Activities of Federal Law Enforcement Agencies Toward the Branch Davidians/Section 4

IV. Raid Execution

There is no question that the ATF raid executed on February 28, 1993, went fatally wrong. While many factors played a role in this, one stands apart as the principal reason why four ATF agents were killed and many others wounded. Simply put, the Davidians knew that the ATF agents were coming. And while the ATF expected to serve a search warrant for Koresh and search the residence, the Davidians apparently feared the worst that law enforcement agents or military troops were coming to arrest all of them or, perhaps kill them. In any event, some of the Davidians armed themselves and lay in ambush, waiting for the arrival of the ATF agents.

a. rodriguez and the "element of surprise"

1. How the Davidians knew the ATF was coming

The Davidians learned of the ATF plan to raid their residence when a local television cameraman happened to get lost on his way to the Branch Davidian residence.^[1] The cameraman had been dispatched to the residence by the local television station because the news director of the station expected the ATF raid would occur on that day. He suspected this because an employee of the local ambulance service had informed him that a Fort Worth-based trauma flight company had been put on standby along with the local ambulance company.^[2]

While the cameraman was sitting by the side of the road attempting to locate the Davidian residence, David Jones, a Branch Davidian and a letter carrier with the U.S. Postal Service, pulled up behind the cameraman and asked whether he was lost. The cameraman introduced himself and asked for directions to "Rodenville," the name by which many local residents referred to the Branch Davidian residence. After Jones pointed to the residence, which was in sight of where the two men were stopped, Jones stated that he had read about the group in the paper and "thought that they were weird." The cameraman, believing that Jones was not affiliated with the Davidians, warned him that some type of law enforcement action was going to take place at the residence, that it was likely to be a raid of some type, and that there may be shooting.^[3] After the cameraman departed, Jones drove directly to the residence and informed the Davidians.

2. The undercover agent

On the morning of February 28, 1993, at approximately 8 a.m., Robert Rodriguez, the ATF agent who had gone undercover into the Branch Davidian residence on several prior occasions, went to meet with David Koresh one final time. While Koresh and Rodriguez were engaged in a Bible study session, David Jones arrived at the residence and told his father, Perry Jones, what had happened. The elder Jones then informed Koresh that he had a telephone call. Koresh, at first, ignored the statement but, when Perry Jones mentioned that it was long distance from England, