[House Report 106-1037]
[From the U.S. Government Publishing Office]
Union Calendar No. 599
106th Congress, 2d Session - - - - - - - - House Report 106-1037
THE TRAGEDY AT WACO: NEW EVIDENCE EXAMINED
__________
ELEVENTH REPORT
by the
COMMITTEE ON GOVERNMENT REFORM
Available via the World Wide Web: http://www.gpo.gov/congress/house
http://www.house.gov/reform
December 28, 2000.--Committed to the Committee of the Whole House on
the State of the Union and ordered to be printed
__________
U.S. GOVERNMENT PRINTING OFFICE
67-357 WASHINGTON : 2000
COMMITTEE ON GOVERNMENT REFORM
DAN BURTON, Indiana, Chairman
BENJAMIN A. GILMAN, New York HENRY A. WAXMAN, California
CONSTANCE A. MORELLA, Maryland TOM LANTOS, California
CHRISTOPHER SHAYS, Connecticut ROBERT E. WISE, Jr., West Virginia
ILEANA ROS-LEHTINEN, Florida MAJOR R. OWENS, New York
JOHN M. McHUGH, New York EDOLPHUS TOWNS, New York
STEPHEN HORN, California PAUL E. KANJORSKI, Pennsylvania
JOHN L. MICA, Florida PATSY T. MINK, Hawaii
THOMAS M. DAVIS III, Virginia CAROLYN B. MALONEY, New York
DAVID M. McINTOSH, Indiana ELEANOR HOLMES NORTON, District of
MARK E. SOUDER, Indiana Columbia
JOE SCARBOROUGH, Florida CHAKA FATTAH, Pennsylvania
STEVEN C. LaTOURETTE, Ohio ELIJAH E. CUMMINGS, Maryland
MARSHALL ``MARK'' SANFORD, South DENNIS J. KUCINICH, Ohio
Carolina ROD R. BLAGOJEVICH, Illinois
BOB BARR, Georgia DANNY K. DAVIS, Illinois
DAN MILLER, Florida JOHN F. TIERNEY, Massachusetts
ASA HUTCHINSON, Arkansas JIM TURNER, Texas
LEE TERRY, Nebraska THOMAS H. ALLEN, Maine
JUDY BIGGERT, Illinois HAROLD E. FORD, Jr., Tennessee
GREG WALDEN, Oregon JANICE D. SCHAKOWSKY, Illinois
DOUG OSE, California ------
PAUL RYAN, Wisconsin BERNARD SANDERS, Vermont
HELEN CHENOWETH-HAGE, Idaho (Independent)
DAVID VITTER, Louisiana
Kevin Binger, Staff Director
James C. Wilson, Chief Counsel
Thomas G. Bowman, Senior Counsel
Marc Chretien, Senior Counsel
Andre D. Hollis, Senior Counsel
John F. Callender, Jr., Counsel
Robert A. Briggs, Clerk
Philip Schiliro, Minority Staff Director
Philip S. Barnett, Miniority Chief Counsel
Michael J. Yeager, Minority Senior Oversight Counsel
Julian A. Haywood, Minority Counsel
LETTER OF TRANSMITTAL
House of Representatives,
Washington, DC, December 28, 2000.
Hon. J. Dennis Hastert,
Speaker of the House of Representatives,
Washington, DC.
Dear Mr. Speaker: By direction of the Committee on
Government Reform, I submit herewith the committee's eleventh
report to the 106th Congress.
Dan Burton,
Chairman.
C O N T E N T S
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Page
I. Why the Committee Conducted This Investigation....................1
II. How the Committee Conducted This Investigation....................3
III.Findings..........................................................4
A. The Events of April 19, 1993........................ 4
B. Failure To Disclose the Use of Pyrotechnic Tear Gas
Rounds............................................... 5
C. The Justice Department Internal Review.............. 6
D. The Role of the Military............................ 6
IV. Further Analysis of the Events of April 19, 1993..................7
A. Development of the Operational Plan................. 7
B. The Use of Pyrotechnic Devices on April 19, 1993.... 11
C. Allegations of Government Gunfire on April 19, 1993. 16
V. Actions and Omissions of the Department of Justice Since 1993....23
A. Introduction........................................ 23
B. What the American People Were Told Between 1993 and
1999................................................. 26
C. The Attorney General Takes Office in Mid-Crisis..... 37
D. April 16, 1993--Attorney General Reno Rejects the
FBI's Proposed Operations Plan and Then Reverses her
Decision............................................. 39
E. April 19, 1993--Seasoned FBI Officials Within Sight
of Attorney General Reno Failed To Warn Her that the
FBI's Actions at Waco Deviated From the Operations
Plan That She Approved............................... 43
F. The Department of Justice's Failure To Conduct a
``Thorough and Vigorous Investigation'' in 1993 as
Ordered.............................................. 46
G. Conclusions and Recommendations..................... 59
VI. Department of Defense Support....................................61
A. Introduction........................................ 61
B. Was the Posse Comitatus Act Violated in Providing
DOD Support?......................................... 63
C. The General Accounting Office Report................ 75
D. Inaccurate Accounting of Military Personnel Support
Within Department of Justice Internal Review......... 85
E. The Department of Defense Did Not Conduct a Review
and Assessment of Military Assistance Provided....... 87
F. Recommendations..................................... 89
VIEWS
Minority views of Hon. Henry A. Waxman, Hon. Tom Lantos, Hon.
Major R. Owens, Hon. Edolphus Towns, Hon. Paul E. Kanjorski,
Hon. Carolyn B. Maloney, Hon. Eleanor Holmes Norton, Hon. Chaka
Fattah, Hon. Elijah E. Cummings, Hon. Dennis J. Kucinich, Hon.
Rod R. Blagojevich, Hon. Danny K. Davis, Hon. John F. Tierney,
Hon. Jim Turner, and Hon. Harold E. Ford, Jr................... 1471
Union Calendar No. 599
106th Congress Report
HOUSE OF REPRESENTATIVES
2d Session 106-1037
======================================================================
THE TRAGEDY AT WACO: NEW EVIDENCE EXAMINED
_______
December 28, 2000.--Committed to the Committee of the Whole House on
the State of the Union and ordered to be printed
_______
Mr. Burton, from the Committee on Government Reform submitted the
following
ELEVENTH REPORT
On October 19, 2000, the Committee on Government Reform
approved and adopted a report entitled, ``The Tragedy at Waco:
New Evidence Examined.'' The chairman was directed to transmit
a copy to the Speaker of the House.
The Committee on Government Reform has conducted a year-
long investigation of the actions of the Federal Bureau of
Investigation, the Department of Justice, and the Department of
Defense with regard to the standoff which occurred at the Mt.
Carmel Center outside Waco, TX, from February 28, 1993, through
April 19, 1993, as well as actions taken after the tragic end
of the standoff.
I. Why the Committee Conducted This Investigation
From July 26 through August 1, 1995, this committee's
Subcommittee on National Security, International Affairs, and
Criminal Justice and the Committee on the Judiciary's
Subcommittee on Crime held joint hearings on all aspects of the
Federal Government's role in the 1993 tragedy at the Mt. Carmel
Center, a religious community about 10 miles northeast of Waco,
TX.\1\ On August 2, 1996, the committees released a joint
report.\2\ Major findings of the report included:
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\1\ ``Investigation Into the Activities of Federal Law Enforcement
Agencies Toward the Branch Davidians (Part 1),'' hearings before the
Subcommittee on Crime of the House Committee on the Judiciary and the
Subcommittee on National Security, International Affairs, and Criminal
Justice of the House Committee on Government Reform and Oversight,
104th Cong., 163 (1995).
\2\ H. Rept. No. 104-749.
LThe BATF's investigation of the Branch Davidians was
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incompetent.
LThe affidavit filed in support of the ATF's arrest
and search warrants included knowingly false statements.
LThe BATF fraudulently claimed that the Branch
Davidians were producing methamphetamine, in order to obtain
non-reimbursable and prompt military support.
LThe BATF's military-style raid was deeply flawed, in
concept, in planning, and in execution.
LThe decision to end the standoff on April 19, 1993,
was ``premature, wrong, and highly irresponsible.'' \3\ The
possibility of a negotiated end should have been further
pursued.
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\3\ Id. at 4.
LPresident Clinton should have accepted Attorney
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General Reno's resignation.
LThe committees found no evidence that the FBI
discharged firearms or set the fires, either intentionally or
inadvertently, on April 19, 1993.
LThe actions of the military, including the National
Guard, did not violate the Posse Comitatus Act.
It was the committees' understanding that on April 19,
1993, the FBI's Hostage Rescue Team used only two means to
insert CS gas into the Branch Davidians' residence: spraying
devices attached to the booms of M-728 Combat Engineering
Vehicles \4\ and plastic, non-pyrotechnic ferret rounds fired
from 40mm M-79 grenade launchers.\5\ This understanding was
consistent with the public statements of Attorney General Janet
Reno in 1993 and with the position of the Department of Justice
until 1999.
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\4\ Id. at 68.
\5\ Id. at 69.
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Attorney General Reno, along with other Department of
Justice and FBI officials, had been emphatic in their public
statements about the means by which the HRT inserted gas into
the Branch Davidian residence. Before the House Committee on
the Judiciary, on April 28, 1993, Reno stated in a prepared
statement that, ``I wanted, and received assurances that the
gas and its means of delivery were not pyrotechnic'' \6\ At the
same hearing, FBI Director William Sessions' prepared testimony
stated that ``[o]ne critical factor [in formulating the plan]
was that CS gas could be used without pyrotechnics. It will not
start or contribute to a fire.'' \7\
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\6\ ``Events Surrounding the Branch Davidian Cult Standoff in Waco,
Texas,'' hearing before the Committee on the Judiciary, 103d Cong., 16
(Apr. 28, 1993) (statement of Attorney General Janet Reno).
\7\ ``Events Surrounding the Branch Davidian Cult Standoff in Waco,
Texas,'' hearing before the Committee on the Judiciary, 103d Cong., 85
(Apr. 28, 1993) (statement of William Sessions, former FBI Director).
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Sometime in 1998, an independent filmmaker, Michael
McNulty,\8\ obtained permission to review the physical evidence
collected at the scene of the tragedy, which was then in the
custody of the Texas Rangers Division of the Texas Department
of Public Safety. McNulty found pictures taken by the Texas
Rangers during the week after the April 19, 1993, fire which
portrayed at least one expended M-651 projectile, a military CS
gas projectile that uses pyrotechnic means to expel gas. On
June 14, 1999, Senior Captain Bruce Casteel, Chief of the Texas
Rangers, directed Ranger Sergeant Joey Gordon to review the
evidence, particularly any evidence that pyrotechnic rounds may
have been used.\9\ The chairman of the Texas Public Safety
Commission, James B. Francis, first raised questions in public
about the use of pyrotechnic rounds to the Dallas Morning News
in an article published July 28, 1999.\10\ A retired senior FBI
agent, Danny Coulson (who also founded the FBI Hostage Rescue
Team) confirmed to the Dallas Morning News on August 24, 1999,
that pyrotechnic rounds had been used.\11\ Committee staff also
traveled to Texas, interviewed Texas Rangers, and examined the
physical evidence in attempt to ascertain whether the
pyrotechnic rounds had been used.
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\8\ McNulty was a producer of ``Waco: The Rules of Engagement''
(Fifth Estate Productions, 1997) and ``Waco: A New Revelation'' (MGA
Films, 1999).
\9\ ``Texas Rangers Division of the Texas Department of Public
Safety, Investigative Report Branch Davidian Evidence'' (September
1999) (exhibit 1).
\10\ Lee Hancock, ``DPS Head Raises Questions About Davidian
Fire,'' the Dallas Morning News, July 28, 1999 (exhibit 2).
\11\ Lee Hancock, ``2 Pyrotechnic Devices Fired at Davidians, Ex-
official Says,'' the Dallas Morning News, Aug. 24, 1999 at A1 (exhibit
3).
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In addition to the newly-revealed possibility that FBI use
of pyrotechnic rounds may have contributed to the fire,
allegations surfaced regarding the active participation of the
military in the April 19, 1993, assault and regarding the
possibility that videotapes filmed on April 19, 1993, using
aerial Forward-Looking Infrared (FLIR) technology, depicted
government agents firing weapons. Also, a report issued by the
General Accounting Office on August 26, 1999, called into
question certain findings of the 1996 committee report with
respect to the military's support of the Bureau of Alcohol,
Tobacco and Firearms prior to their February 28, 1993,
raid.\12\
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\12\ ``U.S. General Accounting Office, Department of Defense:
Military Assistance Provided at the Branch Davidian Incident'' (GAO/
NSIAD/OSI-99-133, Aug. 26, 1999) (exhibit 4).
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The 1996 joint report concluded that the BATF misled the
Defense Department as to the existence of a drug nexus in order
to obtain non-reimbursable support in a prompt manner from the
Defense Department. While there had been allegations that a
drug manufacturing operation was located at the Davidian
residence at some point in the mid to late 1980's before Koresh
took control of the group, there was no evidence that the drug
operation continued into late 1992.
The committee's investigation was limited to resolving
these new allegations, thereby building on, but not replacing,
the report issued in 1996. We have found no reason to revise
the major findings of the 1996 report.
II. How the Committee Conducted This Investigation
In September 1999, the committee issued document subpoenas
to the Department of Justice, the Department of Defense, and
the White House. Over the course of the committee's
investigation, committee investigators reviewed and analyzed
over 1 million pages of documents. Committee attorneys
interviewed 20 representative members of the FBI Hostage Rescue
Team who were involved in the standoff, along with military
personnel, numerous senior Justice Department and FBI
officials, and surviving Branch Davidians.
In September 1999, the committee retained a FLIR analyst,
Carlos Ghigliotty, to analyze flashes that appeared on the FLIR
tapes taken on April 19, 1993, that were alleged to be gunfire.
On October 6, 1999, the Washington Post published an article in
which Ghigliotty was quoted stating that he ``conclude[d] that
the FBI fired shots on that day.'' \13\ According to the
article, Ghigliotty's conclusion was based on his review of
both visual-range and FLIR videotapes.\14\ On October 12, 1999,
Ghigliotty examined the original FLIR tapes at an FBI lab and
supervised the creation of first generation copies. Beginning
in December 1999, Ghigliotty prepared a list of all of the
questionable thermal flashes he detected on the four FLIR tapes
taken on April 19, 1993.\15\ Ghigliotty died in the spring of
2000 without having submitted to the committee a scientific
report on the flashes. The Maryland Medical Examiner reported
that his death was caused by cardiac arrhythmia and
atherosclerotic cardiovascular disease.\16\
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\13\ David A. Vise and Richard Leiby, ``Expert Concludes FBI Fired
Shots During Waco Siege,'' the Washington Post, Oct. 6, 1999 at A6
(exhibit 5).
\14\ Id.
\15\ The final version of the list Carlos Ghigliotty provided the
committee is attached as exhibit 6.
\16\ ``Office of the Chief Medical Examiner, State of Maryland,
Post Mortem Examiantion Report No. 00-2354-027 on Carlos Ghigliotty''
(Apr. 28, 2000) (exhibit 7 on file with the committee).
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In December 1999, the committee retained a second FLIR
analyst, Dr. Don Frankel of Photon Research Associates, Inc. On
September 11, 2000, Frankel submitted a report to the committee
concluding that the flashes analyzed by him on behalf of the
committee do not depict gunfire.\17\ His report is discussed in
detail in Section IV of this report.
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\17\ Donald S. Frankel, Photon Research Associates, ``Assessment of
Waco, Texas FLIR Videotape'' (Sept. 11, 2000) (exhibit 8).
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III. Findings
The committee has reached the following conclusions as a
result of its investigation:
A. THE EVENTS OF APRIL 19, 1993
LAerial Forward-Looking Infrared videos filmed on
April 19, 1993, include flashes around the Mt. Carmel Center
that at first blush resemble muzzle blasts. Careful scientific
analysis of the flashes does not, however, appear to support
allegations that these flashes are the result of gunfire.
Analysts who submitted reports to both this committee and the
Office of Special Counsel reached similar conclusions: that the
flashes they were asked to examine appeared to be solar or
other thermal reflections emanating from debris. However, the
analyst retained by this committee reported that an overhead
FLIR camera of the type used by the FBI on April 19, 1993,
would not record every muzzle flash occurring within its field
of view. Therefore, while the flashes that have generated such
controversy do not appear to represent gunshots, it is within
the range of possibility that gunshots may have occurred that
were not captured by the FLIR camera. This conclusion is
bolstered by the March 21, 2000, FLIR reenactment performed at
Ft. Hood, TX.
LEvery FBI agent interviewed by the committee has
denied discharging any weapons (other than for the delivery of
CS gas) on April 19, 1993, or knowing of any gunfire from
government sources. This committee has uncovered no evidence to
contradict these claims.
LThere is no evidence that HRT snipers stationed at a
house (designated the Sierra One sniper position) across the
Double EE Ranch Road from the compound fired shots on April 19,
1993. Shell casings recovered at the house by the Texas Rangers
have been tested by the Office of Special Counsel and matched
weapons used by the Bureau of Alcohol, Tobacco and Firearms on
February 28, 1993.
LThe operations plan approved by Attorney General
Janet Reno called for a gradual, section-by-section, insertion
of CS gas over the course of 2 days, followed by
``deconstruction'' of the building if the Branch Davidians had
not surrendered after 48 hours. Nonetheless, on the morning of
April 19, 1993, the HRT punched large holes in the walls of the
building, drove M-728 Combat Engineering Vehicles deep into the
building, and destroyed one-half of the gymnasium on the Black
side of the building.
LAt approximately 8 a.m. on April 19, 1993, HRT member
David Corderman, after obtaining authorization from HRT
commander Richard Rogers, fired either two or three pyrotechnic
M-651 rounds in an attempt to insert gas in an underground
tornado shelter on the Green side of the Center.\18\ Corderman
had fired non-pyrotechnic ferret rounds at the shelter's
tarpaper and plywood roof, but they had failed to penetrate it.
Although HRT leadership was aware of the possibility that HRT
personnel might need to use M-651 rounds, they failed to
include the contingent use of M-651 rounds in the operations
plan they sent for approval to the Attorney General. They also
failed on April 19, 1993, to obtain authorization for this
deviation from higher up the chain of command.
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\18\ The FBI designated the front of the Center, which faced
southwest toward the Double EE Ranch Road, the ``White side,'' the side
of the Center facing roughly southeast toward Elk Road the ``Red
side,'' the side of the Center facing roughly northwest toward the
Perry Ranch and beyond towards Old Mexia Road the ``Green side,'' and
the rear of the Center the ``Black side.'' These designations are used
throughout this report.
LA Texas Department of Public Safety photographer took
pictures of an expended M-651 projectile during the crime scene
investigation after the fire. The projectile was never logged
into evidence by the Texas Rangers or FBI, and numerous
searches have failed to locate this expended projectile.
b. failure to disclose the use of pyrotechnic tear gas rounds
LDepartment of Justice attorneys William ``Ray'' Jahn,
LeRoy Jahn, and William Johnston, who were responsible for
prosecuting the surviving Davidians, learned in 1993 that HRT
personnel had sought and received approval to fire the M-651s.
They did not disclose these facts to the criminal defendants,
to the Congress in 1995, or by her account, to Justice
Department civil trial defense attorney Marie Hagen. The Jahns
and Johnston arguably had a legal and ethical duty to disclose
these facts. Had they done so, the considerable time and
resources that have been devoted to uncovering these facts now
would not have been expended.
LFormer HRT Commander Richard Rogers approved the use
of pyrotechnic M-651 rounds on April 19, 1993. He sat silently
behind Attorney General Reno and former FBI Director William
Sessions during the 1993 House Judiciary Committee hearings as
they stated under oath that no pyrotechnic device had been used
by FBI personnel on April 19, 1993. Rogers claims that he was
distracted at the time.
c. the justice department internal review
LAttorney General Reno failed to ensure that the
``vigorous and thorough investigation'' ordered by the
President and promised by Reno occurred. The Scruggs
investigation was negligent and was improperly rushed to its
conclusion solely for political purposes. A thorough
investigation in 1993 would have saved time and resources later
incurred to discover the truth.
LHad Scruggs and his colleagues conducted a ``vigorous
and thorough investigation,'' they would have discovered the
truth regarding: (a) the use of the pyrotechnic M-651 rounds;
(b) the role of active duty Army special operations personnel
during the 51-day standoff; and (c) FBI Special Agent Riley's
statement regarding gunfire from an HRT sniper position.
LPressure from senior Justice Department officials,
including then-Deputy Attorney General Phil Heymann, caused the
Scruggs team to rush to conclude their investigation and to
publish their report, thus failing to uncover and disclose
facts which could have fully accounted for the allegations made
in the civil trial and disclosed in the fall of 1999.
LAll of the actions taken by the Justice Department
were consistent with an organization that was not eager to
learn the full truth about what happened on April 19, 1993.
This is made clear by the fact that the original FLIR tapes
made on that day sat unanalyzed in an FBI office for 6 years.
LThe committee recommends that in the case of future
tragedies of the scale and importance of Waco, an outside and
independent investigation should be commissioned to preclude
the kind of negligence that occurred in 1993 and to obviate the
need for subsequent congressional and other investigations.
d. the role of the military
LThe committee uncovered no evidence that any member
of the armed services present at Waco, including the National
Guard, violated the Posse Comitatus Act. Representatives from
the U.S. Special Operations Command were present, but the
available evidence indicates that they acted only as observers
and technicians.
LRelations between civilian officials and the military
with regard to Waco were characterized by disregard of the
Posse Comitatus Act on the part of the civilians, and by
diligence on the part of the military. Two senior Army officers
were asked to evaluate the FBI's proposed operations plan for
April 19, and consistently refused to do so, as such support
would have made them direct participants in planning the arrest
of the Branch Davidians, and would have therefore violated the
Posse Comitatus Act.
LTwo senior Army officers were asked to review the
FBI's proposed operations plan and attend a briefing with
Attorney General Reno on April 14, 1993. While Attorney General
Reno has stated that these officers told her the FBI's plan was
``excellent'' in one case, and ``sound'' in another, both
officers have clearly stated they were careful not to evaluate
the plan during the meeting. President Clinton and Attorney
General Reno have deceived the American people for over 7 years
by misrepresenting that the military endorsed, sanctioned or
otherwise approvingly evaluated the plan.
IV. Further Analysis of the Events of April 19, 1993
a. development of the operational plan
1. Emergency Plans During the 51-Day Standoff
On February 28, 1993, the Bureau of Alcohol, Tobacco and
Firearms (BATF) attempted to serve a search warrant on the
Branch Davidian religious community near Waco, TX, and an
arrest warrant on the community's leader, David Koresh. That
raid ended in tragedy, as four BATF Special Agents and six
Branch Davidians were killed in an ensuing gunfight. The flaws
in the conception, planning and execution of the BATF raid are
well documented in the 1996 joint report of the Committee on
the Judiciary's Subcommittee on Crime and this committee's
Subcommittee on National Security, International Affairs, and
Criminal Justice.\19\
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\19\ H. Rept. No. 104-749.
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In the aftermath of that failed raid, the Treasury
Department requested that the Federal Bureau of Investigation
(FBI) assume command of the situation. The FBI deployed its
Hostage Rescue Team (HRT), a full-time counterterrorist unit
based at the FBI Academy at Quantico, VA, along with part-time
Special Weapons and Tactics (SWAT) teams from various FBI Field
Offices and hundreds of other Special Agents and support
personnel. HRT assumed tactical command of the site on March 1,
1993, and began deploying its members to various positions
around the compound.
Upon arrival at an incident site, HRT commanders, as
standard procedure, formulate an emergency plan for approval by
the Special Agent in Charge (SAC) in overall command of an
incident.\20\ Soon after arriving in Waco, HRT commanders
developed emergency plans to deal with various contingencies,
including the possibility that the Davidians would attempt
suicide. The first such plans were oral, and were later
committed to writing.
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\20\ Interview with Richard Rogers, former Assistant Special Agent
in Charge and Commander, HRT, FBI, in Phoenix, AZ (Aug. 9, 2000). In
1993, the SAC of the FBI Field Office within which a critical incident
occurred was in overall command of the incident. In 1995, the FBI
created the Critical Incident Response Group, which assumed
responsibility for management of critical incidents.
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Under the early versions of HRT's emergency plans, in the
event of a mass suicide attempt by the Davidians or under
similar circumstances, HRT personnel would have attempted to
disable those inside by firing non-pyrotechnic ``ferret''
rounds from M-79 40 millimeter grenade launchers \21\ through
the doors and windows. Ferret rounds are plastic projectiles
with stabilizing fins containing 25 grams of CS, a type of tear
agent, suspended in a liquid solvent.\22\ Upon impact, the
front of the round ruptures, releasing its contents. Ferret
rounds are often used to deploy CS gas indoors or in areas
where flammable materials are present, because there is little
risk of fire from the round. Another type of CS gas round in
HRT's inventory at Waco was the M-651, or ``military'' round.
Inside the M-651's metal projectile, a fuse ignites a chemical
mixture a short time after the round is fired, propelling CS
gas from its base.\23\ The pyrotechnic M-651 round is the
preferred round for use when flammability is not a concern, as
it expels a large cloud of visible CS gas and can be used to
deny large areas to threats.
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\21\ The M-79 is a Vietnam War-era shotgun-like weapon that fires
40-milimeter, spin-stabilized rounds such as tear gas, buckshot, high
explosive, illumination and smoke.
\22\ A discussion of CS gas generally, and ferret rounds in
particular, can be found at H. Rept. No. 104-749 at 69-75.
\23\ ``Texas Rangers Division of the Texas Department of Public
Safety, Investigative Report Branch Davidian Evidence'' (September
1999) (exhibit 1).
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The emergency plans evolved over the course of the 51-day
standoff. The written plan was lengthened, and incorporated the
use of M728 Combat Engineering Vehicles (CEVs) on loan from the
Texas National Guard. The CEVs were equipped with mounted CS
gas spraying devices, which were to be used to insert CS gas
directly in the building through windows and through holes
punched in the walls. The plan continued to include the use of
M-79 grenade launchers to launch ferret rounds through the
doors and windows.
2. The Proposed Operations Plan
As it became clear that the standoff with the Davidians
could be a protracted one, a formal, written operations plan
was drafted under the direction of FBI SAC Jeff Jamar and HRT
Commander Richard Rogers.\24\ As was the case with the
emergency plan, the operations plan was sent up the FBI's chain
of command, except this time it was presented to Attorney
General Janet Reno.
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\24\ Interview with Richard Rogers, former Assistant Special Agent
in Charge and Commander, HRT, FBI in Phoenix, AZ (Aug. 9, 2000).
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Several earlier versions had been drafted and proposed, and
these earlier versions provided for immediate insertion of tear
gas by the combined use of CEVs with boom-mounted gas cylinders
along with ferret rounds shot into every opening into the
compound. These earlier versions were not approved.
The FBI's proposed operations plan, as submitted and
approved by Attorney General Janet Reno, described what was to
occur on April 19, 1993, in the following manner:
On order, two CEVs will enter the compound inside the
concertina wire prior to sunrise. One CEV will
penetrate the structure on the 1st floor, at the White/
Green corner utilizing the boom and project tear gas
via the Mark 5 delivery system secured to the boom.
After delivery, the CEV will retreat from the structure
and stand-by. The second CEV will stand by and upon
retreat by the 1st CEV, will insert additional tear gas
into the 2nd floor of the White/Green corner. Prior to
the entry of the CEVs, the BVs [Bradley Fighting
Vehicle, a type of armored personnel carrier] will be
engaged in routine spotlight maintenance. Upon delivery
of the tear gas by the CEV, a BV on the Green side will
deliver Ferret liquid tear gas rounds into the top of
the black covering on the unfinished and unoccupied
construction in order to deny access in this area. If
firing commences from the Compound, the BVs will be
prepared to deliver Ferret liquid tear gas rounds into
all windows/openings in the compound structure. If all
subjects fail to exit the compound structure after 48
hours of tear gas, then, on order, a modified CEV will
proceed to open up/disassemble the structure at the
location where the structure was least gassed until all
subjects are located.\25\
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\25\ ``WACMUR: Major Case #80--Assault on a Federal Officer,''
briefing for the Attorney General at Bates Stamp No. WWC142-0441, 26
(Apr. 12, 1993) (exhibit 9).
The operations plan clearly outlines the tactics to be
employed. That is, the two CEVs would ``penetrate the structure
. . . utilizing the boom and project tear gas via the Mark 5
delivery system secured to the boom.'' The CEVs would insert
tear gas incrementally, and only one CEV would insert gas at a
time. Right after the CEVs first began inserting tear gas, a
Bradley would approach the ``unfinished and unoccupied''
tornado shelter and fire ferret rounds through the top. If the
Davidians fired at the HRT, then the HRT would shoot ferret
rounds into all openings in the compound.
The plan also details the type of tear gas to be used; the
CEVs would discharge tear gas from the cylinders mounted on
their booms and the HRT would be firing liquid ferret rounds.
There is no mention in the operations plan of the possibility
of using any pyrotechnic types of tear gas rounds.
3. Deviation in the Execution of the Plan
This plan, as approved by the Attorney General, bears
little resemblance to what actually occurred on April 19, 1993.
The plan antiseptically describes ``[o]ne CEV will penetrate
the structure . . . utilizing the boom and project tear gas.''
On April 19, 1993, HRT members operating the CEVs repeatedly
entered the structure at different points, causing damage to
the building far exceeding what one would expect from reviewing
the plan. One photograph shows holes in the compound walls that
exceeded the width of a CEV.\26\ The photograph also shows that
the gymnasium in the rear of the compound has collapsed and
entire sections of the first floor walls on the compound are
missing.
---------------------------------------------------------------------------
\26\ Exhibit 10.
---------------------------------------------------------------------------
At mid-morning on April 19, 1993, the CEV that was tasked
to insert gas into the Black side of the compound, designated
CEV-2, became disabled as it attempted to return to the T-
intersection to reload its CS cylinders. The driver and the
vehicle commander exited CEV-2 and entered a reserve CEV that
did not have the capability to inject CS gas. This CEV returned
to the Black side, and was ordered to open up a path to the
area around the base of the tower for CEV-1.\27\ This was an
area that the HRT commander believed had not had any tear gas
inserted.\28\ The path to the tower between the swimming pool
and the gymnasium was not much wider than a CEV, so CEV-2's
commander opted to push through the walls of the gymnasium
rather than risk collapsing the side of the pool with the
weight of his vehicle. CEV-2 repeatedly entered the gymnasium
until the structure collapsed a short time before noon. During
their interviews with committee staff, the tank commander and
the on-site commander both claimed that this collapse was an
accidental result of their attempts to insert tear gas in the
tower area, and not a deliberate attempt to demolish the
building.\29\
---------------------------------------------------------------------------
\27\ Interview with Jim Walden, Special Agent, FBI, in Washington,
DC (Dec. 10, 1999).
\28\ Interview with Richard Rogers, former Assistant Special Agent
in Charge and Commander, HRT, FBI, in Phoenix, AZ (Aug. 9, 2000).
\29\ Interview with Jim Walden, Special Agent, FBI, in Washington,
DC (Dec. 10, 1999); interview with Jeff Jamar, former Special Agent in
Charge, FBI, in Austin, TX (Feb. 16, 2000).
---------------------------------------------------------------------------
The operations plan did include a provision for the
demolition of the compound, but only after 48 hours of
deliberate gas insertion. Nonetheless, the gymnasium was
demolished less than 6 hours after the HRT implemented their
operations plan.
4. Foreknowledge of Need to Deviate from the Plan
Of concern to the committee is why the possibility of
early, serious structural damage to the compound was not put
forth in the operational plan. The shoddy nature of the
construction of the compound was well known to the FBI, and
concerns had previously been noted concerning its fragility,
especially the gymnasium's:
HRT has talked to military engineers and have developed
information regarding the construction of the compound.
It is not of good quality. Information has been
obtained from individuals who have worked in the
compound regarding construction. They believe that if
they use the rail on the CEV to penetrate into the
white side, the result will be a peeling away of the
siding exposing the rooms on that side. They anticipate
the roof will remain intact [sic] The construction of
the black side (gym) is not of good quality. It is
believed that the same type of activity directed toward
the gym will result in the collapse of the roof. HRT
advised that they have on occasion ``bumped'' the
compound using the CEVs and it is not very stable.\30\
---------------------------------------------------------------------------
\30\ Memorandum from Danny Coulson, former Deputy Assistant
Director, FBI, undated, 2, at Bates Stamp No. WWC130-0247 (exhibit 11).
Despite the foreknowledge of the poor quality of the
construction, and despite the fact that the operational plan
did not call for a systematic ``disassembly'' of the compound
until after 48 hours had elapsed, the gymnasium was demolished
within 6 hours of the implementation of the plan.
Jeff Jamar, the on-scene commander at Waco, claimed in his
deposition taken in preparation for the civil trial that he had
the discretion to allow deviations from the operational plan:
Q. My question is, is it your testimony that there was
a specific reference contained in the plan of
operations, the written plan of operations that was
approved for April 19, 1993, that permitted you the
authority to order penetration of the building with
more than simply the tear gas insertion booms?
A. . . . Yes, that was part of my discretion as--in
implementing plan was to do that, yes.\31\
---------------------------------------------------------------------------
\31\ Transcript of Deposition of Jeffrey Jamar, former Special
Agent in Charge, FBI, at 6-10:48, Andrade v. Chojnacki (W.D. Tex. Mar.
15, 2000) (No. W-96-CA-139) (exhibit 12).
The court, in the civil litigation arising from the issues
centering on the FBI's deviation from its operational plan,
---------------------------------------------------------------------------
agreed:
FBI agents operating the military vehicles inserted
tear gas in accordance with the approved Plan of
Operations on April 19, 1993. Because the plan could
not provide for every contingency, it necessarily
afforded discretion to the FBI agents on the scene to
adapt to the evolving conditions, including, among
other things, the failure of the Davidians to leave the
building, the relative ineffectiveness of the tear gas
due to the wind and the Davidians' gas masks, and the
possibility that certain individuals were prevented
from leaving because the exits were barricaded. Any
deviation from the written plan was within the
authority delegated to the agents on the scene.\32\
---------------------------------------------------------------------------
\32\ Findings of facts and conclusions of law at 9, Andrade v.
Chojnacki (W.D. Tex. Sept. 20, 2000) (No. W-86-CA-138) (exhibit 13).
The on-scene commander clearly felt he had the implied, if not
explicit, authority to deviate from the operational plan, and
the court ultimately came to the same conclusion.
Of interest to the committee, however, is that earlier,
more aggressive proposed operational plans which allowed for
immediate and total tear gas bombardment from M-79 grenade
launchers along with CEVs were not approved by FBI headquarters
personnel from Washington, DC.\33\ The plan as approved for
April 19, 1993, allowed only incremental increases in tear-
gassing. Only if the Davidians fired at the HRT was the gassing
to be accelerated, and the M-79s employed.
---------------------------------------------------------------------------
\33\ Transcript of Deposition of Jeffrey Jamar, former Special
Agent in Charge, FBI, at 2-10:31, Andrade v. Chojnacki (W.D. Tex. Mar.
15, 2000) (No. W-86-CA-138) (exhibit 12).
---------------------------------------------------------------------------
This appears to have been a self-fulfilling prophecy, as
Jamar told committee staff he believed the Davidians would
start shooting as soon as the HRT approached the compound with
the CEVs. It is an issue of serious concern that the plan, as
executed, was more aggressive and destructive than the plan
that was approved, and resembled closely earlier plans which
had not been approved.
B. The Use of Pyrotechnic Devices on April 19, 1993
1. No Contingency for Use of Pyrotechnic Rounds
The FBI's operations plan did not include as a contingency
the use of pyrotechnic M-651 rounds against the Branch
Davidians. The plan only referred to the use of ferret tear gas
rounds and the use of CEVs modified to insert tear gas from
boom-mounted cylinders.\34\ No mention was made concerning the
possible use of M-651s in the proposed operation plan given to
the Attorney General.\35\ Further, the plan mentioned the need
to insert tear gas into the outdoor tornado shelter, but only
with ferret rounds:
---------------------------------------------------------------------------
\34\ ``WACMUR: Major Case #80--Assault on a Federal Officer,''
briefing for the Attorney General at Bates Stamp No. WWC142-0441 (Apr.
12, 1993) (exhibit 9).
\35\ Id.
Four Bradley Vehicles (BV) will be positioned around
the compound ready to supplement the CEV in gas
delivery, if needed. One of the four BV's will insert
Ferret liquid tear gas rounds into the black covering
of the new unoccupied construction on the green side
immediately after the introduction of tear gas into the
previously referenced white/green section of the
compound structure.\36\
---------------------------------------------------------------------------
\36\ Id. at Bates Stamp No. WWC142-0440.
Moreover, HRT personnel were aware that the use of ferret
rounds against the unfinished tornado shelter would likely
---------------------------------------------------------------------------
prove ineffective:
THE UNFINISHED AREA OF THE COMPOUND ON THE GREEN SIDE
WILL BE THE TARGET OF CS INTRODUCTION USING THE M-79
GRENADE LAUNCHERS. IT DOES NOT APPEAR TO BE POSSIBLE TO
USE HAND HELD CANISTERS TO ENGAGE THIS PART OF THE
COMPOUND. THERE IS SOME QUESTION AS TO WHETHER THE
FERRET WILL PENETRATE THE TARPAPER-COVERED PORTION OF
THE UNFINISHED AREA. (DUE TO THE ANGLE), SOME OR ALL
FERRETS MAY NOT PENETRATE. THE INTRODUCTION OF CS INTO
THE WHITE GREEN COVER SHOULD GIVE SOME COVERAGE OF THE
TRAP DOOR ENTRANCE TO THE TUNNEL, THUS DENYING SUBJECTS
ACCESS TO THE TUNNEL AND THE UNDERGROUND BUS. THERE IS
SOME INDICATION THAT THIS PORTION OF THE COMPOUND IS
FLOODED.\37\
---------------------------------------------------------------------------
\37\ See memorandum from Danny Coulson, former Deputy Assistant
Director, FBI, undated, at Bates Stamp No. WWC130-0247 (exhibit 11).
It is obvious that there was prior awareness on the part of the
HRT that ferret rounds were likely to be ineffective against
the roof of this structure. Why the operations plan failed to
describe the possible need to use a more dangerous round
remains a troubling question.
2. Use of Pyrotechnic Rounds
On April 19, 1993, HRT member David Corderman fired ferret
rounds from a Bradley Fighting Vehicle using an M-79 grenade
launcher at the shelter from the White/Green corner. Since he
was shooting at a downward and shallow angle, the ferret
projectiles merely bounced off the roof.\38\
---------------------------------------------------------------------------
\38\ Interview with David Corderman, Special Agent, FBI,
Washington, DC (Nov. 4, 1999).
---------------------------------------------------------------------------
At approximately 8 a.m., Corderman asked for approval to
use M-651 tear gas rounds on the shelter's roof. The request
went up the HRT's chain of command to HRT commander Richard
Rogers, who granted permission.\39\ Portions of these
conversations are clearly audible on the overhead FLIR tapes:
---------------------------------------------------------------------------
\39\ Interview with Richard Rogers, former Assistant Special Agent
in Charge and Commander, HRT, FBI in Phoenix, AZ (Aug. 9, 2000).
[``HR 1'' is Richard Rogers, Commander of the HRT. ``HR
2'' is Stephen McGavin, Supervisory Special Agent,
---------------------------------------------------------------------------
HRT.]
7:48:55 a.m. (4/19/93)
HR 2. HR 2 to HR 1.
HR 1. Go ahead, it's HR 1.
HR 2. [unintelligible] supplying Charlie 1
[unintelligible] with relative safety utilizing the
vehicle for cover and attempt to get [unintelligible]
penetrate the construction project.
HR 1. You're talking about the block over top the
construction?
HR 2. Say again, HR 1.
HR 1. Are you saying he can penetrate the block
covering over the construction on the green side?
HR 2. Ten-four. He thinks he can get into position with
relative safety utilizing the track for cover and
attempt to penetrate it with military rounds.
HR 1. Roger. Of course, if there's water underneath
that's just going to extinguish them but you can try
it.
HR 2. Ten-four. Copy. He can try it?
HR 1. Yeah, that's affirmative.
8:08 a.m. (4/19/93)
Charlie 1. Charlie TOC to HR 1.
[Pause]
CHARLIE 1. YEAH, THE MILITARY GAS DID NOT PENETRATE
THAT, UH, BUNKER WHERE THE BUS WAS. COPY.
[Pause]
CHARLIE 1. IT BOUNCED OFF.\40\
---------------------------------------------------------------------------
\40\ Transcript of FBI FLIR Tape (Apr. 19, 1993) (exhibit 14).
Corderman told committee staff that he fired two or three
M-651 rounds. These rounds also bounced off the roof. A
photograph from an FBI surveillance plane shows a small cloud
of white smoke near the outdoor structure.\41\ Corderman
identified this photograph to committee staff as depicting the
effects of the military round that he fired.\42\ Corderman
stated that he used the M-651 round because he thought this
heavier metal projectile would be more likely to penetrate the
shelter roof than the lighter, plastic ferret projectile.
---------------------------------------------------------------------------
\41\ Exhibit 15.
\42\ Interview with David Corderman, Special Agent, FBI, in
Washington, DC (Nov. 4, 1999); interview with David Corderman, Special
Agent, FBI, in Washington, DC (Apr. 13, 2000).
---------------------------------------------------------------------------
The HRT personnel at Waco did not consider the fact that
Corderman fired military tear gas rounds extraordinary. All HRT
personnel were interviewed by the FBI soon after the fire and
none of them mentioned the use of M-651 rounds because none of
them had been asked if such rounds had been used. In November
1993, when HRT members were again interviewed, this time by
Department of Justice prosecutors preparing for trial, Rogers
and other HRT members readily admitted that M-651s had been
used.\43\ By their accounts, none thought it significant and
they did not recall any response from the Justice Department
prosecutors at that time.\44\
---------------------------------------------------------------------------
\43\ Interview with Richard Rogers, former commander, HRT, FBI, in
Phoenix, AZ (Aug. 9, 2000).
\44\ Id.
---------------------------------------------------------------------------
Curiously enough, in addition to the fact that the
possession and eventual use of M-651 rounds were never
mentioned in the operational plan, neither was the fact that
the Bradleys also contained high explosive (HE) rounds for the
M-79 grenade launchers. Although no evidence whatsoever has
been found that these rounds were fired on April 19, 1993,
their existence for use as a contingency should have been
explicit in the operational plan.
3. Disappearance of the Pyrotechnic Rounds
An issue that has long plagued the Waco civil litigants as
well as law enforcement officials concerns the whereabouts of
the expended M-651 projectiles. The rounds were known to have
been fired, one was photographed, another was seen on the
ground shortly after the fire, but none were ever logged in as
evidence by the Texas Rangers or the FBI.
Shortly after the end of the fire, evidence technicians
from both the FBI and the Texas Department of Public Safety
took over the crime scene to collect and inventory all
evidence. A few days after April 19, 1993, a photographer for
the Texas Department of Public Safety took photographs of an
expended M-651 projectile.\45\ Adjacent to the round in the
photograph is what appears to be the wire shaft of a flag used
to mark objects to be inventoried into evidence.\46\ However,
the evidence log maintained by the Texas Rangers shows no entry
for this projectile.\47\
---------------------------------------------------------------------------
\45\ Interview with Joey Gordon, Sergeant, Texas Rangers Division,
Texas Department of Public Safety, in Ft. Hood, TX (Mar. 19, 2000).
\46\ See ``Texas Rangers Division of the Texas Department of Public
Safety, Investigative Report Branch Davidian Evidence,'' attachment I
(September 1999) (exhibit 1).
