Executive Summary
Activities of Federal Law Enforcement Agencies Toward the Branch Davidians
Report House of Representatives
104th Congress, 2nd Session, Union Calendar No. 395
August 2, 1996
Union Calendar No. 395
104th Congress REPORT
HOUSE OF REPRESENTATIVES
2nd Session 104-749
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INVESTIGATION INTO THE ACTIVITIES OF FEDERAL LAW ENFORCEMENT AGENCIES
TOWARD THE BRANCH DAVIDIANS
--------------------
August 2, 1996.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
--------------------
Mr. Clinger, from the Committee on Government Reform and Oversight,
submitted the following
THIRTEENTH REPORT
together with
ADDITIONAL AND DISSENTING VIEWS
based on a joint investigation by the subcommittee on national security,
international affairs, and criminal justice of the committee on
government reform and oversight, and the subcommittee on crime of the
committee of the judiciary
On July 25, 1996, the Committee on Government Reform and Oversight
approved and adopted a report entitled ``Investigation Into the
Activities of Federal Law Enforcement Agencies Toward the Branch
Davidians.'' The report was prepared jointly with the Committee on the
Judiciary. The chairman was directed to transmit a copy to the Speaker
of the House.
Executive Summary
From April 1995 to May 1996, the Subcommittee on Crime of the House
Committee on the Judiciary and the Subcommittee on National Security,
International Affairs, and Criminal Justice of the House Committee on
Government Reform and Oversight jointly conducted an investigation into
the actions of the Federal agencies involved in law enforcement
activities near Waco, TX in late 1992 and early 1993 toward a group
known as the Branch Davidians. As part of that investigation, the
subcommittees held 10 days of public hearings. During the course of
those hearings, more than 100 witnesses appeared and gave testimony
concerning all aspects of the government's actions. The subcommittees
also reviewed thousands of documents requested from and provided by the
agencies involved in these actions. Additionally, the subcommittees met
with others who were involved in these actions or who offered additional
information or opinions concerning them.
This report is the final product of that investigation. It
summarizes the most important facts about the key issues of these
activities considered by the subcommittees. The report also sets forth
the subcommittees' findings with respect to many disputed issues and to
new facts uncovered during the investigation. Finally, the report makes
recommendations in order to prevent the mistakes that occurred at Waco
from reoccurring in future law enforcement operations.
a. a brief summary of the government's actions toward the branch
davidians
In June 1992, the Austin, TX Office of the Bureau of Alcohol,
Tobacco and Firearms (ATF) opened a formal investigation into
allegations that members of a Waco, TX religious group, known as the
Branch Davidians, and in particular their leader, Vernon Howell, also
known as David Koresh, were in possession of illegal firearms and
explosive devices. In January 1993, ATF agents commenced an undercover
operation in a small house directly across from the property on which
the Branch Davidians lived. The ATF agents posed as students attending
classes at a local technical college to monitor the activities of the
Davidians. Part of the undercover operation involved one of the agents
meeting with Koresh and other Davidians several times by expressing an
interest in their religious beliefs. As a result of the evidence
gathered by the ATF, and in particular during the undercover operation,
the ATF sought and received from a Federal judge an arrest warrant for
Koresh and a warrant to search the Branch Davidian residence.
Shortly before the ATF planned to serve the search and arrest
warrants, it contacted Operation Alliance, a government office which
coordinated military counter drug operations along the southwest border.
Through that office, the ATF requested that military personnel provide
training to the ATF agents who would be involved in the raid to serve
the warrants. The ATF's request for military assistance also would have
involved the military personnel as participants in the raid itself.
After military legal advisors cautioned that such activity might violate
Federal law, the ATF's request was modified so that military personnel
only provided training to the ATF agents and did not participate in the
raid. Because the ATF alleged that the Davidians were also involved in
illegal drug manufacturing, the assistance provided by these counter
drug military forces was provided to the ATF without reimbursement.
