" ! HOUSE OF REPRESENTATIVES 104TH CONGRESS

2nd Session

REPORT

104–749

Union Calendar No. 395

INVESTIGATION INTO THE ACTIVITIES OF

FEDERAL LAW ENFORCEMENT AGENCIES

TOWARD THE BRANCH DAVIDIANS

THIRTEENTH REPORT

BY THE

COMMITTEE ON GOVERNMENT REFORM AND OVERSIGHT

PREPARED IN CONJUNCTION WITH THE

COMMITTEE ON THE JUDICIARY

together with

ADDITIONAL AND DISSENTING VIEWS

AUGUST 2, 1996.—Committed to the Committee of the Whole House on the State of the

Union and ordered to be printed
INVESTIGATION INTO THE ACTIVITIES OF FEDERAL LAW ENFORCEMENT AGENCIES TOWARD THE BRANCH DAVIDIANS

INVESTIGATION INTO THE ACTIVITIES OF FEDERAL LAW ENFORCEMENT AGENCIES TOWARD THE BRANCH DAVIDIANS

INVESTIGATION INTO THE ACTIVITIES OF FEDERAL LAW ENFORCEMENT AGENCIES TOWARD THE

BRANCH DAVIDIANS

INVESTIGATION INTO THE ACTIVITIES OF FEDERAL LAW ENFORCEMENT AGENCIES

TOWARD THE BRANCH DAVIDIANS

INVESTIGATION INTO THE ACTIVITIES OF FEDERAL LAW

ENFORCEMENT AGENCIES TOWARD THE BRANCH DAVIDIANS
" ! HOUSE OF REPRESENTATIVES 104TH CONGRESS

2nd Session

REPORT

104–749

26–167 CC

Union Calendar No. 395

INVESTIGATION INTO THE ACTIVITIES OF

FEDERAL LAW ENFORCEMENT AGENCIES

TOWARD THE BRANCH DAVIDIANS

THIRTEENTH REPORT

BY THE

COMMITTEE ON GOVERNMENT REFORM AND OVERSIGHT

PREPARED IN CONJUNCTION WITH THE

COMMITTEE ON THE JUDICIARY

together with

ADDITIONAL AND DISSENTING VIEWS

AUGUST 2, 1996.—Committed to the Committee of the Whole House on the State of the

Union and ordered to be printed

U.S. GOVERNMENT PRINTING OFFICE

WASHINGTON : 1996
II

COMMITTEE ON GOVERNMENT REFORM AND OVERSIGHT

WILLIAM F. CLINGER, JR., Pennsylvania, Chairman

BENJAMIN A. GILMAN, New York

DAN BURTON, Indiana

J. DENNIS HASTERT, Illinois

CONSTANCE A. MORELLA, Maryland

CHRISTOPHER SHAYS, Connecticut

STEVEN SCHIFF, New Mexico

ILEANA ROS-LEHTINEN, Florida

WILLIAM H. ZELIFF, JR., New Hampshire

JOHN M. MCHUGH, New York

STEPHEN HORN, California

JOHN L. MICA, Florida

PETER BLUTE, Massachusetts

THOMAS M. DAVIS, Virginia

DAVID M. MCINTOSH, Indiana

RANDY TATE, Washington

DICK CHRYSLER, Michigan

GIL GUTKNECHT, Minnesota

MARK E. SOUDER, Indiana

WILLIAM J. MARTINI, New Jersey

JOE SCARBOROUGH, Florida

JOHN B. SHADEGG, Arizona

MICHAEL PATRICK FLANAGAN, Illinois

CHARLES F. BASS, New Hampshire

STEVEN C. LATOURETTE, Ohio

MARSHALL ‘‘MARK’’ SANFORD, South

Carolina

ROBERT L. EHRLICH, JR., Maryland

SCOTT L. KLUG, Wisconsin

CARDISS COLLINS, Illinois

HENRY A. WAXMAN, California

TOM LANTOS, California

ROBERT E. WISE, JR., West Virginia

MAJOR R. OWENS, New York

EDOLPHUS TOWNS, New York

JOHN M. SPRATT, JR., South Carolina

LOUISE MCINTOSH SLAUGHTER, New York

PAUL E. KANJORSKI, Pennsylvania

GARY A. CONDIT, California

COLLIN C. PETERSON, Minnesota

KAREN L. THURMAN, Florida

CAROLYN B. MALONEY, New York

THOMAS M. BARRETT, Wisconsin

BARBARA-ROSE COLLINS, Michigan

ELEANOR HOLMES NORTON, District of Columbia

JAMES P. MORAN, Virginia

GENE GREEN, Texas

CARRIE P. MEEK, Florida

CHAKA FATTAH, Pennsylvania

BILL BREWSTER, Oklahoma

TIM HOLDEN, Pennsylvania

ELIJAH CUMMINGS, Maryland

———

BERNARD SANDERS, Vermont (Independent)

JAMES L. CLARKE, Staff Director

KEVIN SABO, General Counsel

ROBERT SHEA, Professional Staff Member

JEFF WILMOT, Professional Staff Member

JUDITH MCCOY, Chief Clerk

BUD MYERS, Minority Staff Director

SUBCOMMITTEE ON NATIONAL SECURITY, INTERNATIONAL AFFAIRS, AND CRIMINAL JUSTICE

WILLIAM H. ZELIFF, JR., New Hampshire, Chairman

ROBERT L. EHRLICH, JR., Maryland

STEVEN SCHIFF, New Mexico

ILEANA ROS-LEHTINEN, Florida

JOHN L. MICA, Florida

PETER BLUTE, Massachusetts

MARK E. SOUDER, Indiana

JOHN B. SHADEGG, Arizona

KAREN L. THURMAN, Florida

ROBERT E. WISE, JR., West Virginia

TOM LANTOS, California

LOUISE MCINTOSH SLAUGHTER, New York

GARY A. CONDIT, California

BILL BREWSTER, Oklahoma

ELIJAH CUMMINGS, Maryland

EX OFFICIO

WILLIAM F. CLINGER, JR., Pennsylvania CARDISS COLLINS, Illinois

ROBERT CHARLES, Staff Director and Chief Counsel

MICHELE LANG, Special Counsel

SEAN LITTLEFIELD, Professional Staff Member

CHERRI BRANSON, Minority Professional Staff Member

(II)
III

COMMITTEE ON THE JUDICIARY

HENRY J. HYDE, Illinois, Chairman

CARLOS J. MOORHEAD, California

F. JAMES SENSENBRENNER, JR.,

Wisconsin

BILL McCOLLUM, Florida

GEORGE W. GEKAS, Pennsylvania

HOWARD COBLE, North Carolina

LAMAR S. SMITH, Texas

STEVEN SCHIFF, New Mexico

ELTON GALLEGLY, California

CHARLES T. CANADY, Florida

BOB INGLIS, South Carolina

BOB GOODLATTE, Virginia

STEPHEN E. BUYER, Indiana

MARTIN R. HOKE, Ohio

SONNY BONO, California

FRED HEINEMAN, North Carolina

ED BRYANT, Tennessee

STEVE CHABOT, Ohio

MICHAEL PATRICK FLANAGAN, Illinois

BOB BARR, Georgia

JOHN CONYERS, JR., Michigan

PATRICIA SCHROEDER, Colorado

BARNEY FRANK, Massachusetts

CHARLES E. SCHUMER, New York

HOWARD L. BERMAN, California

RICK BOUCHER, Virginia

JOHN BRYANT, Texas

JACK REED, Rhode Island

JERROLD NADLER, New York

ROBERT C. SCOTT, Virginia

MELVIN L. WATT, North Carolina

XAVIER BECERRA, California

ZOE LOFGREN, California

SHEILA JACKSON LEE, Texas

MAXINE WATERS, California

ALAN F. COFFEY, JR., General Counsel/Staff Director

JULIAN EPSTEIN, Minority Staff Director

SUBCOMMITTEE ON CRIME

BILL McCOLLUM, Florida, Chairman

STEVEN SCHIFF, New Mexico

STEPHEN E. BUYER, Indiana

HOWARD COBLE, North Carolina

FRED HEINEMAN, North Carolina

ED BRYANT, Tennessee

STEVE CHABOT, Ohio

BOB BARR, Georgia

CHARLES E. SCHUMER, New York

ROBERT C. SCOTT, Virginia

ZOE LOFGREN, California

SHEILA JACKSON LEE, Texas

MELVIN L. WATT, North Carolina

PAUL J. MCNULTY, Chief Counsel

GLENN R. SCHMITT, Counsel

DANIEL J. BRYANT, Assistant Counsel

TOM DIAZ, Minority Counsel

(III)

5

LETTER OF TRANSMITTAL

HOUSE OF REPRESENTATIVES,

Washington, DC, August 2, 1996.

HON. NEWT GINGRICH,

Speaker of the House of Representatives,

Washington, DC.

DEAR MR. SPEAKER: By direction of the Committee on Government Reform and

Oversight and on behalf of Mr. Hyde and Mr. McCollum of the Committee on the

Judiciary, I herewith submit the committee’s thirteenth report to the 104th Congress.

The report is based on a joint investigation conducted by the Judiciary’s Subcommittee

on Crime, and the Government Reform and Oversight Committee’s Subcommittee on

National Security, International Affairs, and Criminal Justice.

Sincerely,

WILLIAM F. CLINGER, Jr.,

Chairman.

(v)

VII

C O N T E N T S

Page

Executive summary ..................................................................................................................................... 1

A. A brief summary of the Government’s actions toward the Branch Davidians .................... 1

B. Findings of the subcommittees ................................................................................................ 3

C. Recommendations ..................................................................................................................... 5

I. Introduction .......................................................................................................................................... 6

A. The need for the Waco inquiry ................................................................................................ 6

B. Opposition to the inquiry ......................................................................................................... 7

C. The nature of the inquiry ......................................................................................................... 8

1. Document requests and review ..................................................................................... 8

2. Investigation and interviews ......................................................................................... 8

3. Hearings .......................................................................................................................... 9

4. Post-hearing investigation ............................................................................................. 9

D. The structure and scope of the report .................................................................................... 9

E. Additional comments ................................................................................................................ 10

II. The ATF investigation ......................................................................................................................... 10

A. The McMahon compliance visit ............................................................................................... 10

B. The investigation continued ..................................................................................................... 10

C. Undercover operation ............................................................................................................... 11

D. Failure to comply with ‘‘sensitive-significant’’ procedures .................................................... 12

E. The affidavit in support of the warrants ................................................................................ 12

F. Findings concerning the ATF investigation ............................................................................ 13

G. Recommendations ..................................................................................................................... 14

III. Planning and approval of the raid ...................................................................................................... 14

A. Was ‘‘show time’’ even necessary? ........................................................................................... 14

B. Was the violent outburst predictable? .................................................................................... 15

C. The predisposition to dynamic entry ....................................................................................... 15

1. The source of the predisposition .................................................................................... 15

2. Raid approval and lack of Treasury Department oversight of ATF ........................... 16

D. Failure to comply with ‘‘sensitive-significant’’ procedures .................................................... 17

E. Findings concerning the planning and approval of the raid ................................................. 17

IV. Raid execution ...................................................................................................................................... 17

A. Rodriguez and the ‘‘element of surprise’’ ................................................................................ 18

1. How the Davidians knew the ATF was coming ........................................................... 18

2. The undercover agent ..................................................................................................... 18

B. Who bears the responsibility for the failure of the raid? ...................................................... 21

C. Other ways in which the plan selected was bungled ............................................................. 23

1. Command and control issues ......................................................................................... 23

2. The lack of a written raid plan ..................................................................................... 24

3. Lack of depth in the raid plan ....................................................................................... 24

4. Tactical teams trained together for only 3 days before the raid ................................ 25

5. True National Guard role only made clear 24 hours prior to theraid ....................... 25

D. Service of the warrant .............................................................................................................. 26

E. Unresolved allegations ............................................................................................................. 26

1. Who shot first? ................................................................................................................ 26

2. Were shots fired from the helicopters? ......................................................................... 27

F. The firing and rehiring of Chojnacki and Sarabyn ................................................................ 28

G. Findings concerning the raid execution .................................................................................. 28

H. Recommendations ..................................................................................................................... 29

(VII)
VIII

V. Military involvement in the Government operations at WACO ...................................................... 30

A. The expansion of military assistance to law enforcement ..................................................... 30

1. The Posse Comitatus Act ............................................................................................... 30

2. Interstate use of National Guard by Governors .......................................................... 33

B. The Bureau of Alcohol, Tobacco, and Firearms’ request for military assistance and

the military assistance actually provided ............................................................................ 35

1. Overview .......................................................................................................................... 35

2. Concerns of military legal advisors ............................................................................... 39

3. Evidence indicating problems in the approval process ................................................ 40

C. The alleged drug nexus ............................................................................................................ 43

1. Methamphetamine laboratories .................................................................................... 43

2. Evidence purporting to show the alleged drug nexus ................................................. 45

3. Evidence refuting ATF’s claim of a drug nexus ........................................................... 48

D. Post-raid military assistance to the Federal Bureau of Investigation ................................. 50

1. Military equipment and personnel provided ................................................................ 50

2. Advice/consultation provided by military officers ........................................................ 51

3. Foreign military personnel ............................................................................................ 51

E. Findings concerning military involvement in the Government operations at Waco ........... 52

1. The Posse Comitatus Act was not violated .................................................................. 52

F. Recommendations ..................................................................................................................... 53

VI. Negotiations to end the standoff with the Davidians ....................................................................... 55

A. The conflict between tactical commanders and negotiators .................................................. 56

1. The problem with two teams: one negotiating team and a tactical team .................. 56

B. Negotiation opportunities lost ................................................................................................. 58

1. Why the FBI changed negotiators ................................................................................. 58

2. Why the FBI didn’t allow others to participate in the negotiations .......................... 59

C. Lack of appreciation of outside information ........................................................................... 60

1. Why the FBI did not rely more on religious advisors to understand Koresh ............ 60

2. Others who contributed information ............................................................................. 62

D. The FBI’s failure to follow its own expert’s recommendations ............................................. 64

1. What the FBI’s own experts recommended .................................................................. 64

E. The decision to dismiss the surrender plan ............................................................................ 64

1. ‘‘Kids lined up with their jackets on’’ ............................................................................ 64

2. Breakthrough with Koresh’s letter ............................................................................... 65

3. The breakthrough communicated to Jamar ................................................................. 65

4. The failure to communicate this breakthrough up the chain of command ................ 65

5. Evidence that Koresh was writing his interpretation of the Seven Seals ................. 66

6. Why the FBI disregarded the evidence that the Seven Seals were being written ... 66

F. Findings concerning the negotiations to end the standoff with the Davidians ................... 66

G. Recommendations ..................................................................................................................... 66

VII. The Attorney General’s decision to end the stand-off ..................................................................... 67

A. Overview of the plan to end the standoff ............................................................................... 67

B. The operation plan for April 19, 1993 ..................................................................................... 67

1. Overview of the written operation plan to end the standoff ....................................... 67

2. Acceleration provisions of the operations plan ............................................................ 68

C. The way the plan actually unfolded ........................................................................................ 68

D. Overview of the use of CS chemical agent ............................................................................. 69

1. Introduction .................................................................................................................... 69

2. Concerns over use of CS ................................................................................................ 70

E. Clinical effects and toxicity of CS ............................................................................................ 70

1. Common effects of exposure to CS ................................................................................ 70

2. Toxicity of CS .................................................................................................................. 71

F. Effect of the CS and methylene chloride in the quantities used on April 19th ................... 71

1. Lethality of CS as used at Waco ................................................................................... 71

2. Lethality of methylene chloride used with CS at Waco .............................................. 73

3. Other possible effects of methylene chloride used with CS at Waco .......................... 74

(VIII)
IX

G. Analysis of the Attorney General’s decision to end the standoff on April 19, 1993 ............ 75

1. The decision not to storm the residence ....................................................................... 75

2. The reasons asserted for ending the standoff on day 51 ............................................. 75

3. The decision as to how to implement the plan ............................................................ 79

H. Presidential involvement in the events at Waco, TX ............................................................ 81

I. Findings concerning the plan to end the standoff ................................................................... 81

J. Recommendations ...................................................................................................................... 83

VIII. The fire ............................................................................................................................................... 84

A. Summary of the development of the fire ................................................................................ 84

B. Other theories concerning the development of the fire ......................................................... 85

1. Whether the methylene chloride in the CS riot control agent used by the FBI

caused the fire ............................................................................................................. 85

2. Whether the irritant chemical in the CS riot control agent used by the FBI

caused or contributed to the spread of the fire ......................................................... 86

3. Whether the combat engineering vehicles used by the FBI on April 19 started

the fire .......................................................................................................................... 86

C. Whether the Davidians could have left their residence after the fire began ....................... 87

D. The FBI’s planning for the fire ................................................................................................ 87

E. Findings concerning the fire .................................................................................................... 88

VIEWS

Additional views of Hon. Ileana Ros-Lehtinen .......................................................................................... 91

Additional views of Hon. William H. Zeliff, Jr .......................................................................................... 92

The submission by Hon. Steven Schiff, of the Subcommittee on National Security, International

Affairs, and Criminal Justice of the Committee on Government Reform and Oversight, of extraneous material provided to him by Hon. Bob Barr, of the Subcommittee on Crime of the

Committee on the Judiciary .................................................................................................................... 93

Additional views of Hon. Tom Lantos ........................................................................................................ 97

Dissenting views of Hon. Cardiss Collins, Hon. Karen L. Thurman, Hon. Henry A. Waxman,

Hon. Tom Lantos, Hon. Robert E. Wise, Jr., Hon. Major R. Owens, Hon. Edolphus Towns,

Hon. Louise M. Slaughter, Hon. Paul E. Kanjorski, Hon. Carolyn B. Maloney, Hon. Thomas

M. Barrett, Hon. Barbara-Rose Collins, Hon. Eleanor Holmes Norton, Hon. James P. Moran,

Hon. Carrie P. Meek, Hon. Chaka Fattah, and Hon. Elijah E. Cummings ........................................ 98

(IX)
1

Union Calendar No. 395

" ! HOUSE OF REPRESENTATIVES 104TH CONGRESS

2nd Session

REPORT

104–749

INVESTIGATION INTO THE ACTIVITIES OF FEDERAL LAW ENFORCEMENT

AGENCIES TOWARD THE BRANCH DAVIDIANS

AUGUST 2, 1996.—Committed to the Committee of the Whole House on the State of the Union and

ordered to be printed

Mr. CLINGER, from the Committee on Government Reform and Oversight,

submitted the following

THIRTEENTH REPORT

together with

ADDITIONAL AND DISSENTING VIEWS

BASED ON A JOINT INVESTIGATION BY THE SUBCOMMITTEE ON NATIONAL SECURITY, INTERNATIONAL AFFAIRS,

AND CRIMINAL JUSTICE OF THE COMMITTEE ON GOVERNMENT REFORM AND OVERSIGHT, AND THE

SUBCOMMITTEE ON CRIME OF THE COMMITTEE OF THE JUDICIARY

On July 25, 1996, the Committee on Government Reform and Oversight approved and adopted a report

entitled ‘‘Investigation Into the Activities of Federal Law Enforcement Agencies Toward the Branch

Davidians.’’ The report was prepared jointly with the Committee on the Judiciary. The chairman was directed to transmit a copy to the Speaker of the House.

EXECUTIVE SUMMARY

From April 1995 to May 1996, the Subcommittee

on Crime of the House Committee on the Judiciary

and the Subcommittee on National Security, International Affairs, and Criminal Justice of the

House Committee on Government Reform and

Oversight jointly conducted an investigation into

the actions of the Federal agencies involved in law

enforcement activities near Waco, TX in late 1992

and early 1993 toward a group known as the

Branch Davidians. As part of that investigation,

the subcommittees held 10 days of public hearings.

During the course of those hearings, more than

100 witnesses appeared and gave testimony concerning all aspects of the government’s actions.

The subcommittees also reviewed thousands of

documents requested from and provided by the

agencies involved in these actions. Additionally,

the subcommittees met with others who were involved in these actions or who offered additional

information or opinions concerning them.

This report is the final product of that investigation. It summarizes the most important facts

about the key issues of these activities considered

by the subcommittees. The report also sets forth

the subcommittees’ findings with respect to many

disputed issues and to new facts uncovered during

the investigation. Finally, the report makes recommendations in order to prevent the mistakes

that occurred at Waco from reoccurring in future

law enforcement operations.

A. A BRIEF SUMMARY OF THE GOVERNMENT’S

ACTIONS TOWARD THE BRANCH DAVIDIANS

In June 1992, the Austin, TX Office of the Bureau of Alcohol, Tobacco and Firearms (ATF)

opened a formal investigation into allegations that

members of a Waco, TX religious group, known as

the Branch Davidians, and in particular their

leader, Vernon Howell, also known as David

Koresh, were in possession of illegal firearms and

explosive devices. In January 1993, ATF agents

commenced an undercover operation in a small

house directly across from the property on which

the Branch Davidians lived. The ATF agents posed

as students attending classes at a local technical

college to monitor the activities of the Davidians.

Part of the undercover operation involved one of

the agents meeting with Koresh and other

Davidians several times by expressing an interest

in their religious beliefs. As a result of the evi-
2

dence gathered by the ATF, and in particular during the undercover operation, the ATF sought and

received from a Federal judge an arrest warrant

for Koresh and a warrant to search the Branch

Davidian residence.

Shortly before the ATF planned to serve the

search and arrest warrants, it contacted Operation

Alliance, a government office which coordinated

military counter drug operations along the southwest border. Through that office, the ATF requested that military personnel provide training to

the ATF agents who would be involved in the raid

to serve the warrants. The ATF’s request for military assistance also would have involved the military personnel as participants in the raid itself.

After military legal advisors cautioned that such

activity might violate Federal law, the ATF’s request was modified so that military personnel only

provided training to the ATF agents and did not

participate in the raid. Because the ATF alleged

that the Davidians were also involved in illegal

drug manufacturing, the assistance provided by

these counter drug military forces was provided to

the ATF without reimbursement.

On February 28, 1993, a force of 76 ATF agents

stormed the Davidian residence to serve the arrest

and search warrants. Prior to the commencement

of the raid, however, the Davidians had learned of

the ATF’s plans. As the agents arrived at the

Davidians’ residence, the Davidians engaged the

ATF agents in a gun battle which continued for almost 90 minutes. Four ATF agents were killed in

the battle and more than 20 agents wounded. At

least two Davidians were killed by ATF agents

and several others, including Koresh, were wounded.

After a cease-fire was arranged, the Federal Bureau of Investigation (FBI) dispatched members of

its Hostage Rescue Team (HRT) to Waco to take

control of the situation at the request of the ATF.

At 6 a.m. the next morning, the FBI formally took

control of the situation and commenced a 51 day

standoff with the Davidians. During this time, FBI

officials engaged in daily negotiations with the

Davidians in an effort to end the standoff peaceably. Between February 18 and March 23, 35 persons, including 21 children, left the residence and

surrendered to the FBI. From March 23 to April

18, however, none of the remaining Branch

Davidians left the residence.

In addition to the continual negotiations with

the Davidians, FBI officials took other steps to induce the Davidians to surrender. These tactics included tightening the perimeter around the

Davidian residence, cutting off electricity to the

residence, and at one point, shining bright lights

at the residence and playing loud music and irritating sounds over loudspeakers. During the

course of the standoff, FBI negotiators consulted

with several experts routinely retained by the FBI.

In some cases, the advice of these experts was followed while in other cases it was not. Many other

persons offered advice to the FBI. While a few of

these individuals offered credible assistance, the

FBI chose to ignore the offers of assistance from

all of these persons.

During the week of April 12, senior Justice Department officials began considering a plan developed by the FBI to end the standoff. Attorney General Janet Reno, other senior Justice Department

officials, and FBI officials held several meetings

concerning the plan. The FBI also requested the

input of Department of Defense employees and

military personnel concerning the plan to end the

standoff. During these deliberations Associate Attorney General Webster Hubbell personally discussed the status of the negotiations with the

FBI’s chief day-to-day negotiator in Waco. The proposed plan centered around the use of a chemical

riot control agent which would be injected through

the walls of the Davidian residence in order to induce the residents to leave the structure. It provided for the methodical insertion of the riot control agent into different parts of the building over

a 48 hour period. The plan also contained a contingency provision to be used if the Davidians fired

on the FBI agents who were implementing the

plan. In that event, the FBI proposed to insert the

riot control agent into all portions of the residence

simultaneously. As a result of these deliberations,

the Attorney General approved the implementation of the plan for April 19, 1993.

At approximately 6 a.m. on April 19, the FBI’s

chief negotiator, Byron Sage, telephoned the

Davidians and informed them that the FBI was inserting the riot control agent into the residence.

Sage also began broadcasting a prepared statement over loudspeakers that the FBI was ‘‘placing

tear gas in the building’’ and that all residents

should leave. As the announcement was being

made, FBI agents using unarmed military vehicles

with booms mounted on them began to insert the

riot control agent into the compound by ramming

holes into the sides of the structure and then using

devices mounted on the booms to spray the riot

control agent into the holes in the walls. Almost

immediately the Davidians began to fire on the vehicles being used by the FBI. At 6:07 a.m., the

commander of the Hostage Rescue Team ordered

that the contingency provision of the operations

plan be implemented and that the riot control

agent be inserted in all portions of the residence at

once. During 6 hours of insertion of the riot control

agent no residents exited the compound.

At approximately 12:07 p.m., a fire was observed

in one portion of the residence. Within 2 minutes,

two other fires developed. Within a period of 8

minutes, the three fires had engulfed the entire

structure, ultimately destroying it completely.

During the fire, sounds of gunfire from within

the structure were heard. Some of these sounds

were live rounds exploding in the flames inside the

compound. However, other sounds were methodical

and evenly-spaced, indicating the deliberate firing
3

of weapons. Nine persons escaped from the structure during the course of the fire but more than 70

other residents remained inside. All of these persons died. Of this number, autopsies indicated that

19 died from gunshots at close range. Most of the

other residents who remained inside the structure

died as a result of smoke inhalation from the fire

or from burns from the fire.

B. FINDINGS OF THE SUBCOMMITTEES

As a result of its investigation, the subcommittees make the following findings:

The Branch Davidians

1. But for the criminal conduct and aberrational

behavior of David Koresh and other Branch

Davidians, the tragedies that occurred in Waco

would not have occurred. The ultimate responsibility for the deaths of the Davidians and the four

Federal law enforcement agents lies with Koresh.

2. While not dispositive, the evidence presented

to the subcommittees indicates that some of the

Davidians intentionally set the fires inside the

Davidian residence.

3. The Davidians could have escaped the residence for a significant period of time after the

start of the fire. Most of the Davidians either did

not attempt to escape from the residence or were

prevented from escaping by other Davidians.

4. The gunshot wounds which were the cause of

death of 19 of the Davidians on April 19 were either self-inflicted, inflicted by other Davidians, or

the result of the remote possibility of accidental

discharge from rounds exploding in the fire.

The Department of the Treasury

1. Treasury Secretary Lloyd Bentsen and Deputy

Secretary Roger Altman acted highly irresponsibly

and were derelict in their duties in failing to even

meet with the Director of the ATF in the month or

so they were in office prior to the February 28 raid

on the Davidians residence, in failing to request

any briefing on ATF operations during this time,

and in wholly failing to involve themselves with

the activities of the ATF.

2. Senior Treasury Department officials routinely failed in their duty to monitor the actions of

ATF officials, and as a result were uninvolved in

the planning of the February 28 raid. This failure

eliminated a layer of scrutiny of the plan during

which flaws in it might have been uncovered and

corrected.

3. After the raid failed, Assistant Treasury Secretary Ronald Noble attempted to lay the blame

entirely on the ATF despite the fact that Treasury

Department officials, including Noble, failed to

properly supervise ATF activities leading to the

raid. Moreover, Treasury Department officials,

having approved the raid, failed to clearly and concisely communicate the conditions under which it

was to be aborted.

The Bureau of Alcohol, Tobacco and Firearms

1. The ATF’s investigation of the Branch

Davidians was grossly incompetent. It lacked the

minimum professionalism expected of a major Federal law enforcement agency.

2. While the ATF had probable cause to obtain

the arrest warrant for David Koresh and the

search warrant for the Branch Davidian residence,

the affidavit filed in support of the warrants contained an incredible number of false statements.

The ATF agents responsible for preparing the affidavits knew or should have known that many of

the statements were false.

3. David Koresh could have been arrested outside the Davidian compound. The ATF chose not to

arrest Koresh outside the Davidian residence and

instead were determined to use a dynamic entry

approach. In making this decision ATF agents exercised extremely poor judgment, made erroneous

assumptions, and ignored the foreseeable perils of

their course of action.

4. ATF agents misrepresented to Defense Department officials that the Branch Davidians were

involved in illegal drug manufacturing. As a result

of this deception, the ATF was able to obtain some

training from forces which would not have otherwise provided it, and likely obtained other training

within a shorter period of time than might otherwise have been available. Because of its deception,

the ATF was able to obtain the training without

having to reimburse the Defense Department, as

otherwise would have been required had no drug

nexus been alleged.

5. The decision to pursue a military style raid

was made more than 2 months before surveillance,

undercover, and infiltration efforts were begun.

The ATF undercover and surveillance operation

lacked the minimum professionalism expected of a

Federal law enforcement agency. Supervisors

failed to properly monitor this operation.

6. The ATF’s raid plan for February 28 was significantly flawed. The plan was poorly conceived,

utilized a high risk tactical approach when other

tactics could have been successfully used, was

drafted and commanded by ATF agents who were

less qualified than other available agents, and

used agents who were not sufficiently trained for

the operation. Additionally, ATF commanders did

not take precautions to ensure that the plan would

not be discovered.

7. The senior ATF raid commanders, Phillip

Chojnacki and Chuck Sarabyn, either knew or

should have known that the Davidians had become

aware of the impending raid and were likely to resist with deadly force. Nevertheless, they recklessly proceeded with the raid, thereby endangering the lives of the ATF agents under their command and the lives of those residing in the

compound. This, more than any other factor, led to

the deaths of the four ATF agents killed on February 28.
4

8. Former ATF Director Stephen Higgins and

former ATF Deputy Director Daniel Hartnett bear

a portion of the responsibility for the failure of the

raid. They failed to become significantly involved

in the planning for the raid and also failed to instill in the senior raid commanders an understanding of the need to ensure that secrecy was maintained in an operation of this type.

9. There was no justification for the rehiring of

the two senior ATF raid commanders after they

were fired. The fact that senior Clinton administration officials approved their rehiring indicates a

lack of sound judgment on their part.

The Department of Justice

1. The decision by Attorney General Janet Reno

to approve the FBI’s plan to end the standoff on

April 19 was premature, wrong, and highly irresponsible. In authorizing the assault to proceed Attorney General Reno was seriously negligent. The

Attorney General knew or should have known that

the plan to end the stand-off would endanger the

lives of the Davidians inside the residence, including the children. The Attorney General knew or

should have known that there was little risk to the

FBI agents, society as a whole, or to the Davidians

from continuing this standoff and that the possibility of a peaceful resolution continued to exist.

2. The Attorney General knew or should have

known that the reasons cited for ending the standoff on April 19 lacked merit. The negotiations had

not reached an impasse. There was no threat of a

Davidian breakout. The FBI Hostage Rescue Team

did not need to stand down for rest and retraining

for at least 2 more weeks after April 19, and if and

when it did stand down FBI and local law enforcement SWAT teams could have been brought in to

maintain the perimeter. Sanitary and other living

conditions inside the Davidian residence had not

deteriorated during the standoff and there was no

evidence that they were likely to deteriorate in the

near future. And while physical and sexual abuse

of minors had occurred, there was no basis to conclude that minors were being subjected to any

greater risk of physical or sexual abuse during the

stand-off than prior to February 28. The final assault put the children at the greatest risk.

3. The CS riot control agent insertion and assault plan was fatally flawed. The Attorney General believed that it was highly likely that the

Davidians would open fire, and she knew or should

have known that the rapid insertion contingency

would be activated, that the Davidians would not

react in the manner suggested by the FBI, and

that there was a possibility that a violent and perhaps suicidal reaction would occur within the residence. The planning to end the stand-off was further flawed in that no provision had been made for

alternative action to be taken in the event the

plan was not successful.

4. Following the FBI’s April 19 assault on the

Branch Davidian compound, Attorney General

Reno offered her resignation. In light of her ultimate responsibility for the disastrous assault and

its resulting deaths the President should have accepted it.

The Federal Bureau of Investigation

1. The CS riot control agent assault of April 19

should not have taken place. The possibility of a

negotiated end to the standoff presented by Koresh

should have been pursued even if it had taken several more weeks.

2. After Koresh and the Davidians broke a promise to come out on March 2 FBI tactical commander Jeffrey Jamar viewed all statements of

Koresh with extreme skepticism and thought the

chances of a negotiated surrender remote. While

chief negotiator Byron Sage may have held out

hope longer, FBI officials on the ground had effectively ruled out a negotiated end long before April

19 and had closed minds when presented with evidence of a possible negotiated end following completion of Koresh’s work on interpreting the Seven

Seals of the Bible.

3. The FBI should have sought and accepted

more expert advice on the Branch Davidians and

their religious views and been more open-minded

to the advice of the FBI’s own experts.

4. FBI tactical commander Jeffrey Jamar and

senior FBI and Justice Department officials advising the Attorney General knew or should have

known that none of the reasons given to end negotiations and go forward with the plan to end the

stand-off on April 19 had merit. To urge these as

an excuse to act was wrong and highly irresponsible.

5. CS riot control agent is capable of causing immediate, acute and severe physical distress to exposed individuals, especially young children, pregnant women, the elderly, and those with respiratory conditions. In some cases, severe or extended exposure can lead to incapacitation. Evidence presented to the subcommittees show that

use of CS riot control agent in enclosed spaces,

such as the bunker, significantly increases the possibility that lethal levels will be reached, and the

possibility of harm significantly increases. In view

of the risks posed by insertion of CS into enclosed

spaces, particularly the bunker, the FBI failed to

demonstrate sufficient concern for the presence of

young children, pregnant women, the elderly, and

those with respiratory conditions. While it cannot

be concluded with certainty, it is unlikely that the

CS riot control agent, in the quantities used by the

FBI, reached lethal toxic levels. However, the presented evidence does indicate that CS insertion

into the enclosed bunker, at a time when women

and children were assembled inside that enclosed

space, could have been a proximate cause of or directly resulted in some or all of the deaths attributed to asphyxiation in the autopsy reports.

6. There is no evidence that the FBI discharged

firearms on April 19.
5

7. There is no evidence that the FBI intentionally or inadvertently set the fires on April 19.

8. The FBI’s refusal to ask for or accept the assistance of other law enforcement agencies during

the stand-off demonstrated an institutional bias at

the FBI against accepting and utilizing such assistance.

The Department of Defense

1. The activities of active duty military personnel in training the ATF and in supporting the

FBI’s activities during the standoff did not violate

the Posse Comitatus Act because their actions did

not constitute direct participation in the government’s law enforcement activities.

2. The activities of National Guard personnel in

training the ATF, in participating in the ATF raid

on the Davidian residence, and in supporting the

FBI’s activities during the standoff did not violate

the Posse Comitatus Act because the personnel

were not subject to the prohibitions in the act.

3. No foreign military personnel or other foreign

persons took part in any of the government’s actions toward the Branch Davidians. Some foreign

military personnel were present near the Davidian

residence as observers at the invitation of the FBI.

C. RECOMMENDATIONS

In order to prevent the errors in judgment and

consequent tragic results that occurred at Waco

from occurring in the future, the subcommittees’

make the following recommendations:

1. Congress should conduct further oversight of the Bureau of Alcohol, Tobacco and

Firearms, the oversight of the agency provided by the Treasury Department, and

whether jurisdiction over the agency should

be transferred to the Department of Justice.

Congress should consider whether the lack of

Treasury Department oversight of ATF activities

in connection with the investigation of the

Davidians, and the failures by ATF leadership

during that investigation, indicate that jurisdiction

over the ATF should be transferred to the Department of Justice.

2. If the false statement in the affidavits

filed in support of the search and arrest warrants were made with knowledge of their falsity, criminal charges should be brought

against the persons making the statements.

3. Federal law enforcement agencies should

verify the credibility and the timeliness of

the information on which it relies in obtaining warrants to arrest or search the property

of an American citizen. The affidavits on which

the arrest and search warrants of Koresh were ordered contained information provided to the ATF

by informants with obvious bias toward Koresh

and the Davidians and information that was stale

in that it was based on experiences years before

the investigation. The ATF should obtain fresh

and unbiased information when relying on that information to arrest or search the premises of the

subjects of investigations.

4. The ATF should revise its National Response Plan to ensure that its best qualified

agents are placed in command and control

positions in all operations. Doing so will help to

avoid situations like that which occurred at Waco

where lesser qualified agents were placed in positions for which they were, at best, only partially

qualified while other, more experienced agents

were available whose involvement might have prevented the failure of the raid.

5. Senior officials at ATF headquarters

should assert greater command and control

over significant operations. The ATF’s most

senior officials should be directly involved in the

planning and oversight of every significant operation.

6. The ATF should be constrained from

independently investigating drug-related

crimes. Given that the ATF based part of its investigation of the Branch Davidians on unfounded

allegations that the Davidians were manufacturing

illegal drugs, and as a result improperly obtained

military support at no cost, the subcommittees recommend that Congress restrict the jurisdiction of

the ATF to investigate cases involving illegal

drugs unless such investigations are conducted

jointly with the Drug Enforcement Administration

as the lead agency.

7. Congress should consider applying the

Posse Comitatus Act to the National Guard

with respect to situations where a Federal

law enforcement entity serves as the lead

agency. The fact that National Guard troops were

legally allowed to be involved directly in Federal

law enforcement actions against the Davidians,

while active duty forces were not, is inconsistent

with the spirit of the Posse Comitatus Act.

8. The Department of Defense should

streamline the approval process for military

support so that Posse Comitatus Act conflicts

and drug nexus controversies are avoided in

the future. The process should make clear to law

enforcement agencies requesting Defense Department support the grounds upon which support will

be given. Such requests should be assigned to a

single office to ensure that support will be provided only in legitimate circumstances and in a

manner consistent with the Posse Comitatus Act.

9. The General Accounting Office should

audit the military assistance provided to the

ATF and to the FBI in connection with their

law enforcement activities toward the

Branch Davidians. Given that the subcommittees have been unable to obtain detailed information concerning the value of the military support

provided to the ATF and the FBI, the subcommittees recommend that the General Accounting Office conduct an audit of these agencies to ascertain

the value of the military support provided to them
6

and to ensure that complete reimbursement has

been made by both agencies.

10. The General Accounting Office should

investigate the activities of Operation Alliance in light of the Waco incident. The subcommittees conclude that Operation Alliance personnel knew or should have known that ATF did

not have a sufficient drug nexus to warrant the

military support provided on a non-reimbursable

basis. Furthermore, given that the provision of assistance under such dubious circumstances appears to not have been an anomaly and the expansion of Operation Alliance’s jurisdiction since

Waco, the subcommittees recommend that the

General Accounting Office conduct an investigation of Operation Alliance.

11. Federal law enforcement agencies

should redesign their negotiation policies

and training to avoid the influence of physical and emotional fatigue on the course of

future negotiations. In anticipation of future negotiations involving unusually emotional subjects

or those which may involve prolonged periods of

time during which negotiators may become physically or emotionally fatigued, Federal law enforcement agencies should implement procedures to ensure that these factors do not influence the recommendations of negotiators to senior commanders.

12. Federal law enforcement agencies

should take steps to foster greater understanding of the target under investigation.

The subcommittees believe that had the government officials involved at Waco taken steps to understand better the philosophy of the Davidians,

they might have been able to negotiate more effectively with them, perhaps accomplishing a peaceful end to the standoff. The subcommittees believe

that had the ATF and FBI been better informed

about the religious philosophy of the Davidians

and the Davidians’ likely response to the government’s actions against them, these agencies could

have made better choices in planning to deal with

the Branch Davidians.

13. Federal law enforcement agencies

should implement changes in operational

procedures and training to provide better

leadership in future negotiations. The subcommittees believe that placing greater emphasis

on leadership in critical situations will not only

protect the targets of government action, but also

will help to protect the safety of the law enforcement officers.

14. Federal law enforcement agencies

should revise policies and training to increase the willingness of their agents to consider the advice of outside experts. The subcommittees note that the expertise of recognized

negotiation experts, particularly those experienced

with religiously-motivated groups, might have

proved invaluable in assisting FBI negotiations

with the Branch Davidians. Accordingly, the subcommittees recommend that Federal law enforcement agencies revise their policies and training so

that their agents are open to the advice such experts might provide.

15. Federal law enforcement agencies

should revise policies and training to encourage the acceptance of outside law enforcement assistance, where possible. The unwillingness of the FBI to accept support from State,

local, or other Federal law enforcement agencies in

connection with the standoff increased the pressure on the Attorney General to end the standoff

precipitously. To avoid this type of pressure in the

future, Federal law enforcement agencies should

be open to the assistance that State and local law

enforcement agencies may be able to provide.

16. The FBI should expand the size of the

Hostage Rescue Team. The FBI should increase

the size of the Hostage Rescue Team so that there

are sufficient numbers of team members to participate in an operation and to relieve those involved

when necessary. The FBI should also develop

plans to utilize FBI and local law enforcement

SWAT teams when extenuating circumstances

exist.

17. The government should further study

and analyze the effects of CS riot control

agent on children, persons with respiratory

problems, pregnant women, and the elderly.

The subcommittees note that only limited scientific

literature exists concerning the effects of CS riot

control agent, especially with regard to the effects

of long-term exposure in a closed area. Until such

time as more is known about the actual effects of

exposure to this agent, the subcommittees recommend that CS not be used when children, persons with respiratory problems, pregnant women,

and the elderly are present. Federal law enforcement agencies should develop guidelines for the

use of riot control agents in light of this further

study and analysis.

I. INTRODUCTION

A. THE NEED FOR THE WACO INQUIRY

On February 28, 1993, four special agents of the

Bureau of Alcohol, Tobacco and Firearms (ATF)

were tragically killed near Waco, TX, in a shootout

with a religious sect known as the Branch

Davidians. The group’s leader, Vernon Howell, also

known as David Koresh, was wounded in the violent confrontation, and several of its members

were killed. Then on April 19, 1993, after a 51 day

standoff with the Federal Bureau of Investigation

(FBI), the episode came to a fiery conclusion when

more than 70 Davidians, including 22 children,

died inside the group’s residence.

From any perspective, Waco ranks among the

most significant events in U.S. law enforcement

history. For ATF, it was the largest and most

deadly raid ever conducted. For the FBI, it was an

unprecedented failure to achieve a critical objec-
7

1Dean M. Kelley, Waco: A Massacre and Its Aftermath, First Things,

May 1995, at 22.

2 Ann Devroy, Clinton Team Focuses Damage Control on Waco, Wash.

Post, July 19, 1995, at A12. 3Sue Ann Pressley, Witnesses Say Waco Warnings Went Unheeded,

Wash. Post, July 22, 1995, at A11.

tive—the rescue of dozens of innocent women and

children.

The television coverage and news accounts generated by the media at the scene near Waco presented a troubling picture to Americans. On the

one hand, it seemed clear enough that a Jonestown-like religious cult led by an irrational leader

had brought disaster on itself. On the other hand,

images of the tanks and other military vehicles

gave the impression that the FBI was using excessive force together with military weapons and tactics against U.S. citizens, contrary to our civilian

law enforcement tradition. In the aftermath of the

April 19th fire, government officials, Members of

Congress, and assorted observers called for a thorough review of the matter. Outside the corridors of

power, a mixture of fact, rumor, and suspicion produced a wide variety of lasting impressions and

conspiracy theories.

Both the Justice and Treasury Departments issued detailed written reports many months later.

The Treasury Department Report criticized ATF

personnel, but it exonerated all Department officials. The Justice Department Report found no

fault with any actions of the FBI or any Justice

Department official.

Several congressional committees conducted

hearings in the weeks following the disaster. Unfortunately, little information was available from

administration officials at the time. Representative

Jack Brooks, chairman of the House Judiciary

Committee, promised additional hearings to resolve remaining questions, but none were held.

Several developments in 1994 contributed to the

pervasive view that serious questions about Waco

remained unanswered. The criminal trial of the

surviving Branch Davidians resulted in acquittals

on murder charges. The self-defense arguments

raised at trial and their obvious effect on the jury

encouraged the public’s outcry and desire for accountability. Journalists, investigators, and attorneys involved in the case decried the absence of

candor and independence in the administration’s

reports and demanded a more comprehensive and

detailed inquiry. In addition, widely distributed

video tapes entitled ‘‘Waco: The Big Lie’’ and

‘‘Waco: The Big Lie Continues’’ had a significant

impact on public opinion. Also, many policymakers

read an article published in First Things, written

by Dean Kelly of the National Council of Churches,1 which stirred up considerable speculation

about the ATF’s conduct and the FBI’s use of CS

chemical agent. In short, by the start of the 104th

Congress, the need for a sufficient and thorough

congressional examination of the Waco tragedy

was indisputable.

At the outset of the 104th Congress, both the

Committee on the Judiciary and the Committee on

Government Reform and Oversight indicated in

their formal oversight plans, filed in February

1995, the intention to conduct hearings on the

Waco matter. Representative Bill McCollum, chairman of the Subcommittee on Crime of the Committee on the Judiciary and Representative Bill Zeliff,

chairman of the Subcommittee on National Security, International Affairs, and Criminal Justice of

the Committee on Government Reform and Oversight stated on several occasions that such hearings were a necessary response to the widespread

dissatisfaction with the Federal Government’s follow-up to what happened at the Branch Davidian

residence. The deplorable bombing in Oklahoma

City 2 months later revealed the extent to which

Waco continued to served as a source of controversy for some Americans. With the concurrence

of the Speaker of the House and the chairmen of

the Committees on the Judiciary and Government

Reform and Oversight, the subcommittee chairmen

began to organize comprehensive joint hearings on

the Waco matter. As the July timetable was set for

the hearings, both chairmen hoped a comprehensive investigation, primarily involving testimony

from a wide variety of witnesses presented in public hearings, would lay to rest questions which persisted, assess responsibility for any misconduct,

and ultimately restore full confidence in Federal

law enforcement.

B. OPPOSITION TO THE INQUIRY

Opposition to the Waco hearings was to be expected. The Departments of Justice and Treasury

believed that their respective reports were forthright and complete and that additional scrutiny

would only result in more negative publicity. Clinton administration officials were concerned that

the hearings would cause further political damage.

What was not expected was the extent to which

the administration tried to control potential damage from the hearings. The White House staff assembled a damage control team and retained the

services of John Podesta, a public relations specialist and former White House official who had

worked for Handgun Control, Inc.2 Treasury Secretary Rubin contacted at least one member of the

joint subcommittees, Representative Bill Brewster

of Oklahoma, and requested that he not ask any

questions that might embarrass the administration.3 Also, the Treasury Department flew to

Washington two Texas Rangers who were scheduled to testify before the subcommittees in order to

help them prepare their testimony. The Justice

Department, in concert with the subcommittees’

Democrats, brought firearms recovered from the

charred Davidian compound to Washington to be

used as props.

Perhaps the most disturbing counter-measure

was the charge, made by the President himself,
8

that the hearings were an attack on law enforcement. Quite the opposite was the case. All involved

in the planning and carrying out of the hearings

and the investigation were strong supporters of

Federal law enforcement. All believed that through

airing and analysis of the Waco events by congressional oversight committees were necessary to the

long term credibility and viability of the Federal

law enforcement agencies. The assertion that the

hearings were anti-law enforcement was contrary

to the unambiguous views of Federal law enforcement leaders. Finally, and perhaps the strongest

response to the subcommittees’ critics, is that the

Waco hearings did in fact serve to strengthen public confidence in Federal law enforcement. The

public was clearly reminded that we live in a Nation of laws and no power sits above those laws.

Americans are far more likely to support law enforcement authorities when they know that such

authorities will be held accountable for their actions.

A final issue that arose at the start of the hearings was the extent to which the subcommittees

would consider the character of David Koresh. In

the minds of some, evidence of Koresh’s despicable

behavior would provide sufficient justification for

not scrutinizing the conduct of Federal law enforcement officials. The subcommittees were prepared to stipulate then and now that Koresh was,

on one level, responsible for the death and destruction that occurred at Waco. His actions inside the

Davidian’s religious community were of the vilest

sort. Nevertheless, Koresh was not accountable to

the people’s elected Representatives in Congress as

are Federal law enforcement authorities. Hence

the subcommittees’ inquiry concerned executive

branch conduct, and not that of David Koresh.

C. THE NATURE OF THE INQUIRY

Given the extensive and expanding public concern about the Federal Government’s actions

against the Branch Davidians, and the effect such

concerns were having on the credibility of Federal

law enforcement, the subcommittees determined,

in early 1995, that it would be advisable to hold

hearings as soon as practicable. As a result, rather

than using the hearings as a forum for presenting

the results of a lengthy and completed investigation, it was decided that the hearings would consist of an exhaustive public airing of the issues associated with Waco. These ‘‘discovery hearings,’’

rather than ‘‘presentation hearings,’’ would afford

members of the joint subcommittees, interested

attendees, the media, and C–SPAN audiences an

opportunity to hear from the people who were directly involved in the Waco matter.

The structure of the inquiry consisted of requests for and review of documents before and

during the hearings; a pre-hearing investigation

phase, including numerous interviews with many

of the persons involved; the hearings themselves;

and a post-hearing investigation.

1. Document requests and review

On June 8, 1995, subcommittee Chairmen

McCollum and Zeliff delivered document production requests to the Federal agencies involved at

Waco. The agencies contacted were the Departments of Defense, Justice, and the Treasury. The

White House also received a document request.

The subcommittees took the position that virtually

every Federal agency document associated with

the Waco incident required some level of review.

To review the matter any less thoroughly would

leave lingering doubt as to whether a complete

and comprehensive job had been done.

Despite public commitments and private assurances of cooperation by the relevant departments,

the subcommittees experienced a lack of cooperation which clearly frustrated hearing preparations.

Throughout the month of June and early July, representatives of the White House, and Departments

of Treasury and Justice attempted to narrow the

scope of the subcommittees’ requests and restrict

access to a wide array of information. The first significant documents were delivered only 3 weeks

prior to the hearings, some just days before, and

tens of thousands of others were received after the

hearings had already begun. This ‘‘wait-and-dump’’

strategy rendered meaningful staff review of many

key documents virtually impossible prior to commencement of the hearings.

Moreover, the task of reviewing these documents

was made more difficult by the manner in which

they were presented. The Treasury Department’s

documents were in no apparent order, making the

retrieval of a particular document nearly impossible. In what became symbolic of the administration’s uncooperative attitude experienced by the

subcommittees, it was discovered that the minority, but not the majority, had been provided an

index for locating Treasury documents.

It should be noted that cooperation, particularly

from the Department of Justice, improved considerably shortly before the hearings began and continued throughout the course of the public inquiry.

2. Investigation and interviews

The subcommittees engaged in investigative

interviews, an examination of physical evidence,

and an on-site inspection of the former Branch

Davidian residence as a part of the preliminary inquiries. Both majority and minority staff traveled

to Austin and Waco, TX for a fact-finding trip.

Interviews were conducted with several Branch

Davidians both at the former residence and at the

home of Sheila Martin, widow of Wayne Martin,

who died in the April 19 fire. Former Davidian

Clive Doyle provided a tour of the ruins of the

Davidian residence. Staff also met with members

of the local county sheriff’s office and with FBI

personnel who, among other things, also took them

on a visit to the Davidian residence site.

The staff also had an opportunity to inspect the

physical evidence taken from the ruins of the resi-
9

dence after the fire, much of which had been used

in the criminal trial of surviving Davidians. By

prior agreement with the Justice Department, a

potential witness at the hearings, Failure Analysis

Associates Inc., was to inspect some of the physical

evidence in order to respond to tampering allegations. It was believed that the views of scientists

from Failure Analysis, who had often performed

scientific evaluations for the Federal Government,

including the Justice Department and NASA after

the Challenger explosion, would be beneficial given

public suspicions about the firearms recovered

from the site of the Davidian residence. The inspection would not have damaged the weapons and

was to have been conducted in the presence of all

parties. It was hoped that the inspection would determine whether the Davidians had attempted to

alter legal, semi-automatic weapons by converting

them into illegal, automatic weapons as the ATF

had alleged, and whether any of this evidence had

been altered after it was gathered from the destroyed Davidian residence. When the scientists

arrived in Austin, the Department declined to

make the firearms available to them. The Department agreed instead to conduct the tests itself and

present its findings to the subcommittees. A short

time later, the Department urged, for cost considerations, that the tests not be performed. As a result, no tests were performed on the firearms.

Pre-hearing interviews were held with senior officers of the Texas Rangers, authors of books about

the Waco disaster, personnel in the McLennan

County Sheriff’s office, and officials from the Departments of the Treasury, Justice, and Defense,

ATF, Drug Enforcement Administration, and the

FBI. Also, thousands of pages of materials submitted by outside groups and individuals interested in

Waco were reviewed. Regrettably, the Treasury

Department balked at making ATF agents available for interviews. The Department steadfastly

refused to allow the subcommittee staff to meet

with ATF agents who participated in the raid.

Only the threat of subpoenas secured the appearance of ATF agents at the hearings. The inability

to interview these individuals before public hearings was a significant investigative roadblock.

Finally, the subcommittees’ staff traveled to Fort

Bragg, NC to interview the Army personnel involved with the training of ATF agents in preparation for the raid. Several of the military personnel

involved with the training were not available prior

to the hearings due to duty assignments, however,

other military personnel whom the staff sought to

interview, and who were stationed at Fort Bragg,

were not made available to the subcommittees’

staff for interviews. Disturbingly, all of the military personnel interviewed by the subcommittees’

staff were counseled about the interviews prior to

them by senior commanders, despite requests to

the contrary.

3. Hearings

The plan for the Waco hearings was to receive

testimony under oath from as many persons material to the matter as possible. Thus, nearly 100

witnesses appeared before the joint subcommittees

over a period of 10 days. The hearings included individuals from ATF and the Treasury Department

who played critical roles in the investigation of

David Koresh, and the planning, approval and execution of the February 28 raid. They also included

the key participants from the FBI and the Justice

Department with regard to the 51 day standoff

and the planning, approval, and execution on April

19 of the plan to end the standoff. More than a

dozen experts on issues associated with Waco,

such as fire, riot control agents, and tactical operations testified. The attorneys who represented

Koresh, Davidian Steve Schneider, and several

Davidian survivors of Waco also were among the

witnesses.

The minority was afforded an opportunity to add

witnesses to the panels. Every effort was made to

accommodate the requests received; more than 90

percent of the names submitted by the minority

were added to the witness lists. The administration also requested witnesses to be included. On a

few occasions, these requests conflicted with the

minority’s requests. Again, these desires were accommodated to the greatest extent practicable.

The transcripts of these hearings will serve as a

valuable tool for years to come. Many of the most

significant documents were incorporated into the

record. Many others are gathered in the appendix

to this report. Additionally, the appendix contains

a complete listing of hearing witnesses.

4. Post-hearing investigation

Additional document requests were made after

the hearings to the Departments of the Treasury,

Justice, and Defense. Unfortunately, the lack of cooperation from the Treasury and Defense Departments which existed prior to the hearings continued, delaying release of the subcommittees’ report.

Other investigative activities which occurred

after the hearings included inspection of photographs at the FBI laboratories and interviews with

munitions experts, experts on riot control agents,

and National Guard officials. Numerous written

questions were posed to the Justice, Treasury, and

Defense Departments. For the most part, they

were answered. Legal experts on the Posse Comitatus Act were consulted. Subcommittee staff also

met with the FBI agent who drove one of the armored vehicles involved in the destruction of the

backside of the Davidian residence and other FBI

officials involved at Waco. Finally, several investigative reporters shared information they have

gathered regarding the Waco matter.

D. THE STRUCTURE AND SCOPE OF THE REPORT

The report does not attempt to restate a chronological summary of what happened at Waco. The
10

4 U.S. Dept. of the Treasury, Report of the Department of the Treasury

on the Bureau of Alcohol, Tobacco, and Firearms Investigation of Vernon

Wayne Howell also known as David Koresh 17 (1993) [hereinafter Treasury Department Report]. 5Treasury Department Report at 24.

6 Id. at 26. 7 Investigation Into the Activities of Federal Law Enforcement Agencies

Toward the Branch Davidians (Part 1): Hearings Before the Subcommittee on Crime of the House Committee on the Judiciary and the Subcommittee on National Security, International Affairs, and Criminal Justice of the House Committee on Government Reform and Oversight, 104th

Cong., 1st Sess. 163 (1995) [hereinafter Hearings Part 1]. 8 Id.

9 Hearings Part 1 at 332.

10 Id. 11Treasury Department Report at 21, B–182. 12 Id. at 26. 13 Id. at 27. 14 Id. at 27–29.

administration’s reports, supplemented by several

commercial publications, tell the story fairly well.

Instead, to avoid duplication the report consists of

review, analysis, and, where appropriate, recommendations concerning the major issues raised.

It is structured in the same chronological pattern

as the hearings.

E. ADDITIONAL COMMENTS

If Federal law enforcement actions since the

Waco hearings are a fair indication, then the inquiry has already had a considerably positive effect. The apparently increasing presence of separatist religious or anti-government groups had created a significant new challenge for Federal law

enforcement agencies. Finding the proper balance

between the need to enforce Federal law with the

responsibility to avoid violent confrontations will

continue to be difficult. It is complicated by the

fact that innocent people, especially children, are

so often in harm’s way. Yet, over the past several

months, Federal law enforcement, and the FBI in

particular, has demonstrated an increased level of

tactical patience. This change in policy, combined

with other important reforms instituted by Director Louis Freeh at the FBI and Director John

Magaw at ATF, is to be commended.

II. THE ATF INVESTIGATION

In May 1992, the Austin, TX Office of the Bureau of Alcohol, Tobacco and Firearms was called

by Chief Deputy Daniel Weyenberg of the

McLennan County Sheriff’s Department.

Weyenberg notified the ATF that his office had

been contacted by the local United Parcel Service

regarding a package it was to deliver to the

Branch Davidian residence. The package had broken open and contained firearms, inert grenade

casings, and black powder.4

On June 9, 1992, Special Agent Davey Aguilera

of the Austin ATF office opened a formal investigation. Within a week, Philip Chojnacki, the Special

Agent in Charge of the Houston ATF Office classified the case ‘‘sensitive,’’ thereby calling for a high

degree of oversight from both Houston and Headquarters in Washington, DC.5 Notwithstanding the

priority given to the case, numerous and serious

missteps occurred throughout the investigation

that followed. The most troubling aspects of the

case were the ATF’s overall lack of thoroughness

in its investigation, the ineffectiveness of the undercover operation, and an affidavit in support of

the search and arrest warrants that was replete

with deficiencies.

A. THE MCMAHON COMPLIANCE VISIT

On July 30, Aguilera joined ATF compliance officer Jimmy Ray Skinner to conduct a compliance

inspection of the premises of Henry McMahon,

proprietor of Hewitt Hand Guns. The inspection

revealed that certain AR–15 lower receivers supposedly in McMahon’s inventory were neither on

the premises nor listed in his records as sold.6

McMahon indicated that they were in the possession of David Koresh. McMahon then called

Koresh, who offered to allow the agents to inspect

for possible firearms violations. The agents declined the invitation.7 Shortly thereafter,

McMahon told Koresh that he was suspicious that

an investigation of Koresh and his followers was

underway.8

It is unclear why the ATF did not accept the

offer to do a compliance inspection of Koresh’s firearms. Importantly, the Treasury Report fails to

mention that Aguilera had an opportunity at the

time of the compliance inspection to inspect

Koresh’s firearms. Wade Ishimoto, a reviewer of

the Treasury Department Report, indicated to the

subcommittees that he had not been made aware

of the McMahon compliance visit by the Department of Treasury during his review.9 Mr. Ishimoto

maintained that Koresh’s offer should have been

accepted, presenting an invaluable opportunity to

gather critical intelligence.10 The agents’ decline of

the Koresh offer was a serious mistake.

B. THE INVESTIGATION CONTINUED

Tracing UPS invoices, Aguilera learned that

more than $43,000 worth of firearms (including

AR–15 semiautomatics), firearms parts (including

AR–15 lower receivers), grenade hulls, and black

powder had been shipped to the Davidians’ storage

facility.11 One of Koresh’s neighbors, who had

served in an Army artillery unit, told Aguilera

that he had frequently heard the sound of automatic weapons fire—including .50-caliber fire—

coming from the Davidian residence.12 Aguilera

also learned that in November, a deputy sheriff

had heard a loud explosion at the Davidian residence which produced a cloud of grey smoke.13

Through interviews with former cult members,

Aguilera learned of numerous allegations that

Koresh had had sexual relations with girls younger than 16 years of age.14 These allegations would
11

15 Events Surrounding the Branch Davidians Cult Standoff in Waco,

Texas: Hearings Before the House Committee on the Judiciary, 103d

Cong., 1st sess. (1993). 16Treasury Department Report at 27–28.

17 Id. at 187. 18 Id. 19Dick J. Reavis, The Ashes of Waco 67 (1995). 20 Id. at 69. 21 Hearings Part 1 at 796. 22Treasury Department Report at 52. 23 United States v. Branch, et al., Case No. W–93–CR–046 (2) (3) (4)

(5) (6) (7) (8) (9) (10) (11) & (12) (W.D. Tex. 1994). 24 ATF Surveillance Log. 25 Hearings Part 1 at 807.

later feature prominently in Aguilera’s affidavit in

support of the search and arrest warrants.

In December 1992, after reviewing all of the

available evidence associated with the Koresh investigation in ATF headquarters in Washington,

ATF decided they did not yet have probable cause

to support a warrant. Director Higgins stated:

‘‘[W]e went out and got more information and

came back in February . . . . We didn’t have it

[probable cause] until mid-February.’’ 15 As part of

its effort to develop probable cause and to gather

additional intelligence, on January 10, 1993 the

ATF set up surveillance cameras in an undercover

house across from the Davidian residence. The

surveillance produced no additional evidence of

criminal activity. Former Davidians were interviewed in December 1992 and January 1993.

Among those interviewed were three members of

the Bunds family, all of whom had left the

compound before 1992. The events that were described by the Bunds occurred prior to 1992,16 and

the information they provided was so stale as to be

of little or no value.

Importantly, the only activity mentioned in the

affidavit involving the Branch Davidians that occurred between December 1992 and February 1993

was Agent Rodriguez’s undercover visits to the

Davidian residence. The visits consisted of Koresh

speaking to Rodriguez about Second Amendment

rights, Koresh showing a tape of alleged ATF

abuses, and the two men shooting legal firearms

at the compound’s range. It appears that

Rodriguez discovered no evidence during his visits

that would have contributed to a finding of probable cause, or that would have provided valuable

information to guide subsequent ATF action. Nevertheless, in a case of such potential danger that

it was designated ‘‘sensitive’’ and ‘‘significant,’’ the

ATF proceeded with its February raid.

Throughout the ATF’s investigation decisions

were made and actions were taken which demonstrated a reckless disregard for the value of

well-developed intelligence. Furthermore, the haphazard manner in which the investigation was

pursued repeatedly exposed the lack of adequate

command, control and communications processes

to support such an operation.

C. UNDERCOVER OPERATION

On January 11, 1993, eight ATF agents moved

into a small house directly across from the front

drive of the Davidian residence, posing as college

students attending the nearby Texas State Technical College. Through a series of mistakes, the

ATF appeared to lose the security of its undercover operation. At least some of the breaches of

security were so serious, and obvious, that they

should have been recognized as such by ATF, and

become the basis for modifying the nature and

timing of any subsequent action against Koresh.

There is substantial evidence to suggest that

Koresh and the Davidians knew that the undercover house established by the ATF across the

street from the compound was occupied by law enforcement officials. Koresh told his next door

neighbor that he believed that the self-identified

‘‘college students’’ were too old to be actual college

students, with cars too new and expensive to be

owned by college students. He commented that

they were probably Federal agents.17 The agents

were also informed by one of Koresh’s neighbors

shortly after they began surveillance that Koresh

suspected they were not what they claimed to be.18

On one occasion, the Davidians visited their new

neighbors in the undercover house to deliver a six

pack of beer, but the occupants of the house would

not let them in.19 Finally, Koresh complained to

the local sheriff that the UPS delivery man was an

undercover police officer.20 Koresh commented

that he did not appreciate being investigated. At

the hearing, Agent Rodriguez testified that ‘‘all of

[the undercover ATF agents], or myself knew we

were going to have problems. It was just too—too

obvious.’’ 21

The undercover operation was also undermined

by its limited nature: The 24-hour-a-day surveillance was only sustained from January 11 through

January 19, at which time Agent Chuck Sarabyn,

the ATF tactical commander, ended the constant

surveillance and redirected the mission toward infiltration of the compound.22 It was later determined at trial that during the period of constant

surveillance the agents within the house did not

know what Koresh looked like. Rodriguez testified

at trial that the only picture identification that the

agents possessed was ‘‘a driver’s license picture of

him, which was not that good. That was one reason we [later] needed to make contact with the

people inside the compound, so we could identify

him. I myself did not know what he looked like [at

the time of surveillance].’’ 23 Significantly, the surveillance log cites two occasions when a white

male jogged up and down the road on which the

undercover house was located.24 If this jogger had

been Koresh, according to Rodriguez’s trial testimony, the agents would not have known it. The

lack of an effective surveillance operation was further demonstrated through the ATF’s failure to develop nearly 900 photographs taken from the undercover house or to review videotapes of the

movements of the Davidians.25 This evidence represented an opportunity to develop critical intel-
12

26 U.S. Const. amend IV.

27 United States v. Leon, 468 U.S. 897 (1984). 28 Illinois v. Gates, 462 U.S. 213, 238 (1983). 29 Id. 30 All of the constitutional scholars contacted by the subcommittees

agreed with the conclusion that there was probable cause in support of

the warrants. See Hearings Part 1 at 818 (Letter from Albert W.