\47\ ``Texas Rangers Division of the Texas Department of Public
Safety Investigative Report #2 Branch Davidian Evidence'' (January
2000) (exhibit 16).
---------------------------------------------------------------------------
Wallace Higgins, an FBI Hazardous Devices and Explosives
Examiner for the FBI's Explosives Unit, told committee staff
that he observed two M-651 projectiles at the crime scene
following the fire. One was in water and he couldn't see the
end of it in order to determine whether or not it was live.
Borrowing a .45 pistol from a Texas Ranger, he shot at it
twice, hitting it and denting the projectile. According to
Higgins, this was a ``render safe'' action that was done in
order to determine if the round was still live. The round did
not initiate; indicating it had been fired and activated
previously. This round was found between the silo and the
outdoor tornado shelter.\48\
---------------------------------------------------------------------------
\48\ Telephone interview with Wallace Higgins, former Special
Agent, FBI (Oct. 2, 2000).
---------------------------------------------------------------------------
Higgins found a second round in the dirt near the
underground walkway, which abutted the tornado shelter. Higgins
determined that the round had been expended and he left it in
place. Higgins recalled that he told someone on the FBI
evidence collection team about the rounds. However, he wasn't
certain whether it was Rick Crum, an FBI firearms expert, or
James Cadigan, the on-scene leader of the FBI's evidence
collection team. Higgins further recalled that he didn't
believe the rounds were still present on the ground by the time
that the evidence collection was finished. Higgins stated he
did not know what became of the rounds. He acknowledged that
the FBI laboratory subsequently erred in labeling certain 40
millimeter flashbang rounds at the crime scene as M-651s, but
the rounds he saw near the compound were M-651s and not
flashbang rounds.\49\
---------------------------------------------------------------------------
\49\ Id.
---------------------------------------------------------------------------
FBI Special Agent James Cadigan, who led the on-scene
evidence collection for the FBI, stated to committee staff that
he arrived at Waco on April 19, 1993. Cadigan stated that his
expertise is in small arms identification, up to and including
.50 caliber weapons, but not larger ordinance such as 40mm
rounds. When Cadigan arrived at the crime scene, the rubble
from the compound was still smoldering. Within 24 hours he met
with members of the ATF, Texas Rangers, and Federal prosecutors
Ray and LeRoy Jahn. They established a protocol to divide the
crime scene into grids. The Jahns told him the Texas Rangers
were in charge of the evidence search. Cadigan became the
administrative person on the site. He was primarily located at
a mobile home brought to the compound, where he was responsible
for locating equipment to be used by the evidence collection
teams. Cadigan stated that he never observed any M-651s at the
site. Cadigan recalled that some time after the fire, the Texas
Rangers shipped a truckload of evidence to the FBI lab in
Washington, DC. Federal prosecutors Ray and LeRoy Jahn, along
with John Lancaster and, possibly, John Phinizy, reviewed each
item at the lab for its probative value. The prosecutors logged
probative value items, or those that might be used at trial,
and sent the non-probative items back to the Texas Rangers.
Cadigan also acknowledged that the FBI laboratory had
misidentified certain 40mm flashbang rounds as M-651s.\50\
---------------------------------------------------------------------------
\50\ Interview with James Cadigan, Supervisory Special Agent, FBI,
in Washington, DC (Oct. 3, 2000).
---------------------------------------------------------------------------
The Texas Rangers collected and stored the evidence from
the compound at two primary sites. Items that might be used at
the criminal trial in 1994 were stored at a large locker at the
Texas Department of Public Safety in Austin, TX. In 1999, the
Texas Rangers searched this area and found no military tear gas
projectile. The other site was a warehouse in Waco, TX. This
site contained many large, locked Conex containers. These
containers were filled with hundreds of five gallon sealed
drums; most of which contained hundreds of thousands of rounds
of ammunition from the Branch Davidian compound, many of which
had ``cooked off'' in the fire.
On November 17 and 18, 1999, the Texas Rangers and U.S.
Postal Inspectors working for the Office of Special Counsel
conducted an exhaustive hand search of the many tons of
physical evidence stored at the warehouse in Waco.\51\ The
search failed to produce any military tear gas rounds. Only the
photograph of the projectile was found in the inventory.\52\
---------------------------------------------------------------------------
\51\ Committee staff were present and participated in this search.
\52\ The search did produce the remains of 40mm illumination
rounds, presumably fired over the compound to illuminate the area prior
to the installation of search lights.
---------------------------------------------------------------------------
C. Allegations of government gunfire on April 19, 1993
The tragic outcome of the FBI's attempt to end their
standoff with the Branch Davidians has been understandably
difficult for most, if not all, Americans to comprehend. The
fact that approximately 80 men, women and children did not flee
tear gas and flames, and instead met gruesome deaths, has led a
large cross section of the American public to suspect that the
government somehow prevented the Davidians from escaping their
residence on April 19, 1993. These suspicions have centered on
the allegation that HRT or military personnel fired upon the
Davidians both before and during the fire.
These suspicions have been further raised by troubling
evidence brought to light during the discovery process in a
wrongful death lawsuit and by independent investigators,
Freedom of Information Act plaintiffs, and other private
parties. This evidence includes:
LAn FBI witness statement given by an HRT member that
states that the agent ``heard shots fired from sniper position
#1.'' \53\
---------------------------------------------------------------------------
\53\ FBI telephone interview with Charles Riley, Special Agent,
FBI, 2 (June 2, 1993) (exhibit 17).
LSpent shell casings recovered from the FBI sniper
---------------------------------------------------------------------------
position.
LInfrared footage taken by an FBI surveillance
airplane on April 19, 1993, which to many viewers appears to
include images of muzzle blasts directed at the rear of the
compound.
One example of such an image on the FLIR tape, pointed out by
documentary filmmaker Michael McNulty, concerned what appeared
to be dark forms located directly behind CEV-2, which was
making repeated entries into the gymnasium located on the back
side of the compound. Flashes appeared on the FLIR tape from
the edges of the forms, which McNulty alleged represented
automatic gunfire from government agents located immediately
behind CEV-2.\54\ Dr. Allard, a FLIR expert retained by the
plaintiffs in the civil case, described this event:
---------------------------------------------------------------------------
\54\ See ``Waco: The Rules of Engagement'' (Fifth Estate
Productions, 1997) and ``Waco: A New Revelation'' (MGA Films, 1999).
A tank (CEV) was used to smash into a building before
the complex fire. As the tank approached the building,
two appeared on the videotape behind the tank. They
rolled over and began shooting into the building with
automatic gunfire. (The airborne FLIR recorded only
part of the operation). A short time later, the tank
backed out of the building. Standing behind the tank
were three men. The tank appeared to roll over the men,
as they disappeared under the tank. It stopped for a
few seconds, turned, and left the scene. No men were
observed after the tank left the scene. The men had to
enter and leave the tank through its bottom escape
hatch.\55\
---------------------------------------------------------------------------
\55\ Edward Allard, ``Preliminary Analysis of the Waco FLIR Tapes''
5 (Aug. 30, 1999) (exhibit 18).
---------------------------------------------------------------------------
1. Sites Manned by the FBI
By April 19, 1993, the HRT had occupied various
outbuildings and other sites around the compound for nearly 51
days. Immediately following the failed BATF raid on February
28, 1993, HRT personnel had taken over two pre-existing
observation and sniper sites that had been used by the BATF on
February 28, 1993. These sites provided cover for the agents
while affording them a fairly unobstructed view of the
compound. Both of these sites were fortified by the HRT. These
sites were designated by the HRT as ``Sierra One'' and ``Sierra
Two.'' Sierra One was a house across the Double EE Ranch Road
from the compound. The driveway leading from the compound
entered the road almost directly in front of the house. Sierra
One, and the house next to it (designated ``Sierra One Alpha'')
were less than 300 yards from the compound and allowed full
observation of the entire front or ``white'' side.
Sierra Two was a cinderblock garage located several hundred
yards behind or on the black side of the compound. Between the
two locations, HRT personnel had direct views of the white and
black sides of the compound, with peripheral views of the red
and green sides. These locations were provided with spotting
scopes, rifle scopes and night vision equipment.
By early March 1993, HRT had heavily fortified both Sierra
One and Sierra Two with sandbags and metal plates. Both sites
had machine-gun emplacements as well as sniper/observer
positions. As additional protection from attack, these sites
had seismic sensors, on loan from the U.S. Special Operations
Command (USSOCOM), placed around them.\56\ These proved of
little value, however, as cattle and deer often set the sensors
off.
---------------------------------------------------------------------------
\56\ Interviews with 10 current and former USSOCOM Army Special
Forces personnel at Ft. Bragg, NC; Raleigh, NC; and Washington, DC. The
identities of these individuals remain classified by the Department of
Defense.
---------------------------------------------------------------------------
In order to more effectively monitor the right, or red side
of the compound, HRT members constructed a new sniper position,
designated ``Sierra Three,'' up the driveway approximately 180
yards from the white/red corner. This position consisted of a
trench fortified by metal plates and sandbags. It was occupied
only part-time when HRT members needed to monitor special
events. The HRT also constructed dummy sites on the red side to
deceive the Davidians as to the snipers' true location.\57\
Three HRT snipers manned Sierra Three on April 19, 1993.\58\
---------------------------------------------------------------------------
\57\ Interview with Kenneth G. Vincent, Special Agent, FBI,
Washington, DC (Apr. 12, 2000).
\58\ Id.
---------------------------------------------------------------------------
FBI agents from various FBI field office SWAT teams were
also located on the left, or green side of the compound along a
driveway that ran roughly parallel to the green side, on the
neighboring Perry ranch. Personnel were stationed along this
road, approximately 550 yards from the green side. This
location was designated ``Sierra Four.'' There was also an
outer perimeter, consisting of roadblocks and other positions
manned by various Federal, State and local law enforcement
agents, including the BATF and FBI SWAT. This outer perimeter
had been manned since the early days of the standoff.
In addition to manned sites, HRT personnel observed the
Davidians through various technical devices, which the HRT
obtained from U.S. Special Operations Command. Two remotely
operated closed circuit TV cameras were placed; one on the
green side and one on the red.\59\ In addition, a thermal
imager, also on loan from U.S. Special Operations Command, was
placed on top of a water tower at an intersection of the Double
EE Ranch Road and Elk Road, situated on the red side of the
compound.\60\ These devices, coupled with transmissions from
several bugging devices inside the compound, allowed fairly
close observation of the compound as well as intelligence from
inside the compound.
---------------------------------------------------------------------------
\59\ Interviews with 10 current and former USSOCOM Army Special
Forces personnel at Ft. Bragg, NC; Raleigh, NC; and Washington, DC. The
identities of these individuals remain classified by the Department of
Defense.
\60\ Id.
---------------------------------------------------------------------------
In spite of the HRT's 360-degree coverage, and in spite of
the hundreds of other law enforcement officers surrounding the
Davidians, two individuals had been able to enter the compound
undetected during the standoff.\61\ In addition, the FBI had
prohibited the Davidians from exiting their building without
first obtaining permission. However, several times during the
standoff, Davidians went outside unannounced and HRT members
fired 40mm ``flashbang grenades'' over the Davidians'
heads.\62\
---------------------------------------------------------------------------
\61\ ``WACMUR: Major Case #80--Assault on a Federal Officer,''
briefing for the Attorney General at Bates Stamp No. WWC142-0433. (Apr.
12, 1993) (exhibit 9).
\62\ Although these rounds are pyrotechnic in nature, none are
known to have been fired on Apr. 19, 1993.
---------------------------------------------------------------------------
In order to prevent continued unauthorized entries and
exits, HRT members had erected a concertina (razor wire) fence
on April 10, 1993,\63\ which encircled the compound except for
an opening on the driveway off the white/red corner of the
compound. The fence, remnants of which remain at Mt. Carmel
today, consisted of two stacked rolls of concertina wire,
supported by metal posts. It was constructed by the HRT
utilizing various armored vehicles as cover from potential
gunfire from the compound. The fence was approximately 5 to 6
feet high and followed the contours of the compound, at a
distance anywhere from 15 to 25 yards.\64\
---------------------------------------------------------------------------
\63\ ``WACMUR: Major Case #80--Assault on a Federal Officer,''
briefing for the Attorney General at Bates Stamp No. WWC142-0437 (Apr.
12, 1993) (exhibit 9).
\64\ FBI aerial photograph with outline of fence as described to
committee staff by Steve McGavin, former Deputy Commander, HRT, FBI
(exhibit 19).
---------------------------------------------------------------------------
During the operation of April 19, 1993, all HRT sites were
manned, allowing close observation of the compound from all
sides. Committee staff interviewed individuals from all
positions. All consistently stated that not one government
agent fired any gunshots at the compound. Numerous photographs
and numerous videotapes taken of the compound from all angles
were examined. None showed any government personnel on foot in
close proximity to the compound, except for those that were
involved in rescuing Davidians from the burning structure.
2. Gunfire from HRT Sniper Position
Two houses across the Double EE Ranch Road from the Mt.
Carmel Center were manned both by BATF snipers on February 28,
1993, and by HRT snipers (who designated the two houses Sierra
One and Sierra One Alpha, as described above) throughout the
51-day standoff. The BATF snipers had been armed with .308
caliber sniper rifles as well as .223 caliber assault rifles,
and admitted firing both during the February 28, 1993 shoot-
out. The HRT snipers who manned the same positions throughout
the standoff were armed with the same types of weapons, but
denied ever firing them.
On April 20, 1993, an HRT member who had been stationed at
the Sierra One sniper position handed over to the Texas Rangers
11 .308 caliber shell casings and 24 .223 caliber shell casings
which the HRT member stated he had found at Sierra One.\65\ On
April 22, 1993, Texas Rangers searched the houses. Pursuant to
this search, the Rangers sifted through sand found throughout
the house (which had apparently leaked from sandbags used to
fortify the sniper position) and found an additional .308
caliber shell casing.\66\ The presence of spent shell casings
at the sniper position as late as April 22, 1993, raised the
disturbing possibility that the FBI had fired from the position
on April 19, 1993, or sometime during the standoff.
---------------------------------------------------------------------------
\65\ ``Criminal Law Enforcement Division of the Texas Department of
Public Safety, Report of Investigation,'' RF093021-U.12, at 3 (May
1993) (exhibit 20).
\66\ ``Texas Rangers Division of the Texas Department of Public
Safety, Investigative Report #2 Brance Davidian Evidence'' at 3, 4
(January 2000) (exhibit 16). (Pages are not numbered in text).
---------------------------------------------------------------------------
Despite this possibility, firing pin and ejector
impressions on the shell casings were not compared with test
firings of BATF weapons until this year, by the Office of
Special Counsel. The Special Counsel found that the shell
casings found on April 20 and 22, 1993, matched BATF weapons
used on February 28.\67\ In light of this evidence, a claim in
the civil suit was withdrawn by the plaintiffs.\68\
---------------------------------------------------------------------------
\67\ John C. Danforth, Special Counsel, U.S. Department of Justice,
``Interim Report to the Deputy Attorney General Concerning the 1993
Confrontation at the Mt. Carmel Complex,'' 15 (July 21, 2000).
\68\ Id. See also Andrade Plaintiffs' motion to dismiss claims with
prejudice against Lon Horiuchi. (W.D. Tex., Mar. 30, 2000) (No. W-86-
CA-138) (exhibit 21).
---------------------------------------------------------------------------
Another indication that HRT personnel may have fired from
Sierra One on April 19, 1993, was the notes of an FBI interview
with Charles Riley, a former HRT member who was positioned at
Sierra Three on April 19, 1993. Supervisory Special Agent Gail
Seavey, who conducted the interview, wrote that, on April 19,
1993, Riley ``heard shots fired from sniper position #1.'' \69\
Riley stated that he did not review this statement prior to its
final draft, but that he had been misunderstood. Riley later
clarified that he had heard a radio report from Sierra One that
someone at that position had witnessed gunfire from within the
compound.\70\
---------------------------------------------------------------------------
\69\ FBI telephone interview with Charles Riley, Special Agent,
FBI, 2 (June 2, 1993) (exhibit 17).
\70\ FBI telephone interview with Charles Riley, Special Agent,
FBI, 1 (Nov. 19, 1996) (exhibit 22).
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3. Allegations that FLIR Tape Depicted Muzzle Flash
During the standoff, the FBI employed various aircraft for
observation purposes. In addition to small fixed wing aircraft
and helicopters, the FBI utilized their primary observation
plane known as the Nightstalker. This plane was equipped with a
Forward Looking Infrared imager or ``FLIR,'' essentially a
video camera which films in the infrared range. Since it
measures in this range, the plane is useful in low light and
nighttime conditions.
At Waco, the Nightstalker was often employed to circle the
compound during the evening hours in order to detect
unauthorized entries or exits. Since the FLIR operators had
video monitors as well as recorders onboard, FLIR operators
could make real-time observations and communicate with the HRT
commanders. The FLIR recorders on the plane recorded on two
tapes, allowing the operator to switch to another tape when the
first tape ran out, without ceasing to record. This created
some overlap at times.\71\ On April 19, 1993, the plane also
provided daytime overhead surveillance to monitor the execution
of the HRT's tear gassing plan. On April 19, 1993, the plane
circled the compound for periods of time, landed and refueled
at a nearby airport, then returned to the compound. As a
result, several FLIR videotapes were made, some of which
overlapped. Certain portions of FLIR tapes, one starting at
10:41 a.m. and ending at 12:16 p.m., and one starting at 12:16
p.m. and ending at 1:39 p.m., were analyzed by experts hired by
the committee.
---------------------------------------------------------------------------
\71\ Interview with Isaac Nakimoto, Special Agent, FBI, in
Washington, DC (Dec. 15, 1999).
---------------------------------------------------------------------------
The committee retained Dr. Donald Frankel, of Photon
Research Associates in Newton, MA, to perform an analysis of
the FLIR tapes from April 19, 1993, and from the planned March
19, 2000, FLIR test at Ft. Hood, TX. His report, attached as
exhibit 8, focused on analyzing four segments of FLIR tape from
April 19, 1993. The four segments that Dr. Frankel analyzed
were selected because three out of the four contained footage
that the plaintiffs in the civil litigation had asserted
represented muzzle flashes.\72\ The first segment, as discussed
earlier in this report, contained the FLIR footage that
depicted flashes from directly behind the CEV that was
penetrating the gymnasium at the rear of the compound.\73\ The
second segment contained what appeared to be bright flashes at
the corner of the gymnasium.\74\ The third segment contained
flashes appearing to the left of the CEV.\75\ The fourth
segment contained a flash located in the center of the
courtyard.\76\
---------------------------------------------------------------------------
\72\ Edward Allard, ``Preliminary Analysis of the Waco FLIR Tapes''
(Aug. 30, 1999) (exhibit 18).
\73\ FLIR tape #3, local time 11:24:11, tape counter 00:37:36.
\74\ FLIR tape #3, local time 12:08:31, tape counter 01:21:54.
\75\ FLIR tape #3, local time 12:08:51, tape counter 01:22:13.
\76\ FLIR tape #3, local time 12:10:55, tape counter 01:24:14.
---------------------------------------------------------------------------
In addition, on March 19, 2000, Special Counsel Danforth,
pursuant to an order of the civil trial court and with the
concurrence of the civil litigants, conducted a FLIR test at
Ft. Hood, TX, in an attempt to shed light on what, if any,
muzzle flashes were observable by the type of FLIR in use in
1993. The Department of Justice was initially reluctant, but
eventually consented to the test.\77\ The test protocols,
agreed to by all the parties in the civil suit, provided for
flying FLIR-equipped aircraft over a group of individuals
firing weapons of different calibers and firing rates. It also
provided for the creation of a ``rubble field'' which was
believed to approximate the construction debris found at the
compound late in the morning of April 19, 1993, when the FBI's
CEVs were forcibly penetrating the compound walls to insert
tear gas. The committee sent observers to this test. Both the
FLIR videotapes taken by the FBI's Nightstalker surveillance
airplane (utilizing a more advanced, digital version of the
FLIR camera in use in 1993) and a British Lynx helicopter
(utilizing the same model FLIR camera as used by the FBI in
1993) were obtained and analyzed by Dr. Frankel. These tapes
were then compared with the four segments of FLIR tape from
April 19, 1993.
---------------------------------------------------------------------------
\77\ Lee Hancock, ``Government Rejects Attorney's Effort to Test if
Agents Used Guns at Waco,'' the Dallas Morning News, Oct. 27, 1999
(exhibit 23).
---------------------------------------------------------------------------
In his 34-page report submitted to the committee on
September 11, 2000, Dr. Frankel concluded that the flashes
exhibited in the four tape segments referenced above could not
depict gunfire.\78\ Dr. Frankel drew three conclusions from his
analysis of the FLIR tapes. He first concludes:
---------------------------------------------------------------------------
\78\ Dr. Donald S. Frankel, Photon Research Associates,
``Assessment of Waco, Texas FLIR Videotape,'' 1 (Sept. 11, 2000)
(exhibit 8).
(1) The flashes seen on the tape during the four
critical time periods cannot be weapons muzzle flash.
Their duration is far too long and their spatial extent
is far too great. They are almost certainly the result
of solar energy or heat energy from nearby vehicles
reflected toward the FLIR by debris or puddles.\79\
---------------------------------------------------------------------------
\79\ Id.
Dr. Frankel's report breaks down the elements involved in
detecting muzzle flashes. Muzzle flashes have distinct spatial
and temporal characteristics.\80\ Frankel measured the spatial
proportions and the durations of the flashes found on the FLIR
tapes and compared the results with standard reference works in
the field.\81\ For example, a rifle firing the .308 caliber
NATO round (7.62mm) leaves a muzzle flash that is 0.4 meters
long and lasts for approximately 2 milliseconds.\82\ By
contrast, Dr. Frankel reported that the flashes seen on the
April 19, 1993 FLIR tape ranged from one tenth of a second to
over 1 second long.\83\
---------------------------------------------------------------------------
\80\ Id.
\81\ Id. at 5, 6.
\82\ Id. at 6.
\83\ Id. at 13-20.
(2) The FLIR video technology has a very low
probability of detecting small arms muzzle flash.\84\
---------------------------------------------------------------------------
\84\ Id. at 1.
Due to the limitations of the FLIR camera, events such as
muzzle flashes are of such short duration as to limit the
camera's chances of depicting muzzle flash. Since the FLIR
camera uses a scanning apparatus which scans the field of view
60 times per second, or any given point in the field of view
once every 16.67 milliseconds, shorter duration events such as
---------------------------------------------------------------------------
muzzle flash may not appear on the FLIR tape:
The FLIR video scanning arrangement described in the
previous section implies that the detector is observing
only a small part of the scene at any given instant.
For ordinary objects that persist for long periods of
time, the effect is not noticeable. For fast motion, it
results in blurring. For very brief events, such as
muzzle flash, it can result in the event being missed
entirely. . . . The FLIR camera scans a field in 1/60 s
[1/60 of one second]. During the 1 ms that a muzzle
flash is observable, the camera therefore scans only 6%
of the scene. This figure may be taken as a first order
approximation of the probability that the FLIR can
detect a small arms muzzle flash that occurs within its
field of view. This estimate does not take into account
the sensitivity of the camera, which may prevent muzzle
flash from ever being detected at useful ranges.\85\
---------------------------------------------------------------------------
\85\ Id. at 3.
Dr. Frankel's third conclusion concerns the possibility
that muzzle flash may have occurred, but wouldn't necessarily
---------------------------------------------------------------------------
be picked up on the FLIR:
(3) As a consequence of (2) above, the absence of
muzzle flash detection on the FLIR tape does not prove
that weapons were not actually fired during the final
assault. Indeed, there is ample evidence (not presented
here) that the Davidians were firing at the federal
agents throughout this period, but none of their muzzle
flashes are detectable on the videotape.\86\
---------------------------------------------------------------------------
\86\ Id. at 1.
Dr. Frankel then examines the four specific segments of
FLIR tape. The first segment, containing the purported flashes
---------------------------------------------------------------------------
behind the CEV, are measured temporally:
As Figure 7 shows, the ``rhythmic flashes last for
several tenths of a second (several hundred ms). Since
this is 50 to 100 times longer than the muzzle flash
from small arms lasts, these flashes cannot be muzzle
flash. They are most likely a reflection of the CEV
engine's hot parts, which themselves are clearly
visible in the videotape.\87\
---------------------------------------------------------------------------
\87\ Id. at 13.
The other three segments also contain flashes with duration
---------------------------------------------------------------------------
times that preclude them from being muzzle flashes:
[I]t is possible to state with 100% confidence that the
bright flashes that occur at the four 1993 time periods
covered by this report are not muzzle flash. They are
all far too long in duration to be muzzle flash.
Comparison with the re-enactment videos also indicates
that they are too bright compared to their
surroundings, and too great in spatial extent. The most
plausible sources for these flashes varies from case to
case, but include sunlight reflected from debris,
puddles of water, or window glass, and CEV engine hot
parts thermal radiation reflected from debris or
puddles of water. After the compound catches fire, it
is hard to discount burning construction material as
the source of flashes.\88\
---------------------------------------------------------------------------
\88\ Id. at 32, 33.
Although Dr. Frankel rules out that any of the four
segments depicted muzzle flash, that does not rule out the
possibility that muzzle flashes were present, but not recorded
---------------------------------------------------------------------------
by the FLIR:
Examination of the FLIR videotape of the last day of
the siege of the Branch Davidian compound fails to
identify any events that resemble the muzzle flashes
observed during the re-enactment. One might have hoped
that the apparent lack of muzzle flash would prove that
the FBI agents did not fire their weapons. But because
of the FLIR's low probability of muzzle flash
detection, it is not possible to make such a statement
with much confidence.\89\
---------------------------------------------------------------------------
\89\ Id. at 32.
It is extremely unlikely that anyone will ever be able to
prove, scientifically, that no government agent ever fired a
shot at the Davidians on April 19, 1993. The committee,
however, has not found sufficient evidence to support the
allegations that law enforcement or military personnel directed
gunfire toward the Branch Davidians on April 19, 1993.
V. Actions and Omissions of The Department of Justice Since 1993
A. Introduction
There is a stark contrast between what should have occurred
after the April 19, 1993, tragedy and what, in fact, did occur.
On April 20, 1993, President Clinton made the following clear
pronouncement:
I have directed the United States Departments of
Justice and Treasury to undertake a vigorous and
thorough investigation to uncover what happened and
why, and whether anything could have been done
differently. . . . Finally, I have directed the
departments to cooperate fully with all congressional
inquiries so that we can continue to be fully
accountable to the American people.\90\
---------------------------------------------------------------------------
\90\President William Clinton, remarks by the President in
question and answer session with the press in Washington, DC at 2 (Apr.
20, 1993) (exhibit 24).
Seven years later, Special Counsel Danforth explained what he
---------------------------------------------------------------------------
thought of the Justice Department investigation:
The failure of the Scruggs team to discover and report
that the FBI used pyrotechnic tear gas rounds was the
result of initiating the investigation with the
assumption that the FBI had done nothing wrong, was
inconsistent with the responsibility to conduct a
thorough and complete investigation, and was clearly
negligent.\91\
---------------------------------------------------------------------------
\91\ John C. Danforth, Special Counsel, U.S. Department of Justice,
``Interim Report to the Deputy Attorney General Concerning the 1993
Confrontation at the Mt. Carmel Complex, Waco, Texas'' 52 (2000).
Special Counsel Danforth's conclusions, and the conclusions
of this committee, show how empty the President's promise has
been.
Following the tragic deaths of the Branch Davidians on
April 19, 1993, Attorney General Reno asked her assistant,
former Federal prosecutor Richard Scruggs, to conduct an
investigation into the facts surrounding the tragedy.\92\
Justice Department officials later asked former Justice
Department official Edward Dennis, Jr.,\93\ to conduct an
analysis of those facts. The Department of Justice published
their respective findings on October 8, 1993.\94\ Both Scruggs
and Dennis stated publicly and during their interviews with
committee staff that their findings were based upon a complete
review of all relevant documents and interviews with numerous
Justice Department, Federal and State law enforcement
officials. Neither report, however, constituted a substantial
review of the evidence. The Justice Department investigations
were not as thorough as required by a tragedy of this
magnitude.
---------------------------------------------------------------------------
\92\ Interview with Richard Scruggs, Assistant U.S. Attorney,
Department of Justice, in Miami, FL (Jan. 5, 2000).
\93\ Dennis is a former U.S. Attorney and served as the Justice
Department's Assistant Attorney General (Criminal Division) during the
Bush administration. Dennis now practices law as a partner with the law
firm of Morgan, Lewis & Bockius.
\94\ Richard Scruggs, U.S. Department of Justice, ``Report to the
Deputy Attorney General on the Events at Waco, Texas, Feb. 28-Apr. 19,
1993,'' (Oct. 8, 1993) (unredacted version); Edward S.G. Dennis, Jr.,
U.S. Department of Justice, ``Evaluation of the Handling of the Branch
Davidian Stand-off in Waco, Texas'' (Oct. 8, 1993) (redacted version).
---------------------------------------------------------------------------
Critical Justice Department errors include failures to:
LConduct an outside, objective, independent analysis
of FLIR tapes to determine if Federal law enforcement officers
fired weapons other than M-79 grenade launchers on April 19,
1993--even after the plaintiffs in the tragedy-related civil
litigation challenged the actions of the FBI at the scene on
April 19, 1993,\95\ and despite the fact that line attorneys
within the Department of Justice argued for such an independent
analysis in 1997; \96\
---------------------------------------------------------------------------
\95\ Andrade v. Chojnacki, (No. W-96-CA-139) (W.D. Tex. 1994)
(civil litigation).
\96\ See memorandum from Phyllis Pyles, Assistant Director, Torts
Branch, Federal Torts Claim Act Section, (FTCA), Civil Division,
Department of Justice, to Thomas Kelley, Inspector--Deputy General
Counsel, Office of the General Counsel, FBI (Apr. 25, 1997); memorandum
from Helene Goldberg, Director, Torts Branch, Constitutional and
Specialized Torts Section, Civil Division, Department of Justice, to
Jeffrey Axelrad, Director, Torts Branch, FTCA, Civil Division,
Department of Justice (May 14, 1997); memorandum from Marie Hagen,
Trial Attorney, Torts Branch, FTCA, Civil Division, Department of
Justice, to Jeffrey Axelrad, Director, Torts Branch, FTCA, Civil
Division, Department of Justice and Pyles (May 29, 1997); memorandum
from Jeffrey Axelrad, Director, Torts Branch, FTCA, Civil Division,
Department of Justice, to Helene Goldberg, Director, Torts Branch,
Constitutional and Specialized Torts Section, Civil Division,
Department of Justice (May 29, 1997); memorandum from Jeffrey Axelrad,
Director, Torts Branch, FTCA, Civil Division, Department of Justice, to
Thomas Kelley, Inspector--Deputy General Counsel, Office of the General
Counsel, FBI (May 29, 1997) (exhibit 29); memorandum from Helene
Goldberg, Director, Torts Branch, Constitutional and Specialized Torts
Section, Civil Division, Department of Justice to Jeffrey Axelrad,
Director, Torts Branch, FTCA, Civil Division, Department of Justice,
(June 4, 1997); outline for June 5, 1997 meeting between staff of FTCA
and CSTL [sic] Branches, author unknown (exhibit 31); memorandum from
Jeffrey Axelrad, Director, Torts Branch, FTCA, Civil Division,
Department of Justice, to Thomas Kelley, Inspector--Deputy General
Counsel, Office of the General Counsel, FBI (Sept. 5, 1997).
LDisclose and explain the authorized use of
pyrotechnic devices by HRT next to the compound on the morning
---------------------------------------------------------------------------
of April 19, 1993;
LMention the HRT's possession of 40-millimeter high
explosive rounds during the siege;
LDetermine whether Attorney General Reno knew that
pyrotechnic devices were used on April 19, 1993;
LDetermine whether Attorney General Reno had knowledge
of the possible use of high explosive devices;
LDiscuss Attorney General Reno's rejection of the
FBI's proposed operations plans days before the fire and later
reversal;
LProvide a full accounting of the use of military
personnel and equipment;
LProduce final and complete reports of the events on
April 19, 1993; and
LProvide Congress with relevant information in a
timely manner.
Scruggs alleged that he conducted a thorough review of all
relevant documents and interviewed all Justice Department,
Federal and State law enforcement officials with knowledge of
the events on April 19, 1993:
What follows is an attempt to explain what actually
happened at the Branch Davidian compound between the
arrival of the FBI on February 28, and the aftermath of
the fire that occurred on April 19. . . . [W]e believe
this report to be accurate and based upon solid
evidentiary grounds; we expect additional details to be
revealed at trial. This report has been prepared with
the cooperation of literally hundreds of individuals.
Approximately 950 interviews were conducted, and tens
of thousands of pages of documents and transcripts were
read and analyzed.\97\
---------------------------------------------------------------------------
\97\Richard Scruggs, U.S. Department of Justice, ``Report to the
Deputy Attorney General on the Events at Waco, Texas, Feb. 28-Apr. 19,
1993,'' (Oct. 8, 1993) (unredacted version) at 12-14 (emphases added).
Dennis stated that he largely relied upon the facts
discovered and interviews conducted by Scruggs in order to
---------------------------------------------------------------------------
prepare his report:
To make this evaluation, I have reviewed the procedures
followed by the Department and the FBI, giving
particular attention to the means employed, the
alternatives considered and the decisions made in
attempting to resolve the stand-off.
I have not been called upon to conduct a de novo
factual inquiry. A comprehensive factual report is
being prepared by the Department and the FBI. I have
primarily relied upon the record gathered by the
Department as the basis for the conclusions in this
Report, supplemented by a number of follow-up
interviews. However, I am satisfied that the factual
inquiry by the Department was conducted in a thorough
and objective manner. . . . I have been afforded access
to documents gathered in that effort and to the reports
of interviews conducted for factual investigation. In
addition, since my appointment I participated in a
number of Department interviews. I have also conducted
independent interviews of some witnesses.\98\
---------------------------------------------------------------------------
\98\ Edward S.G. Dennis, Jr., U.S. Department of Justice,
``Evaluation of the Handling of the Branch Davidian Stand-off in Waco,
Texas'' (Oct. 8, 1993) (redacted version) at 1-2 (emphasis added).
Commenting in the fall of 1999 on the scope of his investigation,
however, Dennis stated that his report ``was not intended to be a
comprehensive, all-encompassing report.'' Stephen Labaton, ``Reno
Admits Credibility Loss in Waco Case,'' the New York Times, Aug. 27,
1999 at A18, col. 4 (exhibit 33).
It is troubling that the Waco tragedy did not seem to merit
a ``vigorous and thorough investigation.'' President Clinton
called for such an inquiry. Attorney General Reno promised that
such an inquiry would take place. Neither took the steps
necessary to make sure it would happen. Congress and the
American people demanded a ``vigorous and thorough'' analysis
of the events leading up to the tragedy. While Scruggs admitted
to committee staff that, at first, he believed that the FBI had
in fact committed some sort of error on April 19, 1993, he
changed his mind early in the investigation.\99\ An objective,
thorough analysis should have been the Justice Department's top
priority.
---------------------------------------------------------------------------
\99\ Interview with Richard Scruggs, Assistant U.S. Attorney,
Department of Justice, in Miami, FL (June 22, 2000).
---------------------------------------------------------------------------
B. What the American People Were Told Between 1993 and 1999
1. 1993-1994--the Department of Justice Conducts the Post-Tragedy
Investigation and the Criminal Trial
Congress and members of the media expressed concern with
regard to the thoroughness of the Justice Department's
investigations of BATF's and the FBI's handling of the Waco
tragedy. In 1993, the Committee on the Judiciary requested
documents from several agencies, including the Departments of
Justice and Defense, the FBI and Bureau of Alcohol, Tobacco and
Firearms, regarding the planning and execution of the initial
BATF raid on February 28, 1993, and the subsequent FBI assault
on April 19, 1993.
On April 28, 1993, Justice Department and FBI officials,
including Attorney General Reno, then-HRT Commander Richard
Rogers and then-FBI Director William Sessions, testified before
the House Committee on the Judiciary regarding Attorney General
Reno's decisionmaking prior to, and HRT's actions on, April 19,
1993. Attorney General Reno testified that HRT personnel did
not employ pyrotechnic devices on the day of the fire:
I wanted, and received, assurances that the gas and its
means of use were not pyrotechnic.\100\
---------------------------------------------------------------------------
\100\ ``Events Surrounding the Branch Davidian Cult Standoff in
Waco, Texas,'' hearing before the Committee on the Judiciary, 103d
Cong., 13, 16 (Apr. 28, 1993) (emphasis added) (statement of Janet
Reno, U.S. Attorney General).
Sessions likewise stated that the tear gas that HRT personnel
---------------------------------------------------------------------------
employed was in itself non-pyrotechnic:
CS gas, which is actually a powder, was selected
because it was best suited to be used in the
circumstances we faced. . . . One critical factor was
that CS gas can be used without pyrotechnics. It will
not start or contribute to a fire.\101\
---------------------------------------------------------------------------
\101\ Id. at 83, 85 (emphasis added) (statement of William
Sessions, former FBI Director).
No Justice Department or FBI official present at that
hearing--most significantly, HRT Commander Richard Rogers--
corrected Attorney General Reno or Sessions or advised them
that their testimony was misleading or inaccurate. According to
Rogers, moreover, other portions of Attorney General Reno's
testimony earlier that afternoon so bothered him that he failed
to listen to the remainder of her testimony and, therefore, did
not take note of her misstatements with regard to HRT's use of
pyrotechnic tear gas on April 19, 1993.\102\ In any case,
Rogers told committee staff that he would not have corrected
Attorney General Reno because, in his opinion, her statement
was technically correct in light of the fact that he deemed the
tornado shelter, into which HRT personnel fired pyrotechnic
tear gas rounds, to be separate from the main Branch Davidian
compound.\103\ Roger's opinion on this matter defies logic and
credulity.
---------------------------------------------------------------------------
\102\ Reno disclosed classified information regarding an Army
special operations unit. That information remains classified.
\103\ Interview with Richard Rogers, former Assistant Special Agent
in Charge and Commander, Hostage Rescue Team, FBI, in Phoenix, AZ (Aug.
9, 2000). Rogers' statement, however, as discussed in ch. IV, above, is
flatly contradicted by the language within the FBI's proposed
operations plan which suggests that HRT personnel considered everything
within the concertina wire surrounding the Branch Davidian residence as
the ``compound.'' ``WACMUR: Major Case #80--Assault on a Federal
Officer,'' briefing for the Attorney General at Bates Stamp No. WWC142-
0441 (Apr. 12, 1993) (exhibit 9).
---------------------------------------------------------------------------
Later in 1993, Scruggs reported to the American people
that, after receiving adequate briefings from Justice
Department, FBI, military and scientific advisors, the Attorney
General approved the dissemination of tear gas into the
compound on April 19, 1993:
On April 12, 1993, the FBI presented the tear gas plan
to the Attorney General for her approval. Over the next
several days the Attorney General and senior Justice
Department and FBI officials discussed, debated and
dissected, every aspect of the plan . . . After
becoming convinced that some action was needed, the
Attorney General vigorously questioned every aspect of
the proposed plan, and the FBI provided her the answers
to all her questions.
* * * * *
In addition, a nationally recognized team of arson
experts. . . . has also concluded that the Davidians
started the fire, that the fire could not have been
started by accident at a single point of origin, and
that the gas delivery systems the FBI used were
completely nonincendiary.\104\
---------------------------------------------------------------------------
\104\ Richard Scruggs, U.S. Department of Justice, ``Report to the
Deputy Attorney General on the Events at Waco, Texas, February-Apr. 19,
1993,'' (Oct. 8, 1993) (unredacted version) at 278-279, 324 (emphases
added) (footnotes omitted).
As was discovered in 1999 and will be discussed below,
Scruggs' investigation was incomplete and his conclusion was
wrong with respect to the means by which HRT personnel
delivered tear gas on April 19, 1993.
In 1995, the subcommittees of the Committee on the
Judiciary and this committee (committees) convened joint
hearings to review the Waco tragedy. Among others, the
subcommittees subpoenaed William ``Ray'' Jahn, the Assistant
U.S. Attorney who, with his wife, LeRoy, prosecuted the
surviving Davidians in the criminal trial, to testify. Mr. Jahn
told the subcommittees that no HRT member fired ammunition
other than the non-pyrotechnic tear gas: ``On the 19th of
April, though repeatedly fired upon by the occupants of [the
Branch Davidian compound], the FBI did not fire a shot, other
than non-lethal ferret rounds which carried the CS gas.'' \105\
This was not true.
---------------------------------------------------------------------------
\105\ ``Activities of Federal Law Enforcement Agencies Toward the
Branch Davidians (Part I),'' hearing before the Subcommittee on Crime
of the Committee on the Judiciary and the Subcommittee on National
Security, International Affairs, and Criminal Justice of the Committee
on Government Reform and Oversight, 104th Cong., 100, 107 (July 19,
1995) (statement of Ray Jahn, Assistant U.S. Attorney) (emphasis
added).
---------------------------------------------------------------------------
In preparation for those hearings, the subcommittees
requested documents from the Justice Department, FBI and
BATF.\106\ Many of those documents likewise indicated that HRT
personnel did not use weapons or devices capable of fire
ignition. For example, an after-action report drafted by the
BATF Special Agent who logged the FBI's tactical communications
on April 19, 1993, and spoke with various FBI agents regarding
the FBI's proposed operations plan indicated that the FBI
decided not to use devices or weapons capable of fire ignition
due to the risk of loss of life: ``[n]on-military rounds were
utilized because they do not have a pyrotechnic deployment
system which burns and creates a fire hazard.'' \107\ Other
documents also indicate that, once HRT agents heard the code
phrase ``compromise'' via radio, they delivered tear gas via
non-pyrotechnic ferret projectiles.\108\
---------------------------------------------------------------------------
\106\ Sadly, the Justice Department did not produce the requested
documents until 3 days before the start of the hearings. As Special
Counsel Danforth noted, Justice Department officials were more
concerned in 1995 with their own political self-preservation than their
duty of full disclosure to the American people and the Congress. John
C. Danforth, Special Counsel, U.S. Department of Justice, ``Interim
Report to the Deputy Attorney General Concerning the 1993 Confrontation
at the Mt. Carmel Complex, Waco, Texas'' iii (2000). Justice Department
officials refused to produce documents requested by the subcommittees
until 3 days prior to the first day of the hearings in 1995 and then
produced disorganized collections of documents that were heavily
redacted. While it may not have been possible to have reviewed and
analyzed every document prior to the hearings, a thorough analysis
might have found several documents that now raise questions about the
truthfulness of prior Justice Department and FBI testimony and/or the
completeness of the Justice Department-sponsored post-tragedy
investigations. A reasonable amount of time for congressional review of
the documents would also have allowed the subcommittees to more
substantively question law enforcement witnesses, such as FBI
negotiator Byron Sage and HRT Commander Rogers, regarding the specific
use of M-651s in the FBI's proposed operations plan. A reasonable
period for such a review would also have allowed staff to ask whether
the use of those projectiles was expressly approved by Reno. The
actions of those within the Department of Justice responsible for it's
response to the subcommittees' requests does not stand as an
endorsement of the Department's professionalism.
\107\ Randy Haight, BATF Special Agent, ``FBI Waco Detail After
Action Report'' 4 (Aug. 24, 1993) (exhibit 34).
\108\ FBI interview with Mark Tilton, Special Agent, FBI at 1 (Apr.
20, 1993) (exhibit 35); FBI telephone interview with Cort Traylor,
Special Agent, FBI at 1-2, (June 21, 1993) (exhibit 36); FBI telephone
interview with David Corderman, Special Agent, FBI at 1-2 (June 8,
1993) (exhibit 37); FBI interview with Richard Intellini, Special
Agent, FBI at 1, Waco, Texas (Apr. 21, 1993) (exhibit 38).
---------------------------------------------------------------------------
However, several documents gave cryptic indications that
HRT personnel had delivered tear gas by firing pyrotechnic, M-
651 tear gas rounds via M-79 grenade launchers:
L[Special Agent] Smith recalls one conversation,
relative to the utilization of some sort of military round to
be used on a concrete bunker and additional traffic pertaining
to the need for additional gas rounds for the M-79 grenade
launchers; \109\
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\109\ FBI interview with R. Wayne Smith, Special Agent, FBI, in
Richmond, VA at 5 (June 9, 1993) (exhibit 39).
L1 military tear gas round--goal--to deny that area
and to channel exit.--did not want to send men into tunnel to
flush out.--rounds bounced off; \110\
---------------------------------------------------------------------------
\110\ Handwritten notes of interview with unidentified HRT
personnel, Quantico, VA, date unknown, author unknown, at Bates Stamp
No. WACO 004164 (emphasis added) (exhibit 40).
LCorderman . . . Fired 1-4 incendiary rounds . . . 1
military round at cement underground. . . . [Special Agent]
Mohr--loaded military. . . . Hit front door; \111\
---------------------------------------------------------------------------
\111\ Id. at Bates Stamp Nos. H090899 018-H090899 019 (emphases
added) (exhibit 41).
LBunker--Firing cupcake round--[black] roof . . .
tried to penetrate--to open it up . . . CS bounced off;
Beginning operation--to deny them access; \112\
---------------------------------------------------------------------------
\112\ Id. at Bates Stamp No. H090899 023 (exhibit 42).
L[Special Agent] Bob Hickey . . . says [HRT Charlie
Team personnel's] unsuccessful attempt to put gas in the
bunker--smoke in big lie film; \113\
---------------------------------------------------------------------------
\113\ WACMUR--F.B.I. H.R.T. interview schedule, 11/9/93, author
unknown, at Bates Stamp No. H090899 031 (exhibit 43).
L[Special Agent] Dave Corderman . . . Smoke on film
came from a attempt to penetrate bunker w/1 military and 2
ferret rounds; military [projectile] was grey [sic] bubblehead
w/green base; Dave fires 3 rounds into kitchen and less than 30
sec[onds] later sees smok [sic]; \114\
---------------------------------------------------------------------------
\114\ Id. at H090899 033 (exhibit 44).
LMilitary [green] ring--outdoor pyrotechnic; \115\ and
---------------------------------------------------------------------------
\115\ Handwritten notes of Interview with unidentified HRT
personnel, Quantico, VA, date unknown, author unknown, at Bates Stamp
No. H090899 037 (emphasis added) (exhibit 45).
LRebuttle [sic] Smoke from Bunker--came when these
guys tried to shoot gas into the Bunker. (Military gas round)--
dark grey bubblehead w/green base. 1 military round--2 others
ferret. . . . 1st target ferret into Bunker . . . military
bounced off also.\116\
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\116\ Handwritten notes of interview with unidentified HRT
personnel, Quantico, VA, date unknown, author unknown, at Bates Stamp
No. WACO 004134 (exhibit 46).
Justice Department and FBI officials failed to inform the
Congress in 1995 of these facts however, in an apparent hope
that, 3 days before the hearings convened, no one would have
the opportunity to find these documents and ask relevant
questions. Their failure raises serious concerns regarding why
these officials did not simply tell the Congress and the
American people what they did and why.
2. 1995-1996--The Civil Litigation Plaintiffs Allege that HRT Personnel
Started the Fire
In 1994, the civil litigation plaintiffs \117\ filed
lawsuits that sought compensation for the loss and damage that
occurred.\118\ The plaintiffs alleged, among other things, that
the FBI and specific HRT members violated the plaintiffs' civil
rights. The Department of Justice assigned the defense of the
case to an experienced Washington, DC-based, Justice Department
attorney, Marie Hagen.\119\ Hagen filed a Motion for Summary
Judgment to dismiss the action.\120\ The trial court took the
matter under advisement.
---------------------------------------------------------------------------
\117\ The plaintiffs included several of the surviving Branch
Davidians and the estates of Davidians who died on Apr. 19, 1993.
\118\ Lawsuits were filed in several jurisdictions and were later
transferred and consolidated into the civil litigation heard by Judge
Walter Smith, Jr., in the Federal district court for western Texas.
\119\ Hagen has served as a line attorney within the Justice
Department's Civil Litigation Branch for several years and led the
U.S.' defense in the lawsuit concerning the U.S.S. Iowa's 16-inch gun
turret explosion, which, coincidentally, occurred on Apr. 19, 1986.
\120\ Under Federal and State law, it is proper to file a motion
for summary judgment when: (a) there is no material issue of genuine
fact--i.e., no factual dispute exists; or (b) as a matter of law, the
action must be dismissed. See e.g., Fed. R. Civ. Pro. 56.
---------------------------------------------------------------------------
As part of pre-trial discovery, the civil litigation
plaintiffs obtained copies of handwritten notes created by
Justice Department attorneys and staff during November 1993
interviews of HRT personnel.\121\ The plaintiffs' expert, Dr.
Richard Sherrow, claimed in support of the plaintiffs'
opposition to the government's motion for summary judgment and
dismissal that the material collected and stored by the Texas
Department of Public Safety's Texas Rangers included at least
one expended pyrotechnic tear gas grenade which could have
started the April 19, 1993, fire:
---------------------------------------------------------------------------
\121\ See e.g., exhibits 40-46.
Besides the . . . Ferret cartridges, information from
documents obtained from the FBI through the United
States Department of Justice indicates that military
pyrotechnic munitions may have been fired into [the
Branch Davidian compound]. Documents disclosed indicate
that agents could not penetrate either the underground
shelter roof or the top of the rear four-story tower
with Ferrets. Therefore, they fired at least one
``military'' round and referred to this munition as a
``bubblehead''. . . . The exact identity of a
``bubblehead'' would have to be determined before any
possible contribution to the fire could be
established.\122\
---------------------------------------------------------------------------
\122\ Declaration of Richard L. Sherrow, president, Richard L.
Sherrow and Associates, at 6, Andrade v. Chojnacki (S.D. Tex. Jan. 16,
1996) (No. H-94-0923) (Sherrow declaration) (exhibit 47).
Upon receipt of the plaintiffs' opposition and,
particularly, the Sherrow Declaration, Hagen asked FBI
Assistant General Counsel Jacqueline Brown to discover the
basis for Sherrow's allegation. In response, Brown sent HRT
Supervisory Special Agent Robert Hickey, an HRT member present
at the Branch Davidian compound on April 19, 1993, a copy of
the Sherrow declaration.\123\ Brown also spoke with an FBI tear
gas expert, Monty Jett, to seek his assistance regarding the
Sherrow Declaration allegations and asked his help in
responding to those allegations.\124\
---------------------------------------------------------------------------
\123\ Interview with Jacqueline Brown, Assistant General Counsel,
Office of the General Counsel, FBI, in Washington, DC (Jan. 7, 2000).
\124\ See facsimile from Jacqueline Brown, former Assistant General
Counsel, Civil Litigation Unit, Office of the General Counsel, FBI, to
Monty Jett, Instructor, Firearms Training Unit, FBI 1 (Feb. 9, 1996)
(exhibit 48).
---------------------------------------------------------------------------
Almost 1 year after the conclusion of the joint committee
hearings in 1995, Hickey sent Brown a memorandum in February
1996 that analyzed the Sherrow declaration. Hickey did not
refute the Sherrow declaration charges but, in fact,
corroborated the fact that HRT personnel had employed
pyrotechnic tear gas during the early morning hours of April
19, 1993:
All chemical agents purchased and used at Waco were
non-flammable with the exception of two (2) or three
(3) military 40mm CS round [sic] as detailed later
under the ``Tactical Considerations'' portion of this
communication.
* * * * *
Shortly after the operation commenced on 4/19/93, the
HRT (Charlie Team) determined, after two (2) or three
(3) ferret rounds, that they were unable to penetrate
the underground shelter roof which was their first
target. Charlie Team then requested to use 40mm
military CS rounds in an effort to penetrate the roof.
Charlie Team was granted authority to fire the military
CS rounds. A total of two (2) or three (3) rounds were
fired at the underground shelter roof.\125\
---------------------------------------------------------------------------
\125\ Memorandum from Robert Hickey, Supervisory Special Agent, FBI
to Jacqueline Brown, Assistant General Counsel, Civil Litigation Unit,
Office of the General Counsel, FBI at 2-3 (Feb. 15, 1996) (Hickey
memorandum) (emphasis added) (exhibit 49). As will be discussed, below,
documents indicate that Brown spoke with both her supervisor, FBI Civil
Litigation Unit Chief Virginia Buckles, and Hagen regarding the
substance of the Hickey memorandum.
Brown received the Hickey memorandum. Brown's diary
indicates that she intended to speak with Hagen regarding the
Hickey memorandum but it is unclear as to whether Brown sent a
copy of the Hickey memorandum to Hagen or anyone else within
the FBI or the Justice Department.\126\
---------------------------------------------------------------------------
\126\ Interview with Jacqueline Brown, Assistant General Counsel,
Office of the General Counsel, FBI, in Washington, DC (Jan. 7, 2000);
interview with Marie Hagen, Trial Attorney, Torts Branch, FTCA, Civil
Division, Department of Justice in Washington, DC (Nov. 16, 1999);
interview with Marie Hagen, Trial Attorney, Torts Branch, FTCA, Civil
Division, Department of Justice, in Washington, DC (Nov. 23, 1999); see
also e-mail from James Touhey, Jr., Trial Attorney, Torts Branch, FTCA,
Civil Division, Department of Justice to Marie Hagen, Trial Attorney,
Torts Branch, FTCA, Civil Division, Department of Justice, et al.,
(Aug. 19, 1999) (``[Brown] has no recollection of having seen the memo.
. . .''). (Exhibit 50).
---------------------------------------------------------------------------
Rather than find the answer to the question that she asked
Brown, Hagen, instead, argued in 1996 to the trial court that
Sherrow's allegation was baseless and unworthy of
consideration. Hagen made this representation even though
Hickey had disclosed the truth of the allegation to Brown:
Similarly, plaintiffs' statement that the projectiles
used to insert tear gas ``could have hit'' persons
inside the compound and ``could'' have started a fire
is mere speculation as to causation; there is no
evidence that such incidents actually occurred.\127\
---------------------------------------------------------------------------
\127\ See e.g., defendants' reply memorandum at fn. 4, Andrade v.
Chojnacki (W.D. Tex. Apr. 1, 1996) (No. W-96-CA-139) (emphasis added)
(citations omitted) (due to the large size of this memorandum, it will
not be included as an exhibit to this report).
* * * * *
---------------------------------------------------------------------------
The degree to which plaintiffs' expert testimony is
based on speculation is demonstrated by Mr. Sherrow's
conclusion that the 40mm ordinance found within the
compound ``probably was fired by the U.S.'' because it
``could be fired only from a military weapon and
civilian possession of these weapons is severely
restricted.'' This statement is extraordinary in that
it ignores the virtual arsenal gathered by the
Davidians. . . . [Plaintiffs' military munitions expert
Rick] Stauber's claim that these same munitions are
``not of standard military issue,'' . . . and therefore
``only a military organization probably would possess
them'' . . . even if true, does not warrant plaintiffs'
inference that the United States must have fired
them.\128\
---------------------------------------------------------------------------
\128\ Id. at fn. 53, (citations omitted) (emphasis added).
Hagen continued to argue in 1997 that Sherrow's declaration
was meritless and undeserving of consideration, even though
Brown had received the Hickey memorandum over a year
---------------------------------------------------------------------------
beforehand:
3. Supplemental Declarations of Richard Sherrow.
Likewise, plaintiffs' supplemental evidence concerning
the start of the fire on April 19, 1993, is legally
inadequate to avoid summary judgment. Testimony as to
what could have occurred amount to mere speculation
which is insufficient to create a genuine issue of
material fact. . . . Sherrow's declarations offer
nothing but conclusory opinions.
* * * * *
Sherrow fails to explain how the mere presence of a 40
mm ordnance at the site justifies an opinion that, more
likely than not, conduct of the United States led to
the fire.\129\
---------------------------------------------------------------------------
\129\ Defendants' reply to plaintiffs' supplemental response to
U.S.' motions for summary judgment and supplemental declaration of
Ramsey Clark at 5-6, Andrade v. Chojnacki (W.D. Tex. Apr. 3, 1997) (No.
W-96-CA-139) (emphasis in original) (citations omitted) (exhibit 51).
On March 20, 1998, 2 years after Hickey wrote his
memorandum alerting, at a minimum, FBI officials that HRT
personnel employed pyrotechnic tear gas rounds on April 19,
1993, Hagen filed a reply to the plaintiffs' opposition and re-
requested that the trial court dismiss the lawsuit as
meritless. With respect to Sherrow's allegation about the use
of pyrotechnic tear gas grenades, Hagen denied that the
---------------------------------------------------------------------------
allegation had any basis:
Plaintiffs also argue that the fire may have been
started by ``munitions fired by the U.S.'' . . . Like
the testimony regarding the start of the fire, however,
this theory is mere speculation which simply ignores
the recorded words of the Davidians who spread the fuel
and lit the fires. Such speculation dissolves in the
face of the recording made on April 19.\130\
---------------------------------------------------------------------------
\130\ Defendants' reply memorandum of law at 66-67, Andrade v.
Chojnacki (W.D. Tex. Mar. 19, 1998) (No. W-96-CA-139) (citations
omitted) (emphases added) (exhibit 52).
As late as 1999, Hagen and the Department of Justice failed
to ascertain whether Sherrow's declaration was based upon any
fact. A telephone call to the HRT personnel located 30 miles
from Justice Department Headquarters would have likely led to
the discovery of the Hickey memorandum. Instead, Hagen
continued to argue to the trial court that the allegations that
HRT personnel fired pyrotechnic rounds on April 19, 1993 were
unworthy of, at a minimum, an internal review within the
---------------------------------------------------------------------------
Justice Department and the FBI:
. . . [P]laintiffs have submitted nothing other than
vague generalizations and speculation about the
existence of evidence that they claim was somehow
missed by the prosecutors and defense attorneys in [the
criminal prosecution], as well as by congressional
investigators. Such unsworn, unsupported speculation is
insufficient to warrant discovery at this juncture.
Plaintiffs have had ample opportunity to make their
case for discovery in their prior submission to the
Court. After almost four years of litigation and
submissions by the parties, the Court has more than
enough information on which to base a ruling as to
whether further discovery is necessary on any of the
factual issues.\131\
---------------------------------------------------------------------------
\131\ Defendants' opposition to plaintiffs' motion for leave to
file supplemental evidence and briefing at 2, Andrade v. Chojnacki
(W.D. Tex. May 14, 1999) (No. W-96-CA-139) (emphases added) (exhibit
53).
Again, Justice Department officials failed to take
advantage of numerous opportunities to find and disclose the
truth surrounding the events of April 19, 1993. In failing to
do so, those officials created the circumstances where dark
suspicions regarding the actions of Federal law enforcement on
that day could grow.
3. What the American People Learned in 1999
Documentary filmmaker Michael McNulty followed the civil
litigation and found the plaintiffs' allegation that FBI
personnel started the fire to be of interest. McNulty contacted
then-Assistant U.S. Attorney William Johnston, the Assistant
U.S. Attorney for Waco, TX, and asked permission to inspect the
material within the Rangers' custody.\132\ Johnston contacted
Department of Justice Director of Public Affairs Bert
Brandenberg, who authorized the request.\133\ Johnston
authorized the Rangers to escort McNulty during his inspection.
During six inspections, McNulty found a picture taken by the
Rangers during the week after the April 19, 1993, fire that
portrayed at least one expended M-651 projectile.\134\
---------------------------------------------------------------------------
\132\ See letter from William Johnston, Assistant U.S. Attorney,
Department of Justice, to Janet Reno, U.S. Attorney General, at 1 (Aug.
30, 1999) (exhibit 54).
\133\ Id.
\134\ ``Texas Rangers Division of the Texas Department of Public
Safety, Investigative Report Branch Davidian Evidence'' 6 (Sept. 9,
1999) (exhibit 1).
---------------------------------------------------------------------------
On April 30, 1999, Hagen learned from reading a McNulty-
signed declaration filed by the plaintiffs that McNulty had
reviewed the Waco-related evidence after receiving permission
to do so from Johnston.\135\ Hagen telephoned Johnston who told
her that Brandenberg had authorized McNulty's review. Hagen
contacted Brandenberg to confirm Johnston's statement.\136\
Brandenberg confirmed Johnston's statement.\137\ Hagen wrote
Johnston and ordered him to permit no further inspections.\138\
Justice Department Torts Branch Director James Axelrad likewise
wrote Johnston's supervisor, U.S. Attorney for the Western
District of Texas, James Blagg, and ordered that no further
inspections take place.\139\
---------------------------------------------------------------------------
\135\ See memorandum from Marie Hagen, Trial Attorney, Torts
Branch, FTCA, Civil Division, Department of Justice, to Donald Remy,
Deputy Assistant Attorney General, Department of Justice at 1 (Sept. 2,
1999) (exhibit 55).
\136\ See e-mail from Marie Hagen, Trial Attorney, Torts Branch,
FTCA, Civil Division, Department of Justice to Bert Brandenberg, former
Director, Office of Public Affairs, Department of Justice (Apr. 30,
1999) (exhibit 56).
\137\ See e-mail from Bert Brandenberg, former Director, Office of
Public Affairs, Department of Justice to Marie Hagen, Trial Attorney,
Torts Branch, FTCA, Civil Division, Department of Justice (May 1, 1999)
(exhibit 57).
\138\ See letter from Marie Hagen, Trial Attorney, Torts Branch,
FTCA, Civil Division, Department of Justice to William Johnston,
Assistant U.S. Attorney, Department of Justice (May 3, 1999) (exhibit
58).
\139\ See letter from Jeffrey Axelrad, Director, Torts Branch,
FTCA, Civil Division, Department of Justice, to James Blagg, U.S.
Attorney for the Western District of Texas, Department of Justice (May
3, 1999) (exhibit 59).
---------------------------------------------------------------------------
Johnston concluded that the existence of evidence regarding
the use of potentially pyrotechnic tear gas grenades required
further study. Johnston repeatedly notified Blagg and other
Justice Department officials about what the Rangers were
discovering as the Rangers continued their investigation.\140\
---------------------------------------------------------------------------
\140\ E-mail from William Johnston, Assistant U.S. Attorney,
Department of Justice to James Blagg, U.S. Attorney for the Western
District of Texas, Department of Justice (Aug. 2, 1999) (exhibit 60);
e-mail from William Johnston, Assistant U.S. Attorney, Department of
Justice, to James Blagg, U.S. Attorney for the Western District of
Texas, Department of Justice (Aug. 17, 1999) (exhibit 61); e-mail from
William Johnston, Assistant U.S. Attorney, Department of Justice, to
William ``Ray'' Jahn, Assistant U.S. Attorney, Department of Justice
(Aug. 19, 1999) (exhibit 62) (``[t]he casing is labelled [sic] M-118
and it is said to fire the M-651 tear gas round. . . . [A]t least that
was the original information that I recall from [Texas Ranger] Joey
Gordon.''); e-mail from William Johnston, Assistant U.S. Attorney,
Department of Justice, to Myron Marlin, Director, Office of Public
Affairs, Department of Justice (Aug. 26, 1999) (exhibit 63).
---------------------------------------------------------------------------
On July 27, 1999, Texas Department of Public Safety
Chairman James Francis announced that McNulty and the Texas
Rangers had discovered at least one 40 millimeter pyrotechnic
round within the evidence maintained by the Rangers.\141\ Lee
Hancock, a reporter for the Dallas Morning News who had
reported on the Branch Davidian tragedy since 1993, contacted
retired FBI Deputy Assistant Director Danny Coulson regarding
the Rangers and McNulty's findings.\142\
---------------------------------------------------------------------------
\141\ Lee Hancock, ``2 Pyrotechnic Devices Fired at Davidians, Ex-
Official Says Government Denies Former FBI Agent's Statements,'' the
Dallas Morning News, Aug. 24, 1999 at 1A (exhibit 3).
\142\ Coulson participated in the 1993 standoff as a Washington,
DC-based, FBI manager. Coulson, as the founder and first commander of
HRT, possessed knowledge regarding the tactics and equipment available
to HRT personnel. Coulson also spoke often with Rogers, assisted in the
draft of the FBI's proposed operations plan, attended briefings for
Attorney General Reno and Sessions and watched the tragedy on CNN from
within the FBI's Strategic Incident Operations Center (SIOC) on Apr.
19, 1993. See FBI interview with Danny Coulson, former Deputy Assistant
Director, FBI at 3-7 (July 13, 1993) (exhibit 64); see also Transcript
of Coulson Deposition at 27:9-28:19, Andrade v. Chojnacki (W.D. Tex.
Feb. 22, 2000) (No. W-96-CA-139) (exhibit 65).
---------------------------------------------------------------------------
Hancock explained to Coulson that Sherrow had alleged that
HRT personnel fired pyrotechnic tear gas grenades on April 19,
1993, and that those rounds may have started or exacerbated the
fire. Hancock also told Coulson of McNulty's discovery of the
pictures of the expended rounds. Coulson told Hancock that the
use of those rounds had been a well-known fact among HRT
personnel. The Dallas Morning News highlighted Coulson's
statements in its article:
The former official, Danny O. Coulson, said in an
interview that two devices known as M-651 CS tear gas
grenades were fired from FBI grenade launchers hours
before the compound erupted in flames April 19, 1993.
He said they were used with permission from FBI
supervisors and that they played no role in starting
the fire.
* * * * *
But Mr. Coulson, then a deputy assistant director for
the FBI's criminal investigative division, said he
learned . . . that two M-651 CS cartridges were fired
at an area known as ``the pit,'' an underground
structure that led to tunnels that opened into the
compound.
``There were at least two pyrotechnic devices used that
day,'' said Mr. Coulson, who helped supervise the
government's handling of the siege.
* * * * *
Mr. Coulson said two devices were fired after the
request was approved by FBI supervisors, including
rescue unit Commander Richard Rogers.
* * * * *
Mr. Coulson said he had no idea why FBI officials did
not acknowledge the use of the pyrotechnic devices in
their statements to Congress and to investigators who
conducted a lengthy Justice Department review of FBI
actions at Waco.
``The first thing they should've said, if we knew, they
should've said we fired,'' said Mr. Coulson. . . .
``That's a problem.'' \143\
---------------------------------------------------------------------------
\143\ Lee Hancock, ``2 Pyrotechnic Devices Fired at Davidians, Ex-
Official Says Government Denies Former FBI Agent's Statements,'' the
Dallas Morning News, Aug. 24, 1999 at 1A (exhibit 3).
In response to Coulson's statements, Justice Department
officials flatly denied that FBI agents had fired any such
device: `` We are aware of no evidence to support the notion
that any pyrotechnic devices were used by the federal
government on April 19. . . . We've said that all along.''
\144\ FBI officials, however, prepared another internal
investigation into what incendiary or pyrotechnic rounds HRT
personnel possessed on April 19, 1993.\145\
---------------------------------------------------------------------------
\144\ Id. (citing statement of Justice Department Director of
Public Affairs Myron Marlin).
\145\ See memorandum from the Office of Inspections, Inspection
Division, FBI, to Inspection Division, FBI (Aug. 26, 1999) (exhibit
66).
---------------------------------------------------------------------------
In support of Coulson's revelation, Texas Public Safety
Commission Chairman James Francis stated that the Rangers
possessed ``overwhelming'' evidence that confirmed that HRT
personnel had in fact fired pyrotechnic tear gas grenades on
April 19, 1993:
There are written reports by Rangers, there is
photographic evidence, there is physical evidence, all
three of which are problematic.
* * * * *
I would suggest that Janet Reno get a full briefing of
the facts. She's not getting the facts,'' he said. ``I
can't understand for the life of me why a senior FBI
official's statement was flatly contradicted by the
Department of Justice without even checking the
facts.'' \146\
---------------------------------------------------------------------------
\146\ Lee Hancock, ``FBI to Acknowledge Use of Pyrotechnic Devices;
New Account on Branch Davidian Fire Expected,'' the Dallas Morning
News, Aug. 25, 1999 at 1A, (citing statement by Francis) (exhibit 67).
Two days later and in reaction to public and congressional
outrage, Attorney General Reno stated that, prior to April 19,
1993, she had directed FBI officials not to use pyrotechnic
devices during the assault: ``I did not want those used. I
asked for and received assurances that [the tear gas
projectiles used on April 19, 1993] were not incendiary. . .
.'' \147\ Unfortunately, a ``thorough and vigorous
investigation'' had not been done to learn if those assurances
were, in fact, true.
---------------------------------------------------------------------------
\147\ Lee Hancock, ``Reno Says FBI Had Assured Her on Raid; She
Says Pyrotechnics Not Part of Plan,'' the Dallas Morning News, Aug. 27,
1999 at 1A (exhibit 68).
---------------------------------------------------------------------------
Further controversy erupted in the press on August 30,
1999, when the Dallas Morning News obtained a copy of a five
page letter from the Waco-based Assistant U.S. Attorney,
William Johnston, to Attorney General Reno. In his letter,
Johnston detailed his efforts to resolve the mystery of the
pyrotechnic devices, accused Justice Department officials of
trying to intimidate him, and asserted that individuals within
the Justice Department were trying to keep the truth hidden:
Last week, a fax originated with the Department of
Justice came to me. The fax was in three pages. . . .
It has been suggested to me that these documents were
sent to me to ``hang over my head,'' or to say that I'd
better look out stirring this matter up, as I may have
to explain [these documents]. So long as it is the
truth ``hanging over my head,'' I am not afraid. I will
not be intimidated by anyone with the Department of
Justice.\148\
---------------------------------------------------------------------------
\148\ Letter from William Johnston, Assistant U.S. Attorney,
Department of Justice, to Janet Reno, Attorney General 3-4 (Aug. 30,
1999) (emphases added) (exhibit 69). Committee staff contacted Johnston
and asked him to speak to staff and produce relevant documents. To
avoid conflict with Justice Department regulations with respect to the
production of material to outside sources, Johnston asked for and
received a committee subpoena that ordered him to produce this
information.
On September 8, 1999 in response to this committee's
subpoena, the Department of Justice produced documents to this
committee which indicated that FBI personnel informed superiors
within the FBI that HRT agents employed M-651 rounds to deploy
tear gas onto the compound on April 19, 1993.\149\ One of these
documents, a 49 page report prepared by the FBI crime
laboratory on December 6, 1993, (FBI lab report) further
indicated that, among the objects found in the remains of the
compound after April 19, 1993, the Rangers had located at least
one and possibly three spent 40 millimeter projectiles.\150\ On
August 19, 1999, Justice Department Torts Branch trial attorney
James Touhey, Jr. conducted a search of documents via computer
and not only located the missing 49th page but, furthermore,
located additional documents that Justice Department officials
failed to produce to the committee after the 1995 hearings.
Touhey found that the Department of Justice could account for
63 copies of the FBI lab report. The Justice Department: (1)
produced at least one and possibly three full, 49 page copies
of the FBI lab report to plaintiffs in the civil litigation;
(2) produced a 48 page copy of the FBI lab report (missing the
final page that identified the spent rounds as M-651s) and at
least two, forty-nine pages of the Lab Report to the Committee
on the Judiciary in 1995 in response to their requests; and (3)
possessed as many as 56, full copies and at least three 48 page
copies of the FBI lab report within Justice Department, FBI or
U.S. Attorney files.\151\
---------------------------------------------------------------------------
\149\ Exhibits 40-46.
\150\ Report from the FBI Laboratory to James Miller, Sergeant,
Texas Rangers, Texas Department of Public Safety at 49 (Dec. 6, 1993)
(exhibit 70). The committee became concerned in September 1999 that
Justice Department officials had failed to produce a complete copy of
the 49 page lab report to the committees in 1995. Committee staff found
that the committee had received the first 48 pages of the lab report
but had not received the last page that identified the expended,
military tear gas projectile. At least two additional complete copies
of the lab report were located in the mass of documents produced to the
committees after lengthy delays, and just 3 days before the hearings
convened in 1995. As noted earlier, the documents were produced at a
time and in a fashion that made it difficult, if not impossible, to
review them in a systematic way and make use of them. It remains a
mystery as to why the Justice Department produced to the committees a
version of the lab report that omitted the page that mentioned a
pyrotechnic device. Similar tactics have been employed time and time
again by the Justice Department and the White House in other
investigations. On Oct. 10, 2000, the day that this committee delivered
copies of this report to its members for their preliminary
consideration, the Justice Department delivered additional documents
responsive to the committee's Sept. 1, 1999 subpoena.
\151\ See memorandum from James Touhey, Jr., Trial Attorney, Torts
Branch, FTCA, Civil Division, Department of Justice, to Jeffrey
Axelrad, Director, Torts Branch, FTCA, Civil Division, Department of
Justice (Sept. 2, 1999) (exhibit 71).
---------------------------------------------------------------------------
The need for this committee, therefore, to commence its
investigation into the actions and omissions of Federal law
enforcement, Justice Department and the military was both
manifest and timely. Until Attorney General Reno was forced to
appoint Special Counsel Danforth to investigate this matter,
only this committee possessed the necessary jurisdiction and
interest in finding true and complete answers that the American
people demanded for the last 6 years.
c. the attorney general takes office in mid-crisis
On February 28, 1993, the Department of the Treasury
requested FBI assistance in response to the murder of four BATF
agents that day. Republican holdover and Acting Attorney
General Stuart Gerson managed the Justice Department and the
Branch Davidian crisis with the assistance of Acting-Deputy
Attorney General Mark Richard, Deputy Assistant Attorney
General John Keeney, others within the Justice Department,
Judge Sessions and the FBI. Gerson approved the request and
authorized the deployment of HRT advance personnel and
equipment, including HRT Commander Richard Rogers to Waco.
Justice Department and FBI officials based in Washington, DC
received briefings from Jamar and Rogers and visited the FBI
positions near the compound to witness FBI efforts. These
officials also received briefings on contingency plans that the
FBI would employ if the Branch Davidians attempted to escape or
assault FBI positions before full HRT deployment on site could
be accomplished.
Janet Reno was confirmed as Attorney General on March 12,
1993 and received her first detailed briefing on the standoff
during the week of March 15, 1993.\152\ In response to a
suggestion from President Clinton through Hubbell and
Presidential Advisor Bruce Lindsey, Attorney General Reno asked
if the military had been consulted with respect to the merits
of the FBI's proposed operations plan.\153\ A briefing in
response to Attorney General Reno's query was scheduled for
April 14, 1993.
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\152\ FBI interview with Janet Reno, U.S. Attorney General, in
Washington, DC 1 (Aug. 2, 1993) (exhibit 72).
\153\ FBI interview with Bruce Lindsey, Advisor to the President
and Director of the Office of Presidential Personnel, in Washington, DC
(Sept. 1, 1993) (exhibit 73).
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On April 12, 1993, the FBI representatives briefed Attorney
General Reno for the first time on their proposed operations
plan designed to resolve the standoff at the Branch Davidian
compound. FBI representatives presented Attorney General Reno
with a briefing book that contained, among other things: (1) a
summary of events to that date; (2) the FBI's strategy to
resolve the standoff; (3) the proposed operations plan; (4) the
FBI's method of gas delivery; and (5) other key facts.\154\
---------------------------------------------------------------------------
\154\ See ``WACMUR: Major Case #80--Assault on a Federal Officer,''
briefing for the Attorney General at Bates Stamp Nos. WWC142-0440--0441
(Apr. 12, 1993) (emphases added) (exhibit 9).
---------------------------------------------------------------------------
The April 12, 1993, briefing book identified Jamar and
Rogers as in charge of the tactical situation surrounding the
Branch Davidian compound.\155\ The April 12, 1993, briefing
book also enclosed the FBI's proposed operations plan that
described the means by which HRT personnel hoped to resolve the
standoff:
---------------------------------------------------------------------------
\155\ Id. Neither individual, however, attended the Apr. 12, 1993,
briefing and Attorney General Reno never met Jamar until well after the
end of the standoff.
II. Mission
* * * * *
On order, utilize two Combat Engineer Vehicles (CEVs)
to deliver tear gas (CS) into White/Green section of
the compound structure. Four Bradley Vehicles (BV) will
be positioned around the compound ready to supplement
the CEV [sic] in gas delivery, if needed. One of the
four BVs will insert Ferret liquid tear gas rounds into
the black covering of the new unoccupied construction
on the green side immediately after the introduction of
tear gas into the previously referenced white/green
section of the compound structure.
* * * * *
Wait a period of time, which will depend on the
subjects [sic] response to the initial gas delivery and
subsequent negotiations if any are possible, and
deliver additional tear gas utilizing a CEV into the
Black/Red corner. Again, demand surrender by the
occupants. Continue delivery of tear gas into different
parts of the compound structure at regular intervals
for 48 hours or until all subjects have exited compound
and surrendered.\156\
---------------------------------------------------------------------------
\156\ ``WACMUR: Major Case #80--Assault on a Federal Officer,''
briefing for the Attorney General at Bates Stamp Nos. WWC142-0440 (Apr.
12, 1993) (emphases added) (exhibit 9).
The FBI's proposed operations plan identified the two
---------------------------------------------------------------------------
methods by which it intended to insert the tear gas:
CS Gas Delivery methods (Tear Gas)
A. M79, grenade launcher uses a 40 mm liquid-filled
ferret round which delivers 25 grams of CS liquid on
impact. In Waco there are approximately 400 rounds of
the 40mm liquid-filled gas ferret rounds available for
HRT and SWAT use. These rounds when fired from 20 yards
or less are capable of penetrating a hollow core door.
* * * * *
B. M60 CEV with cylinder delivery system. One cylinder
has 15 one-second bursts per charge. Each burst will
extend out approximately 55 feet from the cylinder
creating a fog or gas mist in the area. Each cylinder
can be recharged 20 times. There are six cylinders on
hand in Waco with enough raw materials to recharge all
6 cylinders 20 times each.\157\
---------------------------------------------------------------------------
\157\ Id. at Bates Stamp No. WWC142-0448.
Nowhere in the FBI's proposed operations plan or in the
April 12, 1993, briefing book did the FBI indicate that the
black covering of the new unoccupied construction on the green
side was considered by FBI on-site personnel as separate and
apart from the Branch Davidian compound. FBI officials also did
not indicate to Attorney General Reno that the FBI might,
should the need arise, utilize pyrotechnic devices more capable
of penetrating that structure. The FBI's proposed operations
plan also did not indicate to Attorney General Reno that HRT
personnel, as a contingency, intended to use M-651 pyrotechnic
tear gas rounds, automatic machine guns or high explosive
grenades, if the need arose. Finally, no FBI representative
told Attorney General Reno during the week prior to April 19,
1993, that HRT personnel might employ pyrotechnic or high
explosive ammunition if they believed that the circumstances
warranted their use.
Rogers telephoned personal friends, the then-current and
then-former Army special operations unit commanders\158\ on the
evening of April 13, 1993, and asked them to travel to
Washington, DC for the purpose of briefing Attorney General
Reno. As will be discussed in detail below, the officers were
reluctant to do so, in light of the Posse Comitatus Act
proscriptions, without the express authorization from their
respective chains of command.
---------------------------------------------------------------------------
\158\ In 1993, the former unit commander, then-Brigadier General
Peter Schoomaker, served as an Assistant Division Commander at Ft.
Hood, TX. In response to a request from then-Texas Governor Ann
Richards, General Schoomaker's superior asked him to travel to Waco and
report to the Governor on the situation. The then-unit commander, an
Army Colonel, served at Fort Bragg, NC.
---------------------------------------------------------------------------
On April 14, 1993, Attorney General Reno attended a meeting
at FBI Headquarters to speak with FBI and military
representatives regarding the FBI's proposed operations plan.
During that meeting, Attorney General Reno asked Schoomacher
and the Colonel their thoughts on the FBI's proposed operations
plan. Both officers, to their credit, declined to offer a
critique of the plan because of their orders not to do so and
their awareness of the Posse Comitatus Act proscription. Both
spoke generally about: (1) the effects of tear gas on humans;
(2) the eventual need to rest and retrain on-site HRT personnel
who, at that time, had been on duty for up to 42 days; and (3)
the fact that, if it were a military situation, they might
order an immediate, inclusive application of tear gas rather
than employing an incremental approach.
D. April 16, 1993--Attorney General Reno Rejects the FBI's Proposed
Operations Plan and then Reverses her Decision
April 16, 1993, is a key date in the Branch Davidian
tragedy timeline. On this date, Attorney General Reno
disapproved execution of the FBI's proposed operations plan at
that time.\159\ Later that morning, FBI Director Sessions
requested an opportunity to ask that the Attorney General
reconsider her disapproval. After meeting with Associate
Attorney General Webster Hubbell, Attorney General Reno decided
to reconsider her decision and the next day she approved
execution of the FBI's proposed operations plan. While Richard
Scruggs, in 1993, and Special Counsel Danforth, in 2000, did
find that Attorney General Reno in fact disapproved the FBI's
proposed operations plan on this date, they did not discuss why
she reconsidered her decision.\160\ Attorney General Reno
wields substantial discretion to approve or disapprove the
actions of Federal law enforcement personnel. Concurrent with
that responsibility, however, is the duty to account fully for
the bases of her actions. Attorney General Reno has never fully
explained what led her to reverse her decision.
---------------------------------------------------------------------------
\159\ Transcript of interview with Janet Reno, U.S. Attorney
General, in Washington, DC at 78:13-80:12 (Oct. 5, 2000) (exhibit 74 on
file with the committee).
\160\In light of Special Counsel Danforth's charter--to investigate
``bad acts,'' rather than ``bad judgment,'' this omission from his
report is not of concern. John C. Danforth, Special Counsel, U.S.
Department of Justice, ``Interim Report to the Deputy Attorney General
Concerning the 1993 Confrontation at the Mt. Carmel Complex, Waco,
Texas'' 2 (2000) (footnote omitted).
---------------------------------------------------------------------------
As Special Counsel Danforth's interim report noted, Hubbell
called Deputy Assistant Attorney General Mark Richard into his
office the morning of April 16, 1993.\161\ Richard recalled
that then Justice Department Director of Public Affairs Carl
Stern was already present in Hubbell's office. Hubbell told
Richard that Attorney General Reno had ``disapproved'' the
FBI's proposed operations plan.\162\ Richard told committee
staff that he was surprised at Hubbell's pronouncement.\163\
---------------------------------------------------------------------------
\161\ John C. Danforth, Special Counsel, U.S. Department of
Justice, ``Interim Report to the Deputy Attorney General Concerning the
1993 Confrontation at the Mt. Carmel Complex, Waco, Texas'' 108 (2000).
\162\ FBI interview with Mark Richard, Deputy Assistant Attorney
General, Department of Justice in Washington, DC at 5 (July 15, 1993)
(exhibit 75).
\163\ Interview with Mark Richard, senior counsel for the European
Union and International Criminal Matters and former Deputy Assistant
Attorney General, Department of Justice in Washington, DC (Apr. 20,
2000).
---------------------------------------------------------------------------
Hubbell asked Richard what Richard thought would be the
FBI's reaction to this news. Richard responded that the FBI
would be upset. Hubbell asked Richard if Richard thought that
the FBI should be told and offered the opportunity to discuss
the matter. Richard agreed and Hubbell telephoned FBI Director
William Sessions and, without telling him the reason, asked
Sessions to come to his office.\164\
---------------------------------------------------------------------------
\164\ Id.; telephone interview with William Sessions, former FBI
Director (Oct. 9, 2000).
---------------------------------------------------------------------------
Sessions left FBI Headquarters, accompanied by then-FBI
Deputy Director Floyd Clarke and, shortly, arrived at Hubbell's
office. When Hubbell reiterated to the gathered individuals
that Attorney General Reno had ``disapproved'' the FBI's
proposed operations plan, Sessions requested an opportunity to
speak directly to the Attorney General.\165\ Hubbell responded
by telling Sessions to wait while Hubbell went to her office.
Hubbell was gone, according to Richard, for approximately 10
minutes.\166\
---------------------------------------------------------------------------
\165\ Director Sessions' 1993 statement to the post-fire
investigators indicates that he argued to Attorney General Reno for
approval of the FBI's proposed operations plan on Apr. 16, 1993. FBI
interview with William Sessions, FBI Director, in Washington, DC at 7
(July 14, 1993) (exhibit 76). This statement seemed inconsistent with
other statements and committee staff interviews with the Apr. 16, 1993,
meeting participants. See e.g., FBI interview with Mark Richard, Deputy
Assistant Attorney General, Department of Justice in Washington, DC at
5 (July 15, 1993) (exhibit 75); interview with Mark Richard, senior
counsel for the European Union and International Criminal Matters and
former Deputy Assistant Attorney General, Department of Justice, in
Washington, DC (Apr. 20, 2000); telephone interview with Carl Stern,
former Director, Office of Public Affairs, Department of Justice, in
Washington, DC (May 11, 2000); interview with Floyd Clarke, former FBI
Deputy Director, in Washington, DC (May 4, 2000). Committee staff
interviewed Sessions regarding this matter. During that interview,
Sessions corrected his 1993 statement and stated that while he
certainly wanted the Attorney General to approve the proposed
operations plan, he could not recall any conversation with the Attorney
General during which he argued for reconsideration of the FBI's
proposed operations plan. Telephone interview with William Sessions,
former FBI Director (Oct. 9, 2000). Sessions recalled no discussions
during the Apr. 16, 1993, meeting after the Attorney General asked the
FBI to prepare the additional materials. Id. Finally, Sessions recalled
no conversations with the Attorney General after the Apr. 16, 1993,
meeting and prior to the Apr. 17, 1993, meeting during which the
Attorney General approved the FBI's proposed operations plan. Id.
\166\ FBI interview with Mark Richard, Deputy Assistant Director,
Department of Justice, in Washington, DC at 5 (July 15, 1993) (exhibit
75); see also interview with Mark Richard, senior counsel for the
European Union and International Criminal Matters and former Deputy
Assistant Attorney General, Department of Justice, in Washington, DC
(Apr. 20, 2000).
---------------------------------------------------------------------------
Hubbell reappeared with Attorney General Reno and, almost
immediately, she told the attendees that she wanted the FBI to
prepare a statement \167\ for her that would include all facts
in support of the FBI's proposed operations plan.\168\ Several
of the attendees were surprised at Attorney General Reno's
directive, since, based upon Hubbell's information, she had
``disapproved'' the plan.\169\ In hopes of satisfying her
request, however, Sessions and Clarke returned to FBI
Headquarters and directed subordinates to prepare the requested
materials.\170\ FBI representatives gave this second briefing
book to Attorney General Reno sometime on April 17. After
reconsidering her earlier disapproval, Attorney General Reno
approved the FBI's proposed operations plan during the evening
of April 17, 1993.\171\ Attorney General Reno has stated that
she did not carefully review the materials from the FBI prior
to approving the FBI's proposed operations plan.\172\
---------------------------------------------------------------------------
\167\ The ``statement'' that the FBI prepared for the Attorney
General became a second, detailed briefing book. ``WACO INVESTIGATION--
Second Attorney General Briefing Book'' at Bates Stamp WWC425-0892-
WWC425-2044, undated (due to the large size of these materials, it will
not be included as an exhibit to this report); see also FBI interview
with Janet Reno, U.S. Attorney General, in Washington, DC at 5 (Aug. 2,
1993) (exhibit 72); FBI interview with Mary Incontro, Deputy Chief,
Terrorism and Violent Crimes Section, Criminal Division, Department of
Justice, in Washington, DC at 3-4 (July 22, 1993) (exhibit 77); Edward
S.G. Dennis, Jr., U.S. Department of Justice, ``Evaluation of the
Handling of the Branch Davidian Stand-off in Waco, Texas'' (Oct. 8,
1993) (redacted version) at 57-58.
\168\ FBI interview with Janet Reno, U.S. Attorney General, in
Washington, DC at 5 (Aug. 2, 1993) (exhibit 72); FBI interview with
Webster Hubbell, Associate Attorney General, Department of Justice, in
Washington, DC at 5 (Aug. 3, 1993) (exhibit 78); telephone interview
with Carl Stern, former Director, Office of Public Affairs, Department
of Justice, in Washington, DC (May 11, 2000); interview with Floyd
Clarke, former FBI Deputy Director, in Washington, DC (May 4, 2000).
\169\ See e.g., interview with Mark Richard, senior counsel for the
European Union and International Criminal Matters and former Deputy
Assistant Attorney General, Department of Justice, in Washington, DC
(Apr. 20, 2000).
\170\ ``Waco Investigation--Second Attorney General Briefing Book''
at Bates Stamp WWC425-0892-WWC425-2044, undated; Richard Scruggs, U.S.
Department of Justice, ``Report to the Deputy Attorney General on the
Events at Waco, Texas, Feb. 28-Apr. 19, 1993,'' (Oct. 8, 1993)
(unredacted version) at 287-288; see also interview with Floyd Clarke,
former FBI Deputy Director, in Washington, DC (May 4, 2000); interview
with Mary Incontro, former Deputy Chief, Terrorism and Violent Crimes
Section, Criminal Division, Department of Justice, in Washington, DC
(Apr. 14, 2000).
\171\ John C. Danforth, Special Counsel, U.S. Department of
Justice, ``Interim Report to the Deputy Attorney General Concerning the
1993 Confrontation at the Mt. Carmel Complex, Waco, Texas'' 108-109
(2000); Richard Scruggs, U.S. Department of Justice, ``Report to the
Deputy Attorney General on the Events at Waco, Texas, Feb. 28-Apr. 19,
1993,'' (Oct. 8, 1993) (unredacted version) at 287-289 (``On April 17,
the Attorney General met in her conference room with Hubbell [and other
Justice Department and FBI officials] to review the statement she had
requested the previous day. . . . The AG approved the plan with an
execution date of Monday, April 19. . . . [On April 18, 1993] The FBI
provided her with the remainder of the supporting documentation for the
statement, which Richard subsequently gave to the Attorney General'')
(footnotes omitted).
\172\ FBI interview with Janet Reno, U.S. Attorney General, in
Washington, DC at 5 (Aug. 2, 1993) (exhibit 72) (``She read only the
chronology, gave the rest a cursory review, and satisfied herself that
the documentation was there.''); Richard Scruggs, U.S. Department of
Justice, ``Report to the Deputy Attorney General on the Events at Waco,
Texas, Feb. 28-Apr. 19, 1993,'' (Oct. 8, 1993) (unredacted version) at
287, fn. 36. The Attorney General's statement during the 2000 interview
with committee staff that, in fact, she did review this second briefing
book is consistent only with the fact that she read the ``chronology.''
Transcript of Interview with Janet Reno, U.S. Attorney General, in
Washington, DC at 85:23-25 (Oct. 5, 2000) (exhibit 74 on file with the
committee).
---------------------------------------------------------------------------
Scruggs learned of Attorney General Reno's unexplained
reversal during the course of his investigation. Richard and
others, at a minimum, told the investigators of these events
and Richard, in particular, expressed to them his surprise at
her change of heart:
RICHARD related that on Friday, April 16, 1993, he was
called to HUBBELL's office where he met with HUBBELL
and CARL STERN. HUBBELL advised that the Attorney
General had disapproved the FBI plan to end the siege.
RICHARD related he was asked by HUBBELL what the
reaction of the FBI might be. RICHARD stated he related
that the FBI would not be pleased, but would accept it
however, may talk in terms of withdrawal. RICHARD
related that HUBBELL further asked if RICHARD would
like to speak with the Attorney General, but RICHARD
advised he had nothing more to tell her then [sic] what
she already knew.
* * * * *
HUBBELL stated that he was going to contact Director
SESSIONS and shortly thereafter, the Director, [FBI
Deputy Director Floyd] CLARKE and [then-FBI Assistant
Director for Criminal Investigations Larry] POTTS
arrived. RICHARD related that HUBBELL advised of the
Attorney General's disapproval of the plan to end the
siege and Director SESSIONS acknowledged that he would
like to speak to the Attorney General.\173\
---------------------------------------------------------------------------
\173\ FBI interview with Mark Richard, Deputy Assistant Attorney
General, Department of Justice, in Washington, DC at 5 (July 15, 1993)
(exhibit 75).
Scruggs attached no particular significance to this event.
Dennis, moreover, failed to even mention this reversal and
discuss its import.\174\
---------------------------------------------------------------------------
\174\ Richard Scruggs, U.S. Department of Justice, ``Report to the
Deputy Attorney General on the Events at Waco, Texas, Feb. 28-Apr. 19,
1993,'' (Oct. 8, 1993) (unredacted version) at 286-287; Edward S.G.
Dennis, Jr., U.S. Department of Justice, ``Evaluation of the Handling
of the Branch Davidian Stand-Off in Waco, Texas'' (Oct. 8, 1993)
(redacted version) at 57-58.
---------------------------------------------------------------------------
Committee staff questioned several of the April 16, 1993,
meeting participants with respect to Attorney General Reno's
decision to disapprove, reconsider and, finally, approve the
FBI's proposed operations plan.\175\ It seemed curious that, in
light of her numerous public statements that she considered all
facts carefully before approving the FBI's proposed operations
plan, in fact, she disapproved the plan, reconsidered her
decision on April 16, 1993, and, finally, approved the plan on
April 17, 1993. Attorney General Reno has yet to account fully
for this decisionmaking process and the facts that she
considered during this forty-eight hour period.
---------------------------------------------------------------------------
\175\ See e.g., Transcript of Interview with Janet Reno, U.S.
Attorney General, in Washington, DC at 78:13-85:25 (Oct. 5, 2000)
(exhibit 74 on file with the committee); interview with Mark Richard,
senior counsel for the European Union and International Criminal
Matters and former Deputy Assistant Attorney General, Department of
Justice, in Washington, DC (Apr. 20, 2000); interview with Floyd
Clarke, former FBI Deputy Director, in Washington, DC (May 4, 2000);
telephone interview with Carl Stern, former Director, Office of Public
Affairs, Department of Justice, in Washington, DC (May 11, 2000);
interview with Larry Potts, former FBI Assistant Director, in
Washington, DC (May 30, 2000).
---------------------------------------------------------------------------
Prior to her April 16, 1993, decision to disapprove the
FBI's proposed operations plan, Attorney General Reno received
all the information relating to: (1) the tactical situation;
(2) HRT personnel fatigue; (3) the potential for harm if tear
gas were employed; (4) the status of water and food supplies
within the Branch Davidian compound; (5) the safety and well
being of the children that resided within the compound; and (6)
the timing of the execution of the plan--the factors that she
publicly has stated she relied upon to reach her decision.\176\
Based upon this information, in fact, she disapproved the FBI's
proposed operations plan on April 16, 1993. The Attorney
General did not carefully review all the requested additional
information from the FBI prior to her later reversal. Attorney
General Reno has yet to explain what information caused her to
reconsider and, later, approve the FBI's proposed operations
plan.\177\
---------------------------------------------------------------------------
\176\ See generally, FBI interview with Janet Reno, U.S. Attorney
General, in Washington, DC (Aug. 2, 1993) (exhibit 72); ``WACMUR: Major
Case #80--Assault on a Federal Officer,'' briefing for the Attorney
General (Apr. 12, 1993) (exhibit 9). See ``Activities of Federal Law
Enforcement Agencies Toward the Branch Davidians (Part 3),'' hearings
before the Subcommittee on Crime of the Committee on the Judiciary and
the Subcommittee on National Security, International Affairs, and
Criminal Justice of the Committee on Government Reform and Oversight,
104th Cong., 357, 357-359, 370-372 (Aug. 1, 1995); see also Transcript
of Interview with Janet Reno, U.S. Attorney General, in Washington, DC
at 78:13-79:10 (Oct. 5, 2000) (exhibit 74 on file with the committee).
\177\ Judiciary Committee Chairman Henry Hyde asked the Attorney
General in 1995 to explain the basis for this reversal and to disclose
what Hubbell told her during the 10-15 minutes on Apr. 16, 1993, when
Hubbell left Sessions, Clarke, Richard and Stern in his office to bring
Attorney General Reno back to discuss her disapproval with those
officials. The Attorney General, instead, discussed the information
that she had learned prior to Apr. 16, 1993--information which led her
to ``disapprove'' the FBI's proposed operations plan. ``Activities of
Federal Law Enforcement Agencies Toward the Branch Davidians (Part
3),'' hearings before the Subcommittee on Crime of the Committee on the
Judiciary and the Subcommittee on National Security, International
Affairs, and Criminal Justice of the Committee on Government Reform and
Oversight, 104th Cong., 357, 370-372 (Aug. 1, 1995).
---------------------------------------------------------------------------
As stated earlier, the Attorney General, like any senior
government official, must use discretion with respect to
decisionmaking. The concurrent duty to account for that
discretionary decisionmaking authority, however, also exists.
The Attorney General's failure to disclose fully her reasons
for reversing her decision is inconsistent with the President's
directive to make all of the facts public.
E. April 19, 1993--Seasoned FBI Officials Within Sight of Attorney
General Reno Failed to Warn Her that the FBI's Actions at Waco Deviated
from the Operations Plan that She Approved
The FBI maintained a Significant Incident Operations Center
(SIOC) within FBI Headquarters from which senior, Washington,
DC-based Justice Department and FBI officials were able to send
and receive communications pertaining to the Waco stand-off.
The SIOC was the location within FBI Headquarters from which
Attorney General Reno, Hubbell, Sessions, Clarke, Stern and
other senior and mid-level Justice Department and FBI officials
were able to witness the unfolding developments of Waco.\178\
---------------------------------------------------------------------------
\178\ Even though in 1993 the SIOC was advanced in its ability to
communicate in a secure fashion with on-site crisis managers, it lacked
access to real-time, tactical information, such as the tactical radio
frequencies and forward-looking infrared (FLIR) camera images that were
available to on-site FBI personnel. Consequently, those within the SIOC
on Apr. 19, 1993, gathered around several large television screens to
watch CNN's coverage of the unfolding tragedy.
---------------------------------------------------------------------------
An understanding of the SIOC's layout is important to
understanding how the tragic events of April 19, 1993,
occurred.\179\ The SIOC contained three rooms. In one was a
large, main room in which mid-level FBI personnel maintained
communications with on-site crisis personnel and had several
large television screens. The second, smaller room contained
technical equipment used to secure communications with on-site
tactical personnel and was manned at all times by technical
personnel. The final room was a small conference room used by
senior Justice Department and FBI personnel. All three rooms
were connected \180\ and the conference room included three
glass windows looking into the main room. On April 19, 1993,
personnel moved freely from one room to another in response to
requests for information or other tasks.
---------------------------------------------------------------------------
\179\ Since 1993, the FBI has significantly expanded and improved
the size and capability of its SIOC.
\180\ A door normally kept closed, however, separated each room.
---------------------------------------------------------------------------
FBI Deputy Assistant Director Danny Coulson and Michael
Kahoe, Chief of the FBI's Violent Crimes and Major Offenders
Section, sat in the main SIOC room and, in addition to
traversing the rooms when requested to perform tasks, watched
the operation unfold on one of the television screens. Attorney
General Reno, Hubbell, Clarke, Stern, Sessions and others \181\
watched the events from within the conference room.
---------------------------------------------------------------------------
\181\The participants all recalled that many people moved in and
out of the conference room that morning.
---------------------------------------------------------------------------
HRT personnel commenced execution of the FBI's proposed
operations plan at 5:55 a.m.\182\ Approximately 5 hours later,
Rogers directed an HRT-manned CEV to drive into the walls of
the compound. Both Kahoe and Coulson expressed surprise at the
action. Coulson and Kahoe, based upon their personal experience
and training, participated in the initial drafting and editing
of the FBI's proposed operations plan and briefed senior
Justice Department and FBI personnel regarding the stand-
off.\183\ Both men had participated in numerous meetings during
the previous week during which she was briefed. Both men had
also communicated extensively with Rogers since February 28,
1993, on the specifics of the FBI's proposed operations
plan.\184\ In sum, both men knew the details, intent and
specific orders of the plan that Attorney General Reno had
approved.
---------------------------------------------------------------------------
\182\ Central Standard Time.
\183\ See FBI interview with Danny Coulson, former Deputy Assistant
Director and Special Agent in Charge, FBI in Washington, DC at 4-8
(July 13, 1993) (exhibit 64); FBI interview with E. Michael Kahoe,
former Section Chief, Violent Crimes and Major Offenders Section,
Criminal Investigation Division, FBI in Washington, DC at 1-2 (July 14,
1993) (exhibit 80); Transcript of Coulson Deposition at 11:24-12:4;
34:22-42:6, Andrade v. Chojnacki (W.D. Tex. Feb. 22, 2000) (No. W-96-
CA-139) (exhibit 64).
\184\ Id.
---------------------------------------------------------------------------
When Coulson and Kahoe noticed the actions of the CEV, they
expressed surprise at the actions. Coulson and Kahoe knew that
any penetration of the Branch Davidian compound was not
supposed to have occurred until 2 days later--after attempts to
force the Davidians out of the compound through tear gas
insertion had failed. As Coulson stated during his deposition,
both verbally communicated their surprise:
Q. Okay, Okay. Where were you located on April 19,
1993, within SIOC?
A. I was in the main SIOC area, but not in the
[conference room]
Q. And who were you in close proximity to? And I
realize we're talking about a period of several hours,
so----
A. Mr. Kahoe was out in that main part of the SIOC
area. I believe that Mr. Evans was. Mr. Betz, probably
Mr. Lovin and Mr. Glasser, and various agents and
support staff.
Q. Now, at some point, during the day on April 19,
1993, you were able to see, from the television
broadcasts from [the Branch Davidian compound], the
tanks penetrating the building, not with a boom and not
just at a window, but, actually, you saw CEV-1 go fully
into the building on the front side, correct?
* * * * *
A. I don't know if it was CEV-1, CEV-2, C--I have no
idea of the nomenclature for----
Q. All right, sir.
A. The CEV. I did see a tracked vehicle go, penetrate
further into the building that I'd seen them earlier.
Q. And we've had testimony that there was some
surprise, when that happened, within SIOC, and people
made comments and that sort of thing. Who were you with
or seated next to, for example, when that CEV went into
the building, fully penetrated the building?
A. Mike Kahoe.
Q. Did you say anything, or did Mr. Kahoe say anything
at that time?
A. Yes. He said something, and I said something.
Q. What did he say?
A. ``Holy shit.''
Q. Did he say anything else other than ``Holy shit?''
A. That's all I recall.
Q. All right, sir. What did you say?
A. I said, ``I hope that's a bad camera angle.''
Q. Meaning that you hoped it looked worse on television
than it was?
* * * * *
A. I had hoped that it didn't penetrate as far as it
appeared on television, which is often the case.
* * * * *
Q. All right, sir. Now, do you recall the [FBI's
proposed operations plan] contemplating the penetration
of the tanks, the body of the tanks fully into the
building on the front of [the Branch Davidian compound]
on April 19, 1993?
A. No.
Q. And that's when Mr. Kahoe said ``Holy shit'' and
that's why you said ``I hope that's a bad camera
angle?''
* * * * *
A. I can't speak for Mr. Kahoe. I can speak for myself,
in that my first reaction is, we're going to lose that
tank, that the tank could be disabled and trapped
inside the building. That was my very first thing 0when
I saw it. And I did--I was surprised to see the
activity.
Q. And it was not something that you had contemplated,
based on your understanding of the plan, would occur on
April 19, 1993; correct ?
A. No, I did not contemplate that.\185\
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\185\ Transcript of Coulson Deposition at 59:5-60:22; 150:9-151:5,
Andrade v. Chojnacki (W.D. Tex. Feb. 22, 2000) (No. W-96-CA-139)
(exhibit 65).
The statements of surprise from both Coulson and Kahoe--
seasoned FBI officials who participated in the draft of the
FBI's proposed operations plan is disturbing for two reasons.
First, the fact that these two men were alarmed by the HRT
Commander Richard Rogers' orders and the actions of HRT
personnel in response reflects the fact that Rogers deviated
from the plan as approved by the Attorney General. Second, the
fact that these individuals did not communicate their concerns
to the Attorney General and other senior, Justice Department
and FBI officials sitting 10 to 20 feet away from them is of
great concern. In light of the fact that both possessed
practical experience in situations such as Waco and direct
knowledge relating to the specific tactics to be employed that
morning, Attorney General Reno, FBI Director Sessions and other
senior officials should have been requested that they make
themselves directly available for consultation during the
morning of April 19, 1993. At a minimum, they should have felt
free or been directed to offer their advice to the Attorney
General and Director Sessions if they had concerns or felt that
they possessed information necessary for the Attorney General
to possess. This failure of communication among seasoned
tactical professionals and the political leadership within the
Department of Justice and the FBI may lead to future tragedy if
not corrected.
F. The Department of Justice's Failure to Conduct a ``Thorough and
Vigorous Investigation'' in 1993 as Ordered
On April 20, 1993, one day after the tragic resolution of
the stand-off at the Branch Davidian compound, President
Clinton stated that the Department of Justice would begin a
``vigorous and thorough investigation'' into the responsibility
for the deaths at Waco.\186\ Attorney General Reno supported
this command. As the American people now realize, however, a
``vigorous and thorough'' investigation was not done by the
Justice Department. The Justice Department's failure to conduct
a ``vigorous and thorough investigation'' has resulted in a
loss of confidence on the part of the public in their
government and in millions of dollars spent to examine
legitimate concerns that the entire story about Waco had not
been disclosed.
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\186\ President William Clinton, remarks by the President in
question and answer session with the press in Washington, DC at 2 (Apr.
20, 1993) (exhibit 24).
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1. The Failure to Disclose the Use of Pyrotechnic Tear Gas Grenades
During the early morning hours of April 19, 1993, HRT
member David Corderman requested and received approval from
Rogers to fire pyrotechnic tear gas grenades into the
underground structure located adjacent to the main Branch
Davidian compound.\187\ The use of these rounds was neither
contemplated in the FBI's proposed operations plan nor approved
by the Attorney General. Rogers granted his permission in
deviation from his express orders not to use any pyrotechnic
device. While this deviation is of great concern, it is
unlikely that the use of these devices caused or exacerbated
the fire that began around noon on April 19, 1993. The rounds
were fired almost 4 hours prior to the start of the fire and
there is no indication that the use of these pyrotechnic rounds
had any relevance to the fire that began around noon on April
19, 1993.
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\187\ Corderman radioed McGavin who contacted and received
authorization from Rogers. Interview with David Corderman, Special
Agent, FBI, in Washington, DC (Nov. 4, 1999); interview with Steven
McGavin, Special Agent and former Deputy Commander, Hostage Rescue
Team, FBI, in Washington, DC (June 5, 2000); interview with Richard
Rogers, former Assistant Special Agent in Charge and Commander, HRT,
FBI, in Phoenix, AZ (Aug. 9, 2000).
---------------------------------------------------------------------------
Of more concern, however, is the fact that Federal law
required that the prosecutors disclose to the criminal
defendants evidence that would either: (1) tend to prove their
innocence; (2) challenge the prosecution witnesses' statements
regarding the start of the April 19, 1993, fire; (3) impeach
the prosecution witnesses' credibility; or (4) support an
alternative theory as to how the fire began.\188\
---------------------------------------------------------------------------
\188\ Brady v. Maryland, 373 U.S. 83 (1963); United States v.
Augurs, 427 U.S. 97 (1976).
---------------------------------------------------------------------------
On August 6, 1993, lead criminal Justice Department
prosecutors Ray and LeRoy Jahn sought and received a criminal
indictment of several of the surviving Branch Davidians for,
among other things, conspiracy to murder HRT personnel on April
19, 1993. In doing so, the Jahns alleged that the surviving
Branch Davidians had started the April 19, 1993, fire:
It was a part of the conspiracy that, on April 19, 1993
Vernon K. Howell, also known as David Koresh, would
give instructions to spread flammable fuel within the
[Branch Davidian] Compound upon learning that the FBI
was to introduce tear gas into the Compound to end the
siege. It was part of the conspiracy that a
coconspirator would and did give instructions at about
noon on April 19, 1993, to start the fires with [the
Branch Davidian Compound].\189\
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\189\ Superseding indictment at 6-7, United States v. Schroeder,
(W.D. Tex. Aug. 6, 1993) (Criminal No. W-93-CR-046) (exhibit 81).
In order to prove this allegation, the Jahns, Bill Johnston
and a paralegal named Reneau Longoria interviewed several HRT
personnel regarding their recollections.\190\
---------------------------------------------------------------------------
\190\ The Jahns, as co-lead counsel for the criminal trial, were
responsible for collecting all relevant information regarding the
events on Apr. 19, 1993, and the conduct of the prosecution of the
surviving Branch Davidian defendants. Justice Department officials
relieved Johnston of his responsibilities prior to Apr. 19, 1993,
although he did assist in the conduct of the criminal trial. As will be
discussed below, Johnston interviewed Corderman and, like the Jahns,
recognized the value of Corderman's potential testimony.
---------------------------------------------------------------------------
Rogers and McGavin told the Jahns on or about November 9,
1993, that, in addition to employing non-pyrotechnic tear gas
rounds and tear gas deployed via the M-728 CEVs, HRT personnel
had sought and obtained authorization to fire pyrotechnic M-651
rounds during the morning of April 19, 1993. Rogers and McGavin
described in detail the rounds' characteristics--such as the
shape and color of the rounds--and the reasons for their
use.\191\ Rogers, McGavin and other HRT personnel did not
withhold from the Jahns or the other criminal prosecutors
information relating to the use of these rounds. In fact, the
prosecutors found this information pertinent to their efforts
to prosecute the criminal defendants, but planned to disclose
the use of these rounds but only if necessary to rebut the
defendants' defense:
---------------------------------------------------------------------------
\191\ Exhibits 40-45.
``Rebuttle [sic] Smoke from Bunker--came when
these guys tried to shoot gas into the Bunker.
(Military gas round)--dark grey bubblehead w/green
base. 1 military round--2 other ferret. 1st target
ferret into Bunker . . . military bounced off also.''
\192\
---------------------------------------------------------------------------
\192\ Exhibit 46.
Similarly, Johnston also learned that Corderman's
employment of ``military'' incendiary rounds on the morning of
April 19, 1993, could explain issues that might arise during
the trial: ``one green military (incind) . . . smoke . . .
[s]hot bunker before compromise . . . then military round. . .
. [c]an explain smoke.'' \193\
---------------------------------------------------------------------------
\193\ Handwritten interview notes by Johnston with unidentified HRT
personnel, date unknown, location unknown at 1 (emphasis added)
(exhibit 82). Johnston was the subject of much controversy during the
summer and fall of 2000, after the media reported that Special Counsel
Danforth intended to seek an indictment of Johnston for, among other
things, obstruction of justice and perjury. After the trial court
ordered all Federal agencies to produce all relevant Waco-related
documents, Johnston found these three pages among his personal notes.
According to those press accounts, Johnston withheld these documents
from production and thereafter lied to Special Counsel Danforth's
investigators about his actions. As will be discussed below, Johnston
also had a legal and ethical duty to comply with subpoenas issued by
this committee on Aug. 30, 1999, and Oct. 1, 1999, to produce these
documents to Congress. He failed to do so.
---------------------------------------------------------------------------
These prosecutors failed to ascertain whether they had to
disclose these facts to the criminal trial defendants--although
they may have been required to do so.\194\ The prosecutors also
failed to disclose these facts to senior Justice Department
personnel. The prosecutors may contend that these facts were
not exculpatory because they were irrelevant to the defense.
Such an assertion, however, fails to justify their actions. If
the use of the pyrotechnic rounds on April 19, 1993, was
irrelevant or otherwise immaterial to the case, then it should
not have had rebuttal value. If the information had impeachment
value or was otherwise material to the defendants, Brady, its
progeny and the 5th Circuit Court of Appeals' interpretation of
Brady required its disclosure.\195\ As Justice Department
Associate Deputy Attorney General David Margolis \196\ told
committee staff, Brady required the Jahns, as co-lead counsel,
to refer any question with respect to the disclosure of even
potentially relevant material to the U.S. Attorney for the
Western District of Texas, William Blagg, or to Washington, DC-
based, Justice Department officials for a Brady analysis. The
criminal prosecutors failed to do so.
---------------------------------------------------------------------------
\194\ Brady, Augurs; see also Fed. R. Crim. Pro. 16.
\195\ e.g., Garrison v. Maggio, 540 F.2d 1271 (5th Cir. 1976);
United States v. Herberman, 583 F.2d 222 (5th Cir. 1978). The 5th
Circuit Court of Appeals is the appellate court to which the criminal
defendants sought review of their convictions. In 1999, Justice
Department Assistant Attorney General and Criminal Division Chief
Richard Durbin wrote the U.S. Attorney for the Western District of
Texas, William Blagg, and recommended that the information within the
Jahns' possession in 1993--the fact that HRT personnel fired
pyrotechnic tear gas grenades on Apr. 19, 1993--be disclosed, pursuant
to Brady to the plaintiffs in the civil litigation. E-mail from Richard
Durbin, Jr., Assistant Attorney General, Criminal Division, Department
of Justice, to William Blagg, U.S. Attorney for the Western District of
Texas, Department of Justice (Sept. 8, 1999) (exhibit 83).
\196\ Margolis served as the Associate Deputy Attorney General
under then-Deputy Attorney General Heymann and continues to do so. As
he explained to committee staff, he possesses substantial experience,
as a former Organized Crime Task Force Chief and Criminal Division
Chief, in determining Brady disclosure requirements. Interview with
David Margolis, Associate Deputy Attorney General, Department of
Justice, in Washington, DC (Aug. 18, 2000).
---------------------------------------------------------------------------
In 1999, senior Justice Department officials reviewed Mrs.
Jahn's 1993 notes and the November 19, 1993, HRT interview
schedule that revealed the fact that Corderman had attempted to
penetrate the Branch Davidian's underground bunker with
pyrotechnic rounds. The officials concluded that the
information: (1) was potentially Brady material that the Jahns
and Johnston should have disclosed; and (2) that the Justice
Department should produce the material to the civil litigation
plaintiffs.\197\
---------------------------------------------------------------------------
\197\ See e.g., e-mail from Richard Durbin, Jr., Assistant Attorney
General, Criminal Division, Department of Justice, to William Blagg,
U.S. Attorney for the Western District of Texas, Department of Justice,
et al. (Aug. 8, 1999) (exhibit 84); e-mail from William Blagg, U.S.
Attorney for the Western District of Texas, Department of Justice, to
Richard Durbin, Jr., Assistant Attorney General, Criminal Division,
Department of Justice (Aug. 8, 1999) (exhibit 85); memorandum from
Richard Durbin, Jr., Assistant Attorney General, Criminal Division,
Department of Justice, to David Margolis, Associate Deputy Attorney
General 1 (Sept. 9, 1999) (exhibit 86).
---------------------------------------------------------------------------
Ray Jahn, as co-lead counsel and a participant in the
November 1993 briefings with HRT personnel, knew that HRT
personnel had employed pyrotechnic rounds on April 19, 1993,
and likewise planned to introduce that fact as rebuttal
evidence during the criminal trial. Ray Jahn swore to the
Congress in 1995, however, that, ``. . . the FBI did not fire a
shot, other than the non-lethal ferret rounds. . . .'' \198\
The Jahn's decision to withhold from the defendants and the
Congress the fact that HRT personnel employed these rounds on
April 19, 1993, arguably constitutes a significant and material
ethical lapse.
---------------------------------------------------------------------------
\198\ ``Activities of Federal Law Enforcement Agencies Toward the
Branch Davidians (Part I),'' hearing before the Subcommittee on Crime
of the Committee on the Judiciary and the Subcommittee on National
Security, International Affairs, and Criminal Justice of the Committee
on Government Reform and Oversight, 104th Cong., 100, 107 (July 19,
1995) (statement of Ray Jahn, Assistant U.S. Attorney) (emphasis
added).
---------------------------------------------------------------------------
Johnston's recognition of the value of Corderman's
testimony also made him responsible for asking the Jahns or
other Justice Department superiors for a Brady analysis. Either
the Jahns and Johnston asked for such an analysis and were
rebuffed, or they failed to do so. The Jahns refused to meet
with committee staff to explain this possible lapse.\199\
---------------------------------------------------------------------------
\199\ Letter from Andre Hollis, senior counsel, Committee on
Government Reform, U.S. House of Representatives, to Gerald Goldstein,
partner, Goldstein, Goldstein and Hilley, and counsel for William
``Ray'' Jahn and LeRoy Jahn (Sept. 12, 2000) (exhibit 87); letter from
Gerald Goldstein, partner, Goldstein, Goldstein and Hilley, and counsel
for William ``Ray'' Jahn and LeRoy Jahn, to Andre Hollis, senior
counsel, Committee on Government Reform, U.S. House of Representatives
(Sept. 21, 2000) (exhibit 88).
---------------------------------------------------------------------------
Additional concerns are raised by the fact that Johnston,
after sending his August 30, 1999, letter to Attorney General
Reno, spoke to the press and further accused Washington, DC-
based Justice Department officials of withholding information
related to Corderman's actions:
Assistant U.S. Attorney Bill Johnston said he felt
compelled to warn Ms. Reno after he was given a 5-year-
old document that discusses the use of ``military gas''
by the FBI on April 19, 1993. He said he was concerned
because the document, a three page set of notes
detailing an interview with members of the FBI's
hostage rescue team, included handwritten notations
suggesting that it be kept from anyone outside the
department's legal staff.
``There are handwritten notes on the documents
discussing whether or not they should be disclosed,
and, obviously, they have not been,'' said Mr.
Johnston. . . . There was discussion about whether they
should be turned over,'' he said. ``Obviously, the
decision was made somewhere in Washington that they
ought not to be.'' \200\
---------------------------------------------------------------------------
\200\ Lee Hancock, ``Waco Prosecutor Warns Reno Evidence Possibly
Withheld; Notations About File on Pyrotechnics Use Raised His
Concerns,'' the Dallas Morning News, Aug. 31, 1999 at 1A (emphasis
added) (exhibit 89).
As mentioned above, Johnston searched his own records in
1999 or 2000 and discovered his Corderman interview notes that
also described Corderman's employment of the pyrotechnic tear
gas rounds.\201\ Even after finding these notes, Johnston
failed to correct his statements. Johnston could have produced
the notes to the trial court for a private review. Johnston
should have produced them to the committee in response to its
August 30, 1999, or October 1, 1999, subpoenas. The committee's
August 30, 1999, subpoena to Johnston, personally, ordered
Johnston to produce documents related to the use of pyrotechnic
tear gas rounds employed by HRT personnel. The request was
continuing in nature, and, even if he had discovered the
documents long after the subpoena was issued, he had a legal
obligation to produce them to the committee. The terms of the
subpoena received by Johnston were as follows:
---------------------------------------------------------------------------
\201\ David Vise, ``Waco Whistleblower Faces Indictment,'' the
Washington Post, Sept. 1, 2000 at A1 (exhibit 90).
This subpoena is continuing in nature. Any record,
document, compilation of data or information, not
produced because it has not been located or discovered
by the return date shall be provided immediately upon
location or discovery subsequent thereto.
* * * * *
Please provide the Committee with all records relating
to CS pyrotechnic tear gas rounds employed at the Waco
standoff.\202\
---------------------------------------------------------------------------
\202\ Subpoena duces tecum from the Honorable Dan Burton, chairman,
Committee on Government Reform, U.S. House of Representatives, to
William Johnston, Assistant U.S. Attorney, Department of Justice 3
(Aug. 30, 1999) (emphasis added) (exhibit 91).
There is no ambiguity regarding the terms of this subpoena.
While Johnston deserves credit for his role in bringing to
light the use of pyrotechnic devices on April 19, 1993, a
secret that lasted for 7 years, his record in this matter is a
mixed one. Had Johnston not taken the initiative, the American
people might have remained badly misinformed about the entire
tragedy. In this respect, Johnston performed a public service
for which he suffered undeserved reprisals from the Department
of Justice. On the other hand, Johnston's apparent decision to
withhold his handwritten notes on the subject from Special
Counsel Danforth and to this committee cannot be overlooked or
excused.
As mentioned earlier, Justice Department civil litigation
lead attorney Marie Hagen asked FBI Assistant General Counsel
Jacqueline Brown in 1996 to ascertain the basis for Sherrow's
assertion. Brown told committee staff that, after receiving
Hickey's memorandum confirming the use of these rounds, she
communicated these facts, orally or otherwise, to Hagen. Hagen
disagreed with Brown's assertion and told committee staff that
she never had such a communication with Brown.\203\
---------------------------------------------------------------------------
\203\ Interview with Marie Hagen, Trial Attorney, Torts Branch,
FTCA, Civil Division, Department of Justice, in Washington, DC (Nov.
23, 1999).
---------------------------------------------------------------------------
Documents made available to committee staff indicate that
Brown did in fact share the Hickey memorandum with her
supervisor, Virginia Buckles, and Hagen. For example, Brown,
who maintained a daily checklist of action items, recorded on
February 19, 1996, the fact that she spoke with Hagen and other
Justice Department officials regarding the Hickey memorandum
and showed them the document: ``meet w/DOJ re dec[laration] . .
. Sherrow Dec[laration] memo to M[arie] H[agen].'' \204\
Second, Buckles' own memoranda to then-FBI General Counsel
Howard Shapiro detailing the status of then-ongoing FBI civil
litigation referenced Buckles' and Brown's involvement in
assisting Hagen and the Justice Department to clarify the
Sherrow declaration statements.\205\
---------------------------------------------------------------------------
\204\ Jacqueline Brown, Assistant General Counsel, Civil Litigation
Unit, Office of the General Counsel, FBI, Dayplanner task list (Feb.
19, 1996) (exhibit 92).
\205\ Matters of interest memorandum from Virginia Buckles, Unit
Chief, Civil Litigation Unit, Office of the General Counsel, FBI to
Howard Shapiro, General Counsel, FBI 1-2 (Feb. 12, 1996) (exhibit 93);
see also matters of interest memorandum from Virginia Buckles, Unit
Chief, Civil Litigation Unit, Office of the General Counsel, FBI to
Howard Shapiro, General Counsel, FBI 4-5 (Nov. 12, 1996) (Exhibit 94).
---------------------------------------------------------------------------
When the use of pyrotechnic tear gas rounds became public
in 1999, Justice Department attorneys spoke with Brown
specifically about the statements within the Hickey memorandum.
Those Justice Department attorneys concluded that Brown had not
knowingly withheld the Hickey memorandum:
I spoke to Lyn Brown about the document I found . . .,
2/15/96 memo by Robert A. Hickey to attn. of Jacqueline
F. Brown. Lynn said that the first she heard of this
memo was during her conversation with Greg Parsons, her
HRT liaison [sic], which she related to Marie this
morning. She had no recollection of having seen the
memo. . . . She asked me to fax her a copy, which I
did, as she has been trying unsuccessfully to track
down a copy. She bristled a bit when I said that
finding the memo this late in the day had caused
concern over here, in that we have been trying to learn
about the accusations of the use of military munitions
for several weeks. . . . I tried to defuse the
situation by stating that I was not accusing Lynn of
having hidden anything (I do believe she's telling the
truth when she states that she can't recall having seen
the memo before).\206\
---------------------------------------------------------------------------
\206\ E-mail from James Touhey, Jr., Trial Attorney, Torts Branch,
FTCA, Civil Division, Department of Justice, to Marie Hagen, Trial
Attorney, Torts Branch, Civil Division, FTCA, Department of Justice et
al., (Aug. 19, 1999) (exhibit 50).
Attorney General Reno also wondered whether Justice
Department officials had attempted to confirm or deny the
Sherrow declaration allegations and, if so, how Hagen
responded. At first, those officials told Reno that Hagen had
not responded to the Sherrow declaration allegations. Later,
however, Justice Department officials admitted to the Attorney
General that Hagen had in fact dismissed the Sherrow
---------------------------------------------------------------------------
declaration allegations without first discovering the truth:
At our recent meeting, you asked whether we had
responded in any way to Mr. Sherrow's January 17, 1996,
declaration in support of the plaintiffs' opposition to
the defendants' motion to dismiss in the civil case.
While it was indicated to you that we had not responded
because the allegations were not germane to the main
issues in the case, our exhaustive search of all United
States' pleadings after the meeting has resulted in the
discovery of many instances where Mr. Sherrow's
declaration was mentioned or argument was in reaction
to it.\207\
---------------------------------------------------------------------------
\207\ Memorandum from Donald Remy, Deputy Assistant Attorney
General, Civil Division, Department of Justice, to Janet Reno, U.S.
Attorney General (Aug. 30, 1999) (exhibit 95 on file with the
committee).
Whether or not Brown in fact told Hagen of the contents of
Hickey's memorandum, Hagen specifically asked Brown for this
information.\208\ As the civil litigation lead counsel, Hagen
had the duty to follow up on her query prior to denying the use
of these rounds in response to the plaintiff's assertion.
Instead of simply ignoring the allegation, moreover, Justice
Department officials informed the Attorney General that Hagen
had, in fact, attacked the Sherrow Declaration allegations as
baseless without first asking whether they were true. The
recklessness of Hagen's conduct cannot be downplayed. The fact
that she has not been reprimanded as a result of her actions
similarly remains curious.
---------------------------------------------------------------------------
\208\ Interview with Jacqueline Brown, Assistant General Counsel,
Office of the General Counsel, FBI, in Washington, DC (Jan. 7, 2000);
interview with Marie Hagen, Trial Attorney, Torts Branch, FTCA, Civil
Division, Department of Justice, in Washington, DC (Nov. 23, 1996); see
also John C. Danforth, Special Counsel, U.S. Department of Justice,
``Interim Report to the Deputy Attorney General Concerning the 1993
Confrontation at the Mt. Carmel Complex, Waco, Texas'' 56 (2000).
---------------------------------------------------------------------------
Had Hagen acted as required in accordance with her
responsibilities, the fact that Corderman requested and
received permission to fire these rounds almost 4 hours prior
to the start of the fire--and therefore not likely to be
material to the cause of the fire on April 19, 1993--would have
been disclosed in 1996. The startling revelations in 1999
regarding the use of these rounds would have been moot. The
time-consuming investigations started in 1999 would not have
been necessary.
2. The ``Negligent'' Scruggs Investigation
During the afternoon of April 19, 1993, Attorney General
Reno asked her Special Assistant Richard Scruggs to conduct a
post-fire investigation.\209\ While Scruggs was an experienced
Federal prosecutor,\210\ the rushed and incomplete efforts that
he made to investigate the tragedy caused substantial harm. Had
Attorney General Reno ordered an investigation similar to that
conducted by then-Treasury Secretary Lloyd Bentsen--an
investigation by experienced, outside investigators free of
arbitrary time limits--it is hard to believe that the facts now
available would have taken so long to come to public light.
---------------------------------------------------------------------------
\209\ Interview with Richard Scruggs, Assistant U.S. Attorney,
Department of Justice, in Miami, FL (Jan. 4, 2000); interview with
Richard Scruggs, Assistant U.S. Attorney, Department of Justice, in
Miami, FL (June 22, 2000).
\210\ Scruggs served as an Assistant U.S. Attorney in Miami where
he met and worked often with Attorney General Reno who was then a State
prosecutor for Dade County, FL.
---------------------------------------------------------------------------
Attorney General Reno asked Scruggs early in April 1993, to
serve as her assistant at Justice Department Headquarters. When
Scruggs arrived on April 5, 1993, he had no portfolio of
specific responsibilities. Attorney General Reno told Scruggs,
however, to remain uninvolved in the then-ongoing Branch
Davidian standoff.\211\ Ultimately, the fact that Attorney
General Reno later placed Scruggs in such a position of
responsibility in light of her role in the tragedy and his
personal relationship with her also is puzzling.\212\
---------------------------------------------------------------------------
\211\ Interview with Richard Scruggs, Assistant U.S. Attorney,
Department of Justice, in Miami, FL (Jan. 4, 2000).
\212\ The Department of Justice also assigned two additional young
attorneys, Steven Zipperstein and Rob Lyon, to assist Scruggs.
Interview with Steven Zipperstein, former Special Counsel to the
Assistant Attorney General, Criminal Division, Department of Justice,
in Los Angeles, CA (June 14, 2000). The FBI assigned a senior FBI
Inspector, Victor Gonzalez, and two additional Inspectors, Herb Cousins
and Roderick Beverly, to assist in the investigation. Interview with
Victor Gonzalez, former Inspector, Inspection Division, FBI, in
Washington, DC (Apr. 18, 2000); telephone interview with Victor
Gonzalez, former Inspector, Inspection Division (Apr. 27, 2000);
interview with Herbert Cousins, former Inspector, Inspection Division,
FBI, in Washington, DC (May 5, 2000); telephone interview with Roderick
Beverly, former Inspector, Inspection Division, FBI, (May 18, 2000).
Cousins told committee staff that he worked with Scruggs and Reno while
assigned to the FBI's Miami field offices. Interview with Herbert
Cousins, former Inspector, FBI, in Washington, DC (May 5, 2000).
Scruggs told committee staff that he may have in fact asked the FBI to
assign Cousins to the investigation. Interview with Richard Scruggs,
former Special Assistant to the Attorney General and current Assistant
U.S. Attorney, Department of Justice, in Miami, FL (Jan. 4, 2000). Both
Cousins and Beverly lacked substantive experience as FBI Inspectors.
Cousins and Beverly became Inspectors in March 1993 after attending
several hours of classes and working on one or two field audits.
Interview with Herbert Cousins, former Inspector, FBI, in Washington,
DC (May 5, 2000); telephone interview with Roderick Beverly, former
Inspector, FBI, (May 18, 2000).
---------------------------------------------------------------------------
Scruggs began the investigation with the belief that the
FBI had in fact committed some error on April 19, 1993.\213\
Scruggs employed FBI Inspectors and Washington, DC-based agents
from various field offices to interview witnesses or
participants in the tragedy.\214\ He also drafted an outline of
tasks for which one of several FBI Inspectors were assigned the
responsibility of completion. The tasks included gathering and
reviewing: (1) all witness statements, including those of
military personnel involved in the tragedy; (2) copies of all
video and audio tapes; and (3) all FLIR tapes made or within
the possession of the FBI in conjunction with the Branch
Davidian standoff. Scruggs' failure to ensure that these tasks
were in fact completed is the major evidence of the
``negligent'' manner by which he oversaw the post-fire
investigation:
---------------------------------------------------------------------------
\213\ Interview with Richard Scruggs, former Special Assistant to
the Attorney General and current Assistant U.S. Attorney, Department of
Justice, in Miami, FL (June 22, 2000).
\214\ Id.
---------------------------------------------------------------------------
Recommended Investigative Steps in Waco Inquiry
(1) Obtain and correlate all chronologies from all
relevant parties and agencies. Check with Assistant
Attorney General Mark Richard, FBI Assistant Director
Larry Potts, and Waco on-sight [sic] supervisors.
Complete chronology needed from first call to FBI to
FBI's clearing of crime scene. Chronology should
include all activities on site, all meetings and
briefings in [Washington, D.C.], etc. [Special Agent]
Cousins
(2) Develop full witness list. . . . Create and
maintain a ``Witness file'' for each individual,
reports of interviews, grand jury transcripts, etc.