On February 28, 1993, a force of 76 ATF agents stormed the Davidian
residence to serve the arrest and search warrants. Prior to the
commencement of the raid, however, the Davidians had learned of the
ATF's plans. As the agents arrived at the Davidians' residence, the
Davidians engaged the ATF agents in a gun battle which continued for
almost 90 minutes. Four ATF agents were killed in the battle and more
than 20 agents wounded. At least two Davidians were killed by ATF agents
and several others, including Koresh, were wounded.
After a cease-fire was arranged, the Federal Bureau of Investigation
(FBI) dispatched members of its Hostage Rescue Team (HRT) to Waco to
take control of the situation at the request of the ATF. At 6 a.m. the
next morning, the FBI formally took control of the situation and
commenced a 51 day standoff with the Davidians. During this time, FBI
officials engaged in daily negotiations with the Davidians in an effort
to end the standoff peaceably. Between February 18 and March 23, 35
persons, including 21 children, left the residence and surrendered to
the FBI. From March 23 to April 18, however, none of the remaining
Branch Davidians left the residence.
In addition to the continual negotiations with the Davidians, FBI
officials took other steps to induce the Davidians to surrender. These
tactics included tightening the perimeter around the Davidian residence,
cutting off electricity to the residence, and at one point, shining
bright lights at the residence and playing loud music and irritating
sounds over loudspeakers. During the course of the standoff, FBI
negotiators consulted with several experts routinely retained by the
FBI. In some cases, the advice of these experts was followed while in
other cases it was not. Many other persons offered advice to the FBI.
While a few of these individuals offered credible assistance, the FBI
chose to ignore the offers of assistance from all of these persons.
During the week of April 12, senior Justice Department officials
began considering a plan developed by the FBI to end the standoff.
Attorney General Janet Reno, other senior Justice Department officials,
and FBI officials held several meetings concerning the plan. The FBI
also requested the input of Department of Defense employees and military
personnel concerning the plan to end the standoff. During these
deliberations Associate Attorney General Webster Hubbell personally
discussed the status of the negotiations with the FBI's chief day-to-day
negotiator in Waco. The proposed plan centered around the use of a
chemical riot control agent which would be injected through the walls of
the Davidian residence in order to induce the residents to leave the
structure. It provided for the methodical insertion of the riot control
agent into different parts of the building over a 48 hour period. The
plan also contained a contingency provision to be used if the Davidians
fired on the FBI agents who were implementing the plan. In that event,
the FBI proposed to insert the riot control agent into all portions of
the residence simultaneously. As a result of these deliberations, the
Attorney General approved the implementation of the plan for April 19,
1993.
At approximately 6 a.m. on April 19, the FBI's chief negotiator,
Byron Sage, telephoned the Davidians and informed them that the FBI was
inserting the riot control agent into the residence. Sage also began
broadcasting a prepared statement over loudspeakers that the FBI was
``placing tear gas in the building'' and that all residents should
leave. As the announcement was being made, FBI agents using unarmed
military vehicles with booms mounted on them began to insert the riot
control agent into the compound by ramming holes into the sides of the
structure and then using devices mounted on the booms to spray the riot
control agent into the holes in the walls. Almost immediately the
Davidians began to fire on the vehicles being used by the FBI. At 6:07
a.m., the commander of the Hostage Rescue Team ordered that the
contingency provision of the operations plan be implemented and that the
riot control agent be inserted in all portions of the residence at once.
During 6 hours of insertion of the riot control agent no residents
exited the compound.
At approximately 12:07 p.m., a fire was observed in one portion of
the residence. Within 2 minutes, two other fires developed. Within a
period of 8 minutes, the three fires had engulfed the entire structure,
ultimately destroying it completely.
During the fire, sounds of gunfire from within the structure were
heard. Some of these sounds were live rounds exploding in the flames
inside the compound. However, other sounds were methodical and evenly-
spaced, indicating the deliberate firing of weapons. Nine persons
escaped from the structure during the course of the fire but more than
70 other residents remained inside. All of these persons died. Of this
number, autopsies indicated that 19 died from gunshots at close range.