Altschuler, Wilson-Dickinson Professor of Law, University of Chicago to

Rep. John Conyers, Jr. (July 13, 1995)). 31 Affidavit of Davey Aguilera in support of arrest warrant, at 14

[hereinafter Aguilera Affidavit]. [See documents produced to the subcommittees by the Department of the Treasury T004700–T004714 at Appendix [hereinafter Treasury Documents]. The Appendix is published

separately.]

ligence regarding the habits and movements of

compound residents, including Koresh.

The lack of such basic and critical intelligence

clearly undermined the ability of the undercover

operation to fulfill its mission. The operation’s failure to develop useful intelligence after 8 days of

continuous surveillance should not have led to the

termination of the surveillance, but rather to its

modification and prolongation. Given the potential

for danger to agents and those within the

compound and the dearth of intelligence, the decision to end around-the-clock surveillance was seriously flawed. Significantly, all of the ATF supervisory agents involved in the planning of the operation believed the continuous surveillance continued beyond the date it was actually ended. This

mistaken belief both confirms that the termination

of the surveillance was ill-advised, and highlights

the wholly inadequate command, control and communications processes utilized by ATF throughout

the operation. The eyes and ears were poorly utilized, and what intelligence they did supply was

poorly used.

D. FAILURE TO COMPLY WITH ‘‘SENSITIVESIGNIFICANT’’ PROCEDURES

As noted in the Treasury Report, the Koresh investigation was classified as ‘‘sensitive’’ and ‘‘significant’’ within a week of its formal initiation on

June 9, 1992. Such a classification is intended to

ensure a higher degree of involvement and oversight from both the ATF Special Agent in charge

and ATF headquarters. Yet, in spite of this designation, the agents in charge of the investigation

received minimal oversight in developing the investigation and raid, with important elements of

the plan, such as whether or not to abort the raid

if the element of surprise was lost, apparently not

being understood by the agents in charge. In view

of this designation, the lack of knowledge on the

part of the Special Agent in Charge, and Headquarters, throughout the investigation—including

the undercover operation—is striking. The ‘‘sensitive/significant’’ designation makes ATF’s failure

to have implemented a process for continually reviewing intelligence and modifying plans accordingly a glaring omission.

E. THE AFFIDAVIT IN SUPPORT OF THE WARRANTS

The subcommittees examined the constitutionality of the search and arrest warrants, carefully reviewing the information contained in the supporting affidavit.

The fourth amendment to the Constitution provides: ‘‘No warrants shall issue, but upon probable

cause, supported by oath or affirmation, and particularly describing the place to be searched, and

the persons or things to be seized.’’ 26 The Supreme

Court has ruled that, in order for this protection

to be enforced, a warrant may issue only upon the

determination of a neutral and detached magistrate that probable cause exists to believe that

the search will yield evidence of criminality.27 The

standard articulated in Illinois v. Gates, which

guides a magistrate’s probable cause determinations, is whether ‘‘there is a fair probability that

contraband or evidence of a crime will be found in

a particular place.’’ 28 Such a determination is, in

the Supreme Court’s words, a ‘‘practical, commonsense decision whether, given all the circumstances set forth in the affidavit before the

magistrate . . . there is a fair probability that the

contraband or evidence of a crime will be found in

a particular place.’’ 29

When applying this common sense standard to

the circumstances of the ATF investigation, the affidavit appears to have contained sufficient evidence of violations of Federal firearms law to support the magistrate’s decision to issue the warrants.30 There were substantial purchases of AR–

15 semiautomatics and AR–15 lower receivers, grenade hulls, and black powder. A neighbor, who

had served in an Army artillery unit, testified that

he had frequently heard the sound of automatic

weapons fire. A deputy sheriff testified that he had

heard a loud explosion at the Davidian residence

which produced a cloud of grey smoke. Taken together, this information provided a sufficient basis

for finding probable cause to issue the warrants.

While the warrants may have met the minimal

standard of constitutional sufficiency, the affidavit

supporting the warrants contained numerous

misstatements of the facts, misstatements of the

law, and misapplication of the law to the facts,

and serves as a de facto record of a poorly developed and mismanaged investigation. The affidavit

included misleading and factually inaccurate statements, contained substantial irrelevant and confusing information, and failed to properly qualify

witnesses’ testimony when obviously called for

based on their backgrounds. Consequently, the affidavit gave the appearance that the ATF was not

going to let questionable facts or evidence stand in

the way of moving forward on their timetable.

The affidavit provided and sworn to by Aguilera

contained numerous errors and misrepresentations, which, taken together, create a seriously

flawed affidavit. The affidavit misstated that

Koresh possessed a British Boys anti-tank .52 caliber rifle, when in fact Koresh owned a Barret light

.50 firearm.31 Possession of the British Boys would
13

32 26 U.S.C., Ch. 53. 33 Aguilera Affidavit at 5. 34 Aguilera Affidavit at 12. 35See 26 U.S.C. § 5845.

36Treasury Department Report at 23–24. 37 Aguilera Affidavit at 14.

have been a felony 32 while possession of the Barret was completely legal. The affidavit misstated

that the M16 parts kits from Nesard company

were two CAR and two EZ kits which contained all

the parts of an M16 machine gun except for the

lower receiver unit, when, in fact, the Nesard

parts kits do not contain the auto sear and pin

which are absolutely necessary to convert semi

automatic weapons to machine guns.33 The affidavit failed to mention that grenade hulls like those

cited in the affidavit to help establish probable

cause had been sold by the Davidians in the past

at gun shows as paper weights and mounted on

plaques. Finally, the affidavit was misleading by

reporting that Deputy Sheriff Terry Fuller was in

the vicinity of the compound when he heard a loud

explosion, but then failed to report that Fuller investigated and learned that the Davidians were

using dynamite for construction.

Former Davidian Marc Breault provided much of

the information contained in the ATF’s affidavit.

Yet, nowhere in the affidavit is it mentioned that

Breault left the compound as an opponent of

Koresh, a fact certain to call into question

Breault’s motives. Nor does the affidavit mention

that he is blind. On the contrary, the affidavit implies that he was a compound bodyguard. It states

that Breault ‘‘participated in physical training and

firearm shooting exercises conducted by Howell.

He stood guard armed with a loaded weapon.’’ 34

The affidavit also contained misapplications of

firearms law. The affidavit alleged the violation of

one statute: 26 U.S.C. § 5845(f). This statute, however, merely defines ‘‘destructive device.’’ It does

not establish any crime. It is 26 U.S.C. § 5861

which establishes crimes related to destructive devices. The affidavit also confused the term ‘‘explosive’’ with the term ‘‘explosive device,’’ a term

which does not appear in Federal law.

In the affidavit, Aguilera misstated that a ‘‘machinegun conversion kit’’ was a combination of

parts ‘‘either designed or intended’’ to convert a

semiautomatic into an automatic firearm. In fact,

Federal law defines a conversion kit to be a combination of parts ‘‘designed and intended’’ to convert a semiautomatic into an automatic.35

In the affidavit, Aguilera also misstated that

Koresh had ordered M–16 ‘‘EZ kits.’’ The kits to

which Aguilera was referring are called ‘‘E2’’ kits.

Furthermore, the E2 kit is a spare parts kit, not

a conversion kit. It contains spare parts which fit

either a semiautomatic Colt AR–15 Sporter or an

automatic Colt M–16 automatic. Because it is not

a conversion kit, the E2 kit is not regulated by

Federal law. Yet the affidavit implies that the kit’s

purpose is for converting semiautomatics into

automatics. On this point, the Treasury Department Report is mistaken as well. While it correctly

named the E2 kit, it wrongly asserted that ‘‘the

parts in the kit can be used with an AR–15 rifle

or lower receiver to assemble a machinegun . . .

The parts in the E2 kit also can be used to convert

an AR–15 into a machinegun.’’ 36 These assertions

are false. The Treasury Department regulates genuine conversion kits as if they were themselves

machineguns. It does not regulate E2 kits.

Intimating that Koresh was converting AR–15

Sporters and semiautomatic copies of AK–47’s into

automatics, Aguilera included evidence of purchases made by Koresh from a South Carolina

Company which was known to sell parts needed to

convert semiautomatics of the type that Koresh

possessed into automatics. Aguilera failed even to

allege that Koresh purchased parts from this company which would have allowed the conversion of

semiautomatics into automatics. Nowhere in the

affidavit is there evidence that Davidians were

manufacturing their own automatic sears, or modifying the lower receivers of semiautomatics, both

of which would have been violations of firearms

laws.

The affidavit was misleading in that it falsely

referred to ‘‘clandestine’’ publications. The affidavit

reported that in June 1992, a witness had ‘‘observed at the compound published magazines such

as, the Shotgun News and other related clandestine magazines.’’ 37 Far from clandestine, Shotgun

News has a circulation of about 165,000. Subscriptions are available by mail or telephone. The Austin, TX ATF office—Aguilera’s home office—was a

subscriber.

F. FINDINGS CONCERNING THE ATF INVESTIGATION

1. The ATF’s investigation of the Branch

Davidians was grossly incompetent. It lacked

the minimum professionalism expected of a Federal law enforcement agency. Among the failures

of the investigation were:

• The failure to accept Koresh’s offer to inspect the firearms held at the Branch

Davidian residence. It is unclear why the ATF

did not accept the offer to conduct a compliance inspection of Koresh’s firearms. What is

clear is that the agents’ refusal of Koresh’s invitation was the first of a series of instances

in which the ATF rejected opportunities to

proceed in a non-confrontational manner. The

agents’ decision to decline Koresh’s offer was a

serious mistake.

• The failure to recognize obvious breaches of

surveillance security. Some of these breaches

were so serious and obvious that they should

have been recognized by the ATF agents and

commanders involved, and should have become the basis for modifying the nature of the

surveillance.
14

38 Hearings Part 1 at 416. 39 Id. at 123. 40 Id.

• The failure to analyze intelligence gathered

during the undercover operation, including

more than 900 photographs of activities

around the Branch Davidian residence. These

photographs could have led to the development of critical intelligence regarding the habits and movements of the Davidians, and

Koresh in particular.

• The premature termination of the undercover operation. The operation’s failure to develop useful intelligence after 8 days of continuous surveillance should not have led to the

termination of the surveillance, but rather to

its prolongation. Given the potential for danger to agents and those within the residence,

and the dearth of intelligence, the decision to

end around-the-clock surveillance was seriously flawed.

2. While the ATF had probable cause to obtain the arrest warrant for David Koresh and

the search warrant for the Branch Davidian

residence, the affidavit filed in support of the

warrants contained numerous false statements. The ATF agents responsible for preparing

the affidavits knew or should have known that

many of the statements were false.

3. David Koresh could have been arrested

outside the Davidian compound. The ATF deliberately chose not to arrest Koresh outside the

Davidian residence and instead determined to use

a dynamic entry approach. In making this decision

ATF agents exercised extremely poor judgment,

made erroneous assumptions, and ignored the perils of this course of action which they should have

foreseen.

G. RECOMMENDATIONS

1. Whenever it is feasible to achieve its objectives, the ATF should use less

confrontational tactics. The ATF had an opportunity to search the Davidian residence at the invitation of Koresh. Koresh was off the property

and subject to the capture of law enforcement on

numerous occasions before the raid. The ATF

should have taken advantage of these less

confrontational opportunities. The ATF should

pursue such alternatives in the future.

2. Federal law enforcement agencies should

verify the credibility and the timeliness of

the information on which they rely in obtaining warrants to arrest or search the property

of an American citizen. The affidavits on which

the arrest and search warrants of Koresh were ordered contained information provided to the ATF

by informants with obvious bias toward Koresh

and the Davidians. In addition, much of the information was stale, based on experiences years before the investigation. The ATF should obtain

fresh and unbiased information when relying on

that information to arrest or search the premises

of the subjects of investigations.

3. The ATF should make every effort to obtain continuous and substantial intelligence

and should ensure that the efforts to obtain

such intelligence are not hindered by

breaches of security. The ATF had a broken and

insecure intelligence operation. Gaps in the surveillance and breaches of the security of undercover operations jeopardized the investigation and

the raid. The ATF should take precautions to ensure that these breaches do not occur in the future.

4. If the false statement in the affidavits

filed in support of the search and arrest warrants were made with knowledge of their falsity, criminal charges should be brought

against the persons making the statements.

III. PLANNING AND APPROVAL OF THE RAID

The ATF had a variety of options in the manner

in which it could have served the arrest and

search warrants on Koresh. These options included

luring Koresh off the Davidian residence, arresting

Koresh while he was off the Davidian property,

surrounding the Davidian residence and waiting

for Koresh to surrender himself and consent to the

search, and executing a ‘‘dynamic entry’’ style raid

into the residence. The ATF chose the dynamic

entry raid, the most hazardous of the options, despite its recognition that a violent confrontation

was predictable. The decisions regarding the raid

were made without the participation of either Secretary of the Treasury Lloyd Bentsen or the Deputy Secretary of the Treasury Roger Altman.

A. WAS ‘‘SHOW TIME’’ EVEN NECESSARY?

The subcommittees received evidence of numerous opportunities to arrest Koresh away from the

residence, thereby reducing the likelihood of violence. The failure to make use of these opportunities raises the question of the dynamic entry’s necessity. ATF officials offered at least three different reasons for this critical decision.

ATF Special Agent Phillip Chojnacki, the overall

commander of the raid, testified that Koresh could

not be arrested outside the residence because the

intelligence from the undercover house was that

he rarely left the residence.38 ATF did not want

the tactical problem of having agents on standby

indefinitely while they waited for the rare occurrence of Koresh going into town.

Yet the testimony before the subcommittees revealed that Koresh left the Davidian residence at

least once a week during January and February.39

David Thibodeau, who lived at the Branch

Davidian residence but did not consider himself to

be a member of the Branch Davidian religious

community, testified that Koresh was a regular

jogger.40 It was also revealed during the trial that

Koresh had left the residence on January 29, 1993,
15

41 Id. at 124. 42 Id. 43 Id. at 309–312. 44 18 U.S.C. § 3142(f). 45 Hearings Part 1 at 221–222. 46 Id. at 595. 47 James D. Tabor & Eugene V. Gallagher, Why Waco? 7–10 (1995). 48 Hearings Part 1.

49 U.S. Dept. of the Treasury, Report of the Department of the Treasury on the Bureau of Alcohol, Tobacco, and Firearms Investigation of

Vernon Wayne Howell also known as David Koresh 29 (1993) [hereinafter Treasury Department Report]. 50 Investigation Into the Activities of Federal Law Enforcement Agencies Toward the Branch Davidians (Part 3): Hearings Before the Subcommittee on Crime of the House Committee on the Judiciary and the

Subcommittee on National Security, International Affairs, and Criminal

Justice of the House Committee on Government Reform and Oversight,

104th Cong., 1st Sess. 300 (1995) [hereinafter Hearings Part 3]. 51 Id. 52Treasury Department Report at 67–68. 53 Hearings Part 1 at 757, 805.

to conduct business at a machine shop.41 Finally,

the manager at the Chelsea Bar and Grill in Waco

stated that they served Koresh about once a week

through February.42

ATF agents next explained that it did not make

practical sense to arrest Koresh outside because he

would immediately be released and would be back

at the residence. The window was simply too narrow.43 This answer also lacked credibility since

Federal law provides that the arrestee can be held

for 3 days upon motion of the government.44

Finally, ATF officials testified at the hearings

that they abandoned the idea of trying to arrest

Koresh outside the residence because their primary goal was to get inside to conduct a search.

These officials maintained that it was preferable to

attack the residence by surprise and get Koresh

and the guns at the same time.45 However, the

ATF had developed its own scheme to lure Koresh

off the complex. The ruse was proposed to Joyce

Sparks, the social worker who had conducted an

earlier child protection investigation at the Branch

Davidian residence. Sparks was to contact Koresh,

who she had come to know relatively well, and

make an appointment with him to be held in her

office. While Sparks agreed to cooperate with the

ATF, Sparks’ supervisor refused to approve the

ruse tactic.46

B. WAS THE VIOLENT OUTBURST PREDICTABLE?

The record of the subcommittees’ investigation

shows that persons who through contact and experience became familiar with the belief system and

the authoritarian structure of the Branch

Davidians could have predicted a violent resistance by the Davidians to a mass law enforcement

action. The Branch Davidians predicted a violent

apocalypse, a vision that followers believed be necessary to go to heaven.47

The ATF investigative agents interviewed

Sparks, who had kept lines of communication open

between Koresh and herself even after the end of

her Child Protective Services investigation. During

their conversations, Koresh would often provide

lengthy presentations of his religious beliefs.

Sparks developed an understanding of how Koresh

thought and how he was viewed within the Branch

Davidian group at the residence. When ATF

sought her opinion about the raid, she stated that

the Branch Davidians believed that Koresh was

the Lamb of God and that they would protect him

to the death. ‘‘They will get their guns and kill

you,’’ Sparks recalls saying.48

The ATF also received information from Marc

Breault, a former Branch Davidian and resident at

Mount Carmel, the Davidians’ home.49 Contact between ATF and Breault was made during December 1992. During that time and up to the time of

the raid, the former Branch Davidian provided information about the Davidians and Koresh in particular, including his past correspondence. In a

paper prepared by Breault and provided to the

ATF, a recent history of the Branch Davidians recounts the group’s views that the world will end in

a final violent battle.

C. THE PREDISPOSITION TO DYNAMIC ENTRY

An examination of ATF’s timeline in the Waco

investigation and raid planning activities reveals

that planning for a military style raid began more

than 2 months before undercover and infiltration

efforts even began.

1. The source of the predisposition

a. The culture within the ATF

Management initiatives, promotional criteria,

training, and a broad range of other cultural factors point to ATF’s propensity to engage in aggressive law enforcement. Senior officials from other

law enforcement agencies have commented on the

ATF raid. Several have informed the subcommittees that their organizations would not have handled the execution of the Branch Davidian search

warrants in the aggressive way chosen by ATF.50

For example, Jeffrey Jamar, the FBI Special

Agent-in-Charge of the Waco standoff, was asked

about the FBI’s approach to such a circumstance.

He stated that he ‘‘would not have gone near the

place with 100 assault weapons.’’ 51

b. The Waco Tribune-Herald’s ‘‘Sinful Messiah’’

One factor affecting ATF’s decision to employ a

dynamic entry was the impending release of a

newspaper story about Koresh and the Davidians

which revealed the Federal law enforcement investigation then underway. The Waco Tribune-Herald

had planned to release a series of articles on David

Koresh in early 1993.52 Fearing publication of the

article, ATF hastened its plans to serve the arrest

and search warrant. It was unclear, however, how

Koresh would react to the story. In fact, ATF Special Agent Robert Rodriguez suggested that the

newspaper article did not upset Koresh.53
16

54 Id. at 519–520. 55 Id. at 566. 56 Id. at 566–567.

2. Raid approval and lack of Treasury Department

oversight of ATF

Testimony received during the hearings established that there was no process through which

Treasury Department officials were able to review

pending ATF matters prior to their reaching a crisis stage. In the investigation of Koresh, there was

no oversight by Treasury over the ATF’s planning

and execution of the raid until approximately 48

hours before the raid occurred.54 Testimony revealed that, even though Bentsen had been Treasury Secretary for approximately 1 month at the

time of the ATF raid, and Altman had been serving as Deputy Secretary for the same time period,

ATF Director Steven Higgins had never met either

of them, let alone briefed them regarding the investigation and planned raid. This point was established at the hearings during the questioning of

Higgins by Representative Ed Bryant.

Mr. BRYANT: When did you first meet

with the Secretary to discuss anything

about your agency, the ATF?

Mr. HIGGINS: I don’t remember any

briefings with the Secretary. I haven’t

gone back to look at my documents. Probably in that first month, month and a

half, I don’t remember any meetings with

him. The only interaction we really had

during the transition would have been

with Mr. Simpson.

Mr. BRYANT: Are you saying that you

never had met with Secretary Bentsen

prior to this point?

Mr. HIGGINS: I can’t remember having

gone to a staff meeting while he was there

. . . I don’t remember specifically today

having been at one with him.

Mr. BRYANT: Had you ever met with his

deputy, Mr. Altman, before this raid?

Mr. HIGGINS: I don’t believe I knew Mr.

Altman until then. I knew who he was,

obviously.

Mr. BRYANT: Well, I am a little confused

here. You are saying that you were the director of the ATF, which we all know is

very significant, powerful element of the

Department of Treasury, and you had not

met with your ultimate boss, the Secretary, for 30 days or so?

Mr. HIGGINS: I don’t believe so, other

than maybe to shake hands, and I don’t

even remember doing that. It is interesting that those who think there is some

giant conspiracy in the government don’t

realize how little we knew each other.55

Under Congressman Bryant’s further questioning,

Higgins testified that there was no procedure in

place for the director of the ATF to apprise the

Secretary or Deputy Secretary of the ATF’s plans.

Mr. BRYANT: Was there any process or

procedure available to you as the Director

of the ATF to brief either the Deputy or

the Secretary?

Mr. HIGGINS: I could have called them

and said, yes, I would like to brief you on

something. I think they were accessible,

yes.

Mr. BRYANT: But there was no routine

process? This was no regularly done at

that point?

Mr. HIGGINS: No routine process, although most secretaries at some point set

up a system where there is a regular, either every week or every 2 weeks, meeting with bureau heads.56

The testimony before the subcommittees consistently depicted a Treasury Department that treated

ATF as its lowest priority. Department officials repeatedly demonstrated a lack of interest in even

major ATF actions, such as that of February 28,

1993. The Department maintained a culture that

perceived law enforcement as, at best, a peripheral

part of its mission, according the ATF correspondingly little attention. This point was brought out

during the hearings through questioning by Representative Bill McCollum, co-chairman of the subcommittees, of former Treasury Secretary Bentsen

about his knowledge of the raid prior to February

28, 1993.

Mr. MCCOLLUM: When did you first

learn of the raid or any plan for that raid?

Mr. BENTSEN: I was in London at my

first meeting with G–7 with the Ministers

of Finance and was very much involved in

that one. I came back, to the best I can recall, some time early Sunday morning on

a night flight from London, and in turn I

did not find out about the raid, to the best

of my memory, until early Sunday evening

and that is the first knowledge I had of it

at all.

Mr. MCCOLLUM: In other words, there

was no discussion with you, no information passed to you prior to the time of the

raid that it was anticipated or that it

might exist or any nature——

Mr. BENTSEN: That is correct.

Mr. MCCOLLUM: Isn’t it a little surprising one of the largest or one of the largest

raids in the BATF’s history was taking

place, and the Secretary of the Treasury,

the chief of all of the law enforcement of

the ATF was not notified?

Mr. BENTSEN: I can well understand

when I was abroad attending an international meeting involving questions of
17

57 Id. at 515–516. 58 Id. at 516. 59Treasury Department Report at 179. 60 Hearings Part 1 at 562, 563. 61Treasury Department Report at 24.

monetary exchange rates and some very

serious subjects at that point, that others

within the Department were handling the

situation.

Mr. MCCOLLUM: But didn’t you keep in

contact with your office during the time

you were over there? Weren’t there telephone calls?

Mr. BENTSEN: Of course.

Mr. MCCOLLUM: Nobody in the law enforcement division thought you ought to

be disturbed about this incident and

asked about it. I understand.57

Bentsen’s responses reveal that throughout the

planning of the raid, including the critical days

just prior to its initiation, the Treasury Secretary

knew nothing about it. Neither he nor his deputy

knew anything about an imminent law enforcement raid—one of the largest ever conducted in

U.S. history—being managed by his Department,

which would endanger the lives of dozens of law

enforcement agents, women, and children.

Other testimony from the hearings further demonstrated insufficient oversight by Treasury Department officials of ATF planning. At the hearings before the subcommittees, Representative

McCollum questioned Christopher Cuyler, who in

February 1993 was the ATF’s liaison to the Treasury Department. Cuyler testified that no Treasury

officials had knowledge about the potential for the

raid until February 26—2 days before the raid was

initiated.58

The inadequate oversight of the ATF by Treasury Department officials was further evidenced in

the final communications between Treasury and

ATF in the day before the raid. The Department

maintains that it conditioned the raid on ensuring

the element of surprise was preserved. As stated

in the Treasury Department Report, Department

officials assured that those directing the raid were

under express orders ‘‘to cancel the operation if

they learned that its secrecy had been compromised. . . .’’ 59 Yet, ATF officials, including

Higgins, Cuyler, and the agents in charge of the

raid testified that it was not at all clear to them

that Treasury wanted the raid canceled if the element of surprise was lost.60

D. FAILURE TO COMPLY WITH ‘‘SENSITIVESIGNIFICANT’’ PROCEDURES

As noted in the Treasury Department Report,

the Koresh investigation was classified as ‘‘sensitive’’ and ‘‘significant’’ within a week of its formal

initiation on June 9, 1992.61 Such a classification

is designed to ensure a higher degree of involvement and oversight from both the ATF Special

Agent in charge and ATF headquarters, yet this

designation was ignored in practice. In view of this

designation, the lack of knowledge on the part of

the Special Agent in Charge and ATF Headquarters throughout the investigation, including

the undercover operation, is striking. The

‘‘sensitive/ significant’’ designation makes ATF’s

failure to have implemented a process for continually reviewing intelligence and modifying plans

accordingly a glaring omission.

E. FINDINGS CONCERNING THE PLANNING AND

APPROVAL OF THE RAID

1. The subcommittees conclude that the

ATF was predisposed to using aggressive,

military tactics in an attempt to serve the arrest and search warrant. The ATF deliberately

choose not to arrest Koresh outside the Davidian

residence and instead determined to use a dynamic entry approach. The bias toward the use of

force may in large part be explained by a culture

within ATF.

2. The ATF did not attempt to fully understand the subjects of the raid. The experience

of Joyce Sparks, Marc Breault, and ATF undercover agent Robert Rodriguez demonstrate that

persons who spent a reasonable amount of time

with Koresh, even without professional training

specific to persons such as Koresh, understood

with some predictability the range of behaviors

that might result from a military style assault on

the Branch Davidians.

3. Treasury Secretary Lloyd Bentsen and

Deputy Secretary Roger Altman acted highly

irresponsibly and were derelict in their duties in failing to even meet with the Director

of the ATF in the month or so they were in

office prior to the February 28 raid on the

Davidians residence, in failing to request any

briefing on ATF operations during this time,

and in wholly failing to involve themselves

with the activities of the ATF.

4. Senior Treasury Department officials

routinely failed in their duty to monitor the

actions of ATF officials, and as a result were

uninvolved in the planning of the February

28 raid. This failure eliminated a layer of scrutiny

of the plan during which flaws might have been

uncovered and corrected.

IV. RAID EXECUTION

There is no question that the ATF raid executed

on February 28, 1993, went fatally wrong. While

many factors played a role in this, one stands

apart as the principal reason why four ATF agents

were killed and many others wounded. Simply put,

the Davidians knew that the ATF agents were

coming. And while the ATF expected to serve a

search warrant for Koresh and search the residence, the Davidians apparently feared the worst

that law enforcement agents or military troops

were coming to arrest all of them or, perhaps kill

them. In any event, some of the Davidians armed
18

62 U.S. Dept. of the Treasury, Report of the Department of the Treasury on the Bureau of Alcohol, Tobacco, and Firearms Investigation of

Vernon Wayne Howell also known as David Koresh 85 (1993) [hereinafter Treasury Department Report]. 63Lewis Gene Barber, a retired lieutenant with the Waco Sheriff’s Department, informed the subcommittees during its pre-hearing investigation into these events that local police suspected that there was an ‘‘informant’’ at the ambulance company who had been tipping off the local

television station. He stated that on several prior occasions, when police

had placed the ambulance company on standby, the station sent a camera crew to the site of the police activity, even though the police had not

disclosed it to the station. 64Treasury Department Report at 85.

65 Id. at 84–89. 66 Id. at 89. 67 Id. at 89. 68 Id.

themselves and lay in ambush, waiting for the arrival of the ATF agents.

A. RODRIGUEZ AND THE ‘‘ELEMENT OF SURPRISE’’

1. How the Davidians knew the ATF was coming

The Davidians learned of the ATF plan to raid

their residence when a local television cameraman

happened to get lost on his way to the Branch

Davidian residence.62 The cameraman had been

dispatched to the residence by the local television

station because the news director of the station expected the ATF raid would occur on that day. He

suspected this because an employee of the local

ambulance service had informed him that a Fort

Worth-based trauma flight company had been put

on standby along with the local ambulance company.63

While the cameraman was sitting by the side of

the road attempting to locate the Davidian residence, David Jones, a Branch Davidian and a letter carrier with the U.S. Postal Service, pulled up

behind the cameraman and asked whether he was

lost. The cameraman introduced himself and asked

for directions to ‘‘Rodenville,’’ the name by which

many local residents referred to the Branch

Davidian residence. After Jones pointed to the residence, which was in sight of where the two men

were stopped, Jones stated that he had read about

the group in the paper and ‘‘thought that they

were weird.’’ The cameraman, believing that Jones

was not affiliated with the Davidians, warned him

that some type of law enforcement action was

going to take place at the residence, that it was

likely to be a raid of some type, and that there

may be shooting.64 After the cameraman departed,

Jones drove directly to the residence and informed

the Davidians.

2. The undercover agent

On the morning of February 28, 1993, at approximately 8 a.m., Robert Rodriguez, the ATF

agent who had gone undercover into the Branch

Davidian residence on several prior occasions,

went to meet with David Koresh one final time.

While Koresh and Rodriguez were engaged in a

Bible study session, David Jones arrived at the

residence and told his father, Perry Jones, what

had happened. The elder Jones then informed

Koresh that he had a telephone call. Koresh, at

first, ignored the statement but, when Perry Jones

mentioned that it was long distance from England,

Koresh left the room to speak with Jones.65 At this

point, David Jones relayed to Koresh his discussion with the television station cameraman.

a. The Treasury Department Report version

of events

The Treasury Department Report summarizes

the subsequent events as follows:

Upon Koresh’s return, Rodriguez could

see that he was extremely agitated, and

though he tried to resume the Bible session, he could not talk and had trouble

holding his Bible. Rodriguez grabbed the

Bible from Koresh and asked him what

was wrong. Rodriguez recalls that Koresh

said something about, ‘‘the Kingdom of

God,’’ and proclaimed, ‘‘neither the ATF

nor the National Guard will ever get me.

They got me once and they’ll never get me

again.’’ Koresh then walked to the window

and looked out, saying, ‘‘They’re coming,

Robert, the time has come.’’ He turned,

looked at Rodriguez and repeated,

‘‘They’re coming Robert, they’re coming.’’ 66

According to the Treasury Department Report,

Rodriguez went first to the undercover house announcing to the agents there and to James

Cavanaugh, deputy tactical coordinator of the ATF

operation, that Koresh was agitated and had said

the ‘‘ATF and the National Guard were coming.’’ 67

The report states that Cavanaugh asked Rodriguez

whether he had seen any guns, had heard anyone

talking about guns, or had seen anyone hurrying

around. Rodriguez responded in the negative to all

three questions. Cavanaugh then told Rodriguez to

report his observations to Chuck Sarabyn, the tactical coordinator for the raid.68

The Treasury Department Report states that

Rodriguez called Sarabyn at the command post

telling him that Koresh was upset, that Koresh

had said the ATF and the National Guard were

coming, and that as Rodriguez left Koresh was

shaking and reading the Bible. The report continues that Sarabyn then asked Rodriguez a series of

questions from a prepared list provided by the tactical planners concerning the presence of weapons,

whether there had been a call to arms, and other

preparations the Davidians were making, to which

Rodriguez responded in the negative to each question.

The Treasury Department Report then notes

that Sarabyn left the command post at the Texas

State Technical College (TSTC) and went to the

tarmac area nearby to confer with Phillip

Chojnacki, the overall ATF incident commander,

and that Sarabyn told Chojnacki what Rodriguez

had said as well as the answers to the questions
19

69 Id. at 91. 70 Id.

71 Hearings Part 1 at 757. 72 Id. at 776. 73 Id.

Sarabyn asked of Rodriguez. The Treasury Department Report states that Chojnacki asked Sarabyn

what he thought should be done and that Sarabyn

expressed his belief that the raid could still be executed successfully ‘‘if they hurried.’’ 69

According to the Treasury Department Report,

Sarabyn then went to the staging area, at the

Bellmead Civic Center near the TSTC. When he

arrived he was excited, ‘‘obviously in a hurry,’’ and

telling agents ‘‘get ready to go, they know we are

coming’’ and ‘‘they know ATF and the National

Guard are coming. We are going to hit them

now.’’ 70

b. Testimony before the subcommittees

At the hearings before the subcommittees, these

individuals testified in a manner that was similar

to, but not entirely consistent with the summary of

these events in the Treasury Department Report.

When he testified before the subcommittees, agent

Rodriguez expanded upon the Treasury Department’s description of the events on the morning of

February 28th.

Mr. SCOTT: Mr. Rodriguez, is there—

was there any question in your mind, having been inside the residence, that Koresh

knew that the agents were coming that

day?

Mr. RODRIGUEZ: Sir, there’s no question

in my mind that Koresh knew—there’s no

question in my mind that Koresh knew

that we were coming, yes, sir.

Mr. SCOTT: And can you describe briefly

his emotion when he got the word?

Mr. RODRIGUEZ: Yes, sir. We were—I

was inside the compound, on that day,

that morning. I had asked him some questions regarding a newspaper clipping. He

sat down and started to explain to me the

difference between his preachings and another subject’s preachings.

As we were discussing the Bible, one of

his subjects, Mr. Jones, came in and advised him that he had a telephone call. He

ignored the call and continued to talk to

me.

At that point, everything was normal.

There was only three people in that living

room at that point. Everything was calm.

He was normal. He was talking to me as

he always spoke to me during all our sessions. Nothing—nothing was wrong.

Mr.—Mr. Jones again came to the living

room and advised him that he had an

emergency call from England. At that

time, he quickly got up and left the room.

At that time it was still just Mr. Schneider and Sherri Jewell were in that room

with me, at that time. He came back approximately 3 or 4 minutes later, and

when he came back, I mean it was like

day and night.

As he approached me, he was—he was

shaking real bad. He was breathing real

hard. At one time he put his hands in his

pocket, in his jacket pocket, to probably

keep his hands from shaking. He sat

down next to me, probably about this far,

and he continued to try to finish what he

was talking to me about.

When he grabbed the Bible, he was

shaking so bad that he could not actually

read it. I grabbed the Bible and asked him

what is wrong. At that time he stopped,

and as I sit here I can remember, clearly,

he took a deep breath, he turned and

looked at me and said, ‘‘Robert, neither

the ATF or the National Guard will ever

get me. They got me once, and they’ll

never get me again.’’ 71

Later, Rodriguez continued his testimony:

Mr. EHRLICH: And what did you do

next?

Mr. RODRIGUEZ: I quickly—I felt—I felt

very threatened and I stood up, I felt I

had to—I had to leave the compound. By

that time, there was more—more people

that had come into the living room. At

first there was only three when we first

started.

Mr. EHRLICH: All right, sir. Now, why

did you feel you needed to leave the

compound?

Mr. RODRIGUEZ: I was threatened because I didn’t know—I was afraid that I

would be exposed as to who I was. And as

I stood there, I looked and I noticed that

the door—there’s people in front of the

door, people behind me, there was no

place for me to go. As I was—as I stood

there, Koresh went from one window, did

the same thing, looked outside, and came

back to the other window and again

looked outside and said, they’re coming,

Robert, they’re coming.72

* * * * *

Mr. EHRLICH: All right, sir. And there

came a point in time around 9:15, 9:20

where you left the house, correct?

Mr. RODRIGUEZ: Yes, sir. He finally—he

motioned, he gave a head signal, they

opened the door for me. I walked out. I

got into my vehicle. It took me a while to

get it started because I was—by then I

was—I was pretty shaken. I quickly went

back to the undercover house.73
20

74 Id. at 777.

75 Id. at 777–778. 76Treasury Department Report at 90. 77 Hearings Part 1 at 786.

* * * * *

Mr. RODRIGUEZ: Well, what I did, I

went into the—to the room where Mr.

Cavanaugh was because that is where the

STU phone was. I was supposed to use

that telephone to call Mr. Sarabyn. When

I got there, we all huddled up and I told

Mr. Cavanaugh exactly what had happened in the residence, advised him.

Mr. EHRLICH: And what was his reaction?

Mr. RODRIGUEZ: His reaction was we

better call Chuck right now.

Mr. EHRLICH: All right, sir. You got on

the phone and did just that, correct?

Mr. RODRIGUEZ: Yes, sir, I did.

Mr. EHRLICH: And please detail the nature of that conversation.

Mr. RODRIGUEZ: I got the phone, I

called. He came to the phone. The only

thing I can’t remember was if somebody

else answered. I think somebody else answered and he came to the phone.

Mr. EHRLICH: Who is he? Mr. Sarabyn?

Mr. RODRIGUEZ: Mr. Sarabyn.

Mr. EHRLICH: OK.

Mr. RODRIGUEZ: And the first thing that

came out of my mouth was, Chuck, they

know, Chuck, they know, they know we’re

coming. He says, well, what happened?

And I explained to him what happened.

I explained to him all the events that

took place inside the compound, and his

questions were, well, did you see any

guns? I said no.

What was he wearing? And I—I advised

him of what he was wearing. At that time,

he said OK, and that was about the extent of the phone call.

Mr. EHRLICH: All right, sir. Did you request that the raid be called off because

the element of surprise had been lost?

Mr. RODRIGUEZ: No, sir. At that time I

really didn’t have the chance. It was a

real quick question and answer thing. He

asked me what he was wearing, said OK

and he hung up. That’s why—that’s why

I quickly left the undercover house to go

talk to him at the command post because

I wanted to have a more—more of a

lengthy conversation with him about the

events.74

Rodriguez then testified that he drove to the command post, looking for Sarabyn, in order to further

discuss with him in person the events of that

morning. As Rodriguez testified:

Mr. RODRIGUEZ: I—I arrived at the command post and the first thing I asked

was, where’s Chuck? Where’s Chuck? And

they advised me that he had left.

At that time, I started yelling and I

said, ‘‘Why, why, why? They know we’re

coming, they know we’re coming.’’

Mr. EHRLICH: And what reaction did

you get, what response?

Mr. RODRIGUEZ: Sir, everything was

very quiet, very quiet, and if I remember

right, everybody was really concerned. I

went outside and I sat down and I remember starting to cry—starting to cry until

Sharon Wheeler came to me and told me

what was going on.75

While the Treasury Department Report maintains that ‘‘all key participants now agree that

Rodriguez communicated, and they understood,

that Koresh had said the ATF and National Guard

were coming,’’ 76 Sarabyn maintained at the hearings before the subcommittees that while he understood the words Rodriguez had spoken, he did

not feel that Koresh actually believed that law enforcement personnel were on their way to the residence. As Sarabyn testified:

I did not feel he knew that we were

coming at that time. When I talked with

Robert, like I testified before, I took notes

while we were talking over the thing and

I have read all of Robert’s statements.

Robert did—did a great job, but I think

everything that you heard as far as testimony was not passed on to me.

In fact, Robert told the shooting review

team, or commanders, he didn’t go into

detail or should have said more. When I

went through the questions I asked him,

you know, he had said specifically Koresh

said, you know, ATF and the Guard are

coming, but when I asked, trying to determine what he was doing from those questions, he wasn’t doing anything, he was

shaking, reading the Bible. He was

preaching. I determined that, you know,

in my opinion, his actions spoke louder

that his words, so I didn’t feel that anything was happening then.77

At another point in the hearings, Chojnacki testified:

When I received the information from

Mr. Sarabyn . . . [he] pointed out that he

had finished talking with Agent Rodriguez

and that Robert says he knows we are

coming. He said, ‘‘The ATF and the National Guard were coming to get me,’’

those kinds of comments that I took to be

a repetition of the same comments that

we had heard from his other preaching
21

78 Id. at 466. 79 Id. 80 Id. at 788. 81 Id.

82Treasury Department Report at 179. 83 Id. 84 Hearings Part 1 at 934–935. 85During that program Noble stated, ‘‘What was absolutely clear in

Washington at Treasury and in Washington and ATF was that no raid

should proceed once the element of surprise was lost.’’ Investigation Into

the Activities of Federal Law Enforcement Agencies Toward the Branch

Davidians (Part 2): Hearings Before the Subcommittee on Crime of the

House Committee on the Judiciary and the Subcommittee on National

Security, International Affairs, and Criminal Justice of the House Committee on Government Reform and Oversight, 104th Cong., 1st Sess. 7

(1995) [hereinafter Hearings Part 2].

episodes where he preached that the ATF

will be coming to get us. ‘‘The ATF is coming to get us.’’ 78

Chojnacki was then questioned directly as to

whether he believed at the time that Koresh did,

in fact, know that the ATF was going to the

Branch Davidian residence. He stated, ‘‘Not at

that time, I didn’t, no sir.’’ 79

Later, during the hearings, however, Rodriguez

questioned the truthfulness of the testimony given

by Chojnacki and Sarabyn before the subcommittees. Mr. Rodriguez testified,

[T]hose two men know—know what I

told them and they knew exactly what I

meant. And instead of coming up and admitting to the American people right after

the raid that they had made a mistake

. . . they lied to the public and in doing

so they just about destroyed a very great

agency.80

Several other agents also testified that Sarabyn

had informed them that the Davidians knew the

ATF was coming. Agent Roger Ballesteros, who

was present at the staging area when Sarabyn arrived testified:

I was in an auditorium along with a

large party . . . and Mr. Sarabyn rushed

into the room and made it clear to us that

we needed to hurry up because, in fact,

Mr. Rodriguez had come out and identified the fact that Koresh had been tipped

off and that they knew we were coming.81

c. What the ATF commanders knew

It is difficult to reconcile Sarabyn’s testimony

that while he heard agent Rodriguez’s words, he

believed that Koresh’s actions spoke louder than

his words and that, as a result, he believed that

the Davidians did not really think the ATF agents

were on their way. In light of the testimony of

Rodriguez and the other agents before the subcommittees, the subcommittees conclude that

Sarabyn understood that the Davidians were

tipped off and would have been lying in wait for

the ATF agents to arrive.

The fact that Sarabyn felt it necessary to tell

other agents of what Rodriguez had told him, regardless of how he understood it, indicates that he

found the information to be important. Unfortunately, when Sarabyn told Chojnacki this information, Chojnacki did not believe it to be important

enough to call off the raid. And, inexplicably,

Sarabyn apparently did not believe it important

enough to urge Chojnacki to delay the raid.

Compounding these failures was the fact that the

ATF line agents who heard Sarabyn’s comments

apparently were not confident enough to question

their superiors’ judgment in going forward with

the raid, even given their concerns about the information relayed by Rodriguez.

B. WHO BEARS THE RESPONSIBILITY FOR THE

FAILURE OF THE RAID?

The Treasury Department Report attempts to

lay the blame for the failure of the raid squarely

on the shoulders of Chojnacki and Sarabyn. Much

has been made of what has come to be known as

the loss of the ‘‘element of surprise,’’ with administration officials asserting that Chojnacki and

Sarabyn went forward in the face of a direction to

the contrary if the element of surprise were lost.

In their report, Treasury Department officials

assert that Stephen Higgins, then Deputy Director

of the ATF, had instructed ‘‘those directing the

raid . . . to cancel the operation if they learned

that its secrecy had been compromised . . . .’’ 82

This statement was purportedly made by Higgins

to Ronald Noble, then Assistant Secretary-Designate of the Treasury for Law Enforcement, and

John P. Simpson, the acting Assistant Secretary of

the Treasury for Enforcement. Noble and Simpson

had expressed concerns about the raid when they

first learned of it on the afternoon of the Friday

before the raid was to take place and Simpson had

initially ordered that the raid not go forward. According to the Treasury Department Report, Higgins made this statement to Noble and Simpson in

response to their concerns about the raid and in

order to convince Simpson to reverse his earlier

decision.83 At the hearings before the subcommittee, Undersecretary of the Treasury Noble testified:

It’s been our—it’s been our contention

in the Department of the Treasury’s report that only Mr. Hartnett and Mr.

Chojnacki and Mr. Sarabyn deny, because

Mr. Simpson—I mean Mr. Higgins made

it absolutely clear that this raid was not

supposed to proceed if the advantage of

surprise was lost and Mr. Aguilera testified about that being clear on February

12th as well.84

Representative Bill McCollum, co-chairman of the

joint subcommittees, read into the record at the

hearing a similar statement that Mr. Noble had

made during an appearance on the television news

program ‘‘60 Minutes’’ in May 1995.85

But ATF on-site commanders and senior ATF officials disputed the position asserted by the admin-
22

86 Hearings Part 1 at 763.

87 Id. at 758. 88 Id. at 763. 89 Id. at 766. 90 Id. at 773.

istration in the Treasury Department Report, by

Noble in his television interview, and by Noble

during his testimony to the subcommittees. As

Dan Hartnett, Deputy Director of the ATF for Enforcement in February 1993, testified:

Mr. HARTNETT: I saw Ron Noble testify

on a national program several months ago

or a month ago where he said both Treasury and ATF ordered the commanders at

Waco not to proceed, or to abort the raid

if they lost the element of surprise. And

what I’m saying to this committee is that

I have never heard the term, ‘‘element of

surprise,’’ until after the raid, when we

started using it ourself and the media

started using it.

But I have to also add that in the briefings, the briefings that I had and Mr. Higgins had, the secrecy of the raid was discussed and was an element of the raid

plan that was given to me and to Mr. Higgins. It was just that nobody ever called

and said abort the raid if you lose the element of surprise. That just never happened. But secrecy was a part of the

plan—secrecy and safety. I mean it was

discussed over and over again.86

Later, under further questioning on this point by

Representative Bill Zeliff, co-chairman of the joint

subcommittees, he stated that the administration

had tried to cover up the failure of its senior

Treasury Department officials to properly direct

the actions of ATF officials:

Mr. ZELIFF: In fact, the element of surprise was never in that plan. Is that correct?

Mr. HARTNETT: The terminology. Secrecy was part of the plan, sir.

Mr. ZELIFF: One final question so the

record may stand clearly on its own. Do

you believe that these facts demonstrate

an effort to cover up the truth by the

Treasury Department Report?

Mr. HARTNETT: Yes, yes, I do.

Mr. ZELIFF: By Ron Noble, specifically?

Mr. HARTNETT: Yes.

Sarabyn also testified before the subcommittees

that he was never ordered not to go forward if the

tactical advantage of surprise had been lost.

Mr. CHABOT: Mr. Sarabyn, I’d just like

to follow up again with your statement,

where you said, ‘‘Obviously, some people

way up said some things after that which

weren’t true. It goes right down to the decision to go. And they were part of it.’’ By

‘‘way up,’’ you’re talking about upper echelon officials, I assume. Is that correct?

Mr. SARABYN: What I was making reference to, sir, is the element of surprise.

Throughout—at this point, it became a

very big issue. The point I was trying to

make is I was never given the order not

to go if we lost the element of surprise.

There has been much conversation after

that about the element of surprise and I

was trying to say I do not know who up

above me, how far, whatever, gave that

order to somebody, but I never received

that order.87

The Clinton administration’s attempts to suggest that maintaining the ‘‘element of surprise’’

had been an overriding feature of the directives of

Treasury Department officials to ATF officials is

inaccurate. While the issue was discussed, there

was no absolute direction given to ATF officials or

ATF commanders on-site that if secrecy were compromised that they were to not go forward with

the raid. The Clinton administration’s attempt to

suggest otherwise, appears to be a veiled attempt

to distance the administration and its most senior

officials from the results of the failed raid.

But as Hartnett testified, ‘‘Secrecy was part of

the plan—secrecy and safety. I mean it was discussed over and over again.’’ 88 And Secret Service

Agent Louis Merletti, the Assistant Project Director of the Waco Administrative Review Team created by the Department of the Treasury to review

the Waco incident, testified that there is no difference between ‘‘the element of surprise and secrecy.’’ He testified that it was ‘‘basic to a dynamic

entry’’ method of conducting a raid.89 Later, however, Hartnett testified:

Mr. MICA: Mr. Hartnett, you had said

you disagreed with Mr. Merletti . . .

about some comments he made about assessing the element of surprise. Do you

want to respond now?

Mr. HARTNETT: Well, I’ve always disagreed with that terminology, ever since

the Waco review came out. I think that

it’s a created phrase, and I don’t mean to

mislead the committee.

You know, I’ve testified many, many

times that a part of the raid was secrecy.

But part of the raid was not specifically

directed toward those commanders when

they say they were given a direct order.

That is just not true. They just were not

given a direct order.90

Regardless of whether it is called the ‘‘element

of surprise’’ or simply ‘‘secrecy,’’ it is difficult to

understand why senior ATF officials did not require that sufficient checks be in place to ensure

that secrecy had been maintained up to the begin-
23

91 Hearings Part 1 at 759–760. 92Treasury Department Report at 152–156.

ning of the raid. And it is almost impossible to understand why ATF commanders did not find

Rodriguez’s information to be important enough to

call off the raid. Given the type of tactical operation selected, maintaining the secrecy of the timing of the raid is so fundamental that the blame

for the failure to ensure that it was maintained

must be shared not only by the commanders onsite but by senior ATF officials.

It is unclear from the testimony and from the

Treasury Department Report why ATF Director

Higgins and Deputy Director Hartnett did not significantly involve themselves in the planning and

oversight of the execution of a raid of this magnitude. This is especially puzzling in light of the

amount of weaponry the ATF suspected was possessed by the Davidians. Given the high risk involved in any dynamic entry, and the fact that the

open location of the Davidian residence created a

greater risk to the ATF agents in using this tactic,

it is simply incomprehensible that the most senior

ATF officials were not directly involved with the

planning of this operation and in overseeing its

implementation. In retrospect, maintaining the secrecy of this operation was one of the most important aspects of this plan. To experienced law enforcement officials this fact should have been obvious from the beginning. In fact, it should have

been the overriding concern of all involved. It was

not something of which senior officials should have

had to order agents to be aware.

Higgins and Hartnett must share a portion of

the blame for the failure of the raid because they

failed to become significantly involved in the planning for it. Had they done so, they presumably

would have ensured that a procedure was in place

through which Rodriguez’s information was relayed to them and they would have acted upon it.

At the very least, they share some blame for not

instilling in the senior raid commanders an understanding of the need to ensure that secrecy was

maintained in an operation of this type.

But most of the blame for the failure of the raid,

and for the loss of life that occurred, however,

must be born by the raid commanders themselves,

and in particularly by Sarabyn. Both Sarabyn and

Chojnacki understood what Rodriguez had told

Sarabyn but, inexplicably, somehow did not find it

to be significant enough to warrant calling off the

raid. Perhaps they thought that because the

Davidians were not arming themselves when

Rodriguez left the residence that they would not

do so. Perhaps they believed that the agents could

have arrived at the residence before the Davidians

had fully armed and taken up offensive positions

against them. Perhaps they even thought that

their abilities were so superior to those of the

Davidians that they could have successfully overcome the Davidians, even if the Davidians had

been expected to be lying in wait. Whatever the

reason, however, the facts are that they knew or

should have known that the Davidians had become

aware of the impending raid and were likely to resist with deadly force. The only realistic conclusion

that can be drawn is that Chojnacki and Sarabyn

acted recklessly failing to call off the raid.

Given the manner in which Sarabyn relayed the

information to Chojnacki, it is perhaps understandable that Chojnacki presumed that the information was not important. But Chojnacki’s overriding concern on February 28 should have been

that the secrecy of the mission be maintained.

When any credible evidence was brought to his attention that secrecy might have been compromised

he should have delayed the start of the operation

until he could confirm or deny those reports.

As Chojnacki testified before the subcommittees,

‘‘I accept the responsibility for making the field decision. I was the incident commander, I was the

person to make that decision.’’ 91 Regardless of

whether he fully understood the significance of

what Sarabyn told him, it was his job to take

whatever steps were necessary to insure that secrecy was maintained. Because he did not, his portion of the blame for the failure of the raid and its

consequences is equal to that of Sarabyn.

C. OTHER WAYS IN WHICH THE PLAN SELECTED WAS

BUNGLED

While the failure of ATF’s commanders to recognize and respond to the fact that their raid plan

had been severely compromised was, by far, the

most significant mistake made on February 28, a

number of other failures came to light during the

subcommittees’ investigation.

1. Command and control issues

A number of command and control issues significantly undermined the possibility of success for

the raid. Most of these issues were addressed in

the Treasury Department Report,92 however, three

of them bear repeating here.

a. Assigning command and control functions

under the ATF’s National Response Plan

The decision to designate Chojnacki as incident

commander and Sarabyn as tactical commander

was mandated under the ATF’s National Response

Plan. While the tactical experts who testified at

the hearings and briefed the subcommittees noted

that the use of an overall coordinating document,

such as the National Response Plan, is an appropriate organizational and standardization tool,

some of the plan’s requirements resulted in less

qualified people being placed in positions of command and control when agents who were more

qualified for these positions, and who were already

selected to be involved in the raid, were available.

Chojnacki was selected as incident commander

because he was the special agent in charge of the

field office in whose region the raid was to occur.

While the special agent in charge of a geographic
24

93 Id. at 153. 94 Id. at 154. 95 Id.

96 Id. at 175. 97 Id. 98 Id. at 207–208. Additionally, Agent Rodriguez testified before the

subcommittees that he never saw any written raid plan. Hearings Part

1 at 821. 99Treasury Department Report at 152. 100 Id. at 207.

area may have a great interest in an operation

that takes place in his area, his position has little

bearing on his qualification to run the operation.

And even though Chojnacki had 27 years of law

enforcement experience, there were other agents

involved in the raid who possessed substantially

more experience in tactical operations.

Chojnacki, in turn, appointed Sarabyn, to be tactical coordinator because the National Response

Plan required that position to be filled by an assistant special agent in charge who had completed

special response team (SRT) training, as had

Sarabyn. But Sarabyn had attended SRT training

only as an observer, and there were other agents

of lesser rank who had more experience in this

area.93 As in the case with Chojnacki, the National

Response Plan’s emphasis on rank and geographical assignment created the unintended result of

placing a less qualified person into a position for

which he was either simply not qualified or for

which there were others more qualified.

b. Command and control on the scene on

raid day

Chojnacki decided to ride in one of the helicopters on raid day.94 This decision placed him out

of effective communications with the other raid

commanders and SRT teams leaders prior to the

beginning of the raid. Had he chosen to remain in

central position from which he could control the

evolving raid, he might have had other opportunities to learn of Rodriguez’s information about what

the Davidians’ forewarning. He might also have

been able to learn from agents in the undercover

house that the Davidians were not where the ATF

anticipated they would be on the morning of February 28, a key element of the tactical plan, but

instead were lying in wait for the agents.

Sarabyn, the tactical commander, chose to ride

in one of the cattle trailers 95 rather than observing the residence from a vantage point such as the

undercover house, where he could monitor activity

in and around the building, as well as view the approach of the ATF agents in the cattle trailers. By

riding in the trailers with the agents who were to

conduct the raid, Sarabyn severely limited his

view of the Branch Davidian residence, which also

prevented him from observing that the Davidians

were not where the ATF expected them to be just

before the raid began.

Additionally, once Sarabyn arrived at the residence he became pinned down with the other

agents and was unable to communicate with many

of the other agents at different points around the

building. Had he chosen to place himself in a position where he would not have come under fire,

such as the undercover house, he might have been

able to communicate with all of the agents, perhaps diverting or redirecting the actions of some

and reducing the number of casualties sustained.

c. Command and control from Washington

On February 28, ATF activated its ‘‘National

Command Center’’ at its Washington headquarters

staffed with ‘‘high-level managers . . .

experience[d] in field operations.’’ 96 Yet it appears

that the command center played no role in the

planning or implementation of the operation until

after ATF agents had been killed or wounded. The

personnel in the command center never learned

that Rodriguez knew the Davidians thought the

raid was imminent because Chojnacki never told

them. Apparently, the person in the command center with whom Chojnacki spoke did not know

enough about the raid to know that an undercover

agent was to have been inside with the Davidians

until shortly before the raid was scheduled to

begin and valuable information might have been

available. In fact, according to the Treasury Department Report, no one in the command center

asked any questions of Chojnacki at all when he

reported in shortly before the raid.97

2. The lack of a written raid plan

The Treasury Department review of the ATF’s

investigation of David Koresh noted that the ATF

agents who were in command of the raid did not

prepare a written raid plan in advance of the raid.

While two ATF agents took it upon themselves to

create one, it was never reviewed by the senior

raid planners and commanders, and never distributed to any of the agents who were to participate

in the raid.98

During the hearing before the subcommittees,

several tactical experts testified that the drafting

of a written raid is an important part of developing an overall operational plan. Indeed, the ATF’s

own National Response Plan, which was drafted to

establish ‘‘consistent policies and procedures’’

when several Special Response Teams are involved

in an operation,99 requires that a written plan ‘‘for

managing the critical incident or major ATF operation’’ be produced before the operation begins.100

Yet this was not done in this case.

3. Lack of depth in the raid plan

One problem with overall planning was the fact

that no written plan existed. A factor that may

have exacerbated the losses the ATF sustained on

February 28 was the lack of depth in the oral raid

plan. The plan involved agents in two cattle cars

driving up an exposed driveway to the front of the

Davidian residence and running out of the cars,

with one group storming through the front doors

while the other went to the side of the building,
25

101 Id. at 54–64. 102 Id. at 151. 103 Id. at C–19. 104 Id. at 151. 105 Id.

106 Id. at 73. 107 Interviews of National Guard personnel. [See documents produced

to the subcommittees by the Department of the Treasury T005368,

T005376 at Appendix [hereinafter Treasury Documents]. The Appendix

is published separately.] 108Treasury Department Report at 95.

climbed ladders carried by agents onto the roof

and in through the second-story windows.101 There

was little else to the plan and, importantly, little

or no discussion of what might go wrong.

There was almost no training given on how to

withdraw from the residence.102 Even the written

plan created after the raid and given to the Texas

Rangers during their investigation (which was

never distributed to the commanders or any agents

in advance of the raid) devoted much of its 81⁄2

pages to administrative issues. It contained no

mention of what agents were to do if anything

went wrong with the ‘‘dynamic entry’’ into the residence. The three short paragraphs under the heading ‘‘contingencies’’ simply mentioned the presence

of an ambulance and nurse near the scene.103

As discussed above, the most grievous failure on

the part of ATF officials on February 28 was the

failure to understand and appreciate the significance of undercover agent Rodriguez’s report that

the Davidians knew the ATF raid was imminent.

Yet, the omission of any contingency planning was

a failure that may have led to the deaths of agents

who might otherwise have survived. Contingency

planning might have been effective at a number of

stages: when the agents turned into the driveway;

when they first realized they were coming under

fire from the Davidians; or when the order was

given to retreat in the face of the Davidians’ fire.

The Treasury Department Report states ‘‘the

failure of the planners to consider that their operation might go awry and prepare for that eventuality is tragic, but somewhat understandable.’’ 104

It notes that most ATF agents were used to operations going without incident, or at least being resolved in favor of the ATF, and that the only other

ATF operation similar in magnitude to the one

against the Davidians had been resolved peacefully. The report places stronger blame on ATF’s

national leadership for this failure, calling its failure to ensure that some contingency planning was

done ‘‘simply unacceptable.’’ 105

The subcommittees agree that ATF leadership

shares the blame for the failure of this operation

and that, clearly, it would have been beneficial

had they been involved in a meaningful way in the

planning of the operation. But it should not take

directives from Washington to ensure that agents

in charge of the ATF’s various field offices and

Special Response Teams, the people who actually

conduct an operation, will know enough to ask the

simple question ‘‘what happens if this doesn’t go as

planned.’’ No amount of past success is reason

enough to explain why this possibility wasn’t considered and planned for. The fact that it was not

done is, at best, additional evidence of the lack of

skill and sophistication of senior ATF commanders

involved. At worst, it is evidence of grievous negligence on their part.

4. Tactical teams trained together for only 3 days

before the raid

Another fact which indicates a lack of skill on

the part of both senior ATF officials and the ATF

on-site commanders, particularly overall incident

commander Chojnacki, is the fact that the Special

Response Teams (SRT’s) involved in conducting

the operation trained together for only 3 days prior

to the operation.106 The ATF does not maintain a

large standing force of specially trained agents

which can be dispatched to the site of a disturbance, such as the FBI’s Hostage Rescue Team. Instead, the ATF put together its team for the operation against the Davidians by combining special

response teams from several of the ATF’s regional

offices.

While the subcommittees do not conclude that

the ATF should have created a special team such

as the FBI’s Hostage Rescue Team in advance of

the raid (and does not conclude that it need do so

now), it appears that the reason why the FBI

maintains its HRT as a single unit is because coordination of the agents involved in a tactical operation, especially one involving great risk, is of the

utmost importance. Senior ATF officials and the

ATF’s on-site commanders either were unaware of

this fact or, more likely, simply ignored it for reasons which are unknown to the subcommittees.

Regardless of the reason, however, the fact that

ATF officials believed that they could create a

force of over 70 agents, adequately trained to conduct an operation of this complexity against a

heavily armed opposing force, indicates a lack of

foresight on the part of these senior officials which

is unacceptable.

5. True National Guard role only made clear 24

hours prior to the raid

The subcommittees have learned that when the

Texas National Guard was asked to provide helicopters to the ATF, the purpose given was that

they would be used as an observation platform or

command and control platform.107 When the National Guard pilots arrived at Fort Hood to train

with the ATF the day before the raid they learned

for the first time that the ATF intended to use the

helicopters as a diversion just before the raid was

to begin. The helicopters were to fly close to the

residence, attracting the attention of those inside

to the back side of the building, while the ATF

agents arrived at the front of the structure.108
26

109For an explanation of the three ‘‘statuses’’ in which National Guard

forces operate, see Section V of this report. 110See Section V of this report. 111See generally Robert J. Driscoll, Unannounced Police Entries and

Destruction of Evidence After Wilson v. Arkansas, 29 Colum. J.L. & Soc.

Probs. 1, 10 (1995). 112The Federal knock and announce statute is found in 18 U.S.C.

§ 3901. That section states, ‘‘The officer may break open any outer or

inner door or window of a house, or any part of a house or anything

therein, to execute a search warrant, if, after notice of his authority and

purpose, he is refused admittance or when necessary to liberate himself

or a person aiding him in the execution of the warrant.’’

113Driscoll, supra note 111, at 11. 114 Id. 115 Id. 116 Hearings Part 1 at 725.

While the National Guard was conducting its

role in its Title 32 status,109 and so was not limited by the terms of the Posse Comitatus Act,110

this change in plan is still troubling. The failure to

inform National Guard commanders of the true

role for the National Guard troops and equipment

well in advance of the raid is an omission that is,

at best, additional evidence of the poor planning

for the raid done by the ATF commanders. At

worst, this may have been an attempt by ATF

commanders to obtain operational assistance that,

while not prohibited by law, might have been declined by the Governor of Texas as commander of

the Texas National Guard had the ATF given sufficient notice for word to have reached her. In any

event, it does not appear that senior ATF or Treasury officials gave any consideration to the negative

image of military helicopters being used as part of

a raid on American civilians.

D. SERVICE OF THE WARRANT

One of the issues considered by the subcommittees was whether the ATF agents serving the arrest and search warrants on February 28 were required to ‘‘knock and announce’’ their intention to

serve the warrant before entering the Davidian

residence. When the ATF agents conducted the

raid on the Davidian residence the agents did not

knock on the Davidians’ front door and announce

their intentions to serve the warrant. Rather, the

ATF agents dismounted from the cattle trailers in

which they were riding on the run. One group attempted to enter the residence forcibly through the

front door. A second group attempted to enter the

second floor windows via the roof.

The subcommittees’ review of videotapes made

of the training sessions during which ATF practiced the raid plan revealed that the plan was designed around this type of dynamic entry and did

not involve a knock and announce approach. In

other words, the use of these tactics was not the

result of any circumstances which had occurred on

February 28.

In 1917,111 Congress enacted the Federal knock

and announce statute.112 Generally speaking, the

statute permits forcible entry for the purpose of

executing a search warrant only after the officer

gives notice of his authority and his purpose but is

refused admittance. Courts interpreting the statute, however, have adopted a number of exceptions

to the rule allowing unannounced police entries in

limited exigent circumstances. For example, courts

have held that such an announcement is unnecessary when the facts known to officers would justify

them in being virtually certain that the person on

whom the warrant is to be served already knows

the officers’ purpose and that an announcement

would be a useless gesture.113 Courts also have

held that police need not knock and announce

their intent to serve a warrant if they fear that to

do so would allow the person on whom the warrant is to be served to destroy the evidence to be

seized under the warrant.114 A third general exception to the rule requiring the police to knock

and announce their intent to serve a warrant is

when to do so would increase the risk of danger to

the officers serving the warrant.115

Given the fact that the arrest and search warrants were based, in part, on the evidence that the

Davidians were in possession of illegal automatic

weapons, the subcommittees believe it was reasonable for the ATF to have presumed that the

Davidians might fire on them had they announced

their intent to serve the warrants in advance. The

Davidians own behavior in firing on the ATF

agents proves the reasonableness of that belief.

E. UNRESOLVED ALLEGATIONS

1. Who shot first?

Much has been made of the issue as to which

side in the gun battle shot first. Conflicting evidence on this point was presented to the subcommittees by the ATF agents who were involved

in the raid, the Texas Rangers who conducted an

investigation into the events of the raid following

the end of the standoff on April 19, and by the attorneys for the Davidians.

ATF Special Agent John Henry Williams, a

member of the SRT team assigned to enter the

front door of the Davidian Residence, and who

spoke to David Koresh at the front door of the

Davidian residence as the raid began, testified

that he was convinced that the Davidians shot

first. As Williams testified before the subcommittees,

As we approached the front door, David

Koresh came to the front door dressed in

black cammo fatigues.

As he closed the door, before we reached

the door, one agent reached the door, and

at that point that is when the doors erupted with gunfire coming from inside. It was

10 seconds or more before we even fired

back.116

Later on that same day, Williams testified at

greater length about the start of the gun battle.

Mr. SCOTT: Can you go through just

very briefly, you were walking up to the
27

117 Id. at 756. 118 Hearings Part 2 at 150.

119 Hearings Part 2 at 26. 120 Hearings Part 2 at 821–822. 121See Documents produced to the subcommittees by the Department

of the Treasury T005723, T005730, T005731, at Appendix [hereinafter

Treasury Documents]. The Appendix is separately published. 122Mr. MCCOLLUM: What about with regard to firing from the helicopters? Did any of the ATF agents tell you that there had been shots

fired from the helicopters?

Mr. BYRNES: Quite to the contrary, we could find no evidence that

there was ever any shots fired. Our best evidence is that they peeled off

at about 300, 350 meters, because there was gunfire, and those pilots

were not going to fly over that residence.

Hearings Part 2 at 197.

door, and how close to the door were you

when the shooting started?

Mr. WILLIAMS: About 10 feet from the

door.

Mr. SCOTT: Was it your intention prior

to that to—had Koresh come out by then?

Mr. WILLIAMS: Yes.

Mr. SCOTT: And how far from the door

were you when he closed the door in your

face?

Mr. WILLIAMS: Approximately 15 feet

from the door.

Mr. SCOTT: And did you continue walking forward?

Mr. WILLIAMS: Yes.

Mr. SCOTT: And how close were you

when the shooting started?

Mr. WILLIAMS: I—basically about 10

feet. After that, the shooting started immediately after he closed the door.

Mr. SCOTT: Is there any question in

your mind as to where the shooting

began?

Mr. WILLIAMS: None.

Mr. SCOTT: Thank you—excuse me, that

was from the inside coming out.

Mr. WILLIAMS: Yes, from the inside

coming out.117

Senior officers of the Texas Rangers also testified as to the findings of their investigation into

these events after April 19. The Rangers interviewed virtually everyone who was present at the

Branch Davidian residence on February 28, including several of the surviving Davidians and all of

the ATF agents who were present. As Texas Ranger Captain David Byrnes testified to the subcommittees:

I believe the evidence was to me overwhelming in the trial that the Davidians

fired first. The cameraman and the reporter, although very reluctantly, finally I

believe conceded that. He had broadcast

that several times. He was more or less a

hostile witness. But in my mind there is

no doubt who fired first.118

But the attorneys for the Davidians testified that

they believed the gun battle erupted as the result

of an accidental discharge by one of the ATF

agents. Jack Zimmerman, attorney for David

Koresh during the standoff, testified

My personal opinion is that it was an

accidental discharge by one of the ATF

agents as he was dismounting and that

that was a signal to open fire, which you

haven’t heard a testimony about. Nobody

asked them, what was the signal to open

fire if you did open fire? Who made that

decision? What command was it?

But I believe that what the evidence

from the trial, the criminal trial, was that

somebody off to the side heard, somebody

fired, and they testified that it came from

behind them . . . . I will point out to you

from talking to the foreman of the criminal trial jury, who heard 6 weeks of testimony by the Government in 2 days of testimony from the defense, they could not

decide, he told me. The foreman of the

jury told me they could not decide because

the evidence was in such conflict as to

who fired first.119

2. Were shots fired from the helicopters?

Allegations were leveled by the Davidians’ attorneys that agents in the National Guard helicopters

used in the raid fired into the Branch Davidian

residence from the air. The Davidians’ attorneys

testified that they were shown holes in the roof of

the structure which appeared to them to be bullet

holes fired from the outside into the structure.

Phillip Chojnacki, who was riding in one of the

helicopters, testified, however, that no shots were

fired from the helicopters. He testified that ATF

personnel on the helicopters were armed only with

9 millimeter sidearms and that he observed no

shots fired from the helicopters.120 His testimony

is supported by the sworn statements of each of

the pilots of the helicopters, taken on April 20,

1993, that the helicopters were unarmed and that

no ATF agents fired from the helicopters.121 Texas

Ranger Captain David Byrnes also testified as to

what the Rangers’ investigation concluded with respect to this issue. He stated that the Rangers

found no evidence that shots were fired from the

helicopters.122

The subcommittees reviewed videotape of the

raid shot by agents in the helicopters as well as

videotape of the exterior of the helicopters involved

in the raid after the helicopters withdrew from the

scene. At no point in the videotape does any ATF

agent fire a weapon from the helicopters and the

helicopters do not appear to have been equipped

with machine guns or other weaponry. The video

tape reviewed, however, is not continuous from the

point from which the helicopters lifted off to the

point at which they landed. The fact that videotape was taken at some points in the raid and not

at others has not been explained to the subcommittees.
28

123 ‘‘I couldn’t tell you whether those rounds were fired from a helicopter or not. All I could tell you is they come from the sky downward.

If somebody were standing on top of the roof shooting down into the ceiling, it would look exactly the same way.’’ Hearings Part 2 at 27 (statement of Jack Zimmerman). 124Memorandum to Charles D. Sarabyn from ATF Deputy Director,

‘‘Decision to Remove from Position and from the Federal Service’’ (October 26, 1994); Memorandum to Phillip J. Chojnacki from ATF Deputy

Director, ‘‘Decision to Remove from Position and from the Federal Service’’ (October 26, 1994). Treasury Documents T00012743–T00013735. 125Settlement Agreement, Phillip J. Chojnacki v. Department of the

Treasury, Case No. DA–0752–95–0126–I–1, Merit Systems Protection

Board, Denver Field Office (December 1994). Treasury Documents

T00013868–T00013874. Settlement Agreement, Charles D. Sarabyn v.

Department of the Treasury, Case No. DA–0752–95–0127–I–1, Merit Systems Protection Board, Denver Field Office (December 1994). Treasury

Documents T00013428–T00013434. 126Treasury Department Report at 193.

It has been suggested that the bullet holes in

the roof of the Branch Davidian residence may

have come from ATF agents on the roof who were

firing into the structure as the firefight continued.

Jack Zimmerman, the attorney for Branch

Davidian Steve Schneider during the standoff, conceded that this was a possible explanation for the

presence of the bullet holes during his testimony

before the subcommittees.123 Given that there

were several ATF agents who were on the roof of

the residence during the firefight with the

Davidians, this explanation seems plausible.

F. THE FIRING AND REHIRING OF CHOJNACKI AND

SARABYN

In October 1994, following the Treasury Department’s review of the failed raid against the

Davidians, the Department terminated the employment of the two senior raid commanders,

Chojnacki and Sarabyn.124 Both of them filed complaints with the Merit System Review Board.

While that complaints were pending, the Treasury

Department reached agreements with both

Chojnacki and Sarabyn.125 As a result of those

agreements, both were rehired by the ATF. However, neither is assigned to positions of authority

over other agents and neither is presently empowered to carry a weapon.

At the hearings before the subcommittees,

Treasury Department officials were asked why a

deal was struck with the two people on whom the

Treasury Department blamed the failure of the

Davidian raid. No sufficient answers to this question were provided. In light of the Treasury Department Report’s conclusion that ‘‘raid commanders Chojnacki and Sarabyn appeared to have engaged in a concerted effort to conceal their errors

in judgment,’’ 126 it is difficult to imagine any basis

upon which the rehiring of these two individuals

can be justified by Treasury Department officials.

G. FINDINGS CONCERNING THE RAID EXECUTION

1. Chojnacki and Sarabyn jointly share

most of the responsibility for the failure of

the ATF raid against the Davidians. The blame

for the failure of the raid, and for the loss of life

that occurred, must be born by the senior ATF

raid commanders, Phillip Chojnacki and Chuck

Sarabyn. They either knew or should have known

that the Davidians had become aware of the impending raid and were likely to resist with deadly

force. Nevertheless, they recklessly proceeded with

the raid, thereby endangering the lives of the ATF

agents under their command and the lives of those

residing in the compound. This, more than any

other factor, led to the deaths of the four ATF

agents killed on February 28.

2. The former Director and Deputy Director

of the ATF bear a portion of the responsibility for the failure of the raid. Former ATF Director Stephen Higgins and former ATF Deputy

Director Daniel Hartnett bear a portion of the responsibility for the failure of the raid because they

failed to become involved in the planning for the

raid. Had they done so, they might have ensured

that a procedure was in place through which the

undercover agent’s information was relayed to

them and they could have acted upon it. At the

very least, they share some blame for not instilling

in the senior raid commanders an understanding

of the need to ensure that secrecy was maintained

in an operation of this type.

3. The planning for the raid was seriously

flawed. There were numerous problems with the

ATF’s planning for the raid. These failures evidence the lack of experience and sophistication of

the senior ATF agents charged with developing the

ATF’s raid plan. They also suggest that the ATF’s

senior officials failed to fully train or monitor the

actions of its senior operational commanders. Included among the failures were:

• The ATF’s own internal guidelines resulted

in less qualified people being placed in command and control of the operation when other,

more qualified agents, were available for these

positions. The commanders also made strategic command and control errors on raid day,

placing themselves in positions that hampered

their ability to receive and act upon important

information that might have led them to postpone the raid or redirect it to minimize casualties.

• The raid plan itself lacked significant depth,

principally in that it contained almost no contingency planning which might have minimized the losses suffered by the ATF on February 28.

• ATF commanders also failed to adequately

train the agents involved in the raid or to fully

inform the Texas National Guard of the intended role that its personnel would play in

the raid.

• ATF commanders failed to reduce the raid

plan to writing, as was required by ATF internal guidelines. Had this been done, and the

written plan circulated to those involved in

the raid, the errors in the raid planning might

have been brought to light and corrected.

• The activation of the ATF National Command Center occurred only because it was re-
29

quired by the National Response Plan, and not

because it was to have any meaningful role in

the implementation of the raid plan. Had the

senior ATF officials written the National Response Plan in such as way as to ensure that

command center personnel would be briefed

on the significant details of the operation and

would have the clear authority to question onscene commanders, the raid might have been

called off by command center officials asking

about the report made by Rodriguez.

4. The ATF agents executing the raid were

not required to knock and announce their intention to serve the arrest and search warrants. Given that the arrest and search warrants

were based, in part, on the evidence that the

Davidians were in possession of illegal automatic

weapons, the subcommittees believe it was reasonable for the ATF to have presumed that the

Davidians might fire on them had they announced

their intent to serve the warrants in advance. Accordingly, the subcommittees conclude that the

ATF was not required to knock and announce

their intention to serve either the arrest warrant

or the search warrant because to do so would have

measurably increased the risk to the ATF agents

involved.

5. The evidence suggests that the Davidians

fired the first shots on February 28, 1993. The

subcommittees believe that the question of who

fired the first shot on February 28 cannot decisively be resolved given the limited testimony presented to the subcommittees. It appears more likely, however, that the Davidians fired first as the

ATF agents began to enter the residence.

6. The evidence presented to the subcommittees generally supports the conclusion that no shots were fired from the helicopters at the Branch Davidian residence.

The subcommittees believe, however, that there is

insufficient evidence to determine with certainty

as to who fired the shots that made the bullet

holes in the roof of the Davidian residence.

7. After the raid failed, Clinton administration officials inaccurately stated that the

ATF raid commanders had been given explicit orders to not proceed with the raid if

the secrecy of the raid was compromised.

After the raid failed, Assistant Treasury Secretary

Ronald Noble attempted to lay the blame entirely

on the ATF despite the fact that Treasury officials,

including Noble, failed to properly supervise ATF

activities leading to the raid. Moreover, Treasury

officials, having approved the raid, failed to clearly

and concisely communicate the conditions under

which the ATF was to abort the raid.

8. The subcommittees find no justification

for the rehiring of Chojnacki and Sarabyn.

Given that the largest portion of blame for the failure of the raid against the Davidians must be born

by Chojnacki and Sarabyn, the subcommittees find

no justification for their rehiring by the ATF. The

fact that senior Clinton administration officials approved their rehiring indicates a lack of sound

judgment on their part. It also further begs the

question as to whether there are facts not disclosed to the subcommittees that led administration officials to agree to rehire these men.

H. RECOMMENDATIONS

Because the largest single cause of the ATF raid

disaster was the failure of ATF’s senior field commanders to recognize or act upon the undercover

agent’s information that the Davidians knew the

ATF raid was underway, there is no overriding

recommendation which, if implemented, would

prevent similar tragedies from occurring in the future. The subcommittees believe, however, that

had more experienced ATF agents been involved in

the planning of this raid the many deficiencies in

the raid plan itself would have been avoided. Most

importantly, the subcommittees believe that had

more experienced commanders been assigned to

this operation, the information that the Davidians

knew that the raid was impending would not have

been ignored but, rather, understood for what it

was and acted upon accordingly. There are, however, a number of steps that should be taken to

correct other problems associated with the failed

raid and which, taken together, might help prevent similar failures in the future.

1. Congress should conduct further oversight of the Bureau of Alcohol, Tobacco and

Firearms, the oversight of the agency provided by the Treasury Department, and

whether jurisdiction over the agency should

be transferred to the Department of Justice.

Congress should consider whether the lack of

Treasury Department oversight of ATF activities

in connection with the investigation of the

Davidians, and the failures by ATF leadership

during that investigation, indicate that jurisdiction

over the ATF should be transferred to the Department of Justice.

2. The ATF should revise its National Response Plan to ensure that its best qualified

agents are placed in command and control

positions in all operations. As discussed above,

the ATF’s National Response Plan in effect in 1993

led to the placement of Chojnacki as incident commander and Sarabyn as technical commander for

the raid, when more experienced ATF personnel

were available. The subcommittees recommend

that the National Response Plan be revised to provide that incident commanders for significant operations be selected by ATF headquarters personnel

from among the most experienced agents in the

ATF, rather than based upon any consideration of

the agent who may have administrative responsibility for a given geographic area. Likewise, the

subcommittees recommend that other senior positions in significant operations, such as tactical

commander, also be selected by ATF headquarters

personnel from ATF agents most experienced in
30

127Posse Comitatus means ‘‘the power or force of the county. The entire population of a county above the age of fifteen, which a sheriff may

summon to his assistance in certain cases; as to aid him in keeping the

peace, in pursuing and arresting felon, etc.’’ Black’s Law Dictionary (1st

ed. 1891) (citing 1 William Blackstone, Commentaries 343). 128 Roger Blake Hohnsbeen, Fourth Amendment and the Posse Comitatus Act Restrictions on Military Involvement in Civil Law Enforcement,

54 Geo. Wash. L. Rev. 404, 404 (1986). 129 ‘‘Until passage of the Posse Comitatus prohibition in 1878, the improper use of troops became a common method of aiding revenue officers

in suppressing illegal production of whiskey; assisting local officials in

quelling labor disturbances; and insuring the sanctity of the electoral

process in the South by posting guards at polling places.’’ Clarence I.

Meeks, III, Illegal Law Enforcement: Aiding Civil Authorities in Violation of the Posse Comitatus Act, 70 Mil. L. Rev. 83, 90 (1975). 130 18 U.S.C. § 1385 (1988). A post-Waco amendment changed the penalty portion to read, ‘‘shall be fined under this title or imprisoned not

more than two years, or both.’’ Violent Crime Control and Law Enforcement Act of 1994 § 330016(L), Pub. L. 103–322, 108 Stat. 2147. 131 Congressional Research Service, The Posse Comitatus Act & Related Matters: The Use of the Military to Execute Civilian Law 3 (1995)

(citing Magna Carta, ch. 39 (1215)). 132The Declaration of Independence (U.S. 1776). 133 U.S. Const. Amend. II, III.

these areas, regardless of geographical assignment.

3. Senior officials at ATF headquarters

should assert greater command and control

over significant operations. Just as the National Response Plan should be revised to allow

greater control by ATF headquarters, the subcommittees recommend that ATF’s most senior officials be personally involved in the planning and

oversight of every significant operation. While the

ATF did activate its National Command Center in

Washington just prior to the commencement of the

ATF raid against the Davidians, command center

personnel played no actual role in the planning or

the implementation of the operation until after it

went awry.

The subcommittees recommend that ATF’s most

senior officials be directly involved in the planning

of all significant operations and personally approve

each operation in advance of its implementation.

Additionally, the subcommittees recommend that

the National Command Center be activated well

before the commencement of an operation, that it

be staffed with persons experienced in tactical operations and knowledgeable of the operation in

question, and that these persons be given the authority to suspend the operation or revise the operation plan as the situation develops.

4. The ATF should be constrained from

independently investigating drug-related

crimes. Given that the ATF based part of its investigation of the Branch Davidians on unfounded

allegations that the Davidians were manufacturing

illegal drugs, and as a result improperly obtained

military support at no cost, the subcommittees recommend that Congress restrict the jurisdiction of

the ATF to investigate cases involving illegal

drugs unless such investigations are conducted

jointly with the Drug Enforcement Administration

as the lead agency.

V. MILITARY INVOLVEMENT IN THE GOVERNMENT

OPERATIONS AT WACO

U.S. military involvement is one of the least explored and most misunderstood elements of the

events that took place near Waco, TX in 1993. The

Treasury Department Report dedicated only 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.

A. THE EXPANSION OF MILITARY ASSISTANCE TO LAW

ENFORCEMENT

Historically in America, there has been a general principle that the military should not be involved in civilian law enforcement. Congress codified this principle by enacting the Posse Comitatus

Act 127 in 1878. The subcommittees have found

that subsequent congressional actions and legal

cases have eroded the Posse Comitatus Act to an

alarming degree and blurred its legal restrictions.

In determining whether the military assistance

provided at Waco was illegal, the subcommittees

reviewed the current status of the Posse Comitatus Act and other laws governing the use of the

military in civilian law enforcement, why changes

in the laws have occurred and what effects those

changes have had on the use of the military in civilian law enforcement.128 Additionally, the subcommittees have addressed the common practice of

Governors using National Guard (NG) personnel

across State lines.

1. The Posse Comitatus Act

a. Overview of the law

The Posse Comitatus Act was enacted in the

United Stated in 1878 in response to the improper

use of military troops in the South during the

post-Civil War Reconstruction period.129 The Posse

Comitatus Act provides:

Whoever, except in cases and under circumstances expressly authorized by the

Constitution or Act of Congress, willfully

uses any part of the Army or the Air

Force as a posse comitatus or otherwise to

execute the laws shall be fined not more

than $10,000 or imprisoned not more than

2 years, or both.130

However, as early as the Magna Carta, prohibitions against the use of the military in civilian affairs were being established.131 These prohibitions

are based on the principle that the military should

never be employed against the citizenry of the Nation it supports and is buttressed by the clear separation, in this country, between civilian authority

and military support for that authority. The clear

separation between civilian and military authority

is embodied in the Declaration of Independence 132

and the U.S. Constitution.133
31

134Meeks, supra note 129, at 128. 135 Id. 136 In the 1973 Wounded Knee uprising, a dissident Indian group forcibly took control of the Wounded Knee Village on Pine Ridge Reservation, SD. This group entered a U.S. Post Office by force, held hostages

and refused to allow Federal investigators into the area. In support of

Federal law enforcement agents, military personnel provided an array of

assistance, closely resembling the military assistance provided to Federal law enforcement agents during the Waco incident. 137Peter M. Sanchez, The ‘‘Drug War:’’ The U.S. Military and National

Security, 34 A.F. L. Rev. 1, 109 (1991). 138 As at Wounded Knee, aerial reconnaissance photography and maintaining military vehicles were also conducted by military personnel at

Waco. 139These two soldiers at Wounded Knee were on active duty, i.e. fulltime duty in the active military service of the United States. See 10

U.S.C. § 101 (d)(1), codified as amended by Pub. L. 102–484. 140Meeks, supra note 129, at 121. Ironically, approximately 10 active

duty Special Forces soldiers were present at Waco as ‘‘observers’’ during

various stages of the post-raid siege, including the day of the use of CS

riot control agent and the fire. Additionally, at the request of the commander of the FBI Hostage Rescue Team, two senior Army Special

Forces officers were present when Attorney General Reno was briefed on

the FBI’s plan to end the standoff. Prior to the meeting, one of those officers visited the site of the standoff by helicopter accompanied by the

HRT commander. 141 United States v. Jaramillo, 380 F. Supp. 1375 (D.Neb. 1974), appeal dismissed, 510 F.2d 808 (8th Cir. 1975); United States v. Banks, 383

F.Supp. 368 (D.S.D. 1974); United States v. Red Feather, 392 F.Supp.

916 (D.S.D. 1975); United States v. McArthur, 419 F.Supp. 186 (D.N.D.

1976), aff’d sub nom., United States v. Casper, 541 F.2d 1275 (8th Cir.

1976), cert. denied, 430 U.S. 970 (1977). 142 Congressional Research Service, supra note 54, at 23 n.63. The

court in McArthur ruled that the Posse Comitatus Act is violated only

when the civilians are subjected to the direct ‘‘regulatory, proscriptive or

compulsory’’ aspect of the military involvement. United States v.

McArthur, 419 F.Supp. at 194.

143Sanchez, supra note 137. 144 Id. at 7 (citing to 10 U.S.C. § 371–375, as subsequently amended

by Pub. L. No. 100–456, 102 Stat. 117 (1988)). 145 Congressional Research Service, supra note 54, 23. See also Defense Department Authorization Act of 1982 § 905, Pub. L. No. 97–86,

95 Stat. 1114, as amended by National Defense Authorization Act Fiscal

Year 1989 § 1004, Pub. L. No. 100–456, 102 Stat. 2043 (codified as

amended at 10 U.S.C. § 377). 146 10 U.S.C., Ch. 18. 147 Id. 148 JTF–6 Operational Support Planning Guide (citing Pub. L. 100–

456, 102 Stat. 1218, 2042, codified at 10 U.S.C. § 124 [See Documents

produced to the subcommittees by the Department of the Treasury

T08786, T08788, at Appendix [hereinafter Treasury Documents]. The

Appendix is published separately.] See also 32 U.S.C. § 112 for the National Guard. 149 JTF–6 Operational Support Planning Guide, Treasury Documents

T08786, T08788. See also 10 U.S.C. § 371(b).

Nevertheless, no one has ever been prosecuted

for violating the Posse Comitatus Act.134 Due in

part to a creeping acceptance of military involvement in law enforcement actions, the Posse Comitatus Act has been invoked very rarely.135 Until

the criminal cases arising from the 1973 Indian

uprising at Wounded Knee,136 civilian law enforcement apparently relied upon military support

without fear of recourse.137

Specifically, at Wounded Knee, the Nebraska

National Guard and U.S. Air Force personnel conducted aerial reconnaissance photography of the

site, while the South Dakota National Guard

maintained military vehicles in the area of the

siege.138 Two regular Army colonels (Title 10 personnel) 139 were present at Wounded Knee as Defense Department ‘‘observers’’; however, these military personnel also provided ‘‘advice, urging and

counsel . . . to Department of Justice personnel on

the subjects of negotiations, logistics and rules of

engagement.’’ 140

Four criminal cases resulted from the Wounded

Knee incident. Each raised similar challenges to

the military’s involvement.141 The diverse rulings

on these challenges raised questions about the legality of much of the military assistance being

broadly and regularly provided to law enforcement

agencies. The courts in United States v. Banks and

United States v. Jaramillo found certain military

activities to be in violation of the Posse Comitatus

Act, while the court in United States v. Red Feather found the military involvement at Wounded

Knee permissible.142 The Red Feather court determined, that as long as military assistance was passive or indirect, such assistance did not violate the

Posse Comitatus Act.143

In order to resolve questions raised by the

Wounded Knee cases, and at the urging of the Defense Department and Justice Department, Congress adopted the above distinctions set forth by

the Red Feather court 144 and, in 1981, enacted a

number of general exceptions to the Posse Comitatus Act.145 In general, the 1981 exceptions authorized the military to make available to civilian law

enforcement agencies information collected during

military operations, training and advice, the use of

military equipment and facilities, and the use of

some Defense Department personnel.146 However,

direct participation in law enforcement activities

like search, seizure and arrest was prohibited.147

b. The war on drugs

By the mid-1980’s, there was little question that

the Nation was struggling with a major increase in

illegal drug importation and use, and Congress

summoned a massive increase of resources to

confront this modern scourge. The fiscal year 1989

Department of Defense Authorization Act significantly expanded the role of the National Guard in

support of law enforcement agencies.148 The following year, the role of the military was expanded

further in the fiscal year 1990 Department of Defense Authorization Act which ‘‘directed the U.S.

Armed Forces, to the maximum extent possible, to

conduct military training in drug interdiction

areas.’’ 149

After Congress and the courts expanded permissible military assistance to civilian law enforcement and the Defense Department assumed the

lead in the war on drugs, military assistance to

law enforcement greatly increased. This increased

use of military personnel is most noticeable with

the National Guard because of fewer legal restrictions on its use.

c. The National Guard and the Posse Comitatus Act under current law

The National Guard, for reasons that are at

least partially historical, is not subject to the same

legal restrictions placed on active duty and reserve

military personnel with regard to involvement in
32

150 Rich, The National Guard, Drug Interdiction and Counterdrug Activities, and Posse Comitatus: The Meaning and Implications of ‘‘in Federal Service,’’ 35 Army Law. 1 (1994). Active and Reserve military personnel are both subject to the proscriptions found in the Posse Comitatus Act, while the Posse Comitatus Act only applies to National Guard

personnel when they have been called ‘‘into federal service.’’ 151During the Waco incident, the National Guard was operating under

Title 32 or ‘‘state active duty’’ status as it provided assistance to the ATF

and FBI. By contrast, the status of the Nebraska and South Dakota National Guard units during the 1973 Wounded Knee incident is unclear,

since the courts did not rule on whether the Posse Comitatus Act applied

to the National Guard personnel based upon their status. In Jaramillo,

the court did not indicate whether or not the National Guard had been

‘‘federalized.’’ Similarly, the Red Feather court decided the issue of improper military assistance based on whether the assistance was ‘‘active’’

or ‘‘passive,’’ not on the legal status of the National Guard units. 152 In a pure State status, no Federal funding occurs.

153 Rich, supra note 150. The National Guard Bureau policy on authorized support to law enforcement currently lists 16 approved counterdrug

missions. Any mission outside the parameters of the approved list must

receive Department of Defense approval. See also NGB Reg. 500–2 and

National Guard Counterdrug Coordinator’s Handbook. 154 10 U.S.C. § 377. 155 Id. 156Pub. L. No. 102–190 § 1088, 105 Stat. 1484 (1991). See also Pub.

L. No. 101–510 § 1004, 104 Stat. 1629 (1990) and Pub. L. No. 101–189

§ 1212, 103 Stat. 1567 (1989). 157Office of the Department of Defense coordinator for Drug Enforcement Policy and Support Memorandum, Subject: Priorities, Policies, and

Procedures for DoD CD Support to Domestic Law Enforcement Agencies,

26 Jan. 95. Defense Documents 109–115, at 111. 158 Id.

civilian law enforcement.150 Having evolved from

the State militia concept, the National Guard

holds the unique position as both a State and a

national military force. Thus, a National Guard

member can wear a U.S. Army or Air Force uniform, fly in a military aircraft, receive Federal

military pay and allowances, be covered by the

Federal Torts Claims Act and Federal military

medical care. Yet, he or she can perform this military service not only as a member of the U.S.

Armed Forces, but as a member of the State militia, having a Governor for a Commander-in-Chief

rather than the President of the United States.

The ability of the National Guard to perform

military service in this capacity exists because the

National Guard has three different ‘‘statuses’’

under the law. The first two are a Title 32 status

(also called ‘‘state active duty’’ status) and a ‘‘pure

state’’ status. Under either a Title 32 or ‘‘pure

state’’ status, National Guard troops are under the

command and control of the Governor of their

State and the Posse Comitatus Act does not

apply.151 However under current law, while the

National Guard is in a Title 32 status and under

the command and control of the Governor, it is

still funded with Federal funds.152 An example of

the National Guard being in a Title 32 status is

when National Guard personnel are conducting

counterdrug operations.

The third National Guard status is called ‘‘Title

10’’ or ‘‘federal active duty’’ status. Title 10 status

occurs when Congress or the President takes affirmative action to ‘‘federalize’’ a National Guard

unit as in the case of a natural disaster or civilian

disturbance. Only in a federalized status are National Guard troops under command and control of

the President of the United States. Under this status, the Posse Comitatus Act applies.

Aside from the Title 10 status and Wounded

Knee cases, the Posse Comitatus Act has been

widely interpreted as not applying to the National

Guard. Thus under current law, the leading interpretation of the Posse Comitatus Act is that unless

otherwise prohibited by policy directive, regulation

or State law, the National Guard can participate

actively in civilian law enforcement. The National

Guard, however, does implement similar proscriptions as the Posse Comitatus Act by regulation

even while in a Title 32 status.153

d. Active duty personnel & the Posse Comitatus Act under current law

Unlike the National Guard, active duty military

personnel clearly fall within the proscriptions of

the Posse Comitatus Act. Any assistance they provide to civilian law enforcement personnel must be

either within a statutory exception or expressly

authorized by the U.S. Constitution.

Many of the statutory exceptions to the Posse

Comitatus Act have been enacted in the last 15

years and evolved from a desire to support

counterdrug efforts. Title 10 U.S. Code, Section

371 et. seq. outlines the types of routine law enforcement assistance that active duty military personnel may provide. Such assistance, includes

equipment, training and advice.

One of the most important issues for a civilian

law enforcement agency in deciding whether to

seek and accept military assistance, is whether the

agency must reimburse the military for the assistance provided. Generally, a civilian law enforcement agency must reimburse the military for the

cost of assistance, except under three circumstances. Reimbursement may be waived if the

assistance: (1) is provided in the normal course of

military training; 154 (2) results in a benefit to the

unit providing the support ‘‘that is substantially

equivalent to that which would otherwise be obtained from military operations or training;’’ 155 or

(3) is for counterdrug operations.156

The counterdrug statutory waiver has come to

mean in practice that before a waiver of reimbursement can occur under the counterdrug operation exception, the civilian law enforcement agency must demonstrate the existence of a sufficient

‘‘drug nexus’’ in the investigation.157 Although

there is no defined standard for what constitutes

a ‘‘drug nexus,’’ it is essentially a quantum of credible evidence that links an otherwise non-drug investigation with the existence, or well-founded belief of the existence, of significant illegal drug

crimes.

This waiver for counterdrug operations developed when Congress created a specialized subset

of military assistance for counterdrug operations

in 1990.158 Military assistance for counterdrug operations provided under this statutory authority is

on a non-reimbursable basis, which means civilian
33

159 In early 1989, the Defense Department, at the direction of Congress and the President, ‘‘tasked four war fighting, regional Commander’s in Chief (CINCs) to carry out the drug interdiction mission. The

CINC of Atlantic Command (USCINCLANT) created Joint Task Force,

JTF–4 at the Key West Naval Air Station, Florida. The Pacific Command CINC (USCINCPAC) established JTF–5 at the Alameda Naval Air

Station, California. And, the CINC for Continental Defense

(USCINCFOR) established JTF–6 at Fort Bliss, Texas.’’ Sanchez, supra

note 137, at 17. 160 JTF–6 was created in 1989 to serve as the planning and coordinating (operational) headquarters for military assistance to counterdrug operations of drug law enforcement agencies. JTF–6 is located at El Paso,

TX (Fort Bliss), and supports the Federal, State, and local law enforcement agencies within the southwest border region. It’s region of responsibility mirrors that of Operation Alliance and includes the States of

Texas, New Mexico, Arizona, and Southern California. [JTF–6 Operational Support Planning Guide, Treasury Documents T08786–08789.]

As of October 1, 1995, JTF–6’s area of responsibility expanded from the

southwest border to the entire continental United States, Puerto Rico

and the U.S. Virgin Islands. 161 JTF–6 Operational Support Planning Guide, Treasury Documents

T08786, 08791 (emphasis added). 162The interstate use of National Guard personnel occurred at Waco

with the use of the Alabama National Guard in Texas.

163 ‘‘The Congress shall have Power . . . to provide for calling forth the

Militia to execute the laws of the Union, suppress insurrections, and

repel invasions.’’ U.S. Const. art. I, § 8, cl. 15. 164The U.S. Supreme Court, in U.S. Steel Corp. v. Multistate Tax

Commission, 434 U.S. 452 n.12 (1978) discussed the distinctions between

treaties, compacts and mere agreements. ‘‘Military alliances’’ are cited as

examples of treaties. The Court quotes Story to the effect that: ‘‘Treaties,

alliances, and confederations . . . generally connote military and political accords and are forbidden by the States. Compacts and agreements,

such as questions or boundary; interests in land situate in the territory

of each other; and other internal regulations for the mutual comfort and

convenience of States bordering each other.’’ 434 U.S. at 464. See also

32 U.S.C. § 109 (b) which infers that States do not have the authority

to employ their militia (i.e., the National Guard) outside their boundaries, ‘‘Nothing in this title limits the right of a State or Territory . . .

to use the National Guard or its defense forces authorized by subsection

(c) within its border in time of peace, or prevents it from organizing and

maintaining police or constabulary.’’ 165The treaty-making power is exclusively vested by the Constitution,

in the President, with the advice and consent of the Senate. U.S. Const.

art. 2, § 2, cl. 1. 166 U.S.C.A. Const. art. I, § 10, cl. 1.

law enforcement agencies do not have to reimburse

the military for the assistance. Instead, Congress

provides a separate fund to the military for this

type of assistance. However, these funds must be

used solely for military assistance to civilian law

enforcement agencies for counterdrug operations.

Significant portions of military assistance provided

to ATF and even the FBI were funded through

these counterdrug funds.

A further formalization of the military’s increased support to the war on drugs involved the

creation of Joint Task Forces 159 between civilian

drug law enforcement agencies and the regular

army. The Defense Department created these

Joint Task Forces to increase the coordination between the military and civilian law enforcement

agencies and to increase the civilian agencies’ accessibility to regular army assets for counterdrug

operations. For the Southwest border region where

the ATF investigation of the Davidians took place,

Joint Task Force-Six (JTF–6) 160 was responsible

for the operational support to ATF by active duty

military personnel.

JTF–6’s Operational Support Planning Guide, in

explaining its support capabilities, states, ‘‘No list

of military support capabilities is ever all-inclusive. Innovative approaches to providing new and

more effective support to law enforcement agencies

are constantly sought, and legal and policy barriers to the application of military capabilities are

gradually being eliminated.’’ 161 This quote from

the JTF–6 Operation Support Planning Guide

clearly and succinctly describes the weakening of

the Posse Comitatus Act proscriptions since the

1973 Wounded Knee cases. This observation foreshadowed the potential for military involvement

that was realized eventually at the 1993 Waco

events.

2. Interstate use of National Guard by Governors

There is a common practice among the States of

using National Guard personnel across State

lines.162 States enter into memoranda of agreement with one another which provide for the mutual use of National Guard forces across State

lines. However, these agreements raise several

legal concerns, particularly when the National

Guard personnel are used to assist civilian law enforcement.

Although a thorough examination of memoranda

of agreement is far beyond the scope of the subcommittees’ Waco investigation, the most significant legal issues arising from the use of memoranda of agreement will be highlighted. While the

National Guard has attempted to address these

legal issues, the Defense Department and the

States have failed to adequately address the potential legal problems which memoranda of agreement raise. Two major legal concerns are (1)

whether these memoranda of agreement, or other

similar agreements between states are either a

treaty, an alliance, or confederation in violation of

the U.S. Constitution, or at the very least a compact requiring congressional ratification; and (2)

whether these memoranda of agreement or similar

agreements attempt to supersede State constitutions and statutes without legal authority.

a. States’ power to enter memoranda of

agreement

Only the Congress 163 and the President (to the

extent presently delegated by law) have the power

to use military force across State lines. Many

argue that any agreement between States to concert their military forces for the use of force for

any purpose constitutes a treaty or an alliance.164

However, the U.S. Constitution specifically prohibits States from entering into treaties in any instance,165 and into alliances or confederations

without congressional consent.166 Applying such

an argument would mean that the use of the National Guard for law enforcement purposes across

State lines is strictly prohibited by the U.S. Constitution. The National Guard Bureau takes the

position that such interstate use of force is prohibited, but the contrary opinion is advanced by the
34

167 National Guard Draft Legal Memorandum, ‘‘Cross Border use of

National Guard for Law Enforcement: Constitutional Issues and Need

for Congressional Ratification of Interstate Agreements’’ (Received by

subcommittees on March 12, 1996). 168 U.S. Const. art. I, § 10, cl. 3. ‘‘Not all agreements between states

are subject to strictures of this clause; application of this clause is limited to agreements that are directed to the formation of any combination

tending to increase the political power in the states and which may encroach on or interfere with the just supremacy of the United States.’’

U.S. Steel Corp. v. Multistate Tax Commission, 434 U.S. 452 n.43 (1978)

(citing U.S. Const. art. 1, § 10, cl. 3). See also, Virginia v. Tennessee, 148

U.S. 503 (1893). 169 ‘‘Appellants further urge that the pertinent inquiry is one of potential, rather than actual, impact on federal supremacy. We agree.’’ U.S.

Steel Corp. v. Multistate Tax Commission, 434 U.S. 452, 472 (1978). This

is the current position of the National Guard Bureau. However, the position of the Defense Department and the Army SJA is that these agreements violate the Compact Clause of the Constitution only if they actually encroach of Federal power or enhance State power. 170 National Guard Draft Legal Memoranda, supra note 167. 171The subcommittees have been informed during meetings and follow-up discussion with National Guard Bureau personnel that the Bureau opposed the loan of Puerto Rico National Guard personnel to the

Virgin Islands to suppress looting during Hurricane Marilyn based on

these constitutionality concerns.

172 After Action Report of Texas National Guard Counterdrug Support

in Waco, TX as (April 29, 1993). [See Documents produced to the subcommittees 2344, at Appendix [hereinafter Defense Documents]. The Appendix is published separately.] 173Tex. Code Ann., Title 4, § 431.001. 174 Ala. Code § 31–2–7.

Defense Department General Counsel and the

Army Staff Judge Advocate.167

The National Guard Bureau further argues, also

contrary to the Defense Department General

Counsel and the Army Staff Judge Advocate, that

even if such agreements among States are not

treaties, they are at the very least compacts which

require the consent of Congress.168 If an agreement among States results in a potential encroachment on Federal authority or a tendency to enhance State power, then it would constitute a compact requiring congressional consent.169 The National Guard Bureau argues that these National

Guard memoranda of agreement enhance State

power by allowing Governors to command militia

employed for force across State lines, and therefore, encroach on the President’s power to either

deny or command and control such interstate use.

Thus, the National Guard Bureau believes they require congressional ratification.170

Currently, none of the memoranda of agreement

(or compacts) involving the use of National Guard

personnel across State lines for law enforcement

purposes have been ratified by Congress. Although

the Southern Governors’ Association recently

amended its Southern Regional Emergency Management Assistance Compact at the advice of the

National Guard Bureau, to preclude the use of

force across State lines and seek congressional approval of the compact, most of the interstate National Guard assistance to law enforcement agencies is occurring under the guise of memoranda of

agreement, not congressionally approved compacts.

Moreover, this issue expands beyond direct involvement in law enforcement actions, such as

Waco, to the use of the National Guard for interstate assistance in disaster 171 and emergency relief. In fact, the issue has arisen with respect to

the proposed use of non-Georgia National Guard

units to assist the Georgia National Guard during

the 1996 Summer Olympics, in Atlanta, GA.

b. Memoranda of agreement may attempt to

supersede State law without legal authority

During the ATF investigation of the Branch

Davidians, National Guard assistance to ATF

came not only from the Texas National Guard, but

from the Alabama National Guard.172 At the behest of the ATF, the Adjutant General of the

Texas National Guard requested and received support from the Alabama National Guard to take

aerial photographs. Those aerial photographs were

taken on January 14, 1993. This assistance was

authorized by a ‘‘memorandum of agreement’’ between the Adjutant Generals of the Texas and Alabama National Guards which simply provided for

the use of the Alabama National Guard at the request of the Texas Adjutant General. However, a

review of the State laws of both Texas and Alabama raises legal concerns with the legal authority for conducting this interstate National Guard

operation.

Texas law requires that, ‘‘[a] military force from

another state, territory, or district, except a force

that is part of the United States armed forces,

may not enter the state without the permission of

the governor.’’ 173 Yet, National Guard personnel

who were involved in post-raid National Guard investigations of the Waco incident have stated that

Governors Richards did not approve the use of the

Alabama National Guard. Military documents indicate that Governor Richards was unaware of the

extent of even the Texas National Guard’s involvement until after the failed raid occurred.

An examination of Alabama law indicates that

the Alabama National Guard had no authority to

conduct military operations outside Alabama because the Governor’s authority over the Alabama

National Guard appears only to extend to the

State’s boundaries.174 Thus, it appears that the

Alabama National Guard entered and conducted

military operations in Texas without the proper

authority to do so.

If the Alabama Governor’s command and control

authority ended at the Alabama State line and

Gov. Richards did not approve the Alabama National Guard’s entrance into the State of Texas,

then several questions are raised: Which governor

had command and control of the Alabama National

Guard unit? Who (Texas, Alabama or the Federal

Government) would have been liable for claims of

injury and property damage had any occurred? If

the Alabama unit is considered to be operating

outside its scope of employment, would its personnel lose Federal Torts Claims Act’s protection

against personal liability? And, would the National

Guard personnel risk losing their military health
35

175 JTF–6 Operational Support Planning Guide, Treasury Documents

T08786. 176 Id. at T08790. 177 A drug law enforcement agency is a law enforcement agency that

has jurisdiction over drug laws. ATF was authorized to investigate narcotics traffickers who use firearms and explosives as tools of their trade,

especially violent gangs. 178Operation Alliance is the clearinghouse for all civilian law enforcement requests for military support along the Southwest border. Operation Alliance reviews all requests and coordinates the requests of Federal, State and local agencies, and determines the appropriate military

agency to provide the support. JTF–6 Operational Support Planning

Guide, Treasury Documents T08786, 08790. 179See note 160 and accompanying text. 180 NORAD incorporated the counterdrug mission into its command

structure in 1989. 181The Regional Logistics Support Organizations are under the direct

supervision of the Office of the Defense Department Coordinator for

Drug Enforcement Policy and are the primary point of contact for Drug

Law Enforcement Agency requests for equipment i.e., non-operational

support.

182 JTF–6 and NORAD employ active duty military personnel. The

State National Guard personnel are in a Title 32 status. 183 JTF–6 Operational Support Planning Guide, Treasury Documents

T08786, 08789. 184 Hearings before the Subcommittee on the Treasury, Postal Service,

and General Government Appropriations of the House Committee on Appropriations, 101st Cong., 2d Sess. 688, 695 (1991) (statement of Stephen E. Higgins, Director, Department of Treasury, Bureau of Alcohol,

Tobacco and Firearms). 185Memorandum from Special Agent Eddie Pali, Tactical Operations

Coordinator to the ATF SAC’s in Dallas, Houston, and Los Angeles

(March 15, 1990). Treasury Documents T006661. 186Lt. Col. Lon Walker’s summary of events. Treasury Documents

T007884. 187 Id. 188 Id. 189 Close Quarters Battle involves ‘‘combative techniques which include advanced marksmanship, use of special purpose weapons, munitions, demolitions and selective target engagement conducted by small,

specially trained units against static or halted man-made targets to defeat a hostile force with a minimum of collateral damage.’’ Headquarters,

U.S. Army Special Forces Command, Policy Letter on Close Quarters

Combat (CQC) Training (24 November 1993). The terms CQC and CQB

have been used interchangeably for a number of years. CQC is the military doctrinally correct term. However, in this Report the subcommittees

will continue to use CQB since that was the term used throughout the

post-Waco investigations and the congressional hearings. 190 After discussions between the Special Operations Command and

Special Forces Command had taken place regarding U.S. Army Special

Forces Command (Airborne) participation in conducting CQB/SOT for

drug law enforcement agencies, the Commander of the U.S. Army Special Operations Command (USASOC) informed the Commander of JTF–

Con

care and other military benefits in the event of an

accident?

Memoranda of agreement currently used fail to

address the intricacies which State laws present

and they do not appear to have legal authority to

supersede State constitutions and statutes. Because State laws differ, these questions must be

addressed on a case by case basis if States are

going to engage in the interstate use of National

Guard personnel.

B. THE BUREAU OF ALCOHOL, TOBACCO AND FIREARMS’ REQUEST FOR MILITARY ASSISTANCE AND

THE MILITARY ASSISTANCE ACTUALLY PROVIDED

The pre-raid military assistance in Waco was

provided through active duty and National Guard

counterdrug units based on an alleged drug nexus.

Much of the post-raid military assistance to the

FBI and ATF also came from counterdrug units

and funds. Central to understanding how the military became involved in the Waco matter is an understanding of how ATF’s initial request for military assistance, based on alleged drug involvement, progressed.

1. Overview

a. The process for requesting military assistance along the southwest border

Military support to counterdrug operations along

the Southwest border of the United States is designed ‘‘to assist law enforcement agencies in their

mission to detect, deter, disrupt, and dismantle illegal drug trafficking organizations.’’ 175 Thus,

military support acts as a ‘‘force multiplier,’’ allowing law enforcement agencies to focus on ‘‘interdiction seizure actions.’’ 176

When a drug law enforcement agency 177 requests counterdrug military assistance along the

Southwest border, that request is received and reviewed by Operation Alliance, which acts as the

clearinghouse.178 The request is then coordinated

with support organizations such as JTF–6 179 , the

North American Aerospace Defense Command

(NORAD),180 the Regional Logistics Support Office 181 and the pertinent National Guard. Operational support is provided as a joint effort by

JTF–6, NORAD and the National Guard.182 Nonoperational support which would include, but is

not limited to, equipment, institutional training,

and use of facilities would be provided by the Regional Logistics Support Office.183

To receive assistance through Operation Alliance

and from these organizations, the civilian law enforcement investigation must involve criminal violations of U.S. drug laws, i.e., have a ‘‘drug nexus.’’

Having initiated 232 Operation Alliance investigations through fiscal year 1989,184 ATF was no

stranger to Operation Alliance’s counterdrug mission and its drug nexus prerequisite. In fact, documents dated as far back as March 15, 1990, designated ATF Special Agent Sarabyn, and ATF Special Agent Pali, the ATF coordinator for Operation

Alliance during the Branch Davidian investigation,

as ATF coordinators for military assistance.185

b. Chronology of ATF’s request

The chronology of ATF’s request for military assistance provides insight into how early ATF wanted military assistance, how the military and ATF

became concerned with the drug nexus issue, and

how the military’s concerns changed the scope of

military assistance provided.

As early as November 1992, ATF agents were

discussing the need for military support with Lt.

Col. Lon Walker, the Defense Department representative to ATF.186 In his ‘‘summary of

events’’ 187 November entry, Lt. Col. Walker specifically states that, at that time, he was not told

of any drug connection.188

By December 1992 (almost 3 months before the

raid), ATF agents were requesting Close Quarters

Combat/Close Quarters Battle 189 (CQB) training

by U.S. Army Special Forces soldiers for ATF

agents.190 A basic CQB course takes a minimum of
36

6 by military message, dated 4 January 93 (within a very close proximity to ATF’s request for CQB), that the USASOC would provide CQB

Special Operations Training CQB/SOT training to law enforcement

agencies. ‘‘It is anticipated that CQB/SOT training support requests may

be filled by the U.S. Army John F. Kennedy Special Warfare Center and

School (USAJFKSWCS) or other units that include CQB/SOT as part of

their METL.’’ The memorandum goes on to state that USASOC and

USASFC(A) have only agreed to provide CQB/SOT instruction to the

U.S. Border Patrol Tactical Unit (BORTAC). 191 ‘‘SOF Assistance to Federal Law Enforcement in Waco, Texas.’’ Defense Documents D–1116A. 192SOT stands for Special Operations Training. Although SOT is not

an official military term for Special Operations Training, i.e., it is an acronym for a course taught at the U.S. Army John F. Kennedy Special

Warfare Center and School (USAJFKSWCS), it will be used here to

identify Special Operations Training because that is how it is used by

the military documents referred to by the subcommittee investigators.

See Headquarters, USASFC (A) Policy Letter on Close Quarters Combat

Training (24 Nov. 1993) (unnumbered) for discussion on proper usage of

SOT. 193See memorandum of 3rd Special Forces Group, Headquarter’s

Memorandum on Special Operations Training and Close Quarters Battl

(21 Sept. 1992) (unnumbered); See also memorandum of U.S. Army Special Forces Command (Airborne) on USASFC policy for conducting

counterdrug operations in the continental United States (23 Feb. 1993)

(unnumbered) and Headquarters U.S. Army Special Forces Command

(Airborne) Policy Letter on Close Quarters Combat Training (24 Nov.

1993) (unnumbered). 194Lt. Col. Lon Walker’s summary of events. Treasury Documents

T007884. 195Memorandum from Colleen Callahan and Robert Tevens to Geoff

Moulton and Lew Merletti, ‘‘Chronology and Witnesses Re: Military Support of ATF’’ (July 14, 1993). Treasury Documents T004589.

196Lt. Col. Lon Walker’s summary of events. Treasury Documents

T007884. 197 Id. 198 Id. 199Memorandum from Colleen Callahan and Robert Tevens to Geoff

Moulton and Lew Merletti, ‘‘Chronology and Witnesses Re: Military Support of ATF’’ (July 14, 1993). Treasury Documents T004589. 200 Id. Mr. Enney was designated by Texas Governor Richards as the

Texas State representative for Defense Department coordination of the

Texas National Guard Counterdrug Support Program. 201The Branch Davidian residence was termed a ‘‘compound’’ by ATF,

during the investigation, and the media and other commentators subsequently adopted this militaristic term for a fortified or highly secure

structure. 202Memorandum from Colleen Callahan and Robert Tevens to Geoff

Moulton and Lew Merletti, ‘‘Chronology and Witnesses Re: Military Support of ATF’’ (July 14, 1993). Treasury Documents T004589, T004590.

2 months and advanced CQB training takes a minimum of 6 months. Moreover, CQB is the type of

specialized training a terrorist or hostage rescue

team such as the FBI Hostage Rescue Team would

use. CQB is also a perishable skill requiring frequent/continuous training that ATF, as an agency,

is not designed to maintain or utilize. Somewhat

surprisingly, neither the documents from the

Treasury investigation, nor the Treasury Report,

itself, never refer to this request.

However, one military document furnished to

the subcommittees as part of their document request specifically states that no written documentation is available on this extraordinary request by ATF for CQB training.191 This is the case

despite ongoing discussions in 1992 and early 1993

within the senior ranks of the U.S. Army Special

Operations Command regarding the prudence of

making SOT 192 /CQB training available to civilian

law enforcement and foreign military personnel.193

These discussions are significant because they

again foreshadow the potential use in civilian law

enforcement of highly specialized military training,

designed and intended for military operations.

On December 4, 1992, several ATF Special

Agents, including the SAC’s of the Dallas and

Houston ATF offices, met at Houston’s ATF field

office for the first time to discuss the Waco investigation.194 In attendance were SAC Phillip J.

Chojnacki; SAC Ted Royster; Assistant Special

Agent in Charge James Cavanaugh; Resident

Agent in Charge Earl K. Dunagan; Special Agents

Aguilera, Lewis, Petrilli, Buford, K. Lattimer, Williams, Carter, and John Henry.195 Also present at

that meeting was Lt. Col. Lon Walker, the Defense

Department representative to ATF. Lt. Col. Walker’s notes of the meeting reveal that he explained

to those present ‘‘that the military probably could

provide a great deal of support and [that he] suggested things like aerial overflight thermal photography.’’ 196 Lt. Col. Walker’s notes also state that

he explained ‘‘that without a drug connection the

military support would be on a reimbursable

basis.’’ 197 This reference to reimbursement is significant because it reveals that military aid was,

as of that date, understood to require reimbursement by ATF unless a drug nexus could be identified and articulated with sufficient specification to

warrant military aid on a non-reimbursable basis.

Lt. Col. Walker’s December 4th entry is followed

by a handwritten note that states ‘‘Aguilera said

there was no known drug nexus.’’ 198

On December 11, 1992, Special Agent Jose G.

Viegra, the Resident in Charge (RAC) of the Austin, TX ATF Office, met with representatives for

the Texas Governor’s Office about the role of the

military in any potential ATF action involving the

Davidians.199 Representatives of the Texas Governor’s Office present at the meeting were William

R. Enney, Texas State Interagency Coordinator

and his assistant Lieutenant Susan M. Justice, Assistant Interagency Coordinator of the National

Guard Counterdrug Support Program.200

This meeting was requested by ATF to discuss

specifically what types of military assistance were

available to the ATF for its raid on the Branch

Davidian residence 201 in Waco, TX. During the

meeting, Special Agent Viegra was told that military assistance through Operation Alliance would

not be available unless there was a ‘‘drug nexus.’’

That meeting constituted the second time in 8

days that ATF agents inquiring about military assistance were told of a drug nexus prerequisite. At

the December 11, 1992, meeting, Enney asked the

ATF agents to determine whether a drug nexus

did in fact exist.

Three days after their meeting with ATF, the

Texas counterdrug representatives received a facsimile of a letter dated December 14, 1992, on

‘‘Houston SAC letterhead’’ from the RAC of the

Austin ATF office, Earl K. Dunagan, requesting

military assistance from the Texas Counterdrug

Program.202 The military assistance requested

from the Texas National Guard was for aerial reconnaissance photography, interpretation and

evaluation of the photos, and transportation of
37

203 Id. 204 Id. 205Meeting with Army National Guard Brigadier General Sagsveen, in

Washington, DC (October 19, 1995). 206Memorandum from Colleen Callahan and Robert Tevens to Geoff

Moulton and Lew Merletti, ‘‘Chronology and Witnesses Re: Military Support of ATF’’ (July 14, 1993). Treasury Documents T004589. This document lists the date as Dec 17th. Lt. Col. Walker’s Waco Summary of

Events lists the date as the 16th. Treasury Documents T007884. 207Memorandum from Colleen Callahan and Robert Tevens to Geoff

Moulton and Lew Merletti, ‘‘Chronology and Witnesses Re: Military Support of ATF’’ (July 14, 1993). Treasury Documents T004589. 208 Id. 209 Id. 210 Id. 211 Id.

212 A FLIR, also called a Thermal Imaging System (TIS), is a type of

photography which images thermal heat sources. 213Memorandum from Special Agent Robert Tevens, ‘‘Chronology and

Witnesses Re: Military Support of ATF’’ (July 14, 1993). Treasury Documents T004589, T004591. 214Treasury Department Report at 44 n.18. 215Treasury Documents T004601, T004602. The proper procedure for

requesting military assistance along the Southwest border is to go

through Operation Alliance. Letter from Operational Alliance to Special

Agent Eddie Pali, ATF Coordinator for Operation Alliance (January 26,

1990). Treasury Documents T006663–006664. Despite ATF not following

this process, documents provided by Treasury indicate their agents were

aware the procedural requirements. Id. 216See note 181. 217Treasury Documents T004603. 218MOUT stands for Military Operations on Urbanized Training

‘‘which would include all military actions that are planned and conducted on a terrain complex where man-made construction impacts on

the tactical options available to the commander. These types of operations are characterized by large-scale offensive and defensive operations. The primary objective is to seize and hold ground using all available means. This often results in extensive damage to the area.’’ Memorandum from U.S. Army Special Forces Command regarding Policy Letter on Close Quarters Combat (CQC) Training (November 24, 1993).

ATF agents aboard the aircraft during the reconnaissance.203 Although the request did not mention suspected drug violations (drug nexus), as

would be required to secure non-reimbursable assistance or military assistance from a counterdrug

unit, Lt. Col. Pettit, the Texas Counterdrug Task

Force Commander, initialed his approval on the

request.204

Lt. Col. Pettit told National Guard investigators

that he provided his approval because the request

required another person’s approval as well.205

However this decision, in itself, raises several unanswered questions. Did Lt. Col. Pettit assume a

drug nexus existed or that one was not needed?

Did he believe that the request should be approved

despite the absence of legally required drug nexus?

Or did he believe that ATF would reimburse the

National Guard? These questions repeat themselves throughout the approval process, and are

raised here to illustrate the difficulties encountered in disentangling a past approval of military

aid involving a drug nexus.

Two days after Lt. Col. Pettit’s approval, Special

Agent Aguilera informed Lt. Col. Walker on December 16, 1992, that he received a facsimile from

Mark Breault in Australia suggesting the existence of a methamphetamine lab at the Branch

Davidian residence.206 Mr. Breault was a former

Branch Davidian who left the group on bad terms,

and exhibited strong personal animosity toward

Koresh and several of the Davidians.

The following day, December 17, 1992, SAC

Phillip Chojnacki held a meeting in his office with

Special Agent Ivan Kallister, Special Agent Davey

Aguilera, and Lt. Col. Walker regarding the Waco

investigation.207 According to ATF, Lt. Col. Walker

told SAC Chojnacki during the meeting that the

Defense Department could provide non-reimbursable military support if there is a ‘‘suspicion of

drug activity.’’ 208 Aguilera was subsequently instructed to ‘‘actively pursue information from his

informants about a drug nexus.’’ 209 Additionally,

ATF Intelligence Research Specialist Sandy

Betterton searched criminal records to determine

if Branch Davidians had ‘‘some’’ prior drug offenses.210 It later was determined that only one

Branch Davidian had a prior narcotics conviction.211

January 6, 1993 was the first National Guard

overflight of the Branch Davidian residence and

their auto body shop, called the ‘‘Mag Bag.’’ This

overflight was conducted by the Texas National

Guard Counterdrug unit in a UC–26 counterdrug

aircraft. Forward Looking Infrared (FLIR) 212 videotape taken during the overflight indicated a ‘‘hot

spot’’ inside the residence and three persons outside behind the residence whom ATF designated

as ‘‘sentries.’’ 213 The Texas National Guard conducted five more reconnaissance/surveillance overflights over the Branch Davidian property from

February 3, 1993, to February 25, 1993. These

overflights were conducted to ‘‘search for armed

guards and drug manufacturing facilities.’’ 214

On the same day as the first National Guard

overflight, January 6, 1993, Richard Garner, Chief

of Special Operations Division of ATF, drafted another request on ATF Headquarters letterhead directly to Colonel Judith Browning, Director of

Plans and Support, of the Office of the Department

of Defense Coordinator for Drug Enforcement Policy and Support.215 ATF requested the loan of various office equipment, a refrigerator, cots and

sleeping bags to be made available on January 11,

1993. The letter states that the ATF was investigating violations of ‘‘firearms and drug laws’’ and

requested the equipment as ‘‘part of Defense Department support for counterdrug effort.’’ Col.

Browning responded by letter on January 15 approving the support to be provided by the Regional

Logistics Support Office 216 in El Paso, TX.217 The

same questions asked of Lt. Col. Pettit above must

be asked here of Col. Browning. Here, as with Lt.

Col. Pettit, key documentation justifying the deployment of non-reimbursable military aid on the

basis of a proven or suspected drug nexus is missing. Yet, Col. Browning approved the request and

directed further ATF requests to be made directly

to the Regional Logistics Support Office in Texas.

Within a week after Col. Browning’s response,

Garner sent a further request to Major Victor

Bucowsky, the Officer-in-Charge of the Regional

Logistics Support Office requesting an MOUT 218

site for Special Response Team training, driver

training and maintenance support for Bradley
38

219Treasury Documents T004606 (dated January 22, 1993), T004612.

Treasury Document T004610 is a duplicate of the letter except it is

dated January 21, 1993 and has handwritten notes along the border.

The notes along the border appear to indicate that JTF–6 was responsible for the SRT training and ‘‘No, T–32 TX’’ is written next to the

Bradley training (T–32 apparently refers to Title 32). 220Memorandum of interview from Special Agent Robert Tevens for

the Waco Administrative Review (September 14, 1993). Treasury Documents T005397, T005399. 221Memorandum from Colleen Callahan and Robert Tevens to Geoff

Moulton and Lew Merletti, ‘‘Chronology and Witnesses Re: Military Support of ATF’’ (July 14, 1993). Treasury Documents T004589, T004590. 222 At the time of the Waco incident Philip Lindley served as a Major

in the U.S. Army. However, since that time, he has been promoted and

testified before the subcommittees with the rank of the Lieutenant Colonel. He will be referred to as Lt. Col. Lindley throughout the Report. 223 A Rapid Support Unit (RSU) is comprised of a Special Forces Company with attached aviation asset. Rapid Support Unit Description

Paper. Defense Documents D–1353. The subcommittees are aware of no

RSU aviation assets being used at Waco. ‘‘RSU missions are characterized by small, short duration, interdiction missions normally limited to

border areas.’’ Id. (emphasis added). The paper states under Mission Parameters that ‘‘the mission must be related to the Special Operations

Mission Essential Task List (wartime tasks) and should be intel-prompted.’’ Id. 224Mission Essential Task List (METL) includes soldiers’ wartime

tasks, i.e. what skills a soldier has been trained in and capable of training others in. Special Forces units who were assigned to Operation Alliance were restricted to their METL training law enforcement agents. 225Defense Department Documents D118. 226 Id.

227Texas National Guard After-Action Report (April 29, 1993). Defense

Documents D2344 at D2346. 228 Id. 229 Id. 230 Id. 231 ‘‘SOF Assistance to Federal Law Enforcement in Waco, Texas.’’ Defense Documents D–1116A. 232Medical techniques for treating battlefield injuries including intravenous injections of fluids, clearing airways, controlling bleeding and

treating shock. Sworn statement of Maj. Petree. Defense Documents D–

1147. 233 ‘‘SOF Assistance to Federal Law Enforcement in Waco, Texas.’’ Defense Documents D–1116A. 234 Id. 235Treasury Investigation interviews of National Guard personnel.

Treasury Documents T005368.

fighting vehicles, seven Bradley fighting vehicles,

and on-call support in the event a siege occurred.219 This was the largest request for assistance in Regional Logistics Support Office’s history

and eventually had to be supplied by Texas National Guard because the Regional Logistics Support Office was unable to handle a law enforcement request of such magnitude.220

On February 2, 1993, Operation Alliance made a

request to the Commanding General of JTF–6 for

the use of Special Forces personnel assigned to his

organization.221 Lt. Col. Philip W. Lindley,222 the

U.S. Army Special Forces Command Staff Judge

Advocate, was notified of this request and advised

JTF–6,

. . . that Rapid Support Unit (RSU) 223

assistance in actual planning and rehearsal of proposed ‘‘takedown’’ could violate posse comitatus law, expose RSU to

liability. [A q]uestion also arises as to appropriateness of RSU giving nonMETL, 224 i.e., SOT/CQB training to

ATF.225

However, there again is no written documentation

of ATF’s request for this highly controversial training.

Within days, the training mission by Special

Forces soldiers was revised to include only coordination on Army ranges and teaching ATF how to

develop an operations order.226

c. Pre-raid military assistance requested by

ATF and assistance actually received

The military assistance provided to ATF can be

separated into four areas: (1) surveillance overflights by counterdrug National Guard units in

January and February 1993; (2) training by Special Forces soldiers assigned to JTF–6 for

counterdrug missions in late February 1993; (3) direct support by Texas National Guard counterdrug

personnel who conducted an aerial diversion the

day of the raid on February 28, 1993; and (4) postraid support to FBI and ATF.

Six surveillance overflights were conducted by

counterdrug National Guard units. Aerial photography missions by the Texas National Guard

began on January 6, 1993.227 The January 6 missions and subsequent missions on February 3, 18,

and 25, 1993, were taken by a Texas National

Guard Counterdrug UC–26 aircraft.228 On January 14, 1993, aerial photographs were taken by the

Alabama National Guard.229 And, on February 6,

1993, the Texas National Guard provided infrared

video (FLIR) and aerial photography in a

Counterdrug UC–26 aircraft.230

ATF’s request for training of ATF agents by Special Forces soldiers went through several alterations before the actual training took place. Although ATF initially requested Bradley fighting

vehicles, SOT/CQB training, on-site medical evacuation assistance and planning assistance, legal restrictions caused the ATF request to be scaled

down.231 A Special Forces Rapid Support Unit, assigned to Operation Alliance, trained ATF on 25–

27 February 1993, in company-level tactical C2,

Medical Evacuation training, IV ABC’s,232 and assistance with Range and MOUT sites.233 According

to military documents and military witnesses who

appeared before the subcommittees, no non-Mission Essential Task List (wartime tasks) training,

SOT/CQB, or direct involvement in actual planning occurred.234

For the February 28 raid, the Texas National

Guard supplied three helicopters and 10

counterdrug personnel. When ATF requested National Guard assistance, their stated mission to

the National Guard was to use the helicopters as

a command and control platform during the raid,

and to transport personnel and evidence after the

area was secured.235 Only when the National

Guard team arrived at Fort Hood for the pre-raid

training, less than 24 hours before the raid, did

ATF agents inform the National Guard personnel

that the helicopters would be used as an aerial diversion during the raid itself. ATF had even assigned one of the National Guard counterdrug soldiers to hang from a monkey sling outside the heli-
39

236Treasury Investigation interviews of National Guard personnel.

Treasury Documents T005376. 237 Id. Interviews indicate that the helicopters were 350 feet from the

Branch Davidian residence when they were hit. Treasury Documents

T005370. 238Treasury Investigation interviews of National Guard personnel.

Treasury Documents T005371. 239 NGB–500–2. 240Memorandum of Interview from Special Agent Tevens for the Waco

Administrative Review (March 16, 1995). Treasury Documents T008300.

241Memorandum from Debra Diener, Senior Counsel to Geoffrey

Moulton, Director of the Treasury Waco Administrative Review regarding the statutory and regulatory criteria and requirements for requesting military assistance and National Guard assistance (August 12,

1993). Treasury Documents T008304 at T008307. 242Post hearing briefing by National Guard personnel. 243Memorandum of Interview of Special Agent Tevens for the Waco

Administrative Review (March 16, 1995). Treasury Documents T008300;

Treasury Department Report at 95. 244 Hearings Part 1 at 385–386.

copter to film the raid.236 The soldier was in that

position when the helicopters took incoming

fire.237 Although all of the three helicopters sustained damage from weapons fire, none of the National Guard crews or ATF personnel aboard were

injured.238 Since such direct involvement is prohibited by National Guard Bureau regulations 239

and placed National Guard personnel in imminent

danger, it is unclear why the National Guard consented to ATF’s ‘‘last-minute’’ changes.

The National Guard’s focal group review of the

incident did not shed much light on the issue. The

summary of its report, dated April 28, 1993, and

the report itself ‘‘reveal only one major issue. The

issue deals with the pre-raid threat assessment of

the Davidians provided by ATF to the Texas National Guard as a ‘docile’ environment. A second

issue, which is not included in the written report

of the focal group but has been vocalized by Colonel Spence, deals with the suspected methamphetamine laboratory at the Branch Davidian residence. Colonel Spence contends that the drug issue

is not included in the focal group report due to the

potential media interest and any resulting Freedom of Information Act inquiries.’’ 240

d. Without the alleged drug nexus, the ATF

most likely would not have received the

same military assistance as was provided

Treasury and Defense Department officials have

repeatedly maintained that ATF would have received military assistance even without a drug

nexus, but that ATF would had to have paid for it.

However, this statement is misleading because it

fails to answer whether ATF would have received

the same training it requested from units other

than counterdrug units and for purposes other

than counterdrug operations.

What is clear is that the ATF would not have received military assistance from the highly trained

Special Forces units in such a short time frame

and through the streamlined approval process

which it enjoyed. As stated above, the ATF originally requested Close Quarters Combat training, a

type of training available only from specialized

military units like Special Forces. ATF’s request

was also the largest law enforcement request for

military assistance in many of the counterdrug organizations’ histories, such as the Regional Logistics Support Office. ATF further requested that its

military training be conducted less than 30 days

after its request, while even the streamlined Operation Alliance process normally required 90 days.

Requesting through Operation Alliance also allowed ATF to avoid an approval process with a

greater potential of independent oversight.

The same conclusion can be reached for the National Guard support. Had there been no drug

nexus, there again would have been a different approval process. Without a drug nexus (i.e., noncounterdrug purpose), ATF’s request for National

Guard assistance would only be permitted if both

the Texas State Constitution authorized the National Guard’s involvement in the type of assistance ATF requested and the Governor was willing

to expend State funds for that purpose.241 National Guard personnel have indicated that the assistance would not have been provided under those

circumstances.242 This is supported by the fact

that the National Guard Bureau regulations prohibit the type of direct involvement ATF received

from the National Guard counterdrug personnel,

i.e., acting as a diversion during the ATF raid.243

Further, since the Texas National Guard depleted

its fiscal year 1993 counterdrug funds during its

assistance to ATF at Waco and had to request additional funding during it assistance, it is doubtful

that Governor Richards would have approved

State funding of so expensive an operation.

2. Concerns of military legal advisors

Assistant Secretary of Defense Allen Holmes

and Maj. Gen. John M. Pickler both appeared before the subcommittees. They testified that the approval process worked as it was intended.244 Yet,

documents show that this was so only because

Special Forces Command legal advisors at the U.S.

Special Forces Command Headquarters, who were

outside the normal approval process, but who had

learned of ATF’s request for assistance from Special Forces soldiers at Operation Alliance, strongly

voiced objections to the Special Forces training

mission of ATF as proposed by JTF–6. As a result

of these concerns reaching extremely senior levels

of command within the Department of Defense,

the training missions were scaled back significantly and potential violations of the law were

avoided.

a. Involvement of Special Forces Command

legal advisors

As referred to earlier, a Rapid Support Unit

(RSU) from Third Company, Third Division, Special Forces Group was deployed on a regular rotation to JTF–6 for counterdrug missions. When the

original ATF request was assigned to this RSU

team, Maj. Ballard, the Special Operations Rep-
40

245 Id. at 368. 246 Id. at 352–353. 247 Id. at 368. 248 Id. at 350. 249 Id. at 351. 250Memorandum for record of Lt. Col. Philip Lindley (3 February

1993). Defense Documents D–1168 at D–1169. 251 Id. at D–1172. 252 Hearings Part 1 at 350–351. 253 Interview of Lt. Col. Phillip Lindley by Glenn R. Schmitt, Counsel

to the Subcommittee on Crime, and Michele Lang, Special Counsel to

the Subcommittee on National Security, International Affairs, and

Criminal Justice, in Washington, DC (July 19, 1995). 254 Hearings Part 1 at 367.

255 Id. at 367–368. 256 Id. 257 Id. at 353. 258 Id. 259 Id. at 385–386. 260Memorandum of Military Support to Civil Authorities by William

Perry, Secretary of Defense, to the Secretary of the Army, Chairman of

the Joint Chiefs, Under Secretary of Defense (Policy), Under Secretary

of Defense (Comptroller), and the General Counsel of the Department of

Defense (May 17, 1995).

resentative at JTF–6, telephoned Special Operation Command at Fort Bragg and expressed his

concern with the ATF training mission to Mr.

Crain, a civilian employee at Special Operations

Command.245

Upon hearing the details of the original request,

Mr. Crain also became concerned and immediately

notified Lt. Col. Lindley.246 Lt. Col. Lindley subsequently spoke with Maj. Petree, the Special Forces

Rapid Support Unit Commander, who also expressed similar concerns about the scope of the

mission.247

Lt. Col. Lindley testified before the subcommittees that he was principally concerned with three

areas of the support requested—the review and

scrub of the ATF operation plan, medical support

in close proximately to the scene, and assistance in

developing and constructing the rehearsal sites.248

Lt. Col. Lindley’s first concern was the review and

scrub which is an analysis of a mission that has

already been planned. The review and scrub of the

operation plan and the review of the discriminating fire plan would have been done by the Special

Forces unit assigned to JTF–6, which ultimately

provided the military training to ATF.249 Lt. Col.

Lindley was of the opinion that the actual planning and rehearsal of the take down was ‘‘active’’

and therefore illegal.250 He also believed that the

Special Forces unit was not authorized to offer expert advice on deconstructing a drug lab.251

Lt. Col. Lindley’s second concern dealt with the

use of military medical personnel. According to

ATF’s request, these military medical personnel

would be on-site and directly involved in potential

searches of individuals apprehended and in the

collection of evidence, resulting in Posse Comitatus

Act implications. This degree of direct involvement

would also create liability issues associated with

the treatment of the civilians.252 The medical personnel potentially would be treating gunshot

wounds of children, and military medical personnel do not have the training or equipment to treat

such trauma wounds (gunshots) in small children.

For example, some medical equipment for children

such as breathing tubes require special sizes with

which these medical teams are not be equipped.253

According to Lt. Col. Lindley, the JTF–6 informed him that the law enforcement action was a

raid on a methamphetamine lab.254 Having been

involved in law enforcement actions involving

methamphetamine labs as a civilian, Lt. Col.

Lindley was aware of concerns with the physical

characteristics of methamphetamine production

and the dangers in the chemicals, as well as ammunition considerations given the explosive nature

of methamphetamine labs.255 Contamination of

soldiers’ clothing by chemicals used in the production of methamphetamines would involve those

soldiers in the collection of physical evidence.256

Again, such direct involvement would violate the

Posse Comitatus Act.

Upon completing his discussions with the Special Operations personnel, Lt. Col. Lindley directly

contacted JTF–6 personnel to express his concerns

about the mission. When Lt. Col. Lindley informed

JTF–6 personnel that, from his initial analysis of

the information presented, the request was impermissible as proposed, he received a hostile response from Lt. Col. Rayburn, the JTF–6 Legal

Advisor.257 After his conversation with JTF–6 personnel, Lt. Col. Lindley began a memorandum for

record detailing the chronology of events and conversations as they took place.258 JTF–6, not Lt.

Col. Lindley, subsequently provided the legal review of the request.

After the requests for additional evidence of

methamphetamine production, the military assistance allowed was drastically restricted.

3. Evidence indicating problems in the approval

process

Contrary to assertions by Assistant Secretary

Holmes, Brig. Gen. Huffman, and Maj. Gen. Pickler, the approval process did not work as it was

supposed to.259 First, although concerns had been

raised that JTF–6 had been providing military assistance to non-counterdrug activities, little documentation of ATF’s requests for military assistance exists. Second, while some senior military officers and DEA officials had opportunities to voice

concerns about ATF’s alleged drug nexus, they

chose not to exercise those opportunities. Third,

because a few military officers identified major

legal problems with the training mission and alerted senior military commanders, despite threats by

other senior military officers, the mission was altered to avoid violations of the law. Finally, after

Waco hearings were scheduled, the Secretary of

Defense acknowledged problems with the military

assistance process and created a working group to

review the process.260

a. Concerns of cheating by JTF–6

Military documents indicate that a problem existed with JTF–6 providing military assistance to

law enforcement agencies in the absence of a drug
41

261 ‘‘Desires to know the [U.S. Army Special Operations Command] position regarding the attached draft [message]. Intent is to go on record

confirming the phonelon arrangements, and to reinforce [Special Operations Forces] Resistance to potential ‘cheating’ which seems to recur at

JTF–6.’’ Comments from a U.S. Special Operations Command facsimile

(February 17, 1993). The facsimile cover was attached to the February

3, 1993 message regarding the Special Forces training mission of ATF

and had multiple routing destinations. (Unnumbered). 262 Id. 263 National Defense Authorization Act Fiscal Year 1991, § 1004, Pub.

L. 101–510 (as amended by National Defense Authorization Act Fiscal

Year 1991 § 1088, Pub. L. 102–190, and by National Defense Authorization Act Fiscal Year 1993 § 1041, Pub. L. 102–484, FY 93 NDAA.). 264 Hearings Part 1 at 367. 265The subcommittees discovered a number of post-Waco promotions

of military assistance and ATF requests for military assistance. A sampling of those include: According to a Defense Department memo dated

September 9, 1993, ATF requested and received approval for 2 weeks of

Special Forces Training for 20 ATF agents less than 5 months after the

tragic incident at Waco. Defense Documents D–1167. Another Special

Operations Judge Advocate memo addressing this Special Forces training, indicates that ATF again was attempting to obtain military assistance without reimbursing Defense Department: ‘‘we cannot waive reimbursement under the fiction that we are ‘training the trainer’ as is not

so subtly suggested by the 3 Aug BATF letter.’’ Defense Documents D–

1166. A June 15, 1993 ATF memorandum from Special Agent Pali, the

ATF Deputy Senior Tactical Coordinator at Operation Alliance to the

Chief of the Special Firearms Division and the Special Agents in Charge

of the Dallas, Houston and Los Angeles Field Divisions enclosing an Regional Logistics Support Office document describing the ‘‘latest information regarding the types of support and procedures for Drug Law Enforcement Agencies to request excess property, non-operational support

or training from the Department of Defense.’’ Treasury Documents

T006665. 266 ‘‘[T]he only question I have is related to how we got involved. Was

the ‘methamphetamine’ lab a subterfuge to get our (military) (506) (?)

Involvement? Seems to me we need to be sure that what the ground

rules are. Reasonable man rule applies.’’ Unsigned handwritten note on

a lieutenant general’s note paper. Defense Documents D–1363. 267Pre-hearing meetings with Assistant Secretary Allen Holmes. See

also Hearings Part 1 at 367 (statement of Maj. Gen. John M. Pickler).

268 JTF–6 Operational Support Planning Guide at 16. Treasury Documents T08786, T08803. 269 Hearings Part 1 at 361. 270 Id. at 372. Maj. Petree had to have known, or certainly should have

known, as a senior military officer assigned to JTF–6, that a drug nexus

was absolutely necessary to receive assistance from his unit through

JTF–6. Even though Staff Sgt. Fitts, one of the writers of the paper, noticed the ATF agents’ disinterest in the vital paper and clearly came to

the conclusion that a methamphetamine lab did not exist, Maj. Petree

indicated that he did not notice any remarkable reaction by the agents.

nexus.261 These concerns apparently had reached

the highest levels of the Department of Defense.262

When JTF–6 provides military assistance in

non-counterdrug related law enforcement actions,

it is referred to as ‘‘cheating’’ because it allows the

law enforcement agency to obtain military assistance without reimbursing the military. Moreover,

military assistance provided under these circumstances is funded with money specifically appropriated for counterdrug activities.263 Furthermore, cheating allows JTF–6 to provide military

assistance to non-counterdrug activities, outside

the scope of its authorized purpose.264 Interviews

with Defense Department counterdrug personnel

revealed that self preservation in part fuels JTF–

6 efforts to secure healthy budget allocations.265

Documents provided by the Treasury Department

show that in the months following the tragic end

of the Branch Davidian siege, JTF–6 and Operation Alliance were actively promoting their services to ATF. This was occurring even as senior

military officials expressed concern that ATF misrepresented the required drug nexus in order to

obtain military assistance.266

Assistant Secretary Holmes stated that JTF–6

does not verify whether a ‘‘drug nexus’’ exists before providing military assistance because it would

potentially place the military in a capacity of conducting surveillance and investigations of American citizens, which is a violation of U.S. law.267

Secretary Holmes’ purported concern is not responsive to the issue. Contrary to Mr. Holmes’ assertion, the verification of a drug nexus would not require military personnel to conduct surveillance of

or otherwise investigate American citizens. Rather,

verification could be accomplished simply by establishing a standard which requires sufficient documentation by the law enforcement agency of the

existence of drug offenses, as opposed to mere

speculation or suspicion. In addition, JTF–6’s own

planning guide states that it ‘‘reviews and validates all requests for support’’ in conjunction with

Operation Alliance, the National Guard, and the

Regional Logistics Office.268

b. Special Forces paper and ATF’s response

Further evidence suggesting a serious problem

in the military’s approval of assistance to ATF in

this case involves ATF agents’ reactions to the Bureau’s own claim that a methamphetamine lab existed in the Branch Davidian residence.

The alleged presence of a methamphetamine lab

was the basis for which the Special Forces assistance provided to ATF. After Special Forces legal

advisors concerns’ with the proposed training and

ATF’s alleged drug nexus, Maj. Petree, the Commander of Special Forces Rapid Support Unit

which was assigned to provide ATF support, ordered two of his Special Forces medics to research

and write a paper on methamphetamine labs for

ATF. These Special Forces medics, who are highly

skilled military personnel with far more advanced

training than a typical civilian paramedic, spent 3

to 4 days researching and writing a memorandum

on methamphetamine labs for ATF.269

There is no doubt that a central purpose of the

memorandum on methamphetamine labs was to

inform the ATF of the potential dangers and special precautions required when dealing with an active methamphetamine lab. Yet, when Maj. Petree

presented the paper to ATF agents during the February 4–5, 1993, Houston meeting, these agents

openly chose to ignore this information in front of

the soldiers who prepared the document. In fact,

the ATF agents’ dismissal of such vital information was so obvious that these agents’ reactions

alone made to clear that the ATF believed that a

methamphetamine lab did not exist.270

Maj. Petree indicated that the purpose of the

Special Forces paper was for the informational use

of Special Forces units who might be involved in

future counterdrug activities involving methamphetamine labs. Yet, when the subcommittees

requested a copy of the Special Forces paper during a visit by subcommittees’ staff to the U.S. Special Operations Command in Fort Bragg, NC, they
42

271The presence of the Special Forces paper alone would provide evidence to produce charges that: (1) Special Forces trainers were deficient

in their training of ATF in failing to ensure ATF took proper precautions; (2) Special Forces trainers knew from ATF’s failure to incorporate proper precautions that no methamphetamine lab existed and

thus they inappropriately provided military assistance in a noncounterdrug law enforcement operation. Neither of these potential

charges is flattering to JTF–6, and especially to Maj. Petree, who presented the paper to ATF and who commanded the Special Forces units

which trained ATF. 272Senior DEA Representative William C. Rochon and DEA Staff Coordinator Richard G. Thomas were on the Operation Alliance board.

However, Special Agent Thomas was on sick leave from approximately

October 1992 until his retirement in January 1993, so he has no personal knowledge of Operation Alliance’s activities in support of ATF’s investigation of the Branch Davidians. Letter from the U.S. Department

of Justice to the subcommittees (January 5, 1996) (responding to the

subcommittees’ October 25, 1995, request for information).

273 Handwritten memorandum on the letterhead of Judge Advocate

General’s Corp, U.S. Army. Defense Documents D–1155 at D–1157. The

memo refers to the soldiers actions as ‘‘doing the right thing, not the

easy thing.’’ 274 All law enforcement agency requests for military assistance along

the Southwest border must be routed through Operation Alliance. Once

the request is received, it is reviewed by Operation Alliance. If Operation Alliance accepts the request, it is then sent to JTF–6 for processing. JTF–6 Operations Section will develop a draft operations order with

the law enforcement agency. Once the planning is complete, the draft

order is returned to Operation Alliance for its approval. A final approval

of the operations order is then determined at a joint meeting of the

heads of supporting field drug law enforcement agencies, the Special

Forces Rapid Support Unit tasked by JTF–6 and the tactical coordinator

for Operational Alliance. Letter from Operational Alliance Special Agent

Eddie Pali, ATF Coordinator for Operation Alliance (January 26, 1990).

Treasury Documents T006663–006664. 275Memorandum for record from Lt. Col. Philip Lindley. Defense Documents D–1168 at D–1170. 276 Id. 277 Handwritten memo on the letterhead of The Judge Advocate General’s Corps, U.S. Army. Defense Documents D–1155 at D–1156.

were informed that it could not be located.271 Sgt.

Fitts had not seen the Special Forces paper since

the meeting in Houston and had no idea what became of the Special Forces paper after the meeting. If the Special Forces paper was written as an

information resource, the Special Operations Command would be expected to have a copy of this

paper on file.

c. Two DEA agents were members of the Operation Alliance board

Military officers were not alone in their inaction.

Documents show that two senior DEA agents were

assigned to Operation Alliance at the time of

ATF’s request for military assistance at Waco.272

Yet, none of the documents indicate that either of

these DEA agents expressed concerns about the

evidence ATF offered in support of its claim of an

active methamphetamine lab or how ATF was

planning to take down the alleged methamphetamine lab.

These two senior DEA agents were members of

the Operation Alliance Board which provides the

final approval of military assistance missions to

drug law enforcement agencies. It is reasonable to

assume that these DEA agents were aware of the

safety and health risks a methamphetamine lab

would present.

Treasury and Defense Department documents

provided to the subcommittees indicate that Operation Alliance at least twice requested additional

information on ATF’s drug nexus, that a very contentious discussion between legal advisors and

senior military officials of Special Operations Command and Operation Alliance had taken place, and

that this was the largest raid in law enforcement

history. Yet, no evidence was presented to show

that these DEA agents expressed any concerns

that ATF was not addressing these risks in their

operational planning.

d. Approval process did not work

Contrary to the testimony of Assistant Secretary

Holmes and Maj. General Pickler, the training

mission did not violate laws because the approval

process worked, but in spite of it. Only because

certain soldiers recognized a legal problem and

had the courage to raise the issue in light of opposition from their chain of command at JTF–6, was

a ‘‘major incident avoided, lives were saved, and

the law was not violated.’’ 273

JTF–6 and Operation Alliance have the approval

authority for law enforcement requests for military

assistance along the Southwest border, which

means their legal advisors conduct the legal review of the proposed assistance, not Special Operations Command legal advisors at Fort Bragg.274

Soldiers are taught that they should always go

through their chain of command to address a problem. Only under significant circumstances are soldiers encouraged to go outside their chain of command for assistance. The Special Forces soldiers

assigned to assist ATF, apparently had been properly trained to go outside their chain of command,

which at the time was at JTF–6, by contacting

their legal advisor at Special Operations Command, (USAFC) if they had concerns about a mission.

The Special Forces soldiers assigned the ATF

mission did just that. Maj. Ballard, the Special Operations Representative at Operation Alliance, contacted Mr. Crain at Special Operations Command.

Crain then informed Lt. Col. Lindley of their concerns.

It was Lt. Col. Lindley, the legal advisor of the

Special Operation Command, who raised the legal

concerns with JTF–6. Lt. Col. Lindley received a

hostile response from Lt. Col. Rayburn, the JTF–

6 legal advisor who accused him of attempting to

‘‘undermine’’ and ‘‘undercut’’ JTF–6’s mission.275

Lt. Col. Lindley was also told that he could consider Lt. Col. Rayburn’s words a personal attack.276 Subsequent to Lt. Col. Lindley’s telephone

conversation with Lt. Col. Rayburn, these concerns

were raised with the Commanding Generals of

both Special Operations Command and JTF–6 and

eventually reached the Office of the Secretary of

Defense. When the legal concerns were reviewed

at that level, the Special Forces training mission

was modified to comply with the law.277
43

278Memorandum of Military Support to Civil Authorities by William

Perry, Secretary of Defense, to the Secretary of the Army, Chairman of

the Joint Chiefs, Under Secretary of Defense (Policy), Under Secretary

of Defense (Comptroller), and the General Counsel of the Department of

Defense (May 17, 1995). 279 Id. 280The Joint Task Force of the Drug Enforcement Administration, the

U.S. Environmental Protection Agency, and the U.S. Coast Guard,

Guidelines for the Cleanup of Clandestine Drug Laboratories 8. See also,

Bureau of Justice Assistance, Developing a Strategy for a Multiagency

Response to Clandestine Drug Laboratories 4 (September 1995).

281 Id. at 8. 282 Id. at 3. 283Drug Enforcement Administration briefing to the subcommittees

(June 8, 1995) and subsequent telephonic interviews with DEA chemists. 284 Id. at iii. 285 Bureau of Justice Assistance, supra note 280, at 5. 286 Id. 287The Joint Task Force of the Drug Enforcement Administration, the

U.S. Environmental Protection Agency, and the U.S. Coast Guard, supra

note 280, at 4. 288 Id.

e. The working group established by the Secretary of Defense

The final piece of evidence that serious problems

exist in the process by which the military provides

support to civilian law enforcement agencies is the

Secretary of Defense’s creation of a working group

to review the process in the wake of the subcommittees’ announcement of Waco hearings

which would also explore the military’s role in the

incident.

On May 17, 1995, Secretary of Defense William

J. Perry directed the Under Secretary of Defense

for Policy to establish a working group ‘‘to conduct

a comprehensive review of the current system by

which Defense Department evaluates and responds to requests for assistance initiated by outside agencies.’’ 278 Perry acknowledged in his

memorandum that, ‘‘several recent events suggest

that the process by which Defense Department

evaluates and approves outside requests for assistance may be less than adequate’’ and that ‘‘there

are indications that Defense Department’s ability

to respond smoothly is encumbered by conflicting

directives, multiple entry points and diverse funding authorities.’’ 279

C. THE ALLEGED DRUG NEXUS

As explained earlier, in order to receive military

assistance at Waco from the military counterdrug

units, ATF was required to have a drug nexus.

The existence of a drug nexus also would have allowed ATF to receive that military assistance

without being required to reimburse the military

for the cost of the training. ATF’s allegation that

a drug nexus existed at the Davidians’ residence

raised two concerns: (1) whether ATF used this alleged drug nexus as a subterfuge in order to obtain free military assistance from specially trained

Special Forces counterdrug units; and (2) assuming ATF actually believed a drug nexus existed,

whether ATF ensured that its agents were aware

of the extreme health and safety hazards that a

methamphetamine lab presents, and were properly

trained and equipped to address those hazards.

1. Methamphetamine laboratories

ATF alleged to the military that it had evidence

of an ‘‘active methamphetamine lab’’ on the premises of the Davidians’ residence. Unlike general

narcotics seizures, clandestine labs, by their very

nature, ‘‘present a unique series of hazards and

risks to law enforcement personnel.’’ 280 Therefore,

an allegation of an active methamphetamine lab

should alarm any law enforcement official, because

of the extreme safety and health dangers involved.

a. Dangers associated with methamphetamine labs

Hazards which law enforcement agents may expect to encounter in clandestine lab operations include exposure to toxic chemicals, explosive and

reactive chemicals, flammable agents, irritant and

corrosive agents, booby traps, and physical injury

from close quarter contact with illegal lab operators.281

Illegal methamphetamine labs use highly volatile chemicals during the production process. Notwithstanding the booby traps law enforcement

agents frequently encounter at methamphetamine

labs, the firing of a single bullet, sparks from turning off and/or on light switches, flashlights, or

even a flash from a typical photography flashbulb

can easily trigger an instantaneous explosion.

Toxic vapors produced during chemical reactions

can permeate a building’s structure and buildings

with poor ventilation and temperature controls

(like the Davidians’ residence) ‘‘add to the potential for fire, explosion, and human exposure.’’ 282

One chemical used in clandestine drug labs is so

deadly that an amount small enough to fit on the

head of a pin, could kill a room full of people.283

Other health concerns are no less serious. In the

absence of proper safety precautions and cleanup

procedures, law enforcement agents may ‘‘experience both acute and chronic adverse health effects

as a result of exposure to solvents, reagents, precursors, by-products, and drug products improperly

used or generated during the manufacture of illegal drugs.’’ 284 Toxic materials produced at these

labs can injure the lungs or the skin, damage the

liver, kidneys, even the central nervous system.285

Some toxins have been linked to malformation of

embryos, other genetic damage, cancers, and reproductive failure.286

In determining appropriate safety and health

precautions, the subcommittees relied on standards set forth by the Drug Enforcement Administration (DEA). DEA has primary jurisdiction over

investigations of clandestine drug labs. As the lead

Federal agency, it has established procedures that

DEA agents must follow during the investigation

and seizure of drug labs.287 Moreover, this approach by DEA has been a model for State and

local agencies in developing their own clandestine

drug lab programs.288
44

289 Id. 290 Id. at 5. 291 Bureau of Justice Assistance, supra note 280, at 16. 292The Joint Task Force of the Drug Enforcement Administration, the

U.S. Environmental Protection Agency, and the U.S. Coast Guard, supra

note 280, at 8. 293 Id. 294 ATF did not mention a drug lab or possession of illegal drugs as

suspected crimes in its search warrant. 295The Joint Task Force of the Drug Enforcement Administration, the

U.S. Environmental Protection Agency, and the U.S. Coast Guard, supra

note 280, at 5.

296 Id. 297 ‘‘In seizing a clandestine drug laboratory, the law enforcement

agency may encounter materials that technically qualify as hazardous

wastes and therefore are ‘subject to regulation.’ If those wastes exceed

certain minimal quantities, the law enforcement agency becomes a hazardous waste generator and is required to adhere to waste disposal regulations promulgated under RCRA, and to regulations governing the

transportation of hazardous materials promulgated by the Department

of Transportation.’’ Id. at iv. 298 Id. at 8. 299 Id. 300 Id. 301Mr. Higgins was Director of the ATF both during the investigation

and at the time of the February 28, 1993, raid on the Branch Davidian

residence.

b. Certification/training requirements for

deconstruction of methamphetamine

labs

Law enforcement personnel engaged in the investigation and seizures of clandestine drug labs

should have specialized training in the investigation of such labs, in appropriate health and safety

procedures, and in the use of the protective equipment.289

The DEA requires all of its personnel to complete a course on clandestine methamphetamine

labs and be certified prior to ever participating in

a methamphetamine lab raid.290 Simply stated, no

DEA agent may participate in ‘‘take downs’’ of

methamphetamine labs without proper certification. Annual recertification also is required. In

addition, DEA provides seminars on clandestine

methamphetamine labs throughout the Nation to

other local, State, and Federal law enforcement

personnel.

DEA agents are also required to receive a ‘‘baseline medical screening, including an occupational/

medical history, a complete physical examination,

a blood chemistry screen, pulmonary function and

spirometry testing, and a stress-treadmill test

prior to assignment.’’ 291 Agents have regular follow-up medical evaluations and, because of the

risks associated with long-term exposure, regularly

are rotated out of the Clandestine Lab Program.

The initial entry team also must have and be

trained in the use of ‘‘appropriate monitoring instrumentation, such as air-sampling pumps,

explosimeters, oxygen meters, organic-vapor analyzers . . . that are used to determine the lower

explosive limit and the concentration of organic vapors in the laboratory atmosphere.’’ 292 All of the

monitoring devices must be ‘‘designed to suppress

sparks’’ that may ignite and cause fires or explosions.293

c. The special precautions required when law

enforcement actions involve a methamphetamine lab

After an investigation has gathered sufficient

probable cause to establish that a drug lab is operating on a premises, DEA agents obtain a search

warrant. Agents may request in the warrant the

authority to destroy any hazardous bulk chemicals

and equipment.294 A forensic chemist is consulted

prior to and during the seizure.295 Once the warrant is obtained, the case agents begin a six step

process for conducting the seizure: planning, entry,

assessments, processing, exit, and follow-up.296 Because ATF entered the Branch Davidian residence,

only the first two steps will be discussed in detail.

In the planning stage, the case agents must first

assess of the hazards likely to be encountered and

determine who needs to be notified before the raid

(i.e. police, fire department, hospitals, hazardous

waste contractors.) 297 This includes a determination of what chemicals the agents might encounter. Once the assessment is complete, certified

teams, including a forensic chemist and site safety

agent trained and equipped with the requisite

safety equipment, are assigned.

The second stage is the initial entry to apprehend and remove the operators and to secure the

lab. Typically in methamphetamine lab operations,

law enforcement agents will attempt to arrest the

suspects away from the premises to avoid many of

the aforementioned dangers. This is usually accomplished through surveillance and investigative

techniques which provide law enforcement agents

with sufficient information to determine the lab’s

exact location, what chemicals are being used, the

stage of the production process and when the suspects will leave the premises.

If the lab operators cannot be apprehended away

from the premises, then the initial entry takes

place. ‘‘DEA protocol calls for the initial entry

team to employ ballistic protection equipment and

fire retardant clothing.’’ 298 Other safety procedures include avoiding the use of shotguns or diversionary devices such as flash bangs, smoke, or

tear gas canisters which can ignite fumes.299 Additionally, agents should avoid turning light electrical switches on or off, use only explosion-proof

flashlights, and use electronic strobes, not flashbulbs.300 Once the premises are secure and everyone is evacuated, the assessment step begins.

d. Did ATF address the extreme safety and

health concerns a methamphetamine lab

presents in its raid on the Branch

Davidian residence?

In 1990, Stephen E. Higgins,301 the Director of

the Bureau of Alcohol, Tobacco and Firearms, testified before the Subcommittee on the Treasury,

Postal Service, and General Government Appropriations of the Committee on Appropriations. In

written responses to questions from subcommittee

members, Higgins acknowledged:
45

302 Hearings before the Subcommittee on Treasury, Postal Service, and

General Government Appropriations of the House Committee on Appropriations, 101st Cong., 2d Sess. 688, 695 (1991). 303Operations Order, February 17, 1993, Defense Documents D–587. 304 Undated Department of Treasury response to subcommittees’ request for information. 305 ATF policy on the use of ‘‘flash bang’’ diversionary devices states,

‘‘Drug laboratories or other explosive environments may be so hazardous

as to preclude the use of [flash bang] devices.’’ and ‘‘If [a flash bang]

lands on a combustible material a fire is not only possible but likely,

(laundry, newspaper, clothing, etc.).’’ [Page 66 of the ATF training manual on the use of diversionary devices] no mention of the alleged presence of a methamphetamine lab is mentioned in ATF’s request to the

Chief of Special Operations Division for the use of flash bangs during

the raid. [Request to use flash bangs, dated February 5, 1993, Treasury

Documents 008213–14].

306 Bureau of Justice Assistance, supra note 280, at 7 (citing 29 C.F.R.

Part 1910). 307 Id. at 8. 308Memo from Colleen Callahan and Robert Tevens to Geoff Moulton

and Lew Merletti, ‘‘Chronology and Witnesses Re: Military Support of

ATF’’ (July 14, 1993). Treasury Documents T004589, 004590. Actual facsimile, Treasury Documents T008912. 309Facsimile from Mark Breault to Special Agent Davey Aguilera (December 16, 1992). Treasury Documents T00008912. 310 Id. 311 Id.

[W]e [at the ATF] are aware of the considerable hazards presented by the careless storage of chemicals and the sensitivity of the explosive mixtures at these

[clandestine methamphetamine] laboratories. In an effort to ensure a safe and

thorough investigation, ATF has proposed

specific, specialized training for select

ATF personnel to readily identify narcotics laboratories and to recognize certain

hazardous materials associated with the

laboratories.302

Given that Higgins was still the ATF Director during the period when David Koresh was being investigated, when the Waco raid took place and

during the post-raid investigation, it is reasonable

to conclude ATF was aware of the safety and

health hazards presented by methamphetamine

labs. Furthermore, since the case had the ‘‘highest

interest of BATF Washington and had been approved at that level,’’ 303 ATF headquarters was

aware of the alleged presence of a methamphetamine lab.

Even so, in response to the subcommittees’ inquiries, ATF has acknowledged that no ‘‘ATF

agent who was present on February 28, 1993, . . .

had received specific, specialized training in investigating methamphetamine laboratories.’’ 304 In reviewing videotapes of the Fort Hood training, subcommittee investigators also found no discussion of

the potential safety and health hazards that the

suspected active methamphetamine lab would

present. In other words, ATF agents participating

in the raid had little or no notice of the dangers

they might have forced in the active methamphetamine labs.

From numerous briefings and a review of videotape shot on the day of the raid, it appears that

ATF agents did possess ballistic protection equipment and fire retardant clothing. ATF agents also

possessed regular flashlights and regular cameras

(i.e. flash photography), shotguns and flash

bangs,305 each of which could trigger instantaneous explosions if used in the vicinity of a methamphetamine lab. Nor is there any evidence that

any ATF agents possessed appropriate monitoring

equipment to determine the lower explosive limit

and the concentration of vapors in the atmosphere,

or explosion proof flashlights.

Clearly, ATF disregarded the safety of its agents

and innocent civilians. Agencies involved in clandestine lab operations fall under OSHA regulations requiring the following actions by employers: 306

• ‘‘Communication to employees of clear, unambiguous warnings, as well as provision of

educational programs on the hazards of chemical substances.’’

• ‘‘Training of all employees who may be exposed to hazardous substances in how to recognize and handle safety and health hazards

at laboratory sites, in the use of protective

equipment, and in safe work practices.’’ Training must meet OSHA standards.

• Examining and monitoring the health of all

employees exposed to hazardous substances

including documentation of any exposure.

• Provide information to employees regarding

any hazardous conditions in their work environments.

When agencies fail to adhere to these requirements, ‘‘supervisors can be held strictly and severally liable for situations involving employee exposure to hazardous substances and the resulting adverse health effects.’’ 307

2. Evidence purporting to show the alleged drug

nexus

a. Mark Breault’s statement

Coincidentally, after repeatedly being informed

by military officials of the drug nexus requirements, Aguilera received a facsimile on December

16, 1992, from Mark Breault in Australia, which

according to ATF ‘‘suggest[ed] the existence of an

illicit methamphetamine laboratory at the Branch

Davidian compound.’’ 308 Mr. Breault’s facsimile

relays that upon taking over the Mount Carmel

(Residence of the Branch Davidians) property from

George Roden, the former Branch Davidian leader,

Koresh found methamphetamine lab equipment

and ‘‘recipes’’ and called the Sheriff’s Department

to turn over the materials.309 It had been long rumored that an individual who used to rent from

Mr. Roden was into drugs but he had later gone

to prison.310 This individual was no longer on the

property when Koresh took over.311

Mr. Breault’s facsimile to Special Agent Aguilera

also indicated that although Koresh did call the

Sheriff’s Department and Sheriff’s Department

personnel did come out to the property, one indi-
46

312 Id. 313 Id. 314 Id. 315 Id. 316 Id. 317 Hearings Part 1 at 369–370. 318There are numerous examples of where ATF indicated to the military there was an ‘‘active methamphetamine lab’’ and ‘‘deliveries of precursor chemicals.’’ A few are the February 17, 1993, Operations Order,

and the February 2, 1993, letter from Operation Alliance to the Adjutant

General of the Texas National Guard counterdrug unit informing them

that ATF had requested National Guard assistance in serving a Federal

search warrant ‘‘to a dangerous, extremist organization believed to be

producing methamphetamine.’’ Treasury Documents T005551. See also

Defense Documents D–581.

319Waco Raid Assessment by Lt. Robert A. Sobozienski. Treasury Documents T00021383. 320Treasury Department Report at 212. 321Ms. Sparks was an investigations supervisor for the Texas Department of Protective and Regulatory Services, Children’s Protective Services, who was interviewed repeatedly by ATF. 322Prepared statement of Joyce Sparks. See Appendix. [The Appendix

is published separately.] 323 Id. 324 Id. 325The hiring of State and local chemical companies was the result of

legislation which corrected the problem of DEA disposing of the methamphetamine lab materials. Each time DEA disposed of a methamphetamine lab, the agency came under the Hazardous Waste laws, as a hazardous waste generator. 326 Although the Sheriff’s Department acknowledged visiting the

Branch Davidian residence to remove methamphetamine lab materials

at Mr. Koresh’s request in 1989, there was no record of the actual removal of the methamphetamine lab materials. However, there could be

numerous reasons why no such record existed from a Sheriff’s call 4

years prior, and without further evidence of the methamphetamine lab’s

continued use or even its continued existence there is little probative

value to Mr. Breault’s information. Neither ATF’s search warrant nor its

vidual present at the residence when the Sheriff’s

Department visited said she did not personally observe Koresh turn the lab equipment over to the

Sheriff’s Department.312 Mr. Breault also stated in

his facsimile that one night in 1989, Koresh ‘‘was

talking about trafficking drugs as a way of raising

money.313 He [Koresh] seemed very interested in

getting money through this means.’’ 314 However,

Mr. Breault also admits in his facsimile that he

was the only ex-member who was present for this

statement.315 Mr. Breault goes on to say in the

same document that the building in which he implies the drug lab equipment was located burned

down in Spring 1990.316 Lt. Col. Gen. Pickler testified before the subcommittees that this information from Mr. Breault regarding a methamphetamine lab also was told to the military by ATF.317

However, military documents indicate that ATF

was conveying to the military the presence of an

active methamphetamine lab.318

There were at least six significant problems with

its credibility as evidence that the Branch

Davidians were operating a methamphetamine lab

prior to ATF’s raid. First, the allegations were

very stale by legal standards. ATF received the information more than 5 years after the methamphetamine lab equipment was found and the

Sheriff’s Department visited the premises to investigate the claim. Second, it is undisputed that

Koresh found the methamphetamine lab equipment and Koresh himself called the Sheriff to pick

up the equipment. Third, the person rumored to

have been involved in drugs was an occupant of

the premises prior to Koresh taking over, and subsequently was sent to prison. Fourth, the former

leader, Mr. Roden, not Koresh, was suspected of

having been involved in illegal drugs. Fifth, the alleged statement by Koresh about drugs could not

be verified independently. Sixth, the building Mr.

Breault implies housed the methamphetamine materials burned down in 1990, 3 years before the

raid.

Perhaps the most disturbing fact about this information, however, is that all of this drug nexus

information originated with Mr. Breault, a disgruntled former member who left the group in

1989. The fact that Mr. Breault maintained an extensive biographical database on present and

former members and was working with a self-proclaimed cult-buster Rick Ross in and of itself

should have raised questions about Mr. Breault’s

intentions and credibility to the ATF agents.

Lt. Robert A. Sobozienski, a New York City Police officer who acted as an expert consultant to

the Treasury Department’s Waco Review Team,

summarized the problem with the information

Breault provided when he wrote in his Waco Raid

Assessment, ‘‘Former cult members were interviewed and, apparently much, if not all of their

statements are reported to be facts. No thought is

given to the idea that these ex-cult members had

been away from the residence for some time, or to

the individual biases, or if they had an ax to grind

with present cult members.’’ 319

ATF agents did check with the McLennan County Sheriff’s Department personnel who acknowledged Koresh’s request but ‘‘found no record’’ of

the removal of methamphetamine lab equipment.320 However, Joyce Sparks 321 states in written testimony, that during her child protective

services investigation in 1992 she checked with the

Sheriff’s Department and was told that Department personnel did receive drug evidence from

David Koresh.322 During her interviews with him,

Koresh told her that he had given the Sheriff’s Department information, pictures, and drug evidence

but nothing had ever come of it.323 Koresh complained in his interviews with Sparks that the

Sheriff’s Department was aware of the illegal

methamphetamine lab.324

The disposal of methamphetamine lab equipment and chemicals presents great risk and significant problems. As a matter of routine, DEA

hires certified State and local chemical disposal

companies to remove the lab equipment and

chemicals for proper disposal under EPA guidelines.325 Because the cleanup costs can easily total

$20,000, or significantly more, depending on the

size and condition of the lab site, local law enforcement officials sometimes choose not to remove the

lab equipment and chemicals or not to follow the

proper environmental guidelines for removal in an

effort to avoid the legal liabilities and costs associated with such labs.326
47

supporting affidavit contain any information about suspected illegal

drug activity. 327Memorandum from Colleen Callahan and Robert Tevens to Geoff

Moulton and Lew Merletti, ‘‘Chronology and Witnesses Re: Military Support of ATF’’ (July 14, 1993). Treasury Documents T004589, 004590. 328 Id. 329 Id. 330 Id. 331 Id. 332 Id. 333 Hearings Part 1 at 363. 334Drug Enforcement Administration briefing to the subcommittees

(June 8, 1995) and telephone interviews with Drug Enforcement Administration chemists.

335General Pickler testified that Lt. Col. Berthal was told at the February 4 and 5, 1993, meeting in Houston that ATF had intended to include a DEA lab team in the Waco operation. Hearings Part 1 at 369–

370. 336Treasury Document T4589. 337 U.S. Department of Justice, Drug Enforcement Administration publication, Chemicals Used in the Clandestine Production of Drugs at ii

(March 1995). 338On February 2, 1993, ATF Special Agents Pali and Phil Lewis met

with representatives of the JTF–6, Texas National Guard and Operation

Alliance. Lewis mentioned the delivery of precursor chemicals to the residence. On February 4, 1993, ATF Special Agents Lewis, Pali, and ATF

Special Agent Chuck Sarabyn met with representatives from JTF–6 and

the Texas National Guard to discuss evidence of a possible drug nexus.

Attendees recall Sarabyn showing documents detailing the delivery of

precursor chemicals to the residence. However, Treasury has been unable to find those documents. Letter from Department of Treasury to the

subcommittees (January 26, 1996) (responding to the subcommittees’ request for information on November 16, 1995.)

b. The National Crime Center check

As mentioned earlier, after a December 17,

1992, meeting of SAC Chojnacki, Aguilera and Lt.

Col. Walker in which Lt. Col. Walker informed the

ATF agents that ATF could receive non-reimbursable military support if a drug nexus existed, ATF

Intelligence Research Specialist Sandy Betterton

was instructed to search criminal records of

Davidians to identify prior drug offenses.327 However, when ATF Special Agent Pali was interviewed by Treasury Agents during the Post-Waco

review, he admitted that only one Branch

Davidian had a prior drug conviction.328

c. FLIR hot spot

Treasury Department documents provided to the

subcommittees indicate that at the request of ATF,

Forward Looking Infrared Radar (FLIR) imaging

was taken on January 6, 1993, by the Texas National Guard Counterdrug unit in a National

Guard counterdrug aircraft. Eugene Trevino, a

Texas National Guard airman aboard the aircraft,

offered an unofficial interpretation of the FLIR

photos to the Austin ATF agents in which he stated that the ‘‘hot spot’’ inside the residence ‘‘could

be indicative of ‘a methamphetamine lab.’ ’’ 329 It is

unclear whether ATF agents solicited Trevino’s

personal interpretation or if he offered it on his

own volition.

Regardless of the impetus for the interpretation,

Lt. Col. Pettit and Lieutenant Justice ‘‘maintained

that only information about grid coordinates was

officially provided to ATF’’ and that ‘‘no official interpretation was ever provided to ATF regarding

the ‘hot spot.’ ’’ 330 Even though ATF never sought

an official interpretation,331 ATF agents later offered the ‘‘hot spot’’ as direct evidence of a methamphetamine lab to the military when JTF–6 requested additional proof of the drug nexus at a

February 4, 1993 meeting.332

Major General Pickler testified that at the February 4 meeting there was some pictorial evidence

(i.e., FLIR evidence) that an active methamphetamine lab was on the site of the residence and

ATF expected the lab to be there.333 Interviews

with DEA agents have revealed that FLIR imaging

is not a technique used to identify clandestine

drug labs because using ‘‘hot spots’’ as signatures

for methamphetamine labs is too unreliable.334

DEA agents have informed subcommittee staff

that the use of FLIR imaging to identify an active

methamphetamine lab would be a last resort and

only as ‘‘icing on the cake’’ under that circumstance.

d. The DEA lab team

Only when General Pickler of JTF–6 continued

to request additional evidence of a methamphetamine lab, did ATF indicate it intended to include

a lab team from the DEA in the operation.335

Treasury documents indicate that two DEA officials were at the Command Post at the Texas

State Technical Institute on the day of the raid;

but ATF declined the DEA offer of direct assistance from a DEA Clandestine Certified Laboratory

Team.336 Such a lab team is specially trained and

certified to ‘‘take down’’ active methamphetamine

labs. These teams also have the specialized equipment and tactical training required for methamphetamine lab operations.

e. The precursor chemicals used to produce

methamphetamine

There are numerous methods to produce methamphetamine. However, certain chemicals required in the synthetic process are themselves incorporated into the molecule of the target drug (in

this case methamphetamine).337 These chemicals

are referred to as precursor chemicals and their

delivery would be evidence that methamphetamine

was being produced. While ATF agents repeatedly

proffered evidence of deliveries of precursor chemicals to the Branch Davidian residence as proof of

an active methamphetamine lab, the Treasury Department has since been unable to locate or

produce the documents offered to support its precursor contentions.338

Treasury documents outlining the series of

meetings between military, Texas National Guard,

and ATF officials, describe a February 4, 1993,

meeting held at the SAC/Houston office regarding

military support. In attendance were Special

Agent Lewis; Special Agent Sarabyn; Lt. Col.

Bertholf; Special Agent Pali, ATF coordinator to

Operation Alliance; William Enney, Texas State

Interagency Coordinator; and Maj. Lenn

Lannaham, JTF–6 Liaison. During the meeting,

Sarabyn offered ATF documents including a list of

methamphetamine precursor chemicals, in support
48

339 Again, the subcommittees have never received this document listing the methamphetamine precursor chemicals, nor has ATF documentation on the delivery of such chemicals to the Branch Davidian residence

been provided. 340 Hearings Part 1 at 363, 369–370. 341 Id. at 378. The Treasury Department has been unable to locate

these documents. 342 Id. 343 JTF–6 Operational Support Planning Guide, p. 16–T08786, 08803.

344Treasury Documents T004634–T004642. 345Treasury Documents T004621–T004624. 346 Id. 347Treasury Documents T008213–T008214.

of the drug nexus.339 As a result of the meeting,

military support of the Branch Davidian investigation continued.

According to General Pickler’s testimony before

the subcommittees, Lt. Col. Berthal was told at

the February 4, 1993 meeting in Houston that precursor chemicals were discussed as one of the elements of proof proffered by ATF that an active

methamphetamine lab existed and those chemicals

may have been on site at the Branch Davidian residence.340 General Pickler testified that the ATF

representative, while giving a background briefing

as to why ATF had targeted the Davidians, indicated that UPS or shipping documents ATF was

tracking included a great deal of precursor chemicals consistent with the production of illegal

drugs.341 However, General Pickler also testified

that precursor chemicals were discussed in the

context of the possibility of a delivery of those

kinds of chemicals much earlier than 1993, but he

is not exactly certain which precursor chemicals

were there.342

General Pickler’s testimony raises several questions: First, what did ATF actually tell the military about precursor chemicals? Second, General

Pickler’s testimony implies it was that information

about deliveries of precursor chemicals that ATF

offered when the military requested additional evidence. If General Pickler was uncertain when precursor chemicals were present at the Branch

Davidian residence, why did he approve the ATF

training by an elite Special Forces military unit

assigned to do counterdrug missions? Third, did

General Pickler simply rely on the absence of a defined drug nexus standard in approving the training mission? Fourth, after he requested additional

information before approving the military training,

why did General Pickler and other military officials say it is not the position of the military to

question the veracity of a drug law enforcement

declaration that a drug nexus exists? Especially,

since JTF–6’s own planning guide States that in

conjunction with Operation Alliance, the National

Guard and Regional Logistics Office ‘‘reviews and

validates all requests for support.’’ 343

3. Evidence refuting ATF’s claim of a drug nexus

a. ATF failed to address the issue of an active methamphetamine laboratory into

raid planning

Undermining ATF’s claim that a methamphetamine lab existed at the Branch Davidian residence, is the fact that briefing papers which went

up to ATF Headquarters, status reports and other

requests failed to mention the existence of a methamphetamine lab at the planned raid site or suspected illegal narcotics production.

A review of the January 5, 1993, briefing paper

sent to ATF’s Washington, DC. Headquarters reveals that no mention of the subject of drugs or

military involvement even though senior ATF officials at headquarters were signing off on requests

for military assistance under the guise of a

counter-narcotics operation.344 Treasury documents indicate that this briefing paper was forwarded to the Assistant Secretary of the Treasury

for Enforcement after review by the ATF Director

and his staff.345 The forwarding of this type of

briefing paper was the normal procedure the ATF

Director used to notify Treasury of major on-going

cases.346

In addition to the January 5 briefing paper,

monthly status reports were prepared by Aguilera,

reviewed by Dunagan, the Assistant Resident

Agent in Charge of the Austin, TX office and approved by Chojnacki, the Special Agent in Charge

of the Austin, TX office who then forwarded the reports to the Special Agent in Charge of the Houston Office. Although these reports being provided

over a 9 month period and almost daily during the

weeks leading up to the raid, they never mention

the case as a counter-narcotics investigation or

any military involvement.

As late as February 5, 1993, Chojnacki requested the use of flash bangs and failed to mention the possible existence of an ‘‘active methamphetamine lab,’’ even though ATF policy states

that drug laboratories or other explosive environments may be so hazardous as to preclude the use

of flash bangs.347 In fact, the only consistent mention of any drug activity by Branch Davidians in

any of the ATF Waco documents on Waco is in requests for military assistance which required drug

activity to justify military intervention and assistance.

b. ATF agents were not properly trained and

certified

The second piece of evidence refuting ATF’s

claim that a drug nexus actually existed is the fact

that ATF agents involved in the raid on the

Branch Davidian residence were not trained and/

or certified in methamphetamine operations. Furthermore, the lack of necessary safety precautions

taken in the planning, training and operation indicate that these agents were ill-equipped and unprepared for the ‘‘suspected’’ presence of an active

methamphetamine lab. These failures are in direct

conflict with ATF’s own guidelines on clandestine

lab operations.
49

348Special Agent Robert Tevens’ ‘‘Chronology and Witnesses re: Military Support of ATF’’ (July 14, 1993). Treasury Documents T004589–

T004593. 349 Id. 350 Id. 351Treasury Documents T004589–T004594. 352 Id.

353 Hearings Part 1 at 361. Special Forces medics are considered to be

highly trained. 354The subcommittees requested a copy of the paper and were told

that it could not be located. In its production of documents to the subcommittees, the Treasury Department failed to supply a copy of the

paper although testimony before the subcommittees indicated that the

paper was presented to ATF agents at a meeting on February 4–5, 1993

in Houston, TX. 355 Hearings Part 1 at 361. 356 Hearings Part 1 at 372; subcommittees’ interview of Staff Sgt.

Steve Fitts, in Washington, DC (July 11, 1995). 357 Id. Although it was very clear from the interview of Staff Sgt. Fitts

and his testimony before the subcommittees, that this paper was drafted

to be presented to ATF at a Houston meeting on February 4–5, 1993,

Maj. Petree during a pre-hearing review at first said that he could not

recall the paper and later whether it was presented to ATF. After Staff

Sgt. Fitts answered under oath that he was present when Maj. Petree

himself presented ATF the paper, Maj. Petree acknowledged that he had

received it.

c. The DEA’s offer of assistance

ATF’s claim that a drug nexus actually existed

is called into question by ATF’s response to DEA’s

offers of assistance. The Drug Enforcement Agency

is the lead Federal agency in enforcing narcotics

and controlled substance laws and regulation.

While Operation Alliance was assisting ATF with

its investigation of the Davidians, DEA had a Senior Special Agent, Mr. William Roshon, acting as a

Coordinator for DEA at Operation Alliance. On

January 22, 1993, Deputy Tactical Coordinator

William Roshon offered DEA assistance in the

form of on-sight laboratory technicians to ATF

Special Agent Pali. Pali placed DEA Agent Roshon

in touch with the SAC/Houston Office.348

Post-raid interviews of Pali by the ATF Waco

Review Team revealed that ATF refused twice

DEA’s offer of on-sight lab technicians, but did

have two DEA officials from the Austin DEA office

present at the Command Post the day of the

raid.349 Two DEA agents from the Waco office

were on stand-by for the raid.350

On February 2, 1993 ATF Agent Lewis provided

a briefing to Operation Alliance members on the

‘‘suspected methamphetamine lab’’ at the Branch

Davidian residence which, according to the ATF

summary of events, was known at that date ‘‘to

have received deliveries of chemical precursors for

the manufacture of methamphetamine.’’ After the

briefing by Lewis, Gen. Pickler, Commander of

JTF–6, stated ‘‘that it is not the position of the

military to question the veracity of a law enforcement request regarding a drug nexus.’’ 351 DEA

Agent Rochon told Waco Review Team interviewers, after the February 2, 1993, briefing, that he

had offered the assistance of a DEA Clandestine

Certified Laboratory Team and Pali declined the

request. However, Agent Rochon did provide Lewis

the phone number of the Austin DEA Resident in

Charge. Agent Roshon ‘‘ ‘opined’ that precursor

chemicals for methamphetamine could also be

used in the manufacture of explosives.’’ 352 However, senior DEA chemists told subcommittee investigators when interviewed regarding the use of

methamphetamine chemicals to make explosives,

‘‘that they had never heard that one before’’ and

they were unaware of any chemicals used to

produce methamphetamine which could be used to

make explosives. Although some methamphetamine chemicals are very volatile in nature, using

them to make explosives is another matter entirely. Given that ATF has jurisdictions over explosives and DEA has jurisdiction over illegal narcotics, it seems odd that ATF agents and DEA agent

Rochon would attempt to blur this distinction.

Although DEA was never informed officially of

the Waco investigation by ATF, two senior DEA officials were well aware of the facts surrounding

the ATF investigation of the Davidians. Two senior

DEA officials were members of the Operation Alliance board which reviewed law enforcement agency requests. Documents indicate that at least one

of these DEA agents did offer DEA methamphetamine lab assistance and ATF declined that offer.

However, no documents received by the subcommittees indicate that these DEA agents expressed any concern with ATF’s apparent plan to

raid an active methamphetamine laboratory.

In addition, when the subcommittees requested

copies of the UPS receipts as proof of the delivery

of chemicals that are required for the production of

methamphetamine or any other evidence of the delivery of these chemicals, the subcommittees were

informed that none could be found.

d. The Special Forces paper and the ATF response to it

The fourth piece of evidence undermining ATF’s

claim that a drug lab existed is ATF’s own reaction to the Special Forces paper on the methamphetamine lab. Sergeant Fitts testified that he

and another Special Forces medic where directed

by Major Petree, their Commander, to research

and draft a paper on methamphetamine labs.353

Interviews with Sgt. Fitts revealed that the paper

addressed the dangers of methamphetamine labs

from both tactical and exposure perspectives.354

Sgt. Fitts and the other medic took 3 or 4 days to

complete the project.355

During the February 4–5 Houston meeting, Maj.

Petree presented the paper to ATF agents who

showed no interest in its contents. Sgt. Fitts testified that ATF agents never expressed any concern

about the dangers that would be presented by a

methamphetamine lab and that it was his impression that the subject of a methamphetamine lab

‘‘dropped off the face of the earth after the paper

was presented.’’ 356 In his opinion, it was obvious

from the reaction of the ATF agents that no methamphetamine lab existed.357
50

358The electronics equipment was used to block the Davidians’ television reception. 359 Hearings Part 3 at 315 (statement of Allen Holmes, Assistant Secretary of Defense for Special Operations and Low Intensity Conflict).

360 Id. at 314. 361 31 U.S.C. § 1535.

D. POST-RAID MILITARY ASSISTANCE TO THE FEDERAL

BUREAU OF INVESTIGATION (FEBRUARY 28–APRIL 19)

The standoff between the government and the

Branch Davidians began on February 28, 1993, as

the cease-fire went into effect following the ATF’s

failed raid on the Branch Davidian residence. During that time personnel and equipment of the U.S.

Armed Forces were present at or near the Branch

Davidian residence.

1. Military equipment and personnel provided

a. Active duty personnel and equipment

During the standoff, a limited number of active

duty military personnel were present at the

Branch Davidian residence providing services to

the FBI in support of the FBI’s activities during

the standoff. Most of these troops were dressed in

uniforms which indicated their, rank, service, and

function. A small number of troops present at the

site were assigned to Army Special Forces units.

Because the military occupational specialties of

these troops are classified, they dressed in civilian

clothes while at or near the Branch Davidian residence and did not identify themselves as military

personnel. Additionally, one of the two senior

Army officers present at the April 14 meeting with

the Attorney General also visited the Branch

Davidian residence in order to personally view the

tactical situation. This officer was present at the

Branch Davidian residence for part of 1 day.

The type of support provided by the active duty

troops consisted primarily of performing repairs

and maintenance on sophisticated observation and

electronics equipment 358 provided by the Defense

Department to the FBI. Active duty, enlisted military personnel set-up the equipment and performed necessary maintenance on it. There is no

evidence that military personnel actually operated

the equipment. Instead, it appears that FBI agents

operated this equipment. In one instance, however,

civilian employees of the Department of Defense

operated one piece of sophisticated electronics

equipment.359 In addition, active duty, enlisted

military personnel performed repair and maintenance work on the electronics equipment belonging

to the FBI. The accounts given by all personnel familiar with this aspect of the operation and who

were interviewed by the subcommittees confirm

that, with this one exception, only FBI personnel

operated the equipment during the standoff.

b. National Guard personnel and equipment

During the standoff, the Texas National Guard

provided a number of military vehicles to the FBI.

Principal among these were 10 Bradley Fighting

Vehicles (Bradleys), 4 M728 Combat Engineering

Vehicles (CEV’s), 2 M1A1 Abrams tanks, and 1

M88 tank retriever. The weapons systems in those

of these vehicles which are normally armed were

removed before they were transported to the

Branch Davidian residence.360

During the standoff the Bradleys were used primarily as armored personnel carriers to transport

FBI officials to meetings with the Davidians, to

transport FBI agents to their observation posts

around the Branch Davidian residence, and by FBI

agents to guard the perimeter of the operation.

During the insertion of the CS agent on April 19,

the Bradleys were used by FBI agents to maneuver close enough to the Branch Davidian residence

so that the agents could fire Ferret round projectiles containing CS agent into the windows of the

residence.

The CEV’s were not used until April 19. Attached to each CEV was a long triangular boomlike arm. Attached to the booms of two of the

CEV’s were mounted devices that sprayed CS

agent mixed with carbon dioxide. On April 19,

these CEV’s were used to ram holes into the

Davidians residence. The operators in each CEV

then inserted CS agent into the building using the

devices affixed to the boom. Insertions of CS agent

occurred in four distinct phases throughout the

morning of the 19th. At one point, one of the

CEV’s became damaged and could no longer spray

CS agent. As the day progressed, the FBI began to

use the CEV’s to ‘‘deconstruct’’ the Branch

Davidian residence, using them to ram into the

corners and sides of the building, creating large

openings in the building. At one point, part of the

rear roof collapsed after one CEV made multiple

entries into the side of the building.

In addition to these vehicles, a number of support vehicles (e.g., Humvees, used to transport personnel, and flatbed trucks, used to haul the Bradleys and CEV’s to Waco) were located at or near

the Branch Davidian residence. Additionally, Defense Department provided support equipment

(e.g., tents, generators, concertina wire) to the

FBI.

An unknown number of Texas National Guard

personnel were present during the standoff. Most

of these personnel performed maintenance on the

military vehicles loaned to the FBI or to provide

support services for these troops (i.e., National

Guard cooks were present to prepare meals for the

mechanics). Other National Guard troops provided

remedial training to the FBI’s HRT members who

were to operate the Bradleys and CEV’s. Additionally, on April 19, some National Guard troops assisted FBI agents in refilling the CEV’s with the

CS riot control agent.

c. Reimbursement

The Economy Act 361 requires the Justice Department to reimburse the Department of Defense

for the cost of the equipment and personnel sup-
51

362 Justice Department Report at 266. 363 Hearings Part 3 at 304, 314 (statement of Allen Holmes, Assistant

Secretary of Defense for Special Operations and Low Intensity Conflict). 364 Id. at 304. 365 Id. at 304, 314.

port provided to it. The subcommittees have been

informed that this reimbursement has been made.

2. Advice/consultation provided by military officers

a. Request by Texas Governor

When Texas Governor Ann Richards learned of

the failed ATF raid on February 28, she requested

to consult with a knowledgeable military officer

about the incident. In response to her request, the

commander of the U.S. Army’s III Corps at Fort

Hood, TX, asked the assistant division commander

of the First Cavalry Division of the III Corps, also

at Fort Hood, to meet with Governor Richards.

That officer met with the Governor on the evening

of February 28. During the meeting, the officer answered the Governor’s questions concerning the

types of military equipment the ATF had used

during the raid and the types of military equipment which Federal law enforcement officials

might use in the future. The Governor also requested that the officer meet with the Texas Adjutant General (the commander of the Texas National Guard), who only recently had been appointed to his position.

b. Visit to the Branch Davidian residence

with FBI officials

Two senior Army officers participated in a meeting of Justice Department and FBI officials with

the Attorney General on April 14. During the

meeting, the participants discussed the FBI’s plan

to end the standoff. The subcommittees’ investigation revealed that one of the Army officers visited

the Branch Davidian residence on April 13, accompanied by HRT commander Rogers.

During a briefing of the subcommittees these officers indicated that Rogers had arranged for the

officers to be included in the April 14 meeting and

had invited one of them to view the Branch

Davidian residence to better understand the tactical situation. Rogers met the officer at the

Branch Davidian residence and arranged for a helicopter tour of the perimeter of the area. The officer informed the subcommittees that he only observed the FBI’s activities there and did not take

part in the ongoing operation. The officer and Rogers then left Waco to travel to Washington for the

meeting with Attorney General Reno.

The officer further informed the subcommittees

that his visit to the Branch Davidian residence

was his first visit and that he did not return to the

Branch Davidian residence after April 14. The

other officer present at the April 14 meeting stated

that he did not visit the Branch Davidian residence at any time. The subcommittees’ interviews

with both FBI and other military personnel

present at Waco during the standoff confirmed the

statements of the Army officers.

c. April 14, 1993 meeting with Attorney General Reno

On April 14, 1993, a meeting was held in the office of the Director of the FBI with Attorney General Reno and several Justice Department and FBI

officials. According to the Justice Department Report, ‘‘several military representatives’’ were also

present.362 The subcommittees’ investigation identified the two senior military officers present at

the meeting. These two officers briefed the members of the subcommittees in a classified briefing

in July of 1995 in conjunction with the subcommittees’ public hearings. Additionally, a Defense Department representative testified before the subcommittees in open session generally as to the discussions between the officers and Attorney General Reno on April 14, 1993.