This includes all law enforcement, military, civilian,
and material witnesses. [Special Agent] Beverly/Schenck
* * * * *
(4) Obtain or create full listing of all physical
evidence, including audiotapes (T[itle] III and
consensual), videotapes, correspondence, crime scene
evidence, etc. obtain copies of all audiotapes,
videotapes, transcripts, correspondence, etc. and
maintain in evidence files. [Special Agent]
Prouty.\215\
---------------------------------------------------------------------------
\215\ Richard Scruggs, Assistant to the Attorney General,
Department of Justice, ``Recommended Investigative Steps in Waco
Inquiry'' 1-2 (May 7, 1993) (exhibit 96).
The fact that Scruggs decided to employ FBI personnel to
investigate whether the FBI had caused or exacerbated the April
19, 1993, tragedy remains puzzling. Indeed, during the early
stages of his investigation, the Washington Post published an
article that raised concerns as to whether the FBI's Inspection
Division could conduct an independent investigation of the
tragedy.\216\ On May 20, 1993, Scruggs and his colleagues
discussed this issue and the Washington Post article but, in
response to arguments from Gonzalez in support of the
involvement of the Inspection Division, Scruggs decided that
their involvement would not create an appearance of conflict:
``Mr. Gonzalez discussed the Washington Post [sic] article re
this inquiry. The article addresses some questions regarding
the independence of the Inspection staff in conducting the
inquiry. Gonzalez gave Scruggs examples of other inquiries that
FBI [sic] conducted with independence despite controversies.''
\217\ The fact that the FBI was a part of the largest domestic
law enforcement tragedy in American history should have been
the reason for an outside investigation into the FBI's
activities.\218\
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\216\ The FBI Inspection Division conducts audits of field offices
and units within FBI Headquarters. Interview with Victor Gonzalez,
former Inspector, Inspection Division, FBI, in Washington, DC (Apr. 18,
2000).
\217\ Handwritten notes of meeting, author unknown, 1 (May 19,
1993) (exhibit 97).
\218\ In contrast, the Department of Treasury's employment of the
Secret Service, with the assistance of that Department's Office of the
Inspector General, minimized the risk of conflict of interest and,
therefore, enhanced the substance of its conclusions. Special Counsel
Danforth, likewise, employed Postal Service investigators, not FBI
personnel, to conduct its investigation.
---------------------------------------------------------------------------
To ensure that the Inspectors and agents asked the same
questions, Scruggs prepared questions and sent them to the FBI
personnel questions for use during these interviews.\219\ These
questions included a request as to whether the witness had, if
they were FBI employees, discharged their weapon. All witnesses
were asked if they witnessed any FBI employee firing any weapon
during the 51-day standoff. The questions failed, however, to
direct FBI personnel to ask about other FBI actions, such as
the possible use of pyrotechnic tear gas grenades or other
ammunition. Had Scruggs and his colleagues thoroughly reviewed
all the documents available to them, they would have found
references to ``military'' rounds. Scruggs and his colleagues,
however, failed to do so. The failure of the Scruggs team to
come to an understanding that pyrotechnic rounds were used was,
as discovered in 1999, a significant shortcoming.
---------------------------------------------------------------------------
\219\ Interview questions/instructions at Bates Stamp Nos. WWC429-
2012-WWC429-2022, undated, author unknown (exhibit 98).
---------------------------------------------------------------------------
Before he and his colleagues completed the fact-finding
process, Scruggs changed his belief that the FBI was at fault
for the Waco tragedy.\220\ Scruggs thereafter presumed that the
FBI had done nothing to create or exacerbate the April 19,
1993, fire. In doing so, Scruggs did not consider directing the
FBI Inspectors and agents to ask the necessary additional
questions, such as whether HRT personnel had employed any
device capable of starting the April 19, 1993 fire. For
example, on June 2, 1993, FBI Supervising Special Agent Gail
Seavey interviewed FBI Special Agent and former HRT member
Charles Riley \221\ regarding his involvement in the Branch
Davidian standoff. Seavey wrote that, on April 19, 1993, Riley
witnessed gunfire from the Sierra One position commanded by
Horiuchi.\222\ Riley did not review this statement prior to its
final draft. Seavey, moreover, failed to ask follow-up
questions regarding this stunning statement, such as whether
the gunfire might have, in fact, been directed at Sierra One or
whether any other HRT personnel likewise noticed this gunfire.
Seavey transmitted the statement to FBI Headquarters.
---------------------------------------------------------------------------
\220\ Interview with Richard Scruggs, Assistant U.S. Attorney,
Department of Justice, in Miami, FL (Jan. 4, 2000).
\221\ Riley was called to Waco to assist his former colleagues on
HRT. Before Apr. 19, 1993, Riley served as a sniper/observer at the
Sierra Two and Three positions. On Apr. 19, 1993, Riley served as an
observer at the Sierra Three sniper position, approximately 180 yards
from the Branch Davidian compound. The civil litigation plaintiffs
named Mr. Horiuchi as a defendant in the case as a result of what
Seavey wrote.
\222\ FBI telephone interview with Charles Riley, Special Agent,
FBI at 1 (June 2, 1993) (exhibit 17).
---------------------------------------------------------------------------
Similarly, on June 9, 1993, FBI Special Agent and aircraft
pilot Wayne Smith told an FBI Inspector working with Scruggs
that he overheard FBI personnel radio Rogers and ask for his
permission to employ ``military'' tear gas rounds. Had Scruggs
performed even a cursory review of Smith's statement, he would
have, or should have, known that HRT personnel fired non-ferret
pyrotechnic tear gas rounds--an issue worthy of investigation
and disclosure:
Regarding radio transmissions heard on April 19, 1993,
[Special Agent] Smith advised that there was a high
volume of HRT traffic and Sniper [Tactical Operations
Center] instructions regarding requests for the
insertion of gas by ground units. [Special Agent] Smith
recalls one conversation, relative to the utilization
of some sort of military round to be used on a concrete
bunker[.] * * * \223\
---------------------------------------------------------------------------
\223\ FBI interview with R. Wayne Smith, Special Agent, FBI in
Richmond, VA at 5 (June 9, 1993) (exhibit 39).
It is surprising that this statement went unnoticed and
that Scruggs' investigators failed to ask Smith what he meant
by ``military'' rounds. If Smith could not answer the question,
one would expect investigators to interview--or, in all
likelihood re-interviewed--Rogers or Jamar and asked whether
the ``military'' rounds to which Smith referred were ferret
rounds. A minimal investigatory effort would have led to the
timely disclosure that HRT personnel employed these pyrotechnic
rounds.
Scruggs and his colleagues also interviewed the senior
Justice Department and FBI officials who attended the April 14,
1993, briefing for Attorney General Reno.\224\ She stated that
she relied upon the statements of Schoomaker, the Army Colonel
and a Dr. Harry Salem, an Army civilian tear gas expert, to
satisfy her concerns regarding the introduction of tear gas
into the Branch Davidian compound on April 19, 1993. In
addition, an Army major stationed at the Pentagon attended the
briefing and took notes of the conversations. Hubbell,
furthermore, stated in response to questions during his
interview that the Army representatives commented extensively
to Attorney General Reno on the FBI's plan to introduce tear
gas into the compound:
---------------------------------------------------------------------------
\224\ Richard Scruggs, U.S. Department of Justice, ``Report to the
Deputy Attorney General on the Events at Waco, Texas, Feb. 28-Apr. 19,
1993,'' (Oct. 8, 1993) (unredacted version) at 266-270.
The military representatives stated that the FBI plan
to introduce tear gas into the compound was reasonable
and practical. The only aspect of the plan that the
military would do differently concerned the timing of
the gas insertion.
* * * * *
Hubbell recalls [that] the military representatives
indicated [that] they believed [that] the FBI plan as
presented would work and that after the gas was
inserted people in the [Branch Davidian compound] would
come out.\225\
---------------------------------------------------------------------------
\225\ FBI interview with Webster Hubbell, Associate Attorney
General, Department of Justice, in Washington, DC, 3 (Sept. 9, 1993)
(exhibit 78). Hubbell was the only person to make such statements that,
if believed, would indicate a violation of the posse comitatus
proscriptions. His statements to the Scruggs report investigators were
not challenged then or during the subsequent investigation. Scruggs'
colleagues also failed to corroborate Hubbell's statements by
interviewing Schoomaker, the Colonel, the Major or Dr. Salem. No other
attendee made similar statements. Records that documented that meeting
likewise contradict Hubbell's statement. Hubbell refused to cooperate
in the committee's investigation and be interviewed by its staff.
Letter from John Nields, Jr., partner, Howrey, Simon, Arnold & White,
and counsel for former Associate Attorney General Webster Hubbell, to
James Wilson, chief counsel, Committee on Government Reform, U.S. House
of Representatives (July 26, 2000) (exhibit 79).
Even though Scruggs and his colleagues knew that a
``vigorous and thorough investigation'' required that they
collect statements from ``all law enforcement, military,
civilian, and material witnesses''--especially those of
individuals upon whom Attorney General Reno so greatly relied--
no Justice Department or FBI investigator contacted any
military representative to interview them as to their
recollection of the meeting. Scruggs likewise failed to collect
contemporaneous notes of that meeting made by the Army Colonel,
the Army Major and Dr. Salem.\226\ Had they done so, they would
have discovered that the Army officers who attended the April
14, 1993, meeting had a far different recollection of events.
---------------------------------------------------------------------------
\226\ As will be discussed below, Scruggs and his colleagues failed
to interview the Apr. 14, 1993, meeting military participants and the
special operations personnel who traveled to Waco to observe and assist
the FBI with equipment. This failure, and the resulting rumors about
the actions of special operations personnel during the 51 day standoff,
are additional examples of harm caused by the failure to conduct a
thorough investigation.
---------------------------------------------------------------------------
Scruggs and his colleagues collected over 900 witness
statements during the course of their efforts. Surprisingly,
however, they failed to review these statements for potential
follow up investigation, or, even worse, reviewed the documents
but failed to realize their importance. For example, Scruggs,
Zipperstein, Cousins, Beverly and Gonzalez \227\ all told
committee staff that they were certain that someone on their
team interviewed and recorded statements from the April 14,
1993, Army attendees. No statements exist, however and, when
challenged, they had no explanation for their omissions.
---------------------------------------------------------------------------
\227\ The Department of Justice refused to make its Office of
Professional Responsibility Assistant Counsel Robert Lyon available for
interview with committee staff because, as its representatives
contended, Lyon served as a line attorney and, to do so, would violate
the Justice Department's long-standing policy of making line attorneys
available for congressional investigations. This argument lacks merit.
Scruggs returned to Miami on or about Dec. 10, 1995, where he resumed
his service as an Assistant U.S. Attorney. The Department of Justice
made Scruggs available for two interviews with committee staff. It also
made Hagen, Brown and other Justice Department attorneys available for
interview. Special Counsel Danforth's investigators interviewed all of
the attorneys. In any case, Justice Department documents make clear
that Reno possesses the authority to make line attorneys available for
congressional questioning in limited situations. See ``Talking Points
for the Attorney General--Production of Line Prosecutors,'' author
unknown (July 13, 1995) (exhibit 99). The Justice Department also
failed to make the Jahns available for an interview by committee staff
and, instead, referred the committee to their attorneys. The Jahns,
through their attorney, refused to cooperate. Letter from Andre Hollis,
senior counsel, Committee on Government Reform, U.S. House of
Representatives, to Gerald Goldstein, partner, Goldstein, Goldstein and
Hilley, and counsel for William ``Ray'' Jahn and LeRoy Jahn (Sept. 12,
2000) (exhibit 87); letter from Gerald Goldstein, partner, Goldstein,
Goldstein and Hilley, and counsel for William ``Ray'' Jahn and LeRoy
Jahn, to Andre Hollis, senior counsel, Committee on Government Reform,
U.S. House of Representatives (Sept. 21, 2000) (exhibit 88). In light
of President Clinton's and Attorney General Reno's numerous public
statements that the Justice Department would ``fully cooperate'' with
the ``all Congressional inquiries,'' these refusals to cooperate
further damage the Department and Reno's credibility with the American
people and the Congress. In contrast, the committee received full
cooperation from the FBI and, in particular, from: (1) the FBI Civil
Discovery Review Unit, ably led by Unit Chief Paul Cignoli; (2) FBI
Office of Public and Congressional Affairs Supervisory Special Agent
Ann Todd; and (3) former Special Counsel to the Assistant Director and
current FBI Office of Public and Congressional Affairs Section Chief
Eleni Kalisch.
---------------------------------------------------------------------------
Scruggs would have learned or should have realized from
even a cursory review of, for example, Riley's witness
statement, that evidence contradicting the FBI and Attorney
General Reno's statements that ``no FBI agent fired their
weapon on April 19, 1993'' might exist. Had Scruggs or his
colleagues reviewed the document, they could have further
questioned Riley and resolved the issue. In fact, Riley was not
contacted until November 1996, when the FBI's attorney,
Jacqueline Brown, contacted him. The civil litigation
plaintiffs also asserted in the response to the motion for
summary judgment that Riley's witness statement created a
material fact in dispute since it purported to record his
recollection of witnessing gunfire from the Sierra One
position. Once contacted, Riley offered a supplemental
statement stating that: (1) he had witnessed gunfire directed
towards the Sierra One position, not from Sierra One; and (2)
that Seavey had mis-recorded his statement.\228\ Again, had
this error been identified in 1993, the correction could have
been made in a timely fashion, included in Scruggs' 1993 Report
and deemed a non-issue by the American people, the civil
litigation trial court, Special Counsel Danforth and the
Congress.
---------------------------------------------------------------------------
\228\ FBI telephone interview with Charles Riley, Special Agent,
FBI (Nov. 19, 1996) (exhibit 22); John C. Danforth, Special Counsel,
U.S. Department of Justice, ``Interim Report to the Deputy Attorney
General Concerning the 1993 Confrontation at the Mt. Carmel Complex,
Waco, Texas'' 19, fn. 22 (2000).
---------------------------------------------------------------------------
Even more astounding, however, is the fact that Scruggs
failed to interview HRT Commander Richard Rogers personally
regarding the implementation of the FBI's proposed operations
plan. FBI Inspectors, as part of the FBI's standard operating
procedure, interview personnel when a shooting occurs. They
interviewed Rogers on April 21, 1993, and, again as a follow-
up, on June 7, 1993. It appears astounding, in hindsight, that
Scruggs, as the lead Justice Department attorney investigating
the events leading up to and including April 19, 1993, did not
speak with Rogers, who: (1) was the HRT commander and the
primary tactical advisor to Jamar; (2) selected the Army
officers who briefed Attorney General Reno on April 14, 1993;
and (3) was responsible for the creation and execution of the
FBI's proposed operations plan.\229\ Had Scruggs interviewed
Rogers regarding these issues, he would have learned, as
committee staff learned, that Rogers granted Corderman
permission to employ the pyrotechnic tear gas grenades because
he believed that Attorney General Reno had not proscribed the
use of those rounds. In addition, Scruggs would have learned
that active duty Army special operations personnel were present
inside the outer, State law enforcement-maintained perimeter on
April 19, 1993, and that HRT personnel possessed high explosive
grenades in case the Branch Davidians located within their
compound attempted to overrun FBI positions. All of these facts
surfaced in 1999 and led to committee and Special Counsel
Danforth's investigations.
---------------------------------------------------------------------------
\229\ Rogers told committee staff that he never spoke with Scruggs
until at least 1995. Interview with Richard Rogers, former Assistant
Special Agent in Charge and Commander, HRT, FBI, in Phoenix, AZ (Aug.
9, 2000).
---------------------------------------------------------------------------
Finally, had Scruggs asked HRT members, particularly Rogers
and Corderman, to detail what they did and when, they could
have, at least, learned of the use of the pyrotechnic tear gas
grenades. If Scruggs had collected all the audio and videotapes
as he contemplated, he would have learned of Corderman's
request for permission to fire the pyrotechnic rounds. In light
of Scruggs' statement that ``the gas delivery systems the FBI
used were completely non-incendiary,'' \230\ it is clear that a
``vigorous and thorough investigation'' did not take place in
1993.
---------------------------------------------------------------------------
\230\ Richard Scruggs, U.S. Department of Justice, ``Report to the
Deputy Attorney General on the Events at Waco, Texas, Feb. 28-Apr. 19,
1993,'' 324 (Oct. 8, 1993) (unredacted version) (Scruggs agrees with
the arson team conclusion that the FBI's methods of gas delivery was
``non-incendiary''); John C. Danforth, Special Counsel, U.S. Department
of Justice, ``Interim Report to the Deputy Attorney General Concerning
the 1993 Confrontation at the Mt. Carmel Complex, Waco, Texas'' 48
(2000).
---------------------------------------------------------------------------
In addition to its failure to conduct a thorough
investigation, the Scruggs team also encountered pressure from
senior Justice Department officials to conclude the
investigation as quickly as possible. Deputy Attorney General
Philip Heymann told committee staff that he wanted Scruggs to
complete the investigation in order to release their findings
at the same time as the Department of Treasury released its
report regarding the actions of Bureau of Alcohol, Tobacco and
Firearms.\231\ To presume that an investigation relating to a
51 day standoff that resulted in the deaths of 80 men, women
and children could be conducted, concluded and published at the
same time as the BATF investigation--an investigation that
concerned the actions of a horrible, but a less fatal prelude,
is incredible.
---------------------------------------------------------------------------
\231\ Interview with Professor Philip Heymann, former Deputy
Attorney General, Department of Justice, and current professor of law,
Harvard Law School, in Boston, MA (July 19, 2000).
---------------------------------------------------------------------------
In addition to the appearance of impropriety that this type
of pressure creates, it is fair to question whether Scruggs and
his colleagues might have in fact conducted a more thorough
investigation had they not been pressured to finish the Scruggs
report in a politically expedient fashion.\232\ Scruggs, former
Special Counsel to Assistant Attorney General Steve
Zipperstein, Heymann and others told committee staff that
Heymann often questioned Scruggs regarding when the
investigation would be concluded.\233\ Attorney General Reno's
sensitivity to these appearances of impropriety was
obvious.\234\ The Attorney General did not assign to Heymann
oversight responsibility for Scruggs' efforts. Scruggs did not
report his interim findings to the Attorney General, since she
was a subject of the investigation. In order to avoid
additional appearances of impropriety, moreover, Scruggs should
not have reported to the Attorney General's subordinates. The
fact that Heymann was allowed to pressure Scruggs to complete
the investigation remains disturbing.
---------------------------------------------------------------------------
\232\ To their credit, Scruggs and his colleagues did resist
perceived pressure from senior Justice Department officials including
David Margolis, Associate Deputy Attorney General, Department of
Justice and Carl Stern, Director, Office of Public Affairs, Department
of Justice to amend their draft findings to reflect more favorably upon
the Attorney General. See e.g., handwritten notes of September 20,
1993, meeting (author unknown) 1 (exhibit 100) (``[Steve Zipperstein]
objects to [this] meeting, [because] [Mark] Richard + [Carl] Stern are
precipient witnesses. . . . Objects again--that kind of input is not
supposed to occur in this process.'').
\233\ Interview with Professor Philip Heymann, former Deputy
Attorney General, Department of Justice, and current professor of law,
Harvard Law School, in Boston, MA (July 19, 2000); interview with
Richard Scruggs, Assistant U.S. Attorney, Department of Justice, in
Miami, FL (Jan. 4, 2000); interview with Steven Zipperstein, former
Special Counsel to the Assistant Attorney General, Criminal Division,
Department of Justice, in Los Angeles, CA (June 14, 2000).
\234\ When she and other Justice Department officials concluded
that an outside, analytical review of Scruggs' findings was necessary,
Attorney General Reno considered requesting former Attorney General
Benjamin Civiletti to conduct the review. According to Heymann,
however, she decided against Civiletti because Civiletti had written to
her to express his support of her in the aftermath of the fire.
Interview with Professor Philip Heymann, former Deputy Attorney
General, Department of Justice, and current professor of law, Harvard
Law School, in Boston, MA (July 19, 2000).
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G. Conclusions and Recommendations
The committee does not suggest that, when tragedy strikes a
law enforcement effort to resolve a crisis, senior Justice
Department officials are always wrong or inexperienced. In this
case, however, the Department of Justice's failure to exercise
the level of oversight that is expected during crises such as
Waco is of great concern. It is clear that no one within the
Department of Justice or the FBI's leadership knew prior to
April 19, 1993, that HRT was prepared to use pyrotechnic and
high explosive ammunition against the Branch Davidians.
Attorney General Reno and other officials within the Department
of Justice were concerned about the risk of fire and repeatedly
asked Rogers to minimize this risk. Rogers was aware of these
concerns but authorized use of pyrotechnic devices. Rogers was
duty-bound to notify his superiors of these plans so that
Attorney General Reno might fully understand the FBI's proposed
operations plan and, based upon that full understanding, grant
her approval. Had Rogers fulfilled his responsibility, it is
doubtful that Attorney General Reno would have approved their
use without specific, express limitations. It was also
incumbent upon Rogers to correct the Attorney General when she
testified to the Congress in 1995 that HRT personnel used no
device which could have caused or exacerbated the April 19,
1993, fire. Justice Department officials directed Rogers to sit
behind Attorney General Reno during the hearings in order to
ensure that she relied upon accurate information and that she
testified truthfully. Rogers' claims that: (1) he did not hear
Attorney General Reno testify inaccurately; and (2) even if he
had heard the Attorney General make the statement, in his mind
the statement was technically correct because he had believed
that the underground bunker was separate from the main Branch
Davidian compound, may or may not be true. The fact, however,
that Rogers failed to communicate this important distinction to
Attorney General Reno or the Congress, in 1993 or 1995, is
troublesome.
Justice Department attorneys William ``Ray'' Jahn, his
wife, LeRoy Jahn and Bill Johnston, the criminal trial
prosecutors, learned in November 1993 that HRT personnel fired
pyrotechnic tear gas rounds on April 19, 1993, but failed to
disclose this fact to their Justice Department superiors, to
the criminal trial defendants or to Marie Hagen. The Jahns and
Johnston recognized the importance of this information but
decided to disclose it during the criminal trials only if
necessary. The Jahns and Johnston's failure to disclose this
information was irresponsible, possibly unethical, an
additional reason for this committee's investigation, and a
reason for the appointment of the Special Counsel. Ray Jahn,
furthermore, told the Congress and the American people that,
``[o]n the 19th of April, though repeatedly fired upon by the
occupants of [the Branch Davidian compound], the FBI did not
fire a shot, other than non-lethal ferret rounds which carried
the CS gas.'' \235\ Jahn cannot now state that his testimony
was merely negligent when he and other members of the criminal
prosecution team knew in 1993 that Corderman had requested and
received authorization to fire pyrotechnic tear gas grenades.
---------------------------------------------------------------------------
\235\ ``Activities of Federal Law Enforcement Agencies Toward the
Branch Davidians (Part I),'' hearing before the Subcommittee on Crime
of the Committee on the Judiciary and the Subcommittee on National
Security, International Affairs, and Criminal Justice of the Committee
on Government Reform and Oversight, 104th Cong., 100, 107 (July 19,
1995) (statement of Ray Jahn, Assistant U.S. Attorney) (emphasis
added).
---------------------------------------------------------------------------
Likewise, Johnston also learned of Corderman's actions and
likewise did not ask for a Brady analysis. Johnston,
furthermore, requested and received the August 30, 1999,
subpoena that commanded the production of all documents to this
committee. In addition to the legal requirements of the
committee's September 8, 1999, subpoena to the Department of
Justice, to which Johnston also had to comply, the committee
provided Johnston ample opportunity to produce the documents
that he later found and withheld from Special Counsel Danforth
and this committee. His actions, while mitigated by his
assistance to and cooperation with the committee's
investigation in other respects, should be thoroughly
investigated.
In response to a request from Hagen, FBI Assistant General
Counsel Jacqueline Brown likewise learned in February 1996,
that HRT personnel fired pyrotechnic tear gas grenades on April
19, 1993. Unlike the Jahns, however, Brown did not recognize
the importance of this information. It is probable, however,
that Brown did discuss the information that she received with
her FBI supervisor and Hagen. In any case, Hagen, as the
Justice Department's lead civil litigation attorney had a duty,
once she asked Brown to research the issue, to ensure that
Brown provided her with the results of her research. Hagen is
responsible for the belated disclosure of this information to
the civil trial court and the plaintiffs.
Similarly, it is also clear that Scruggs failed to conduct
a ``vigorous and thorough investigation.'' Beset by time
limitations enforced by then-Deputy Attorney General Philip
Heymann, Scruggs and his colleagues failed to ask basic
questions, review evidence and conduct an agnostic
investigation. Information relating to the actions of HRT
personnel, consequently, was not disclosed. While the belated
disclosure of this information does not lead to the conclusion
that law enforcement or military personnel were responsible for
the April 19, 1993, fire, it did cause substantial damage to
the trust that the American people had in, and should expect
from, Federal law enforcement. The investigations conducted by
Special Counsel Danforth and this committee, therefore, became
necessary.
The disclosure of these facts by this committee and Special
Counsel Danforth's investigation could have been avoided had
the Department of Justice conducted a thorough investigation in
1993, as had been promised. Had Attorney General Reno appointed
an outside, objective investigator, as the Department of
Treasury had and as became necessary in 1999, the American
people could have learned the complete truth behind the
tragedy. Public confidence in the Department of Justice and
Federal law enforcement would have been greater and, perhaps,
61 percent of the American people would not have had the
grounds to believe that Federal law enforcement murdered over
80 Branch Davidian men, women and children.\236\
---------------------------------------------------------------------------
\236\ John C. Danforth, Special Counsel, U.S. Department of
Justice, ``Interim Report to the Deputy Attorney General Concerning the
1993 Confrontation at the Mt. Carmel Complex, Waco, Texas'' i (2000).
---------------------------------------------------------------------------
If similar tragedies occur in the future, the committee
recommends that future Attorneys General recognize the need for
objective, independent investigations to determine the complete
truth regarding the event. The conduct of an investigation that
is not thorough and supervised by an independent analyst
creates the real possibility of negligence.
VI. Department of Defense Support
A. Introduction
On August 2, 1996, subcommittees of the Committee on
Government Reform and Oversight and the Committee on the
Judiciary published a report on their joint investigation into
the activities of Federal law enforcement agencies toward the
Branch Davidians at Waco, TX.\237\ The subcommittee report
opens its discussion concerning the military's involvement as
follows:
---------------------------------------------------------------------------
\237\ See H. Rept. No. 104-749 (1996).
U.S. military involvement is one of the least explored
and most misunderstood elements of the events that took
place near Waco, Texas in 1993. The Treasury Department
report dedicated only 3\1/2\ of 220 pages to explaining
the military's involvement, and the Department of
Defense and National Guard Bureau have only recently
taken an interest in addressing some of the military
issues that Waco raised.\238\
---------------------------------------------------------------------------
\238\ Id. at 3.
The committee's current inquiry involved a review of
recently subpoenaed Department of Defense (DOD) documents, as
well as reports and other information associated with the
subcommittees' investigation in 1995. Committee staff also
interviewed, where necessary, military personnel and other
officials who were involved with the Waco operation to ensure
an enhanced understanding of the involvement of the military at
the time.\239\ The committee found four areas worthy of comment
regarding DOD's involvement with assistance to the BATF and FBI
during the Waco incident, and afterward when the American
people looked to the White House, the Department of Justice,
Treasury and DOD for an accounting of what happened at Waco,
and why.
---------------------------------------------------------------------------
\239\ The term ``military'' as used within this report includes
units, personnel and equipment of the Active and Reserve Components, to
inlcude the National Guard, unless otherwise indicated.
---------------------------------------------------------------------------
The committee investigated whether any actions of the
military during the Waco incident would constitute a law
enforcement use of the military prohibited by the Posse
Comitatus Act.\240\ The documents and information reviewed
during the committee's inquiry support the same finding of the
subcommittees in 1996 that no violation of the Posse Comitatus
Act occurred as a result of the military's support to the BATF
and the FBI at Waco. However, information developed during the
committee's current inquiry revealed that the Attorney General
and other senior Federal law enforcement officials unwittingly
attempted to involve two senior active duty Army officers in
activity that would have violated the Posse Comitatus Act.\241\
This occurred on April 14, 1993, when an Army general officer
and a colonel were asked to review and comment upon the
tactical details discussed within the FBI's proposed operations
plan to insert tear gas into the Branch Davidian compound. The
committee found that it was the active vigilance of these
officers that precluded a violation of the Posse Comitatus Act
when they declined to critique the details of the FBI's
proposed operations plan.
---------------------------------------------------------------------------
\240\ See 18 U.S.C. Sec. 1385 (1988), as amended.
\241\ See 10 U.S.C Sec. 101(d)(1), codified as amended by Public
Law 102-484. The term ``active duty'' means full-time duty in the
active military service of the United States. This does not include
full-time National Guard duty. See also 32 U.S.C. Sec. 101(12).
---------------------------------------------------------------------------
Throughout their investigation, the subcommittees
endeavored to elicit as much information as possible regarding
the scope, equipment, expenditures and justification for the
military support provided to the BATF and the FBI. Although the
subcommittees developed a significant amount of information,
they identified a need for more detailed accounting of the
military equipment and material associated with DOD's support;
the legal authority for providing the assistance; and, what
costs were incurred by the American people.\242\ To address
these concerns, the subcommittees asked the General Accounting
Office, the investigative arm of Congress, to audit the
military assistance provided to both the BATF and FBI, as well
as investigate the military counter-drug program through which
DOD's support was provided. Upon review of the GAO inquiry, the
committee discovered two notable omissions in the information
DOD provided to the GAO. The discrepancies concerned a failure
to account fully for military aerial reconnaissance support
provided to the BATF, and an unsatisfactory resolution of
questions surrounding the status of 250 high explosive 40-mm
grenades that Army documents indicate were issued to the FBI at
Ft. Hood, TX, during the Waco incident. Although the committee
found no evidence that high explosive grenades were used at
Waco, the status of these munitions has not been formally
resolved by DOD.
---------------------------------------------------------------------------
\242\ See H. Rept. No. 104-749 (1996) at 53-55.
---------------------------------------------------------------------------
The Justice and Defense Departments have had a continuing
duty over the last 7 years to clarify the public record with a
comprehensive and accurate accounting regarding the military's
involvement at Waco. Unfortunately, the Justice Department's
efforts have fallen short. Appendix B of the Scruggs report was
intended to be a comprehensive accounting of the military
personnel and equipment that supported the 51-day standoff at
the Branch Davidian compound.\243\ However, appendix B
significantly understated the number of military personnel who
supported the FBI during the standoff. The Scruggs report
indicated that a total of 28 military personnel supported the
FBI throughout the standoff, when in actuality, the number was
approximately 330 active duty and National Guard personnel who
intermittently provided assistance both on and off-site. The
regular duties of off-site military personnel were not
exclusively Waco-related.
---------------------------------------------------------------------------
\243\ See Richard Scruggs, U.S. Department of Justice, ``Report to
the Deputy Attorney General on the Events at Waco Texas, Feb. 28-Apr.
19, 1993,'' (Oct. 8, 1993) (unredacted version).
---------------------------------------------------------------------------
Although President Clinton directed the Departments of
Justice and Treasury to conduct an examination and assessment
of what occurred involving their personnel at Waco, DOD was not
similarly tasked to assess its involvement.\244\ The failure of
DOD to conduct its own internal review and prepare a
comprehensive report over the last 7 years has complicated
congressional inquiries and contributed to simmering skepticism
among the American people about the military's involvement at
Waco. A DOD assessment of support it provided would have been
of immeasurable assistance to both the Departments of Justice
and Treasury in their efforts to provide an accurate and
complete accounting of what occurred at Waco involving their
personnel.
---------------------------------------------------------------------------
\244\ See President William Clinton, remarks by the President in
question and answer session with the press in Washington, DC (Apr. 20,
1993) at 2 (exhibit 24).
---------------------------------------------------------------------------
The actions and decisions of officials from three cabinet-
level departments--Justice, Treasury and Defense--were
inextricably intertwined with the tragic events at Waco. All
three are accountable to the American people for their
involvement and the American people should have heard from each
of them. DOD's failure of judgment in not conducting an
assessment and preparing a report of its involvement
concurrently with the Justice Department and Treasury
investigations in 1993, has contributed to a persistent public
belief over the last 7 years that DOD engaged in wrongful
actions at Waco.
B. Was the Posse Comitatus Act Violated in Providing DOD Support?
During the subcommittee hearings in 1995, the actions of
military personnel and the use of military equipment at Waco
was of significant interest. Documents provided to the
subcommittees by DOD and the testimony of witnesses described
the military actions in support of both the ATF and FBI. During
its current inquiry, the committee reviewed the 1995
subcommittee material, as well as documents produced by DOD in
response to the committee's current subpoena. Committee staff
also conducted interviews of military personnel who were
involved with the Waco incident.
The committee found no evidence of any violation of the
Posse Comitatus Act by the military regarding the assistance
provided to the BATF and FBI during the Waco incident. The
committee's inquiry, however, revealed that the active
vigilance of two senior active duty Army officers precluded a
Posse Comitatus Act violation from occurring on April 14, 1993,
when these officers declined to actively critique the details
of the FBI's tactical operations plan for inserting tear gas
into the Branch Davidian compound.
1. Overview of the Posse Comitatus Act
Historically, there has been a generally accepted principle
that in the United States the military should not be involved
in civilian law enforcement.\245\ The clear separation between
civilian and military authority is embodied in the Declaration
of Independence and the U.S. Constitution. Congress codified
the principle by enacting the Posse Comitatus Act in 1878 in
response to the improper use of military troops in the South
during the post-Civil War reconstruction period. The statute
provides:
---------------------------------------------------------------------------
\245\ See H. Rept. No. 104-749 (1996) at 30-34. A more detailed
discussion of the Posse Comitatus Act and its application to events at
Waco is contained within the subcommittees' report. The discussion here
is a distillation of that overview and focuses on its application to
the participation by two senior Army officers in a meeting with
Attorney General Reno on Apr. 14, 1993.
Whosoever, except in cases and under circumstances
expressly authorized by the Constitution or Act of
Congress, willfully uses any part of the Army or Air
Forces as a posse comitatus or otherwise to execute the
laws shall 0be fined not more than $10,000 or
imprisoned not more than 2 years, or both.\246\
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\246\ 18 U.S.C. Sec. 1385 (1988), as amended. A post-Waco amendment
changed the penalty portion to read ``shall be fined under this title
or imprisoned not more than two years, or both.'' Violent Crime Control
and Law Enforcement Act of 1994 Sec. 330016(L), Public Law 103-322, 108
Stat. 2147.
No one has ever been prosecuted for violating the Posse
Comitatus Act.\247\ Due in part to a creeping acceptance of
military involvement in law enforcement action, the Posse
Comitatus Act has been invoked very rarely.\248\ Until the
criminal cases arising from the 1973 uprising at Wounded
Knee,\249\ civilian law enforcement apparently relied upon
military support without fear of recourse.\250\
---------------------------------------------------------------------------
\247\ Clarence I. Meeks II, ``Illegal Law Enforcement: Aiding Civil
Authorities in Violation of the Posse Comitatus Act,'' 70 Mil. L. Rev.
83, 128 (1975).
\248\ Id.
\249\ In 1973, a dissident Indian group forcibly took control of
the Wounded Knee Village on Pine Ridge Indian Reservation, South
Dakota. In support of Federal law enforcement agents, military
personnel provided an array of assistance, closely resembling the
military assistance provided to Federal law enforcement agents during
the Waco incident.
\250\ Peter M. Sanchez, ``The `Drug War': The U.S. Military and
National Security,'' 34 A.F.L. Rev. 1, 109 (1991).
---------------------------------------------------------------------------
Two active duty regular Army colonels were present at
Wounded Knee as DOD observers; however, these military
personnel also provided ``advice, urging, and counsel . . . to
Department of Justice personnel on the subjects of
negotiations, logistics, and rules of engagement.'' \251\ Four
criminal cases resulted from the Wounded Knee incident. In
each, defendants raised similar challenges to the military's
involvement.\252\ The diverse rulings on these challenges
raised questions about the legality of much of the military
assistance being broadly and regularly provided to law
enforcement agencies at the time.
---------------------------------------------------------------------------
\251\ Clarence I. Meeks II, ``Illegal Law Enforcement: Aiding Civil
Authorities in Violation of the Posse Comitatus Act,'' 70 Mil. L. Rev.
121 (1975). Similarly, during the Waco incident, two senior Army
officers were present when the Attorney General was briefed on the
FBI's plan to end the standoff and were asked to review the details of
the plan. They discussed other general matters, but declined to comment
on tactical details within the plan citing Posse Comitatus Act
concerns.
\252\ United States v. Jaramillo, 380 F. Supp. 1375 (D.Neb. 1975),
appeal dismissed, 510 F.2d. 808 (8th Cir. 1975); United States v.
Banks, 383 F. Supp. 368 (D.S.D. 1974); United States v. Red Feather,
392 F. Supp. 916 (D.S.D. 1975); United States v. McArthur, 419 F. Supp.
186 (D.N.D. 1976), aff'd sub nom., United States v. Casper, 541 F.2d
1275 (8th Cir. 1976), cert. denied, 430 U.S. 970 (1977).
---------------------------------------------------------------------------
In order to resolve questions raised by the Wounded Knee
cases, and at the urging of DOD and the Justice Department,
Congress enacted a number of general exceptions to the Posse
Comitatus Act in 1981.\253\ In general, the 1981 exceptions
authorized the military to make available to civilian law
enforcement agencies information collected during military
operations, training and advice, the use of military equipment
and facilities, and the use of some DOD personnel.\254\
However, direct involvement in activities that are
fundamentally law enforcement functions such as search,
seizure, and arrest are prohibited.\255\
---------------------------------------------------------------------------
\253\ See 10 U.S.C. Sec. 371-377; Defense Department Authorization
Act of 1982 Sec. 905, Public Law No. 97-86, 95 Stat. 1114, as amended
by National Defense Authorization Act Fiscal Year 1989 Sec. 1004,
Public Law No. 100-456, 102 Stat. 2043 (codified as amended at 10
U.S.C. Sec. 377).
\254\ 10 U.S.C., ch. 18.
\255\ Id.
---------------------------------------------------------------------------
The National Guard is not subject to the same legal
restrictions placed upon active duty and reserve military
personnel with regard to civilian law enforcement. \256\ Having
evolved from the State militia concept, the National Guard
holds the unique position as both a State and a national
military force. When acting as members of the State militia,
National Guardsmen are under the command and control of their
Governor, who is their Commander-in-Chief. When acting as a
part of the national military force, the President of the
United States is their Commander-in-Chief.
---------------------------------------------------------------------------
\256\ Steven B. Rich, ``The National Guard, Drug Interdiction and
Counterdrug Activities, and Posse Comitatus: the Meanings and
Implications of `in Federal Service,' '' 35 Army Law. 1 (1994). Active
and Reserve military personnel are both subject to the proscriptions
found in the Posse Comitatus Act, while the act only applies to
National Guard personnel when they have been called ``into federal
service.''
---------------------------------------------------------------------------
The National Guard has three different ``statuses'' under
current law. The first two are a Title 32 status (also called
``state active duty'' status), and a pure ``State status.''
\257\ Under either a Title 32 status or pure State status, the
Posse Comitatus Act does not apply. The third status is called
``Title 10 status,'' or ``Federal active duty'' status. Title
10 status occurs when the President or Congress takes
affirmative action to ``federalize'' a National Guard unit, as
in the case of a natural disaster or civil disturbance. Only in
a federalized status are National Guard personnel under the
command and control of the President of the United States, and
subject to the restrictions under the Posse Comitatus Act. The
Texas and Alabama National Guards were in a Title 32 status at
the time they provided support and assistance to the BATF and
FBI during the Waco incident.\258\
---------------------------------------------------------------------------
\257\ In pure State status, no Federal funding occurs.
\258\ See ``Investigation into the Activities of Federal Law
Enforcement Agencies Toward the Branch Davidians,'' Committee on
Government Reform and Oversight in Conjunction with the Committee on
the Judiciary, House of Representatives, H. Rept. No. 104-749 (1996) at
52.
---------------------------------------------------------------------------
2. FBI Briefing to the Attorney General on April 14, 1993, Regarding
the Proposed FBI Operations Plan
a. Involvement of DOD Representatives
On April 14, 1993, Attorney General Reno, Associate
Attorney General Hubbell, FBI Director Sessions and several
other Justice Department and FBI officials met at FBI
headquarters. Also in attendance were four DOD officials: then-
Brigadier General Peter Schoomaker, Assistant Division
Commander, First Cavalry Division at Ft. Hood, TX; an Army
colonel assigned within the U.S. Special Operations Command;
then-Major Scott Wells, assigned to the Pentagon; and Dr. Harry
Salem, Chief Scientist for Life Sciences, U.S. Army Chemical
Biological Defense Command, Aberdeen Proving Ground, MD. Each
of these DOD representatives was interviewed by committee staff
during this inquiry.\259\
---------------------------------------------------------------------------
\259\ Interview with General Peter Schoomaker, U.S. Army, in McDill
AFB, Florida (Jan. 13, 2000). At the time of the interview with
committee staff, General Schoomaker was on active duty as the Commander
of the U.S. Special Operations Command, McDill AFB, Florida; interview
with an Army general currently assigned to a unit within USSOCOM, in
McDill AFB, Florida (Jan. 13, 2000). At the time of the Waco incident,
this Army general was a colonel assigned to a unit within USSOCOM, and
he is referred to as ``an Army colonel'' throughout this report;
interview with LTC Scott Wells, U.S. Army, (Ret.) in Washington, DC
(July 14, 2000). LTC Wells was a major at the time of the Waco
incident; interview with Dr. Harry Salem, Department of the Army, in
Aberdeen Proving Grounds, Maryland (July 26, 2000).
---------------------------------------------------------------------------
On or about April 13, 1993, Assistant to the President and
Deputy Counsel to the President Bruce Lindsey advised Associate
Attorney General Webster Hubbell that the military should be
consulted regarding the FBI's proposed operations plan. Lindsey
indicated that President Clinton would want to know that the
military had an opportunity to review it.\260\ Lindsey
indicated to Hubbell that President Clinton mentioned that the
military had some involvement in the Ft. Chafee incident in
Arkansas while he was Governor. At the meeting, Hubbell
indicated to Lindsey that plans were under way to meet with the
military.\261\ Hubbell reported these developments to the
Attorney General. The FBI was tasked to have military
representatives review the plan and attend the meeting with
Attorney General Reno scheduled for the next day.\262\ Based
upon his professional interaction and personal regard for them,
Rogers contacted Brigadier General Schoomaker and the Army
colonel on April 13, 1993 and asked them to attend.\263\ DOD
approved the FBI's request for the attendance of both senior
Army officers.\264\
---------------------------------------------------------------------------
\260\ See Richard Scruggs, U.S. Department of Justice, ``Report to
the Deputy Attorney General on the Events at Waco, Texas, Feb. 28-Apr.
19, 1993,'' appendix B at 258 (Oct. 8, 1993) (unredacted version).
\261\ Id. at 279. Attorney General Reno received her first briefing
on the proposed FBI operations plan on Monday, Apr. 12, 1993. At that
meeting Associate Attorney General Hubbell suggested that they consult
with the military about the effects of gas.
\262\ The committee found no evidence that Justice Department or
FBI personnel consulted with the military regarding the HRT operations
plan prior to Apr. 14, 1993.
\263\ Interview with General Peter Schoomaker, U.S. Army, in McDill
AFB, Florida (Jan. 13, 2000); interview with an Army general currently
assigned to a unit within USSOCOM, at McDill AFB, Florida (Jan. 13,
2000).
\264\ Department of Defense document production Z0033619(U),
Z0041496(U), Z0035388(U), Z0036114(U), Z0041511(U)-Z004512(U),
Z0041508(U)-Z0041509(U), Z0041506(U)-Z0041507(U), Z0041510(U),
Z0030706(U)-Z0030709(U) (exhibit 101).