Most of the other residents who remained inside the structure died as a
result of smoke inhalation from the fire or from burns from the fire.
b. findings of the subcommittees
As a result of its investigation, the subcommittees make the
following findings:
The Branch Davidians
1. But for the criminal conduct and aberrational behavior of David
Koresh and other Branch Davidians, the tragedies that occurred in Waco
would not have occurred. The ultimate responsibility for the deaths of
the Davidians and the four Federal law enforcement agents lies with
Koresh.
2. While not dispositive, the evidence presented to the
subcommittees indicates that some of the Davidians intentionally set the
fires inside the Davidian residence.
3. The Davidians could have escaped the residence for a significant
period of time after the start of the fire. Most of the Davidians either
did not attempt to escape from the residence or were prevented from
escaping by other Davidians.
4. The gunshot wounds which were the cause of death of 19 of the
Davidians on April 19 were either self-inflicted, inflicted by other
Davidians, or the result of the remote possibility of accidental
discharge from rounds exploding in the fire.
The Department of the Treasury
1. Treasury Secretary Lloyd Bentsen and Deputy Secretary Roger
Altman acted highly irresponsibly and were derelict in their duties in
failing to even meet with the Director of the ATF in the month or so
they were in office prior to the February 28 raid on the Davidians
residence, in failing to request any briefing on ATF operations during
this time, and in wholly failing to involve themselves with the
activities of the ATF.
2. Senior Treasury Department officials routinely failed in their
duty to monitor the actions of ATF officials, and as a result were
uninvolved in the planning of the February 28 raid. This failure
eliminated a layer of scrutiny of the plan during which flaws in it
might have been uncovered and corrected.
3. After the raid failed, Assistant Treasury Secretary Ronald Noble
attempted to lay the blame entirely on the ATF despite the fact that
Treasury Department officials, including Noble, failed to properly
supervise ATF activities leading to the raid. Moreover, Treasury
Department officials, having approved the raid, failed to clearly and
concisely communicate the conditions under which it was to be aborted.
The Bureau of Alcohol, Tobacco and Firearms
1. The ATF's investigation of the Branch Davidians was grossly
incompetent. It lacked the minimum professionalism expected of a major
Federal law enforcement agency.
2. While the ATF had probable cause to obtain the arrest warrant for
David Koresh and the search warrant for the Branch Davidian residence,
the affidavit filed in support of the warrants contained an incredible
number of false statements. The ATF agents responsible for preparing the
affidavits knew or should have known that many of the statements were
false.
3. David Koresh could have been arrested outside the Davidian
compound. The ATF chose not to arrest Koresh outside the Davidian
residence and instead were determined to use a dynamic entry approach.
In making this decision ATF agents exercised extremely poor judgment,
made erroneous assumptions, and ignored the foreseeable perils of their
course of action.
4. ATF agents misrepresented to Defense Department officials that
the Branch Davidians were involved in illegal drug manufacturing. As a
result of this deception, the ATF was able to obtain some training from
forces which would not have otherwise provided it, and likely obtained
other training within a shorter period of time than might otherwise have
been available. Because of its deception, the ATF was able to obtain the
training without having to reimburse the Defense Department, as
otherwise would have been required had no drug nexus been alleged.
5. The decision to pursue a military style raid was made more than 2
months before surveillance, undercover, and infiltration efforts were
begun. The ATF undercover and surveillance operation lacked the minimum
professionalism expected of a Federal law enforcement agency.
Supervisors failed to properly monitor this operation.
6. The ATF's raid plan for February 28 was significantly flawed. The
plan was poorly conceived, utilized a high risk tactical approach when
other tactics could have been successfully used, was drafted and
commanded by ATF agents who were less qualified than other available
agents, and used agents who were not sufficiently trained for the
operation. Additionally, ATF commanders did not take precautions to
ensure that the plan would not be discovered.
7. The senior ATF raid commanders, Phillip Chojnacki and Chuck
Sarabyn, either knew or should have known that the Davidians had become
aware of the impending raid and were likely to resist with deadly force.
Nevertheless, they recklessly proceeded with the raid, thereby
endangering the lives of the ATF agents under their command and the
lives of those residing in the compound. This, more than any other
factor, led to the deaths of the four ATF agents killed on February 28.
8. Former ATF Director Stephen Higgins and former ATF Deputy
Director Daniel Hartnett bear a portion of the responsibility for the
failure of the raid. They failed to become significantly involved in the
planning for the raid and also failed to instill in the senior raid
commanders an understanding of the need to ensure that secrecy was
maintained in an operation of this type.
9. There was no justification for the rehiring of the two senior ATF
raid commanders after they were fired. The fact that senior Clinton
administration officials approved their rehiring indicates a lack of
sound judgment on their part.
The Department of Justice
1. The decision by Attorney General Janet Reno to approve the FBI's
plan to end the standoff on April 19 was premature, wrong, and highly
irresponsible. In authorizing the assault to proceed Attorney General
Reno was seriously negligent. The Attorney General knew or should have
known that the plan to end the stand-off would endanger the lives of the
Davidians inside the residence, including the children. The Attorney
General knew or should have known that there was little risk to the FBI
agents, society as a whole, or to the Davidians from continuing this
standoff and that the possibility of a peaceful resolution continued to
exist.
2. The Attorney General knew or should have known that the reasons
cited for ending the stand-off on April 19 lacked merit. The
negotiations had not reached an impasse. There was no threat of a
Davidian breakout. The FBI Hostage Rescue Team did not need to stand
down for rest and retraining for at least 2 more weeks after April 19,
and if and when it did stand down FBI and local law enforcement SWAT
teams could have been brought in to maintain the perimeter. Sanitary and
other living conditions inside the Davidian residence had not
deteriorated during the standoff and there was no evidence that they
were likely to deteriorate in the near future. And while physical and
sexual abuse of minors had occurred, there was no basis to conclude that
minors were being subjected to any greater risk of physical or sexual
abuse during the stand-off than prior to February 28. The final assault
put the children at the greatest risk.
3. The CS riot control agent insertion and assault plan was fatally
flawed. The Attorney General believed that it was highly likely that the
Davidians would open fire, and she knew or should have known that the
rapid insertion contingency would be activated, that the Davidians would
not react in the manner suggested by the FBI, and that there was a
possibility that a violent and perhaps suicidal reaction would occur
within the residence. The planning to end the stand-off was further
flawed in that no provision had been made for alternative action to be
taken in the event the plan was not successful.
4. Following the FBI's April 19 assault on the Branch Davidian
compound, Attorney General Reno offered her resignation. In light of her
ultimate responsibility for the disastrous assault and its resulting
deaths the President should have accepted it.
The Federal Bureau of Investigation
1. The CS riot control agent assault of April 19 should not have
taken place. The possibility of a negotiated end to the standoff
presented by Koresh should have been pursued even if it had taken
several more weeks.
2. After Koresh and the Davidians broke a promise to come out on
March 2 FBI tactical commander Jeffrey Jamar viewed all statements of
Koresh with extreme skepticism and thought the chances of a negotiated
surrender remote. While chief negotiator Byron Sage may have held out
hope longer, FBI officials on the ground had effectively ruled out a
negotiated end long before April 19 and had closed minds when presented
with evidence of a possible negotiated end following completion of
Koresh's work on interpreting the Seven Seals of the Bible.
3. The FBI should have sought and accepted more expert advice on the
Branch Davidians and their religious views and been more open-minded to
the advice of the FBI's own experts.
4. FBI tactical commander Jeffrey Jamar and senior FBI and Justice
Department officials advising the Attorney General knew or should have
known that none of the reasons given to end negotiations and go forward
with the plan to end the stand-off on April 19 had merit. To urge these
as an excuse to act was wrong and highly irresponsible.
5. CS riot control agent is capable of causing immediate, acute and
severe physical distress to exposed individuals, especially young
children, pregnant women, the elderly, and those with respiratory
conditions. In some cases, severe or extended exposure can lead to
incapacitation. Evidence presented to the subcommittees show that use of
CS riot control agent in enclosed spaces, such as the bunker,
significantly increases the possibility that lethal levels will be
reached, and the possibility of harm significantly increases. In view of
the risks posed by insertion of CS into enclosed spaces, particularly
the bunker, the FBI failed to demonstrate sufficient concern for the
presence of young children, pregnant women, the elderly, and those with
respiratory conditions. While it cannot be concluded with certainty, it
is unlikely that the CS riot control agent, in the quantities used by
the FBI, reached lethal toxic levels. However, the presented evidence
does indicate that CS insertion into the enclosed bunker, at a time when
women and children were assembled inside that enclosed space, could have
been a proximate cause of or directly resulted in some or all of the
deaths attributed to asphyxiation in the autopsy reports.
6. There is no evidence that the FBI discharged firearms on April
19.
7. There is no evidence that the FBI intentionally or inadvertently
set the fires on April 19.
8. The FBI's refusal to ask for or accept the assistance of other
law enforcement agencies during the stand-off demonstrated an
institutional bias at the FBI against accepting and utilizing such
assistance.
The Department of Defense
1. The activities of active duty military personnel in training the
ATF and in supporting the FBI's activities during the standoff did not
violate the Posse Comitatus Act because their actions did not constitute
direct participation in the government's law enforcement activities.
2. The activities of National Guard personnel in training the ATF,
in participating in the ATF raid on the Davidian residence, and in
supporting the FBI's activities during the standoff did not violate the
Posse Comitatus Act because the personnel were not subject to the
prohibitions in the act.
3. No foreign military personnel or other foreign persons took part
in any of the government's actions toward the Branch Davidians. Some
foreign military personnel were present near the Davidian residence as
observers at the invitation of the FBI.
c. recommendations
In order to prevent the errors in judgment and consequent tragic
results that occurred at Waco from occurring in the future, the
subcommittees' make the following recommendations:
1. Congress should conduct further oversight of the Bureau of
Alcohol, Tobacco and Firearms, the oversight of the agency provided by
the Treasury Department, and whether jurisdiction over the agency should
be transferred to the Department of Justice. Congress should consider
whether the lack of Treasury Department oversight of ATF activities in
connection with the investigation of the Davidians, and the failures by
ATF leadership during that investigation, indicate that jurisdiction
over the ATF should be transferred to the Department of Justice.
2. If the false statement in the affidavits filed in support of the
search and arrest warrants were made with knowledge of their falsity,
criminal charges should be brought against the persons making the
statements.
3. Federal law enforcement agencies should verify the credibility
and the timeliness of the information on which it relies in obtaining
warrants to arrest or search the property of an American citizen. The
affidavits on which the arrest and search warrants of Koresh were
ordered contained information provided to the ATF by informants with
obvious bias toward Koresh and the Davidians and information that was
stale in that it was based on experiences years before the
investigation. The ATF should obtain fresh and unbiased information when
relying on that information to arrest or search the premises of the
subjects of investigations.
4. The ATF should revise its National Response Plan to ensure that
its best qualified agents are placed in command and control positions in
all operations. Doing so will help to avoid situations like that which
occurred at Waco where lesser qualified agents were placed in positions
for which they were, at best, only partially qualified while other, more
experienced agents were available whose involvement might have prevented
the failure of the raid.
5. Senior officials at ATF headquarters should assert greater
command and control over significant operations. The ATF's most senior
officials should be directly involved in the planning and oversight of
every significant operation.
6. The ATF should be constrained from independently investigating
drug-related crimes. Given that the ATF based part of its investigation
of the Branch Davidians on unfounded allegations that the Davidians were
manufacturing illegal drugs, and as a result improperly obtained
military support at no cost, the subcommittees recommend that Congress
restrict the jurisdiction of the ATF to investigate cases involving
illegal drugs unless such investigations are conducted jointly with the
Drug Enforcement Administration as the lead agency.
7. Congress should consider applying the Posse Comitatus Act to the
National Guard with respect to situations where a Federal law
enforcement entity serves as the lead agency. The fact that National
Guard troops were legally allowed to be involved directly in Federal law
enforcement actions against the Davidians, while active duty forces were
not, is inconsistent with the spirit of the Posse Comitatus Act.
