoff, FBI Director Sessions convened a meeting on April 14, 1993,

to address Attorney General Reno’s concerns. Among others

present were two senior Army officers, who were asked a number

of questions about the proposed plan.68 In statements made after

Waco, the Attorney General recalled that the Army officers present

at the meeting had viewed the FBI’s plan as ‘‘excellent’’ or

‘‘sound.’’ 69 In her October 5, 2000, interview, the Attorney General

reiterated:

The military representatives stated the plan to introduce

tear gas into the compound was reasonable and practical.

. . . My sense was that they thought it was a reasonable

and practical plan, but they couldn’t be the judge and nobody was asking them to be the judge of a law enforcement

initiative where rules of engagement would apply that

would be different than the military.70

President Clinton also made similar comments, stating:

And so I asked if the military had been consulted. The Attorney General said that they had, and that they were in

basic agreement that there was only one minor tactical difference of opinion between the FBI and the military—

something both sides thought was not of overwhelming significance.71

These statements are entirely consistent with the recollections of

others who attended the same meeting on April 14, 1993. For example, Mary Incontro, a career Justice Department prosecutor, told

the FBI in 1993:

[The Army unit commander] outlined his views of the plan

and an overall assessment of the plan appeared to be that

it had been carefully and wisely reviewed. The military

personnel advised that although the plan utilizing a specialized gas was not similar to any type of military attack,

it appeared to be carefully constructed and the highest deVerDate 11-MAY-2000 10:08 Jan 03, 2001 Jkt 000000 PO 00000 Frm 01493 Fmt 6604 Sfmt 6604 C:\REPORTS\67357.TXT HGOVREF1 PsN: HGOVREF1
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72 Interview of Mary Incontro, Deputy Chief, Terrorism and Violent Crimes Section, Criminal

Division, U.S. Department of Justice, Federal Bureau of Investigation FD–302 (July 22, 1993). 73 Interview of Mary Incontro, Assistant U.S. Attorney (Apr. 14, 2000). 74 Interview of Jack Keeney, Principal Deputy Assistant Attorney General, Criminal Division,

U.S. Department of Justice (Apr. 26, 2000). 75 Interview of Webster Hubbell, Associate Attorney General, Federal Bureau of Investigation

FD–302 (Aug. 3, 1993). 76 Interview of General Peter Schoomaker, Commander in Chief, U.S. Special Operations Command (Jan. 13, 2000); interview of Special Operations General Officer No. 1 (Jan. 13, 2000). 77Memorandum from Army Colonel to Commander, U.S. Army Special Operations Command

(May 13, 1993).

gree of confidence was given to the Hostage Rescue

Team.72

Ms. Incontro confirmed this recollection to committee staff on

April 14, 2000. She said that the senior Army officers at the meeting viewed the plan as militarily sound and well conceived. She

said that while the military representatives may have said that the

military would do it differently, she heard no dissent from the military representatives.73

A second individual present at the April 14, 1993, meeting gave

an account that is also similar to the account given by Attorney

General Reno. Jack Keeney, who was acting Assistant Attorney

General for the Criminal Division in 1993, told committee staff

that the military officers present at the meeting said they would

do the plan differently if it were a military operation, but the two

military officers seemed generally to endorse the FBI plan.74

A third Justice Department official had a similar impression that

the military officers present at the April 14 meeting had given a

positive review of the proposed plan. According to the FBI’s record

of the interview of Webster Hubbell, then Associate Attorney General, Mr. Hubbell said:

The military representatives stated that the FBI plan to

introduce tear gas into the compound was reasonable and

practical. The only aspect of the plan that the military

would do differently concerned the timing of the gas insertion. . . . Hubbell recalls the military representatives indicated they believed the FBI plan as presented would work

and that after the gas was inserted people in the [Branch

Davidian Compound] would come out.75

The majority’s allegation that the Attorney General and the

President misrepresented the military’s role is based on the majority’s interpretation of the comments of the two senior Army officers

who attended the April 14 meeting. It is true that both recall that

they never expressed support for or endorsed the proposed tear gas

plan.76 But the underlying facts described by these Army officers

closely resemble the accounts given by Attorney General Reno, Ms.

Incontro, Mr. Keeney, and Mr. Hubbell.

