Activities of Federal Law Enforcement Agencies Toward the Branch Davidians/Executive Summary

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.