8. The Department of Defense should streamline the approval process
for military support so that Posse Comitatus Act conflicts and drug
nexus controversies are avoided in the future. The process should make
clear to law enforcement agencies requesting Defense Department support
the grounds upon which support will be given. Such requests should be
assigned to a single office to ensure that support will be provided only
in legitimate circumstances and in a manner consistent with the Posse
Comitatus Act.
9. The General Accounting Office should audit the military
assistance provided to the ATF and to the FBI in connection with their
law enforcement activities toward the Branch Davidians. Given that the
subcommittees have been unable to obtain detailed information concerning
the value of the military support provided to the ATF and the FBI, the
subcommittees recommend that the General Accounting Office conduct an
audit of these agencies to ascertain the value of the military support
provided to them and to ensure that complete reimbursement has been made
by both agencies.
10. The General Accounting Office should investigate the activities
of Operation Alliance in light of the Waco incident. The subcommittees
conclude that Operation Alliance personnel knew or should have known
that ATF did not have a sufficient drug nexus to warrant the military
support provided on a non-reimbursable basis. Furthermore, given that
the provision of assistance under such dubious circumstances appears to
not have been an anomaly and the expansion of Operation Alliance's
jurisdiction since Waco, the subcommittees recommend that the General
Accounting Office conduct an investigation of Operation Alliance.
11. Federal law enforcement agencies should redesign their
negotiation policies and training to avoid the influence of physical and
emotional fatigue on the course of future negotiations. In anticipation
of future negotiations involving unusually emotional subjects or those
which may involve prolonged periods of time during which negotiators may
become physically or emotionally fatigued, Federal law enforcement
agencies should implement procedures to ensure that these factors do not
influence the recommendations of negotiators to senior commanders.
12. Federal law enforcement agencies should take steps to foster
greater understanding of the target under investigation. The
subcommittees believe that had the government officials involved at Waco
taken steps to understand better the philosophy of the Davidians, they
might have been able to negotiate more effectively with them, perhaps
accomplishing a peaceful end to the standoff. The subcommittees believe
that had the ATF and FBI been better informed about the religious
philosophy of the Davidians and the Davidians' likely response to the
government's actions against them, these agencies could have made better
choices in planning to deal with the Branch Davidians.
13. Federal law enforcement agencies should implement changes in
operational procedures and training to provide better leadership in
future negotiations. The subcommittees believe that placing greater
emphasis on leadership in critical situations will not only protect the
targets of government action, but also will help to protect the safety
of the law enforcement officers.
14. Federal law enforcement agencies should revise policies and
training to increase the willingness of their agents to consider the
advice of outside experts. The subcommittees note that the expertise of
recognized negotiation experts, particularly those experienced with
religiously-motivated groups, might have proved invaluable in assisting
FBI negotiations with the Branch Davidians. Accordingly, the
subcommittees recommend that Federal law enforcement agencies revise
their policies and training so that their agents are open to the advice
such experts might provide.
15. Federal law enforcement agencies should revise policies and
training to encourage the acceptance of outside law enforcement
assistance, where possible. The unwillingness of the FBI to accept
support from State, local, or other Federal law enforcement agencies in
connection with the standoff increased the pressure on the Attorney
General to end the standoff precipitously. To avoid this type of
pressure in the future, Federal law enforcement agencies should be open
to the assistance that State and local law enforcement agencies may be
able to provide.
16. The FBI should expand the size of the Hostage Rescue Team. The
FBI should increase the size of the Hostage Rescue Team so that there
are sufficient numbers of team members to participate in an operation
and to relieve those involved when necessary. The FBI should also
develop plans to utilize FBI and local law enforcement SWAT teams when
extenuating circumstances exist.
17. The government should further study and analyze the effects of
CS riot control agent on children, persons with respiratory problems,
pregnant women, and the elderly. The subcommittees note that only
limited scientific literature exists concerning the effects of CS riot
control agent, especially with regard to the effects of long-term
exposure in a closed area. Until such time as more is known about the
actual effects of exposure to this agent, the subcommittees recommend
that CS not be used when children, persons with respiratory problems,
pregnant women, and the elderly are present. Federal law enforcement
agencies should develop guidelines for the use of riot control agents in
light of this further study and analysis.
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