In a 1993 memorandum written to his commander, one of the

military participants described the meeting. He wrote that he and

the other senior Army officer told the group that the proposed FBI

operation was not and could not be assessed as a military operation.77 In the same memorandum, he further stated:

The plan which was executed at Waco was an FBI plan

which neither [Army officers] helped prepare. At the same

time, I did believe that they had a reasonable chance of acVerDate 11-MAY-2000 10:08 Jan 03, 2001 Jkt 000000 PO 00000 Frm 01494 Fmt 6604 Sfmt 6604 C:\REPORTS\67357.TXT HGOVREF1 PsN: HGOVREF1
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78 Id. 79 Id. at 57. 80 Richard Scruggs, ‘‘Report to the Deputy Attorney General on the Events at Waco, Texas,’’ Feb. 28–Apr. 19, 1993, 14 (Oct. 8, 1993) (unredacted version) (hereinafter ‘‘Scruggs report’’). 81Majority report at 60. 82The majority attempts to explain its failure to recognize the significance of these documents

by suggesting the Justice Department intentionally delayed giving the committee the key documents 3 days before the start of hearings in 1995. The majority has pointed to no evidence, howContinued

complishing their objective of forcing the occupants out of

the building. Their approach was substantially different

than anything that I have encountered. . . . I did not believe that the FBI and the Attorney General were trying

to force us to support or defend the plan. It was my belief

that they simply wanted any observations that we felt

comfortable providing.78

In short, the majority grossly exaggerates the significance of

what is largely a difference in semantics and subjective impressions. Attorney General Reno’s impressions of the April 14 meeting

were shared by at least three others who attended the same meeting. The majority’s assertion that she or President Clinton deceived

the American public is without any merit.

2. Allegations Regarding the Internal Justice Department Review

The majority criticizes as negligent the internal Justice Department investigation led by Richard Scruggs.79 Mr. Scruggs was the

leader of a team of Justice Department attorneys and FBI inspectors who conducted approximately 950 interviews in the aftermath

of Waco and drafted a 368-page report to the Deputy Attorney General.80 The primary basis for the majority’s criticism is that the

Justice Department investigation did not discuss the use of pyrotechnic tear gas rounds at Waco.

In hindsight, it is clear that the Justice Department investigation should have disclosed the use of the pyrotechnic tear gas

rounds, as well as the fact that the use of these rounds did not contribute to the fatal fire at the Branch Davidian compound. But

there is an irony in the majority’s criticism. The majority writes:

Had Scruggs and his colleagues thoroughly reviewed all

the documents available to them, they would have found

references to ‘‘military’’ rounds. Scruggs and his colleagues

failed to do so. The failure of the Scruggs team to come to

an understanding that pyrotechnic rounds were used was,

as discovered in 1999, a significant shortcoming.81

As was discussed in part II above, the majority had access to

these very same documents for 5 years. Thus, the ‘‘significant

shortcoming’’ attributed to the Justice Department’s investigation

also applies to the majority’s own investigation. The fact is, like almost everyone else involved in Waco-related investigations, lawsuits, and criminal proceedings, the majority failed to notice the

significance of the documents referring to the use of ‘‘military’’

rounds. Indeed, as noted above, the majority did not even know

that their own files contained the documents referring to these

rounds until Representative Waxman pointed this out in a September 13, 1999, letter.82

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ever, that supports its assertion that the Justice Department deliberately delayed production of

documents to this committee. For example, as is discussed in part II above, the Justice Department provided the committee an FBI lab report mentioning the use of military tear gas rounds

13 days before the start of joint committee hearings in 1995, 26 days before the conclusions of

those hearings, and 392 days before the committees issued their joint report. 83Majority report at 6. 84 Id. at 5. 85 Interview of Philip Heymann, professor of law, Harvard University Law School (July 19,

2000). 86Majority report at 56–57. 87See Danforth report at 142. 88Declaration of Richard L. Sherrow at 6, Andrade v. Chojnacki, No. H–94–0923 (S.D. Tex.)

(Jan. 17, 1996) (majority exhibit 47).

The majority also makes the assertion that ‘‘[p]ressure from senior Justice Department officials, including then-Deputy Attorney

General Phil Heymann, caused the Scruggs team to rush to conclude their investigation and to publish their report, thus failing to

uncover and disclose facts.’’ 83 According to the majority, ‘‘the

Scruggs investigation . . . was improperly rushed to its conclusion

solely for political purposes.’’ 84

The record of this investigation, however, contains no support for

these assertions of political pressure. Committee staff interviewed

Mr. Heymann on July 19, 2000. Mr. Heymann said that he wanted

the review completed within 6 months to prevent the review from

becoming a never-ending investigation, a familiar phenomenon in

law enforcement. He said that no one complained to him that the

investigation was incomplete or inadequate.85 Not a single witness

interviewed by the committee suggested that the Justice Department’s investigation was cut short for political purposes. Senator

Danforth, who was critical of aspects of the Department’s investigation in his interim report, did not find any evidence of pressure to

complete the investigation.