---------------------------------------------------------------------------
The FBI flew Brigadier General Schoomaker and the Army
colonel to Washington, DC, on FBI aircraft on the morning of
April 14, 1993. On the aircraft, HRT commander Rogers briefed
them regarding the proposed operations plan and provided them a
copy for their review. Brigadier General Schoomaker recalled
Rogers asking him for his opinion of the plan, and he indicated
it was not appropriate for him to comment; he ``couldn't grade
your paper.'' \265\ Both officers believed Rogers wanted their
support for the plan. Brigadier General Schoomaker indicated
that the FBI viewed the Army colonel and him as experts and
wanted them to review the CS plan and offer their opinion and
support. The Army colonel indicated that Rogers never asked him
directly for his opinion concerning the plan. However, the Army
colonel indicated that it seemed understood that Rogers wanted
``feedback and input'' from Brigadier General Schoomaker and
himself. The Army colonel further indicated that his superiors
told him not to support or oppose the FBI's plan and not to
give tactical advice.\266\
---------------------------------------------------------------------------
\265\ Interview with General Peter Schoomaker, U.S. Army, in McDill
AFB, Florida (Jan. 13, 2000).
\266\ Id.
---------------------------------------------------------------------------
During the afternoon briefing, Attorney General Reno asked
why they ``would not grade the plan.'' Brigadier General
Schoomaker responded that the Posse Comitatus Act prevented him
from doing so, as well as the fundamental differences in
purpose and function between the military and law enforcement.
Brigadier General Schoomaker further indicated that Attorney
General Reno appeared to have a good grasp of the plan being
briefed, and did not appear too surprised at their refusal to
``grade the paper.'' \267\ The Army colonel recalled that at
some point during the discussion of the operations plan,
Hubbell asked: ``[I]s this legal?'' The Army colonel did not
answer when Hubbell looked at him, but stated during his
interview with committee staff that his private thought at the
time was: ``[t]hat's your job, not mine.'' \268\
---------------------------------------------------------------------------
\267\ Id.
\268\ Interview with an Army general currently assigned to a unit
within USSOCOM, in McDill AFB, Florida (Jan. 13, 2000).
---------------------------------------------------------------------------
According to the Army colonel, both officers were in an
``uncomfortable'' situation.\269\ They had high regard for HRT
commander Rogers and the HRT. However, they did not like the
plan because of its incremental approach to inserting tear gas,
but were not in a position to say so. They both indicated it
was a law enforcement plan, not a military operation. The Army
colonel indicated that Brigadier General Schoomaker made it
very clear they were not going to assess the plan one way or
the other.\270\
---------------------------------------------------------------------------
\269\ Id.
\270\ Id.
---------------------------------------------------------------------------
Brigadier General Schoomaker and the Army colonel told
committee staff that when they left the April 14, 1993,
meeting, they were convinced the FBI would never execute the
proposed operations plan as it was briefed at the meeting. The
Army colonel stated he believed the Attorney General ``didn't
buy the plan being proposed by the FBI.'' \271\ Brigadier
General Schoomaker stated that Attorney General Reno made no
decision regarding the plan at the meeting, but his impression
from the meeting was that no one thought it was a smart way to
proceed.\272\ He went on to state that he was astonished when
he saw the fire on TV on April 19, 1993. According to Brigadier
General Schoomaker, he wondered why anyone would make the
decision to follow through with the FBI's proposed operations
plan as it had been described at the meeting.\273\
---------------------------------------------------------------------------
\271\ Id.
\272\ Interview with General Peter Schoomaker, U.S. Army, in McDill
AFB, Florida (Jan.13, 2000).
\273\ Id.
---------------------------------------------------------------------------
Brigadier General Schoomaker told committee staff that his
thought at the time of the meeting with Attorney General Reno
was that HRT should have put a fence around the compound and
waited until the Branch Davidians came out from hunger, but he
did not state this thought openly at the meeting. He further
stated that he was surprised that, given the efforts taken by
the FBI to have the Army colonel and himself present for the
meeting, there was little consultation with them.\274\
---------------------------------------------------------------------------
\274\ Id.
---------------------------------------------------------------------------
During the meeting, Brigadier General Schoomaker and the
Army colonel offered general comments about the possible need
for HRT personnel, at some point, to be pulled away from the
compound for rest and refresher training. They also indicated
that in a military operation, they would concentrate their
action on ``taking out the leadership'' of a target
organization. They also discussed their experiences with tear
gas, as well as their knowledge of potential effects and
reactions of people once exposed to tear gas.\275\
---------------------------------------------------------------------------
\275\ Interview with General Peter Schoomaker, U.S. Army, in McDill
AFB, Flordia (Jan. 13, 2000); interview with an Army general currently
assigned to a unit within USSOCOM, in McDill AFB, Florida (Jan. 13,
2000).
---------------------------------------------------------------------------
On May 13, 1993, approximately 1 month after the meeting
with Attorney General Reno, the Army colonel prepared a
memorandum for his commander providing a synopsis of what was
discussed at the meeting.\276\ Brigadier General Schoomaker and
the Army colonel reviewed the memorandum during their
interviews. Brigadier General Schoomaker indicated that to the
best of his recollection, it was a ``pretty accurate'' synopsis
of the meeting. The Army colonel indicated in his memorandum
that he did not believe the FBI or the Attorney General was
trying to force them to support or defend the plan. He further
stated it was his belief that they simply wanted any
observations that Brigadier General Schoomaker and he felt
comfortable in providing.\277\ Both officers indicated they
were never contacted or interviewed by anyone associated with
the Department of Justice's after-action inquiry. Neither
officer has ever been asked to provide a written statement
regarding their involvement with any Waco events, except for
the memorandum prepared by the Army colonel for his
commander.\278\
---------------------------------------------------------------------------
\276\ See memorandum from Commander, [Army unit], to Commander,
U.S. Army Special Operations Command, (May 13, 1993) Department of
Defense document production Z0040342-0040345 (exhibit 102).
\277\ Id at 4.
\278\ Interview with General Peter Schoomaker, U.S. Army, in McDill
AFB, Florida (Jan. 13, 2000); interview with an Army general currently
assigned to a unit within USSOCOM, in McDill AFB, Florida (Jan. 13,
2000).
---------------------------------------------------------------------------
During his interview with committee staff, Major Wells
indicated his present memory was unclear regarding what exactly
occurred or was said at the meeting with Attorney General Reno.
He did, however, vaguely recall that one of the senior Army
officers indicated something to the effect that they ``could
not grade their paper'' which, to him, referred to the FBI's
proposed operations plan.\279\
---------------------------------------------------------------------------
\279\ Interview with LTC Scott Wells, U.S. Army, in Washington, DC
(July 14, 2000). On Apr. 14, 1993, LTC Wells was a major.
---------------------------------------------------------------------------
Major Wells did not know he was to attend the meeting on
April 14, 1993, as a DOD representative until that morning. He
was not informed who else was going to attend. Major Wells
stated that if it was known that the Attorney General and other
senior Justice Department officials would be attending, an
officer more senior than he would have been sent. Major Wells
did know the topic for the meeting related to Waco, but did not
know that Brigadier General Schoomaker, the senior Army
colonel, or Dr. Salem would be there. In sum, he had no idea
what was to occur or what his role would be other than to
attend and take notes. Major Wells did not offer any comments
at the meeting and was not asked any questions.\280\ He
prepared very sketchy handwritten notes as the meeting
progressed. Major Wells reviewed his notes with committee staff
during his interview.\281\
---------------------------------------------------------------------------
\280\ Id.
\281\ See Department of Defense document production Z0003945-
0003949 (exhibit 103). These undated notes were prepared by Major Wells
during the Apr. 14, 1993, meeting with Attorney General Reno.
---------------------------------------------------------------------------
Dr. Salem was present at the April 14, 1993, meeting as an
expert on the effects of CS tear gas. As with Major Wells, his
recollection of what individuals said at the meeting was
unclear at best. After Dr. Salem attended the meeting, he
returned to his command and prepared notes to assist him when
he discussed details of the meeting with his superiors. In
addition, he discussed the meeting in an e-mail message, and
prepared an information paper on CS Riot Control Agent.\282\
---------------------------------------------------------------------------
\282\ See Department of Defense document production Z0013112-
0013115, Z0023557-Z0023558 (exhibit 104). These documents were prepared
by Dr. Salem shortly after the Apr. 14, 1993, meeting with Attorney
General Reno.
---------------------------------------------------------------------------
b. Military Representatives Never Endorsed the FBI
Operations Plan
Since April 19, 1993, there have been a number of
statements by or attributed to the Attorney General regarding
the involvement and comments of Brigadier General Schoomaker
and the Army colonel during the April 14, 1993, meeting. These
comments and remarks give the clear impression that according
to Attorney General Reno, Brigadier General Schoomaker and the
Army colonel endorsed or otherwise offered their approval of
the FBI's proposed operations plan on April 14, 1993. Both
officers stated to committee staff during their interviews that
they made it clear to HRT Commander Rogers on the plane
traveling to Washington, DC, and to Attorney General Reno at
the meeting, that they could not offer any such endorsement.
Examples of misleading statements concerning the involvement of
these two officers include the following:
Remarks by President Clinton on April 20, 1993
On April 20, 1993, President Clinton spoke to the American
people regarding the tragic ending of the standoff at the
Branch Davidian compound. During his remarks he discussed the
questions he asked Attorney General Reno during their telephone
conversation on April 18, 1993, in which she discussed her
decision to approve the FBI proposed operations plan. President
Clinton remarked:
The third question I asked was, has the military been
consulted? As soon as the initial tragedy came to light
in Waco, that's the first thing I asked to be done,
because it was obvious this was not a typical law
enforcement situation. Military people were then
brought in, helped to analyze the situation and some of
the problems that were presented by it. And so I asked
if the military had been consulted. The Attorney
General said that they had, and that they were in basic
agreement that there was only one minor tactical
difference of opinion between the FBI and the
military--something that both sides thought was not of
overwhelming significance.\283\
---------------------------------------------------------------------------
\283\ President William Jefferson Clinton, remarks by the President
in a question and answer session with the press, Washington, DC, at 3
(Apr. 20, 1993) (exhibit 24).
---------------------------------------------------------------------------
The Attorney General's Testimony Before Congress
The Attorney General testified before the House Committee
on the Judiciary on April 28, 1993, regarding the Waco incident
and the tragic ending of the standoff. During her testimony she
commented upon the remarks made by Brigadier General Schoomaker
and the Army colonel. Attorney General Reno testified as
follows:
But we continued to deliberate; and in the course of
our deliberations, we met with Gen. Peter Schoomaker
and [Army colonel], former and present commanders of
[Army unit], respectively, the Army's equivalent to the
FBI's HRT, to review the plan. Their comments were
instructive.
While indicating the plan appeared to be sound, one
suggestion was that rather than an incremental approach
for the use of the gas as proposed by the FBI, gas
should be inserted into all portions of the compound
simultaneously. I preferred the FBI approach which
called for a gradual increase in pressure over time. It
seemed to me that that would be best to ensure the
safety of those inside.
* * * * *
We had explored other possible alternatives. As I
suggested to you, the FBI, before I had been sworn in,
and then I concurred totally with them, rejected any
direct assault on the compound as being far too
dangerous for the agents and for those inside the
compound.
We asked to meet with military officials. The general
who was the former commander of [Army unit] and the
colonel presently commanding the [Army unit] came to
Washington and met with us and FBI officials after they
reviewed the plan and we consulted very carefully about
that.
One of the points raised for the first time by the
[Army unit] commander and previous commander was that
the HRT had to be at a constant state of readiness and
that to keep them on a scene for the length of time
that these agents had been on the scene began to raise
questions that they could not remain there much longer
and still be in the state of readiness which should be
expected of an HRT team.
I asked, ``Well, isn't there another team,'' and was
advised no, except for [Army unit], and then I believe
the Navy has a force for marine disasters. We explored
the provisions of posse comitatus and became convinced
that you could not use the [Army unit] in a civil
situation.
* * * * *
Q. Once the decision was made to force the issue, then
it became a situation of how best to accomplish that
tactically. It appears from your testimony that there
was uniform consensus that tear gas would be an
effective means of doing that. I note in your testimony
that [Army unit] advisors, General Schoomaker and [Army
colonel], suggested it be introduced in overwhelming
amounts quickly. Rapidly. I would presume to not only
upset physically but to, just the shock value of such
an event.
That recommendation was rejected for a more phased
approach, which started at 6 a.m. in the morning until
12 noon when the fire began giving 6 hours in which
plans could have been hatched to incinerate the
compound or prearranged plans could have been put into
effect.
In retrospect, and not in the sense to assess
responsibility but to look forward, could you elaborate
on the advice you received from [Army unit] and why
that advice was not followed for a more comprehensive
approach?
A.G. Reno. We discussed it at length, and both the head
of the Hostage Rescue Team was there, the FBI, and it
was a good and frank discussion with the [Army unit] on
what would be the appropriate way to proceed.
The more measured approach, again, went to the fact
that we hoped they would not panic and would come out
in an orderly way. That is what precipitated our
decision. Ironically, once they fired, the FBI did not
return the fire but the FBI then began to insert the
gas almost immediately and so in effect, [Army unit's]
recommendation was carried out.\284\
---------------------------------------------------------------------------
\284\ ``Events Surrounding the Branch Davidian Cult Standoff in
Waco, Texas,'' hearings before the House Committee on the Judiciary,
103d Cong., (1993) at 15-16, 19, 64.
---------------------------------------------------------------------------
The Attorney General's 60 Minute Interview
On May 12, 1995, Attorney General Reno participated in a
``60 Minutes'' interview with Leslie Stahl. During the
interview, Stahl questioned Attorney General Reno regarding
what factor finally enabled her to make the decision to approve
the FBI's proposed operations plan:
Q. Now key question. What did they tell you that
finally tipped the scales so that you said, OK, let's
do the tear gas?
A.G. Reno. I can't say there was one particular point
that finally tipped it. I think it was probably
Saturday afternoon, April the 17th, which is the day I
finally gave the go-ahead. And as of Friday night I
didn't feel comfortable enough with proceeding. But I
think it was the culmination of all the factors, that
the situation in the compound was deteriorating, that
we were concerned about people in the compound and the
fact that he could do what he did at any time and we
would be in the less favorable position to control it.
That the HR? I was influenced by the fact that I had
met with the United [----]
Q. Did you say HRI? I'm sorry, who was influenced, I
didn't understand what you said?
A.G. Reno. I'm sorry.
Q. OK, Go ahead, I'm sorry.
A.G. Reno. I was influenced by the fact that I had had
the opportunity to meet with the two military
commanders who had commanded the HRT forces for the
military.
Q. Oh, hostage rescue team?
A.G. Reno. Yes. They were concerned as they reviewed
our plan, they said it was an excellent plan but they
were concerned that the HRT team after having been on
the scene for 51 days was getting so exhausted that it
was not going to be effective and that that was
creating a dangerous situation[.] \285\
---------------------------------------------------------------------------
\285\ Leslie Stahl, ``60 Minutes'' interview with Janet Reno, U.S.
Attorney General and Leslie Stahl, at 4 (May 12, 1995).
---------------------------------------------------------------------------
Attorney General Reno's Interview with Members and Staff of
the Committee on Government Reform on October 5, 2000
On October 5, 2000, committee staff interviewed Attorney
General Reno regarding, among other issues, her actions and
decisions concerning the Waco matter:
Q. It is 263 of the Scruggs Report. It says, I asked
that the military be consulted. Attorney General Reno
stated the military had been consulted and that they
were in basic agreement with the FBI recommendation.
She explained that there was a minor technical
difference of opinion, but both the FBI and the
military agreed that it was not of overwhelming
significance. Is this, to the best of your knowledge, a
correct statement?
* * * * *
A.G. Reno. I wouldn't have called it a technical [----
].
Q. That actually was going to be my next question. What
is that which was referred to as the minor technical
difference of opinion?
A.G. Reno. The difference of opinion was whether, as I
recall, they were fired on. The military indicated that
it would insert tear gas throughout the building and
the Bureau wanted to do it in a more measured way.
Q. Okay. Shortly after the Waco tragedy on May 12,
1995, you appeared with Leslie Stahl on 60 Minutes and
during that interview Ms. Stahl asked about your final
decision to approve the FBI plan to proceed. And if we
could, let's provide a copy of this.
* * * * *
The question is did the military commanders indicate to
you that the FBI's plan was excellent?
A.G. Reno. That was my impression.
Q. What did they say to you about the plan to the
extent you recall?
A.G. Reno. My remembrance--and this was--I need the--
here it is. The best information I have, and I will
check to see if there are others, actually of what was
said at the time from Hubbell's 302 of August the 9th,
1993: The military representatives stated the plan to
introduce tear gas into the compound was reasonable and
practical. The only aspect of the plan that the
military would do differently concerned the timing of
the gas insertion.
Q. Was there any reticence on behalf of the military
personnel present to provide commentary on the plan?
A.G. Reno. I don't recall any reticence, but none was
expressed to me as I remember.
Q. Do you recall any comment to the effect that they
could not grade the paper?
A.G. Reno. They couldn't grade the paper in terms of it
being a law enforcement initiative as opposed to a law
enforcement initiative as opposed to a military
initiative. In a military initiative issues with
respect to loss of life and the use of force would be a
different situation.
Q. Do you recall that comment being made?
A.G. Reno. I don't recall the ``grade your paper''
comment, but I recall the fact that whether they--and I
recall it and we'd have to double-check. My sense was
that they thought it was a reasonable and practical
plan, but they couldn't be the judge and nobody was
asking them to be the judge of a law enforcement
initiative where rules of engagement would apply that
would be different than the military.
Q. We have--through the interviews that we have
conducted we have been told that the General that was
present told you that neither he nor the Army colonel
could approve or disapprove or offer you any opinion
about the plan thus there appears to be a slight
divergence.
A.G. Reno. I don't think so because they couldn't
approve the plan. It was going to be me.
* * * * *
Q. Thank you very much. They did indicate to you though
that they were not able to offer an opinion about the
plan? Not just an approval or disapproval of the plan,
but an opinion.
A.G. Reno. I think they could not offer an opinion
about the plan from the law enforcement perspective.
Q. But that leads to a divergence between your
indication that they thought it was an excellent plan--
I mean, if you are telling the 60 Minutes individual [
]
A.G. Reno. My impression, after this passage of time,
is based on what I see here and that statement is that
they made clear that they couldn't approve a plan that
was a law enforcement plan as opposed to a military
plan that provided for the insertion of gas in a
gradual way, even if they were fired upon. As I
indicated to you, they said that if they were fired
upon, they would go right back at them and fully gas.
And I think that was clear.\286\
---------------------------------------------------------------------------
\286\ Preliminary Transcript of Interview with Janet Reno, U.S.
Attorney General, in Washington, DC at 96:5-101:4 (Oct. 5, 2000) (on
file with the committee).
---------------------------------------------------------------------------
c. The Statements of the Attorney General and the President
Stand in Stark Contrast to Those of the two Senior
Army Officers
The evidence developed during this inquiry clearly
demonstrates that the intent of having Brigadier General
Schoomaker and the Army colonel attend the April 14, 1993,
meeting with Attorney General Reno was to have them review and
provide comments and opinions regarding the merits of the FBI's
proposed operations plan to end the standoff. The plan was
specifically intended to force the Branch Davidians out of the
compound so law enforcement agents could execute search and
arrest warrants. While Attorney General Reno says that General
Schoomaker and the Army colonel indicated to her that the FBI's
proposed operations plan was ``excellent,'' in one case and
``sound'' in another, both officers in separate interviews
stated they were careful not to evaluate the plan--``not grade
the paper'' in any manner.
Brigadier General Schoomaker and the Army colonel should be
complimented for their vigilance in avoiding a violation of the
Posse Comitatus Act by refusing to give Attorney General Reno
and the FBI advice on the tactical details or merits of the
plan. Without their caution and concern, they would have become
active and direct participants in planning the FBI's flawed
operation.\287\
---------------------------------------------------------------------------
\287\ See H. Rept. No. 104-749, 39-40 (1996). A somewhat similar
event occurred when the BATF sought certain types of military
assistance. Prior to the BATF raid on the Branch Davidian compound on
Feb. 28, 1993, BATF requested assistance be provided from an Army
Special Forces unit attached to JTF-6 at Ft. Bliss, TX. The request
asked that the military assist in a ``review and scrub'' of the BATF
operation, provide medical support close to the scene of the raid, and
assistance in constructing and developing rehearsal sites. The
commander of the unit, Major Mark Petree, U.S. Army, and Major Brent
Ballard, U.S. Army, special operations representative to JTF-6, El
Paso, TX, discussed their concern about the request with LTC Phil
Lindley, U.S. Army, legal advisor at Army Special Operations Command
Headquarters at Ft. Bragg, NC. LTC Lindley expressed serious concerns
and objections to JTF-6 that the scope of support involved possible
Posse Comitatus Act violations and it was scaled back. Active vigilance
of the military officers involved resulted in a reduction in the scope
of support and precluded any Posse Comitatus Act violations.
---------------------------------------------------------------------------
It is troublesome that Brigadier General Schoomaker and the
Army colonel were never interviewed by anyone during the
Scruggs inquiry. The committee finds it very disturbing that
senior White House officials and other senior law enforcement
officials unwittingly or not, placed senior military officers
in a situation where the discussions at the meeting confronted
them with violating the Posse Comitatus Act. The committee
finds it most disturbing that President Clinton and Attorney
General Reno have mischaracterized what the military officers
told her, and deceived the American people for the last 7 years
by indicating that the military endorsed or otherwise approved
the details of the FBI's proposed operations plan.
C. The General Accounting Office Report
During the subcommittees' hearings in 1995, interest was
expressed regarding the military support, especially material
and equipment, provided to the BATF and FBI in connection with
their law enforcement activities at the Branch Davidian
Compound.\288\ On July 20, 1995, Assistant Secretary of Defense
for Special Operations/Low Intensity Conflict, H. Allen Holmes,
testified and agreed to provide the subcommittees a complete
accounting of military support provided to the BATF and FBI at
Waco.\289\
---------------------------------------------------------------------------
\288\ ``See Investigation Into the Activities of Federal Law
Enforcement Agencies Toward the Branch Davidians (Part 1),'' hearings
before the Subcommittee on Crime of the House Committee on the
Judiciary and the Subcommittee on National Security, International
Affairs, and Criminal Justice of the House Committee on Government
Reform and Oversight, 104th Cong., 163 (1995).
\289\ Id. at 406.
---------------------------------------------------------------------------
On January 23, 1996, Secretary Holmes provided the
subcommittees with an incomplete accounting.\290\ Troubled by
the lack of available detail concerning the scope and cost of
military assistance, the subcommittees requested that the GAO
audit the military assistance provided at Waco and investigate
the activities of Operation Alliance \291\ in light of the Waco
incident.\292\
---------------------------------------------------------------------------
\290\ See letter from the Honorable H. Allen Holmes, Assistant
Secretary of Defense for Special Operations/Low Intensity Conflict,
Department of Defense, to the Honorable William H. Zeliff, chairman,
Subcommittee on National Security, International Affairs, and Criminal
Justice, Committee on Government Reform and Oversight, Department of
Defense document production Z0032599(U)-Z0032608(U), (Jan. 23, 1996)
(exhibit 105).
\291\ Operation Alliance is a government office which coordinates
joint military and civilian counter drug operations along the southwest
border of the United States.
\292\ See H. Rept. No. 104-749, 55 (1996) at 55.
---------------------------------------------------------------------------
GAO's specific objectives were to:
LDetermine whether the BATF's requests for support
from military counterdrug programs met requirements for
authorizing that support;
LIdentify the measures the BATF took to deal with any
drug activity it might find during its warrant service, and
determine whether those measures were appropriate for such
operations where a methamphetamine laboratory might be
encountered; and,
LAccount for the type, costs, and reimbursements of
all military support, including that from counterdrug programs,
provided to the BATF and the FBI.\293\
---------------------------------------------------------------------------
\293\ See ``Department of Defense: Military Assistance Provided at
Branch Davidian Incident,'' 1-2, (GAO/NSIAD/OSI-99-133, Aug. 26, 1999)
(exhibit 4).
On August 26, 1999, GAO concluded its inquiry and issued
---------------------------------------------------------------------------
its report. It concluded:
The ATF requests for assistance from military
counterdrug programs met the requirements of the
relevant statutes for authorizing such support. In
these written requests, ATF cited its suspicions of
drug activity. In both cases, the military reasonably
exercised its discretion in providing that support as
authorized under the relevant statutes.
In planning how it would serve warrants at the
compound, ATF planned for the possibility of
encountering a methamphetamine laboratory or other
hazardous drug materials. As required by agency policy,
ATF agents in the operation were made aware of the
suspected laboratory and of the appropriate
precautions. Moreover, DEA agents were at the command
post to handle any drug-related materials.\294\
---------------------------------------------------------------------------
\294\ Id. at 17.
BATF officials submitted two requests for military
assistance as they prepared for their dynamic entry upon the
Branch Davidian compound to serve arrest and search warrants
upon David Koresh during the January-February 1993 period. In
order to receive non-reimbursable military assistance at Waco,
BATF was required to demonstrate a ``drug nexus'' within their
investigation. The adequacy of the BATF's evidence supporting a
drug nexus was disputed by the subcommittees.\295\ In this
current oversight investigation, the committee has not sought
to reopen that issue. Rather, it continues to hold to the
conclusions reached in 1995, that the BATF had insufficient
evidence of a drug nexus to seek either a search warrant or
non-reimbursable military support.
---------------------------------------------------------------------------
\295\ See H. Rept. No. 104-749, 53 (1996). The subcommittees
concluded that the BATF intentionally misled DOD and military personnel
as to whether the Branch Davidians were operating an illegal
methamphetamine lab at the Branch Davidian compound.
---------------------------------------------------------------------------
1. Unresolved Issues Concerning Accounting for the Type, Costs, and
Reimbursements of All Military Support within the GAO Report
After reviewing the GAO report, committee staff found the
summary of military assistance provided by Assistant Secretary
Holmes in January 1996 to be inaccurate and incomplete. It
failed to address two support issues. First, there was no
discussion of the aerial reconnaissance support provided by the
Alabama National Guard.\296\ Second, as GAO investigators
discovered, the Army did not bill the FBI for 500 rounds of 40-
mm grenade launcher ammunition and cannot say definitively to
this day whether the rounds were actually provided. The
munitions in question included 200 target-practice rounds, 50
illumination rounds, and 250 high explosive (HE) rounds.\297\
---------------------------------------------------------------------------
\296\ See letter from the Honorable H. Allen Holmes, Assistant
Secretary of Defense for Special Operations/Low Intensity Conflict,
Department of Defense, to the Honorable William H. Zeliff, chairman,
Subcommittee on National Security, International Affairs, and Criminal
Justice, Committee on Government Reform and Oversight, U.S. House of
Representatives, at 9 (Jan. 23, 1996) (exhibit 105).
\297\ See ``Department of Defense: Military Assistance Provided at
Branch Davidian Incident,'' 28 (GAO/NSIAD/OSI-99-133, Aug. 26, 1999)
(exhibit 4).
---------------------------------------------------------------------------
Documents and other evidence provided to the subcommittees
in 1995, and later, to committee staff during this recent
inquiry, indicate that HRT agents employed the target practice
munitions at Ft. Hood, TX, to gain firing familiarization in
preparation for the FBI's plan to insert 40-mm ferret CS gas
grenades into the Branch Davidian compound.\298\ There was no
discussion in the FBI's proposed operations plan, however, that
explained the need for high-explosive rounds to be issued to
the FBI for their use at Waco. DOD has failed to formally
resolve the status of the 250 high explosive (HE) rounds
purportedly issued to the FBI.
---------------------------------------------------------------------------
\298\ See Department of Defense document production Z0022040, D635,
D1822, D712, D1857-1858, DTG 111550Z MAR93, DTG 121323Z MAR93, Z0010339
(exhibit 106).
---------------------------------------------------------------------------
DOD considers the discrepancies between the GAO report and
the summary provided by Secretary Holmes to be minor. The
committee disagrees. An accurate accounting of the use of
military combat aircraft and high explosive munitions provided
by the military to support civilian law enforcement operations
is an issue of significance. This is especially true in the
case of high explosive grenades because ammunition of this
nature does not have a routine law enforcement purpose.
a. DOD's Failure to Account for the Participation of the
Alabama National Guard in Support of Waco
Operations in Response to a Congressional Request
Secretary Holmes' response to the subcommittees did not
contain any reference to the support provided by the Alabama
National Guard between January and April 1993. The fact of
their participation was well known to DOD, especially the
National Guard Bureau. The assistance provided by the Alabama
National Guard was requested by the Texas National Guard as a
part of their ongoing support to BATF during the Waco incident.
The Texas National Guard briefly commented upon the Alabama
National Guard assistance in their April 29, 1993, after-action
report on their counter-drug support in Waco, TX. This report
was addressed to the Chief of the National Guard Bureau at the
Pentagon.\299\
---------------------------------------------------------------------------
\299\ See ``After Action Report of Texas National Guard Counterdrug
Support in Waco, Texas,'' 3 (Apr. 29, 1993), DOD document production
Z000465-Z000473 (exhibit 107). The report indicated that on Jan. 14,
1993, aerial photographs were taken by RF4-C aircraft from the Alabama
National Guard.
---------------------------------------------------------------------------
After reviewing GAO's report, Committee Chairman Dan Burton
wrote to William Cohen, Secretary of Defense, to express his
concern regarding not only this discrepancy, but also the
broader issue of DOD's inability to provide a definitive,
single-source document cataloging in detail the military
personnel, equipment, and material involved in the Waco
incident. On November 16, 1999, Chairman Burton wrote:
The critical first step in understanding the military's
involvement during the Waco incident is to obtain a
complete and accurate listing of the military units and
personnel from any branch of the Armed Forces--Active
Duty, National Guard or Reserve--who were engaged in
any manner, means, or method of support to the BATF or
FBI at Waco; the dates, locations, and descriptions of
the duties and responsibilities of military members
providing that support; and a complete listing and
description of the equipment and material, to include
all munitions, supplied to the BATF and FBI for their
use during the Waco incident.
DOD is the only entity that possesses that information
and only DOD can produce such a document of record. The
Committee on Government Reform and the American people
should not have to engage in a documentary shell game
to understand once and for all exactly what their
military forces did in support of law enforcement
operations at Waco.\300\
---------------------------------------------------------------------------
\300\ Letter from the Honorable Dan Burton, chairman, Committee on
Government Reform, to the Honorable William Cohen, Secretary of
Defense, Department of Defense (Nov. 16, 1999) (exhibit 108).
On December 6, 1999, DOD's Deputy General Counsel, Harold
Kwalwasser, responded on behalf of the Secretary of Defense. He
---------------------------------------------------------------------------
wrote:
While there are minor discrepancies between the matrix
we created following the 1995 hearings and the GAO
report, we believe that these documents provide a
generally accurate picture of the support DOD provided
to the federal law enforcement agencies.
* * * * *
With respect to your requests for information about the
activities of the Texas and Alabama National Guards, we
suggest that those requests be directed to state
authorities since these Guard units were in a state,
not federal, capacity during the Waco events. Although
in 1995 we forwarded to Congress documents provided by
the Texas and Alabama National Guards concerning the
support they provided to federal law enforcement
agencies, we are not in a position to provide the
comprehensive information the Committee has requested
about their activities, which would require interviews
with numerous Guard personnel who are not federal
employees. Such information should be requested from
the appropriate state officials.\301\
---------------------------------------------------------------------------
\301\ Letter from Harold Kwalwasser, Deputy General Counsel,
Department of Defense, to the Honorable Dan Burton, chairman, Committee
on Government Reform (Dec. 6, 1999) (exhibit 109).
DOD's Acting General Counsel, Douglas Dworkin, also
corresponded with Chairman Burton on December 6, 1999, and
provided some of the information requested in the chairman's
initial letter of November 16, 1999.\302\ The reply was
entirely unsatisfactory. Although some information was
provided, DOD continued to reiterate its opinion that the
discrepancies between the GAO report and Secretary Holmes' 1996
response were generally minor. In addition, DOD continued to
refer the committee to appropriate State officials from Texas
and Alabama for information regarding their respective National
Guard personnel and equipment.
---------------------------------------------------------------------------
\302\ See letter from Douglas Dworkin, Acting General Counsel,
Department of Defense, to the Honorable Dan Burton, chairman, Committee
on Government Reform, (Dec. 6, 1999) (exhibit 110).
---------------------------------------------------------------------------
On January 20, 2000, Chairman Burton again wrote to
Secretary Cohen regarding the issue of DOD's obligation to
provide a complete accounting of its support during the Waco
standoff. Chairman Burton wrote that when Secretary Holmes
agreed during the subcommittee hearings to provide an
accounting, Secretary Holmes' obligation included providing
information regarding the Texas and Alabama National Guard
involvement:
Although I do understand this position, the Honorable
H. Allen Holmes, Assistant Secretary of Defense
(Special Operations and Low Intensity Conflict)
testified as DOD's senior representative during the
1995 hearings and offered to provide a complete
accounting of DOD support provided to both the BATF and
the FBI during the Waco incident. There were no
qualifications discussed regarding which military
branch or component support would be provided, and the
committee does not accept any being imposed at this
time. Additionally, the funds used to support the
National Guard personnel at Waco were congressionally
appropriated Federal funds. If there is a need to query
The Adjutants General or other state official from
Texas or Alabama, the Committee believes DOD has the
responsibility to obtain the information and provide it
to the Committee.\303\
---------------------------------------------------------------------------
\303\ Letter from the Honorable Dan Burton, chairman, Committee on
Government Reform, to the Honorable William Cohen, Secretary of
Defense, Washington, DC (Jan. 20, 2000) (exhibit 111).
On February 15, 2000, John Hamre, Deputy Secretary of
Defense, responded to Chairman Burton and again reiterated
DOD's continuing reticence to take the steps necessary to
provide the committee the requested information regarding
---------------------------------------------------------------------------
support provided by the Alabama and Texas National Guard:
We are not, however, able legally or practically to
provide the specific information you have requested for
the National Guard. National Guard units are not
actually part of the Department of Defense. Congress
has designated them as ``part of the organized militia
of the several states.'' With limited exceptions,
National Guard personnel are under the command and
control of the Governors unless they are called into
active duty in their status as members of the National
Guard of the United States, a reserve component of the
United States Armed Forces. The Texas and Alabama
National Guard units involved at Waco were operating in
a state, not federal, status. Consequently, the
Department of Defense has no direct control over their
relevant documents or individuals with first hand
knowledge of the National Guard's activities.\304\
---------------------------------------------------------------------------
\304\ Letter from the Honorable John Hamre, Deputy Secretary of
Defense, to the Honorable Dan Burton, chairman, Committee on Government
Reform (Feb. 15, 2000) (exhibit 112).
It became clear at this point that DOD was not going to
follow through with its responsibilities to obtain the
requested information. DOD's position that they were not
``legally or practically'' able to provide the requested
information rings hollow. While technically true that Texas and
Alabama National Guard personnel were in a ``state status'' and
under the ``command and control'' of their respective
Governors, in reality, Federal regulations, Federal funding,
---------------------------------------------------------------------------
and Federal equipment enabled all their actions:
LThe Texas and Alabama National Guards were providing
support to Federal, not State, law enforcement agencies;
LThe funds used by National Guards to support their
activities were from Federal appropriations provided to the
State of Texas for counter-drug missions approved by the
Secretary of Defense;
LThe National Guard military equipment (fixed wing
aircraft and helicopters, Armored Personnel Carriers, trucks
and utility vehicles, Bradley Fighting Vehicles, Combat
Engineer Vehicles, etc.) used in support of the operations was
provided by the Federal Government to the States principally
for their Federal, not State, mission;
LThe terms and conditions governing the loan of
National Guard military equipment to the ATF and the FBI were
Federal (NGB), not State, regulations; and
LDOD (National Guard Bureau Headquarters) asked the
Texas National Guard to keep them informed of all their actions
in support of the Waco operation; and,
To the American people, the convenient nuances and
distinctions concerning the National Guard's ``State'' and
``Federal status'' were meaningless at the time of the Waco
incident, and probably remain so today. They witnessed tanks,
military vehicles, and uniformed military personnel actively
engaged in Federal law enforcement operations for 51 days. It
is to DOD that they would and should look for an explanation
and accounting of their military's involvement at Waco. For the
last 7 years, only Congress has attempted to fully inform the
American people concerning this issue. In the interest of
moving the committee's inquiry forward, Chairman Burton wrote
directly to the Adjutants General of Texas and Alabama.\305\
Both Adjutants General promptly provided the requested
information. Given the magnitude of the Waco tragedy, the
committee simply does not understand why DOD would not attempt
to live up to Secretary Holmes' promises to Congress in 1995.
---------------------------------------------------------------------------
\305\ See letter from the Honorable Dan Burton, chairman, Committee
on Government Reform, to Major General Daniel James III, Air National
Guard, Adjutant General, Texas National Guard (Feb. 8, 2000) (exhibit
113). See also letter from the Honorable Dan Burton, chairman,
Committee on Government Reform, to Major General Willie A. Alexander,
Army National Guard, Alabama National Guard (Feb. 8, 2000) (exhibit
114); memorandum from Lt. Col. Michael Sanderson, staff judge advocate,
Alabama National Guard, to Thomas Bowman, senior counsel, Committee on
Government Reform (Sept. 13, 2000) (exhibit 115). This was follow-up
correspondence regarding the dates of the Alabama National Guard
flights in support of Federal law enforcement in Waco.
---------------------------------------------------------------------------
The information provided to the committee from GAO, and the
Texas and Alabama National Guards, indicate that high altitude
aerial reconnaissance support was provided using camera-
equipped RF-4C aircraft from the 117th Tactical Reconnaissance
Wing located at Birmingham, AL.\306\ There is disagreement,
however, regarding how many missions were actually flown. The
Texas National Guard indicated in its after-action report that
one flight was flown on January 14, 1993.\307\ The Alabama
National Guard indicated that missions were flown on January
14th and 31st, March 4th, and April 7th, 1993.\308\ The GAO
indicated that missions were flown on January 6th and
14th.\309\ While all agree that a mission was flown on January
14th, the total number of missions flown by the Alabama
National Guard remains unclear. A timely DOD review would have,
in all probability, resolved this issue.
---------------------------------------------------------------------------
\306\ See memorandum from MG Willie A. Alexander, ARNG, Adjutant
General, Alabama National Guard, to the Honorable Dan Burton, chairman,
Committee on Government Reform (Feb. 17, 2000) (exhibit 116). See also
memorandum from Lt. Col. Michael Sanderson, staff judge advocate,
Alabama National Guard, to Thomas Bowman, senior counsel, Committee on
Government Reform (Sept. 13, 2000) (exhibit 115).
\307\ See ``After Action Report of Texas National Guard Counterdrug
Support in Waco, Texas,'' 3 (Apr. 29, 1993) at 3 (exhibit 107); DOD
document production Z000465-Z000473.
\308\ See letter from LTC Michael Sanderson, staff judge advocate,
Alabama National Guard, to Thomas Bowman, senior counsel, Committee on
Government Reform (Sept. 13, 2000) (exhibit 115).
\309\ See ``Department of Defense: Military Assistance Provided at
Branch Davidian Incident,'' 29 (GAO/NSIAD/OSI-99-133, Aug. 26, 1999)
(exhibit 4).
---------------------------------------------------------------------------
b. Discrepancy Surrounding the Alleged Transfer of 250 High
Explosive (HE) 40-MM Grenades from the Army to the
FBI at Fort Hood During March 1993
On March 1, 1993, HRT personnel began to arrive at Waco to
assume control of the law enforcement operation from the BATF.
HRT personnel were flown to Waco by military aircraft from
Andrews Air Force Base, MD.\310\ When they departed, HRT
personnel brought with them various weapons, munitions,
communications, and other operational safety and security
equipment. Some of this material was carried in two specially
configured vehicles for HRT use on operational commitments. The
ammunition included 40-mm high explosive grenades that were
provided to the FBI by the ammunition storage facility at
Marine Corps Base, Quantico, VA.\311\ At this time, the FBI is
uncertain of the exact number of HE grenades brought to Waco.
However, they believed it would have been no more than
approximately 12-18 grenades divided equally between the two
vehicles. During the Waco standoff, HRT personnel who were
assigned to carry M-79 grenade launchers, were issued a small
number of HE grenades.\312\
---------------------------------------------------------------------------
\310\ See Richard Scruggs, U.S. Department of Justice, ``Report to
the Deputy Attorney General on the Events at Waco, Texas, Feb. 28-Apr.
19, 1993,'' 9-11 (Oct. 8, 1993); see ``Department of Defense: Military
Assistance Provided at Branch Davidian Incident'' 27 (GAO/NSIAD/OSI-99-
133, Aug. 26, 1999) (exhibit 4).
\311\ Letter from Eleni P. Kalisch, Unit Chief, Office of Public
and Congressional Affairs, FBI to Thomas G. Bowman, senior counsel,
Committee on Government Reform (Oct. 9, 2000) (exhibit 117).
\312\ Id.
---------------------------------------------------------------------------
Two documents on their face indicate that the Army issued
250 HE rounds to the FBI. Those documents were created by a
Program Budget Analyst in the G-3 Budget Office at Ft. Hood,
TX. However, according to DOD, that person had no first-hand
knowledge as to whether any of the munitions were actually
provided to the FBI.\313\ DOD further indicated that the
analyst prepared these two documents based upon information
provided to her by the Deputy Range Officer for Ft. Hood and
the Deputy G-3, for Headquarters, III Corps.\314\
---------------------------------------------------------------------------
\313\ Letter from Harold Kwalwasser, Deputy General Counsel,
Department of Defense, to Thomas Bowman, senior counsel, Committee on
Government Reform, tab 2 (July 26, 2000) (exhibit 118).
\314\ Id.
---------------------------------------------------------------------------
The first document is an inventory attached to a loan
agreement between the FBI and the Commanding General, of III
Corps and Ft. Hood, dated July 30, 1993.\315\ It was created a
number of months after the Waco operation ended, and
represented a preliminary effort to create a master list of the
equipment and material believed to have been provided to the
FBI at Ft. Hood, TX. That inventory reflected 250 HE rounds
valued at $3,477.50; 200 target practice rounds valued at
$346.00; and, 50 illumination rounds valued at $1,242.00.
---------------------------------------------------------------------------
\315\ Id. at tab 1.
---------------------------------------------------------------------------
During the GAO investigation years later, GAO asked the
Program Budget Analyst at Ft. Hood, TX to account for the
equipment, material, and ammunition listed on the equipment
inventory.\316\ The Program Budget Analyst was asked to
annotate the inventory to assist the GAO, by writing
``recovered'' for items that were returned by the FBI, and
``consumed'' for items used or not returned.\317\ The Program
Budget Analyst annotated ``consumed'' for the HE rounds based
on information provided to her by the Deputy Range Officer that
the FBI had been authorized to take any unexpended ammunition
with them.\318\
---------------------------------------------------------------------------
\316\ Id. at 3.
\317\ Id.
\318\ Id. at 1.
---------------------------------------------------------------------------
The second document is a computer generated spreadsheet
dated August 31, 1993, that contains the items for which the
Army sought reimbursement from the FBI. The munition entries
and values were the same as those indicated in the loan
agreement.\319\
---------------------------------------------------------------------------
\319\ Id. at tab 1.