The officers present at the April 14 meeting at

the invitation of FBI officials were to answer any

questions Attorney General Reno might pose about

the FBI’s plan to end the standoff. The officers understood they had been selected to attend the

meeting because of their special tactical training

and experience. Additionally, HRT commander

Rogers knew one of the officers personally and had

facilitated the request from the Justice Department to Defense Department that the officers attend the meeting.363

The officers informed Attorney General Reno

that they could not comment on specific FBI plans

to end the standoff.364 One of the officers did inform Attorney General Reno that if the HRT had

been a military force under his command, he

would recommend pulling it away from the Branch

Davidian residence for rest and retraining.365 They

also explained to Attorney General Reno that if

the military had been called in to end a barricade

situation as part of a military operation in a foreign country, it would focus its efforts on ‘‘taking

out’’ the leader of the operation.

The officers believed Attorney General Reno understood their comments as an illustration of the

tactical principal that a group heavily dependent

on a charismatic leader for direction, such as the

Davidians, can best be controlled if the leader is

removed from control. The officers believe Attorney

General Reno understood that their comments

were appropriate to a military operation abroad

but were not directly applicable to the domestic

law enforcement situation facing Attorney General

Reno.

3. Foreign military personnel

Foreign military personnel were present at the

Branch Davidian residence during the standoff

sometime in March. The two persons present were
52

366Other than some of the Davidians, several of whom were foreign

nationals.

members of the 22nd Regiment of the British

Army’s Special Air Service (SAS). This branch possesses special tactical military skills and has a role

similar to U.S. Army Special Forces troops. American military personnel present during the standoff informed the subcommittees that the SAS personnel observed the activities of the FBI and took

no part in the actions of the military or the FBI.

The two SAS representatives were not present on

April 19, the date the standoff ended.

Accordingly to the Justice Department’s written

response to questions submitted by the subcommittees, the SAS personnel were present at Fort

Bragg, NC in early 1993 on other business and requested to observe the FBI’s HRT command post

and forward tactical positions at Waco. FBI officials have informed the subcommittees that the

HRT maintains liaison with the military and law

enforcement counter-terrorist units of friendly foreign countries, including the United Kingdom,

Germany, Italy, Spain, Australia, and Denmark.

HRT commanders occasionally invite representatives of these units, a well as the U.S. Army Special Forces, to observe operations in which the

HRT is engaged, as each of the organizations has

similar skills and performs similar functions. This

professional courtesy apparently is extended to

FBI officials as well by the U.S. Special Forces and

the counter-terrorist units of the countries listed

above. The FBI explained the presence of the SAS

personnel at the Branch Davidian residence as an

example of this type of information-sharing.

The subcommittees’ investigation finds no support for the assertions made by some that SAS

personnel, or any other foreign persons, took part

in the activities of U.S. Government agencies at

the Branch Davidian residence. Accordingly, the

subcommittees conclude that the two SAS personnel were the only foreign persons present at the

Branch Davidian residence 366 and that they took

no part in the government’s activities there.

E. FINDINGS CONCERNING MILITARY INVOLVEMENT

IN THE GOVERNMENT OPERATIONS AT WACO

1. The Posse Comitatus Act was not violated.

a. No violations of the Posse Comitatus Act

occurred up to February 28, 1993. The subcommittees conclude that no actual violation of the

Posse Comitatus Act occurred as a result of the

military support provided to the ATF through February 29, 1993. The subcommittees review of this

question was divided into two parts: the support

provided by active duty military personnel prior to

February 28 and the support provided by Texas

National Guard troops up to and on February 28,

1993.

The subcommittees find no violation of the Posse

Comitatus Act as a result of the support provided

by the active duty military personnel who facilitated the training of ATF agents at Fort Hood, TX

in late February 1993. The ATF’s initial request to

Operation Alliance included a request that military medical personnel actually participate in the

raid on the Branch Davidian residence. The ATF

also requested that military personnel participate

in the formulation of the ATF’s overall raid plan

against the Davidians’ residence. These requests

raised the concern of military lawyers due to their

Posse Comitatus implications. The subcommittees

conclude that these officers were correct to raise

these concerns and that their actions helped prevent a violation of the Posse Comitatus Act.

As a result of the concern by these officers as to

ATF’s request, less support was provided than initially requested. That support was limited to providing and staffing a training area for the ATF at

Fort Hood, teaching basic first aid, and providing

general advice on communications questions. Because these activities do not rise to the level of direct participation in a law enforcement action,

they did not violate the Posse Comitatus Act.

The subcommittees also find no violation of the

Posse Comitatus Act as a result of the support provided by the Texas National Guard which participated in the training that the ATF conducted for

its agents at Fort Hood, TX in late February 1993

and which flew the helicopters on February 28

that were part of the ATF’s raid on the Branch

Davidian residence. The Texas National Guard

troops who participated in these activities were

acting in their ‘‘state national guard’’ status under

the command and control of the Governor of

Texas, even though the costs of the operation were

paid by the Federal Government pursuant to title

32 of the U.S. Code.

The Posse Comitatus Act does not govern the actions of the National Guard when it is acting in a

non-Federal (i.e., State) status. Because the Texas

National Guard troops participating in the ATF’s

training and the raid itself were acting in this status, the Posse Comitatus Act did not apply to

them. Accordingly, no violation was possible and

none, therefore, occurred.

b. No violations of the Posse Comitatus Act

occurred after February 28, 1993. The subcommittees conclude that no actual violation of the

Posse Comitatus Act occurred as a result of the

military support provided to the FBI after February 28, 1993. The subcommittees review of this

question involved two issues: the support provided

by active duty military personnel prior to February 28 and the support provided by Texas National Guard troops through April 19, 1993.

The subcommittees find no violation of the Posse

Comitatus Act as a result of the support provided

by the active duty military personnel who were

present at the Branch Davidian residence from

February 28, 1993 to April 19, 1993. The subcommittees’ investigation indicates, and the testimony of the witnesses who testified at the hear-
53

ings confirmed that no active duty military personnel actively participated in any actions that can be

characterized as the exercise of the law. The actions of the enlisted personnel appear to have been

limited to setting up equipment and performing

maintenance on it, or providing support to other

military personnel (e.g., transportation, food service). All of the military personnel interviewed by

the subcommittees confirmed that only FBI employees operated the military equipment during

the law enforcement activities conducted at the

Branch Davidian residence. The subcommittees

found no evidence to the contrary.

As discussed above, the Posse Comitatus Act

does not govern the actions of the National Guard

when it is acting in a non-Federal (i.e., State) status. Accordingly, none of the actions taken by the

National Guard during the standoff violated the

Posse Comitatus Act. The subcommittees note,

however, that it appears that the National Guard’s

role during the standoff was very limited. The National Guard role generally involved troops transporting to the Branch Davidian residence all of the

military vehicles used by the FBI during the

standoff and performing routine maintenance on

them.

On April 19, National Guard troops assisted the

FBI in refilling the CEV’s with the CS agent used

in the unsuccessful effort to induce the Davidians

to leave the residence. Because the National

Guard troops are not subject to the Prohibitions of

the Posse Comitatus Act when acting in their

State status, no violation occurred. The subcommittees note, however, that had the National

Guard troops instead been active duty personnel,

or acting in a Federal status, their participation in

the execution of the CS gas plan would have violated the Posse Comitatus Act.

2. The ATF misled the Defense Department

as to the existence of a drug nexus in order

to obtain non-reimbursable support from the

Defense Department. The subcommittees conclude that the ATF intentionally misled Defense

Department and military personnel as to whether

the Davidians were operating an illegal drug manufacturing operation at the Davidian residence. It

appears that the ATF agents involved in planning

the raid knew that they could obtain support from

the military at no cost in preparation for their

raid. It also appears that the ATF knew that this

support would be provided promptly if the presence of a drug manufacturing operation was alleged. While there had been allegations that a

drug manufacturing operation was located at the

Davidian residence at some point in the mid to

late 1980’s before Koresh took control of the group,

there was no evidence that the drug operation continued into late 1992. The ATF’s misrepresentations improperly enabled it to obtain military assistance from forces which otherwise would not

have provided it, more quickly than might have

been possible, and without having to reimburse

the Defense Department as otherwise would have

been required under Federal law.

The subcommittees also conclude that the commander of the military personnel providing the

training knew or should have known that the

ATF’s allegations as to the existence of a drug

manufacturing operation at the Davidian residence

were, at best, overstated and were probably untrue. His failure to raise this issue with his superiors is troubling. The subcommittees believe this

failure should be reviewed by Defense Department

authorities.

3. No foreign military personnel or other

foreign persons took part in any way in any

of the government’s actions toward the

Branch Davidians. While some foreign military

personnel were present in Waco during the government’s operations toward the Davidians, there is

no evidence that any of these persons took part in

the government’s operations in any way.

4. Civilian law enforcement’s increasing

use of militaristic tactics is unacceptable. The

FBI’s and ATF’s reliance on military type tactics

greatly concerns the subcommittees. The Waco and

Ruby Ridge incidents epitomize civilian law enforcement’s growing acceptance and use of military

type tactics. The subcommittees find this trend unacceptable.

When ATF faced the option of conducting a regulatory inspection or tactical operation, it chose

the tactical operation. When ATF had to decide between arresting Koresh away from the Branch

Davidian residence or a direct confrontation, it

chose direct confrontation. ATF also decided to

conduct a dynamic entry as opposed to a siege.

The subcommittees are not recommending that

the use of militaristic tactics should always be precluded. The subcommittees acknowledge that there

are certain circumstances in which military type

tactics may be necessary. The subcommittees urge

all Federal law enforcement agencies to review

their policies on military training and tactics and

develop appropriate guidelines for when such tactics are acceptable. Military training, especially

specialized training in combat tactics, should be

highly restricted and the use of military tactics,

such as a dynamic entry should be approved at the

highest agency levels.

F. RECOMMENDATIONS

1. Congress should consider applying the

Posse Comitatus Act to the National Guard

with respect to situations where a Federal

law enforcement entity serves as the lead

agency. The subcommittees acknowledge that the

Posse Comitatus Act has been and continues to be

a significant protection for the rights of the people.

The events in Waco, however, suggest that these

protections may not be as strong as most citizens

assume.

As discussed above, the Posse Comitatus Act

does not apply to the National Guard when it is
54

367 As discussed above, however, while some of these vehicles are considered lethal equipment the weapons systems in all of the military vehicles used by the FBI during the standoff had been rendered inoperative prior to the delivery of the vehicles to the Branch Davidian residence. Hearings Part 3 at 314 (statement of Allen Holmes, Assistant

Secretary of Defense for Special Operations and Low Intensity Conflict).

acting in its State status. As the events at Waco

illustrate, actions taken by National Guard troops

can never violate this law, even when those same

acts would violate the law were they undertaken

by active duty military personnel. The subcommittees question whether this distinction is acceptable

to the American people.

The purpose of the Posse Comitatus Act is to

prevent the government from using the military

against its own citizens. Yet the National Guard

and the Reserve exists in part, to augment the active duty military in times of need. National

Guard troops receive military training. National

Guard units are equipped with military equipment, in some cases the most sophisticated and lethal military equipment in the Defense Department’s arsenal, including tanks, fighter and bomber aircraft, and armored personnel carriers. These

units, by design, possess many of the same capabilities as active military units. In fact, almost

one-half of the U.S. Armed Forces is composed of

National Guard and Reserve forces. When activated by the President, the National Guard becomes part of the active duty military.

While Federal law distinguishes between the

National Guard in its various ‘‘statuses,’’ this distinction is unclear to the vast majority of the public. Many citizens no doubt would be surprised and

concerned to learn that components of the same

forces the United States used in Operation Desert

Storm, Somalia, and Bosnia also can be used

against them in the United States as long as the

‘‘status’’ of the troops used fits within the proper

category. Given that many National Guard units

have force capabilities similar to that of active

duty units, it makes little common sense that one

unit’s activities may be constrained by the Posse

Comitatus Act while another’s are not. In short, if

it is important to prevent military force from being

used to enforce the civil laws, it should matter little the ‘‘status’’ of the force used against the citizenry.

The question of applying the Posse Comitatus

Act to the National Guard has not been examined

recently by the Congress. Accordingly, the subcommittees recommend that Congress hold hearings on this matter to determine whether the

Posse Comitatus Act should be broadened to apply

to the National Guard and what exceptions to the

act’s prohibitions, if any, are appropriate to the

National Guard in light of its role and mission.

2. The Department of Defense should

streamline the approval process for military

support so that both Posse Comitatus Act

conflicts and drug nexus controversies are

avoided in the future. The subcommittees’ investigation revealed that Department of Defense

procedures for receiving, evaluating, and deciding

upon requests for assistance from domestic law enforcement agencies was unclear in early 1993.

Generally, requests for military assistance to domestic law enforcement agencies were channeled

through the Director of Military Support (DOMS),

an Army two-star general headquartered at the

Pentagon who heads a staff that is on-call 24

hours a day. In some cases, commanders of local

military bases are authorized to provide support

without approval of the DOMS if the requests are

limited in scope.

As of 1993, requests for military support relating to counterdrug operations were not required to

be submitted to the DOMS for approval but instead were channeled through Operation Alliance,

a group representing agencies such as the ATF,

the Border Patrol, and other Federal law enforcement agencies together with military representatives. Operation Alliance serves merely as a clearinghouse for requests, tasking actual military organizations to provide the support. In this case,

Operation Alliance tasked Joint Task Force-6 and

the Texas National Guard, two of the military organizations at its disposal.

Requests for support involving the use of lethal

equipment, such as Bradley Fighting Vehicles and

tanks,367 were to be made through the Office of

the Secretary of Defense in the Pentagon. Apparently, however, that requirement was not complied

with in this case.

The subcommittees believe that authority for approving military support for domestic law enforcement operations should be located within one office within the Office of the Secretary of Defense.

Centrally locating this responsibility will help ensure that uniform standards are applied in evaluating all requests for military support and that no

agencies can successfully ‘‘end-run’’ the approval

process. It also will reduce confusion among law

enforcement agencies which, under the process as

it existed in 1993, first had to determine without

Defense Department guidance the purpose for the

support (i.e., counterdrug or not counterdrug) and

the type of military assets that might be involved

(i.e. lethal assets or strictly non-lethal assets). The

subcommittees believe that it is best left to the

military, in the first instance, to determine the nature and type of support it is able to provide, in

keeping with the Posse Comitatus Act and it own

need to fulfill its primary defense mission.

The process for civilian law enforcement agencies receiving military assistance must require

that all requests and approvals be in writing,

specifying in detail the requested and approved

military assistance. Additionally, the Department

of Defense needs to establish a clear and concise

standard for what constitutes a sufficient drug

nexus. Congress should specifically establish criminal and pecuniary penalties for willful violations of

the drug nexus standard.
55

The subcommittees acknowledge that in May

1995, the Secretary of Defense directed the Under

Secretary of Defense for Policy to establish a working group ‘‘to conduct a comprehensive review of

the current system by which Defense Department

evaluates and responds to request for assistance

initiated by outside agencies.’’ As a result of the

working group’s recommendations, the Secretary

recently directed that requests for military support

are to be channeled through the Office of the Assistant Secretary of Defense for Special Operations

and Low Intensity Conflict. The subcommittees

commend this decision to centralize the approval

process for providing this type of support. This policy should be frequently monitored so as to ensure

that law enforcement agencies, and field commanders, are complying with it.

3. Congress should review the legal status

of memoranda of agreement for the interstate use of National Guard personnel for civilian law enforcement purposes. The subcommittees’ investigation revealed that the use of

National Guard personnel across State lines for

law enforcement purposes is a common practice.

This practice is conducted through simple, pro

forma memoranda of agreement which rarely take

into account State laws governing the use of the

National Guard. The subcommittees believe that,

in practice, many of these agreements supersede

State constitutions and statutes without legal authority. The subcommittees are concerned that

these agreements do not comply with Federal laws

and may violate the U.S. Constitution.

The subcommittees recommend that Congress,

the Department of Defense, and its National

Guard Bureau come to an agreement on the proper legal status of these National Guard Memoranda of Agreement. If it is determined these

agreements require congressional ratification, procedures to obtain such approval should be established by the National Guard Bureau.

Regardless of whether these memoranda of

agreement require congressional ratification, however, the National Guard Bureau should establish

a centralized review process for all Memoranda of

Agreement involving the interstate use of the National Guard personnel. This review process must

include a per case legal determination that pertinent State law is not violated by the agreement.

4. The General Accounting Office should

audit the military assistance provided to the

ATF and to the FBI in connection with their

law enforcement activities toward the

Branch Davidians. Given that the subcommittees have been unable to obtain detailed information concerning the value of the military support

provided to the ATF and the FBI, the subcommittees recommend that the General Accounting Office conduct an audit of these agencies to ascertain

the value of the military support provided to them

and to ensure that complete reimbursement has

been made by both agencies. If violations of the

Anti-Deficiency Act or other Federal laws are

found, the appropriate legal action should occur,

including criminal prosecution if permitted under

existing law.

5. The General Accounting Office should investigate the activities of Operation Alliance

in light of the Waco incident. The subcommittees concluded that Operation Alliance personnel

knew or should have known that ATF did not have

a sufficient drug nexus to warrant the military

support provided to it on a non-reimbursable basis.

Senior DEA agents were members of the Operation Alliance board which approved requests for

military assistance, yet they voiced no concerns regarding ATF’s plan to directly assault an alleged

active methamphetamine laboratory. Military officers were present when ATF was presented a

paper detailing the potential dangers and special

precautions required when dealing with an active

methamphetamine laboratory. The purpose of the

meeting was to determine whether a drug nexus

existed. Even though there was evidence that no

drug existed, those military officers present took

no action. UPS receipts which allegedly detailed

deliveries of precursor chemicals to the Branch

Davidian residence and were used to substantiate

the drug nexus were nowhere to be found when

the subcommittees requested copies.

Additionally, the subcommittees’ review of military documents provided at their request and the

results of interviews with persons involved in this

matter clearly demonstrate that there was a continuing concern from senior military officers that

JTF–6 was providing support to non-counterdrug

activities, and that the Special Operations Command was attempting to reinforce resistance to

this recurring misuse of military counterdrug assets and funds, referred to as ‘‘cheating.’’ Given

that the military assistance to ATF for Waco

under dubious circumstances appears to not have

been an anomaly, and the fact that Operation Alliance’s jurisdiction has significantly expanded since

Waco, the subcommittees recommend that the

General Accounting Office investigate the activities of Operation Alliance.

VI. NEGOTIATIONS TO END THE STANDOFF WITH

THE DAVIDIANS

Negotiations between the FBI and the Branch

Davidians continued for 51 days during which

time the negotiators utilized generally accepted

negotiation techniques. The FBI was unwilling to

engage in a novel approach toward the Davidians.

While American hostage negotiation training, especially FBI training, is thought to be the best in

the world, there remains considerable room for reassessment and, based on the Waco record, improvement. The FBI possesses exceptional negotiators, but the Bureau was unwilling to engage

outside experts and too eager to ignore the advice

given by its own experts. The evolving nature of

hostage barricade situations necessitates that in
56

368 Briefing by Federal Bureau of Investigation Supervisory Special

Agent Gary Noesner to the subcommittees, November 1995. 369 Id. 370 Id. 371 U.S. Dept. of Justice, Report to the Deputy Attorney General on

the Events at Waco, TX 75 (1993) [hereinafter Justice Department Report]. ‘‘The guiding principle in negotiation and tactical employment is

to minimize the risk to all persons involved—hostages, bystanders, subjects, and law enforcement officers.’’ But the Justice Department report

states that the negotiating components of the FBI strategies were ‘‘more

often contradictory than complimentary.’’ 372 Alan A. Stone, M.D., Touroff/Glueck Professor of Psychiatry and

Law at Harvard University, originally was asked to participate in the

Department of Justice Waco review team. For a variety of reasons, including time constraints, Dr. Stone submitted an individual report apart

from the Justice Department Report. See infra note 373. 373 Alan A. Stone, Report: To Deputy Attorney General Philip

Heymann, Report and Recommendations Concerning the Handling of Incidents Such as the Branch Davidian Standoff in Waco, TX, Panelist,

Alan A. Stone, M.D., (November 8, 1993) [hereinafter Stone Report]. 374 Id. 375 Hearings Part 2 at 316. Gary Noesner testified before the subcommittees, ‘‘At Waco, there was a fundamental strategy disagreement

on what was the best way to proceed. In Waco, the negotiation team

wanted to have a lower-keyed approach and the tactical team’s approach

was more to apply pressure.’’ Id. 376 Id. at 147. 377 Id. at 321. 378 Justice Department Report at 78.

the future the FBI continually strive for the preparedness to confront more emotional and unpredictable barricaded subjects. At Waco, FBI resistance to different negotiation methods may have

contributed to a premature decision to end the

standoff.

A. THE CONFLICT BETWEEN TACTICAL COMMANDERS

AND NEGOTIATORS

1. The problem with two teams: one negotiating

team and a tactical team

At Waco, the FBI Crisis Management Team was

deployed. The Crisis Management Team is made

up of a variety of law enforcement professionals,

among them agents trained as tactical agents and

as negotiators. The team was divided into groups

with separate leadership and different responsibilities. Each team gave its perspective to Jeffrey

Jamar, the Special Agent in Charge, who determined which strategy to employ in negotiations.

There often was a conflict between these two approaches.

Although disposed to the active approach, Jamar

allowed the proposals of each team to be implemented simultaneously, working against each

other.

a. Standard Procedure in Negotiations

According to the FBI’s Chief Negotiator, Gary

Noesner, the conflict between tactical and negotiating teams is the one universal element in law

enforcement operations of this type.368 FBI tactical

forces are trained to act in stressful, violent situations. Agents are inclined toward the ‘‘action imperative,’’ the sense among agents that motivates

them to act.369 Negotiators are more inclined to

seek a nonviolent resolution of the standoff simply

by virtue of their training.

The FBI has a policy in place that favors a negotiated settlement.370 Through a type of negotiation

called active listening, negotiators attempt to find

ways to explain to the barricaded subject why it is

in his best interest to seek a nonviolent solution.

This FBI policy and training of negotiators conflicts with the ‘‘action imperative.’’

b. Major disagreements between the two

teams

Each team adamantly argued to Jamar on behalf of its perspective and adamantly opposed the

other’s.371 Dr. Alan A. Stone 372 chronicled the progression in strategy that occurred among the FBI

Commanders at Waco in his Report and Recommendations. At first, according to Stone, ‘‘the

agents on the ground proceeded with a strategy of

conciliatory negotiation, which had the approval

and understanding of the entire chain of command. Pushed by the tactical leader, the commander on the ground began to allow tactical pressures to be placed on the residence in addition to

negotiation.’’ 373 Stone summarized the feelings of

negotiators of this inevitable progression. Stone

writes, ‘‘This changing strategy at the residence

from (1) conciliatory negotiating to (2) negotiation

and tactical pressure and then to (3) tactical pressure alone, evolved over the objections of the FBI’s

own experts and without clear understanding up

the chain of command.’’ 374

The disagreement was called a ‘‘fundamental

strategy disagreement.’’ 375 The negotiators suggested that tactical maneuvers worked against the

negotiation process. The tactical team wanted to

employ aggressive tactics. Regarding the conflict

with tactical people, McClure says simply, ‘‘Tactical people think in tactical terms and negotiators

think in negotiation terms.’’ 376 Byron Sage, a Supervisory Special Agent and the lead day-to-day

FBI negotiator at Waco, testified before the subcommittees, ‘‘[The conflict between tactical and negotiation teams] presented difficulties, for sure,

but that is not unusual. These are not matters

that we were not prepared to attempt to negotiate

through.’’ 377 In the end, however, the tactical

team won the endorsement of Jamar.

Jamar decided to constrict the perimeter of the

building by moving vehicles closer to the residence.

On March 9, 1993 the FBI began to use Bradley

Fighting Vehicles to clear debris (including automobiles and boats) from the front of Mount Carmel. On March 14, 1993 the FBI focused bright

lights on the residence in an effort to disrupt the

sleep of those inside. Four days later, loudspeakers

were set up to communicate messages from the

FBI to the Davidians inside the residence. Soon

thereafter, the FBI began playing recordings of Tibetan chants, rabbits being slaughtered, and other

sound effects.378

While negotiators were trying to gain the trust

of Koresh and the Davidians, the actions of the

tactical team gave Davidians reason to distrust

FBI’s negotiators. At the hearings, Sage explained,
57

379 Id. 380 Briefing by Gary Noesner to the subcommittees. 381 Hearings Part 2 at 300. 382 Briefing by Gary Noesner to the subcommittees. 383 Hearings Part 2 at 311. 384 Briefing by Gary Noesner to the subcommittees. 385Stone Report at 23.

386 Id. 387 Id. at 24. 388Memorandum from Criminal Investigative Analyst Peter Smerick

and Dr. Park Dietz, Clinical Professor of Psychiatry and Biobehavioral

Sciences at the UCLA School of Medicine (March 5, 1993). 389 Id. 390 Hearings Part 2 at 74–75. 391 Id. 392 Id. at 195. Captain McClure thought the playing of chants and rabbit slaughters was unwise. 393Thomas Robbins & Dick Anthony, Sects and Violence: Factors Enhancing the Volatility of Marginal Religious Movements, in Armegeddon

in Waco: Critical Perspectives on the Branch Davidian Conflict 236, 240

(Stuart Wright ed., 1996). ‘‘Koresh clearly anticipated a government assault, and the actual military-style raid that the BATF perpetrated

against the Waco Davidian settlement in late February 1993 ‘seemed to

those inside to validate at least part of Koresh’s prophecy.’ ’’ Id.

‘‘It is not uncommon to, as part of the negotiation

process, to actually try to ingratiate yourself a little bit more with Koresh and his followers by saying, look, this is out of our hands, but that is why

you need to give us something to work with.’’ 379 It

is difficult to imagine that use of tactical force

could be a beneficial tool with those whom experts

say should be treated with caution and conciliation. Notwithstanding Sage’s description of the tactical maneuvers as helpful to negotiations, any

consequences of aggressive movements on the part

of FBI were not ones it intended. They were predicted, however. Gary Noesner remarked, ‘‘I do not

awake from nightmares or have trouble sleeping at

night . . . because everything that I predicted

would happen, did happen.’’ 380

c. Insufficient communication between the

two teams and their commanders

In testimony before the subcommittees, Jamar

described the strategic decisionmaking process. He

said, ‘‘The supervisors of each component would

get together and report and discuss matters. And

we would have various meetings.’’ 381 Noesner said

the problem was not one of communication.

Jamar’s office was across from the negotiation

room. Noesner communicated the desired approach

of negotiators with regularity and often in heated

exchanges. Jamar heard opinions from the negotiators and tactical agents given with equal force.

He let each strategy go forward as if it was the

primary one.382

d. Decisions between the options presented by

the two teams

In early 1993, FBI policy was to place the Special Agent in Charge of the FBI’s regional office in

charge of making operational decisions in a crisis

like Waco. Noesner described the role of the SAC

saying, ‘‘He has to take the information and couple

that with the information he receives from other

intelligence sources, from the tactical team and he

has to weigh all those things, weigh them with his

own experiences and his own perceptions and he

has to come to a decision.’’ 383

Noesner emphasized the fact that the real problem in Waco was one of leadership. The situation

at Waco required someone to make the decision on

what strategy to utilize to confront this ‘‘unconventional’’ group. He characterized Jamar as an action-oriented agent, one who fell prey to the ‘‘action imperative.’’ 384

Stone describes the action imperative in terms of

the FBI’s ‘‘group psychology.’’ The options available to the FBI, according to Stone, fell somewhere

between ‘‘doing nothing (passivity) and a military

assault (the action imperative).’’ 385 In light of the

fact that ‘‘the appeal of any tactical initiative to an

entrenched, stressed FBI must have been overwhelming,’’ Stone reasons, ‘‘the desultory strategy

of simultaneous negotiation and tactical pressure

was enacted as a compromise.’’ 386 Stone concluded

that tactical maneuvers were initiated as a way to

relieve agents’ desire to act. It is left to the SAC

to override the group psychology of the agents on

the ground and make the decisions necessary to

reach a peaceful conclusion. Stone writes, ‘‘The

FBI should not be pushed by their group psychology into misguided ad hoc decision making the

next time around.’’ 387

e. The effect on negotiations of the decision to

employ tactical maneuvers

The decision to employ tactical maneuvers had

the exact result negotiators and experts predicted.

The experts advised against antagonizing the

Davidians.388 In a memorandum coauthored by

Peter Smerick, an FBI Criminal Investigative Analyst, and Park Dietz, Clinical Professor of Psychiatry and Biobehavioral Sciences at the UCLA

School of Medicine, the FBI was advised that ‘‘negotiations coupled with ever increasing tactical

presence . . . could eventually be counter-productive and could result in loss of life.’’ 389 When tactical maneuvers were utilized, negotiations were

set back. The Davidians were unable to sleep with

sounds of loud music and rabbits being slaughtered. The Davidians were angered by movements

of the armored personnel carriers. They were angered by the clearing of debris from the

grounds.390 As Richard DeGuerin, the lawyer representing Koresh, says, tactical maneuvers appeared to be ‘‘calculated to discourage anyone from

coming out.’’ 391

The effect that the tactical maneuvers had on

negotiations was only one of the problems resulting from that decision. In fact, some believe that

playing loud music bonded the Davidians closer together.392

f. Tactical maneuvers may have fed into the

vision anticipated by Koresh

Koresh often warned Davidians that they would

die in a fire brought on by ‘‘the Beast.’’ 393 In

Smerick’s March 8 memo, he recommended that

tactical pressure ‘‘should be the absolute last option we should consider, and that the FBI might
58

394Memorandum from Criminal Investigative Analyst Peter Smerick

(March 8, 1994). 395 Justice Department Report at 185. 396 Justice Department Report at 185. 397 Hearings Part 2 at 317. 398 Edward S.G. Dennis, Jr., Evaluation of the Handling of the Branch

Davidian Standoff in Waco, TX 5 (1993) [hereinafter Dennis Report]. 399McLennan County Sheriff’s Department, 911 Transcripts (February

28, 1993). 400 Id. 401 Justice Department Report at 105. [E]ven after Schneider and

Cavanaugh had agreed to call a cease-fire, it took several minutes to

achieve one. Schneider for his part had to walk throughout the residence

to tell people inside to stop shooting. Cavanaugh, who had no direct

radio link to each agent, had to advise the team leaders of the cease fire

and the team leaders in turn had to communicate with their agents. The

cease-fire was negotiated for a period of time before the shooting finally

stopped. Id.

402Department of the Treasury Document, statement of James

Cavanaugh:

‘‘I called the compound directly on the phone from the undercover

house. I reached a man named Steve, later identified as Steve Schneider.

I told him I was an ATF agent and I wanted to talk to him about this

situation. As should be expected, the activity inside the compound was

very frantic, people were screaming and yelling, and there was still

shooting going on both sides. Steve was very excited and very hostile.

‘‘I wanted to negotiate a cease fire, and he [Schneider] was agreeable.

I am not going to be good on the time of how long it took, but it took

a little while to negotiate that. He had to go throughout the compound,

which is very large, telling everyone not to shoot. While he was doing

this, there was still shooting going on both sides. I had to get on the

command net frequency and tell the commanders on the ground there

not to shoot, and they had to relay that to all 100 agents, who were

around there, so it took a little time to arrange it.

‘‘Once I returned to the rear command post I called back in on the

telephone to the residence about 2:00 p.m. and I spoke with Steve and

David Koresh about what was going on. We had long conversations

about the warrant and we also had a lot of conversations about Biblical

passages and Mr. Koresh’s belief that he was the Lamb of God, who

would open the Seven Seals. As you might assume, he was very hostile,

very angry, and very upset.’’ 403 Hearings Part 2 at 187. ATF agent James Cavanaugh, the initial

negotiator during the standoff, testified before the subcommittees, ‘‘[The

FBI] established trust with Koresh. Id. Cavanaugh appears to have been

accomplished at active listening. The FBI, however, did not choose to retain Cavanaugh. 404 A summary of the Davidians’ requests can be found in the Justice

Department Report in the Appendix. 405 Hearings Part 2 at 74. Representative Peter Blute, when questioning a witnesses, stated, ‘‘We also know that, after the raid, when the

siege started, the initial negotiator was getting through to Koresh and

they had a kind of relationship intellectually that allowed numerous people to be released during that period. . . .’’ Id. 406Transcripts of the Negotiations Between the FBI and the Davidians

(March 4, 1993) [hereinafter Negotiation Transcripts]. 407 Justice Department Report at 22. 408Treasury Department Report at 114. Justice Department Report at

1.

unintentionally make Koresh’s vision of a fiery end

come true.’’ 394 When the FBI began to play loud

music and inch closer to the residence in armored

vehicles, experts maintained that those were exactly the wrong tactics.395 More than simply bonding the Davidians together, experts concluded that

these actions proved Koresh right in the minds of

the Davidians. The Justice Department Report

notes, ‘‘Some of the experts felt that the aggressive

tactical moves played into Koresh’s hands.’’ 396

Even Jamar, who made the decision to use these

tactics, said, ‘‘I did not like it.’’ 397

B. NEGOTIATION OPPORTUNITIES LOST

1. Why the FBI changed negotiators

Soon after the raid, the FBI was called to take

command of the situation at the Davidian residence. Edward Dennis writes that ‘‘ATF requested

assistance from the FBI on February 28, 1993

after ATF agents had attempted to serve an arrest

and search warrant on the Branch Davidian

Compound.’’ 398 Before the FBI took over, negotiations with the Davidians had begun. Lieutenant

Larry Lynch, of the McClennan County Sheriff’s

Department, and Branch Davidian Wayne Martin

talked over the Waco 911 Emergency line.399 Soon

thereafter, ATF Assistant Special Agent in Charge

James Cavanaugh and Davidians Steve Schneider

and Koresh spoke by telephone in an attempt to

resolve the initial firefight.400 Finally, Cavanaugh

successfully negotiated an end to the shooting.

Cavanaugh, with the help of the Texas Department of Public Safety, made measurable progress

toward release of Davidians. Communication was

extremely difficult between Davidians inside and

ATF agents outside. Nonetheless, Cavanaugh manipulated the dialog from the hysterical screaming

during the gun battle to productive conversation

leading to a cease fire.

a. Cavanaugh’s rapport with the Davidians

The most difficult task after the raid failed was

to establish a reliable, common sense method for

communicating with those inside Mount Carmel.

Communicating the agreed upon cease fire was

made difficult by the size of Mount Carmel and

the fragmentation of ATF agents.401 Eventually,

however, the shooting stopped and negotiations

began.

In his statement to the Department of Justice,

Agent Cavanaugh gave a compelling description of

the first moments after the raid.402 The atmosphere was frenetic and hostile. Cavanaugh’s tone

was friendly as he sought to gain the trust of those

in the residence.

Cavanaugh gained the Davidians’ trust by acknowledging the Davidians’ point of view.403 He

granted many of their requests.404 He talked with

them as though they were ‘‘equals’’ trying to

achieve the same goals. Cavanaugh assuaged their

concerns by promising that they would be addressed. Most importantly, Cavanaugh established

a routine that produced the release of some

Davidians.405

Cavanaugh established a rapport with Koresh

and other Davidians. When Cavanaugh left the negotiations, Koresh mentioned that he missed

Cavanaugh. He noted that Cavanaugh promised to

be there until the end.406 But on March 4, 1995

Cavanaugh left Waco, only to return briefly in

April. After Cavanaugh’s departure, the negotiations were an FBI operation.

b. Why the FBI was brought in

The ATF asked for the aid of the FBI and

agreed that it would be best for the FBI to assume

operational control of the entire siege.407 All of the

official reports note that the FBI was asked to

take over the siege.408
59

409 Justice Department Report at 144. At the time, the FBI’s HRT consisted of a 50 person force. It was trained to deal with highly dangerous

missions. The team boasts ‘‘sophisticated armament including infra-red

aiming devices, daytime and nighttime sniper capabilities, explosive and

mechanical breaching abilities, and certain non-lethal weapons.’’ The

agents are trained for tactical operations on land and at sea. The HRT

was created in the 1980’s to confront a growing number of unusually

dangerous and complicated criminal situations. 410 U.S. Dept. of the Treasury, Report of the Department of the Treasury on the Bureau of Alcohol, Tobacco, and Firearms Investigation of

Vernon Wayne Howell also known as David Koresh at 113–114 (1993)

[hereinafter Treasury Department Report].

Shortly after the shoot-out, Chojnacki spoke with Hartnett, who was

in Washington, DC and recommended that the FBI Hostage Rescue

Team be brought to Waco to handle what had become a siege situation.

At roughly the same time, FBI Director William Sessions learned of the

shoot-out, contacted ATF Director Stephen Higgins and offered his condolences and his agency’s assistance. After Hartnett arrived at the National Command Center and was fully briefed, he determined that the

FBI HRT should be sent to Waco.

Soon after the cease-fire Hartnett contacted Douglas Gow, FBI Associate Deputy of Investigations, and formally requested FBI assistance.

Gow, in turn, contacted FBI SAC Jeffrey Jamar (San Antonio) and

briefed him on the situation. FBI Special Agent James Fossum (Waco)

was informed of the crisis by both AUSA Phinizy and another local FBI

agent. Shortly after [Fossum] arrived, Chojnacki told him the ATF would

welcome whatever assistance the FBI could provide.

* * *

Clark informed [Noble] that a request for the HRT had already been

made by ATF and that the HRT was on its way to the residence to

evaluate the situation.

Jeffrey Jamar (San Antonio), as the SAC of the affected district, was

given command of the FBI operation. He arrived in Waco at about 5:30

p.m. and together with Fossum and several other local FBI agents, immediately began to establish a command post and assess the situation.

The balance of the HRT members began arriving on March 1. After further discussions with FBI, ATF and Treasury officials, Noble spoke with

ATF Director Higgins and ADLE Hartnett early March 1. Noble advised

them that if the FBI determined that the HRT was needed for a long

term, the FBI should have operational command to resolve the standoff.

Id.411 Justice Department Report at 133.

412 Id. 413 Briefing of Gary Noesner to the subcommittees. 414 Justice Department Report at 133. 415 Id. at 134. 416 Hearings Part 2 at 159.

According to the Justice Department Report, the

FBI Hostage Rescue Team was the law enforcement organization best equipped to handle the

standoff.409 It is because of its expertise that the

FBI is called in to take control of complex barricade situations throughout the country and the

world. According to the Treasury Department Report on the incident, ATF knew immediately after

the raid began that it would need the help of the

FBI. The apparent unanimity is expressed in the

Department of Treasury Department Report.410

Once the decision was made to turn the operation

over to the FBI, the FBI was in charge of the

scene in Waco within a matter of hours.

2. Why the FBI didn’t allow others to participate in

the negotiations

The FBI was disinclined to allow anyone, other

than the FBI’s own negotiators, to participate in

negotiations with the Davidians. Many were offering their assistance, but few were allowed to participate. McLennan County Sheriff Jack Harwell

and the Texas Rangers were suggested and offered

their help. Attorneys for Davidians repeatedly

asked to speak with the Davidians. It was with

great hesitance that the FBI allowed Sheriff

Harwell to speak with the Davidians, and with

even greater reluctance that the FBI allowed the

attorneys into the residence.411

a. Sheriff Jack Harwell

Early in the negotiations, Koresh and the

Davidians told the negotiators they had a cordial

relationship with Sheriff Jack Harwell. On March

13, Jamar allowed Sheriff Harwell to participate

in negotiations. According to the Justice Department Report, to allow an untrained negotiator to

participate in such operations was a ‘‘departure

from conventional negotiation doctrine.’’ 412 In

preparation for these negotiations, Noesner and

the FBI negotiations put Harwell through quick

and intense training in professional negotiations.

Harwell was put in this position only because he

was a person whom both sides trusted. And although the negotiators were worried about

Harwell making the situation worse, negotiators’

worries were soon quelled when they discovered,

according to Noesner, ‘‘Harwell was a natural.’’ 413

Two days after he began participating in negotiations, Harwell participated in a face-to-face

meeting with Sage and Davidians Martin and

Schneider. The meeting produced no substantial

change in the situation. Harwell and Sage attest

to the fact that a ‘‘rapport was established, particularly with Schneider.’’ 414 Unfortunately, whatever success may have been brought about by

Harwell’s participation was hindered by what Sage

called a ‘‘distinct change in negotiation strategy.’’ 415 From that point on, Harwell’s participation in the negotiations consisted of having his

previous conversations broadcast into the residence via loudspeaker.

b. The Texas Rangers

Another group for which Davidians expressed

their trust was the Texas Rangers. A longstanding

and well respected law enforcement entity, the

Texas Rangers were charged with conducting the

final investigation into the raid on the Davidians.

The Rangers were never allowed to participate in

negotiations with the Davidians. They often had

concerns about the conduct of the siege and attempted to express these concerns to Jamar. The

Rangers were frustrated by a lack of communication with Jamar. As Captain Byrnes testified before subcommittees, ‘‘[I]f I went over there, the

door was already closed to where Mr. Jamar was.

Several times I waited a half hour, 45 minutes to

see him and never saw him, and I finally quit

going over there. We couldn’t even get a phone call

through. It was total lack of communication.’’ 416

c. The attorneys for the Davidians

Another concern of the Rangers was the FBI’s

decision to allow face-to-face meetings between the

Davidians and their attorneys. While it is common

for a client under investigation or prosecution to

meet with his attorney, it is rare for an attorney
60

417 Id. at 23. DeGuerin says it’s a frequent practice of attorneys to

meet with their clients before they are arrested. Id. Texas Ranger Captain Byrnes testified before the subcommittees, ‘‘We went to see Mr.

Jamar and offered a Ranger to help with the negotiations, if that would

be helpful—not one of the captains but one of the Rangers that had been

trained, most of them, by the FBI. He thanked us for that offer, and we

never heard anything else about it.’’ Id. at 297. 418 Id. at 23. 419FBI Commander Jeffrey Jamar testified before the subcommittees,

‘‘I was hopeful they could appeal to his self-interest. Everything Mr.

Koresh did was to his self-interest.’’ Id. at 312–313. 420Texas Ranger Captain Cook testified before the subcommittees that

when all else fails in negotiations, ‘‘you got to do what works. I think

you can get too formalized.’’ Although formal training opposes this.

McClure says it can be used as a last resort. Id. at 146. 421 Justice Department Report at 91. ‘‘The proposed face-to-face meeting between Koresh and DeGuerin caused significant controversy within

law enforcement. SAC Jamar made the decision to permit the meeting,

clearing it with U.S. Attorney Ederer. The AUSA’s [Assistant U.S. Attorney] and the Texas Rangers, who would be responsible for the eventual

prosecutions, strongly opposed the meeting. Jamar was focused on resolving the standoff safely, while the prosecutors and the Texas Rangers

were focused on the integrity of future court proceedings. The prosecutors and Texas Rangers were afraid that the defense attorney would give

advice to Koresh which could result in the destruction of evidence and

cause a more difficult prosecution.’’ The attorneys met inside the residence approximately seven times. 422 Hearings Part 2 at 79.

Mrs. THURMAN: How many total hours did you spend with [Koresh],

do you think, in the period of time that you represented him.

Mr. DEGUERIN: About 32 hours. 423 Id. at 304–306. 424 Id. at 47. 425 Negotiation Transcripts (April 14, 1993). 426 Hearings Part 2 at 304–306.

427 Jamar testified before the subcommittees, ‘‘They would build their

[DeGuerin and Zimmerman] spirits up. I can remember one instance

when DeGuerin came out and, believe me, he put his best effort in and

I give him all the credit in the world for the effort he made. He would

build him up and then cut his legs out from under him. I remember one

instance where he said he was making a point with him and Koresh

feigned illness. It happened to us all the time.’’ Id. at 297–298. 428 Id. 429 Noesner Briefing. Noesner maintains that a negotiator should

never become embroiled in a discussion of the beliefs of the subject of

the negotiations; never give the barricaded person the benefit of believing he has control of the conversation. Dr. Phillip Arnold, of the Reunion

Institute in Houston, TX, and Dr. James Tabor, Associate Professor of

Religious Studies at the University of North Carolina at Charlotte, suggest that Koresh could have been dealt with through a discussion of his

biblical interpretations. According to the Harvard Negotiation Project,

‘‘negotiating [with people acting out of religious conviction] does not require compromising your principles. More often success is achieved by

finding a solution that is arguably consistent with each side’s principles.’’ Roger Fisher et al., Getting to Yes (1991). 430 Justice Department Report at 26–28. The Department of Justice report recounts Koresh’s attempt to tell his side of the situation. 431 Noesner Briefing.

to meet with his client while his client is the subject of a ‘‘hostage barricade situation.’’ 417 The negotiators and the tactical agents had different

opinions on the wisdom of letting the attorneys

into the residence.418

The negotiators were concerned that any third

party intermediary was ill equipped to be thrust

into the fragile negotiations that consume barricade situations. Negotiators were willing to use

the attorneys in ways that would jumpstart the

negotiations.419 The tactical team, along with the

Texas Rangers, were concerned about the opportunity that DeGuerin and Jack Zimmerman, the

attorney for Steve Schneider, would have to destroy evidence. But even Texas Ranger Senior

Captain Maurice Cook agreed with the wisdom of

letting the attorneys into the residence by saying,

‘‘[Y]ou got to do what works.’’ 420 Jamar made the

decision because he was ‘‘focused on resolving the

standoff peacefully.’’ 421 DeGuerin and Zimmerman

entered the residence on several occasions. The attorneys spent a total of 32 hours with Koresh.422

(i) Progress was made from the visits.—Negotiators and Jamar had the sense that the meetings

were ‘‘positive.’’ 423 On April 1, when the attorneys

requested extensions of the pre-approved time limits, they described their progress as ‘‘terrific.’’ In

that meeting, David Koresh promised to come out

‘‘after Passover.’’ 424 The actual date of Passover,

however, was a matter of controversy.

On April 14, a telephone conversation between

DeGuerin and Koresh produced what DeGuerin

called a promise to come out.425 The FBI called

this promise ‘‘a new precondition for his coming

out.’’ 426 The precondition was the completion of

David Koresh’s written interpretation of the

‘‘Seven Seals,’’ discussed in the Bible’s Book of

Revelation.

A letter attesting to the surrender offer followed

the verbal promise. But the FBI remained skeptical.427

(ii) Negotiator and lawyers consultation after the

first visit.—After each visit and on occasion when

there was no visit, the FBI and the lawyers had

discussions about strategy and about arranging

more visits with Davidians. The agents worked

closely with the attorneys before each visit and attorneys cooperated with the FBI.

Before the trips into the Davidian residence, the

agents and attorneys arranged time limits and

topics for discussion while the attorneys were inside.428 On only one occasion did the attorneys ask

to remain in the residence longer than the arranged time.

C. LACK OF APPRECIATION OF OUTSIDE INFORMATION

1. Why the FBI did not rely more on religious advisors to understand Koresh

Many argue that the reason negotiations failed

was that the FBI failed to grasp the nature and

strength of Branch Davidian beliefs. There exists

a conflict among those who believe negotiators

should never become sympathetic with the ‘‘hostage taker’’ and others who believe the only way to

negotiate is to understand the subject of the negotiations.429 The FBI became frustrated with endless dissertations of Branch Davidian beliefs and

ignored assertions of religious experts that Koresh

could be negotiated with on a theological level.430

The FBI grew skeptical that Koresh could be convinced that ending the siege was in his best interest.

a. The FBI standard in negotiations

Mainstream negotiation tactics call for the negotiator to remain aloof from the subject of the negotiations, to pursue crisis management team goals,

and never become embroiled in the message of the

hostage taker.431 The focus of negotiation training
61

432 Hearings Part 2 at 181. 433 Id. 434 Interview of Dr. Eugene Gallagher by Robert J. Shea, Special Assistant to the Subcommittee on National Security, International Affairs,

and Criminal Justice, in New London, CT (October 23, 1995). 435 Justice Department Report at 189.

436Stone Report at 43, 44. 437 Justice Department Report at 186. ‘‘On March 17, Schneider told

the FBI that he and some of the other residence members had heard of

Dr. Arnold as someone with expertise about the Book of Revelations and

the Seven Seals, and that they wanted to speak with him. The FBI refused to permit a live telephone conversation, but offered an exchange

of audiotapes instead. On March 19, the FBI sent an audiotape that Dr.

Arnold had made into the compound.’’ Id. 438 Hearings Part 2 at 46–47. 439 Id. 440 Id. at 362. Cavanaugh testified before the subcommittees, ‘‘I fully

respected their religious beliefs. I think all the other negotiators did,

also. I do not mean to be sarcastic, but my feeling was they can worship

a golden chicken if they want to, but they cannot have submachine guns

and hand grenades and shoot Federal agents. I played the role as policeman. I did not try to fool the Davidians that I was something else. I

think that is one reason that Koresh certainly trusted me from the beginning.’’ Id.

is ‘‘active listening.’’ The negotiator is supposed to

find out what the subject wants or demands.

Negotiation training gives preference to those

with a social science background. The FBI negotiation curriculum includes abnormal psychology and

the social sciences. Time after time, David Koresh,

and Davidians Wayne Martin and Steve Schneider, sought to speak with someone who could understand the Branch Davidian interpretation of

the Seven Seals. The FBI resisted the desire to engage Koresh in such a discussion, saying that it

was sure to be fruitless.432 McClure testified at

the hearings that he had been involved in a similar situation when religious discussions of a barricaded group had proved fruitless. He said, ‘‘In

1987, I was involved in a situation in Atlanta

where 1,400 Cubans were holding 121 hostages.

Their religious belief was very important to them

during that period of time. Those hostages were

held for 12 days. Every time that we gave a negotiations and responded to their religious questions

and got in their head or tried to get into their

head and they tried to get into our about religion,

no progress was made. When we talked about secular issues, we got people out.’’ 433 This experience

appears to have led the FBI to avoid religious discussions with the Davidians.

b. Experts consulted

When the FBI first arrived in Waco, it had little

information about David Koresh and the

Davidians. Negotiators sought as much information as possible about the group. It was left to the

experts hired by the FBI to create a profile of

David Koresh and develop a plan to negotiate with

the Davidians.

Dr. Eugene Gallagher, professor of Religion at

Connecticut College, calls Glenn Hillburn, Dean of

the Baylor University Department of Religion, ‘‘the

one expert with a firm grasp of the history of the

Davidians within the framework of the Seventh

Day Adventists.’’ 434 According to the Justice Department Report, Glenn Hillburn, Dean of the

Baylor University Department of Religion, ‘‘provided information on the Book of Revelations, the

Seven Seals, and other Biblical matters.’’ 435 The

report makes no mention of special insight

Hillburn provided into the peculiar habits of the

Davidians or David Koresh. Other than Dr.

Hillburn, Dr. Gallagher concludes, the FBI consulted few religious experts with knowledge of

Branch Davidians and what they believed. Indeed,

Stone says in his Report and Recommendations,

‘‘One of my fellow panelists believes—and I am

convinced—that the FBI never actually consulted

with a religious expert familiar with the unconventional beliefs of the Davidians.’’ 436

c. The failure to consult outside experts

The FBI relied on experts with whom it was familiar. But, there were individuals who embraced

the peaceful resolution of the situation in Waco as

their personal crusade. Among those who made serious efforts to help were Philip Arnold, Associate

Professor of Religious Studies at the University of

North Carolina at Charlotte, and Gene Tabor of

the Reunion Institute in Houston, TX. It was difficult for Arnold and Tabor to intercede. The Justice Department Report mentions that ‘‘[t]he FBI

refused to permit a live telephone conversation’’

between Arnold and Schneider although Schneider

requested Arnold by name.437

d. What communications did they have with

Koresh?

Tabor and Arnold saw a video sent out by

Koresh and thought effective negotiation was possible if the FBI dealt with Koresh within a framework of the Bible, particularly the Seven Seals.438

Koresh had heard Arnold giving his interpretation

of the Seven Seals and offering assistance on the

KJBS radio.439

Neither Arnold nor Tabor ever spoke with

Koresh. Koresh and Schneider repeatedly asked to

speak with Philip Arnold. Arnold and Tabor were

allowed to send in tapes of their interpretations at

the request of DeGuerin, Zimmerman and Koresh,

himself. But at no time were they allowed to participate in the negotiations.

e. Did the FBI take any of this advice?

It goes against standard negotiation policy to

allow outsiders to participate in serious and dangerous ‘‘hostage’’ negotiations. Consistent with the

advice of FBI experts, the negotiators in Waco did

not allow outsiders to participate in negotiations

out of fear that something they said might inflame

David Koresh. Arnold and Tabor were no exception, they were ignored.

From the very beginning, negotiators failed to

take seriously the point of view of the

Davidians.440 According to the Justice Department

Report, ‘‘There were certain areas of activity in

which the FBI did not seek outside help. The FBI
62

441 Justice Department Report at 157. 442 James Tabor and Eugene Gallagher, Why Waco? 110 (1995). 443 Negotiation transcripts, March 17, 1993. 444 Id.

445 Hearings Part 2 at 325. 446 Nancy T. Ammerman, Waco, Federal Law Enforcement and Scholars of Religion, in Armegeddon in Waco: Critical Perspectives on the

Branch Davidian Conflict 282, 282–283 (Stuart Wright ed., 1996).

Ammerman writes, ‘‘Did [the FBI] not know that apocalyptic beliefs

should be taken seriously, that they were playing the role of the enemies

of Christ? Did they not know that any course of action that did not seem

to come from the Bible would be unacceptable to these students of Scripture? I have yet to encounter a single sociologist or religious studies

scholar who has the slightest doubt that the strategies adopted by the

FBI were destined for tragic failure.’’ Id. 447 Hearings Part 2 at 144–145. 448 Id. at 47–48.

did not request assistance . . . with negotiations,

since the FBI’s best negotiators were assigned to

Waco throughout the fifty-one day standoff.’’ 441 It

appears that the FBI paid no attention to those experts who believed Koresh could have been reasoned with within the proper religious and biblical

context.

Koresh and Davidians talked frequently in religious terms. In their book, Tabor and Gallagher

quote the following passage from the negotiation

tapes to point out frustration with the FBI’s lack

of familiarity with theology:

HENRY: Let’s not talk in those terms,

please.

KORESH: No. Then you don’t understand my doctrine. You don’t want to hear

the word of my God.

HENRY: I have listened to you and listened to you, and I believe in what you

say, as do a lot of other people, but the,

but the bottom line is everybody now considers you David who is going to either

run away from the giant or is going to

come out and try to slay the giant. For

God’s sake, you know, give me an answer,

David. I need to have an answer. Are you

going to come out?

KORESH: Right now, listen.

HENRY: Right now you’re coming. . .

KORESH: ‘‘He that dasheth in pieces is

come up before thy face: keep the munition.’’ What’s the munition? ‘‘Watch the

way.’’

HENRY: One of the things, one of the

things is I don’t understand the scriptures

like you, I just don’t.

KORESH: Okay, if you would just listen, then I would show you. It says here—

it says here, ‘‘The Chariots shall be with

flaming torches.’’ That’s what you’ve got

out there [referring to the tanks].442

FBI negotiators maintain that they never discounted Branch Davidian beliefs. However, in one

conversation with Koresh, Byron Sage responds to

another long dissertation by Koresh. Sage says,

‘‘That’s garbage.’’ Later in that same conversation,

Sage says, ‘‘No one in the FBI has ever scoffed at

your beliefs.’’ 443

In their book about Waco, Tabor and Gallagher

are critical of the negotiations. They write,

‘‘Koresh’s interpretations went completely over the

heads of the FBI negotiators, who were understandably put off by this approach.’’ 444 Despite the

fact that the overwhelming majority of David

Koresh’s communications involved intense and

lengthy dissertations on biblical text, the FBI refused to allow a religious expert to engage David

Koresh or to consult in negotiations.

Much of the criticism of negotiations centered on

the fact that the FBI never engaged Koresh or the

Davidians in a discussion of theology. Noesner said

‘‘there are two consistent themes that you will

hear from every mental health expert that knows

anything about crisis intervention, crisis negotiation, and that is that you neither embrace someone’s belief system nor do you discount it.’’ 445

Some are convinced that a prerequisite to successful negotiations with the Davidians is a firm grasp

of the religious doctrine on which they base their

beliefs.446 In hearings before the subcommittees,

Arnold testified that the FBI negotiators were ill

prepared for productive discourse with the

Davidians, ‘‘[The negotiators] were not able to perceive the meaning of the religious language the

Davidians were using. They were not able to understand the actions the Davidians took. Had they

had knowledge of the religious faith of the

Davidians, this story could have ended in a much

better and happier way.’’ 447 Others simply suggested that negotiators should search out experts

to grasp better the subjects of the negotiations. As

Representative Henry Hyde, chairman of the Committee on the Judiciary, said, ‘‘There is an unwillingness to understand or believe that there are

people in the world who are persons of belief and

they believe strange things by our standards.

[H]ad the understanding been these weren’t hostages, these were willing members of a religious

group, and to get in there and to dissipate them

would take persuasion, argumentation from their

frame of reference, not tear gas and tanks.’’ 448

With at least a good background on the subject of

religion, particularly the religious dogma professed

by the Davidians, the negotiators could have better manipulated the conversations.

2. Others who contributed information

It is clear that all of the attention focused on

Waco and the standoff at Mount Carmel encouraged many people to contribute their ideas to the

negotiations. The method for processing this information is central to discerning whether any valuable advice or data was omitted or, inadvertently

or intentionally, ignored. In this case, as in others,

the actions taken by the FBI depended largely

upon the information used, and to whom it was

made available when key decisions were being

made.
63

449 Justice Department Report at 156. The report discusses the among

and type of information coming into Waco. ‘‘The FBI also received unsolicited advice and offers of assistance from many individuals; not surprisingly, this input was rarely useful.’’ For example, on March 16, 1993

a well-known rock band contacted the FBI and offered to perform outside the Mount Carmel Residence, and to play a song that U.S. helicopters broadcast at enemy troops to demoralize them during the Vietnam war. On the other hand, the FBI received an unsolicited letter from

the Harvard Negotiation Project containing thoughtful and specific suggestions to assist the negotiators in formulating a framework for further

negotiations with Koresh. A smaller number of offers came from individuals lacking a firm grip on reality, such as people claiming to be God

or Jesus offering to ‘‘order’’ Koresh to leave the compound. One person

was arrested on his way to the compound brandishing a samurai sword,

which he said ‘‘God had told him to deliver to Koresh.’’ Id. 450 All incidents investigated by the Department of Justice contain

interviews of those involved in the incident. This interview was conducted in conjunction with the investigation of the incident at Waco. 451 U.S. Dept. of Justice, record of interview of Byron Sage by Susan

DeBusk (August 26, 1993). 452Stone Report at 43. 453 Hearings Part 2 at 145. Tabor registers his sympathy for the FBI

in the fact that they were on information overload. He also suggest some

procedural way of compiling information and discerning the ‘‘nuts from

the bolts.’’ Id. 454 U.S. Dept. of Justice, record of interview with Byron Sage by Susan

DeBusk (August 26, 1993). In this interview, Sage recounted how he got

information from those offering assistance. In that interview, Sage says,

‘‘Many of the contacts with experts would be through the behavioral

science people rather than through the negotiators. The negotiators

would get the end result of their input from people like Smerick, Young

and Van Zandt.’’ 455 Id. 456The Harvard Negotiation Project is an enterprise of Harvard Law

School that attempts to present alternatives to traditional negotiation

techniques. 457Letter from the Harvard Negotiation Project to Jeffrey Jamar

(March 29, 1993). 458 Justice Department Report at 156. 459 Id. at 156 ‘‘Throughout the Waco standoff, the FBI meticulously

kept track of all unsolicited offers of assistance, and followed up on those

that seemed to promise any reasonable chance of producing helpful information. There were certain areas of activity in which the FBI did not

seek outside help. For example, the FBI did not request assistance from

any outside law enforcement agencies in performing any of its tactical

operations; it did not request assistance with negotiations, since the

FBI’s best negotiators were assigned to Waco throughout the 51-day

standoff, and it did not consult with outside experts regarding the decision to play loud music and Tibetan Monk chants over the loudspeakers

to irritate those inside the residence.’’ Id.

a. How much information was coming in?

It is clear that a great deal of unsolicited information was being sent to Waco. In addition to people honestly offering assistance, a variety of people

came to Waco to express a variety of sentiments to

officials on site.449 This was in addition to the experts retained by the FBI. As the Justice Department report suggests, ‘‘The FBI also received unsolicited advice and offers of assistance from many

individuals; not surprisingly, this input was rarely

useful.’’ The report continues, ‘‘A smaller number

of offers came from individuals lacking a firm grip

on reality, such as people claiming to be God or

Jesus offering to ‘order’ Koresh to leave the

compound.’’

Negotiator Byron Sage recounted in a Justice

Department interview that ‘‘an incredible number

of people called the negotiators offering help.450 [I]

tried to field these offers early on, but then [I]

farmed it out to the behavioral science people to

weed out the good stuff.’’ 451 Others indicate that

information was indiscriminately delivered to negotiators.452 According to Dr. Stone, ‘‘all kinds of

experts . . . allegedly were consulted . . . and

took it upon themselves to offer unsolicited advice.’’ Stone continues, ‘‘the prevailing pattern in

the information flow during the crisis was for each

separate expert to offer the FBI an opinion.’’ The

problem, it seems, was too much information.453

b. The method set up to communicate with

people calling to help

Many people called who were deemed ‘‘lacking a

firm grip on reality.’’ When asked about such contacts with agents and officials in Waco, Chief Negotiator Gary Noesner said he knew nothing about

them. Offers for help, however, were referred to

the consulting experts. The experts analyzed the

information provided or the assistance offered and

passed it along to the negotiators in the form of

memoranda.454 Rarely did these people talk to negotiators, themselves, and never were they allowed

to speak to the Davidians.

Sage maintains that the theologian on whom he

depended the most was Glenn Hillburn, the chairman of the Baylor School of Religion. In addition

to his role as religious advisor to Sage, Hillburn

‘‘provided . . . his feeling as to the credibility and

bona fides of people who called in offering their

help.’’ 455 In one instance, an offer of assistance

was made by the Harvard Negotiation Project.456

The letter sent to Waco was written by Roger

Fisher, director of the Harvard Negotiation

Project, and was based on an analysis of the situation that was underway at the project and utilized

the principles of negotiation that the project

taught every day. The proposal made in the letter

to Jamar included putting together ‘‘a small team

. . . as familiar as possible with Koresh and the

situation inside the residence’’ that would ‘‘find a

potential ‘third party’ and work urgently on putting together a package that would be attractive to

Koresh.’’ The letter suggested that the government

allow ‘‘the third party to come to Waco and make

the offer, which will inherently expire if not accepted before the third party leaves Waco in two

or three days.’’ 457 The advice that the Harvard

Negotiation Project offered was disregarded. Although the letter is mentioned in the Justice Department report, there is little evidence that the

negotiators took any of that advice.

Despite a steady flow of information and advice,

the FBI did not make any serious attempt to

evaluate and disseminate the suggestions that

came to its attention. The Justice Department

maintains that it kept ‘‘meticulous’’ 458 track of the

offers of assistance. It also concedes that it did not

need or accept help in many areas.459 Yet it is difficult to understand why the offers of help from respected, credible religious experts and experts in

negotiations were rejected.
64

460Stone Report at 12. 461 Edward Dennis summarized the opinions of the experts as follows:

On March 3, 1993 the behavioral experts wrote a joint memo recommending a strategy of trying to work within the Davidians own belief

system to talk them out. They recommended acknowledging the conspiracy against the Davidians and their right to defend themselves, and creating an illusion that Koresh could win in court and in the press and

would not go to jail. On March 5 behavioral experts wrote a memo advising that the negotiation strategy focus on insuring the safety of the children and facilitating the peaceful surrender of the Davidians. This

memo recommended a de-escalation of tactical pressure because movement of tactical personnel would validate Koresh’s prophesy that his followers must die defending their faith. As an alternative tactic, the memo

recommends that efforts be made to drive a wedge between Koresh and

his followers by convincing them that a battle is not inevitable.

Dennis Report at 49.

462Stone Report at 13. 463 Justice Department Report at 182. 464 Id. 465 Id.

466 U.S. Dept. of Justice, record of interview of Peter Smerick (August

24, 1993). 467 Id. 468 Hearings Part 2 at 238. 469 Id. 470 Justice Department Report at 35. 471 Hearings Part 2 at 68–69. 472 Id. at 49.

D. THE FBI’S FAILURE TO FOLLOW ITS OWN EXPERT’S

RECOMMENDATIONS

1. What the FBI’s own experts recommended

According to Stone, ‘‘the FBI investigative support unit and trained negotiators possessed the

psychological/behavioral science expertise they

needed to deal with David Koresh and an unconventional group like the Davidians.’’ 460 Among the

many experts, the talent was extraordinary and

the amount of information they had to use was

enormous. It was not difficult for the experts to

come to a consensus.