3. Unsubstantiated Allegations Against Marie Hagen

The majority accuses Marie Hagen, a Justice Department trial

attorney, of reckless conduct and concludes that if she had ‘‘followed up’’ on a certain request for information to an FBI attorney, ‘‘the time consuming investigations started in 1999 would not have

been necessary.’’ 86 But these conclusions are unsupported by any

documentary evidence, including the documents cited by the majority, and they directly conflict with the findings of Senator Danforth.

The evidence gathered by this committee and Senator Danforth

shows that Ms. Hagen took diligent steps to determine the truth

and is in no way responsible for this committee’s Waco investigation.

Ms. Hagen was a trial attorney working on Andrade v. United

States, a consolidated lawsuit brought by seven groups of Branch

Davidians and relatives of deceased Branch Davidians. The plaintiffs in that case alleged that government agents used excessive

force, failed to provide adequate emergency services, and intentionally or negligently committed other acts that harmed the

Branch Davidians in 1993.87 In 1996, the plaintiffs in that lawsuit

filed the declaration of their fire expert, Richard Sherrow (Sherrow

declaration). The Sherrow declaration alluded to documents the

plaintiffs had obtained from the FBI prior to January 1996, which

indicated that the FBI had fired at least one military pyrotechnic

munition into the Branch Davidian complex.88

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89Danforth report at 56. 90 Id. at 57. 91Senator Danforth recites a list of statements by various Justice Department and FBI officials indicating that no pyrotechnic munitions were used at Waco. These include statements by

FBI Special Agent in Charge Robert Ricks, Attorney General Janet Reno, FBI Director William

Sessions, and the Scruggs report. Danforth report at 46–47. Ms. Hagen had no reason to know

at the time that these reports had overlooked evidence indicating the use of military rounds on

Apr. 19, 1993. 92Memorandum from Robert Hickey, Supervisory Special Agent, Federal Bureau of Investigation, to Jacqueline F. Brown, Office of General Counsel (Feb. 15, 1996). 93Danforth report at 57. 94 Id. at 57–58. 95 Id. at 57.

According to the Office of Special Counsel, Ms. Hagen took several affirmative steps to determine the basis for Mr. Sherrow’s

mention of military pyrotechnic munitions. In January 1996, Ms.

Hagen asked an FBI attorney, Jacqueline Brown, for help in responding to the Sherrow declaration.89 She also forwarded a relevant pleading to Ms. Brown for review before filing it with the

court.90 She took these steps even though numerous Justice Department and FBI officials had, by that time, concluded that the

FBI had used no pyrotechnic munitions at Waco.91

According to the Office of Special Counsel, Ms. Brown faxed the

Sherrow declaration to an FBI chemical agent specialist. Someone

(possibly Ms. Brown) also faxed the document to Supervisory Special Agent Robert Hickey, a member of the Hostage Rescue Team.

On February 15, 1996, Mr. Hickey drafted an internal FBI memorandum (Hickey memorandum) that responded in detail to the

Sherrow declaration. Mr. Hickey clearly acknowledged the harmless use of military rounds on April 19, 1993, and wrote, in pertinent part:

Shortly after the operation commenced on 4/19/93, the

HRT (Charlie Team) determined, after two (2) or three (3)

ferret rounds, that they were unable to penetrate the underground shelter roof which was their first target. Charlie

Team then requested to use 40mm military CS rounds in

an effort to penetrate the roof. Charlie Team was granted

authority to fire the military CS rounds. A total of two (2)

or three (3) rounds were fired at the underground shelter

roof. These rounds hit the roof, bounced off and landed in

the open field well behind the main structure. This occurred shortly after 6:00 am. These were the only military

rounds utilized.92

According to the Office of Special Counsel, Mr. Hickey faxed his

memorandum to Ms. Brown on February 16, 1996, and discussed

it with her the same day. Ms. Brown made notations on the section

of the memorandum relating to the use of military rounds.93

The majority’s charges against Ms. Hagen hinge on whether Ms.