---------------------------------------------------------------------------
Upon review of Appendix IV of the GAO report, the committee
became aware that the Army did not bill the FBI for 500 rounds
of 40-mm grenade ammunition that were reportedly issued to the
HRT personnel at Ft. Hood, TX. This ammunition included 200
target-practice rounds, 50 illumination rounds, and 250 HE
rounds.\320\ The ammunition of specific concern to the
committee was the 250 HE rounds. Given the generally understood
law enforcement objectives of HRT on April 19, 1993, it was
unclear why HRT would need 250 HE rounds in addition to the HE
grenades they transported to Waco, or how that ammunition may
have been factored into the FBI's proposed operations plan. It
should be noted, however, that the committee is not aware of
any evidence indicating that FBI personnel, or any other
persons, fired any HE rounds on April 19, 1993, or at any other
time during the Waco incident.
---------------------------------------------------------------------------
\320\ See ``Department of Defense: Military Assistance Provided at
Branch Davidian Incident,'' 28 (GAO/NSIAD/OSI-99-133, Aug. 26, 1999)
(exhibit 4).
---------------------------------------------------------------------------
On March 11, 1993, the FBI requested that DOD provide 100
40-mm practice rounds and 50 40-mm illumination grenades.\321\
On March 12, 1993, the FBI increased its request for practice
rounds to 200.\322\ DOD approved the amended request.\323\
Additionally, the FBI requested, and DOD approved, the use of
an appropriate range at Ft. Hood, TX on which to use the
target-practice rounds for familiarization firing. The training
occurred on March 13, 1993.\324\ There was no written request
by the FBI for HE rounds. A hand-written note on the initial
request authorized the FBI to depart the practice range with
any unfired ammunition.\325\
---------------------------------------------------------------------------
\321\ See letter from Harold Kwalwasser, Deputy General Counsel,
Department of Defense, to Thomas Bowman, senior counsel, Committee on
Government Reform, (July 26, 2000) at tab 2 (exhibit 118).
\322\ Id.
\323\ Id.
\324\ Id.
\325\ Id.
---------------------------------------------------------------------------
The personnel and equipment summary attached to Secretary
Holmes' letter indicated that the Army provided the FBI 50
illumination rounds and only 100 rounds of target-practice
ammunition.\326\ As stated above, the GAO investigators found
that DOD issued 200 target-practice rounds to FBI personnel.
The summary also indicated that the cost of the target-practice
and illumination rounds was $5,065.00, when the correct total
should have been $1,588.00.\327\ The summary reflected a total
of $5,065.00 which can only be explained if 250 HE rounds,
which cost $3,477.50, are included.\328\
---------------------------------------------------------------------------
\326\ See letter from the Honorable H. Allen Holmes, Assistant
Secretary of Defense for Special Operations/Low Intensity Conflict,
Department of Defense, to the Honorable William H. Zeliff, chairman,
Subcommittee on National Security, International Affairs, and Criminal
Justice, Committee on Government Reform and Oversight (Jan. 23, 1996)
(exhibit 105).
\327\ See letter from Harold Kwalwasser, Deputy General Counsel,
Department of Defense, to Thomas Bowman, senior counsel, Committee on
Government Reform (July 26, 2000) (exhibit 118).
\328\ Id.
---------------------------------------------------------------------------
Chairman Burton wrote Secretary Cohen and requested an
accounting of support and assistance provided by DOD, to
include an accounting of all munitions supplied to the BATF and
the FBI for their use during the Waco standoff.\329\ On July
26, 2000, Harold Kwalwasser, DOD's Deputy General Counsel,
wrote the committee regarding the results of DOD's inquiry and
stated:
---------------------------------------------------------------------------
\329\ See letter from the Honorable Dan Burton, chairman, Committee
on Government Reform, to the Honorable William Cohen, Secretary of
Defense, Department of Defense, (Nov. 16, 1999) (exhibit 108).
Based on our review of documents and interviews with
relevant personnel, we have not been able to confirm
that the 250 HE rounds were, in fact, ever provided by
the Army to the FBI.\330\
---------------------------------------------------------------------------
\330\ Letter from Harold Kwalwasser, Deputy General Counsel,
Department of Defense, to Thomas Bowman, senior counsel, Committee on
Government Reform, 3 (July 26, 2000) (exhibit 118).
DOD's response goes on to indicate that the Deputy Range
Officer does not remember advising the Budget Office to seek
reimbursement for the HE rounds. He recalls that FBI personnel
were prohibited from using HE rounds on the range assigned to
them for their training. Additionally, he believes that FBI
personnel only used training-practice rounds.\331\ The Deputy
G-3 for the Army's III Corps Headquarters at Ft. Hood, also did
not recall informing the Budget Office that the FBI should be
charged for the HE rounds. The G-3 office was generally
responsible for overseeing the day-to-day operational
activities at Ft. Hood. The Deputy G-3 was responsible for
processing all FBI requests for support during the Branch
Davidian operation.\332\
---------------------------------------------------------------------------
\331\ Id. at 2
\332\ Id.
---------------------------------------------------------------------------
After reviewing DOD's response, committee staff forwarded
copies of the correspondence with its enclosures to the GAO
\333\ and FBI \334\ to give them an opportunity to review and
comment.
---------------------------------------------------------------------------
\333\ See letter from the Honorable Dan Burton, chairman, Committee
on Government Reform, to Henry L. Hinton, Assistant Comptroller
General, General Accounting Office (Aug. 8, 2000) (exhibit 119).
\334\ See letter from the Honorable Dan Burton, chairman, Committee
on Government Reform, to the Honorable Louis Freeh, FBI Director, (Aug.
8, 2000) (exhibit 120).
---------------------------------------------------------------------------
With respect to GAO, committee staff was interested in
finding out if the information provided by DOD would change the
finding contained within the GAO report that 250 HE rounds were
issued to the FBI. GAO investigators concluded DOD's response
did not warrant any changes and stated:
In closing, we see no need to change any of the
information in our report on the military assistance
provided during the Branch Davidian incident. As noted
in our 1999 report, DOD officials indicated that they
accepted our findings on the matters as presented.
Moreover, the Department of Justice and the FBI
indicated that they agreed with the substance of our
report.\335\
---------------------------------------------------------------------------
\335\ Letter from Carol Schuster, Associate Director, National
Security Preparedness Issues, General Accounting Office, to the
Honorable Dan Burton, chairman, Committee on Government Reform, at 3
(Aug. 21, 2000) (exhibit 121).
Committee staff also asked the FBI to review the DOD
response and inform the committee whether the FBI received any
HE rounds in connection with the Branch Davidian operation from
---------------------------------------------------------------------------
any munitions source within DOD. In response, the FBI stated:
The FBI has not identified any documentation or
information which confirms that the FBI requested or
received HE rounds from any munitions source within DOD
in connection with the Waco-related events. Numerous
interviews of the individuals deployed to Waco reflect
no recollection of the FBI requesting or receiving HE
rounds from DOD for any purpose, including training/
target practice. The FBI defers to the lengthy record
submitted to you by DOD on July 26, 2000, which
suggests that HE rounds were not provided to the FBI
during the Branch Davidian operation. Despite the best
efforts of DOD and the FBI to ``prove a negative,'' we
recognize that the record before the Committee is
inconclusive. As mentioned by DOD, however, the
critical point to remember is that the FBI did not fire
any HE rounds during the Branch Davidian
operation.\336\
---------------------------------------------------------------------------
\336\ Letter from John E. Collingwood, Assistant Director, Office
of Public and Congressional Affairs, to the Honorable Dan Burton,
chairman, Committee on Government Reform (Aug. 21, 2000) (exhibit 122).
Distilled to its essence, the evidence presented to the
committee is one of documents versus inferences and dated
recollections. DOD's response and the GAO report indicate the
Army provided the FBI with 250 rounds of HE ammunition. At the
time GAO investigators finalized their report, both DOD and the
FBI were allowed to review, take issue, and comment on the
report prior to publication. Neither DOD nor the FBI disputed
the entries demonstrating that the Army issued the 250 HE
rounds until the committee began its inquiry.\337\
---------------------------------------------------------------------------
\337\ See ``Department of Defense: Military Assistance Provided at
Branch Davidian Incident'' 17 (GAO/NSIAD/OSI-99-133, Aug. 26, 1999)
(exhibit 4).
---------------------------------------------------------------------------
DOD's response seems to dispute the validity and accuracy
of the Army's documents. DOD appears to rely on the statements
of two Army officers who indicated they have no recollection of
providing any information regarding the use of HE ammunition by
the FBI to the Program Budget Analyst who prepared the
documents. The analyst recalled that she obtained the
information used to produce the two documents from these two
officers. DOD's position that no HE rounds were issued is
bolstered, in their opinion, by the fact there was no evidence
that any HE rounds were fired on the range at Ft. Hood.\338\
Additionally, DOD relies on the fact there are no statements or
other evidence from any source indicating HE rounds were used
during the Waco incident. In their response, the FBI adopted
the general findings and opinions of DOD regarding this matter.
---------------------------------------------------------------------------
\338\ Letter from Harold Kwalwasser, Deputy General Counsel,
Department of Defense, to Thomas Bowman, senior counsel, Committee on
Government Reform, at 2-3 (July 26, 2000) (exhibit 118).
---------------------------------------------------------------------------
This issue involves properly accounting for the status of
250 rounds of lethal munitions. DOD's own regulations require
military commanders, in similar situations, to conduct an
inquiry.\339\ This committee is concerned that the DOD and
FBI's procedures regarding ammunition accountability were so
lax during a matter as significant as the Waco standoff, that
250 rounds of lethal ammunition which are not designed for
routine civilian law enforcement activity have remained
unaccounted for. There is no information available to the
committee that an appropriate military commander conducted an
inquiry as required by DOD's own regulations. This issue,
although it does not go to the actual events of April 19, 1993,
deserves a formal examination and resolution by appropriate
military authorities, and the committee urges the Secretary of
Defense to direct that such action take place. The results of
this inquiry should be provided to the Congress and GAO.
---------------------------------------------------------------------------
\339\ See Army Regulation 190-11, ``Physical Security of Arms,
Ammunition, and Explosives'' (Apr. 30, 1986) at 2-9, 6, (exhibit 123).
This Army directive was in effect at the time of the Waco events in
1993. See also Army Regulation 190-11, ``Physical Security of Arms,
Ammunition, and Explosives'' (Sept. 30, 1993) at 2-9, 5, (exhibit 124).
The requirement for a military commander to direct that an inquiry be
conducted regarding missing, lost, stolen or otherwise unaccountable
ammunition is essentially the same.
---------------------------------------------------------------------------
D. Inaccurate Accounting of Military Personnel Support Within
Department of Justice Internal Review
1. Overview of Military Support Provided to the FBI
Almost immediately after the failed February 28, 1993,
raid, the limited training and light equipment support that had
defined the role of the Texas National Guard was dramatically
transformed into one involving armored personnel carriers,
tanks, and combat engineer vehicles. These items of equipment
were deemed necessary for the safety and protection of law
enforcement personnel against the arsenal of weapons suspected
to be within the compound.
On March 1, 1993, HRT personnel assumed control of law
enforcement activity at the compound from the BATF. The
transfer of authority from BATF to the FBI was done at the
request of the Secretary of the Treasury and with the approval
of Acting Attorney General Stuart Gerson. Over the 51-day
standoff, the scope of military support expanded from the Texas
National Guard to include military personnel and equipment
assets from active duty military units.\340\
---------------------------------------------------------------------------
\340\ See Richard Scruggs, U.S. Department of Justice, ``Report to
the Deputy Attorney General on the Events at Waco, Texas, Feb. 28-Apr.
19, 1993,'' at 9-11 (Oct. 8, 1993) (unredacted version).
---------------------------------------------------------------------------
A limited number of active duty military personnel were
present at the Branch Davidian compound at any one time during
the standoff. Most of these troops were dressed in uniforms
indicating their ranks and service, and were from units
assigned at Ft. Hood, TX. The type of support provided by these
troops consisted primarily of performing repairs and
maintenance on military equipment that had been provided to the
FBI. The committee found no evidence that the military
personnel operated any of the equipment during any law
enforcement operation.\341\
---------------------------------------------------------------------------
\341\ H. Rept. No. 104-749 at 50.
---------------------------------------------------------------------------
The active duty Army also provided three observers and
seven technical equipment specialists from Army Special Forces
units of the U.S. Special Operations Command over the 51-day
period of the standoff.\342\ The technical equipment specialist
and their equipment were provided at the request of the FBI and
with the approval of the Secretary of Defense.\343\ Committee
staff interviewed all 10 of these personnel.\344\ The technical
equipment specialists trained HRT personnel in the operation of
a small amount of classified electronics and observation
equipment, and provided necessary maintenance for these items.
As indicated above, the Commander of U.S. Special Operations
Command also provided an individual to observe HRT's actions
and glean beneficial experiences that may be helpful to the
military.\345\ The decision to provide the observers was made
by the Commander of the U.S. Special Operations Command with
the concurrence of the chairman of the Joint Chiefs of
Staff.\346\
---------------------------------------------------------------------------
\342\ Department of Defense document production Z0033619(U),
Z0041496(U), Z0035388(U), Z0036114(U), Z0041511(U)-Z004512(U),
Z0041508(U)-Z0041509(U), Z0041506(U)-Z0041507(U), Z0041510(U),
Z0030706(U)-Z0030709(U) (exhibit 101).
\343\ Id.
\344\ Interviews with 10 current and former USSOCOM Army Special
Forces personnel in Ft. Bragg, NC; Raleigh, NC; and Washington, DC. The
identities of these individuals remain classified by the Department of
Defense.
\345\ Id.
\346\ Department of Defense document production Z0033619(U),
Z0041496(U), Z0035388(U), Z0036114(U), Z0041511(U)-Z004512(U),
Z0041508(U)-Z0041509(U), Z0041506(U)-Z0041507(U), Z0041510(U),
Z0030706(U)-Z0030709(U) (exhibit 101).
---------------------------------------------------------------------------
As a general rule, there were no more than two technical
equipment specialists and one observer from the U.S. Special
Operations Command at Waco at any one time.\347\ These
personnel each stated during their interviews that they did not
participate in any of the FBI's law enforcement operations at
Waco, nor did they possess any weapons while there. They stated
that, because of the classified nature of their normal duties,
they wore civilian clothes and did not identify themselves as
being in the military. They further stated that they did not
assist in the planning or reviewing of any HRT operational
plans, and at no time did they enter the Branch Davidian
compound or its immediate area during the 51-day standoff.\348\
While at Waco, they indicated they were restricted to a support
trailer approximately 1,000 yards from the compound. When
equipment maintenance was necessary, they stated that they were
accompanied and transported by HRT personnel to the equipment
location. When repairs were completed, they returned to their
support trailer. They stated that they socialized very little
with HRT or other personnel when off duty away from operations
at the Waco compound.\349\
---------------------------------------------------------------------------
\347\ Interviews with 10 current and former USSOCOM Army Special
Forces personnel in Ft. Bragg, NC; Raleigh, NC; and Washington, DC. The
identities of these individuals remain classified by the Department of
Defense.
\348\ Id.
\349\ Id.
---------------------------------------------------------------------------
2. Inaccurate Accounting of Military Personnel
Appendix B of the Scruggs report was intended to reflect
the scope of military support and assistance provided to the
FBI during the 51-day standoff.\350\ FBI officials working with
Scruggs provided him the personnel and equipment figures.
Scruggs indicated that he could not recall who within the FBI
provided the information, but he accepted the accounting as
accurate and included it within his report to reflect the
military's support throughout the standoff. Scruggs also stated
that he did not seek DOD's review of a draft of his report to
ensure the accuracy of his discussion of the military's
involvement prior to its release, although he did provide
Treasury officials with a draft.\351\
---------------------------------------------------------------------------
\350\ See Richard Scruggs, U.S. Department of Justice, ``Report to
the Deputy Attorney General on the Events at Waco, Texas, Feb. 28-Apr.
19, 1993,'' at appendix B (Oct. 8, 1993) (exhibit 125) (unredacted
version).
\351\ Interview with Richard Scruggs, Assistant U.S. Attorney,
Department of Justice, in Miami, FL (June 22, 2000).
---------------------------------------------------------------------------
When appendix B of the Scruggs report is compared with
information developed during the committee's current inquiry,
the personnel figures are grossly understated. Appendix B of
the Scruggs report reflects that a total of 28 active duty and
National Guard personnel supported the efforts of the FBI
during the standoff. During an interview with Richard Scruggs
on June 5, 2000, he confirmed to committee staff his belief
that the FBI was supported by only 28 military personnel.
Information provided to the committee by the Texas National
Guard indicates there were approximately 130 National Guardsmen
intermittently involved, and they provided both on and off-site
support to the FBI during the standoff.\352\ The personnel
support on-site at Waco varied on a day-to-day basis, ranging
from a minimum of 5 to a maximum of 35.\353\ According to
information provided to the committee by DOD, there were
approximately 200 active duty military personnel intermittently
providing support.\354\ As with the Texas National Guard, this
support was both on and off-site, with totals varying day-to-
day.\355\ Taken together, the committee's inquiry revealed
that, approximately 330 active duty and National Guard military
personnel were involved in providing both on and off-site
support to the FBI's law enforcement efforts at Waco. As
discussed in section III, the Scruggs investigation fell
woefully short of a thorough accounting.
---------------------------------------------------------------------------
\352\ See memorandum from LTC Bill Reimer, TXARNG, STARC JAG, Texas
National Guard, to Thomas G. Bowman, senior counsel, Committee on
Government Reform (Feb. 9, 2000) (exhibit 126).
\353\ See memorandum from Director, Operations, Readiness and
Mobilization, Office of the Deputy Chief of Staff for Operations and
Plans, Department of the Army, to Deputy Chief of Staff for Operations
and Plans, Director of the Army Staff, and Assistant Secretary of the
Army (Installations, Logistics, and Environment) (July 14, 1995)
(exhibit 127).
\354\ See letter from Douglas Dworkin, Acting General Counsel,
Department of Defense, to the Honorable Dan Burton, chairman, Committee
on Government Reform (Dec. 6, 1999) (exhibit 110).
\355\ Some of the off-site military personnel associated with
providing or monitoring DOD's assistance were not exclusively involved
with Waco support.
---------------------------------------------------------------------------
E. The Department of Defense Did Not Conduct a Review and Assessment of
Military Assistance Provided
On April 20, 1993, President Clinton spoke to the American
people from the Rose Garden regarding the tragic end of the 51-
day standoff at the Branch Davidian compound.\356\ Although he
ordered the Departments of Justice and Treasury to conduct ``a
vigorous and thorough investigation'' into what happened and
why, he failed to include DOD in this tasking. The committee
believes President Clinton's omission of DOD was both
unfortunate and shortsighted. As the last 7 years have shown,
the Departments of Justice and Treasury inquiries fell short of
presenting a complete accounting of the military's support role
to their respective operations at Waco. It is unfortunate that
DOD has been content over the same period to conduct no
internal inquiry whatsoever.
---------------------------------------------------------------------------
\356\ President William Jefferson Clinton, remarks by the President
in a question and answer session with the press, Washington, DC (Apr.
20, 1993).
---------------------------------------------------------------------------
President Clinton wanted Attorney General Reno to ensure
that the military had been consulted regarding the FBI's
proposed operations plan prior to its implementation. He was
assured by Attorney General Reno during their telephone
conversation on April 18, 1993, that the military had been
consulted.\357\ In connection with the Scruggs inquiry,
President Clinton provided a statement regarding this telephone
conversation which in part dealt with his questioning of
Attorney General Reno regarding consultation with the military.
The President stated in part:
---------------------------------------------------------------------------
\357\ Richard Scruggs, U.S. Department of Justice, ``Report to the
Deputy Attorney General on the Events at Waco, Texas, Feb. 28-Apr. 19,
1993,'' at 262-263 (Oct. 8, 1993) (unredacted version).
I asked whether the military had been consulted. I had
previously asked that the military be consulted
because, based upon my experience as Governor of
Arkansas in dealing with a similar type situation in
northwest Arkansas, I found that the military had a
valuable perspective on how to deal with situations of
this type. Attorney General Reno stated that the
military had been consulted and that they were in basic
agreement with the FBI recommendation. She explained
that there was a minor technical difference of opinion,
that both the FBI and the military agreed that it was
not of overwhelming significance.\358\
---------------------------------------------------------------------------
\358\ Id. at 263.
Since April 19, 1993, the Department of Defense has been
reactive, not proactive, in accounting for the military's
support during the Waco incident. Whenever asked to provide
information, briefings or witnesses, for inquiries, interviews
or investigations, DOD has complied, except when this committee
requested assistance with obtaining information concerning
support provided by the Texas and Alabama National Guards.
DOD is an organization that will, without hesitation,
collect information and prepare reports regarding a myriad of
incidents, issues or allegations that involved their personnel
or equipment. DOD's military and civilian leadership know that
it is important to find out what happened and whether there are
any lessons to be learned from events involving their
personnel. These situations include vehicle accidents, plane
crashes, ship collisions, military training accidents involving
injury or death, damage to military equipment, and allegations
of misconduct, fraud, waste or abuse. In addition, DOD has
provided military personnel and equipment in support of
significant national or international events like the 1992 Los
Angeles riots; the 1996 Olympics; recent natural disaster
assistance to State and local governments battling floods and
fire; and international humanitarian relief as we have seen
throughout the last decade in South America, the Caribbean, the
Far East and Africa.
In each case, whether it is a single vehicle involved in a
training accident, or a prolonged humanitarian assistance
effort, DOD ensures that some level of after-action assessment
and report is accomplished for lessons-learned and historical
record purposes. An overall review of such events assists in
evaluating whether current practice, policy or procedures are
appropriate. What is troubling to the committee is that DOD did
not independently exercise the same wisdom, judgment, and
leadership with regard to an overall after-action accounting
for their involvement and assistance at such a significant
domestic law enforcement event as Waco.
What exacerbates DOD's failure in this regard even more, is
that the Secretary of Defense promulgated a regulation in 1986
requiring that the Secretaries of the Military Departments and
the Directors of the Defense Agencies prepare a quarterly
report of all requests for assistance from civilian law
enforcement officials.\359\ The reports were to be forwarded to
various offices within the Office of the Secretary of Defense.
The reports were to outline the details of assistance provided
(approved, denied, or pending), and any other information
deemed appropriate. A sample report form was provided within
the directive to assist in preparing the reports.\360\ Support
involving the use of classified information or techniques could
be exempted from the reporting requirement if it was
impractical to prepare an unclassified summary.
---------------------------------------------------------------------------
\359\ See DOD Directive 5525.5, DOD Cooperation with Civilian Law
Enforcement 4 (Jan. 15, 1986) (exhibit 128). The reporting requirements
in this DOD directive were valid at the time DOD was providing
assistance at Waco in 1993 and remains valid as of the date of the
committee's report. DOD has indicated that this directive is currently
under review.
\360\ Id. at 26. The directive requests information on various
categories of support including facilities, information, equipment,
aviation, explosives and ordinance, sensor equipment, personnel and
training.
---------------------------------------------------------------------------
DOD has produced no documents indicating that any quarterly
reports were prepared as required by their directive regarding
the support provided by the military to the law enforcement
agencies concerning the Waco incident. At this late date, no
explanation can excuse DOD's failure in this regard.
F. RECOMMENDATIONS
The committee recommends the following:
1. Legislative Recommendations
The Congress should enact legislation requiring the
following actions by DOD when providing military assistance to
Federal, State, or local law enforcement agencies:
a. Notification to Congressional Leadership and Appropriate
Congressional Committees When any Special Mission
Unit, Personnel or Equipment, of the U.S. Special
Operations Command, or Other Commands of the Armed
Forces of the United States, Will Provide
Assistance in Support of Domestic Federal, State or
Local Law Enforcement Operations
The mission of the Armed Forces of the United States is to
be ready to confront and prevail in any national security
challenge that confronts the United States. Our Armed Forces
must be the most precise, most lethal, most versatile, best
equipped, and best trained forces in the world. The American
people expect and demand no less. Congress directed the
establishment of the U.S. Special Operations Command in 1987 to
correct serious deficiencies in the ability of the United
States to conduct special operations activities. Their usual
focus is to provide a full range of activities in support of
our national security objective outside our country's
boundaries.
Because of their unique capabilities and equipment, special
mission units are, at times, called upon to support law
enforcement activities within the United States. Congress has
recognized the importance of allowing law enforcement to have
access to this unique expertise and has authorized certain
exceptions to the Posse Comitatus Act to enable such support.
When such support occurs, it is generally withheld from the
public because of the classified nature of special mission
units, personnel and equipment within the special operations
community. When the public does become aware that such support
has been provided domestically, it is generally after the law
enforcement event has ended. The public is not only surprised,
but to an increasing number of Americans, it is an issue of
concern. When law enforcement events have tragic conclusions,
as occurred at Waco, the American people expect and deserve a
full, complete and accurate accounting of what occurred,
especially when our country's special mission units have been
used domestically.
Congressional leadership and committees of appropriate
jurisdiction need to be made aware in advance whenever special
mission units, personnel or associated equipment will be used
in support of domestic law enforcement activities. Congress has
an oversight responsibility on behalf of the American people
that can only be accomplished with advance awareness of when
this type of support will occur. Prior notification to Congress
will also enable DOD to conduct such support with the knowledge
that the elected representatives of the American people have
been consulted in the decision scenario that led to the use of
these very specialized military units in domestic law
enforcement operations.
b. Annual Report to Congress by DOD Providing an Accounting
of all Events in Which Active Duty, National Guard
or Reserve Units, Personnel, or Equipment Have Been
Provided in Support of Federal, State or Local Law
Enforcement Operations
At the present time, DOD does have a requirement to collect
a certain level of law enforcement support information. The
Secretary of Defense has directed that a quarterly report of
all such assistance (approved, denied, or pending) shall be
submitted by the Secretaries of the Military Departments and
the Directors of Defense Agencies to the Office of the
Secretary of Defense. However, there is no concurrent
requirement to provide Congress with this information. This
same information would be of immeasurable benefit to the
Congress as they accomplish their oversight responsibilities.
2. Oversight Hearing Recommendation
Appropriate congressional committees should conduct
oversight hearings regarding: (1) the appropriateness of
applying the Posse Comitatus Act to the National Guard with
respect to support situations where a Federal law enforcement
agency serves as the lead agency; and (2) the legal status of
memoranda of agreements for the interstate use of National
Guard personnel and equipment for civilian law enforcement
purposes.
Within the 1996 subcommittee report, it was recommended
these hearings occur. Our current inquiry reconfirms the need
for such congressional action for the reasons presented within
the 1996 report.\361\
---------------------------------------------------------------------------
\361\ See H. Rept. No. 104-749 (1996) at 53-55.
---------------------------------------------------------------------------
[The exhibits referred to follow:]
MINORITY VIEWS OF HON. HENRY A. WAXMAN, HON. TOM LANTOS, HON. MAJOR R.
OWENS, HON. EDOLPHUS TOWNS, HON. PAUL E. KANJORSKI, HON. CAROLYN B.
MALONEY, HON. ELEANOR HOLMES NORTON, HON. CHAKA FATTAH, HON. ELIJAH E.
CUMMINGS, HON. DENNIS J. KUCINICH, HON. ROD R. BLAGOJEVICH, HON. DANNY
K. DAVIS, HON. JOHN F. TIERNEY, HON. JIM TURNER, AND HON. HAROLD E.
FORD, Jr.
I. Introduction
The committee's Waco investigation began as many of the
committee's other investigations have begun: with a false
accusation. In August 1999, after the media reported that the
FBI had used pyrotechnic tear gas rounds at Waco,
Representative Dan Burton accused Attorney General Janet Reno
of covering up key facts and said that she should be removed
from office. On one nationally broadcast radio program, Mr.
Burton said that Attorney General Reno ``should be summarily
removed, either because she's incompetent, number one, or,
number two, she's blocking for the President and covering
things up, which is what I believe.'' \1\
---------------------------------------------------------------------------
\1\ ``Morning Edition,'' NPR (Aug. 31, 1999).
---------------------------------------------------------------------------
In September 1999, Mr. Burton renewed his accusations of a
cover-up by asserting that the Justice Department did not
provide Congress with documents detailing the FBI's use of
military tear gas rounds near the Branch Davidian compound on
April 19, 1993. In particular, he accused the Justice
Department of deliberately concealing the 49th page of an FBI
lab report, which contained a reference to a spent military
tear gas round. Prior to conducting any meaningful
investigation, Mr. Burton said on national television, ``With
the 49th page of this report not given to Congress, when we
were having oversight hearings into the tragedy at Waco, and
that was the very definitive piece of paper that could have
given us some information, it sure looks like they were
withholding information. And she's responsible.'' \2\
---------------------------------------------------------------------------
\2\ ``Fox News Sunday,'' Fox News (Sept. 12, 1999).
---------------------------------------------------------------------------
Mr. Burton's allegations turned out to be untrue.
Representative Henry A. Waxman pointed out that the Justice
Department had produced documents to the committee in 1995 that
contained numerous explicit references to military tear gas
rounds.\3\ Former Senator John C. Danforth then thoroughly
investigated the matter as Special Counsel. He found that there
was no cover-up by the Attorney General. In fact, Senator
Danforth found that the 49th page had never been missing at
all. According to Senator Danforth's report: ``[T]he Committees
were provided with at least two copies of the lab report in
1995 which did contain the 49th page. The Office of Special
Counsel easily located these complete copies of the lab report
at the Committees' offices.'' \4\
---------------------------------------------------------------------------
\3\ Letter from Representative Henry A. Waxman to Senator John C.
Danforth (Sept. 13, 1999) (attached as exhibit 1).
\4\ John C. Danforth, Special Counsel, ``Interim Report to the
Deputy Attorney General Concerning the 1993 Confrontation at the Mt.
Carmel Complex, Waco, Texas'' (July 21, 2000) (hereinafter ``Danforth
report'') (attached as exhibit 2).
---------------------------------------------------------------------------
This committee's investigation into Waco should have ended
on September 9, 1999, when Attorney General Reno appointed
Senator Danforth to serve as Special Counsel to investigate
lingering questions related to the Branch Davidian standoff in
1993. Since that date, Mr. Burton's investigation has been
unnecessary, expensive, and fruitless. He has required Federal
agencies to produce nearly 800,000 pages of documents, called
more than 80 witnesses to appear for interviews, and dispatched
committee staff across the country from Puerto Rico to Texas.
And despite the duration and cost to the Federal Treasury, his
investigation has contributed virtually nothing to the public's
understanding of the Waco tragedy.
On the substance of this investigation, we concur with the
major findings of Senator Danforth and with the findings of
fact issued by Judge Walter S. Smith, Jr., of the U.S. District
Court for the Western District of Texas.\5\ Senator Danforth
and Judge Smith both concluded that the government did not
cause the fire at the Branch Davidian complex and did not
direct gunfire at the Branch Davidian complex on April 19,
1993. We also concur with Senator Danforth's conclusion that
the government did not improperly employ U.S. armed forces
during the Waco standoff and that senior Justice Department and
FBI officials--including Attorney General Janet Reno and FBI
Director William Sessions--did not knowingly make false
statements about the FBI's use of pyrotechnic tear gas rounds
on April 19, 1993.\6\
---------------------------------------------------------------------------
\5\ Amended findings of fact and conclusions of law, Andrade v.
United States, No. W-96-CA-139 (W.D. Tex. filed Sept. 27, 2000)
(hereinafter ``findings of fact and conclusions of law'') (attached as
exhibit 3).
\6\ Danforth report at 51. The minority has no information to
substantiate or refute Senator Danforth's interim findings that a staff
attorney for the FBI failed to disclose that an FBI agent used
pyrotechnic tear gas rounds and gave conflicting information to Senator
Danforth's investigators. Committee staff interviewed this individual,
Jacqueline Brown, on Jan. 7, 2000. The minority staff found her to be
cooperative and truthful in her responses to the questions posed by
committee staff.
---------------------------------------------------------------------------
Although one can with hindsight second guess decisions made
at virtually all levels of the FBI and Justice Department, the
fact remains that the Federal officials involved in the Waco
standoff acted lawfully and with great restraint under
difficult circumstances. As both Senator Danforth and Judge
Smith concluded, the responsibility for the Waco tragedy lies
with certain Branch Davidians and particularly their leader,
David Koresh.\7\
---------------------------------------------------------------------------
\7\ Danforth report at 5; findings of fact and conclusions of law
at 10.
---------------------------------------------------------------------------
II. Mr. Burton Began His Investigation With Erroneous Charges
Mr. Burton, in a pattern that has become typical of this
committee, first alleged wrongdoing by a Clinton administration
official and then proceeded to investigate.\8\ In August 1999,
the press reported that pyrotechnic tear gas rounds had been
used at Waco, contrary to statements made by Attorney General
Reno and other officials that the FBI had only used
nonpyrotechnic tear gas rounds.\9\ Mr. Burton immediately
attacked the Attorney General, stating on one nationally
broadcast television program, ``I think she either misled
Congress and covered this up or she was totally incompetent. .
. . [S]he should be removed because she's just not doing her
job.'' \10\
---------------------------------------------------------------------------
\8\ A report recently released by Representative Waxman describes
many similar allegations that have occurred over the last 6 years. See
``Unsubstantiated Allegations of Wrongdoing Involving the Clinton
Administration,'' Minority Staff Report, Committee on Government Reform
(Oct. 2000) (attached as exhibit 4).
\9\ ``FBI Reverses Its Stand on Waco,'' Washington Post (Aug. 26,
1999).
\10\ ``Hannity & Colmes,'' Fox News (Aug. 30, 1999).
---------------------------------------------------------------------------
Mr. Burton soon renewed his accusations of a cover-up,
alleging that the Justice Department failed to provide Congress
documents describing the FBI's use of pyrotechnic tear gas
rounds. In particular, Mr. Burton accused the Justice
Department of concealing from Congress the 49th page of an FBI
lab report. This page, the last in the document, contained the
following reference to the FBI's use of a military-style tear
gas round: ``Specimen Q1237 (B160) is a fired U.S. Military 40
mm shell casing which originally contained a CS gas round.''
\11\ To a person with specialized knowledge of tear gas
projectiles, this would indicate the use of a pyrotechnic
projectile, capable of igniting a fire.
---------------------------------------------------------------------------
\11\ Memorandum from FBI Laboratory to Sergeant James Miller, Texas
Rangers (Dec. 6, 1993).
---------------------------------------------------------------------------
Mr. Burton charged that Justice Department officials,
including the Attorney General of the United States, were
involved in a cover-up. Mr. Burton wrote in a September 10,
1999, letter to Attorney General Reno:
It is difficult for me to believe that the Department
had multiple copies of a document, produced only one
copy of the document to Congress, and then managed to
lose the one critical page of the document mentioning
the use of pyrotechnic tear gas. Had page 49 of the FBI
report been produced to Congress when it was originally
requested years ago, it would have cast doubt onto the
testimony of a number of Department officials. The
Department's failure to produce this document when it
was originally requested raises more questions about
whether this Committee was intentionally misled during
the original Waco investigation.\12\
---------------------------------------------------------------------------
\12\ Letter from Representative Dan Burton to Attorney General
Janet Reno (Sept. 10, 1999).
Over the following weekend, Mr. Burton repeated his
accusation of a cover-up by the Attorney General, stating on
one nationally broadcast television program, ``that was the
very definitive piece of paper that could have given us some
information, it sure looks like they were withholding
information. And she's responsible.'' \13\
---------------------------------------------------------------------------
\13\ ``Fox News Sunday,'' Fox News (Sept. 12, 1999).
---------------------------------------------------------------------------
Mr. Burton's allegations were not only unsupported by the
evidence, they were directly contradicted by information in his
own files.
In 1995, a subcommittee of the Government Reform and
Oversight Committee and a subcommittee of the House Judiciary
Committee conducted an investigation into the activities of
Federal law enforcement agencies toward the Branch Davidians.
As part of that inquiry, the subcommittees issued document
requests to the White House and the Departments of Justice,
Treasury, and Defense. The records produced in response to
these requests were stored in over 40 boxes in congressional
archives until August 1999, when they were recalled by Mr.
Burton.
At the time Mr. Burton alleged that the Attorney General
had withheld information on the use of military-style tear gas
rounds, he had documents in his own possession that explicitly
discuss the use of military-style tear gas rounds at Waco. Many
of these documents were located by Representative Waxman's
staff in boxes in Mr. Burton's offices within a few days of Mr.
Burton's allegations.\14\ One document provided to Congress in
1995, for example, was a report of an interview of the FBI
agent who co-piloted the surveillance aircraft flying above the
Branch Davidian compound on the morning of April 19, 1993.
According to this document, the pilot reported hearing ``a high
volume of [Hostage Rescue Team] traffic and Sniper [Tactical
Operations Center] instructions regarding . . . the insertion
of gas by ground units,'' including ``one conversation relative
to utilization of some sort of military round to be used on a
concrete bunker.'' \15\
---------------------------------------------------------------------------
\14\ Letter from Representative Henry A. Waxman to Senator John C.
Danforth (Sept. 13, 1999).
\15\ Interview of Special Agent R. Wayne Smith, Federal Bureau of
Investigation FD-302 (June 9, 1993).
---------------------------------------------------------------------------
Another document produced to Congress in 1995 was a
typewritten chart prepared by Justice Department prosecutors in
connection with the criminal trial of surviving Branch
Davidians. The chart, which summarizes interviews with
potential witnesses for the prosecution, identifies each
Hostage Rescue Team member interviewed, the name of the
interviewer, a summary of significant observations made by the
witness, and whether each witness would be placed on the
prosecution's witness list for trial. According to the chart,
one witness, who was later identified as Special Agent Dave
Corderman, was expected to testify that ``smoke on film came
from attempt to penetrate bunker w/1 military and 2 ferret
rounds.'' \16\ In addition, the document indicates that the
witness described the appearance of the military round,
stating: ``Military was grey bubblehead w/green base.'' \17\
---------------------------------------------------------------------------
\16\ Unidentified handwritten notes.
\17\ Id.
---------------------------------------------------------------------------
Also among the documents produced by the Justice Department
to House investigators in 1995 were handwritten notes clearly
describing the use of military rounds in the Waco operation and
describing that such rounds were ``incendiary.'' One set of
notes read, ``Smoke from bunker--came when these guys tried to
shoot gas into the bunker. (Military gas round) . . . grey
bubblehead w/green base.'' The term ``military'' or ``military
round'' appears twice again in the same paragraph, and an arrow
points from the word ``military'' to the word ``incendiary.''
\18\ Notes on the following page read, ``Obj[ective]: to keep
people from fleeing into bunker.'' \19\
---------------------------------------------------------------------------
\18\ Unidentified handwritten notes.
\19\ Id.
---------------------------------------------------------------------------
Not only were there numerous references to the use of
military tear gas at Waco in Mr. Burton's own files, but those
files also contained the 49th page of the FBI lab report that
Mr. Burton alleged had never been produced to Congress. After
thoroughly investigating this issue, Senator Danforth found:
Attorneys from the Department of Justice who produced
documents to the United States House of Representatives
Committee on Government Reform and Oversight and the
Committee on the Judiciary in advance of the 1995
hearings have come under public scrutiny for producing
the FBI laboratory report containing the reference to
the military tear gas round without the 49th page,
which contains the relevant reference. In fact,
however, while one copy of the report did not contain
the 49th page, the Committees were provided with at
least two copies of the lab report in 1995 which did
contain the 49th page. The Office of Special Counsel
easily located these complete copies of the lab report
at the Committees' offices when it reviewed the
Committees' copy of the 1995 Department of Justice
document production. . . . The Special Counsel has
concluded that the missing page on one copy of the lab
report provided to the Committees is attributable to an
innocent photocopying error and the Office of Special
Counsel will not pursue the matter further.\20\
---------------------------------------------------------------------------
\20\ Danforth report at 54.
Mr. Burton has never apologized for making these
unsubstantiated allegations of a government cover-up. To the
contrary, in the majority's report, he renews the false
accusation, suggesting that Justice Department and FBI
officials deliberately delayed production of these documents to
this committee in 1995 in order to conceal the truth.\21\ The
majority writes, ``Sadly, the Justice Department did not
produce the requested documents until three days before the
start of the hearings.'' \22\ In fact, however, the Justice
Department received broad document requests 6 weeks before this
committee held joint hearings with the Judiciary Committee in
1995 and, by agreement with the committee, produced 250,000
pages on a prioritized basis.\23\ The Justice Department
produced two complete copies of the FBI lab report to the
committees on July 6, 1995.\24\ The committees thus received
the FBI lab report not 3 days ahead of the 1995 hearings, but
13 days before the start of the hearings, 26 days before the
conclusion of the hearings, and 392 days before the committees
issued their joint report on August 2, 1996.
---------------------------------------------------------------------------
\21\ See majority report at 30 n. 106, 31.
\22\ Id. at 30 n. 106.
\23\ See letter from Kent Marcus, Acting Assistant Attorney General
for Legislative Affairs, to Chairman William H. Zeliff, Jr., and
Chairman William McCollum (July 6, 1995).
\24\ See id.; letter from Jon P. Jennings, Principal Deputy
Assistant Attorney General, to Chairman Dan Burton (Oct. 22, 1999).
---------------------------------------------------------------------------
III. Mr. Burton's Investigation Was Unnecessary and Wasteful
Since September 1999, the committee has conducted an
unnecessary and wasteful investigation of Waco. Virtually every
document the committee has obtained and virtually every witness
interviewed by committee staff was examined by Senator Danforth
in the course of his detailed Waco investigation.
a. senator danforth thoroughly investigated waco
Despite a voluminous public record that had been developed
on the Waco tragedy between 1993 and 1997, three developments
occurring in August and September 1999 generated public
interest in whether the government caused or contributed to the
deaths of Branch Davidians at Waco and whether government
officials had engaged in a cover-up. First, the FBI
acknowledged on August 25, 2000, that it used a limited number
of pyrotechnic tear gas projectiles on April 19, 1993.\25\
Second, on September 2 and 3, 1999, the FBI released videotapes
taken the morning of April 19, 1993, by an FBI surveillance
aircraft using Forward Looking Infrared Radar (FLIR).\26\ Prior
to that time, the FBI and Justice Department had maintained
that they only had FLIR tapes beginning later in the
morning.\27\ Third, news stories around the country reported
that the Justice Department had evidence of the use of
pyrotechnic tear gas rounds but failed to produce it to
Congress in 1995.\28\
---------------------------------------------------------------------------
\25\ ``Branch Davidian Compound--Waco, Texas,'' press release, U.S.
Department of Justice, Federal Bureau of Investigation (Aug. 25, 1999)
(on line at http://www.fbi.gov/pressrm/pressrel/pressre199/
presswaco2.htm).
\26\ ``FBI Releases Waco Videotape,'' press release, U.S.
Department of Justice, Federal Bureau of Investigation (Sept. 2, 1999)
(on line at http://www.fbi.gov/pressrm/pressrel/pressre199/
wacorel.htm); ``FBI Releases Second Waco Videotape,'' press release,
U.S. Department of Justice, Federal Bureau of Investigation (Sept. 3,
1999) (on line at http://www.fbi.gov/pressrm/pressrel/pressrel199/
wacorel2.htm).
\27\ Danforth report at 141.
\28\ E.g. ``Burton Opens Investigation of Waco Tactics,'' CNN.com
(Aug. 30, 1999) (on line at: http://www.cnn.com/allpolitics/stories/
1999/08/30/tbi.waco); ``FBI Suggests Outside Probe of Waco Siege,''
Washington Times (Sept. 1, 1999); ``Marshals Acting on Reno's Orders
Seize FBI Tape,'' New York Times (Sept. 2, 1999).
---------------------------------------------------------------------------
These developments caused a number of Republican leaders in
the House and Senate to call for investigations, including
Representative Henry Hyde, Representative Dan Burton, Senator
Orrin Hatch, and Senator Arlen Specter.\29\
---------------------------------------------------------------------------
\29\ ``FBI Admits Using Tear Gas at Waco,'' Associated Press (Aug.
25, 1999).