The clearest consensus among the FBI experts

and others was not to provoke the Davidians. The

experts feared that any provocation could lead

Koresh to initiate the fiery end he predicted. FBI

experts agreed with this approach.461 As Stone

writes in his separate evaluation, ‘‘I believe the

FBI behavioral science experts had worked out a

good psychological understanding of Koresh’s psychopathology. They knew it would be a mistake to

deal with him as though he were a con-man pretending to religious beliefs so that he could exploit

his followers.’’ 462

Smerick coauthored six memoranda on David

Koresh based on Koresh’s past behavior and listening to negotiations. In each of the early memoranda, Smerick proposed that the FBI approach

the Davidians with caution and avoid provocation.

Smerick said that the cautionary memoranda were

written expressly because ‘‘the FBI commanders

were moving too rapidly toward a tactical solution,

and were not allowing adequate time for negotiations to work.’’ 463 In his final memorandum,

Smerick proposed ‘‘’other measures’ . . . because

negotiations had met with only limited success.’’ 464 As the Justice Department Report maintains, ‘‘those other measures included sporadically

terminating and reinstating of utilities; moving

equipment and manpower suddenly; downplaying

the importance of Koresh in the daily press conferences; controlling television and radio reception

inside the compound; and cutting off negotiations

with Koresh.’’ 465 Although these suggested measures are exactly the tactics the FBI used in Waco,

Smerick suggests that while the ‘‘negotiators were

building bonds . . . the tactical group was undermining everything.’’ 466 Smerick continued, ‘‘[e]very

time the negotiators were making progress the tactical people would undo it.’’ 467

During the hearings before the subcommittees,

Smerick was questioned about this abrupt change

in his advice; and whether senior Justice Department officials pressured him to change his advice

to match the course of action preferred by the onscene commanders. Smerick testified that he felt

‘‘no overt pressure’’ 468 to alter his memoranda.

But he said that he was aware that the FBI wanted different advice. Smerick told the subcommittees:

I had received information from FBI

headquarters that FBI officials were not

happy with the tone of my memos. From

the standpoint that they felt it was tying

their hands, meaning they were not going

to be able to increase any type of pressure

within that compound and instead were

going to have to rely on strictly negotiations.469

Smerick developed profiles and memoranda that

corroborated the opinions of qualified experts both

in and outside the FBI. Smerick’s opinion on this

matter is the only expert opinion that changed as

the crisis continued.

E. THE DECISION TO DISMISS THE SURRENDER PLAN

On March 2, everyone in the residence was lined

up, ready to exit, when Koresh was ‘‘told by God

to wait.’’ 470 As far as the FBI was concerned,

Koresh’s credibility was broken. After a trip into

the residence, DeGuerin and Zimmerman told

Jamar of a new surrender plan based on the writing of the Seven Seals. The FBI did not believe it.

But there was evidence that pointed to a genuine

change in attitude.471

1. ‘‘Kids lined up with their jackets on’’

The surrender plan on March 2 was marked by

evidence that everyone but Koresh was prepared

to exit the residence. After making much of his

promise to come out, Koresh maintained that God

told him to wait. In preparation for the surrender,

the FBI and the Davidians worked out a complicated plan that involved everything from buses

that would carry the Davidians to the order in

which everyone would stand. A proposal to involve

the Texas Rangers in a surrender ‘‘wasn’t rejected,

but it wasn’t greeted with a lot of enthusiasm.’’ 472

In connection with the DeGuerin and Zimmerman visits to the residence, Jamar negotiated a

similar surrender plan with the attorneys. The
65

473 Id. at 77. 474Letter from David Koresh to Dick DeGuerin (April 4, 1993). 475 Hearings Part 2 at 77. 476Letter from David Koresh to Dick DeGuerin (April 14, 1993). 477 Hearings Part 2 at 68–69. 478 Id. 479 Id. at 199–200. 480 Id. 481 Negotiation transcripts April 14, 1993. 482 Hearings Part 2 at 172.

483 Id. 484 Id. at 42. 485 Id. at 305. 486 Id. at 323. 487 Id. at 305. 488 Justice Department Report at 270. ‘‘Hubbell recalls that Sage said

further negotiations with the subjects in the residence would be fruitless. The only people Koresh had released were older, or people who had

given him problems during the time they were in the residence, or children who he had not fathered.’’ Sage further advised Hubbell that

Koresh had been disingenuous in his discussions with Sage about the

‘‘Seven Seals.’’ He was also convinced that the FBI had not succeeded

in getting anyone released from the residence through negotiation. Sage

indicated that he had never been in any previous situation in which he

had experienced such an impasse. Id.

only change that the attorneys and the Davidians

suggested was that the children come out with

their parents, rather than separately.473

2. Breakthrough with Koresh’s letter

Following one visit to the residence by DeGuerin

and Zimmerman, Koresh sent out a letter attesting to the fact that he was working on the Seven

Seals.474 On April 13 and 14, Koresh said that he

had ‘‘received his mission’’ from God and that he

would be out of the residence soon. According to

DeGuerin, ‘‘everyone was relieved they did not

have to die.’’ 475 Koresh had written letters before.

Most had been rambling biblical dissertations. The

final letter was different, because it mentioned a

deadline by which to determine when Koresh

would surrender. That deadline was the writing of

Koresh’s interpretation of the Seven Seals.

There were other reasons that some saw the letter as a true breakthrough. The April 14 letter

was written in a prosaic form different from the

other letters. Koresh’s letter expressed the desire

to come out of the residence and to ‘‘stand before

man to answer any and all questions regarding my

actions.’’ 476 More important to some religious

scholars and observers than a professed desire to

surrender, however, was the fact that the letter indicated Koresh had found a basis for surrender in

his own religious doctrine.477 Tabor and Arnold

had been attempting to persuade Koresh that adequate reason for surrendering could be found in

the Bible. The major change in the April 14 letter,

according to Tabor, was that ‘‘Koresh used the religious arguments in this letter for why he had now

seen that the scriptures told him to come out.’’ 478

Arnold and Tabor, among others, found affirmative

evidence that Koresh would surrender in the fact

that ‘‘[Koresh] could come out and preach his message.’’ 479 Tabor told the subcommittees that

‘‘[t]hat was the positive end. And court was negative. But DeGuerin convinced [Koresh] that court

would end positively.’’ 480 Tabor, Arnold, DeGuerin

and Zimmerman believed that a surrender was

eminent.

Further evidence of the fact that Koresh’s letter

was a genuine breakthrough was the reaction of

those in the residence to the news of the surrender. Upon discovery that Koresh had given a deadline for surrender, there was obvious ‘‘jubilation’’

at the prospect of ending the siege.481 In the background of the tapes, cheering can be heard. As

Tabor told the subcommittees, ‘‘You can exactly

see the mental state of the people inside. It is

buoyant. They are talking about coming out. They

are excited about it.’’ 482 And in interviews on the

subject, Tabor quotes surviving Davidians as saying, ‘‘We were so joyful that weekend because we

knew we were coming out, that finally David had

got his word of how to do this legally, the lawyers,

and theologically in terms of his system.’’ 483 The

Davidians believed that they were coming out.

3. The breakthrough communicated to Jamar

On April 14, DeGuerin gave Koresh’s letter to

Jamar. Jamar testified that he knew of the ‘‘breakthrough.’’ Upon reading the letter and talking with

DeGuerin and Zimmerman, Jamar told them ‘‘that

there was plenty of time.’’ 484 In his testimony before the subcommittees, Jamar recalled, ‘‘What I

said was, if there is writing of a manuscript, if

there is progress, we will take the time.’’ 485 Jamar

gave DeGuerin and Zimmerman the impression

that he believed the offer to surrender was serious.

DeGuerin and Zimmerman were so confident that

Koresh was writing the seals and would soon surrender, that they returned to Houston. Jamar,

however, never took the surrender offer seriously.

He told the subcommittees, ‘‘It was serious in

[DeGuerin’s and Zimmerman’s] minds. I think

they were earnest and really hopeful but in

Koresh’s mind, never a chance. I’m sorry.’’ 486

4. The failure to communicate this breakthrough

up the chain of command

In the final days of the standoff, no one communicated to the Attorney General or anyone senior

to Jamar that there might be a genuine attempt to

end the siege by Koresh. No one put forth the possibility that a surrender was in the future. When

asked by the subcommittees whether the Attorney

General had been notified of the surrender plan,

Jamar said, ‘‘I doubt it because it was not, from

our understanding . . . a serious plan.’’ 487 In an

April 15 conversation, Sage told Associate Attorney General Webster Hubbell that there was little

use in negotiating further.488 Sage, Jamar, and

Ricks all acted as though nothing out of the ordinary had occurred in Waco on April 14. They did

not give the Department of Justice all of the information they had about the situation in Waco and

misled them about the previous success of some

negotiators.

It appears that DeGuerin and Zimmerman were

the only people involved in the negotiations who

took Koresh’s promise seriously. SAC Jamar and

the FBI negotiators saw this as another attempt at
66

489 Hearings Part 2 at 323. 490 Id. 491 Id. at 69. 492 Id. at 357. 493 Id. at 306.

delay by Koresh. As a result, they did not give this

new surrender offer a chance to work.

5. Evidence that Koresh was writing his interpretation of the Seven Seals

The FBI had no concrete evidence that the Seals

were being written.489 Even negotiation transcripts give conflicting indications as to whether

the work was in progress. Only after physical evidence was removed from the destroyed residence

did the FBI find proof that the Seals were being

written. Surviving Branch Davidian Ruth Riddle

said that the Seals were being written.490 Judy

Schneider was transcribing the Seals and Riddle

had the computer disc containing that writing.491

It is clear that some work was being done on

Koresh’s interpretation of the Seven Seals.

6. Why the FBI disregarded the evidence that the

Seven Seals were being written

Although Koresh indicated he was writing his

interpretation of the Seven Seals, the FBI was not

willing to give the surrender plan an opportunity

to work. The FBI was frustrated and appeared to

give to Justice Department officials only one option. Of the breakthrough to write the Seals, Sage

testified before the subcommittees that ‘‘this first

of all was not a new revelation to us as far as the

Seven Seals.’’ 492 From early in the standoff it appeared that the FBI had made up its mind that

the Davidians weren’t coming out of the residence

of their own free will. Of the possibility of surrender, Jamar testified, ‘‘From [Koresh’s] conduct

from February 28th until April 19th, I would have

every reason to believe he would not [surrender].’’ 493 The FBI was convinced Koresh would

never surrender.

F. FINDINGS CONCERNING THE NEGOTIATIONS TO

END THE STANDOFF WITH THE DAVIDIANS

1. The FBI allowed negotiators to remain in

position at the Branch Davidian residence

for too long, resulting in the physical and

emotional fatigue, affecting the course of the

negotiations. The negotiators were in place for 51

days. Negotiations occurred almost constantly 24

hours a day. Despite a steady rotation of negotiators, it is clear from the transcripts that negotiators allowed their emotions to influence the discussions.

2. The FBI did not take appropriate steps

to understand the mindset of the subjects of

the negotiations. Numerous experts offered their

advice on the specific beliefs of Koresh and the

Davidians. Throughout the process, it is clear that

the negotiators did not engage the Davidians in

meaningful negotiations by ignoring the Davidian

point of view. The subcommittees believe that the

course of the negotiations could have been better

directed by an increased understanding of the

Davidians’ religious perspective.

3. The FBI leadership failed to make crucial decisions about which strategy to employ. Two separate strategies were enacted simultaneously. The tactical pressure constantly worked

against the strategy of negotiation. FBI leadership

engaged these two strategies in a way that bonded

the Davidians together and perpetuated the standoff.

G. RECOMMENDATIONS

1. Federal law enforcement agencies should

redesign negotiation policies and training so

that physical and emotional fatigue will not

influence the course of negotiations. In anticipation of future negotiations involving unusually

emotional subjects, such as Koresh, or those which

may involve prolonged periods of time during

which negotiators may become physically or emotionally fatigued, law enforcement agencies should

implement procedures to ensure that these factors

do not influence the recommendations of negotiators to senior commanders. Such procedures

may involve using additional negotiators in a team

approach, limiting the amount of time a particular

negotiator remains on duty, limiting the amount of

interaction between law enforcement officials and

the subject of the negotiations until satisfactory

behavior is elicited from the subject, or applying

other ‘‘rewards’’ and ‘‘punishments’’ in order to

elicit positive responses from the subject during

negotiators.

2. Federal law enforcement agencies must

take steps to foster greater understanding of

the target under investigation. The subcommittees believe that had the government officials involved at Waco taken steps to understand better

the philosophy of the Davidians, they might have

been able to negotiate more effectively with them,

perhaps accomplishing a peaceful end to the standoff. The training, policies and procedures of Federal agencies should be revised to emphasize the

importance of developing an understanding of

their investigative targets.

3. Federal law enforcement agencies should

implement changes in operational procedures and training to provide better leadership in future negotiations. The subcommittees

believe that senior commanders should be given

additional training in critical decisionmaking and

that operational procedures be modified in accordance with this training. The subcommittees believe

that the result of these changes should be that

commanders will be better equipped to make necessary decisions from limited options with limited

information during critical incidents. The benefits

of these changes will protect not only the targets

of government action but, by making it more likely

that Federal law enforcement officials will carry

out their mission in the manner most likely to suc-
67

494 U.S. Dept. of Justice, Report to the Attorney General on the Events

at Waco, Texas 79 (1993) [hereinafter Justice Department Report]. Larry

Potts, Assistant Director of the FBI in 1993, testified before the subcommittees that ‘‘[I]n terms of the formation of the gas plan, I think that

Mr. Jamar first contacted me around March 27th or sometime near the

very end of March, to indicate that such a plan was being submitted [to

senior FBI officials].’’ Hearings Part 2 at 480. 495 Justice Department Report at 263. 496 Id. 497Federal Bureau of Investigation, Briefing for the Attorney General,

at 25. [See Documents produced to the subcommittees by the Department of Justice 003370–003480, at Appendix [hereinafter Justice Documents]. The Appendix is published separately.] 498 Id.

ceed, but will help to protect the safety of the law

enforcement officers as well.

4. Federal law enforcement agencies should

take steps to increase the willingness of its

agents to consider the advice of outside experts. The subcommittees recommend that Federal law enforcement officials expand their capacity to obtain behavioral analyses of the targets of

their investigations. This could be done through an

expansion of those parts of the agencies in which

behavioral analyses is performed. Additionally,

this capacity could be enhanced through more formal arrangements with reputable outside consultants. The Nation’s universities contain a wealth of

experts whose expertise cuts across all fields of

human behavior. Federal law enforcement should

consider a more formal process for identifying

qualified experts and entering into arrangements

with them whereby they would be available when

called upon.

5. Federal law enforcement agencies should

modify standard negotiation policies to allow

senior commanders to seek outside expert

participation in negotiations when warranted by special and extenuating circumstances and the absence of in-house expertise. The immense number of people seeking to

assist in the negotiations at Waco provided a good

pool of resources from which to choose experts.

Some of those people offering their assistance

could have proven useful in the negotiations. The

FBI should encourage agents to reach out for creative solutions to barricade situations in the future.

VII. THE ATTORNEY GENERAL’S DECISION TO END

THE STAND-OFF

A. OVERVIEW OF THE PLAN TO END THE STANDOFF

On April 12, 1993, the FBI presented Attorney

General Janet Reno with a plan to end the standoff with the Branch Davidians. On April 17, 1993,

the Attorney General gave her approval for the

plan to be implemented on April 19. The stated

mission of the plan was to ‘‘secure the surrender/

arrest of all adult occupants of the residence while

providing the maximum possible security for the

children within the compound.’’ A key component

of the plan was the decision to use CS, a chemical

riot control agent, which would be sprayed into the

Branch Davidian residence in an attempt to induce the Davidians to leave. The plan was implemented on April 19, but the Davidians did not

leave their residence as government officials suggested. Instead, 6 hours after the beginning of the

operations, a fire erupted inside the structure, ultimately consuming it and the more than 70 persons

inside.

B. THE OPERATION PLAN FOR APRIL 19, 1993

1. Overview of the written operation plan to end the

standoff

As early as March 22, 1993 the FBI began formulating an operation plan to end the standoff

with the Davidians.494 On April 12, 1993, the FBI

presented its plan to the Attorney General for her

approval.495 According to the Justice Department

Report, ‘‘Over the next several days the Attorney

General and Senior Justice Department and FBI

officials discussed, debated and dissected every aspect of the plan.’’ 496

The operations plan provided that its mission

was to ‘‘secure the surrender/arrest of all adult occupants of the residence while providing the maximum possible security for the children within the

compound.’’ The key component of the plan was

the delivery of a chemical riot control agent,

known as CS, into the Branch Davidian residence

in order to induce the Davidians to leave. While

the CS agent was being inserted, FBI officials

planned to use a loud speaker system and the telephone to advise the Davidians that tear gas was

being inserted into the residence to force them to

leave, but that an attack was not underway. The

plan also provided for a demand that all subjects

leave the building and surrender to authorities.497

The plan provided for the operation to last up to

48 hours or until all subjects had exited the residence and surrendered. The plan provided for the

first insertion of CS agent to be made into the

front/left portion of the residence. After a period of

time, which was to be dependent on the Davidians’

response to the initial delivery of the CS agent and

any subsequent negotiations that were possible, an

additional tear gas delivery was to be made into

the back/right portion of the residence. After a

third delivery of CS, into an area not specified in

the plan, all subsequent deliveries of CS agent

were to be made into the upper and lower windows

of the residence.498

During the first three insertions, the CS agent

was to be delivered into the residence by two combat engineering vehicles (CEV’s), an armored vehicle similar to the Bradley Fighting Vehicle (Bradley), but which is unarmed. The CEV’s at Waco

were mounted with boom-like arms which were capable of penetrating the walls of the structure.
68

499 Id. 500 Justice Department Report at 285. 501 Justice Department Report at 286. 502 Hearings Part 3 at 269. 503 Justice Department Report at 286. 504The delivery systems mounted on the CEV’s were Protecto-jet

Model 5 Tear Gas Delivery Systems manufactured by ISPRA, Ltd., an

Israeli company. The systems were sold to the FBI by Advanced Materials Laboratories, Inc. of Forrest Hills, NY. The Justice Department Report refers to the systems as Mark V systems. See Justice Department

Report at 287. The subcommittees investigation indicates that while the

Mark V system does exist, there is no evidence that it was used at Waco.

The evidence indicates that only the Protecto-jet Model 5 system was

mounted on the CEV’s furnished to the FBI by the Defense Department.

The references to the Mark V system in the Justice Department Report

appear to be in error. 505The Protecto-jet Model 5 system consists of a cylinder approximately 27 inches long, 41⁄8 inches in diameter, weighing approximately

16 lbs., which is connected to a hose with a nozzle. The device uses carbon dioxide to propel a chemical agent, such as CS, mixed in a suspension of methylene chloride, into the air. The range of the device is 15–

20 yards in still air. The device can be used to shoot 13–17 1-second

bursts or a continuous burst for up to 15 seconds.

Mounted on the arms of the CEV’s were mechanical devices designed to spray a stream of CS agent

into the holes made by the booms. After the third

insertions of CS agent, the operations plan called

for agents located in unarmed Bradley Fighting

Vehicles to maneuver close enough to the residence so that they could fire Ferret round projectiles through the windows of the structure. These

small non-explosive grenade-like projectiles contained CS agent which would rise into the air

when the projectile broke open upon impact. The

use of Ferret rounds was to be in addition to continuing insertions of CS by agents in the CEV’s.

The plan also provided for specific assignments

for the different HRT and SWAT teams involved in

the operation. It specified the maneuvers to be

made by the two CEV’s, the nine Bradley Fighting

Vehicles, and the M–88 tank retrieval vehicle, and

provided for miscellaneous administrative and

logistical issues such as types of uniforms to be

used and the appropriate manner for handling

prisoners.

Additionally, the plan provided to the Attorney

General on April 12, 1993 included details concerning where the FBI’s snipers were to be positioned and the positioning and capabilities of

SWAT team members. The plan contained a ‘‘medical annex’’ providing for a means to treat ‘‘the potentially large number of casualties which could

exceed the current medical capabilities of any single agency present’’ as well as procedures to be followed to arrest persons who had been exposed to

CS. The annex also provided for locations where

the injured were to be treated, provided a list of

local and secondary hospitals (including address,

latitude/longitude location, and estimated air travel time). And the medical annex provided instructions to the agents on the procedure to handle a

mass surrender by the Davidians.

Finally, the plan provided for the possibility that

the Davidians might not surrender. The final contingency provision in the plan stated that ‘‘if all

subjects failed to surrender after 48 hours of tear

gas, then a CEV with a modified blade will commence a systematic opening up/disassembly of the

structure until all subjects are located.’’

2. Acceleration provisions of the operations plan

While the operations plan called for the government’s actions to end the standoff to unfold over a

period of 2 days, the plan also contained contingency provisions that allowed for a departure from

the concept of a methodical insertion of CS. One of

these provisions was implemented on April 19 and

resulted in a rapid acceleration of the insertion of

CS agent.

The first of the two contingency provisions in

the plan provided that if the Davidians were observed in the tower during the operations, after

having been informed not to be there, agents were

permitted to insert CS gas into the tower by firing

Ferret round projectiles into the tower. More importantly, however, the second contingency provision in the plan provided:

If during any tear gas delivery operations, subjects open fire with a weapon,

then the FBI rules of engagement will

apply and appropriate deadly force will be

used. Additionally, tear gas will immediately be inserted into all windows of the

compound utilizing the four Bradley Vehicles as well as the CEV’s.499

C. THE WAY THE PLAN ACTUALLY UNFOLDED

At approximately 5:55 a.m., Dick Rogers, commander of the FBI’s Hostage Rescue Team, ordered the two CEV’s, which were to insert the CS

riot control agent, deployed to the compound. At

5:56 a.m., the FBI’s chief day-to-day negotiator,

Byron Sage, telephoned the residence and asked to

speak with Davidian Steve Schneider. It took approximately 3 minutes for someone to come to the

phone.500 At 5:59 a.m., Sage informed the person

answering the telephone that ‘‘We are in the process of putting tear gas into the building. This is

not an assault. We will not enter the building.’’

The person on the other end of the telephone responded ‘‘You are going to spray tear gas into the

building?’’ whereupon Sage replied, ‘‘In the building . . . no, we are not entering the building.’’ 501

While the Justice Department Report is ambiguous on the person to whom Sage was speaking,

Sage testified at the hearings before the subcommittees that the person he talked with was

Schneider.502 At the conclusion of this conversation, someone threw the telephone outside of the

building.503

From 6 a.m. to approximately noon on April 19,

1993, FBI agents implemented the operations plan

and injected a large quantity of CS riot control

agent into the Branch Davidian residence in four

distinct phases. The agents moved close to the

Davidian residence in CEV’s equipped with devices 504 which could shoot a horizontal stream of

CS agent in short bursts or continuously for up to

15 seconds.505 The device uses carbon dioxide as a
69

506Ferret Rounds are 37, 38, and 40 millimeter projectiles which can

be fired from hand-held grenade launchers. Each projectile carries 3.7

grams of CS riot control agent, mixed in a suspension of methylene chloride.

507F.W. Beswick, Chemical Agents Used in Riot-Control and Warfare,

2 Hum. Toxicology 247–256. 508The first riot-control agent may have been ethyl bromacetate,

which was used by the Paris police in a hand grenade to disable criminal

gangs. The German chemical industry that produced many lethal chemical weapons during World War I (e.g., nerve gases) also developed new

tear gases. For example, xylyl bromide was packed in 150-mm artillery

shells and used during the battle against the Russians at Bolimow in

January 1915. This early military use of a tear gas was not judged to

be a success, owing to the failure of the chemical to vaporize in the subzero temperatures on the battlefield. However, it provided an early indication of the importance of weather conditions to the effectiveness of

these agents. By 1918, the French had developed bromobenzylcyanide,

known by the military code CA, and the British and Americans had developed chloroacetophenone, known by the military code CN, which became the most effective and widely used tear gas. In the postwar period,

the urban crime wave and emergence of gangsters in the 1920’s in the

United States spurred renewed efforts to develop riot-control agents. By

the mid-1920’s, small explosive cartridges containing CN were available

over the counter for personal protection. CN rapidly became the tear gas

of choice for law-enforcement authorities. Howard Hu, Toxicodynamics of

Riot-Control Agents (Lacriminators) 271, 273 in Chemical Warfare

Agents (Satu M. Somani ed., 1992). 509 J. Cookson and J. Nottingham, A Survey of Chemical and Biological Warfare (1969). 510 Hu, supra note 508.

disbursant to propel a stream of CS agent, suspended in methylene chloride, horizontally into the

air. Once the CS stream is fired, the carbon dioxide quickly evaporates and the methylene chloride

gas disperses the CS evenly through a room, until

the methylene chloride itself evaporates. The CS

agent, which is a fine powder, then slowly falls to

the floor, where it remains. The capacity of each

delivery system on the CEV’s was 30 grams of CS

agent.

The insertion of CS agent into the Branch

Davidian residence was performed in four phases.

The first two phases employed two CEV’s. On one

CEV was mounted two CS delivery systems, while

four systems were mounted on the second CEV.

The CEV’s were operated in tandem, each inserting the entire contents of the six CS agent delivery

systems during the first two phases of the operation, at 6 a.m. and again at approximately 8 a.m.

In each of the first two phases, a total of 180

grams of CS was delivered. The third and fourth

phases, also 2 hours apart, involved only one CEV,

as the second CEV had experienced mechanical

difficulties and no longer operated. Four cylinders

of CS were delivered in each of these two phases,

for a total 120 grams of CS inserted into the residence. Thus, over the entire 6 hours of the operation, a total of 600 grams of CS agent was inserted into the Branch Davidian residence.

During the standoff with the Davidians, FBI

agents used unarmed Bradley Fighting Vehicles as

a means of transportation while guarding the perimeter of the residence. The FBI’s overall operational plan for April 19 provided for the Bradleys

to be used in a contingency plan to be implemented in the event the Davidians began to fire on

the CEV’s. If that occurred, agents in Bradleys

who had maneuvered close to the building and

were standing ready were to insert additional

quantities of CS agent into all parts of the building. Agents in the Bradleys were to fire Ferret

round projectiles into the residence. Ferret

rounds 506 resemble large plastic bullets, and are

fired from hand-held grenade launchers. Each projectile carries 3.7 grams of CS agent, mixed in a

suspension of methylene chloride.

Once the Davidians began firing on the CEV’s

Rogers gave the order to implement the contingency plan. The agents in the Bradleys then maneuvered close to the Branch Davidian residence

and began to fire the Ferret round projectiles

through the windows of the building. During the 6-

hour operation, 400 Ferret round projectiles were

fired at the Branch Davidian residence, a number

of projectiles struck the side of the building and

did not enter the building. Estimates of the number of projectiles that actually entered the residence range from 300 to 380. Had all 400 projectiles fired at the residence actually entered the

residence, however, the total quantity of CS agent

delivered by the Ferret round projectiles would

have been 1,480 grams.

D. OVERVIEW OF THE USE OF CS CHEMICAL AGENT

1. Introduction

Chlorobenzylidene malononitrile, commonly

called CS, is one of a family of approximately 15

chemical compounds used to control civilian populations during periods of disturbance and unrest.

These ‘‘riot-control agents’’ cause acute irritation

to the eyes, mouth, nose, and upper respiratory

tract, that is relatively brief and not usually accompanied by permanent toxic effects. Exposure to

riot-control agents renders the victim temporarily

incapacitated, but the symptoms typically persist

for only a few minutes after cessation of exposure.507

The first riot control agent was developed in the

early 1900’s.508 In 1928, two chemists, Corson and

Stoughton, developed 2-chlorobenzylidene

malononitrile, code named CS. However, CS was

not developed as riot-control agent until the

1950’s, when the British War Office began to

search for a chemical that was more potent than

either CA or CN.509 By the 1960’s, CS had replaced CN as the preferred tear gas among police

authorities around the world. Its popularity

stemmed from the fact that it was shown to be a

more potent irritant than CN, and appeared to

cause less long-term injury, particularly to the

eye.510 Military forces also saw CS as a potent

weapon for particular operations. Large quantities

of CS were used by the United States during the

Vietnam War. CN is no longer used by the U.S.

military operations, but it is still used by some

civil authorities, and by individuals for self-defense. Among civilian law enforcement agencies CS

is, by far, the most widely-used riot control agent.
70

511The most thorough study of the use of CS agent against humans

is the Himsworth Report, which investigated the use of CS agent in

Northern Ireland in 1969. It concluded that exposure to CS did not

produce long-term injury or death in humans. Home Office, report of the

enquiry into the Medical and Toxicological aspects of CS (Orthochlorobenzylidene malononitrile), Part II: Inquiry into Toxicological Aspects of CS and its use for Civil Purposes (1971) [hereinafter Himsworth

Report]. A recent study of the use of CS on 1,500 persons in a confined

area space made the same findings. P.J. Anderson et al., Acute effects

of the potent lacrimator o-chlorobenzylidene malonitrile (CS) tear gas, 15

Hum. & Experimental Toxicology 461, 464–465 (1996). 512The United States used large amounts of CS during the Vietnam

War in both offensive and defensive military operations. The basic doctrine for the use of CS weapons by U.S. sources is summarized in the

following passage taken from a 1969 Army training circular:

The employment of riot-control agents (CS, CN) in Counter guerilla

operations is most feasible in tactical situations characterized by close

combat in which rapidly responding systems are essential and permanent effects are undesirable. Riot-control munitions can be used

tactically to temporarily disable hostile troops, to suppress their fire, or

to cause them to abandon their position. Offensively, riot-control agents

can be used to ‘‘flush out’’ unprotected enemy troops from concealed positions or to reduce their ability to maneuver or use their weapons. Defensively, riot-control munitions can be integrated into defensive perimeters

to provide rapid CS delivery in case of enemy attack.

CS was employed for defensive purposes such as in the event of a surprise attack from superior enemy forces, and to help secure helicopter

extractions of combat units or downed airman. It was used extensively

in area-denial operations to render terrain uninhabitable by the enemy.

CS was also used routinely in direct engagement of the enemy during

offensive combat operations.

U.S. forces were issued gas masks to protect themselves against use

of CS and other tear gases by the enemy. According to one U.S. evaluation, the North Vietnamese had only a limited supply of tear gas, but

they used it to good effect. During the conflict, the general service respirator was replaced by a lighter mask, which went through a number

of further modifications. The protection which it conferred was adequate

but not complete, because dense CS aerosols can have a strong irritant

effect on bare skin, especially in hot and humid conditions when the skin

is moist. 513See generally, H. Jack Geiger & Robert M. Cook-Deegan, The Role

of Physicians in Conflicts and Humanitarian Crises, Case Studies from

the Field Missions of Physicians for Human Rights, 1988 to 1993, 270

JAMA 616 (1993). 514 In a 1989 report, the General Accounting Office noted that the

group Physicians for Human Rights had conducted a fact-finding trip to

investigate allegations of deaths from the use of CS in the occupied territories but that the members of the group could not confirm that any of

the reported deaths were attributable to tear gas inhalation. See e.g.,

U.S. General Accounting Office, Isreal: Use of U.S.—Manufactured Tear

Gas in the Occupied Territories 3 (1989) (citing Physicians for Human

Rights, ‘‘The Casualties of Conflict: Medical Care and Human Rights in

the West Bank and Gaza Strip,’’ Report of a Medical Fact Finding Mission by Physicians for Human Rights (1988)). The GAO report also noted

that while Amnesty International had reported concerns over a ‘‘pattern

of death [that] appeared to follow expose to high concentrations of tear

gas’’ they also stated that ‘‘Amnesty International noted that it was in

no position to verify the exact cause of death in every case.’’ Id. at 4.

515 Hu, supra note 508, at 284–285. 516See generally Id. at 276; Anderson, supra note 511, at 461. 517 Hu, supra note 508, at 276. 518 Id. at 277.

2. Concerns over use of CS

CS has gained wide acceptance as a means of

controlling and subduing riotous crowds. However,

its widespread use has raised questions about its

safety. Most published studies have concluded

that, if used correctly, the irritant effects of exposure are short-lived and do not cause permanent

damage.511 However, there have been isolated reports of fatalities from the use of riot control

agents. The most common reports involve deaths

attributed to the use of riot control agents by

American miltary personnel in Vietnam.512 Additionally, other reports involve injury and death

from the use of CS in Chile, Panama, South Korea,

and the Gaza Strip and West Bank of Israel.513 It

has been unclear from these reports, however,

whether the riot control agent used was CS or another, more toxic, agent.514 Of particular concern,

however, has been the indiscriminate use of riot

control agents in enclosed and indoor spaces where

it is feared that resulting high concentrations may

have resulted in harmful levels of exposure. Severe

injuries from exploding tear gas grenades as well

as deaths from the toxicity of riot control agents

used in confined, indoor spaces have been reported.

Critics of the use of these agents argue that the

available toxicological data is insufficient to describe with any confidence the potential for longterm pulmonary, carcinogenic, and reproductive effects. One recently published review of the toxicological data on riot control agents concluded that

relatively little has been published in the mainstream medical literature and that epidemiologic

studies following tear gas use under actual field

conditions are almost nonexistent. The author of

this review wrote:

There is clearly a great need for openly

conducted research illuminating the full

health consequences of exposure to riotcontrol agents including outcomes such as

tumor formation, reproductive effects, and

pulmonary disease. Consideration must be

given to the possible effects of these

agents on the young, the elderly, and

other persons who might have increased

susceptibility.515

E. CLINICAL EFFECTS AND TOXICITY OF CS

1. Common effects of exposure to CS

All riot control agents, including CS, produce intense sensory irritation even in the most minute

concentrations. For most of these agents, the eye

is the most sensitive organ, with pain arising rapidly, accompanied by conjunctivitis, excessive tearing, and uncontrolled blinking. The inside of the

mouth and nose experience a stinging or burning

sensation, and there is usually excessive discharge

of nasal mucus. Chest tightness and burning are

accompanied by coughing, sneezing, and increased

secretions from the respiratory passageways. A

burning sensation is felt on the skin, often followed by inflammation and redness, and in some

cases, actual burning of the skin occurs. Tear gas

exposure may also irritate the stomach, leading to

vomiting and possibly diarrhea. In addition to the

physical symptoms, panic and severe agitation are

common among those individuals with no prior experience of exposure to tear gas.516

Most of the symptoms are felt within 10 to 30

seconds after exposure to the agent. After cessation of exposure, however, most symptoms continue to persist for a period of minutes before subsiding and disappearing.517 The effects of expose

vary among individuals. Additionally, weather conditions, such as temperature and humidity, can

heighten the potency of these agents.518
71

519 Bryan Ballantyne, Riot Control Agents, Biomedical and Health Aspects of the Use of Chemicals in Civil Disturbances 27 (1977); Hu, supra

note 508, at 279. 520Dow Chemical Co., Material Data Safety Sheet (1988); Ballantyne,

supra note 519. 521 Id. 522 Headquarters, Departments of the Army, Navy, and the Air Force,

Potential Military Chemical/Biological Agents and Compounds 59 (1989). 523 Id. 524 Himsworth Report, supra note 511, at 23–25. 525 Anderson, supra note 511, at 464–465.

526 Himsworth Report, supra note 511, at 55–56; Ballantyne, supra

note 519, at 30. 527 Anderson, supra note 511, at 463–464. 528 Hu, supra note 508, at 280. 529 Id. 530 Id. 531 Ballantyne, supra note 519, at 30.

2. Toxicity of CS

A review of the scientific literature concerning

the use of CS indicates that limited conclusions as

to the toxicity and lethality of CS are known. It

seems generally accepted by the scientific community that the concentration of CS agent which is

noticeable by humans and which will provoke

physical responses in humans is 4 milligrams per

cubic meter (4 mg/m3).519 While no studies on humans have been conducted concerning the lethality

of CS, several studies have projected the concentrations at which CS is lethal to humans from

the effects of studies performed on animals. Those

studies estimate that the concentration of CS

agent which would prove lethal to 50 percent of

any given human population ranges from as low as

25,000 520 to as high as 150,000 mg-min/m3.521 Recent estimates by the U.S. military, however, estimate that the lethal concentration for humans is

61,000 mg-min/m3.522 That study projects that the

concentrations which would be injurious to the

health of approximately 50 percent of any human

population range from between 10–20 mg-min/

m3.523

It is important to note, however, that there are

no published studies which find that any human

death has been caused by exposure to CS agent.

While a number of unverified reports of human

deaths can be found in the literature, in all of

these reports it is unclear precisely whether CS or

some other, more toxic, riot control agent was used

or whether some other circumstance could have

caused the deaths. The most extensive study of the

use of CS agent on humans, by United Kingdom

forces in Northern Ireland in the late 1960’s, found

that no deaths (and no long-term injuries) resulted

from the widespread use of CS agent there.524 The

only other documented study of the effects of CS

used on a large number of humans confirms this

finding.525

Some people may find curious the fact that all of

these studies (and similar studies on the effects of

chemical agents) uniformly give estimates of the

level at which CS is lethal or injurious to 50 percent of a given population of humans. It appears

from the literature that the effect of CS on humans (and on other animals) is not ‘‘linear,’’ i.e.,

that proportionately greater concentrations do not

have equally proportionate increases in effect.

While scientists can estimate the levels which

would prove lethal to 50 percent of a given population, it would be incorrect to presume that half

of that quantity would kill 25 percent of that population. In fact, the most well-known study of the

effects of CS on humans estimates that the likelihood of death after exposure to a dose of CS that

is one-tenth the estimated lethal does is less than

1 in 100,000.526 Accordingly, any analysis of the

lethality of the CS agent used in the concentrations that resulted on April 19 can only be performed in light of the 50 percent lethality estimates.

Even when the quantities of CS riot control

agent used do not reach lethal toxic levels, there

are, nevertheless, significant physical consequences that occur from exposure to CS, and

often severe emotional reactions caused by the

symptoms brought on from exposure to CS. As discussed above, one recent study of the use of large

quantities of CS against a population unable to

leave the area in which the CS was used indicated

that first, second, and even third degree burns are

possible when skin is exposed to CS.527 Additionally, some studies have shown that exposure to CS

can cause allergic contact dermatitis.528 Other

studies have shown that when CS can cause severe gastroenteritis when ingested, whether directly or as a result of ingesting mucus secretions

containing CS from oral inhalation.529

Additionally, some studies on animals have suggested that exposure to CS might cause cancer and

genetic abnormalities.530 Some studies have stated

that exposure to high concentrations of CS for prolong periods could result in inflammatory changes

in the respiratory tract that might be conducive to

secondary respiratory infection.531 And it is believed that CS may exacerbate existing medical

conditions of persons with bronchitis or asthma,

although no reports of death from these conditions

exist.

F. EFFECT OF THE CS AND METHYLENE CHLORIDE IN

THE QUANTITIES USED ON APRIL 19TH

1. Lethality of CS as used at Waco

Testimony before the subcommittees presented

contradictory evidence on the effects of CS riot

control agent. The published literature described

above, however, is more consistent in the conclusions drawn. While it cannot be concluded with

certainty, it is unlikely that the CS riot control

agent, in the quantities used by the FBI, reached

lethal toxic levels. The evidence presented to the

subcommittees does indicate, however, that CS insertion into the enclosed bunker at a time when

women and children were assembled inside that

enclosed space could have been a proximate cause

of or directly resulted in some or all of the deaths

attributed to asphyxiation in the autopsy reports.
72

532 CEV–1 emptied its four 30-gram cylinders while CEV–2 emptied

the contents of its two 30-gram cylinders. The total delivered was thus

(4 x 30) + (2 x 30) = 180 grams. 533 Each Ferret round carried 3.7 grams of CS agent. A total of 400

Ferret rounds were fired at the residence. Thus, the total quantity of CS

agent in one quarter of the Ferret rounds used was 370 grams (3.7 x

100). 534On each of the first two phases, 180 grams of CS agent was delivered by the CEV’s and approximately 370 grams was delivered by Ferret

Rounds. This totals 550 grams, or 550,000 milligrams. 535The Branch Davidian residence contained approximately 178,310

cubic feet of living area. Converted into meters, the volume of the residence was 5,049.7 cubic meters. The concentration inside the building,

therefore, was 108.92 mgs/m3 (550,000 mgs/5,049.7m3 = 108.92 mgs/m3). 536The 180 grams from CEV–1 and the approximately 370 grams from

100 of the Ferret Rounds totals 490 grams, or 490,000 milligrams. 537 490,000 mgs/5049.7 m3 = 97.04 mgs/m3. 538The concentration inside the building, therefore, was 108.92 mgs/

m3 + 108.92 mgs/m3 + 97.04 mgs/m3 + 97.04 mgs/m3 = 411.92 mgs/m3).

539The National Oceanic and Atmospheric Administration recorded

high winds beginning at noon on April 18, 1993. The winds continued

through April 19. At 11:52 a.m. on April 19, winds were recorded at 25

mph with gusts to 30 mph. 540See Justice Documents at the Appendix for a diagram of the

floorplan of the Branch Davidian residence. 541 It should be noted, however, that none of the autopsies of the persons found in the bunker indicate the cause of death was from exposure

to CS.

In order to answer the question of whether the

quantities of CS agent inserted into the residence

might have reached lethal levels, the subcommittees attempted to determine the concentrations

that were present in the residence under the

‘‘worst-case’’ circumstances. To make this determination, a number of assumptions must be made.

Many of these assumptions were overstated solely

for the purpose of calculation in order to place the

greatest scrutiny on the government’s actions.

In each of the first two phases of insertion into

the Branch Davidian residence, a total of 180

grams (180,000 mgs) of CS was delivered.532 For

the purposes of analysis, the subcommittees assumed an ‘‘extreme case’’ scenario, where all 180

grams were delivered into the building by the two

CEV’s at the same instant, and that one-quarter of

the Ferret rounds fired at the residence were fired

at the precise moment that the CS delivered by

the CEV’s entered the residence.533 If so, then during the first and second phases of the CS operation, 550 grams (550,000 mgs) of CS were delivered to the residence.534 During the first and second phases, therefore, the total concentration of

CS delivered into the compound was 108.92 mgs/

m3.535 During the third and fourth phases, due to

the mechanical failure of the second CEV, only 490

grams (490,000 mgs) of CS agent was delivered

into the residence.536 During each of the third and

fourth phases the total concentration at the (assumed) moment of insertion was 97.04 mgs/m3.537

Assuming the Branch Davidian residence been

air-tight, so that none of the CS agent escaped the

building (which was not the case), the total

amount of CS agent delivered present in the building would have been 411.92 mgs/m3.538 This concentration is far below the 61,000 mgs/m3 amount

projected to be lethal to 50 percent of a given population of humans. Stated in another way, it would

take a concentration of CS 148 times greater than

the greatest amount that could have been present

at the Branch Davidian residence on April 19 to

reach that lethal level.

In reality, the concentrations of CS inside the

Branch Davidian residence did not reach even

these levels. The Branch Davidian residence was a

poorly constructed structure which allowed for air

to move in and out of the residence continuously.

The air circulation carried some of the CS agent

out of the building. Adding to the air circulation

inside the Davidians residence that day was the

fact that the FBI began to use the CEV’s to ram

openings into the building, ostensibly to create a

means of escape for the Davidians and, later, to

‘‘deconstruct’’ portions of the structure in an effort

to prevent the Davidians from occupying those

areas of the residence. These actions greatly enhanced the circulation into the residence and further depleted the concentration of CS agent inside

the residence. Additionally, on April 19th, the

winds were gusting up to 25 mph.539 This fact

greatly enhanced the air circulation inside the residence, adding to the dissipation of the concentration of CS agent in the residence. Thus, the actual

levels of CS inside the Davidian residence were

less than those calculated above.

Some who have contacted the subcommittees

have suggested that the above analysis is flawed

because it does not allow for the possibility that

some CS agent was concentrated in certain areas

of the residence rather than being evenly distributed throughout the entire structure. The subcommittees believe that it is important to address

that possibility.

Because the largest group of bodies recovered

after the fire was found in the area of the residence commonly known as the gun room or bunker 540 consideration was given to the concentrations of CS in that area.541 The bunker was a solid

concrete room inside the Davidian residence. It

had no windows or other access to the outside of

the building, but did open into a hallway inside

the residence. It appears that there was little opportunity for CS to have been directly sprayed into

the bunker and that any CS that was present in

the bunker likely drifted into that room after it

was sprayed into one or more of the rooms along

the outside of the structure. The subcommittees

note, however, that the videotape of the insertion

of CS on April 19 indicates that one of the CEV’s

drove into the structure near the bunker during

the fourth phase of the CS insertion. If the door to

the bunker had been open at that time, it is possible that CS might have been injected directly

into the bunker.

Based on this possibility the subcommittees attempted to determine, as a worst case scenario,

the concentration of CS that would have been

present in that room had the CEV emptied the entire contents of one of its CS containers into the

bunker. It appears, however, that even in that
73

542 Each cylinder of CS contained 30 grams, or 30,000 milligrams, of

CS. 30,000 mgs/44.40 m3 = 675.67 mgs/m3. 543 120,000 mgs/44.4 m3 = 2,702.70 mgs/m3. 544 Each cylinder of CS agent contained 30 grams, or 30,000 milligrams. 30,000 mgs/16.17 m3 = 185.52 mgs/m3. 545 30 grams of CS agent from a CEV plus 74 grams of CS agent from

20 Ferret rounds is a total of 104 grams (30 + (3.7 x 20) = 104), or

104,000 milligrams. 104,000 mgs/16.17 m3 = 6,431.66 mgs/m3.

546 Each cylinder contained 1,070 grams of methelyene chloride. Six

cylinders totaled 9,720 grams. 547 Each Ferret round contained 33 grams of methylene chloride. One

hundred Ferret rounds thus inserted 3,300 grams of the chemical into

the building. 548 In the first two phases the total quantity of methylene chloride delivered was 9,720 grams ((6 x 1,070) + (100 x 33)) or 9,720,000 milligrams. Divided by the cubic footage of the building (5,049.7 m3) the distribution of the substance throughout the building in these phases was

1,924.87 mgs/m3. In the third and fourth two phases the total quantity

of methylene chloride delivered was 7,580 grams ((4 x 1,070) + (100 x

33)) or 7,580,000 milligrams. Divided by the cubic footage of the building

(5,049.7 m3) the distribution of the substance throughout the building in

these phases was 1,501.08 mgs/m3. 549See generally Mallinckrodt, Inc., Material Data Safety Sheet 2

(1989); Dow Chemical, Inc., Material Data Safety Sheet 3 (1988). 550The total quantities from each of the four insertions of CS agent

was only 5,356.74 mgs/m3. ((2 x 1,924.87) + (2 x 1,501.08) = 5,356.74).

event the concentration of CS would not have

reached lethal levels.

The volume of the bunker room was approximately 44.40 cubic meters. Assuming that an entire cylinder (30 grams) of CS was injected into the

room, the concentration at that moment would

have been 675.67 mgs/m3.542 As discussed above,

the concentration level estimated to be lethal to

humans is 61,000 mgs-min/m3. Even had the CEV

which was mounted with four containers of CS inserted the contents of all four containers into the

bunker, the resulting concentration would have

been 2,702.70 mgs/m3.543 Again, this figure is well

below the concentration level estimated to be lethal to humans.

Another worse case scenario considered by the

subcommittees was the possibility that one of the

CEV’s might have delivered the entire contents of

one of its cylinders of CS agent into one of the

smallest rooms of the residence, and that that

room was inhabited at the time. It still appears

that the concentration of CS would not have

reached lethal levels. The smallest rooms in the

structure were the women’s quarters located on

the second floor of the residence. The smallest of

these had a total volume of 16.17 cubic meters. Assuming that an entire cylinder of CS had been injected into this room, the concentration at that moment would have been 1855.29 mgs/m3.544 Assuming further that a number of Ferret rounds also

happened to be fired into the room at the exact

moment that the CS was injected by the CEV (assume an impossible event such as 20 rounds entering the room at the same instant), the concentration at that instant would have been 6,431.66 mgs/

m3.545 Again, these figures fall far below the concentrations estimated to be lethal to humans.

While concluding that it is unlikely that the CS

reached toxic levels, the subcommittees note the

level of exposure to CS experienced by an individual Davidian cannot be determined. It is possible

that a person near one of the CEV’s injecting the

CS may have been subject to a level of CS that

was high enough to cause death. Additionally, 10

of the autopsies indicate asphyxiation as the cause

of death, but do not indicate whether CS or other

factors may have lead to this. The subcommittees

are unable to conclude that CS did not play a part

in the deaths of these persons.

2. Lethality of methylene chloride used with CS at

Waco

During the gassing operation, each cylinder of

the CS riot control agent introduced into the

Branch Davidian residence by the CEV’s was

mixed with approximately 1,070 grams of methylene chloride. This suspension was then dispersed

into the structure by carbon dioxide, which almost

immediately evaporated, leaving the suspension of

CS and methylene chloride. Additionally, each of

the Ferret round projectiles contained 33 grams of

methylene chloride as the dispersant medium for

the CS agent.

The four phases of insertion of CS agent into the

Branch Davidian residence were conducted approximately 2 hours apart. During the first and

second phases six cylinders of CS agent were inserted into the residence, delivering approximately

6,420 grams of methylene chloride in each

phase.546 During the third and fourth insertions

only four cylinders of CS agent were inserted, accounting for approximately 4,280 grams of methylene chloride during each insertion. Assuming a

worse case scenario of all of the CS insertions in

one phase occurring at the same moment and approximately 1⁄4 of the Ferret round projectiles entering the building at that same time, thus adding

an additional 3,300 grams of methylene chloride in

each phase,547 the total concentration of methylene chloride delivered into the building during the

first and second insertions was 1,924.87 mgs/

m3.548

A review of the scientific literature concerning

CS agent has located no estimates of the concentration of methylene chloride which would

prove harmful or lethal to humans. The only estimates which do exist are with respect to mice and

rats. For example, the concentration that would

prove lethal to 50 percent of a rat population is estimated to be 2,640,000 mgs-min/m3.549 As can be

seen from the above figures, therefore, the total

concentrations of methylene chloride at the

Davidian residence on that day were less than the

concentrations that would prove lethal to even

rats.550 It appears, therefore, that the methylene

chloride used with the CS agent could not have

caused the death of any of the Davidians.

As in the case with CS, the subcommittees considered the possibility that some methylene chloride was concentrated in certain areas of the residence rather than being evenly distributed

throughout the entire structure. Because the largest group of bodies recovered after the fire was

found in the area of the residence commonly
74

551 It should be noted, however, that none of the autopsies of the persons found in the bunker indicate the cause of death was from exposure

to methylene chloride. 552 Each cylinder of CS contained 1,070 grams, or 1,070,000 milligrams, of methylene chloride. 1,070,000 mgs/ 44.40 m3 = 214,099 mgs/

m3.

553 4,280,000 mgs/ 44.40 m3 = 96,396 mgs/m3. 554 As stated, there are no studies estimating the lethal concentration

levels to humans of exposure to methylene chloride.

555 Each cylinder of CS agent contained 1,070 grams of methylene

chloride, or 1,070,000 milligrams. 1,070,000 mgs/ 16.17 m3 = 66,171 mgs/

m3.

556 1,070 grams of methylene chloride from a CEV plus 660 grams of

methylene chloride from 20 Ferret rounds is a total of 1,730 grams

(1,070 + (33 x 20) = 1,730), or 1,730,000 milligrams. 1,730,000 mgs/

16.17 m3 = 106,988 mgs/m3. 557 2 G. Clayton & F. Clayton, Patty’s Industrial Hygiene and Toxicology 3449–3455 (1981); R. Stewart et al., Methylene Chloride: Development of a Biological Standard for Industrial Workers by Breath Analysis

(1974). 558 Id. 559 Each cylinder contained 1,070 grams of methylene chloride. Six cylinders totaled 9,720 grams. 560 Each Ferret round contained 33 grams of methylene chloride. One

hundred Ferret rounds thus inserted 3,300 grams of the chemical into

the building. 561The molecular weight of methylene chloride gas is 85. One mole of

methylene chloride gas is 24.2 liters. 9,720g MC/ 85 = 114 moles. 114

moles x 24.2 liters/mole = 2758 liters of MC. There was 5,049,700 liters

of volume in the Davidian residence (5.049.7 m3 x 1000 liters/m3 =

5,049,700). Thus 2767.34/ 5,049,700 x 106 = 548 ppm.

known as the gun room or bunker, consideration

was given to the concentrations of methylene chloride in that area.551 As discussed above, the bunker was a solid concrete room with no windows or

other access to the outside of the building, but did

open into a hallway inside the residence. Again, it

appears that there was little opportunity for the

methylene chloride carrying the CS agent to have

been directly sprayed into the bunker and that any

methylene chloride that was present in the bunker

likely drifted into that room after it was sprayed

into one or more of the rooms along the outside of

the structure. But the subcommittees again note

that the videotape of the insertion of CS on April

19 indicates that one of the CEV’s drove into the

structure near the bunker during the fourth phase

of the CS insertion. If the door to the bunker had

been open at that time, it is possible that methylene chloride carrying the CS agent might have

been injected directly into the bunker.

Based on this possibility the subcommittees attempted to determine, as a worst case scenario,

the concentration of methylene chloride that would

have been present in that room had the CEV

emptied the entire contents of one of its CS containers into the bunker. It appears, however, that

even in that event the concentration of CS would

not have reached lethal levels.

The volume of the bunker room was approximately 44.40 cubic meters. Assuming that an entire cylinder of CS (with 1,070 grams of methylene

chloride as a disbursant) was injected into the

room, the concentration at that moment would

have been 24,099 mgs/m3.552 Even if the CEV that

was mounted with four cylinders of CS inserted

the contents of all four containers into the bunker,

the resulting concentration would have been

96,396 mgs/m3.553 Both of these figures are well

below the concentrations estimated to be lethal to

rats.554

Another worse case scenario considered by the

subcommittees was the possibility that one of the

CEV’s might have delivered the entire contents of

one of its cylinders of CS agent into one of the

smallest rooms of the residence, and that that

room was inhabited at the time. It still appears

that the concentration of methylene chloride would

not have reached lethal levels. The smallest rooms

in the structure were the women’s quarters located

on the second floor of the residence. The smallest

of these had a total volume of 16.17 cubic meters.

Assuming that an entire cylinder of CS had been

injected into this room, the concentration of methylene chloride at that moment would have been

66,171.93 mgs/m3.555 Assuming further that a

number of Ferret rounds also happened to be fired

into the room at the exact moment that the CS

was injected by the CEV (assume, for example, an

event as unlikely as 20 rounds entering the room

at the same instant), the concentration at that instant would have been 106,988 mgs/m3.556 Again,

these figures fall far below the concentrations estimated to be lethal to rats.

3. Other possible effects of methylene chloride used

with CS at Waco

While the subcommittees conclude that the levels of methylene chloride did not reach lethal toxic

levels, the subcommittees also considered whether

the levels of methylene chloride may have affected

the Davidians in other ways. At levels over 1,000

parts per million (ppm) anaesthetic effects begin to

occur in humans.557 At levels above 2,300 ppm, exposure to methylene chloride may cause dizziness.558

Because methylene chloride evaporates rapidly

when released into the air, the subcommittees considered separately the concentrations of methylene

chloride during each of the four phases of the CS

agent insertion. The levels of methylene chloride

were greatest during the first two phases (because

one of the CEV’s was unable to inject the CS

agent/methylene chloride mixture during the third

and fourth phase).

During the first and second phases, six cylinders

of CS agent were inserted into the residence, delivering approximately 6,420 grams of methylene

chloride in each phase.559 Assuming that all of the

CS inserted by the CEV’s during one phase was

inserted at a single moment, and that approximately 1⁄4 of the Ferret round projectiles used during the entire operation also entering the building

at that same time (thus adding an additional 3,300

grams of methylene chloride in each phase 560),

and that the Davidian residence was airtight, the

concentration of methylene chloride during each of

the first two phases would have been 548 ppm.561
75

562 U.S. Dept. Of Commerce, Agency for Toxic Substances and Disease

Registry, Toxicological Profile for Methylene Chloride (1993). 563 1,070 g MC/ 85 = 12.59 moles. 12.59 moles x 24.2 liters/mole =

304.63 liters of MC. There was 44,400 liters of volume in the bunker

(44.40 m3 x 1000 liters/m3 = 44,400). Thus 304.63/ 44,400 x 106 = 6,861

ppm.

564 Justice Department Report at 259. 565 Hearings Part 2 at 315, 318 (statement of Donald A. Bassett). 566 ‘‘I never abandoned the concept or the hope that negotiations could

successfully and peacefully resolve this matter. My statement to [Hubbell] at the time . . . was that I felt that negotiations were at an impasse . . . .’’ Hearings Part 2 at 345 (statement of Byron Sage). 567 Hearings Part 2 at 306–307. 568See section VI E of this report.

At this concentration, studies have shown no observable effects in humans.562

In considering the possibility that some methylene chloride was concentrated in certain areas of

the residence, rather than being evenly distributed

throughout the entire structure, the subcommittees found that it was possible that the levels of

methylene chloride reached concentrations that

might have caused levels that produced an

anaesthetic effects in humans.

Again, the subcommittees considered the possible concentration in the bunker, as the largest

group of bodies recovered after the fire was found

there. The volume of the bunker room was approximately 44.40 cubic meters. Assuming that an

entire cylinder of CS (with 1,070 grams of methylene chloride as a disbursant) was injected into the

room, the concentration at that moment would

have been 6,861 ppm.563 This concentration was

sufficient to induce dizziness and other anaesthetic

effects in humans.

As stated, however, the evidence is not determinative as to whether one of the CEV’s did, in

fact, insert CS directly into the bunker. Additionally, it is unknown if the bunker door was open or

closed, a factor that would have significantly affected the concentration levels inside the room. Finally, the air circulation inside the building would

have affected the levels of methylene chloride

present at any one time. The subcommittees conclude, however, that it is possible that the levels

of methylene chloride in the bunker were such

that the chemical impaired the Davidians’ ability

to escape the room. Additionally, the possibility

cannot be dismissed that other Davidians, in other

areas of the residence, might have been similarly

adversely affected if they were directly exposed to

an insertion of an entire cylinder of the CS agent/

methylene chloride mixture. Thus, the levels of

methylene chloride that were present in the

Davidian residence as a result of the use of the CS

riot control agent might have impaired the ability

of some of the Davidians to be able to leave the

residence had they otherwise wished to do so.

G. ANALYSIS OF THE ATTORNEY GENERAL’S DECISION

TO END THE STANDOFF ON APRIL 19, 1993

1. The decision not to storm the residence

The subcommittees received testimony concerning the FBI’s decision not to storm the residence

in order to end the standoff. Additionally, the Justice Department Report on these events also discusses the factors that went into this decision. According to that report, FBI tactical experts believed that there was a substantial likelihood of

significant casualties to FBI agents if a frontal assault on the residence was attempted. The FBI believed that the Davidians had fortified the residence and were ready to offer resistance equal to

or perhaps even greater than that they had

showed during the failed February 28 assault on

the residence by the ATF. The FBI was also concerned about the possibility of suicide by the

Davidians in the event of such an assault.564

Experts on tactics testified before the subcommittees that a frontal assault is one of the

riskiest types of tactical operations.565 That risk

was even greater in this situation given the large

size of the structure and the wide-open areas

around the structure with the resulting lack of

cover for any approach to the residence.

The FBI’s decision to pursue options other than

a frontal assault in order to end the standoff was

a wise one. It seems clear that a raid, even one

better planned than that of the ATF of February

28, was of unacceptably high risk. It is likely that

FBI agents would have sustained casualties in

such an assault. Any assault on the Branch

Davidian residence also risked the lives of the

Davidians. Additionally, the FBI appropriately

considered the possibility of suicide by the

Davidians in the event of an assault.

2. The reasons asserted for ending the standoff on

day 51

a. The situation would not soon be resolved

One of the key factors influencing the FBI’s decision to recommend to the Attorney General that

the standoff be ended on day 51 was the belief by

FBI officials that continuing to negotiate with the

Davidians would not lead to their peaceful surrender. At the hearings held by the subcommittees,

FBI chief negotiator Byron Sage testified that he

believed that further negotiations would not be

fruitful.566 Tactical commander Jeffrey Jamar testified that he was skeptical that negotiations

would end the stand-off, and that he became even

more skeptical after Koresh reneged on a promise

to come out on March 2.567 Documentary evidence

reviewed by the subcommittees indicated, however, that some of the FBI’s behavioral experts believed that there were further steps that could be

taken through negotiations. Additionally, at the

subcommittees’ hearings, testimony was received

from the attorneys for the Davidians that they believed further negotiations could have led to the

Davidians’ peaceful surrender.568

Sage’s view was that Koresh had broken many

of the promises he had made throughout the

standoff. After a experiencing a number of these

broken promises, Sage and the other FBI com-
76

569 Justice Department Report at 271. 570 Id. at 270. 571 Id.

572 Id. at 261. 573The FBI’s HRT is comprised of FBI special agents selected through

a rigorous screening program. Unique in Federal law enforcement, the

HRT trains 5 days a week, all year in tactics related to its mission to

take control of and end hostage and barricade situations without loss of

life to any innocent persons who may be involved. Unlike the several

FBI SWAT teams or ATF SRT teams, HRT members do not carry an investigative case load in addition to their tactical duties. Thus, they train

each working day, whereas the SWAT and SRT members conduct tactical training only a few days each month. 574 Justice Department Report at 268.

manders believed that they could not rely on

Koresh’s assurances.

Another factor that may have affected the FBI

commanders’ view of the situation, but which was

given little emphasis in the Justice Department

Report, is mental and emotional fatigue affecting

the FBI decisionmakers. Sage was one of the first

FBI agents on the scene on February 28. He

worked every day, all day, of the 51 day standoff,

and only returned to his home in Austin for a

short period of time on 1 day to gather more

clothes. Jamar and the other senior FBI commanders were also on site for almost the entire time of

the standoff. It seems only natural then, that

physical and mental fatigue would begin to set in

and that dealing with Koresh’s rhetoric and disingenuousness would lead to emotional fatigue as

well. Indeed, the Justice Department Report indicates that the law enforcement personnel present

were tired and that their ‘‘tempers were fraying.’’ 569

Nevertheless, FBI commanders to become firmly

convinced that nothing more would come from further negotiations with Koresh. That belief was

communicated by Sage to Associate Attorney General Webster Hubbell during a 2-hour telephone

conversation on April 15.570 This belief played a

crucial role in influencing Attorney General Reno’s

decision to end the standoff on April 19.571

During the hearings, however, the subcommittees received testimony from the Davidians’ attorneys that Koresh was hard at work writing his interpretation of the Seven Seals discussed in the

Book of Revelation in the Bible. They believe that

Koresh was willing to surrender when he finished

his writing.

The FBI’s commanders knew of Koresh’s desire

to write this manuscript but did not believe he

was actually working on it. It appears that fatigue

and frustration at the lack of achieving success in

obtaining the release of additional Davidians may

have led the negotiators to be less than receptive

to this information. That the negotiators were not

open to this new information, and did not pass it

on to their superiors, played a part in the Attorney

General’s decision to end the standoff on April 19

and in the manner chosen to end it.

b. The Davidians might attempt a breakout,

possibly using the children as shields

Another factor that went into the FBI’s recommendation to the Attorney General to end the

standoff on day 51 was the fear that the Davidians

might attempt to breakout of the residence using

the children as human shields. According to the

Justice Department Report, ‘‘some [unnamed] experts’’ had suggested this possibility and that to

combat this possibility, the FBI had to be certain

that its best trained troops (the Hostage Rescue

Team members) would be on the scene.572 There

was some doubt as to how much longer the HRT

could remain at the residence.

There was little evidence to support this fear. At

no time did Koresh or Schneider threaten that the

Davidians might attempt to break out of the residence or take any other offensive action. In fact,

from February 28 to April 19 all of the Davidians’

actions could be viewed as defensive in nature—

defending what they believed to be sacred ground,

their residence. Given the Davidians’ professed devotion to their residence, it is difficult to understand why the FBI thought the Davidians would

try to leave. Given that the FBI also knew that the

Davidians were very much aware of the perimeter

security around the residence it is difficult to understand why the FBI thought the Davidians believed they could escape. In short, there appears to

have been little support for the FBI’s concern that

the Davidians would try to break out of the residence. To the extent it played a part in the FBI’s

decision to recommend that the standoff be ended

on April 19, this unfounded fear contributed to the

tragic results of that day. The Attorney General

knew or should have known that the fear of breakout argument was unfounded.

c. The FBI Hostage Rescue Team needed rest

and retraining

According to the Justice Department Report, another important factor that played a part in the

Attorney General’s decision to end the standoff on

April 19 was concern over the continuing readiness

of the Hostage Rescue Team.573 It is unquestioned

that the HRT possesses more skills and skills that

are more highly developed that any other civilian

tactical unit within the Federal Government.

These skills need constant use in order to be retained, much as a superior athlete must train each

day to maintain his or her level of athletic skill.

Without that training, these skills begin to deteriorate.