Brown informed Ms. Hagen about the Hickey memorandum. The

majority asserts that Ms. Hagen was informed by Ms. Brown about

the use of the military rounds. The Office of Special Counsel, however, specifically concluded that she was not informed.94

The evidence supporting the majority’s view is scant. Ms. Brown

maintains that she provided information on the FBI’s use of military rounds to her supervisor and Ms. Hagen.95 But apart from Ms.

Brown’s assertion that she provided the Hickey memorandum to

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96Majority report at 55. 97 Calendar of Jacqueline Brown, Assistant General Counsel, Federal Bureau of Investigation

(Feb. 19, 1996). 98Danforth report at 59. In addition to this journal entry, the majority distorts the meaning

of two other documents in an effort to show that Ms. Brown provided information on the Hickey

memorandum to Ms. Hagen. Referring to Virginia Buckles, Ms. Brown’s supervisor, the majority

writes in its report: ‘‘Buckles’ own memoranda to then-FBI General Counsel Howard Shapiro

detailing the status of then-ongoing FBI civil litigation referenced Buckles’ and Brown’s involvement in assisting Hagen and the Justice Department to clarify the Sherrow Declaration.’’ Although these memoranda mention the Sherrow declaration, they address elements of the declaration that have nothing to do with its reference to military tear gas rounds. One memorandum relates to a claim that a combat engineering vehicle caused the fire after it tipped over

a lantern and a claim that the FBI violated its own internal regulations. The second memorandum relates to Mr. Sherrow’s analysis of ‘‘hot spots’’ on the FLIR video. While these documents

tend to show that Ms. Brown assisted in the preparation of the Justice Department’s reply brief,

they give no insight into whether Ms. Brown provided information on the Hickey memorandum

to Ms. Hagen.

Ms. Hagen, the committee has no documentary or other evidence

that Ms. Brown provided the Hickey memorandum to Ms. Hagen.

The majority asserts in its report:

Documents made available to Committee staff indicate

that Brown did in fact share the Hickey memorandum

with her supervisor, Virginia Buckles, and Hagen. For example, Brown, who maintained a daily checklist of action

items, recorded on February 19, 1996, the fact that she

spoke with Hagen and other Justice Department officials

regarding the Hickey memorandum and showed them the

document: ‘‘meet w/DOJ re dec[laration] memo to M[arie]

H[agen].’’ 96

This is simply incorrect. Ms. Brown’s daily to-do list does not read, ‘‘meet w/DOJ re dec[laration] memo to M[arie] H[agen],’’ as the majority contends. It actually contains three relevant entries, which,

if anything, suggest that Ms. Brown did not provide the Hickey

memorandum to Ms. Hagen. One entry reads, ‘‘Waco-gas memo.’’ Another reads ‘‘Meet w/ DOJ re dec (ask to review final copy of

reply).’’ And another reads ‘‘Sherrow Dec memo to MH.’’ Of those

three entries, the only one checked off and presumably completed

is the second: ‘‘Meet w/ DOJ re dec (ask to review final copy of

reply).’’ 97 The Sherrow declaration was 22 pages long and raised

a number of possible fact issues relating to the cause of the fire.

Senator Danforth and his staff read precisely the opposite meaning from this document as does the majority. And they arrive at

the opposite conclusion about Ms. Hagen. The Danforth report

states:

[T]he documentary evidence also indicates that Brown did

not give the information to Hagen. As stated above, neither Brown nor the Office of Special Counsel was able to

locate a fax cover sheet indicating that she had faxed the

Hickey memo to Hagen. Hagen’s files contain no copy of

the Hickey memo. In addition, Brown’s ‘‘To Do’’ list in her

calendar for February 19, 1996, contains the notation,

‘‘Sherrow Declaration Memo to M[arie] H[agen].’’ Unlike

some diary entries, this ‘‘To Do’’ item is not checked off.

Moreover, Brown placed a number on the Hickey memorandum which would result in its being placed in an FBI

litigation file that would not be disclosed to the Department of Justice.98

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99Majority report at 61 n. 225, 61; 18 U.S.C. § 1385. 100 18 U.S.C. § 1385; see generally U.S. Army Judge Advocate General School, ‘‘Operational

Law Handbook,’’ 22–1 (1996) (hereinafter ‘‘operational law handbook’’). 101Operational law handbook at 22–1. 102See generally 1 Op. Off. Legal Counsel 36, 1991 WL 49985 (Feb. 19, 1991) (concluding that

Congress intended only to prevent searches likely to result in a direct confrontation between

military personnel and civilians). 103 10 U.S.C. §§ 373, 375. 104 15 Op. Off. Legal Counsel at 42.