---------------------------------------------------------------------------
Attorney General Reno quickly responded to concerns raised
by Members of Congress and by the media. On September 9, 1999,
she appointed John Danforth, a highly respected former
Republican U.S. Senator, as Special Counsel. As part of his
mandate, Senator Danforth agreed to investigate five principal
issues: (1) whether the government caused or contributed to the
fire on April 19, 1993; (2) whether the government directed
gunfire at the Branch Davidians on April 19, 1993; (3) whether
the government used any incendiary or pyrotechnic device on
April 19, 1993; (4) whether the government illegally employed
the armed forces at Waco; and (5) whether government officials
made false statements or concealed information about the events
on April 19, 1993.\30\ After receiving his appointment, Senator
Danforth said that he planned to conduct an aggressive inquiry
into whether there were ``bad acts, not whether there was bad
judgment.'' \31\
---------------------------------------------------------------------------
\30\ Danforth report at 2-3.
\31\ ``Aggressive Waco Probe Is Promised: Danforth Takes Over, Reno
Recuses Herself,'' Washington Post, (Sept. 10, 1999).
---------------------------------------------------------------------------
Attorney General Reno's appointment of Senator Danforth
received wide praise. Republican Senator Fred Thompson said
that Senator Danforth ``has an excellent reputation and the
highest integrity.'' \32\ House Majority Leader Dick Armey
questioned the need for any congressional hearings and
expressed confidence in Senator Danforth, calling him ``a man
of impeccable integrity.'' \33\ Mr. Burton said, ``He's a fine
man, and I think Senator Danforth is going to do a commendable
job.'' \34\
---------------------------------------------------------------------------
\32\ ``Reno Picks Waco Head,'' Baltimore Sun (Sept. 9, 1999).
\33\ ``Armey Questions Need for New Hearings On Davidian Siege,''
Dallas Morning News (Oct. 8, 1999).
\34\ ``Hannity & Colmes,'' Fox News (Oct. 19, 1999).
---------------------------------------------------------------------------
Senator Danforth proceeded to conduct a thorough and
professional investigation of Waco. He hired over 70 staff to
assist him in the investigation. As of July 2000, the Office of
Special Counsel had interviewed 849 witnesses, reviewed over 2
million pages of documents, and examined thousands of pounds of
physical evidence.\35\
---------------------------------------------------------------------------
\35\ Danforth report at 4.
---------------------------------------------------------------------------
Senator Danforth released an interim report on his
investigation on July 21, 2000.\36\ The report found, among
other things, that government agents did not start or spread
the fire that consumed the Branch Davidian compound, did not
direct gunfire at the Branch Davidians, and did not unlawfully
employ U.S. armed forces at Waco. The report was widely
regarded as thorough and accurate. An editorial in the
Washington Post called it ``a welcome clarification of the
record on this seemingly endless saga'' and concluded that it
was ``time, finally, for Waco to recede into history.'' \37\
---------------------------------------------------------------------------
\36\ Although Senator Danforth released his principal findings in
his interim report, his investigation of certain issues is ongoing to
date.
\37\ ``Waco: Case Closed,'' Washington Post (July 23, 2000).
---------------------------------------------------------------------------
b. chairman burton's investigation duplicated the danforth
investigation
Despite the appointment of Senator Danforth as Special
Counsel, Representative Burton persisted in conducting his own
investigation. This investigation was substantial. It involved
considerable staff resources, required Federal agencies to
produce hundreds of thousands of pages of documents, resulted
in extensive staff travel, and included many witness
interviews. And in almost every respect, it duplicated the work
of Senator Danforth and his staff.
As part of the investigation, Mr. Burton issued subpoenas
to the Department of Justice, the FBI, the White House, and the
Defense Department. Among the categories of documents required
by committee subpoenas, Mr. Burton demanded all documents
related to munitions issued to the Hostage Rescue Team; the
various forms of tear gas used at Waco; all briefings given by
the FBI during the siege; audio surveillance devices at Waco;
contacts between the Department of Justice and the White House;
contacts between the FBI and the Department of Defense;
infrared imagery and analysis; the use of aircraft,
helicopters, or armored vehicles; all photographs of the Branch
Davidian compound; military involvement at Waco; military
personnel at Waco; and ``military personnel who provided advice
or assistance of any sort'' to the Justice Department, the FBI,
or the White House.\38\
---------------------------------------------------------------------------
\38\ See subpoena duces tecum to Director Louis Freeh, Federal
Bureau of Investigation (Sept. 1, 1999); subpoena duces tecum to
Attorney General Janet Reno, U.S. Department of Justice (Sept. 1,
1999); subpoena duces tecum to the Executive Office of the President
(Sept. 1, 1999); subpoena duces tecum to William S. Cohen, Secretary of
Defense (Sept. 1, 1999); subpoena duces tecum to Federal Bureau of
Investigation (Sept. 15, 1999); subpoena duces tecum to U.S. Department
of Justice (Feb. 16, 2000).
---------------------------------------------------------------------------
To comply with these subpoenas, Federal agencies have
produced over 795,000 pages of documents. According to Attorney
General Janet Reno:
Just on Waco alone we provided 724,169 pages of
documents, 12 looseleaf binders of FBI lab reports, 18
diskettes of documents, 101 videotapes, 729 audio
tapes, 2,161 photographs, slides, charts, drawings, 8
CD ROMs of color photographs.\39\
---------------------------------------------------------------------------
\39\ Interview of Attorney General Reno at 29 (Oct. 5, 2000). By
October 19, the number of documents the Justice Department had produced
increased to 730,000. Letter from Robert Raben, Assistant Attorney
General for Legislative Affairs, to Chairman Dan Burton (Oct. 19,
2000).
This extensive document production was costly and
redundant. According to representatives of the Justice
Department, the FBI, and the Defense Department familiar with
both investigations, the committee received few, if any,
documents that were not also provided to Senator Danforth and
his staff. In an October 19, 2000, letter to Representative
Burton, Assistant Attorney General Robert Raben noted that the
Justice Department had made over 80 separate productions of
materials to the committee. He estimated that the cost of
producing Waco-related materials to this committee and other
congressional committees exceeded $800,000.\40\
---------------------------------------------------------------------------
\40\ Letter from Robert Raben, Assistant Attorney General for
Legislative Affairs, to Chairman Dan Burton (Oct. 19, 2000).
---------------------------------------------------------------------------
The committee's witness interviews were also duplicative of
Senator Danforth's efforts. Despite the ongoing efforts of
Senator Danforth, this committee conducted more than 80
interviews of government employees and private citizens with
knowledge on various aspects of the Waco standoff. The majority
conducted 77 interviews jointly with the minority staff. Five
witnesses appeared for interview twice before the minority and
majority staff. Two other known witnesses were interviewed
outside the presence of minority staff. Most of these
interviews lasted 2 or more hours and required the subject of
the interview to leave work and appear at the committee's
offices. On several occasions, committee staff traveled to
conduct interviews outside the District of Columbia, including
trips to Florida, New York, North Carolina, Pennsylvania,
Puerto Rico, and Texas.
In a September 22, 2000, letter, Representative Waxman
provided a list of joint interviews to Senator Danforth and
asked how many witnesses interviewed by the committee had been
interviewed by the Office of Special Counsel.\41\ Senator
Danforth responded on September 26, 2000, and identified only
six individuals who were not interviewed by the Office of
Special Counsel.\42\ These six individuals provided no
significant information that is not addressed in Senator
Danforth's report.\43\
---------------------------------------------------------------------------
\41\ Letter from Representative Henry Waxman to Senator John
Danforth (Sept. 22, 2000).
\42\ These individuals were David Binney, Gregory Johnson, James
Lockner, David Margolis, Peter Proach, and Rod Rosenstein.
\43\ The six witnesses provided information about the adequacy of
the Justice Department's internal investigation and the provision of
military assistance at Waco. Both subjects were extensively discussed
by Senator Danforth. See Danforth report at 51-52, 29-41.
---------------------------------------------------------------------------
III. The Investigation Contributed Virtually Nothing to the Public's
Understanding of the Waco Tragedy
Although the majority report spans 100 pages and includes
approximately 1,390 pages of exhibits, it contributes virtually
nothing to the public's understanding of Waco. To the extent
that the majority's conclusions differ from those of the Office
of Special Counsel, they consist largely of unsupported
allegations of wrongdoing.
a. the majority report repeats many of the conclusions of senator
danforth
Many of the majority report's findings mimic those of
Senator Danforth's report. The Office of Special Counsel
concluded that government agents did not direct gunfire at the
Branch Davidian compound; \44\ that a Hostage Rescue Team (HRT)
member fired three pyrotechnic tear gas rounds on April 19,
1993, but those rounds had nothing to do with the fire that
consumed the compound; \45\ that certain government attorneys
and the former commander of the HRT had reason to know about
the use of pyrotechnic tear gas rounds on April 19, 1993, but
failed to correct an inaccurate public record; \46\ that the
Justice Department's internal review failed adequately to
investigate evidence that pyrotechnic rounds had been fired on
April 19, 1993; \47\ and that the government did not improperly
or unlawfully employ the U.S. military as part of its law
enforcement operation at Waco.\48\
---------------------------------------------------------------------------
\44\ Id. at 4.
\45\ Id. at 4-5.
\46\ Id. at 47, 52-53, 56.
\47\ Id. at 52.
\48\ Id. at 29.
---------------------------------------------------------------------------
All these findings are echoed in the majority report. This
committee's recitation of similar facts and conclusions does
not make a meaningful contribution to the public record.
b. the majority report makes unsubstantiated allegations of wrongdoing
The majority report departs from Senator Danforth's report
primarily in its conclusions that Attorney General Reno and
certain current and former Justice Department employees engaged
in wrongdoing. But, as is discussed below, these conclusions
are nothing more than unsupported allegations.
1. Allegations Involving Attorney General Reno
In its report, the majority makes several unsubstantiated
allegations regarding the Attorney General. The majority
concludes that Attorney General Reno was uninterested in
learning or disclosing the true facts about Waco, that she
``reversed'' her decision disapproving of the FBI's tear gas
plan without any basis, and that she misrepresented that the
military approved or endorsed the FBI's tear gas plan. These
allegations are unsupported by the facts and have no merit.
a. Allegation That the Attorney General Was Not Interested
in Disclosing the Truth about Waco
The majority unfairly concludes that the Attorney General
and the Justice Department had no interest in learning or
disclosing the facts surrounding Waco. The majority writes that
``[a]ll of the actions taken by the Justice Department were
consistent with an organization that was not eager to learn the
full truth about what happened on April 19, 1993.'' \49\ The
majority also states:
---------------------------------------------------------------------------
\49\ Majority report at 6.
It is troubling that the Waco tragedy did not seem to
merit a ``vigorous and thorough investigation.''
President Clinton called for such an inquiry. Attorney
General Reno promised such an inquiry would take place.
Neither took the steps necessary to make sure it would
happen again.\50\
---------------------------------------------------------------------------
\50\ Id. at 27.
In fact, the Attorney General tried hard to investigate the
events at Waco. After the Waco fire on April 19, 1993, Attorney
General Reno directed her assistant Richard Scruggs, a career
Federal prosecutor, to begin an investigation to find out what
happened in order to avoid a similar tragedy in the future.
According to Mr. Scruggs, the Attorney General did not limit
the scope of the inquiry in any way.\51\ Moreover, Mr. Scruggs
received significant Justice Department resources in conducting
this investigation. Mr. Scruggs was assisted by senior Justice
Department attorneys and the Assistant Director of the FBI's
Inspection Division. According to Mr. Scruggs, the Inspection
Division made use of an army of FBI agents from several offices
around the country.\52\
---------------------------------------------------------------------------
\51\ Interview of Richard Scruggs (Jan. 5, 2000).
\52\ Id.
---------------------------------------------------------------------------
In addition, Attorney General Reno asked a distinguished
outside attorney, Edward Dennis, Jr., to conduct an independent
evaluation of the Justice Department's and FBI's conduct at
Waco.\53\ Mr. Dennis had served in several senior Justice
Department positions, including Acting Deputy Attorney General
and Assistant Attorney General for the Criminal Division during
the Bush administration, and, during the Reagan administration,
U.S. Attorney for the Eastern District of Pennsylvania.\54\
---------------------------------------------------------------------------
\53\ See Edward S.G. Dennis, Jr., ``Evaluation of the Handling of
the Branch Davidian Stand-Off in Waco, Texas By the United States
Department of Justice and the Federal Bureau of Investigation'' (Sept.
24, 1993); interview of Edward S.G. Dennis, Jr. (Jan. 14, 2000).
\54\ Interview of Edward S.G. Dennis, Jr. (Jan. 14, 2000).
---------------------------------------------------------------------------
It is true that there were deficiencies in these
investigations. For example, the investigations should have
discovered and disclosed the FBI's use of pyrotechnic tear gas
rounds and indicated that the pyrotechnic tear gas rounds did
not contribute to the fire in the Branch Davidian compound. But
these deficiencies cannot be fairly attributed to the Attorney
General. The Attorney General was not involved in the details
of either investigation. In fact, Mr. Scruggs, who was
primarily responsible for developing the factual record, made a
conscious decision not to report to the Attorney General
because she was a fact witness.\55\
---------------------------------------------------------------------------
\55\ Interview of Richard Scruggs (Jan. 5, 2000).
---------------------------------------------------------------------------
Senator Danforth specifically addressed whether the
Attorney General made knowing misstatements about the use of
pyrotechnic tear gas rounds and whether she took adequate steps
to determine the true facts. He concluded that Attorney General
Reno was without fault and that she made diligent efforts to
learn the truth. In his report, he writes:
The Office of Special Counsel has concluded that
Attorney General Reno did not knowingly cover up the
use of pyrotechnic tear gas rounds by the FBI. The
evidence is overwhelming that, prior to the execution
of the gassing plan, she sought and received assurances
from the FBI that it would not use pyrotechnic tear gas
rounds. The evidence is equally conclusive that the
briefing materials and other information she received
after the fact stated that the FBI had not used
pyrotechnic tear gas rounds at Waco. Any misstatement
that she made was inadvertent and occurred after
diligent efforts on her part to learn the truth. The
Office of Special Counsel has completed its
investigation of Attorney General Reno, [and] found her
to be without direct fault for any false statements
that she may have made.\56\
---------------------------------------------------------------------------
\56\ Danforth report at 51.
---------------------------------------------------------------------------
Attorney General Reno first learned about the use of
pyrotechnic tear gas rounds in August 1999. She reacted with
surprise and anger to the revelation and acted quickly to
determine the facts.\57\ By September 9, she had completed a
search for an impartial outside investigator and appointed John
Danforth, a respected Republican former Senator, as Special
Counsel. As is detailed in the Danforth report, the Attorney
General gave Senator Danforth extensive resources and
prosecutorial power to determine the truth.\58\
---------------------------------------------------------------------------
\57\ See, e.g, ``Waco's New Question: Who Knew? Two Days After
Blaze, Information on Grenades Was Withheld or Overlooked,'' Washington
Post (Sept. 3, 1999).
\58\ See Danforth report at 2-3.
---------------------------------------------------------------------------
b. Allegation that the Attorney General Failed to Disclose
Her Reasons for Approving the FBI's Tear Gas Plan
As part of the efforts to end the siege at Waco, the
Attorney General approved an FBI plan to insert tear gas into
the Branch Davidian compound after initially withholding her
approval of the use of tear gas.\59\ In another unsubstantiated
allegation, the majority asserts that the Attorney General has
failed to disclose her reasons for ``reversing'' herself and
allowing the use of the tear gas. The majority states that her
purported failure to explain her actions is inconsistent with
President Clinton's directive to make all of the facts
public.\60\
---------------------------------------------------------------------------
\59\ The tear gas approved by the Attorney General and used inside
the Branch Davidian residence was not delivered by means of a
pyrotechnic projectile. Rather, the tear gas used in the residence was
sprayed from the nozzle of Model V Projecto-Jet canisters installed on
combat engineering vehicles or fired from M-79 grenade launchers in
``ferret rounds.'' Ferret rounds disperse the CS gas on impact, without
using a pyrotechnic mixture. See interview of Monty Jett (Feb. 1,
2000).
\60\ Majority report at 47.
---------------------------------------------------------------------------
In fact, however, Attorney General Reno has explained on
numerous occasions why she decided to approve the FBI's plan to
use tear gas.\61\ Indeed, the Attorney General has explained
her decision at least twice to members of this committee.\62\
As recently as October 5, 2000, Attorney General Reno repeated
to committee members why she decided to approve the FBI's plan.
She said:
---------------------------------------------------------------------------
\61\ E.g. ``Press Conference on Branch Davidian April 19, 1993
Crisis'' (Apr. 19, 1993) (Bates Stamp No. CNG 3691272-300); House
Committee on the Judiciary, ``Events Surrounding the Branch Davidian
Cult Standoff in Waco, Texas,'' 103d Cong., 21-39, 48-51, 80-82 (Apr.
28, 1993); interview of Attorney General Janet Reno, Federal Bureau of
Investigation FD-302 (Aug. 2, 1993); deposition of Attorney General
Janet Reno, Andrade v. Chojnacki, No. H-94-0923, 89-96 (W.D. Tex).
\62\ See House Committee on Government Reform and Oversight and
House Committee on the Judiciary, hearings on ``Activities of Federal
Law Enforcement Agencies Toward the Branch Davidians,'' 104th Cong.,
vol. 3, 371-72 (Aug. 1, 1995) (hereinafter ``joint hearings'');
interview of Attorney General Janet Reno at 78-83.
We were faced with a dangerous situation that was
becoming more dangerous . . . Branch Davidians who had
killed four Federal agents had refused to yield to
lawful authority for 51 days. The Branch Davidians held
children in conditions that were clearly unhealthful
and deteriorating. I had reviewed the gas plan
carefully and received the advice of the experts that
the gas, although uncomfortable, would cause no lasting
harmful effects for children or adults. Koresh's
repeated failures to abide by his promises led the
negotiators, and ultimately me, to conclude that he
would not come out. This conclusion was buttressed by
the fact that none of the occupants had come out since
March 21st and the fact that the Davidians had food and
water sufficient to last at least a year. I think this
was one of the deciding factors. The HRT was in
immediate need of retraining. This need for retraining
was so severe that it did not appear that they could
continue to control the perimeter for significant time.
They then, that day that I gave the authority to go
forward, said that . . . the threat of cataclysmic end
was there. He had talked about Armageddon, and the
conclusion of the FBI was that he could do it at any
time, with or without us, . . . and that they were in
the best position to control it at this point that they
would be [in] for some foreseeable future.\63\
---------------------------------------------------------------------------
\63\ Interview of Attorney General Reno at 81-82 (Oct. 5, 2000).
Despite the mystery that the majority attempts to ascribe
to the Attorney General's decisionmaking process, it appears
that she decided to approve the plan after senior FBI officials
persuaded her that the chances for a successful resolution
would only diminish with the passage of time.\64\ The facts
recited by Senator Danforth support this conclusion. He writes:
---------------------------------------------------------------------------
\64\ Joint hearings at 372.
After further considering the issue, Attorney General
Reno changed her mind. She indicated that she was
inclined to approve the plan, but wanted to see an even
more detailed discussion of the plan and substantial
supporting documentation setting out the conditions
inside the complex, the status of negotiations, and the
reasoning behind the plan. According to Attorney
General Reno, she ultimately changed her mind because
she was convinced that the Davidians would not come out
voluntarily. She felt that the FBI would eventually
have to go forward with some plan, and that it was
better to proceed when the FBI was ready and best able
to control the situation.\65\
---------------------------------------------------------------------------
\65\ Danforth report at 108.
---------------------------------------------------------------------------
c. Allegation That the Attorney General and President
Clinton Deceived the American Public by
Representing That the Military Endorsed the FBI's
Tear Gas Plan
In another unsupported allegation, the majority writes that
``President Clinton and Attorney General Reno have deceived the
American people for over seven years by misrepresenting that
the military endorsed, sanctioned or otherwise approvingly
evaluated the [FBI's tear gas] plan.'' \66\ According to the
majority, the Attorney General's and President Clinton's
statements about the military's opinions stand in ``stark
contrast'' to the recollections of two senior Army
officers.\67\
---------------------------------------------------------------------------
\66\ Majority report at 6-7.
\67\ Id. at 81.
---------------------------------------------------------------------------
The ``stark'' differences cited by the majority are largely
semantic, however. They reflect a range of subjective
impressions of the same meeting. The statements made by the
Attorney General are consistent with those of at least three
other civilian participants at the meeting and do not differ in
any significant factual detail from the recollections of the
military officers involved.
After the FBI had proposed the use of tear gas to end the
standoff, FBI Director Sessions convened a meeting on April 14,
1993, to address Attorney General Reno's concerns. Among others
present were two senior Army officers, who were asked a number
of questions about the proposed plan.\68\ In statements made
after Waco, the Attorney General recalled that the Army
officers present at the meeting had viewed the FBI's plan as
``excellent'' or ``sound.'' \69\ In her October 5, 2000,
interview, the Attorney General reiterated:
---------------------------------------------------------------------------
\68\ Danforth report at 105.
\69\ ``60 Minutes'' (May 12, 1995); House Committee on the
Judiciary, ``Events Surrounding the Branch Davidian Cult Standoff in
Waco, Texas,'' 103d Cong., 15-16 (Apr. 28, 1993).
The military representatives stated the plan to
introduce tear gas into the compound was reasonable and
practical. . . . My sense was that they thought it was
a reasonable and practical plan, but they couldn't be
the judge and nobody was asking them to be the judge of
a law enforcement initiative where rules of engagement
would apply that would be different than the
military.\70\
---------------------------------------------------------------------------
\70\ Interview of Attorney General Janet Reno at 79, 80 (Oct. 5,
2000).
---------------------------------------------------------------------------
President Clinton also made similar comments, stating:
And so I asked if the military had been consulted. The
Attorney General said that they had, and that they were
in basic agreement that there was only one minor
tactical difference of opinion between the FBI and the
military--something both sides thought was not of
overwhelming significance.\71\
---------------------------------------------------------------------------
\71\ Majority report at 76 (quoting remarks by President Clinton on
Apr. 20, 1993).
These statements are entirely consistent with the
recollections of others who attended the same meeting on April
14, 1993. For example, Mary Incontro, a career Justice
---------------------------------------------------------------------------
Department prosecutor, told the FBI in 1993:
[The Army unit commander] outlined his views of the
plan and an overall assessment of the plan appeared to
be that it had been carefully and wisely reviewed. The
military personnel advised that although the plan
utilizing a specialized gas was not similar to any type
of military attack, it appeared to be carefully
constructed and the highest degree of confidence was
given to the Hostage Rescue Team.\72\
---------------------------------------------------------------------------
\72\ Interview of Mary Incontro, Deputy Chief, Terrorism and
Violent Crimes Section, Criminal Division, U.S. Department of Justice,
Federal Bureau of Investigation FD-302 (July 22, 1993).
Ms. Incontro confirmed this recollection to committee staff
on April 14, 2000. She said that the senior Army officers at
the meeting viewed the plan as militarily sound and well
conceived. She said that while the military representatives may
have said that the military would do it differently, she heard
no dissent from the military representatives.\73\
---------------------------------------------------------------------------
\73\ Interview of Mary Incontro, Assistant U.S. Attorney (Apr. 14,
2000).
---------------------------------------------------------------------------
A second individual present at the April 14, 1993, meeting
gave an account that is also similar to the account given by
Attorney General Reno. Jack Keeney, who was acting Assistant
Attorney General for the Criminal Division in 1993, told
committee staff that the military officers present at the
meeting said they would do the plan differently if it were a
military operation, but the two military officers seemed
generally to endorse the FBI plan.\74\
---------------------------------------------------------------------------
\74\ Interview of Jack Keeney, Principal Deputy Assistant Attorney
General, Criminal Division, U.S. Department of Justice (Apr. 26, 2000).
---------------------------------------------------------------------------
A third Justice Department official had a similar
impression that the military officers present at the April 14
meeting had given a positive review of the proposed plan.
According to the FBI's record of the interview of Webster
Hubbell, then Associate Attorney General, Mr. Hubbell said:
The military representatives stated that the FBI plan
to introduce tear gas into the compound was reasonable
and practical. The only aspect of the plan that the
military would do differently concerned the timing of
the gas insertion. . . . Hubbell recalls the military
representatives indicated they believed the FBI plan as
presented would work and that after the gas was
inserted people in the [Branch Davidian Compound] would
come out.\75\
---------------------------------------------------------------------------
\75\ Interview of Webster Hubbell, Associate Attorney General,
Federal Bureau of Investigation FD-302 (Aug. 3, 1993).
The majority's allegation that the Attorney General and the
President misrepresented the military's role is based on the
majority's interpretation of the comments of the two senior
Army officers who attended the April 14 meeting. It is true
that both recall that they never expressed support for or
endorsed the proposed tear gas plan.\76\ But the underlying
facts described by these Army officers closely resemble the
accounts given by Attorney General Reno, Ms. Incontro, Mr.
Keeney, and Mr. Hubbell.
---------------------------------------------------------------------------
\76\ Interview of General Peter Schoomaker, Commander in Chief,
U.S. Special Operations Command (Jan. 13, 2000); interview of Special
Operations General Officer No. 1 (Jan. 13, 2000).
---------------------------------------------------------------------------
In a 1993 memorandum written to his commander, one of the
military participants described the meeting. He wrote that he
and the other senior Army officer told the group that the
proposed FBI operation was not and could not be assessed as a
military operation.\77\ In the same memorandum, he further
stated:
---------------------------------------------------------------------------
\77\ Memorandum from Army Colonel to Commander, U.S. Army Special
Operations Command (May 13, 1993).
The plan which was executed at Waco was an FBI plan
which neither [Army officers] helped prepare. At the
same time, I did believe that they had a reasonable
chance of accomplishing their objective of forcing the
occupants out of the building. Their approach was
substantially different than anything that I have
encountered. . . . I did not believe that the FBI and
the Attorney General were trying to force us to support
or defend the plan. It was my belief that they simply
wanted any observations that we felt comfortable
providing.\78\
---------------------------------------------------------------------------
\78\ Id.
In short, the majority grossly exaggerates the significance
of what is largely a difference in semantics and subjective
impressions. Attorney General Reno's impressions of the April
14 meeting were shared by at least three others who attended
the same meeting. The majority's assertion that she or
President Clinton deceived the American public is without any
merit.
2. Allegations Regarding the Internal Justice Department Review
The majority criticizes as negligent the internal Justice
Department investigation led by Richard Scruggs.\79\ Mr.
Scruggs was the leader of a team of Justice Department
attorneys and FBI inspectors who conducted approximately 950
interviews in the aftermath of Waco and drafted a 368-page
report to the Deputy Attorney General.\80\ The primary basis
for the majority's criticism is that the Justice Department
investigation did not discuss the use of pyrotechnic tear gas
rounds at Waco.
---------------------------------------------------------------------------
\79\ Id. at 57.
\80\ Richard Scruggs, ``Report to the Deputy Attorney General on
the Events at Waco, Texas,'' Feb. 28-Apr. 19, 1993, 14 (Oct. 8, 1993)
(unredacted version) (hereinafter ``Scruggs report'').
---------------------------------------------------------------------------
In hindsight, it is clear that the Justice Department
investigation should have disclosed the use of the pyrotechnic
tear gas rounds, as well as the fact that the use of these
rounds did not contribute to the fatal fire at the Branch
Davidian compound. But there is an irony in the majority's
criticism. The majority writes:
Had Scruggs and his colleagues thoroughly reviewed all
the documents available to them, they would have found
references to ``military'' rounds. Scruggs and his
colleagues failed to do so. The failure of the Scruggs
team to come to an understanding that pyrotechnic
rounds were used was, as discovered in 1999, a
significant shortcoming.\81\
---------------------------------------------------------------------------
\81\ Majority report at 60.
As was discussed in part II above, the majority had access
to these very same documents for 5 years. Thus, the
``significant shortcoming'' attributed to the Justice
Department's investigation also applies to the majority's own
investigation. The fact is, like almost everyone else involved
in Waco-related investigations, lawsuits, and criminal
proceedings, the majority failed to notice the significance of
the documents referring to the use of ``military'' rounds.
Indeed, as noted above, the majority did not even know that
their own files contained the documents referring to these
rounds until Representative Waxman pointed this out in a
September 13, 1999, letter.\82\
---------------------------------------------------------------------------
\82\ The majority attempts to explain its failure to recognize the
significance of these documents by suggesting the Justice Department
intentionally delayed giving the committee the key documents 3 days
before the start of hearings in 1995. The majority has pointed to no
evidence, however, that supports its assertion that the Justice
Department deliberately delayed production of documents to this
committee. For example, as is discussed in part II above, the Justice
Department provided the committee an FBI lab report mentioning the use
of military tear gas rounds 13 days before the start of joint committee
hearings in 1995, 26 days before the conclusions of those hearings, and
392 days before the committees issued their joint report.
---------------------------------------------------------------------------
The majority also makes the assertion that ``[p]ressure
from senior Justice Department officials, including then-Deputy
Attorney General Phil Heymann, caused the Scruggs team to rush
to conclude their investigation and to publish their report,
thus failing to uncover and disclose facts.'' \83\ According to
the majority, ``the Scruggs investigation . . . was improperly
rushed to its conclusion solely for political purposes.'' \84\
---------------------------------------------------------------------------
\83\ Majority report at 6.
\84\ Id. at 5.
---------------------------------------------------------------------------
The record of this investigation, however, contains no
support for these assertions of political pressure. Committee
staff interviewed Mr. Heymann on July 19, 2000. Mr. Heymann
said that he wanted the review completed within 6 months to
prevent the review from becoming a never-ending investigation,
a familiar phenomenon in law enforcement. He said that no one
complained to him that the investigation was incomplete or
inadequate.\85\ Not a single witness interviewed by the
committee suggested that the Justice Department's investigation
was cut short for political purposes. Senator Danforth, who was
critical of aspects of the Department's investigation in his
interim report, did not find any evidence of pressure to
complete the investigation.
---------------------------------------------------------------------------
\85\ Interview of Philip Heymann, professor of law, Harvard
University Law School (July 19, 2000).
---------------------------------------------------------------------------
3. Unsubstantiated Allegations Against Marie Hagen
The majority accuses Marie Hagen, a Justice Department
trial attorney, of reckless conduct and concludes that if she
had ``followed up'' on a certain request for information to an
FBI attorney, ``the time consuming investigations started in
1999 would not have been necessary.'' \86\ But these
conclusions are unsupported by any documentary evidence,
including the documents cited by the majority, and they
directly conflict with the findings of Senator Danforth. The
evidence gathered by this committee and Senator Danforth shows
that Ms. Hagen took diligent steps to determine the truth and
is in no way responsible for this committee's Waco
investigation.
---------------------------------------------------------------------------
\86\ Majority report at 56-57.
---------------------------------------------------------------------------
Ms. Hagen was a trial attorney working on Andrade v. United
States, a consolidated lawsuit brought by seven groups of
Branch Davidians and relatives of deceased Branch Davidians.
The plaintiffs in that case alleged that government agents used
excessive force, failed to provide adequate emergency services,
and intentionally or negligently committed other acts that
harmed the Branch Davidians in 1993.\87\ In 1996, the
plaintiffs in that lawsuit filed the declaration of their fire
expert, Richard Sherrow (Sherrow declaration). The Sherrow
declaration alluded to documents the plaintiffs had obtained
from the FBI prior to January 1996, which indicated that the
FBI had fired at least one military pyrotechnic munition into
the Branch Davidian complex.\88\
---------------------------------------------------------------------------
\87\ See Danforth report at 142.
\88\ Declaration of Richard L. Sherrow at 6, Andrade v. Chojnacki,
No. H-94-0923 (S.D. Tex.) (Jan. 17, 1996) (majority exhibit 47).
---------------------------------------------------------------------------
According to the Office of Special Counsel, Ms. Hagen took
several affirmative steps to determine the basis for Mr.
Sherrow's mention of military pyrotechnic munitions. In January
1996, Ms. Hagen asked an FBI attorney, Jacqueline Brown, for
help in responding to the Sherrow declaration.\89\ She also
forwarded a relevant pleading to Ms. Brown for review before
filing it with the court.\90\ She took these steps even though
numerous Justice Department and FBI officials had, by that
time, concluded that the FBI had used no pyrotechnic munitions
at Waco.\91\
---------------------------------------------------------------------------
\89\ Danforth report at 56.
\90\ Id. at 57.
\91\ Senator Danforth recites a list of statements by various
Justice Department and FBI officials indicating that no pyrotechnic
munitions were used at Waco. These include statements by FBI Special
Agent in Charge Robert Ricks, Attorney General Janet Reno, FBI Director
William Sessions, and the Scruggs report. Danforth report at 46-47. Ms.
Hagen had no reason to know at the time that these reports had
overlooked evidence indicating the use of military rounds on Apr. 19,
1993.
---------------------------------------------------------------------------
According to the Office of Special Counsel, Ms. Brown faxed
the Sherrow declaration to an FBI chemical agent specialist.
Someone (possibly Ms. Brown) also faxed the document to
Supervisory Special Agent Robert Hickey, a member of the
Hostage Rescue Team. On February 15, 1996, Mr. Hickey drafted
an internal FBI memorandum (Hickey memorandum) that responded
in detail to the Sherrow declaration. Mr. Hickey clearly
acknowledged the harmless use of military rounds on April 19,
1993, and wrote, in pertinent part:
Shortly after the operation commenced on 4/19/93, the
HRT (Charlie Team) determined, after two (2) or three
(3) ferret rounds, that they were unable to penetrate
the underground shelter roof which was their first
target. Charlie Team then requested to use 40mm
military CS rounds in an effort to penetrate the roof.
Charlie Team was granted authority to fire the military
CS rounds. A total of two (2) or three (3) rounds were
fired at the underground shelter roof. These rounds hit
the roof, bounced off and landed in the open field well
behind the main structure. This occurred shortly after
6:00 am. These were the only military rounds
utilized.\92\
---------------------------------------------------------------------------
\92\ Memorandum from Robert Hickey, Supervisory Special Agent,
Federal Bureau of Investigation, to Jacqueline F. Brown, Office of
General Counsel (Feb. 15, 1996).
According to the Office of Special Counsel, Mr. Hickey
faxed his memorandum to Ms. Brown on February 16, 1996, and
discussed it with her the same day. Ms. Brown made notations on
the section of the memorandum relating to the use of military
rounds.\93\
---------------------------------------------------------------------------
\93\ Danforth report at 57.
---------------------------------------------------------------------------
The majority's charges against Ms. Hagen hinge on whether
Ms. Brown informed Ms. Hagen about the Hickey memorandum. The
majority asserts that Ms. Hagen was informed by Ms. Brown about
the use of the military rounds. The Office of Special Counsel,
however, specifically concluded that she was not informed.\94\
---------------------------------------------------------------------------
\94\ Id. at 57-58.
---------------------------------------------------------------------------
The evidence supporting the majority's view is scant. Ms.
Brown maintains that she provided information on the FBI's use
of military rounds to her supervisor and Ms. Hagen.\95\ But
apart from Ms. Brown's assertion that she provided the Hickey
memorandum to Ms. Hagen, the committee has no documentary or
other evidence that Ms. Brown provided the Hickey memorandum to
Ms. Hagen.
---------------------------------------------------------------------------
\95\ Id. at 57.
---------------------------------------------------------------------------
The majority asserts in its report:
Documents made available to Committee staff indicate
that Brown did in fact share the Hickey memorandum with
her supervisor, Virginia Buckles, and Hagen. For
example, Brown, who maintained a daily checklist of
action items, recorded on February 19, 1996, the fact
that she spoke with Hagen and other Justice Department
officials regarding the Hickey memorandum and showed
them the document: ``meet w/DOJ re dec[laration] memo
to M[arie] H[agen].'' \96\
---------------------------------------------------------------------------
\96\ Majority report at 55.
This is simply incorrect. Ms. Brown's daily to-do list does not
read, ``meet w/DOJ re dec[laration] memo to M[arie] H[agen],''
as the majority contends. It actually contains three relevant
entries, which, if anything, suggest that Ms. Brown did not
provide the Hickey memorandum to Ms. Hagen. One entry reads,
``Waco-gas memo.'' Another reads ``Meet w/ DOJ re dec (ask to
review final copy of reply).'' And another reads ``Sherrow Dec
memo to MH.'' Of those three entries, the only one checked off
and presumably completed is the second: ``Meet w/ DOJ re dec
(ask to review final copy of reply).'' \97\ The Sherrow
declaration was 22 pages long and raised a number of possible
fact issues relating to the cause of the fire.
---------------------------------------------------------------------------
\97\ Calendar of Jacqueline Brown, Assistant General Counsel,
Federal Bureau of Investigation (Feb. 19, 1996).
---------------------------------------------------------------------------
Senator Danforth and his staff read precisely the opposite
meaning from this document as does the majority. And they
arrive at the opposite conclusion about Ms. Hagen. The Danforth
report states:
[T]he documentary evidence also indicates that Brown
did not give the information to Hagen. As stated above,
neither Brown nor the Office of Special Counsel was
able to locate a fax cover sheet indicating that she
had faxed the Hickey memo to Hagen. Hagen's files
contain no copy of the Hickey memo. In addition,
Brown's ``To Do'' list in her calendar for February 19,
1996, contains the notation, ``Sherrow Declaration Memo
to M[arie] H[agen].'' Unlike some diary entries, this
``To Do'' item is not checked off. Moreover, Brown
placed a number on the Hickey memorandum which would
result in its being placed in an FBI litigation file
that would not be disclosed to the Department of
Justice.\98\
---------------------------------------------------------------------------
\98\ Danforth report at 59. In addition to this journal entry, the
majority distorts the meaning of two other documents in an effort to
show that Ms. Brown provided information on the Hickey memorandum to
Ms. Hagen. Referring to Virginia Buckles, Ms. Brown's supervisor, the
majority writes in its report: ``Buckles' own memoranda to then-FBI
General Counsel Howard Shapiro detailing the status of then-ongoing FBI
civil litigation referenced Buckles' and Brown's involvement in
assisting Hagen and the Justice Department to clarify the Sherrow
Declaration.'' Although these memoranda mention the Sherrow
declaration, they address elements of the declaration that have nothing
to do with its reference to military tear gas rounds. One memorandum
relates to a claim that a combat engineering vehicle caused the fire
after it tipped over a lantern and a claim that the FBI violated its
own internal regulations. The second memorandum relates to Mr.
Sherrow's analysis of ``hot spots'' on the FLIR video. While these
documents tend to show that Ms. Brown assisted in the preparation of
the Justice Department's reply brief, they give no insight into whether
Ms. Brown provided information on the Hickey memorandum to Ms. Hagen.
---------------------------------------------------------------------------
4. Allegations Regarding the Posse Comitatus Act
The majority alleges that White House officials and senior
law enforcement officials sought advice from senior military
officers that, if given, would have violated the Posse
Comitatus Act.\99\ Although the majority recites the history of
the act and the enactment of related statutes, it provides no
support for its conclusion. To the contrary, the relevant
statute and its legislative history suggest the opposite
conclusion.
---------------------------------------------------------------------------
\99\ Majority report at 61 n. 225, 61; 18 U.S.C. Sec. 1385.
---------------------------------------------------------------------------
The Posse Comitatus Act prohibits the use of Army and Air
Force personnel to execute the civil laws of the United States,
except under circumstances prescribed by Congress.\100\ The act
has generally been interpreted to permit military support of
law enforcement short of actual search, seizure, arrest or
similar confrontation with civilians.\101\
---------------------------------------------------------------------------
\100\ 18 U.S.C. Sec. 1385; see generally U.S. Army Judge Advocate
General School, ``Operational Law Handbook,'' 22-1 (1996) (hereinafter
``operational law handbook'').
\101\ Operational law handbook at 22-1.
---------------------------------------------------------------------------
In 1981, Congress enacted chapter 18 of title 10 of the
United States Code to clarify the law on permissible forms of
military assistance to civilian law enforcement agencies.\102\
Among other things, this statute expressly authorizes the
Secretary of Defense to make military personnel available to
provide ``law enforcement officials with expert advice relevant
to the purposes of this chapter,'' subject to the limitation
that the Secretary of Defense prevent ``direct participation by
a member of the Army, Navy, Air Force, or Marine Corps in a
search, seizure, arrest, or other similar activity.'' \103\
---------------------------------------------------------------------------
\102\ See generally 1 Op. Off. Legal Counsel 36, 1991 WL 49985
(Feb. 19, 1991) (concluding that Congress intended only to prevent
searches likely to result in a direct confrontation between military
personnel and civilians).
\103\ 10 U.S.C. Sec. Sec. 373, 375.
---------------------------------------------------------------------------
The majority apparently takes the view that the advice
sought by Justice Department and FBI officials is outside the
scope of permissible expert advice and constitutes prohibited
direct participation in an arrest. The majority, however,
offers no legal support for this conclusion, which runs
contrary to the legislative history of the applicable law. J.
Michael Luttig, an Assistant Attorney General during the Bush
administration, explained:
It is evident from the legislative history of these
amendments that Congress intended to codify the
distinction--articulated by the district court in
United States v. Red Feather--between ``indirect
passive'' assistance and ``direct active'' involvement
in law enforcement activity. . . . Significantly,
Congress understood Red Feather to prohibit only
activity that entailed direct, physical confrontation
between military personnel and civilians.\104\
---------------------------------------------------------------------------
\104\ 15 Op. Off. Legal Counsel at 42.
The input sought from the military personnel at the April
14, 1993, meeting related to their area of professional
expertise. The law expressly authorizes such provision of
military expert advice to civilian law enforcement. In
addition, Justice Department and FBI officials sought this
expert advice during the formative stages of a law enforcement
plan. This would not constitute the direct, active use of the
military to execute the law. It thus would not have violated
the Posse Comitatus Act or any other applicable statute.
Senator Danforth thoroughly investigated the role of the
military at Waco. He found that there was no violation of the
Posse Comitatus Act and no other illegal or improper use of the
armed forces. Senator Danforth wrote that the two senior Army
officers present at the April 14, 1993 meeting:
discussed the effects of CS gas on people, whether the
delivery of tear gas could start of fire, whether the
HRT personnel were fatigued or in need of retraining,
and they described how the military would conduct the
operation. They emphasized the differences between
military and civilian law enforcement operations. This
advice was within the areas of their expertise and did
not constitute direct participation in law enforcement
activity.\105\
---------------------------------------------------------------------------
\105\ Danforth report at 37.
---------------------------------------------------------------------------
IV. Conclusion
The committee's 13-month investigation of Waco was
unnecessary, expensive, and fruitless. Although the majority
report spans 100 pages and includes nearly 1,400 pages of
documentary exhibits, it contributes virtually nothing to the
public's understanding of Waco. Many of the report's findings
duplicate those of the Special Counsel, former Senator John C.
Danforth. In his report, Senator Danforth determined, among
other things, that government agents did not cause or
contribute to the fire that consumed the Branch Davidian
compound on April 19, 1993, did not direct gunfire at the
Branch Davidians on April 19, and did not unlawfully employ
U.S. armed forces at any time during the standoff. To the
extent the majority report deviates from Senator Danforth's
findings, it consists largely of unsupported allegations of
wrongdoing by the Attorney General and Justice Department
officials.
Hon. Henry A. Waxman.
Hon. Tom Lantos.
Hon. Major R. Owens.
Hon. Edolphus Towns.
Hon. Paul E. Kanjorski.
Hon. Carolyn B. Maloney.
Hon. Eleanor Holmes Norton.
Hon. Chaka Fattah.
Hon. Elijah E. Cummings.
Hon. Dennis J. Kucinich.
Hon. Rod R. Blagojevich.
Hon. Danny K. Davis.
Hon. John F. Tierney.
Hon. Jim Turner.
Hon. Harold E. Ford, Jr.
[The exhibits referred to follow:]