According to the Justice Department Report and

testimony presented to the subcommittees, the

concern about the possible deterioration in HRT

skills was raised at a meeting of Justice Department and FBI officials with the Attorney General

on April 14, 1993.574 By that date, the HRT members had been present at the Branch Davidian center for almost 7 weeks without the opportunity for

the type of training that they otherwise would be

pursuing every day. Also present at that meeting

were several military officers. As a Defense De-
77

575 Hearings Part 3 at 304, 314 (statement of Allen Holmes, Assistant

Secretary of Defense for Special Operations and Low Intensity Conflict). 576 Justice Department Report at 268. 577 Hearings Part 2 at 577 (statement of Dick Rogers); Hearings Part

3 at 73 (statement of Floyd Clarke). 578 Hearings Part 3 at 73 (statement of Floyd Clarke).

579For example, the Justice Department points to the fact that HRT

members had been training in the maneuvering of the armored vehicles

loaned to the FBI by the military, implying that the SWAT teams did

not have this training. Yet, even the HRT members had to receive remedial training on the use of these vehicles while at the residence. In fact,

at one point, an armored vehicle driven by an HRT member who was

being retrained drove over an automobile belonging to a member of the

press, destroying the vehicle. Surely it would not have taken much more

training to enable the SWAT members to perform their task adequately,

even if it were not up to HRT skill levels. It is unclear why the SWAT

members could not have received sufficient training to drive these vehicles around the perimeter of the residence. 580Mr. MCCOLLUM: In your opinion, knowing the Texas officers, you

all don’t have SWAT teams, do you, the Texas Rangers, but the State

police do, don’t they?

Mr. BYRNES: Yes, they have a SWAT team.

Mr. MCCOLLUM: Either the State police or the local officials in the

area, were there SWAT teams or combinations thereof that could have

been put together from State law enforcement or local law enforcement

that could have maintained that perimeter for a few days or a week or

two, if necessary, to let this FBI hostage team regroup had the negotiations continued for another month or something?

Mr. BYRNES: Well, to answer your question, just generically, yes.

Frankly, I don’t know. And let me say that the HRT team, in my opinion, is probably the most highly trained unit for what they are doing in

the world, and I think they were the people to be there.

Mr. MCCOLLUM: I don’t doubt that for a minute. I am not even questioning that, I am just asking because I know you may not know all of

this, but we have looked into it, and it appears that is a factor. We are

going to hear more from them.

Mr. BYRNES: I never heard that before.

Mr. MCCOLLUM: Whether it is or not, the question I was really asking,

just because you are here tonight, you believe that, at least form the

standpoint of holding the perimeter—and I would ask that to you as

well, Captain Cook—that State police or SWAT teams from local police

units could have been mustered if you had been asked and consulted

with to do that, even though they wouldn’t have been as effective at it

perhaps as the FBI’s HRT team. Is that right or not?

Mr. COOK: I think it could have been accomplished. I think that is just

a basic law enforcement trait, No. 1. We have police officers trained in

different areas. Hearings Part 2 at 198.

partment witness testified before the subcommittees, the officers explained that they were present

at the April 14, 1993 meeting at the invitation of

FBI officials in order to answer any questions that

the Attorney General might pose to them about

ending the standoff. The officers had been selected

because of their special tactical training and experience. During the meeting, one of the officers advised the Attorney General that if the HRT were

military troops under his command he would recommend pulling them away from the Branch

Davidian center for rest and retraining.575

According to the Justice Department report,

HRT commander Dick Rogers informed the Attorney General that the HRT members ‘‘were not too

fatigued to perform in top capacity in any tactical

operation at that time’’ but that if the standoff

continued for any extended period of time he

would recommend that they ‘‘stand down’’ for rest

and retraining.576 At the subcommittees’ hearings

Mr. Rogers and Floyd Clarke, Deputy Director of

the FBI in early 1993, each testified that they believed the HRT could have remained on site for at

least 2 additional weeks before he would have recommended that they ‘‘stand down.’’ 577

The point at which the deterioration of HRT

members skills becomes unacceptable is not a fact

which appears to be readily quantifiable, but rather is a matter of informed judgment. Nothing in

the evidence presented to the subcommittees leads

to the conclusion that the HRT members’ skills

were not deteriorating or that the recommendation

of the military officers and the HRT commander to

remove the HRT members for rest and retraining

was not well-informed. But this observation does

not answer the questions of what weight this fact

should have played in the Attorney General’s decision to end the standoff on day 51.

The Justice Department Report states that the

Attorney General discussed with the FBI the possibility of using FBI SWAT teams to relieve the

HRT for a time so that the HRT could be pulled

from the scene, rested, and retrained but that the

FBI discouraged that option and took the position

that it should be used only as a last resort. At the

hearings before the subcommittees, however, Floyd

Clarke, Deputy Director of the FBI in early 1993,

testified that the FBI was formulating plans to use

FBI SWAT teams in place of the HRT teams if the

Attorney General did not approve the plan to end

the standoff in mid-April.578

The FBI testified that the qualification of its

several SWAT teams do not equal that of the HRT.

What must be considered, however, is the actual

task for which the SWAT teams would have been

used. It would not have been an attempt to enter

and take control of the residence. As the Justice

Department Report and hearing testimony made

clear, during the 51 day standoff the HRT was

used only for perimeter security—keeping the

Davidians in and outsiders out of the residence.

Had the HRT had been relieved by SWAT teams,

they would have been assigned to the same task.

In short, while HRT capabilities exceed SWAT capabilities, the HRT’s additional capabilities are not

those essential to the task of securing the perimeter of a crime scene.

Given that the threat of a Branch Davidian

breakout was minimal at most, it appears that the

FBI was overcautious in informing the Attorney

General that its own SWAT teams were not capable of securing the residence perimeter.579 While

the HRT might best have done the job of securing

the residence, nothing in the record suggests that

the SWAT teams could not have done that job adequately for a short time. Indeed, had the Attorney

General not approved the plan to end the standoff

in mid-April, the FBI was planning to use its

SWAT teams to relieve the HRT. It does not appear that the FBI informed the Attorney General

of this fact, however.

Representatives of the Texas Rangers testified

before the subcommittees that they believed that

State police SWAT teams could have relieved the

FBI HRT and maintained the perimeter while the

HRT was rested.580 Representatives of the Texas

Rangers interviewed by subcommittees’ staff stated that the Texas State police did offer to assist
78

581 Justice Department Report at 269, 275. 582 Id. at 269–270. 583 Id. at 67. 584 Hearings Part 3 at 195 (statement of Clive Doyle).

the FBI in maintaining the perimeter during the

standoff but that this offer was rejected.

The FBI’s decision to reject outside assistance is

consistent with the prevailing FBI attitude of resisting any involvement from other agencies,

whether Federal, State, or local. This attitude is

counterproductive. While the subcommittees cannot evaluate the capabilities of the Texas State police, and are mindful of the command and control

problems that may be encountered when bringing

together members for organizations that have had

no previous experience together, it appears shortsighted for the FBI to have rejected out of hand

the offer of assistance from the State police and,

specifically for not considering using State police

SWAT teams to help maintain the perimeter

around the Branch Davidian residence. Given FBI

concerns with the size of the perimeter to be maintained, it would seem that these additional personnel could have been of some assistance to the FBI,

even if they were used in a merely supporting role,

such as at a secondary perimeter established beyond that maintained by the FBI.

While using FBI SWAT teams to relieve the

HRT might not have been the optimal approach to

the problem, using them (perhaps augmented by

State police teams) would have enabled the FBI to

rest and retrain the HRT so that it could have

been redeployed to the scene after an appropriate

time. The FBI’s failure to recommend to the Attorney General that SWAT teams be used to relieve

the HRT, or to inform her that the FBI planned to

use them for this very purpose had she not approved the plan to end the standoff, limited the options and created an unnecessary sense of urgency

about ending the standoff. The Attorney General

knew or should have known that the HRT did not

need to stand down to rest or retrain for at least

2 more weeks after April 19, and if and when it

did stand down, FBI and local law enforcement

SWAT teams could have been brought in to maintain the perimeter. If she did not know the true

facts it is because she did not ask the questions of

the FBI that a reasonably prudent person faced

with the decision would have asked. If the Attorney General did ask these questions, someone in

the FBI lied to her or was grossly negligent in reporting the facts. If the latter was the case, the responsible party should have been disciplined long

ago. The absence of such action leads the subcommittees to conclude that the Attorney General

was herself negligent.

d. Conditions inside the residence were deteriorating

Another factor that the Attorney General says

played a part in her decision to end the standoff

on April 19 was a concern about deteriorating conditions inside the residence. There is little support

for this concern and it should not have played any

significant part of the decision to end the standoff.

The concern about deteriorating conditions is

mentioned in only two places in the Justice Department Report.581 The report also States, however, that the FBI became convinced that while

Koresh was rationing water to ensure discipline he

was continuing to replenish the water supply.582

The report further States that the FBI believed

that the Davidians had food to last up to 1 year.

In short, if the concern about conditions inside

the residence was a factor in the Attorney General’s decision, it could only have been about lack

of electricity or the lack of sanitation inside the

residence. While electricity to the residence was

cut off for the final time on March 12,583 the

Davidians had kerosene lamps inside the residence

which they used to illumine the interior. And

while the Davidians had no way to cook food, they

had ample stores of food that did not need to be

cooked. In short, there is no evidence that the lack

of electricity resulted in any real harm to the

Davidians.

The purported concern over sanitary conditions

inside the residence is also exaggerated. Even before the February 28 raid, the Davidians had

never had running water or other sanitation inside

the residence. Human waste was collected in buckets and other containers each day and taken outside to an designated dumping site for the waste.

During the standoff, waste was dumped into the

half-finished swimming pool next to the residence.

Apart from the odor from the swimming pool, however, there is no evidence that the materials in the

pool was leaking or leeching into the residence. At

the hearings before the subcommittees, one of the

surviving Davidians testified that sanitation ‘‘was

no worse on the last day than it was throughout

the fifty-one days.’’ 584 The assertion in the Justice

Department Report that ‘‘sanitary conditions had

deteriorated significantly’’ is simply incorrect.

In summary, the conditions inside the residence

had changed only slightly from those in which the

Davidians lived before February 28. The conditions

appear to not have presented any immediate

health risk to the adults or children inside the residence. If concerns about these conditions played a

role in the Attorney General’s decision to end the

standoff on April 19, they were unfounded and she

knew or should have known this.

e. There was the possibility of on-going physical and sexual child abuse

The Justice Department Report states that during the week of April 12, an (unnamed) individual

informed the Attorney General that the FBI had

learned that the Davidians were physically abusing the children in the residence and that this

abuse had occurred after February 28. The report

states, ‘‘[T]he Attorney General had no doubt that
79

585 Justice Department Report at 275. 586 Id. at 226. 587 Id. at 222–223. 588 Id. at 223. 589 Id. at 223–224.

590The Attorney General ruled out a proposal to end the standoff during the weekend of April 17 because of her concern about the availability

of emergency rooms. In addition, during pre-raid approval meetings she

questioned the FBI’s planned response to the potential threat of individuals carrying children while firing weapons, and to the possibility of

children being held up windows and being threatened to be shot. Id. at

272–273. 591 Id. at 216. 592 Id. at 217. 593 Id. at 286.

the children were living in intolerable conditions.’’

The report goes on to State that the Attorney General had been told that Koresh had sexually

abused minors in the past and ‘‘continued to have

sex while recovering from his wounds.’’ 585 The report does not State on what intelligence these assertions were based.

In another part of the report, however, the Justice Department admits that the FBI had no direct

evidence of physical or sexual abuse. As the reports states,

[T]here was no direct evidence establishing that any children were being either sexually abused of physically abused

the February 28 through April 19 time period. There were circumstantial indications, however, that the children were living in a deteriorating environment, and

that the prospect of living in a deteriorating environment, and that the prospect of

sexual or physical abuse was likely as the

standoff continued.586

There is little circumstantial evidence revealed in

the report as well.

It is clear that Koresh sexually abused minor females at the residence, in addition to having consensual sexual relations with a several of the adult

females who lived there. A number of former

Davidians provided affidavits detailing these sexual relations, including the sexual abuse involving

minors females. Joyce Sparks, an employee of the

Texas Children’s Protective Services agency provided the FBI with a report of an interview she

conducted with a child who lived at the residence

detailing an incident of sexual abuse. This child

testified about her experience before the subcommittees at the July hearings. Also, during conversation between the FBI and Steve Schneider

during the week of April 14, Schneider admitted

that he knew of Koresh’s sexual abuse of a minor

female.587 While all of these incidents occurred

prior to February 28, FBI behavioral expert Dr.

Park Dietz, in an April 17 memoranda to the FBI,

opined that ‘‘Koresh may continue to make sexual

use of any minor female children who remain inside.’’ 588

It also appears certain that Koresh employed severe physical punishments as a means of disciplining the children. A March 26 report of Dr. Bruce

Perry, a child psychiatrist who interviewed the

children who had been released during the standoff, confirmed that Koresh physically abused children who had misbehaved.589

On April 19, the Attorney General made several

television statements during which she stated that

her concern of on-going child abuse was factor that

led her to decide to end the standoff. While the Attorney General’s concerns for the children’s welfare were real, there was no reliable evidence that

conditions inside the compound had worsened substantially from those existing prior to the February raid or that the Davidian children were suffering greater harms than they had in the past.

Additionally, as the Justice Department report

makes clear, the Attorney General was aware of

the potential for extreme danger to the children in

pursuing the FBI’s assault plan.590

Given the lack of evidence that the children inside the compound faced immediate life-threatening harm from the ongoing standoff and the Attorney General’s awareness of the extreme risks of an

assault, including the potential for serious or even

life-threatening injury to the children, the Attorney General’s decision to approve the raid based

on concerns for the children’s welfare was flawed.

While the Justice Department Report tries to

downplay this factor by asserting that the Attorney General was more influenced by other factors,591 the Attorney General’s public statements

on and after April 19 indicate otherwise. Particularly troublesome is the statement in the Justice

Department report that ‘‘[u]ltimately, it made no

difference whether the children were undergoing

contemporaneous abuse, because the environment

inside the residence was intolerable in any

event.’’ 592 This statement is an attempt to mask

the fact that the Attorney General either was misinformed or misunderstood what was happening

inside the residence as of the third week of April

or intentionally exaggerated the conditions to provide an excuse for approving the plan she knew

could likely end in violence and put the children at

greater risk.

3. The decision as to how to implement the plan

a. The FBI’s mindset—‘‘This is not an assault’’

At 5:59 a.m. on April 19, FBI chief negotiator

Byron Sage spoke with Steve Schneider by telephone and told him, ‘‘[W]e’re in the process of putting tear gas into the building. This is not an assault. We will not enter the building.’’ 593 Schneider responded by throwing the telephone out of

the residence. Sage then began to broadcast the

following message over loudspeakers pointed toward the residence:

We are in the process of placing tear

gas into the building. This is not an assault. We are not entering the building.

This is not an assault. Do not fire your
80

594 Id. at 286–287. 595 Id. at 288–289.

weapons. If you fire, fire will be returned.

Do not shoot. This is not an assault. The

gas you smell is a non-lethal tear gas.

This gas will temporarily render the

building uninhabitable. Exit the residence

now and follow instructions.

You are not to have anyone in the

tower. The tower is off limits. No one is to

be in the tower. Anyone observed to be in

the tower will be considered to be an act

of aggression and will be dealt with accordingly.

If you come out now, you will not be

harmed. Follow all instructions. Come out

with your hands up. Carry nothing. Come

out of the building and walk up the driveway toward the Double-E Ranch Road.

Walk toward the large Red Cross flag.

Follow all instructions of the FBI agents

in the Bradleys. Follow all instructions.

You are under arrest. This standoff is

over.

We do not want to hurt anyone. Follow

all instructions. This is not an assault. Do

not fire any weapons. We do not want

anyone hurt.

Gas will continue to be delivered until

everyone is out of the building.594

Immediately after Sage spoke with Schneider, two

CEV’s approached the residence. Both CEV’s were

fitted with a long triangular boom-like arm on

which was fitted a device that would spray CS

agent mixed with carbon dioxide. The CEV’s were

maneuvered close enough to the residence so that

the boom could be rammed into and through the

wall of the building. The operator then inserted CS

agent into the building using the device affixed to

the boom of the CEV. Insertions of CS agent by

the CEV’s occurred in four distinct phases

throughout the morning of the April 19.

During this phase of the plan, FBI agents in the

Bradleys also maneuvered close to the residence.

The agents used hand-held grenade launchers to

fire CS agent in projectiles knows as Ferret rounds

thorough a firing port in the Bradleys and into the

windows of the residence. This activity also went

on throughout the morning of the 19th.

As Sage testified at the subcommittees’ hearings, the FBI did not consider these actions to be

an assault against the residence. To Sage, the fact

that the FBI did not plan to enter the residence at

any time, and did not enter the residence, was determinative as to whether the operation was an

assault. While this distinction may have made

complete sense to the FBI, it made sense only because FBI agents, and especially HRT members,

deal with these concepts each day as part of their

duties.

The FBI assessed the situation only on their

terms. They failed to consider how their actions

would be perceived by those who were the targets

of their actions—the Davidians inside the residence. This failure was a significant error.

b. The FBI’s failure to consider the ‘‘Reasonable Branch Davidian’’

As the FBI implemented its plan to end the

stand-off the Branch Davidians were confronted

with the sound of military vehicles approaching

their home, the vibrations from holes being

rammed into the sides of their home, and by the

effects of a gas-like substance being sprayed into

their home. Most people would consider this to be

an attack on them—an ‘‘assault’’ in the simplest

terms. If they then saw other military vehicles approaching, from which projectiles were fired

through the windows of their home, most people

are even more likely to believe that they were

under an assault. If those vehicles then began to

tear down their home there would be little doubt

that they were being attacked. These events are

what the Davidians inside the residence experienced on April 19, yet the FBI did not consider

their actions an assault.

Compounding this situation is the fact that the

Davidians were not ‘‘most people.’’ They were a

close-knit group with ties to their home stronger

than those of most people. The Davidians considered their residence to be sacred ground. Their religious leader led them to believe that one day a

group of outsiders, non-believers, most likely in

the form of government agents, would come for

them. Indeed, they believed that this destiny had

been predicted 2,000 years before in Biblical

prophecy. Given this mindset, it can hardly be disputed that the Davidians thought they were under

assault at 6 a.m. on April 19.

The FBI’s failure to consider how the Davidians

might respond to their actions was important. The

FBI’s operations plan called for a systematic insertion of the CS riot control agent at different intervals throughout the day. But the plan also called

for a back-up operation if the armored vehicles

used in the operation came under fire. This contingency plan involved rapid insertion of CS agent

and the eventual ‘‘deconstruction’’ or tearing down

of the residence itself. The vehicles came under

fire almost immediately after the gas insertion

began. The FBI resorted to their fall-back plan as

of 6:07 a.m.595

As the Justice Department Report makes clear,

the majority of the FBI’s briefing to the Attorney

General involved the main FBI plan involving the

deliberate, slow insertion of CS agent. Little discussion apparently took place about the contingency provision in the plan calling for the rapid insertion of CS agent and the deconstruction of the

residence.

Curiously, the FBI seemed to know that their

principal plan would not govern the way that
81

596 Hearings Part 2 at 484. 597 Hearings Part 3 at 367. The Attorney General testified:

‘‘I think it is important that when you consider the use of tanks that

they be considered as vehicles providing the armored capacity to prevent

the penetration of these—this ammunition that we knew Koresh had. I

can’t speak to whatever was done prior to the time I took office, but,

clearly, with respect to the day of April the 19th, I could not put FBI

agents out there exposed when I knew what these men would do and

when they started immediately to fire on the FBI. Id. [emphasis added]. 598 Justice Department Report at 242. 599 Id. 600White House statement, April 19, 1993.

events would actually unfold on April 19. The

FBI’s overall commander, Jeffrey Jamar, testified

at the subcommittees’ hearings that he had a belief to a 99 percent certainty that the contingency

plan would be implemented, as he believed the

Davidians would open fire on the CEV’s. As he testified before the subcommittees, ‘‘I believed it was

99 percent when we approached with the tank

they would fire. I believe that. Not all people agree

with me on that, but I believed that at the time,

yes.’’ 596 Although the Justice Department Report

does not mention that Jamar informed his superiors of his belief, it is clear the Attorney General

also believed the Davidians would open fire on the

FBI. In referenced to firing on the FBI, the Attorney General testified that she ‘‘knew what these

men would do.’’ 597

It cannot be known whether the Attorney General would have decided differently had she known

that the FBI expected the contingency provisions

of the operations plan to be implemented. What is

clear is that she never had the opportunity to consider this fact because the FBI believed that their

actions did not constitute an attack, based on an

incomplete understanding of the Davidians. Had

the FBI considered how the Davidians would perceive their actions they might have been able to

predict that the fall back plan would be used. If

this fact had been communicated to the Attorney

General she might have decided things differently.

H. PRESIDENTIAL INVOLVEMENT IN THE EVENTS AT

WACO, TX

The involvement of the White House occurred in

several ways. According to White House Chief of

Staff Mack McLarty, two parallel lines of communication existed—one from Acting Assistant Attorney General Stuart Gerson to McLarty, and the

other from Gerson to White House Counsel Bernard Nussbaum. Senior advisor Bruce Lindsey

also kept informed on developments in Waco.598

No White House officials objected to the plan to

end the standoff at an April 13, 1993 meeting between White House and Justice Department officials, including Hubbell, Nussbaum, Lindsey and

Deputy White House Counsel Vince Foster. On

Sunday, April 18, 1993, Reno called the President

to inform him that she had decided to approve the

FBI’s request to use CS as part of a plan to end

the standoff. The President told Reno ‘‘it is your

decision.’’ 599 Clinton later told the American people, ‘‘I was aware [of the plan to insert CS into the

residence.] I think the Attorney General made the

decision. I knew it was going to be done, but the

decisions were entirely theirs.’’ 600

I. FINDINGS CONCERNING THE PLAN TO END THE

STANDOFF

1. The Attorney General’s decision to end

the standoff on day 51 was premature,

wrong, and highly irresponsible. The decision

by Attorney General Janet Reno to approve the

FBI’s plan to end the standoff on April 19 was premature, wrong, and highly irresponsible. In authorizing the CS assault to proceed Attorney General Reno was seriously negligent. The Attorney

General knew or should have known that the plan

to end the stand-off would endanger the lives of

the Davidians inside the residence, including the

children. The Attorney General knew or should

have known that there was little risk to the FBI

agents, society as a whole, or to the Davidians

from continuing this standoff and that the possibility of a peaceful resolution continued to exist.

a. The ‘‘benefits’’ of avoiding problems were

not properly evaluated. The FBI’s belief that

the standoff was likely to continue indefinitely was

too pessimistic given the advice of behaviorist Dr.

Murray Myron and the Davidians’ attorneys that

Koresh was turning his attention to what he considered to be his principal theological work, his interpretation of the meaning of the Seven Seals. As

they believed that no resolution was possible

through further negotiations, the FBI wrongly concluded and convinced the Attorney General that

there was no alternative to going forward with the

plan to end the standoff. The only issue was timing. There was also no need to rush into action on

April 19, but having lost patience with the negotiating process and facing an initially reluctant Attorney General, FBI officials manufactured or

grossly exaggerated arguments for urgency.

There was never any overt act or even a statement made by Koresh to support the FBI’s asserted fear that the Davidians might try a breakout. Using the threat of a breakout as a reason to

go forward with the CS assault plan sooner rather

than continue the negotiations was wrong. The

FBI and the Attorney General knew or should

have known there was no remotely imminent

threat of such a breakout. Also, there was no reason to go forward on April 19 out of concern that

the HRT was exhausted and needed to step down

for retraining. According to the HRT’s own commander, the HRT could have remained on duty at

the residence for at least 2 more weeks. In addition, FBI and local law enforcement SWAT teams

could have been brought in to maintain the perimeter if the HRT had to step down for a short time.

The FBI and the Attorney General knew or should

have known this.

The Attorney General wrongly based her decision to act in part on concerns that the conditions
82

inside the residence were deteriorating and that

children were being abused. There was no evidence that sanitary and other living conditions inside the residence, stark at the beginning of the

standoff, had deteriorated appreciably during the

standoff. Further, while there is no question that

physical and sexual abuse of minors occurred prior

to February 28 and may have continued thereafter, there is no evidence that minors were being

subjected to any greater risk of physical or sexual

abuse during the stand-off than prior to February

28. The Attorney General knew or should have

known this. In light of the risk to the children

from a forced end to the stand-off, and the remaining possibility of a peaceful resolution, it was inappropriate for the Attorney General to have been

occupied with apprehending Koresh for violations

of State law which were outside her jurisdiction to

enforce.

b. The risks of ending the standoff were not

fully appreciated. In deciding to end the standoff

on April 19, the FBI and the Attorney General

failed to properly evaluate the risks to the

Davidians of the FBI’s operational plan. The FBI’s

plan was based on an assumption that most reasonable people would flee the residence when CS

agent was introduced. The FBI failed to fully appreciate the fact that the Davidians could not be

relied upon to act as other reasonable people

might. The FBI failed to properly account for the

Davidians’ resolve, group cohesiveness, and loyalty

to what they believed to be sacred ground.

More troubling is the fact that the FBI commanders either knew or should have known that

the contingency provisions of the plan presented to

the Attorney General would likely be implemented. While the plan as described to the Attorney General called for a slow and deliberate insertion of CS agent in an effort to deny the Davidians

access to some areas of the residence and encourage them to exit the residence in specific locations,

the contingency provision in the plan called for

much larger quantities of CS to be inserted all at

once, and in all areas of the residence, if the

Davidians opened fire on the agents inside the

CEV’s. The result of the contingency provision

would be much larger quantities of CS being

present inside the residence with the attendant

greater likelihood that harmful concentrations

might be reached, and also the strong likelihood

that the all-out assault would cause panic in the

people inside the residence.

Jeffrey Jamar, the FBI’s overall commander at

the residence testified before the subcommittees

that he believed there was 99 percent chance that

the contingency provision would be implemented

because the Davidians would open fire on the FBI

against. Clearly, given the Davidians’ actions in

response to the ATF raid on February 28, it was

almost certain that the Davidians would respond

to the FBI’s actions with gunfire. Yet, Jamar never

communicated his opinion to the Attorney General,

or apparently to anyone else for that matter.

Other senior FBI officials, however, should have

realized that the Davidians would respond with

gunfire and that the contingency provision of the

plan would be quickly implemented. Given this,

they should have more fully briefed the Attorney

General on this aspect of the plan.

More importantly, however, the Attorney General herself admitted during her testimony before

the subcommittees that she expected the

Davidians to fire on the tanks, and that she understood that if they did the rapid acceleration of contingency plan would be implemented. It is evident

the Attorney General knew or should have known

that the contingency provision of the plan would

be implemented once the operation began on April

19, that the Davidians would not react by leaving

the residence as suggested by the FBI, and that

there was a possibility that a violent and perhaps

suicidal reaction would occur within the residence.

At no time has the Attorney General indicated

that she reflected on the consequences of the possibility. At the very least this demonstrates gross

negligence on the part of the Attorney General in

authorizing the plan to proceed.

3. FBI commanders in Waco prematurely

ruled-out the possibility of a negotiated end

to the stand-off. After Koresh and the Davidians

broke a promise to come out on March 2, FBI tactical commander Jeffrey Jamar viewed all statements of Koresh with extreme skepticism and

thought the chances for a negotiated surrender remote. While chief negotiator Byron Sage may have

held out hope longer, FBI officials on the ground

had effectively ruled out a negotiated end long before April 19 and had closed minds when presented with evidence of a possible negotiated end

involving Koresh’s work on interpreting the Seven

Seals described in the Bible’s Book of Revelation.

4. FBI tactical commander Jeffrey Jamar

and senior FBI and Justice Department officials acted irresponsibly in advising the Attorney General to go forward with the plan

to end the stand-off on April 19. Jamar and

senior FBI and Justice Department officials advising the Attorney General knew or should have

known that of the reasons given to end negotiations and go forward with the plan to end the

stand-off on April 19 lacked merit. To urge these

as an excuse to act at the time the Attorney General made the decision to do so was wrong and

highly irresponsible.

5. The FBI’s refusal to ask for or accept the

assistance of other law enforcement agencies

during the stand-off demonstrated an institutional bias at the FBI against accepting and

utilizing such assistance. Throughout the 51

day stand-off the FBI refused to ask for the assistance of other law enforcement agencies and even

refused offers of such assistance. The subcommittees find that there is an institutional bias inside

the FBI against allowing other agencies to partici-
83

pate in FBI operations. Such bias is short-sighted

and, in this case, proved to be counter-productive

in that the failure to seek or accept assistance

added to the pressure to end the stand-off on April

19.

6. It is unlikely that the CS riot control

agents used by the FBI reached toxic levels,

however, in the manner in which the CS was

used the FBI failed to demonstrate sufficient

concern for the presence of young children,

pregnant women, the elderly, and those with

respiratory conditions. CS riot control agent is

capable of causing immediate, acute and severe

physical distress to exposed individuals, especially

young children, pregnant women, the elderly, and

those with respiratory conditions. In some cases,

severe or extended exposure can lead to incapacitation. Evidence presented to the subcommittees

show that in enclosed spaces, such as the bunker,

the use of CS riot control agent significantly increases the possibility that lethal levels will be

reached, and the possibility of harm significantly

increases. In view of the risks posed by insertion

of CS into enclosed spaces, particularly the bunker, the FBI failed to demonstrate sufficient concern

for the presence of young children, pregnant

women, the elderly, and those with respiratory

conditions. While it cannot be concluded with certainty, it is unlikely that the CS riot control agent,

in the quantities used by the FBI, reached lethal

toxic levels. The presented evidence does indicate

that CS insertion into the enclosed bunker, at a

time when women and children were assembled

inside that enclosed space (i.e., during the fourth

CS riot control agent insertion), could have been a

proximate cause of or directly resulted in some or

all of the deaths attributed to asphyxiation in the

autopsy reports.

It is clear from the testimony at the hearings

that the FBI expected the adult members of the

community to care for the children by removing

them from exposure to the CS agent by coming out

of the residence with them. This presumption was

flawed. As the Defense Department’s witness testified before the subcommittees, one of the two senior military officers who attended the meeting with

the Attorney General on April 14, told the Attorney General that during the use of CS mothers

might ‘‘run off and leave their children.’’ Yet the

Attorney General failed to appreciate the fact that

this possibility was in direct contravention to a

key assumption of the plan’s provision for the use

of the CS agent—that the adult members of the

community would care for the children.

The FBI failed to properly inform the Attorney

General of the risks of using CS agent on children

by not appreciating the military officer’s warning

that parents might abandon their children and by

not fully apprising the Attorney General that there

was little scientific information on the effects of

CS on children. While the Attorney General cannot

be faulted for relying on the advice given her by

persons whose job it was to be fully informed

about the use of CS, it appears that the Attorney

General failed to fully consider the flawed assumption in the FBI’s plan once it should have become

obvious to her.

7. There is no evidence that the FBI discharged firearms on April 19.

8. Following the FBI’s April 19 assault on

the Branch Davidian compound, Attorney

General Reno offered her resignation. In

light of her ultimate responsibility for the

disastrous assault and its resulting deaths

the President should have accepted it.

J. RECOMMENDATIONS

1. Federal law enforcement agencies should

take steps to foster greater understanding of

the target under investigation. The subcommittees feel strongly that government officials failed

to fully appreciate the philosophy or mindset of

the Davidians. If they had, those officials might

have been better able to predict how the Davidians

would react to the plans to raid the residence on

February 28 and the plan to end the standoff on

April 19. If so, perhaps many of the errors made

on February 28 and during the standoff could have

been avoided.

The subcommittees found troublesome the fact

that many of the ATF and FBI officials involved in

this matter seemed uninterested in understanding

the Davidians’ goals and belief system. The views

of these officials ranged from assumptions that the

Branch Davidian were rational people likely to respond to authorities as would most citizens to a

belief that the Davidians were a ‘‘cult’’ which could

not be dealt with in any way other than by force.

Seldom did these officials seem interested in actually trying to understand this group of people and

their motivations. This attitude was shortsighted

and contributed to several of the mistakes that the

government officials made at different points from

February 28 through April 19.

This change in organizational culture can only

result if senior officials in the Federal law enforcement agencies implement changes in training and

operational procedures. The benefits of these

changes will not only protect the targets of government action but, by making it more likely that

Federal law enforcement officials will carry out

their mission in the manner most likely to succeed, will help to protect the safety of the law enforcement officers as well.

2. Federal law enforcement agencies should

revise policies and training to encourage the

acceptance of assistance from other law enforcement agencies, where possible. The subcommittees recommend that FBI officials take

steps to change the prevailing FBI culture that

leads agents to believe that only the FBI knows

best how to handle a situation. While agency pride

is appropriate, and deserving in the case of the

FBI, this pride appears to have caused the agents
84

601 U.S. Dept. of Justice, Report to the Deputy Attorney General on

the Events at Waco, Texas 329 (1993) [hereinafter Justice Department

Report]. 602These individuals visited the scene of the fire on April 22–24, 1993.

Hearings Part 3 at 119 (statement of James Quintiere). 603 Id.

to have been foreclosed to other possibilities of

dealing with the situation at hand, such as by allowing other persons whom the Davidians trusted

to become more involved in negotiations or using

other law enforcement agency forces to maintain

the Branch Davidian center perimeter and thus relieve pressure on the HRT. The FBI could have

been open to these possibilities while maintaining

its ultimate control of the situation. The FBI needs

to take steps now to ensure that this close-mindedness does not occur in the future.

3. The government should further study

and analyze the effects of CS riot control

agent on children, persons with respiratory

conditions, pregnant women, and the elderly.

The subcommittees recommend that the FBI and

Department of Defense investigate further the effects of exposure to CS on children, pregnant

women, the elderly, and persons with respiratory

problems. Until such time as more is learned

about the actual effects of exposure to this agent,

the subcommittees recommend that CS not be

used when children, persons with respiratory conditions, pregnant women, and the elderly are

present.

4. The FBI should expand the size of the

Hostage Rescue Team. One of the pressures that

led the FBI to recommend to the Attorney General

that the standoff be ended on April 19 was the

need to rest and retrain the HRT. There were not

sufficient numbers of HRT members to both guard

the perimeter of the residence and to relieve members on the line periodically. Given this limitation,

the subcommittees also note that if another hostage or barricade situation had developed involving a Federal law enforcement agency while the

standoff with the Davidians was continuing, the

FBI would have been faced with the choice of not

responding to that situation or pulling the HRT

out of Waco and moving them to the new location.

Both of these scenarios suggest the need to enlarge the size of the HRT. While the subcommittees are aware that the FBI has increased the size

of the HRT from the 48 ‘‘operator’’ agents on the

team as of early 1993 to 78 operators as of July

1996, the subcommittees recommend that further

consideration be given to this issue. As the subcommittees have concluded that the government

should have waited beyond April 19 and continued

to negotiate with the Davidians, inherent in that

recommendation was that the HRT or some other

tactical force should have remained at the residence. The FBI should ensure that the HRT is

large enough to maintain a long standoff in the future, should the need arise, while also having the

capacity to respond to another hostage or barricade situation elsewhere in the country during the

standoff.

VIII. THE FIRE

At 12:07 p.m., Central Standard Time, more

than 6 hours after the FBI began to implement the

plan to end the standoff, fire was detected inside

the Branch Davidian residence. Within a period of

2 minutes, two additional fires were detected in

two other parts of the structure. In less than 8

minutes the fire had spread throughout the structure. By the end of the afternoon, the structure

was completely destroyed.

The subcommittees received testimony from the

leader of a team of fire experts called together by

the Texas Rangers to investigate the origins of the

fire,601 a fire expert retained by the Justice Department to join with the team assembled by the

Texas Rangers,602 and an independent arson investigator.

During the testimony of these witnesses, the

subcommittees also reviewed videotape recordings

of the development and spread of the fire. Included

in this review was a videotape using ‘‘forward

looking infrared’’ (FLIR) technology, which was

taken from an FBI observation plane circling the

Branch Davidian residence throughout the morning and afternoon of April 19. The FLIR type of

video, also called a Thermal Imaging System, is a

type of video photography which images thermal

heat sources. Because of its sensitivity to changes

in the quantity of heat given off by an object the

FLIR videotape showed the beginning of the fires

within the Branch Davidian residence prior to the

point at which was the flames were visible to persons on the outside of the structure. Time lapse indicators on the video tape recordings were used by

the witnesses to establish the times at which each

fire within the Branch Davidian residence began.

A. SUMMARY OF THE DEVELOPMENT OF THE FIRE

During the hearings, James Quintiere, professor

of Fire Protection Engineering at the University of

Maryland and one of two fire experts retained by

the Justice Department to join the fire review

team assembled by the Texas Rangers, used the

FLIR video tape to demonstrate the development

of the fire on April 19. Dr. Quintiere’s responsibilities as a part of the Review Team were to analyze

the development of the fire and draw interpretations and conclusions from that analysis.603 In addition to reviewing the FLIR video, the fire investigation team reviewed television coverage of the

fire by the Canadian Broadcasting Corp., which

was also time dated, and television coverage of the

fire by a local Waco television station. The team

also reviewed aerial photographs and other materials. During his testimony to the subcommittees,

Dr. Quintiere played a video tape that simultaneously played each of the three video tapes of the

fire synchronized to the same time.

The videotape demonstration showed that the

first fire began at 12:07:42 p.m. As part of his tes-
85

604 Hearings Part 3 at 135. 605 Id. at 136. 606 Id. 607 Id. at 136–137.

608 Id. at 138. 609 Id. at 138, 191 (‘‘I don’t discount that the fires were started inside

by the people inside.’’) (statement of Rick Sherrow). 610 Id. at 166, 187–188 (statement of Paul Grey). 611 Id. at 138. 612 Id. at 140. 613Letter from Peter Voytek, executive director, Halogenated Solvents

Industry Alliance, Inc. to Glenn R. Schmitt, counsel to the Subcommittee

on Crime (July 25, 1995). See also generally Mallinckrodt, Inc., Material

Data Safety Sheet 1 (1989); Dow Chemical, Inc., Material Data Safety

Sheet 1 (1988).

timony to the subcommittees, Dr. Quintiere narrated the videotape demonstration. As the first fire

developed, Dr. Quintiere testified,

If you look at this point here, you will

see this window begin to turn slightly

grayish, it does right now. Nine seconds

later the window on the opposite side

right here is going to also show an illumination which is due to this temperature

rise, and in my opinion that is due to

smoke being transported from the fire

started at one end of the room to the

other end of the room. . . . The room was

a second floor room approximately 16 x 11

in dimensions and about 8 feet high,

which is presumed to have been a bedroom. One minute later the second fire begins on the first floor at the rear of the

dining room.604

Dr. Quintiere then described the development of

the second fire.

We are looking at the development of

the fire in that bedroom area, the second

floor right tower. What we are going to

see here at 12:09:42, we will see an event

known to people who investigate and

study fire. That event is called flashover,

and that is a point when we have a transition in this fire in which the fire goes

from a discrete object that you could discern very readily burning in a room such

as this to a point where flames now fill

the room, and that transition can occur in

seconds. It is known as flashover. Before

that time the room might be survivable.

After that time it is definitely not, and

now the fire is a threat to spreading to

other rooms.605

Finally, Dr. Quintiere described the inception of

the third fire, which occurred on the first floor in

the chapel area.606 He also noted that 38 seconds

later there emerged hot gases at a point 45 feet

away from the point where the third fire began.

He testified that this could have been a separately

set, fourth fire, but that the development of this

fire was consistent with someone placing a trail of

gasoline or other liquid fuel between those two

points and allowing the third fire to spread over

that trail.607

As Dr. Quintiere summarized his conclusions:

If we can just pause at this point, you

can see the fire here, the first fire. A

minute later, a fire began in the dining

room area, and a minute after that a fire

began in this chapel. It has not burned

through the roof yet, but the ignition in

the debris area because of the wind has

now propagated significantly over that debris area. These are three distinct fires.

From this information I can conclude

that these three fires that occurred nearly

1 minute apart were intentionally set

from within the compound. Also, you have

the time periods involved and the very

discrete different locations. None of these

three fires could have caused any of the

others because their growth rates would

not provide sufficient heating to cause

such remote ignitions.608

The experts testified that they believed the fires

were intentionally set by Branch Davidian members in order to destroy the structure.609 Supporting this conclusion is that fact that the fire review

team found that a number of accelerants were

present in the structure and on the clothing of

some of the surviving Davidians, including gasoline, kerosene, Coleman fuel, and other

accelerants.610 As Dr. Quintiere testified,

Although normal furnishings and interior construction characteristics would

provide a means for fire propagation, the

more than usual rapid spread of these

fires, especially in the dining room and

the chapel areas, indicates to me that

some form of accelerant was used to encourage to the rapid spread of these

fires.611

B. OTHER THEORIES CONCERNING THE

DEVELOPMENT OF THE FIRE

1. Whether the methylene chloride in the CS riot

control agent used by the FBI caused the fire

One of the theories forwarded to the subcommittees concerning the origin of the fire is that methylene chloride, a chemical used as a dispersant to

carry the CS riot control agent injected into the

Branch Davidian residence, may have ignited and

started the fire. During the hearings Dr. Quintiere

testified that it was his opinion that the methylene

chloride in the CS agent neither caused nor contributed to the spread of the fire.

According to Dr. Quintiere, methylene chloride,

when a vapor in air, is flammable at ambient air

levels of 12 percent or greater.612 This conclusion

is supported by information provided by the manufacturers of methylene chloride.613 The subcommittees review of the evidence presented indicates

that the levels of methylene chloride present in
86

614See section VII F of this report. 615 Hearings Part 3 at 140. 616 ‘‘[T]he explosion happened well after the building was totally destroyed. It was very unlikely that that explosion was anything other

than a propane cylinder. . . . There was, in fact, a hundred pound propane cylinder with a piece of the top blown out about the size of a football exactly where that explosion occurred, and I have no doubt that that

is what the big explosion is. . . .’’ Id. at 175–176 (statement of Paul

Gray). 617 Id. at 140. 618 Id. 619 Id.

620 Id. 621 Id. at 135 (statement of James Quintiere). 622 Id. at 143.

the residence on April 19 was far below this concentration.614 Additionally, a spark, flame, or

other source of heat is necessary for methylene

chloride to ignite and a fireball-like event would

have resulted. As Dr. Quintiere testified,

In other words, anything above 12 percent to approximately 20 percent, it would

be in the flammable range, and if we had

a spark or a small match and if we had

conditions like that, we would have a fire

propagating through the atmosphere

much like a fireball. There was no observation like that made for this fire.615

The only fireball which did occur took place well

after the fires had engulfed the building, and was

most likely due to the explosion of a canister of

propane gas.616 Accordingly, because there was no

explosion prior to the beginning of the fire, there

is no evidence that methylene chloride vapor

present in the air caused the outbreak of the fire.

Dr. Quintiere also noted that methylene chloride

is generally in a liquid state and that as the methylene chloride vapor condensed and fell in droplets

to the floor of the structure after the CS was inserted the methylene chloride generally would

have evaporated. In some instances, however, the

chemical could have collected in a puddle. He testified that such a puddle would have been difficult

to ignite due to the presence of chlorine in the

chemical. He testified that ‘‘in some sense [methylene chloride] acts like an inhibitor.’’ 617 He further

testified that he conducted experiments using

methylene chloride as a ‘‘wetting’’ agent by depositing it on wood, paper, and other flammable objects that might have been found in the structure

in an effort to determine whether the methylene

chloride might have burned along with these

items. As a result of these experiments, he concluded ‘‘that the methylene chloride had no enhancement effect on the fires spread over the room

furnishings and other things that burned in the

compound.’’ 618

2. Whether the irritant chemical in the CS riot control agent used by the FBI caused or contributed to the spread of the fire

At the hearings Dr. Quintiere testified that he

had reviewed the literature concerning the ignition

point of the chemical irritant in CS agent and

noted that the temperature at which that chemical

would ignite was comparable ‘‘to what we would

find from most fuels around us.’’ 619 Based upon

his review of the literature, Dr. Quintiere testified

that it was his opinion that the CS powder that is

an active irritant in the riot control agent did not

enhance the spread of the fire.620

3. Whether the combat engineering vehicles used by

the FBI on April 19 started the fire

Some theories concerning the origin of the fire

involve an explanation that one of the combat engineering vehicles used by the FBI to inject CS

chemical agent and to demolish portions of the

Branch Davidian residence may have actually

caused the fire, either intentionally or unintentionally.

At one point in the video record of the operation

on April 19, a combat engineering vehicle is seen

driving into a portion of the residence. The first

fire begins in that same location shortly thereafter.

Some have suggested that the CEV might have

overturned a lighted kerosene lantern inside the

residence, causing the fire to begin. The fire that

begins in that area, however, is not discernable in

the FLIR video until 1621 During the hearings, Dr.

Quintiere was questioned on the significance of

this fact.

Mr. SCHIFF: Well, if there were lanterns

in use and if you had, either through vibrations of tanks hitting walls or through

a number of people, panicking inside at

what they might have perceived was an

assault, notwithstanding the FBI broadcast going to them, couldn’t either or both

of those factors easily overturned lanterns

inside the compound?

Dr. QUINTIERE: Well, the only evidence

of a tank being in the vicinity of one of

the fires is the first fire, and that tank

has not left 11⁄2 minutes after the fire has

begun. If that tank knocked over a lantern and the lantern were lit, we would

have seen it in that FLIR video because it

would have been sensitive enough to see

that. If the tank had spilled a lantern and

there was no flame there to ignite it,

that’s possible, but somebody would have

to come in and put a flame in that.622

Some citizens have contacted the subcommittees

to suggest that the combat engineering vehicles

used by the FBI at Waco carried flame throwing

devices which were used to intentionally set the

fires inside the Branch Davidian residence. During

the hearings, the fire experts were questioned

about this theory.

Mr. SCHUMER: Another theory we have

heard mentioned is that a flame thrower

from the tanks started the fire. Now as I

understand it, we would have to have

seen on the FLIR a hot streak going from
87

623 Id. at 144. See also Id. at 172 (‘‘The flame-throwing tank absolutely

did not happen.’’) (statement of Rick Sherrow). 624 Id. at 314 (statement of Allen Holmes, Assistant Secretary of Defense for Special Operations and Low Intensity Conflict). 625 Justice Department Report at 298. Two of these persons, Clive

Doyle and David Thibodeau testified before the subcommittees at the

hearings. 626 Hearings Part 3 at 139 (statement of James Quintiere). 627 A chart indicating the location of the bodies found after the fire in

the remains of residence is contained in the Appendix.

628 Hearings Part 3 at 139. 629 Id. at 183. 630 Justice Department Report at 335.

the tank to the building for that to happen.

Dr. QUINTIERE: Absolutely.

Mr. SCHUMER: And we did not; is that

correct?

Dr. QUINTIERE: Absolutely.

Mr. SCHUMER: So you are saying a

flame thrower from the tanks starting the

fire—is that consistent—is that theory

consistent with what we saw on the tape?

Dr. QUINTIERE: No, indeed. There was

no such thing as a flame thrower on those

vehicles.623

On another day of the hearings, a Defense Department witness testified that all of the military vehicles loaned by the Defense Department to the Department of Justice and used at Waco were unarmed.624 Additionally, the subcommittees’ interviews with other persons present at the Branch

Davidian residence on April 19 confirms that none

of these vehicles was armed.

C. WHETHER THE DAVIDIANS COULD HAVE LEFT

THEIR RESIDENCE AFTER THE FIRE BEGAN

Throughout the morning of April 19, none of the

Davidians left their residence. After the fire broke

out, however, nine persons left the building.625

This indicates that at least some opportunity existed for the Davidians to safely leave the structure had they wanted to do so. One of those who

escaped the fire left the residence almost 21 minutes after the outbreak of the first fire.626 Clearly,

some means of escape from the residence existed

for a significant period of time after the fire broke

out.

An important question, however, is whether the

Davidians might have been overcome by smoke

and prevented from leaving the residence. The autopsies of the Davidians indicate that deaths from

smoke inhalation or asphyxiation from carbon

monoxide poisoning accounted for only half of the

Davidians who died in the residence. The other

causes of death were gunshot wounds, burns, or

other trauma. Thus, even after the fires began to

consume the structure, at least half of the

Davidians were not so affected by the smoke and

fumes from the fire that they were physically unable to leave the structure.

Additionally, the location of the bodies of the

Davidians indicates that few of the Davidians actually attempted to escape the building. Many of

the bodies were huddled together in locations in

the center of the building.627 Few of the bodies

were located at points of exit from the building,

and autopsies indicates that the cause of death of

several of the bodies at exit points were self-inflicted gunshot wounds or gunshots from very close

range.

At the hearings before the subcommittees, Dr.

Quintiere testified as to his opinion as to whether

the Davidians could have left the structure. He

testified,

I’ve estimated . . . that the occupants

would have had sufficient warning in no

doubt [sic] that the fire occurred, and this

would have enabled them to escape for up

to five minutes from the start of that first

fire or perhaps as many as 20 minutes in

some protected areas of the building.

So between and interval of five minutes

after the fire started and maybe as much

as 20 minutes, a person could have escaped from some parts of the building.628

Paul Gray, Assistant Chief of the Houston Fire

Department and leader of the fire review team assembled by the Texas Rangers, agreed with this

opinion, ‘‘I would take an educated guess of about

20 to 22 minutes from the inception of the fire,

from the first ignition that there may have been

some viable conditions inside the building.’’ 629 As

the report of the team led by Gray summarized,

[A] great many of the occupants could

have escaped to the outside of the

compound even as the building

burned. . . . [C]onsidering the observable

means of exit available, we must assume

that many of the occupants were either

denied escape from within or refused to

leave until escape was not an option.630

In light of this evidence, the subcommittees conclude that there was a period of time after the

fires began within which the Davidians could have

escaped the residence. The evidence presented to

the subcommittees indicates that the Davidians

did not attempt to leave the building during the

fire. In light of the Davidians’ religious beliefs that

fire would play a part in the end of their worldly

lives, the subcommittees conclude that most of the

Davidians either did not attempt to leave their

residence during the fire or were prevented from

escaping by other Davidians. Had they made such

an attempt and not been hindered in the attempt,

however, conditions were such that for sufficient

period of time after the fires broke out many of the

Davidians could have survived.

D. THE FBI’S PLANNING FOR THE FIRE

According to the Justice Department Report, at

a meeting in early April, one of the government attorneys raised the possibility of fire at the

compound and suggested to the FBI that ‘‘fire
88

631 Id. at 302. 632 Id. 633 Id. 634 Id.

fighting equipment be placed on standby on the

scene.’’ 631 Additionally, the Medical Annex to the

operations plan for April 19, which listed the locations of ‘‘primary’’ and ‘‘secondary’’ hospitals in the

area noted that local hospitals should not be used

to treat major burns but that one of the secondary

hospitals was ‘‘primary for major burns.’’

According to the Justice Department Report, the

FBI decided to not have fire fighting equipment at

the scene ‘‘for fear that they would be fired upon

by Koresh and his followers.’’ 632 Yet shortly after

the reports of fire, the FBI command post requested fire fighting assistance be requested. The

first fire fighting vehicles arrived in the vicinity 20

minutes later and, at 12:41 p.m., approached the

structure. In total, the fire crews did not reach the

structure until 31 minutes after the fire had first

been reported.633 The report also asserts that Jeffrey Jamar, the FBI’s on-scene commander at

Waco, stated to Justice Department officials during the their internal investigation of the incident

that ‘‘even if the fire fighters had arrived at the

compound earlier he would not have permitted

them to enter due to the great risk to their

lives.’’ 634

The subcommittees do not dispute the Justice

Department’s position that at the outbreak of the

fire it would have been dangerous for fire fighters

to approach the structure. Yet, the subcommittees

find it troubling that even though the government

clearly believed there existed a strong possibility

of fire, no provision was made for fire fighting

units to be on hand, even as a precaution. If, as

the Justice Department’s Report implies, the government had decided in advance that it would not

attempt to fight any fire that occurred (and thus

did not make provision for fire fighting units to be

present at the compound), it is difficult to understand why the FBI placed a call for fire fighting

units to be summoned to the scene immediately

upon the commencement of the fire.

E. FINDINGS CONCERNING THE FIRE

1. The evidence indicates that some of the

Davidians intentionally set the fires inside

the Davidian residence. While the evidence is

not dispositive, the evidence presented to the subcommittees suggests that some of the Davidians

set the fires that destroyed their residence. The

evidence demonstrated that three distinct fires

began in three separate parts of the Branch

Davidian residence within a 2 minute period on

April 19. Additionally, the fire review team found

that a number of accelerants were present in the

structure, including gasoline, kerosene, and Coleman fuel, and that in at least one instance these

accelerants contributed to the spread of the fire in

a manner that indicates an intention to spread the

fire.

2. The methylene chloride in the CS riot

control agent used by the FBI did not cause

the fire. There is no evidence that methylene

chloride vapor in the air in the residence, present

as the result of its use as a disbursant for the CS

riot control agent, caused the outbreak of the fire.

The evidence presented to the subcommittees indicated that for the methylene chloride to have

burned some spark must have ignited the methylene chloride vapor and that a fireball would have

resulted. Because no fireball was observed until

well after the fire had become established, the subcommittees conclude that methylene chloride did

not cause the fire.

3. The subcommittees conclude that Federal law enforcement agents did not intentionally set the fire. The evidence before the

subcommittees clearly demonstrates that no fire

began at or near the time when any of the combat

engineering vehicles used by the FBI came into

contact with the structure. Had a flamethrower or

similar device been installed on one of the CEV’s

and used to start the fire its use would have been

observable in the infrared videotape of the fire. No

such use is recorded on the that videotape. Accordingly, the subcommittees conclude that the FBI

did not use any of the CEV’s intentionally to cause

the fire.

4. The subcommittees conclude that Federal law enforcement agents did not unintentionally cause the fire. The evidence presented

to the subcommittees suggests that it is highly unlikely that Federal law enforcement officials unintentionally caused the fires to occur. The evidence

demonstrates that the fires broke out at points in

time when no vehicle used by the FBI was in contact with the structure or had been in contact with

the structure immediately prior to those points.

Because this would have been the case had these

vehicles inadvertently caused the fires to break

out by disturbing flammable materials inside the

Davidian residence, the subcommittees conclude

that it is highly unlikely that the vehicles inadvertently caused the fires to occur.

5. The FBI should have made better preparations to fight the fire. While it may have

been too dangerous to fight the fire when it initially erupted, it remains unknown as to whether

it might have been safe for fire fighters to approach the building at some point earlier than the

half hour later when they were allowed access.

While fire fighting efforts might not have extinguished the fire, they could have delayed the

spread of the fire or provided additional safe

means of escape for some of the Davidians. It also

does not appear as though the FBI considered obtaining armored fire-fighting vehicles from the

military. In any event, given the government’s

strong belief that a fire might take place, and its

action in summoning fire fighting units to the
89

scene, the subcommittees conclude that the FBI

should have made better provision for the presence

of fire fighting equipment as part of its overall

plan to end the standoff.

6. The Davidians could have escaped the

residence even after the fire began. After the

fire broke out on April 19, nine persons left the

Davidian residence. This indicates that at least

some opportunity existed for the Davidians to safely leave the structure had they wanted to do so. As

one person left the structure 21 minutes after the

outbreak of the first fire, some means of escape

from the residence existed for a significant period

of time after the fire broke out. The autopsies of

the Davidians indicate that many of the Davidians

were not so affected by the smoke and fumes from

the fire that they were physically unable to leave

the structure. Additionally, the location of the bodies of the Davidians indicates that few of the

Davidians actually attempted to escape the building. In light of this evidence, the subcommittees

conclude that there was a period of time after the

fires began within which the Davidians could have

escaped the residence.

91

ADDITIONAL VIEWS OF HON. ILEANA ROS-LEHTINEN

For the record, while I agree with the Waco-specific conclusions in the report, I want to note that

Janet Reno has had a distinguished career in public service beginning in 1971 with the Judiciary

Committee of the Florida House of Representatives. Her record of service and history of public

integrity is long and worthy of additional comment. From the Florida House, she held positions

with a State Senate committee, Dade County State

Attorney’s Office, was eventually appointed State

Attorney for Dade County and elected to the position for five consecutive terms, culminating in her

present position as Attorney General of the United

States.

Ms. Reno is widely respected as a woman of integrity and a selfless public servant. Indicative of

her sincerity, she took complete responsibility and

offered her resignation for the actions of Federal

agencies toward the Branch Davidians near Waco,

TX in 1993, after serving only a month as Attorney General. Ms. Reno has endeavored to improve

the U.S. Justice System as shown by her recent

and complementary handling of the Montana Siege

which ended in a peaceful resolution. Her leadership in the Department of Justice has, in my view,

since Waco been of considerable benefit to the citizens of the United States.

HON. ILEANA ROS-LEHTINEN.
92

ADDITIONAL VIEWS OF HON. WILLIAM H. ZELIFF, JR.

In response to concerns raised by two members

of the minority at the committee mark-up, I want

to set the record straight regarding the extensive

majority efforts to cooperate with the minority

throughout the entire investigative process.

First, the subcommittees made an unprecedented attempt at genuine accommodation in holding 10 days of investigative hearings. In a concession that had no apparent precedent during prior

Congresses, the majority accepted 90% of the witnesses suggested by the Democrats.

Second, minority members were invited on key

fact-finding trips, such as to Waco itself.

Third, the majority shared all available documents, set up a document room accessible to all

staff, and shared all indexes received to those documents; by contrast the majority subsequently

learned that the minority staff received and intentionally withheld from majority staff the key

Treasury Department index to tens of thousands of

documents. This minority tactic led to the unnecessary expenditure of tens of hours of indexing by

the majority prior to being able to use the documents they received. As another indication of the

difficulties the majority facted, two Democrat staffers apparently met secretly with the Texas Rangers and told them that they should not or did not

need to honor subpoenas issued by the majority;

these kinds of obfuscatory tactics during and prior

to the hearings did not enhance majority-minority

cooperation.

Fourth, the appendix to this report consists

largely of documents that are in the public domain

from the hearings, or are otherwise available to

the minority; we have never had a request to see

these documents, and we know that most were

separately sent to the minority staff by the departments themselves; accordingly, complaints about

not seeing the appendix ring hollow.

Fifth, the 10 footnotes missing from the distributed draft are either in documents the minority already have or are merely ids or ibids to documents

already once cited elsewhere in the report’s other

600 footnotes.

Sixth, the post-hearing investigation consisted

largely of asking for documents that the majority

had already asked for on June 5, 1995, and never

received from the departments; interrogatories

that pertained to unanswered hearing questions;

and issues first raised at the hearings or interviews. There were no surprises in these requests.

Seventh, the press conference held on the day

the report was distributed to Members simply

made available the recommendations of the two

subcommittee chairmen to the respective subcommittees and committees, and the summary—

well within the House Rules—was made available

to the minority at the same time. Ironically, the

week prior to the business meeting, one of my

staffers received a call from the Justice Department in which the Department indicated that they

had received—presumably from a minority staff

member or member—a copy of the whole Waco report. For the record, that is a clear and unequivocal violation of Rule 4, if any majority member had

wished raise it—and when asked for a chance to

correct facts that might be unclear or wrong, the

department made no such proffer. In fact, they

never sent any corrections whatsoever, despite five

follow-up telephone calls to get fact corrections.

Eighth, cooperation with the departments was,

frankly, an exercise in extreme patience; the majority even had to suffer having the Secretary of

Treasury calling Democrats and telling them not

to ask any embarrassing questions at the hearings. Surely, that is not the proper reaction to congressional oversight, and it is not consistent with

President Clinton’s promises of full cooperation. In

a further example of unjustifiable manipulation,

the Treasury Department also flew the Texas

Rangers who were going to testify to Washington

ahead of time and at taxpayer expense—to brief

them for 2 days on what they should say. In my

view, there can be little question that that action

was patently offensive to both the word and spirit

of cooperation.

Ninth, the majority has actually allowed the minority four times the amount of time normally allowed—and under House rules required—to review

a report prior to a business meeting. On balance,

I believe the record will show clearly that the entire investigative process was conducted not only

patiently, inclusively, exhaustively and with an extraordinary emphasis on cooperation, but with an

incontrovertible premium on fairness. In fact, I

know of no set of investigative hearings or report

that has ever been conducted with this level of inclusiveness, cooperation, or fairness.

HON. WILLIAM H. ZELIFF, JR.
93

THE SUBMISSION BY HON. STEVEN SCHIFF, OF THE SUBCOMMITTEE ON NATIONAL

SECURITY, INTERNATIONAL AFFAIRS, AND CRIMINAL JUSTICE OF THE COMMITTEE ON GOVERNMENT REFORM AND OVERSIGHT, OF EXTRANEOUS MATERIAL

PROVIDED TO HIM BY HON. BOB BARR, OF THE SUBCOMMITTEE ON CRIME OF

THE COMMITTEE ON THE JUDICIARY

The hearings into the 1993 Waco tragedy, conducted jointly in June 1995 by the Crime Subcommittee of the House Committee on the Judiciary and the Subcommittee on National Security,

International Affairs, and Criminal Justice, of the

House Committee on Government Reform and

Oversight, was a painful expose of perhaps the

greatest law enforcement tragedy in American history. Yet, it was a necessary exercise, because it

gave those of us on the subcommittees, and all

Americans, the opportunity to examine why it happened and to at least begin to implement steps to

avoid a recurrence of the tragedy. It would not be

a significant overstatement to describe the Waco

operation from the Government’s standpoint, as

one in which if something could go wrong, it did.

The true tragedy is, virtually all of those mistakes

could have been avoided.

After nearly 2 weeks of hearings, the subcommittees closed down the proceedings, and

moved on to other business. Now, over a year

later, we have a report. While the report contains

many conclusions that I believe are accurate and

appropriate, along with several important recommendations, it fails to address several extremely important matters that came to light during the hearings and which deserve far more scrutiny than accorded heretofore.

I would hope that in the next Congress, followup

hearings are held, and legislative measures introduced and passed. Avoiding tragedies such as

Waco ought to be a top priority for the Congress

and the administration.

Rather than repeat all the conclusions and recommendations of the report, many of which I

agree with (especially those concerning the ATF,

the Treasury Department failure to monitor, and

the decisionmaking at the FBI and the top levels

of the Justice Department), I will note those with

which I have serious disagreement, from my perspective as a Crime Subcommittee member, as a

former U.S. attorney, and as a citizen deeply concerned with the militarization of domestic law enforcement and the lack of accountability by Federal law enforcement.

MILITARIZATION OF LAW ENFORCEMENT

Law enforcement officials have long been required to abide by the Bill of Rights, enshrined in

our Constitution. These principles underlie virtually everything they do in their capacity as officers sworn to protect our citizens; and they limit

what they can do in fulfilling their specific responsibilities.

However, with the phenomenal growth in the

power of the Federal Government, touching virtually every facet of our lives—personal, business,

educational, government, religious, recreational,

etc.—there has developed a mentality on the part

of law enforcement that they can do anything and

not be held accountable for it. Along with this we

have witnessed the development of a militaristic

approach to domestic law enforcement, in everything from dress (black military uniforms and helmets), to equipment (armored vehicles and military surplus helicopters), to outlook, to execution.

Our armed forces, in carrying out their mission

to protect and project our national interests

abroad, are not bound by the constitutional restraints placed on domestic law enforcement. This

reflects the significant differences between conducting domestic law enforcement operations, and

conducting warfare overseas. In a war situation,

our armed forces do not and should not have to

give ‘‘Miranda’’ warnings before shooting the

enemy; they need not have ‘‘probable cause’’ before

an attack. Domestically, our law enforcement officers must do these things.

Unfortunately, we saw in the Waco tragedy one

logical result of the blurring of lines between domestic law enforcement and military operations:

an operation carried out pursuant to a strategy designed to demolish an ‘‘enemy,’’ utilizing tactics designed to cut off avenues of escape, drive an enemy

out, and run roughshod over the ‘‘niceties’’ of caring for the rights of those involved. The protestations of the Attorney General to the contrary, that

she authorized the injection of debilitating CS gas

into closed interior quarters with no ventilation

where dozens of women and children were concentrated, out of concern for the children do not

match the Government’s actions. While the report

reflects this view to some extent, I believe very

firm steps must be taken to ‘‘demilitarize’’ Federal

domestic law enforcement, through substantive

legislation and funding restrictions.

POSSE COMITATUS AND MILITARY INVOLVEMENT

While the report touches on the issue of military

involvement in this operation, focusing primarily

on disingenuous steps taken by the civilian law enforcement agencies in order to obtain military assistance without paying for it, my concerns go

deeper.
94

I seriously question the role of military officers

being involved in strategy sessions, on sight ‘‘observers’’ and the presence of foreign military personnel, and the use of military equipment such as

armored vehicles. Contrary to the conclusion of the

report, I am not convinced that the separation between military operations and domestic law enforcement, codified in the U.S. Code’s ‘‘Posse Comitatus’’ provisions, was not violated in the Waco

operation.

HOSTAGE RESCUE TEAMS

During the questioning of Attorney General

Reno on the last day of the hearings, I asked her

what specific steps had been taken by the Government to ensure that another Waco would not

recur. The only specific step the Attorney General

cited to me in response to my question, was that

the ‘‘Hostage Rescue Teams’’ (HRT’s) had been expanded. The report agrees that HRT’s should be

expanded. I disagree.