4. Allegations Regarding the Posse Comitatus Act

The majority alleges that White House officials and senior law

enforcement officials sought advice from senior military officers

that, if given, would have violated the Posse Comitatus Act.99 Although the majority recites the history of the act and the enactment of related statutes, it provides no support for its conclusion.

To the contrary, the relevant statute and its legislative history suggest the opposite conclusion.

The Posse Comitatus Act prohibits the use of Army and Air

Force personnel to execute the civil laws of the United States, except under circumstances prescribed by Congress.100 The act has

generally been interpreted to permit military support of law enforcement short of actual search, seizure, arrest or similar confrontation with civilians.101

In 1981, Congress enacted chapter 18 of title 10 of the United

States Code to clarify the law on permissible forms of military assistance to civilian law enforcement agencies.102 Among other

things, this statute expressly authorizes the Secretary of Defense

to make military personnel available to provide ‘‘law enforcement

officials with expert advice relevant to the purposes of this chapter,’’ subject to the limitation that the Secretary of Defense prevent

‘‘direct participation by a member of the Army, Navy, Air Force, or

Marine Corps in a search, seizure, arrest, or other similar activity.’’ 103

The majority apparently takes the view that the advice sought

by Justice Department and FBI officials is outside the scope of permissible expert advice and constitutes prohibited direct participation in an arrest. The majority, however, offers no legal support for

this conclusion, which runs contrary to the legislative history of the

applicable law. J. Michael Luttig, an Assistant Attorney General

during the Bush administration, explained:

It is evident from the legislative history of these amendments that Congress intended to codify the distinction—articulated by the district court in United States v. Red

Feather—between ‘‘indirect passive’’ assistance and ‘‘direct

active’’ involvement in law enforcement activity. . . . Significantly, Congress understood Red Feather to prohibit

only activity that entailed direct, physical confrontation

between military personnel and civilians.104

The input sought from the military personnel at the April 14,

1993, meeting related to their area of professional expertise. The

law expressly authorizes such provision of military expert advice to

civilian law enforcement. In addition, Justice Department and FBI

officials sought this expert advice during the formative stages of a

law enforcement plan. This would not constitute the direct, active

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105Danforth report at 37.

use of the military to execute the law. It thus would not have violated the Posse Comitatus Act or any other applicable statute.

Senator Danforth thoroughly investigated the role of the military

at Waco. He found that there was no violation of the Posse Comitatus Act and no other illegal or improper use of the armed forces.

Senator Danforth wrote that the two senior Army officers present

at the April 14, 1993 meeting:

discussed the effects of CS gas on people, whether the delivery of tear gas could start of fire, whether the HRT personnel were fatigued or in need of retraining, and they described how the military would conduct the operation.

They emphasized the differences between military and civilian law enforcement operations. This advice was within

the areas of their expertise and did not constitute direct

participation in law enforcement activity.105

IV. CONCLUSION

The committee’s 13-month investigation of Waco was unnecessary, expensive, and fruitless. Although the majority report spans

100 pages and includes nearly 1,400 pages of documentary exhibits,

it contributes virtually nothing to the public’s understanding of

Waco. Many of the report’s findings duplicate those of the Special

Counsel, former Senator John C. Danforth. In his report, Senator

Danforth determined, among other things, that government agents

did not cause or contribute to the fire that consumed the Branch

Davidian compound on April 19, 1993, did not direct gunfire at the

Branch Davidians on April 19, and did not unlawfully employ U.S.

armed forces at any time during the standoff. To the extent the

majority report deviates from Senator Danforth’s findings, it consists largely of unsupported allegations of wrongdoing by the Attorney General and Justice Department officials.

HON. HENRY A. WAXMAN.

HON. TOM LANTOS.

HON. MAJOR R. OWENS.

HON. EDOLPHUS TOWNS.

HON. PAUL E. KANJORSKI.

HON. CAROLYN B. MALONEY.

HON. ELEANOR HOLMES NORTON.

HON. CHAKA FATTAH.

HON. ELIJAH E. CUMMINGS.

HON. DENNIS J. KUCINICH.

HON. ROD R. BLAGOJEVICH.

HON. DANNY K. DAVIS.

HON. JOHN F. TIERNEY.

HON. JIM TURNER.

HON. HAROLD E. FORD, JR.

[The exhibits referred to follow:]

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1722

1723

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