In my view, based on the Waco incident (and

others), part of the problem is the HRT’s themselves; they are relied on too heavily, and are used

in circumstances in which no hostages are present,

or which do not lend themselves to HRT tactics.

Rather than expanding the size and use of HRT’s,

I believe they ought to be more carefully circumscribed, controlled and scaled back.

FLIR TAPES AND WHAT THEY SHOW

Forward Looking Infrared Radar (FLIR) was

used by the Government, in cameras aboard helicopters and planes flying over the Branch

Davidian compound on the day of the final assault.

Portions of the FLIR tapes were shown at the

hearings; these were under the control of the Government. Of course, the Government used the

tapes to buttress its arguments that no shots were

fired on April 19 (the day of the assault on the

compound) from outside the compound into the

compound, and that the fire that destroyed the

compound was not started from the outside or by

the Government vehicles.

Given the severe limitations on questioning by

subcommittee members, and the inability to truly

review and analyze the Government’s evidence, I

do not agree with the conclusions in the report

that the evidence clearly establishes the Government’s position on these issues.

On further examination of FLIR tapes, after the

hearings, and in discussions with private parties

who have reviewed the tapes, I believe sufficient

questions have been raised to warrant further

study of these two issues: were there shots fired

from outside the compound into the compound on

April 19th, and were the fires started—intentionally or unintentionally—by the armored military vehicles or personnel therein?

Unlike the report, I do not dismiss out of hand

the civilian analyses of these tapes and other evidence. (On a related issue, I also believe further

study ought to be made, and additional evidence

examined, concerning the cause of the explosion

that occurred during the fire on April 19.)

USE OF CS GAS

The Government’s use of CS gas in the manner

it did, that is, clearly designed to incapacitate

men, women and children in a confined,

unventilated space, after avenues of escape had

been deliberately cut off, was unconscionable; as

was the cursory manner in which the Government,

and especially Attorney General Reno ‘‘bought

into’’ the conclusory and simplistic analyses that

the use of CS gas posed an ‘‘acceptable’’ level of

risk.

The fact is, while experts may—and did—differ

over the precise effects of CS gas on children, or

how and in what ways the use of CS gas might act

as a catalyst for a fire, no rational person can conclude that the use of CS gas under any circumstances against children, would do anything

other than cause extreme physical problems and

possibly death.

For the Government of this country to consciously use CS gas in the way it did on April 19,

1993 in Waco is utterly indefensible and should

never be allowed to be repeated. I believe the

deaths of dozens of men, women and children can

be directly and indirectly attributable to the use of

this gas in the way it was injected by the FBI.

I would go further than the report, and call for

a prohibition on the use of CS gas in situations in

which children or the elderly are present or are

the targets.

THE FIRE

While the report concludes that the evidence

clearly establishes that the fire that eventually

consumed the Branch Davidian structure was

started inside by the Davidians, I think that the

most that can be said is that the fire may have

been started inside, and even if it did, the evidence

that it was deliberately set is inconclusive. I believe there is also the possibility that the fire, or

at least some of the fires, may have been caused

as a result of the demolishing efforts of the armored military vehicles. While there is no direct

evidence that the fire was started from the outside, further study (of the FLIR tapes, for example) ought to be conducted.

ESCAPE

The report concludes that there was opportunity

for the Davidians to escape. While obviously this is

true—a handful did escape the maelstrom—I conclude there was no opportunity for the vast majority of the Davidians to have any hope of escape,

because of the Government’s tactics the morning of

the 19th of April.
95

Essentially, the use of the armored vehicles, methodically smashing down portions of the building,

cutting off avenues of escape (for example, smashing the walls down to cover the ‘‘escape’’ hatch to

the tunnel out of the main building), intimidated

the inhabitants into seeking ‘‘safety’’ in the one secure part of the structure (the concrete ‘‘bunker’’ in

the center). With massive quantities of CS gas

pumped into this area, it virtually guaranteed that

most inhabitants would be incapacitated; which

they were, and they died in the ensuing fire because of the incapacitating effects of the CS gas

and the cutting off of escape routes.

BREACH OF ETHICS AND POSSIBLE OBSTRUCTION

One area of inquiry which I pursued during the

hearings involved what clearly are breaches of ethics, and possible obstruction of justice by Government attorneys and investigators. This aspect of

the hearings is completely overlooked by the report. Government documents clearly show deliberate efforts by Government attorneys to stop the

collection of evidence and possibly cover up evidence the Government did not want to be available

later on. While the Department of Justice went so

far as to issue a news release during the hearings,

to refute my conclusions, I consider it extremely

serious; especially when considered with evidence

that two of the ATF agents first disciplined and

fired and then later reinstated and records sealed,

to raise very troubling questions of ethical violations at best and obstruction at worst. Attorneys

who testified at the hearings also raised serious

concerns about the attitude and policies reflected

in these documents.

Documents explicitly showed that ‘‘DOJ [Department of Justice] does not want Treasury to conduct any interviews . . . [that might] generate

. . . material or oral statements which could be

used for impeachment’’ of Government witnesses,

and that hopefully if such material is not gathered, ‘‘the passage of time will dim memories.’’

(Memorandum from Treasury Assistant General

Counsel for Enforcement, dated April 14, 1993.)

Earlier, on March 1, 1993, in interview notes,

the ATF’s initial ‘‘shooting review’’ of the February

28, 1993 initial assault at which time ATF agents

fired their weapons, the ATF is advised to ‘‘stop

the ATF shooting review because ATF was creating Brady material.’’ (Note: ‘‘Brady’’ material is

evidence that would tend to establish innocence or

which could be used in mitigation of guilt.)

In handwritten notes, taken at some point during the siege, Government attorney Ray Jahn directs that interviews are to stop because exculpatory statements may be generated.

This pattern of activity to deliberately avoid collection of relevant evidence, because it might tend

to establish a person’s innocence, or, as is apparent from other documents, might embarrass the

ATF, raises very troubling questions to say the

least, about the interests of the Government in establishing the truth and in seeing that justice is

done. Neither goal would be met under the circumstances evidenced by these documents. That

the Department of Justice casually dismisses these

concerns should be of concern to the Congress and

to the people of this country.

COMMITTEE RULES AND RESTRICTIONS

The procedures under which these hearings

were conducted did not lend themselves to adequate inquiry. Important evidence was not available because of tactics by the Government and minority members of the subcommittees to keep evidence out of our hands; such as the weapons taken

by the Government from the burned Davidian

compound. We were never able to test the weapons

to establish whether they were in fact unlawful

weapons as the Government charged (which provided a primary justification for the Government’s

initial action against Koresh and the Branch

Davidians).

The method of questioning employed—in 5-

minute increments, alternating back and forth between majority and minority—with no comity from

the minority to provide both sides with longer periods within which to question, lent itself to a scenario whereby savvy witness (most Government

witnesses are very familiar with how to answer

questions and stall so as to use up large segments

of the questioner’s time) were able, time and

again, to minimize or completely neutralize the

member’s ability to obtain answers to questions.

Starting out at the mercy of the minority to control and minimize the majority’s ability to effectively question and elicit timely, forthcoming and

nondilatory responses, set the stage for hearings

much less productive than these could have been.

Some exploration of instituting other methods of

conducting investigative hearings ought to be explored. Moreover, many witnesses who simply did

not answer members’ questions, were allowed to

escape with dilatory or nonresponsive tactics;

which again limited the productivity of the hearings.
96

CONCLUSIONS

Despite the severe limitations in procedure, and

the other matters noted above, these hearings

were extremely valuable; perhaps historic. They

resulted in very important evidence which, if properly followed-up, can help establish, through laws,

regulations, and procedures, more effective and

more accountable Federal law enforcement. However, that follow up has not yet occurred, and

many troubling questions, some going to the very

integrity of the Government’s actions and personnel, remain. These hearings in June 1995 should

be viewed not as the conclusion of the efforts by

the Congress to get to the bottom of the Waco

tragedy, but the beginning of that process.

HON. STEVEN SCHIFF.
97

ADDITIONAL VIEWS OF HON. TOM LANTOS

I welcome the dissenting views on the majority

report, which I have signed with a large number

of my colleagues. That statement points out clearly

the many serious deficiencies of the majority report.

One issue, which is completely ignored in the

majority report but which was raised at the time

of the original hearings and which is raised in the

dissenting views which I have signed, is the issue

of the highly questionable involvement of an outside interest group—the National Rifle Association—in the investigation which preceded the

hearing.

It is my view that this issue deserves greater attention and investigation. The active involvement

of an outside organization in a subcommittee investigation raises the most fundamental questions

about the integrity of the entire investigation, and

the failure to address this important matter is a

fundamental flaw of the majority report.

The outside organization—the National Rifle Association (NRA)—is not a disinterested third party.

That organization and its leaders have made it

clear that they had a particular point of view on

the matters being considered by the subcommittee.

Members of the subcommittee repeatedly urged

the chairman of the subcommittee to investigate

these matters, and the chairman has repeatedly

refused to do so. In the interest of fairness and integrity, it is important that these issues be made

part of this report.

The first matter is the subcommittee majority’s

use of outside ‘‘experts’’ to test firearms. These ‘‘experts’’ were contracted for and paid for (at a cost

of some $25,000) by the National Rifle Association.

Furthermore, the chairman of the subcommittee

and members of the majority staff initially tried to

cover-up the involvement of the National Rifle Association, and majority staff even refused to identify to officials of the U.S. Department of Justice

the name of the outside advocacy group which selected and paid for the outside experts. Furthermore, in conversation with Justice Department officials, majority staff admitted that the so-called

‘‘experts’’ in fact had no expertise whatsoever in

firearms testing. Later, during the course of the

hearings the involvement of the National Rifle Association in this case did become public.

The second issue is the matter of an employee of

the National Rifle Association identifying herself

as a member of the subcommittee staff to at least

one individual who was called to testify before the

subcommittee. Furthermore, two witnesses testified under oath during the hearings that they were

contacted by an employee of the National Rifle Association prior to testifying at the hearing. This

raises serious questions about witness tampering.

Again this issue was not investigated by the subcommittee chairman and is not dealt with in the

majority report.

Both of these instances regarding the involvement of the National Rifle Association in the congressional hearing and investigative process not

only raise questions about the ethical behavior of

the majority staff, but also may be a violation of

the law. This issue was raised in a July 17, 1995,

letter from Congressman John Conyers, Jr., and

Congressman Charles E. Schumer to the chairman

of the Judiciary Committee and the chairman of

the Government Reform and Oversight Committee.

The instances of the National Rifle Association

providing valuable services to the subcommittee

may have violated the law and the Rules of the

House. This issue should have been investigated

and resolved. It was not.

The refusal of the subcommittee chairman and

the majority to investigate these issues fully and

openly—despite repeated requests by me and other

Members who participated in the hearings—raises

the most fundamental questions about the integrity of the majority report as well as the hearing

and investigation conducted by the subcommittee.

HON. TOM LANTOS.
98

DISSENTING VIEWS OF HON. CARDISS COLLINS, HON. KAREN L. THURMAN, HON.

HENRY A. WAXMAN, HON. TOM LANTOS, HON. ROBERT E. WISE, JR., HON. MAJOR

R. OWENS, HON. EDOLPHUS TOWNS, HON. LOUISE M. SLAUGHTER, HON. PAUL E.

KANJORSKI, HON. CAROLYN B. MALONEY, HON. THOMAS M. BARRETT, HON. BARBARA-ROSE COLLINS, HON. ELEANOR HOLMES NORTON, HON. JAMES P. MORAN,

HON. CARRIE P. MEEK, HON. CHAKA FATTAH, AND HON. ELIJAH E. CUMMINGS

The text of the majority report entitled ‘‘Investigation into the Activities of Federal Law Enforcement Agencies Toward the Branch Davidians’’ is

based on 10 days of hearings (July 19–August 2,

1995) jointly held by the Committee on Government Reform and Oversight’s Subcommittee on

National Security, Criminal Justice, and International Affairs and the Committee on the Judiciary’s Subcommittee on Crime. During those

hearings, the committees heard testimony from

over 90 witnesses and viewed voluminous photographic, video and documentary exhibits concerning the events at Waco.

Throughout those hearings, the minority repeatedly insisted that no new facts or evidence

emerged as a result of this extensive investigation.

The majority report proves that basic point.

The text of the report agrees with recommendations and positions taken as a result of the 1993

Department of Justice and the 1993 Department of

the Treasury investigations of the Waco incident.

The report agrees that the tragedy at Waco would

not have occurred but for the criminal conduct and

aberrational behavior of David Koresh. The report

also confirms a number of other important points

emphasized by the minority during the hearings:

that there was probable cause to issue warrants to

search the premises and arrest David Koresh; that

the military assistance received by ATF did not

violate Posse Comitatus; that planning and intelligence operations prior to the raid were inadequate; that the Branch Davidians started the fire

on April 19, 1993; that Koresh and his followers

had ample time to leave the compound after the

fire started; and that the amount of tear gas the

FBI used was far below the quantities that would

have been required to cause injury or death. These

are not new discoveries revealed as a result of the

majority’s investigation, but previously known

findings which the majority has finally accepted.

While we accept those findings in the majority

report that are largely duplicative of the recommendations contained in previous Department

of Treasury and Department of Justice investigations, we reject the false assumptions and unfounded allegations raised by the majority’s report.

The report is fundamentally flawed in a number of

important areas. In an effort to correct those flaws

and provide clarity to facts obfuscated by the majority report, we in the minority file these Dissenting Views to address basic factual errors, resolve

internal contradictions, meliorate certain deficiencies and express our disagreement with certain

original recommendations made by the majority

report. Additionally, we wish to express strong disagreement with the majority’s unfair criticism of

Treasury Secretary Bentsen and their call for the

resignation of Attorney General Reno.

The majority report suffers from several deficiencies. First, the findings reached are not supported by the hearing record or other evidence.

The text of the report states that the Davidians

started the fire, however the findings conclude

that the evidence is not dispositive on the question

of who started the fire.

Second, the report is internally inconsistent. For

example, while critical of the FBI for failing to

consult those outside of its control during the negotiations, it then commends the FBI for allowing

lawyers representing the Davidians to enter the

compound and conduct several hours of discussions

with their clients. Clearly, these attorneys were

not controlled or directed by the FBI. Their efforts

to end the standoff were discussed by the majority

report.

Third, the report omits important evidence from

the hearings. At no point does the report discuss

the allegations of child physical and sexual abuse

perpetrated by David Koresh. Additionally, the report fails to mention the riveting testimony of Kiri

Jewell who testified at the hearings concerning

Koresh’ sexual molestation of her when she was 10

years old. Instead the report dismisses the criminal conduct of David Koresh by summarily stating

the Koresh was not subject to congressional oversight.

Fourth, the report reflects a willingness to believe Koresh over Federal law enforcement officers

and personnel. For instance, the report asserts

that Koresh’s lawyers negotiated a credible surrender agreement. However, Federal law enforcement

personnel on the advice of psychiatric and linguis-
99

tic experts determined that the ‘‘agreement’’ was a

continuation of prior manipulative stalling tactics.

The report ignores no fewer than four prior instances in which Koresh reneged on promises that

he and his followers would leave the compound.

Moreover, the report ignores that Koresh did not

state a time certain for surrender and had not allowed anyone to leave the compound for 3 weeks

prior to the ‘‘agreement’’ or 5 days following the

agreement.

The majority report criticizes Secretary Bentsen

for failing to take an active role in preraid planning but ignores testimony and evidence presented

at the hearing which conclusively showed that

under the structure that existed at the time, the

ATF exercised independence in planning and implementation of enforcement actions. This structure existed under several administrations. Secretary Bentsen’s post-Waco order changed the

structure to require additional oversight by main

Treasury.

Additionally, the majority report calls for Attorney General Janet Reno’s resignation because of

her decision to allow the insertion of CS tear gas.

Attorney General Reno stated during the hearings

that the decision to use tear gas was a difficult one

but all those consulted who had personal knowledge or professional expertise agreed that the use

of tear gas was the only way to compel the Branch

Davidians to leave the compound without use of

force or loss of life. Evidence and testimony during

the hearing clearly indicated that the CS tear gas

was not direct, or proximate cause of the ignition

or acceleration of the fire. Evidence conclusively

found that the Branch Davidians started the fire.

Therefore, the deaths of the Davidians who remained in the compound should not be laid at Attorney General Reno’s feet. This finding of the majority squarely contradicts their finding that

Koresh was the author of the events at Waco.

I. COMMITTEE PROCEDURAL ISSUES

During and following the Waco Hearings, certain

procedural issues arose which need to be addressed and remedied by the majority of this committee.

Prior to the hearings, the majority conducted a

series of interviews in Waco, TX. Apparently, these

interviews involved surviving members of the

Branch Davidians and other residents of Waco.

The minority was not informed of these interviews,

invited to participate or allowed to review interview notes. The minority first learned of these

interviews from the majority report. During this

pre-hearing phase, the minority was not allowed to

participate in the formation of the document request to the Federal agencies involved. Moreover,

contrary to the implications in the majority report,

the majority of this committee did not willingly

grant the witness requests of the minority. In fact,

our early witness requests were summarily

rebuffed. The minority of this committee was only

able to obtain witnesses by working with the minority staff of the Judiciary Committee.

During the hearing, at least two witnesses acknowledged under oath, that they were contacted

by representatives of an outside interest group

prior to their appearance before the panel. One

witness testified that in at least one instance, an

employee of the interest group identified herself as

a congressional staffer. We believe that this raises

serious questions of witness tampering by an outside group with congressional proceedings. During

the hearings, we requested that the majority investigate whether this outside group was operating with the knowledge or at the behest of the majority staff. To date, the majority has refused further investigation of these instances of improper

witness tampering.

After the hearings, these practices of exclusion

continued. At the conclusion of the hearings, the

majority conducted extensive investigations and

interviews without the knowledge or participation

of the minority. This fact did not come to light

until the release of the report.

Finally, one year after the hearings nothing had

changed. On July 11, 1996, the majority released

a summary of this report to the press. This press

summary was substantially similar if not identical

to the executive summary contained in the report

and contained all recommendations made by the

majority report. On July 12, 1996, Members and

staff of the minority obtained a copy of the report.

This pattern of exclusion of the minority members of this committee from the production of

something that purports to be a committee document should not be allowed. This practice is a serious departure from prior practice and from the respect that members of this committee have held

for each other in the past. It serves as dangerous

precedent that should not continue.

II. FACTUAL BACKGROUND

On February 28, 1993 agents from the Bureau of

Alcohol, Tobacco and Firearms (ATF) attempted to

serve an arrest warrant on David Koresh and a

search warrant on the Branch Davidian compound

outside of Waco, TX. While executing these lawful

warrants, the agents were met with a hale of gunfire. ATF agents Conway C. LeBleu, Todd W.

McKeehan, Robert J. Williams and Steven D. Willis died as a result of gunshot wounds inflicted

during the ambush. In addition to those agents

who were killed, 20 ATF agents were wounded by

hostile fire emanating from the compound. After

negotiating a cease fire with the Branch

Davidians, the agents were allowed to remove the

bodies of their fallen comrades.

Within hours of the initial shooting, the Bureau

of Alcohol, Tobacco and Firearms requested assistance from the Federal Bureau of Investigation’s

Hostage Rescue Team. The FBI arrived on the

scene of the shooting within 24 hours. A 51-day

standoff between Federal law enforcement agents
100

and the Branch Davidians led by David Koresh followed. Between the time of their arrival and the

tragic conclusion of the events, the FBI conducted

several hundred hours of negotiations with Koresh

and others within the Branch Davidian

Compound. Despite these efforts, only 14 children

and 21 adults left the compound as of March 23.

Between March 23 and April 12, negotiations

continued but no one left the compound. During

that period, the FBI held a conversation with a 6-

year-old girl who identified herself as Melissa Morrison. The FBI negotiator asked Melissa whether

she would like to leave the compound. She replied

in the affirmative. The FBI negotiator asked her

why she did not leave. Her response was that she

could not leave because ‘‘David won’t let me.’’ Melissa died in the fire.

On April 12, the FBI presented its tear gas proposal to Attorney General Reno. Between April 12

and April 17, the Attorney General conducted no

fewer than eight meetings with military and civilian tear gas experts to debate the tear gas plan,

advantages and disadvantages of using tear gas in

a barricade situation, the properties of the tear gas

chosen and the medical and scientific information

concerning the toxicity and flammability of the

type of tear gas proposed and the effects of tear

gas on vulnerable populations such as children,

the elderly and pregnant women. On April 17, the

Attorney General approved the tear gas insertion

plan and informed the President of her decision.

On April 19, 1993 the Federal Bureau of Investigation began to insert tear gas via combat engineering vehicles into the Branch Davidian

compound. However, instead of advising his followers to leave, David Koresh and other unknown

members of the Branch Davidians spread highly

flammable liquids throughout the compound and

set fire to the entire building. Because of the poor

construction of the building and the use of chemical accelerants, the entire compound was engulfed

in flames and completely destroyed within 15 minutes.

In the aftermath of the fire, the bodies of over

70 Branch Davidians were recovered. According to

autopsy reports by the Tarrant County (TX) Coroner, 30 people died of asphyxiation due to smoke

inhalation, 2 people died of injuries resulting from

blunt force trauma and 20 people, including David

Koresh and a 20-month-old infant, died of gunshot

wounds inflicted at close range by themselves or

others within the compound. Of the nine Branch

Davidians who survived the fire, seven escaped

through openings in the walls and windows of the

compound created by the combat engineering vehicles. The shoes and clothing of several of those

who escaped contained concentrations of gasoline,

kerosene and other flammable liquids.

After the siege, the Texas Rangers conducted an

extensive search of the Branch Davidian

compound. They discovered 48 illegal machine

guns, seven illegal explosives of various types,

nine illegal silencers and over 200,000 rounds of

ammunition.

A series of indictments were returned against 10

Branch Davidians between March 30 and July 20,

1993. The indictments contained charges relating

to the ambush of ATF officers on February 28 and

various firearms violations committed between

February 1992 and February 1993. On August 6,

1993, the U.S. Attorney’s office in Waco obtained

another superseding indictment from the grand

jury combining all previous indictments into one

and added two additional defendants.

On September 9, 1993, Kathryn Schroeder entered a guilty plea to one count of armed resistance of a Federal law enforcement officer. As a

part of her plea agreement, she agreed to testify

against the other 11 defendants. A Texas jury convicted 8 of the 11 Branch Davidian defendants of

various firearm offenses. The convicted defendants

received sentences ranging from 3 to 40 years with

7 of the 8 defendants serving sentences of 40 years

imprisonment.

Several congressional hearings were held which

solely or predominantly addressed the events at

the Branch Davidian compound. The President instructed the Department of the Treasury to conduct a review of the actions of the Bureau of Alcohol, Tobacco and Firearms at Waco. That report,

entitled ‘‘Report of the ATF Investigation of Vernon Wayne Howell, a.k.a. David Koresh’’ was released to the public on September 30, 1993. Additionally, the President ordered the Department of

Justice to conduct a review of the Federal Bureau

of Investigation’s actions at Waco. That report, entitled ‘‘Report to the Deputy Attorney General on

the Events at Waco, TX, February 28 to April 19,

1993’’ was released to the public on October 8,

1993.

Two years after the conclusion of the events at

Waco, the Committee on Government Reform and

Oversight, Subcommittee on National Security,

International Affairs, and Criminal Justice and

the Committee on Judiciary, Subcommittee on

Crime held extensive hearings on ‘‘Matters involving the Branch Davidians at Waco, TX.’’ These

hearings began on July 19 and ended on August 2,

1995. During those hearings, the committees

heard testimony from over 90 witnesses and

viewed voluminous photographic, video and documentary exhibits concerning the events at Waco.

Despite the comprehensive nature of this examination, we believe that no new facts emerged. However, we believe that there are certain indisputable

conclusions which can be reached by reasonable

minds regarding the events that transpired at the

Branch Davidian complex in Waco, TX between

February 28, 1993 and April 19, 1993.

III. DAVID KORESH WAS THE AUTHOR OF THE

EVENTS AT WACO

We agree with the majority’s conclusion that the

criminal conduct and aberrational behavior of
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David Koresh and other Branch Davidians led to

the tragedies that occurred in Waco. We share

their judgment that David Koresh bore the ultimate responsibility for the deaths of 4 Federal law

enforcement agents and 80 of his Branch Davidian

followers. Additionally, we note that Koresh should

also be held responsible for the serious gunshot

and shrapnel wounds of 20 Federal law enforcement officers and the nonfirearm associated injuries suffered by 11 Federal officers.

IV. THE ARREST AND SEARCH WARRANTS WERE

LEGALLY SUFFICIENT

We agree with the majority’s finding that the

ATF had probable cause to obtain an arrest warrant for David Koresh and search warrants for the

Branch Davidian compound and the facility known

as the ‘‘Mag Bag.’’ However, we disagree with the

majority’s assertion that the affidavit filed in support of the warrant contained false statements.

The ATF began its investigation of Koresh after

receiving complaints from the McLennan County

(TX) Sheriff’s Department in May 1992. A deputy

sheriff asked ATF to investigate following a report

from a concerned United Parcel Service driver.

The driver relayed his concern about a recent delivery. In delivering the package, the container in

which it was shipped broke open and revealed suspicious materials including grenade casings and a

substantial quantity of black powder. The driver

relayed that this was not the first package he had

delivered to the compound that caused him concern. Following this conversation, the deputy

learned from neighbors of the compound and other

members of the community that the residents of

the compound were constructing what appeared to

be a barracks-type cinder block structure; had buried a school bus to serve as both a firing range and

a bunker; and apparently were stockpiling arms

and other weapons.

Before opening a formal investigation, the ATF

agent spoke with local officials, interviewed gun

dealers and searched national firearms registries

to determine if any resident of the compound was

licensed as a firearms manufacturer or dealer. Additionally, the agent searched the national registry

to determine if any resident of the compound was

licensed to own a fully automatic weapon. These

searches revealed that no resident of the

compound had registered to manufacture or sell

weapons. Moreover, no resident of the compound

was licensed to own a fully automatic weapon.

During these discussions, the ATF agent learned

of the delivery of grenade casings, black powder

and large shipments of firearms.

While initially focusing on the paper trail generated by the weapons and explosives purchased

by Koresh and his followers, the agent determined

that an Arms company had recently shipped a substantial quantity of AR–15 parts to the ‘‘Mag Bag.’’

Although not within the compound, the ‘‘Mag Bag’’

was an automotive repair facility operated by the

Branch Davidians which was situated less than a

mile away from the compound, on the grounds

owned by the Branch Davidians. He also learned

that a gun dealer had sold more than a dozen AR–

15 lower receivers to Koresh a few months earlier.

As the agent knew from previous investigations,

someone with access to metal milling machines

and lathes and the knowledge to use them could

readily convert AR–15 semiautomatic rifles into

fully automatic machine guns (similar to M–16

machine guns), by obtaining legally available

parts. Additionally, the agent learned that 36

weapons had been sold to Vernon Howell (a.k.a.

David Koresh) and additional weapons had been

sold to other persons the agent knew to reside on

the Branch Davidian compound. Moreover, the

agent learned that approximately 65 AR–15 lower

receivers reflected in a local gun dealers records

were not present in the inventory. When questioned about this discrepancy, the dealer claimed

that the firearms were being stored at the house

of David Koresh.

The agent obtained further evidence by speaking

with one of Koresh’s neighbors who had served in

an army artillery unit. The neighbor reported that

since 1992 he had frequently heard spurts of

weapons fire coming from the compound at night,

including .50 caliber and automatic weapons fire.

In mid-November a deputy sheriff reported that

while on patrol a few days earlier he had heard a

loud explosion at the compound accompanied by

large clouds of gray smoke.

In an attempt to gain additional information

about the manufacture and possession of illegal

weapons at the compound, the agent spoke with

several former followers. They confirmed seeing

numerous weapons including grenades, pump shotguns, and AK–47 machine guns. Additionally, they

provided information on the extent that Koresh

dominated the lives of the residents of the

compound. Branch Davidians had not only surrendered monetary assets to Koresh but allowed him

to administer corporal punishment to children as

young as 8 months old which often led to bleeding

and severe bruising; permitted him to dictate the

dissolution of marriages; empowered him to forbid

married couples to engage in sexual relations; and

authorized him to engage in sexual relations with

all female members of the Davidians including

girls as young as 10 years old.

In January 1993, the agent spoke with David

Block, who had been a Branch Davidian from 1981

through 1992. Block relayed that he had seen two

other Branch Davidians using a metal milling machine and metal lathe to produce weapons and

which can be used to convert legal weapons to illegal automatic weapons. Block described an arsenal
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1 A ‘‘streetsweeper’’ is a 12 gauge, 12 shot, shotgun with a spring driven drum magazine and folding buttstock. Each time the trigger is released after firing a shot, the magazine rotates to position the next shot

for firing.

that included .50 caliber rifles, AR–15s AK–47s,

several 9mm pistols and three ‘‘streetsweepers’’.1

The findings of this extensive investigation

formed the basis of the agent’s statements contained in the affidavit in support of an arrest warrant for Koresh and a search warrant for the

compound and the ‘‘Mag Bag.’’ This affidavit was

presented by an Assistant U.S. Attorney to a Federal Magistrate who determined that the information contained therein was credible and sufficiently current to issue warrants.

Therefore, while assertions contained in the underlying affidavits concerning the physical and

sexual abuse of children may have been beyond

the scope of the ATF’s jurisdiction, it is abundantly clear that probable cause existed to obtain

an arrest warrant for David Koresh and search

warrants for the Mount Carmel compound and the

facility known as the ‘‘Mag Bag.’’

Any doubts Koresh or others may have had

about the validity of the warrants should have

been expressed through lawful means. However,

instead of challenging the validity of the warrants

through the judicial system, Koresh chose to instruct his followers to open fire on Federal agents

in the lawful execution of their duties

It should be remembered that at the criminal

trial of the 11 Branch Davidians, none of the defense lawyers challenged the validity of the warrants. A successful challenge by any of the defense

attorneys at trial would have excluded evidence of

the firearms and would have been a major step in

acquitting the defendants of the firearms violations. Therefore, it seems incomprehensible that

had such a challenge been possible, it would not

have been mounted by one of the many able attorneys representing the 11 Branch Davidians. However, no attorney questioned the validity of the

warrants.

Additionally, it should be noted that evidence

obtained from the scene after the fire, conclusively

proved that Koresh amassed a huge cache of weapons and materials to manufacture illegal weapons.

Although much evidence may have been destroyed

by the April 19 fire set by the Davidians, at least

47 fully automatic weapons, which are illegal

under Federal law, were recovered along with

seven illegal explosives, several grenade casings,

nine illegal silencers and 200,000 rounds of ammunition.

In its attack on the validity of the warrants, the

majority does not present any facts that would undermine the integrity of the core paragraphs of the

ATF affidavits establishing probable cause. Instead of providing testimonial or documentary evidence to challenge the validity of the warrants, the

majority raises the unsupportable implication that

a Federal law enforcement officer made false statements in securing the warrants. Such an unwarranted and unsupported attack on the credibility

of a Federal law enforcement officer is simply irresponsible.

V. ACCELERATED SERVICE OF THE WARRANTS

We disagree with the majority’s assertion that

there was no compelling reason to serve warrants

on February 28. After a year long investigation the

ATF had probable cause to believe that Koresh

had amassed a substantial cache of illegal weapons and materials necessary to manufacture additional illegal weapons. While the particular date is

not significant, it would have been extremely imprudent to wait long enough for him to amass,

manufacture and potentially distribute additional

illegal weapons. Additionally, we should note that

the original raid was planned for March 1. However, on February 27, a local newspaper began a

highly critical seven-part series of articles focusing

on Koresh and the Branch Davidians. The series

detailed several allegations against Koresh of child

physical and sexual abuse which could have potentially exposed him to serious State criminal

charges. Therefore, there was reason to believe

that Koresh would expect a heightened interest

from State or Federal authorities following the

conclusion of the series and may have destroyed

evidence of the illegal weapons in anticipation of a

search. The date of the raid was moved from

March 1 to February 28.

VI. MILITARY ASSISTANCE DID NOT VIOLATE POSSE

COMITATUS

We agree with the majority’s conclusion that

Posse Comitatus was not violated and share their

concerns over the implementation of formal guidelines and criteria in the nonreimbursable use of

Department of Defense resources in drug cases.

However, we are concerned that the implementation of such a litmus test could result in the denial

of needed assistance in the fight against the importation, production, distribution and use of illegal drugs. Therefore, although we understand this

concern, we cannot support a recommendation for

such guidelines and criteria when there is no objective evidence to believe that the military has

failed in its role to accurately and appropriately

gage the need of domestic law enforcement agencies for nonreimbursable assistance. However, it

would be appropriate and would not hamper the

fight against illegal drugs if the Department of Defense, the National Guard and Federal law enforcement agencies developed operational parameters for determining when a drug nexus is sufficient to justify nonreimbursable assistance.

Posse comitatus is the statute that limits military participation in civilian law enforcement.

Military personnel may provide training to Federal, State and local civilians law enforcement officials, as long as it is not ‘‘large scale or elaborate.’’
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Such assistance may not involve DOD personnel in

a direct role in law enforcement operations, except

in specific and narrowly drawn circumstances.

The Department of Defense provided minor nonreimbursable assistance to the ATF in connection

with the events at Waco. Under 10 U.S.C. 371 and

32 U.S.C. 112, the Secretary of Defense is authorized to provide military support to law enforcement agencies engaged in counter drug operations.

The Secretary of Defense is authorized to pay for

the support pursuant to Section 1004 of P.L. 101–

510, Section 1088 of P.L. 102–190, and Section

1041 of P.L. 102–484. If a drug nexus does not

exist, the Economy Act requires that as a general

matter, reimbursement is required when equipment or services are provided to agencies outside

the Department of Defense. An exception may be

made if there is some training value to the DOD

personnel involved.

In the planning stages of the raid, the ATF requested Special Forces assistance from the Department of Defense. This request was forwarded

through Operation Alliance and Joint Task Force

6. The initial request raised legal questions with

Special Forces attorneys regarding the permissible

scope of assistance. Specifically, Special Forces Attorneys were concerned with the proposal for DoD

to review the ATF raid plan and perform on-site

medical emergency services. Acceding to such a request would have clearly violated the Posse Comitatus Act’s mandate prohibiting the military’s

‘‘participation’’ in civilian law enforcement activities. Therefore, the initial request was significantly scaled back and limited to the facilitation of

ATF training. The military did not offer any training involving the specific details of the raid plan or

any advice concerning the accomplishment of the

mission. Special forces provided assistance limited

to facilitating ATF training at Fort Hood. This included helping to construct models of the doors

and windows of the compound; creating a schematic prototype of the compound’s exterior; operating firing ranges for weapons practice and providing limited training in emergency medial assistance. Additionally, it should be noted that there is

no evidence to suggest that Department of Defense

personnel were present at the time of the raid or

at any time during the siege.

Federal courts have concluded that the National

Guard is a State force which is not subject to the

restrictions of the Posse Comitatus Act, except

when called into Federal service, (United States v.

Benish, 5 F.3d 20 (1993). While in State militia

status, the range of permissible activities are governed by the laws and constitutions of the respective States. However, it is possible for a National

Guard unit to become a Federal law enforcement

entity. A State National Guard Unit is ‘‘federalized’’ when it is called into service by the President to suppress domestic violence or insurrection

against a State government or the authority of the

United States (10 U.S.C. 331–333). When a State

guard unit is ‘‘federalized,’’ law enforcement actions taken pursuant to that status are governed

by the provisions of the Posse Comitatus Act.

The Texas and Alabama Air National Guard

units provided pre-raid assistance by conducting

aerial reconnaissance to photograph the

compound. They conducted six flights over the

compound and the facility known as the ‘‘Mag

Bag’’ from January 6 through February 25, 1993.

In addition to the reconnaissance flights, the

Texas National Guard supplied three helicopters

for training exercises on February 27 and for the

raid on the following day.

In sum, there is no evidence to suggest that the

Posse Comitatus Act was violated by the Department of Defense. Additionally, the National Guard

units utilized by the ATF were not in a ‘‘federalized’’ status and therefore were not subject to the

proscriptions of the act.

VII. DESPITE INADEQUATE INTELLIGENCE OPERATIONS, ATF DID NOT PREMATURELY REJECT THE

SIEGE OPTION

We disagree with the majority’s findings that

the primary reason that the dynamic entry route

was chosen was because ATF did not have the experience, negotiators or capability to conduct a

siege of any significant duration.

Once ATF agents concluded that there was probable cause to obtain warrants to search the premises and arrest Koresh, attention turned to the

execution of those warrants. Three options were

considered (1) arrest Koresh away from the

compound and then serve the warrants; (2) place

the compound under siege and (3) serve the warrants by ‘‘dynamic entry or raid.’’

The first option to arrest Koresh away from the

compound followed by a subsequent service of warrants was rejected after careful consideration. Contrary to the majority’s assertion, the ATF explored

the possibility of arresting Koresh away from the

compound. However, there are two problems with

this assertion. The first problem is that it ignores

the fact that a lawful search warrant had to be

served for the premises. There is no reason to believe that the Davidians in the compound would

not have reacted in the same manner had the

search warrant been served without Koresh on the

premises or attempted to destroy evidence if time

elapsed between Koresh’s arrest and the execution

of the search warrant. Second, as of February 1993

the ATF had conducted several hundred raids of

this kind. There had only been one case involving

prolonged armed resistance. Moreover, Koresh had

previous encounters with the State officials, police

authorities and the judicial system. During these

previous encounters, Koresh did not react violently

to searches or service of process. Therefore, neither

the agency’s history nor Koresh’s personal history

yielded any information that would tend to indicate a violent reaction. It is pure speculation for
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the majority to argue that Koresh could have been

arrested away from the compound.

As acknowledged in the Treasury report, ATF

failed to collect sufficient information to determine

whether an off-premises arrest of Koresh could

have been achieved. The ATF raid planners made

serious mistakes in the intelligence gathering operations conducted prior to the raid. Successful intelligence operations require the development of

adequate and accurate information. That information must be distributed to persons in the organizational hierarchy who are able to recognize the

meaning and limitations of that information.

On January 11, 1993, the ATF began an undercover operation in a house across the road from

the Branch Davidian compound. The agents involved were given the cover of being students at a

local technical college. However, from the beginning several neighbors became suspicious of the

their activities because the agents appeared too

old to attend the college and the cars they drove

were too new to belong to students. However, even

if the ‘‘cover stories’’ used by the agents had been

successful, the operations of the undercover investigation itself were abysmal. They failed to keep

accurate logs and failed to turn over the available

logs to raid planners. However, it should be noted

that the agents were given little if any meaningful

direction from the raid planners (Sarabyn and

Chojnacki). Therefore, without adequate guidance

from their superiors, the agents were almost destined to fail. Although Agent Rodrigues obtained a

good deal of relevant and reliable information

about Koresh and the Davidians, those agents

charged with the responsibility of surveillance

were poorly served by raid planners Sarabyn and

Chojanacki.

Because of this inadequate supervision, the surveillance operation was not able to determine the

frequency of Koresh’s departures from the

compound, the routine activities within the

compound or other information that might have

been useful in deciding the optimal time, place and

manner to effect service of the warrants.

However, based on the scant information possessed at the time, the agents concluded that such

an arrest was not a viable alternative. They knew

that Koresh’s infrequent departures from the

compound were unpredictable. A social worker

who had visited the compound to investigate the

health and safety of children present, had informed the case agent that she thought Koresh did

not leave the compound very often. On February

17, Koresh told the undercover agent that he did

not often leave the compound. Further, it should

be noted that after April 19, all reports of Koresh

having been seen off the compound were thoroughly investigated by the Treasury Review. The

reviewers were able to document only isolated

trips off the compound, most occurring long before

the time of the raid.

Additionally, it should be noted that prior to the

hearing, majority subcommittee staff spent several

days in Waco to gather facts and interview prospective witnesses. It should be noted that in hearings that lasted 10 days and had over 90 witnesses, no witnesses who were not members of the

Branch Davidians or lawyers for the Branch

Davidians were produced to testify supporting the

majority’s present contention that Koresh left the

compound with sufficient frequency to affect an arrest away from the premises.

As noted in the Treasury report and by several

witnesses, a siege was rejected because of a belief

that any protracted encounter with a heavily

armed and philosophically isolated and insular

group would not be likely to produce an optimal

result. The majority incorrectly concludes that the

dynamic entry approach was prematurely abandoned. The decision to pursue a dynamic entry

was made during a meeting that took place between January 27–29, 1993 after surveillance and

undercover operations had begun. Prior to that

meeting a siege option was under active consideration as was the possibility of luring Koresh off

the compound. The Treasury report noted that the

surveillance operations could have been better coordinated and intelligence better utilized in making this tactical decision. While the Treasury report concluded that the process used to decide that

a dynamic entry should be undertaken was flawed,

a siege option presented its own risks of failure.

Four of the five independent reviewers who addressed the issue found that the dynamic entry

plan could have been successful if surprise had not

been lost.

VIII. TREASURY DEPARTMENT OFFICIALS SHOULD

HAVE TAKEN A MORE ACTIVE ROLE IN RAID

PLANNING

We disagree with the majority’s assertion that

officials at the Treasury Department should have

taken a more active role in pre-raid planning. The

majority seems to forget that prior to President

Clinton and Secretary Bentsen’s order, the Bureau

of Alcohol, Tobacco and Firearms exercised independence in planning and implementation of enforcement actions. Prior to this failed raid, there

was no practice, history or reason to believe that

additional oversight was necessary.

The Treasury Secretary is responsible for the actions of over 165,000 people and numerous bureaus and offices. During his first month in office,

Secretary Bentsen relied on the Department’s existing organizational and operational structure.

This structure had been used by the previous Republican and Democratic administrations. In the

enforcement area, this organizational structure included a chain of command from the law enforcement bureau head through the Assistant Secretary

of the Treasury for Enforcement to the Deputy

Secretary and then to the Secretary of the Treasury. This structure placed responsibility on the
105

law enforcement bureau head for bringing significant matters to the attention of his or her immediate supervisor. It is unfair, inaccurate and irresponsible to castigate Secretary Bentsen for the

adoption of an organizational structure and operational approach that had been in place for years.

Under the structure that existed at that time,

then ATF Director Steven Higgins’ immediate supervisor was Deputy Assistant Secretary John

Simpson, a career civil servant who had served at

Treasury for many years. Mr. Simpson was carrying out the duties of the Assistant Secretary for

Enforcement, pending the confirmation of an Assistant Secretary for Enforcement designee Ronald

Noble. Having been ATF’s Director for approximately 10 years, Mr. Higgins was very familiar

with the reporting process.

The suggestion that a meeting between Secretary Bentsen and ATF Director Higgins would

have led to earlier notification of ATF’s planned

raid of the Branch Davidian compound is pure conjecture. In fact Director Higgins did not tell his immediate supervisor in Treasury of the planned raid

until 2 days before its planned execution.

IX. THE RAID SHOULD HAVE BEEN ABORTED WHEN

THE UNDERCOVER AGENT REPORTED THAT

KORESH KNEW THE RAID WAS ABOUT TO OCCUR

The majority report errs in concluding that

Treasury officials failed to clearly communicate

the conditions under which the raid was to be

aborted. In fact, the Treasury Report and ATF Director Higgins’ testimony before Congress on several occasions made it clear that the ATF knew it

was supposed to call off the raid if Koresh learned

that the ATF had planned a law enforcement operation against them. Director Higgins never questioned the clarity of his message from the Treasury Department. He testified that he told his subordinates if anything looked unusual, the raid

should be called off. Consistent with the ATF’s

plan, Agent Rodrigues clearly communicated

Koresh’s awareness of an impending ATF law enforcement operation to his field supervisors. Unfortunately, Mr. Sarabyn and Chojnacki failed to

heed this clearly communicated warning. All six of

the independent tactical operations experts who

analyzed the ATF’s failed raid concluded that

based on Mr. Rodrigues’ information, the raid commanders should have called off the raid.

We concur with the majority’s finding that despite their contrary testimony before this committee, evidence clearly shows that Agents-in-Charge

Sarabyn and Chojnacki understood yet consciously

chose to disregard warnings by Undercover Agent

Rodrigues on the morning of the raid. Rodrigues

advised Sarabyn and Chojnacki that the ATF’s operations had been compromised and the element of

surprise had been lost. The most significant mistake was the decision of the on-site raid commander to proceed after he had been informed by

an undercover agent that Koresh was aware that

a raid was about to occur. This error in judgment

allowed Koresh to have an estimated 30–45

minute preparation time prior to the arrival of the

agents. Koresh used this opportunity to arm himself and his followers. Despite the majority’s assertions to the contrary, Treasury acknowledged in its

report that the raid commander was questioned by

the Washington commanders and knew or should

have known that the raid should not have proceeded if secrecy or surprise had been lost or compromised.

X. THE FBI NEGOTIATIONS AND TACTICAL

OPERATIONS WERE SOMETIMES CONTRADICTORY

The Department of Justice has acknowledged

that there could have been better coordination and

communication between the officials responsible

for tactical decision and the negotiators. Alternating tactics of negotiating, granting demands and

then using tactical operations such as cutting off

electricity to punish Koresh for reneging on agreements, may have allowed Koresh to increase his

hold on his followers.

In an effort to improve coordination and communication between negotiators and tactical command in the future, the Department of Justice has

created that Critical Incident Response Group. As

a part of this team, negotiators and tactical personnel train together to facilitate improved coordination of operations.

However, the majority’s main criticism of the

FBI involves its alleged reluctance to use outside

experts. This criticism is not valid. Following the

suggestions of behavioral experts, FBI negotiators

repeatedly stressed to Koresh that if he left the

compound, he would have every opportunity to

spread his message to a worldwide audience, that

he would be presumed innocent of any wrongdoing

with respect to the ATF raid, and that the judicial

process would provide him with an opportunity to

tell his side of the conflict. The FBI negotiated

with Koresh for 51 days. During that course of

time, over 36 demands by the Davidians were documented and granted by the FBI. Contrary to the

majority’s assertion, there is no indication that

FBI negotiators were adversely affected by physical or emotional fatigue.

We disagree with the majority’s assertions that

on the 46th day of the siege, the FBI should have

believed the representations of Koresh’s attorney

who relayed Koresh’s representation that he and

his followers would leave the compound if Koresh

were allowed to write his exposition on the Seven

Seals of the Biblical Book of Revelations. Early in

the siege, Koresh was allowed to speak to religious

scholars concerning his interpretation. In response

to a promise to surrender, an audiotape containing

his interpretation of the First Seal was played on

a radio broadcast. However, Koresh did not surrender at that time. FBI behavioralist Murray

Miron believed that this latest attempt was merely

another stalling tactic. Therefore, based on his
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prior behavior and manipulative personality, it

was not unreasonable for negotiators to conclude

that Koresh would not honor this latest promise.

We would note that had Koresh been interested in

surrendering to authorities, he could have done so

at any time during the 51-day siege. During the

same period, 37 of his followers surrendered and

called into the compound to inform Koresh and

others that they were being treated well and had

not been hurt. Therefore, whatever compelled

Koresh to remain in the compound and prevented

other followers from leaving was not something

that a deal involving Koresh’s composition of the

written exposition of his religious tenets would

have resolved.

XI. LAW ENFORCEMENT OFFICERS COULD BENEFIT

FROM FUTURE USE OF OUTSIDE BEHAVIORAL AND

PSYCHOLOGICAL EXPERTS

We disagree with the majority’s assertion that

the FBI should have developed a thorough understanding of the religious tenets of the Davidians.

During the course of the negotiations, the FBI attempted this approach and abandoned it because it

became clear that the tenets were based on

Koresh’s personal thoughts and rapidly changed to

suit the occasion. Therefore, this would not only

have been futile but would have pushed back the

time of the service of the warrants thereby allowing Koresh to amass even more illegal weapons.

We disagree with the majority assertion that the

FBI negotiators did not appear to recognize the potential benefit of using religious experts in working with Koresh. We refer the majority to the Department of Justice report which listed the opinions of independent religious experts and FBI behavioral experts consulted during the siege. The

FBI solicited and received input from various experts in many fields including psychology, psychiatry, psycho linguistics, religion and theology, cult

theory and negotiation techniques. Religious experts and theologians consulted by the FBI included Dr. Philip Arnold of the Reunion Institute;

Dr. Bill Austin, chaplain, Baylor University; Jeriel

Bingham, vice president, Davidian Seventh Day

Adventist Association; Reverend Trevor Delafield,

Seventh Day Adventist Church; Dr. Robert Wallace and Dr. John Fredericks, Lighthouse Mission;

Dr. Michael Haynes, Doctor of Theology and Psychology and Dr. Glenn Hilburn, Dean, Department

of Religion, Baylor University. Additionally, the

majority of those experts concluded that Koresh

was manipulative and likely to deceive. All the experts agreed that Koresh would not leave the

compound voluntarily. Therefore the FBI negotiators tactics which focused on Koresh as a manipulative and deceitful individual were precisely

in accord with the viewpoint of the religious experts and psychological experts and with the experience of those negotiators who spent over 400

hours talking to Koresh and his followers.

XII. THE USE OF TEAR GAS WAS UNFORTUNATE

BUT NECESSARY

The majority report suggests that the decision to

use gas was not the only option available to compel the Branch Davidians to leave the compound.

In support of their theory that additional time

would have yielded a nonviolent surrender, the

majority report points to the release of 21 children

between February 28 and March 3 as an indication that continued negotiations would have eventually secured the release of the remaining 80

adults and children within the compound. They

argue that other options including expansion of

and continuation of the negotiation strategy, waiting for the depletion of food and water supplies, or

waiting for Koresh to complete his written exposition on the meaning of the Biblical Seven Seals

prophesy were prematurely rejected in an effort to

end the confrontation.

However, after March 23, additional releases

had not been obtained. Koresh repeatedly reneged

following the FBI’s performance of agreed upon

terms. Repeatedly, Koresh would explain his decision to remain in the compound by saying that

God had not yet told him it was time to leave. Additionally, it should be noted that the ‘‘regular’’

conditions within the compounds were austere (no

running water or plumbing) and there was a vast

supply of military style MRE’s (meals-ready to eat)

and an artesian well with water storage tank

housed within the compound.

Because the FBI decided not to fire any shots

during the standoff, the Davidians walked outside

of the building on several occasions to smoke cigarettes, empty chamber pots, feed chickens and

gather water from rain water runoff. Finally, the

large amount of firearms and ammunition

(200,000 rounds) found within the compound, and

the gathering of other interested and potentially

dangerous individuals (para-military and Militia

groups) contributed to their concern about the continued degradation of the situation and their ability to adequately secure the perimeter of the

compound.

In fact, during the standoff two people, not people previously affiliated with the Davidians, infiltrated the perimeter and entered the compound.

The FBI was concerned that failing to end the

standoff would allow others (particularly paramilitary militia groups) who had begun to descend

upon the compound to enter the perimeter.

Threats posed by gathering militia and para-military groups in the area increased security problems and underscored the need for a quick resolution to the situation. There was a genuine concern

as to whether these groups had gathered as observers or sought to engage in the standoff.

On April 12, the FBI presented its tear gas plan

to Attorney General Reno. Over the ensuing days,

several meetings were held to debate the tear gas

plan, the properties of the gas chosen and the ef-
107

fects of gas on vulnerable populations such as

pregnant women and children. Between the initial

presentation of the plan on April 12 and the Attorney General’s April 17 decision to use tear gas,

Reno attended no fewer than eight meetings to

discuss the tear gas option. Those meetings were

attended by military and tactical experts who

briefed the Attorney General on the advantages

and disadvantages of the use of tear gas in a barricade situation as well as the available medical and

scientific information concerning the toxicity and

flammability of CS tear gas.

CS tear gas is a common riot control agent used

in the United States and Europe. The purpose of

tear gas is to cause irritation of the eyes, skin and

respiratory system sufficient to encourage an individual to leave the premises or any open area. CS

is considered the least toxic agent in the family of

chemical tear gas irritants. In order to reach a

level which would be lethal to fifty per cent of the

population, CS must be in concentrations of 25–

150 thousand milligrams per minute, cubed. The

CS gas used at the Davidian compound was significantly less concentrated than the lethal level.

The CS gas used was in a concentration which

would only reach 16,000 milligrams per minute

(cubed) if all of the gas used had been released at

the same time, in a single closed room and the

residents of that room had been exposed continuously for 10 minutes. At Waco, CS tear gas was released throughout different areas of the building

while openings were created in the windows and

walls. The CS gas was inserted for a total of 5

minutes over a 6-hour period. A total of twenty CS

canisters were deployed on April 19. Additionally,

several commentators discuss the fact that the

wind velocity reached 35 knots during the tear gas

delivery. Therefore, given the amount of tear gas

used, the presence of high winds, building ventilation and the delivery of gas to different areas of

the compound, it is highly unlikely that anything

close to the fifty percent lethality rate was

reached.

There are no documented cases in which the use

of CS gas caused death. Reports that Amnesty

International linked use of the gas to deaths of

Palestinians in the occupied territories, is an extremely biased reading of the report. Released in

June 1988, the report discussed the use of two

kinds of tear gas, CS and CN. CN gas has proven

to be lethal in closed quarters. The overwhelming

majority of evidence on ill-effects of CS was anecdotal. Medical care had not been sought or documented. Moreover, because of religious prohibitions autopsies had not been performed. Therefore,

there is no reliable scientific data which would

lead to the conclusion that CS alone was implicated in any of the deaths. As Physicians for

Human Rights found when visiting the occupied

territories ‘‘we could not confirm the reports of

deaths from tear gas inhalations.’’

The Himsworth Report, issued by the British

Government, found that there is no evidence of

any special sensitivity of the elderly, children or

pregnant women. Additionally, the Himsworth

Commission chronicled the effect of CS gas exposure on one infant and found that the child recovered rapidly after removal from the area affected

by CS tear gas. This report was supported by a report which appeared in a Medical journal. The author not only set forth a treatment protocol for

children exposed to CS tear gas but noted that full

recovery was highly likely.

Moreover, the majority report contends that the

presence of CS gas may have acted as an

accelerant during the fire. That is unlikely. While

CS is combustible (it will burn if ignited, much

like paper), it is not a chemical accelerant or a

flammable agent. Additionally, the method of delivery or the compounds in which the CS particulate was contained (methylene chloride and carbon

dioxide) will not burn and will actually inhibit fire

ignition.

The original CS. insertion plan required that the

tear gas be inserted by CEV’s over a course of 2

to 3 days. The theory was that the gas insertion

over several days and in different parts of the

compound would gradually render the entire

compound uninhabitable. However, within 5 minutes of the initiation of the original plan, the insertion of tear gas was dramatically escalated.

The original gas insertion plan provided that in

the event that the CEV’s or others were fired upon

during the insertion of gas, that the insertion

would be escalated. The plan vested authority with

the SAC Jamar to make the escalation decision.

Therefore, when reports of shooting coming from

the compound were confirmed and it became clear

that the CEV’s were being fired upon by the

Davidians, Jamar decided to escalate insertion of

the tear gas delivery schedule.

We agree with the majority report that it should

have been obvious to all concerned that the insertion of CS tear gas would have prompted Koresh

to order the vehicles fired upon and that this

would have resulted in the acceleration of tear gas

insertion. However, the majority fails to recognize

that if the vehicles were fired upon, the parties at

risk would be the FBI. Following the conclusion of

the insertion of tear gas, the building would be uninhabitable and the occupants would have evacuated. Therefore, it seems that this underscores the

FBI’s determination to compel the occupants to

leave without any loss of life inside the compound,

despite potential harm to themselves.

XIII. WHITE HOUSE OFFICIALS WERE INFORMED

BUT NOT INVOLVED IN THE DECISION TO USE

TEAR GAS

White House officials were informed but not consulted about the use of tear gas.

On April 18, Web Hubbell, Justice Department

White House Liaison, and Attorney General Reno
108

informed the President about the plan to gradually

insert tear gas into the compound over a 2 to 3

day period in an effort to render the compound uninhabitable and compel the occupants to leave.

During that conversation, Reno told the President

that April 19 was not envisioned as ‘‘D–Day’’ and

that the use of the tear gas would not be the beginning of an assault on the compound.

Critics maintain that the White House pressured Reno to end the standoff by any means necessary. They contend that this directive led to the

lack of clear decisionmaking and a less than objective examination of the potential hazards concerning the use of CS gas. The majority report implies

that had expediency not been a factor, Reno would

have continued to wait for the Davidians to surrender. This contention is pure speculation that is

not supported by the facts. As noted earlier, Attorney General Reno held eight meetings to discuss

various aspects of the tear gas plan with tear gas

experts. If speed had been her concern, she would

not have consulted with various experts and waited a week between the first proposal of the plan

and its implementation.

XIV. THE BRANCH DAVIDIANS STARTED THE FIRE

AND CHOSE TO REMAIN WITHIN THE COMPOUND

WHILE IT BURNED

On April 19, approximately 20 minutes after the

last tear gas insertion, the Davidian compound

erupted in flames. The first indication of fire was

seen and noted at 12:07 p.m. By 12:11 p.m., the

entire compound was substantially involved.

There is no doubt that the Branch Davidians

started the fire. We disagree with the conclusion of

the majority report which states that the evidence

concerning the origin of the fire is not dispositive.

The majority report ignores evidence contained in

the arson report which proved three separate ignition points within the compound and conclusively

found that chemical accelerants were placed

throughout the compound. Additionally, there was

eyewitness testimony as well as film footage which

chronicled the rapid spreading of the blaze. Moreover, the clothes of surviving Davidians who escaped the compound were laced with gasoline and

other flammable materials. Finally, and most

poignantly, several surviving Davidians admitted

that those within the compound had started the

blaze. These statements are supported by recorded

statements in which voices are heard asking about

the location and timing of fuel pouring and lighting activities. Additionally, it should be noted that

an examination of the vehicles involved inserting

tear gas was conducted. These vehicles did not

have flame throwing equipment and were not of

the type that could have been equipped with

flamethrowing equipment. All evidence clearly indicates that the fire which destroyed the Branch

Davidian compound on April 19 was ignited by individuals inside the compound.

It should be noted that the fire department was

called after the blaze began. However, they did not

attempt to put out the fire because during the

blaze gun shots were heard coming from and within the compound. The safety of any firefighter who

approached the compound could not be assured.

Therefore, the FBI determined that the local firefighters should not be allowed to approach the

compound. However, it should be noted that after

the fire began nine survivors exited the compound.

There has been some speculation that the tear

gas used may have contributed to the fire. The CS

tear gas did not act as an accelerant for the fire.

CS is a powdery particulate. When used in a tear

gas canister or other tear gas delivery system, CS

particulate is suspended in methylchloride and

carbon dioxide. Neither CS particulate,

methylchloride or carbon dioxide are flammable.

They actually inhibit the outbreak of fire. We

agree with the majority’s conclusion that the use

of CS tear gas prior was not a direct, proximate

cause or contributing factor to the rapid ignition

and expansion of the blaze. The audiotape and forensic evidence clearly indicate that the rapid ignition and spread of the blaze was due to the use of

chemical accelerants (including gasoline, kerosene

and camp fuel oil) distributed throughout the

compound by individuals within the compound.

Additionally, the materials used in the construction of the building itself (largely plywood) in conjunction with storage of materials such as hay and

propane gas containers and high winds combined

to significantly contribute to the rapid combustion

of the building.

XV. RECOMMENDATIONS

Finally, the report makes 17 recommendations

that are largely duplicative of recommendations

made by the extensive internal reviews undertaken by the Department of Treasury and the Department of Justice. Those recommendations and

our responses are as follows:

1. Congress should conduct further oversight of

the Bureau of Alcohol, Tobacco and Firearms and

jurisdiction should be transferred to the Department of Justice. While additional oversight is always proper, it should be noted that the proposal

to transfer jurisdiction of ATF first surfaced in the

Carter administration and has been rejected several times. Rejections have been based on concerns

about placing total enforcement of the firearms

laws in one agency. A separation of investigative

and prosecutorial functions in separate agencies

maintains an important check and balance system.

2. If false statements were made in the affidavit

filed in support of the search and arrest warrants,

criminal charges should be pursued. There is absolutely no evidence to suggest that the agent in

question made false statements. This recommendation is an example of a willingness to disbelieve

Federal law enforcement personnel which is manifest throughout this report.
109

3. Federal law enforcement should verify the

credibility and timeliness of the information used

in obtaining warrants. An assistant U.S. attorney

and a Federal Magistrate reviewed the affidavit

and found the information sufficiently fresh to

issue warrants. Additionally, in finding that probable cause existed, the majority report implicitly

agrees with the determination that the information was not stale.

4. The ATF should revise it National Response

Plan to ensure that its best qualified agents are

placed in command and control positions. The

Treasury Department made this finding in its internal review. The ATF has implemented procedures to comply.

5. Senior officials at ATF should assert greater

command and control over significant operations.

The Treasury Department made this finding it its

internal review. The ATF has implemented procedures to comply.

6. The ATF should be constrained from independently investigating drug-related crimes. This

recommendation may lack administrative and

operational feasibility.

7. Congress should consider applying the Posse

Comitatus Act to the National Guard with respect

to situations where a Federal law enforcement entity serves as the lead agency. This recommendation may lack administrative and operational feasibility and may unduly hamper the State’s ability

to use the guard in domestic law enforcement operations (e.g. drug trafficking patrols, civil disturbance).

8. The Department of Defense should streamline

the approval process for military support so that

drug nexus controversies are avoided in the future.

This recommendation may deprive the Department

of Defense of the operational flexibility necessary

to provide assistance. The inability to pass a ‘‘litmus test’’ should not preclude the provision of otherwise justifiable assistance.

9. The GAO should audit the military assistance

provided to the ATF and to the FBI in connection

with their law enforcement activities toward the

Branch Davidians. It should be noted that Members of Congress can request GAO audits on any

topic at anytime.

10. The GAO should investigate the activities of

Operation Alliance in light of the Waco incident. It

should be noted that Members of Congress can request GAO audits on any topic at anytime.

11. Federal law enforcement agencies should redesign their negotiation policies and training to

avoid the influence of physical and emotional fatigue on course of future negotiations. The FBI has

doubled the size of the Hostage Rescue Team.

12. Federal law enforcement agencies should

take steps to foster greater understanding of the

target under investigation. The Department of

Justice and the Department of the Treasury currently consult a wide range of outside experts on

various topics.

13. Federal law enforcement agencies should implement changes in operation procedures and

training to provide better leadership in future negotiations. Recent successful negotiations with the

Viper Militia and the Freemen indicate implementation of successful negotiation policies.

14. Federal law enforcement agencies should revise policies and training to increase the willingness of their agents to consider the advice of outside experts. Recent successful negotiations with

the Viper Militia and the Freemen indicate policies

evincing a willingness to employ the advice of outside experts.

15. Federal law enforcement agencies should revise policies and training to encourage the acceptance of outside law enforcement assistance, where

possible. Federal law enforcement officers currently network within and among officers from

Federal, State and local law enforcement entities.

16. The FBI should expand the size of the hostage rescue team. The HRT has been doubled in

the 3 years since the events at Waco.

17. The Government should further study and

analyze the effects of CS tear gas on children, persons with respiratory problems, pregnant women

and the elderly. Numerous studies have concluded

that there is no increased toxicity or adverse effect

when these populations are exposed to CS tear

gas. Currently, data is gathered by exposing new

armed forces recruits to tear gas. It seems that

there would be a problem in conducting tests on

human subjects within the population categories

suggested by the majority report. Although traditional tests with control and noncontrol groups

would not be possible, persons should be monitored and data collected whenever exposure occurs.

CONCLUSION

The events at Waco were a tragedy. However,

the majority investigation, hearing and report add

nothing new to the understanding of the tragedy

or the prevention of future events similar to Waco.

We live in dangerous times where the threat of

domestic terrorism is real. The bombing of the Alfred P. Murrah Federal Building in Oklahoma,

more than any other single event, stands as a testament to the possible impact that a few people

with illegal weapons and destructive purposes can

have on a nation. Groups or individuals bent on

undermining the constitutional democracy of this

country are a clear and present danger to the

rights, liberties and freedoms that every American

enjoys.

In such troubling times, it seems irresponsible

for the majority report to engage in speculation

and unsupported theories and unproven allegations against Federal law enforcement agencies

and officers. The agencies involved should be commended for their extensive and unyielding investigations as well as their quick and decisive efforts

to take corrective actions to ensure that there is no
110

reoccurrence of this type of event. It appears that

the successful handling of events such as the

‘‘Freeman’’ standoff in Montana and the Viper Militia arrests in Arizona are testament to the determination of these agencies to learn from previousmistakes.

HON. CARDISS COLLINS.

HON. KAREN L. THURMAN.

HON. HENRY A. WAXMAN.

HON. TOM LANTOS.

HON. ROBERT E. WISE, JR.

HON. MAJOR R. OWENS.

HON. EDOLPHUS TOWNS.

HON. LOUISE M. SLAUGHTER.

HON. PAUL E. KANJORSKI.

HON. CAROLYN B. MALONEY.

HON. THOMAS M. BARRETT.

HON. BARBARA-ROSE COLLINS.

HON. ELEANOR HOLMES NORTON.

HON. JAMES P. MORAN.

HON. CARRIE P. MEEK.

HON. CHAKA FATTAH.

HON. ELIJAH E. CUMMINGS.

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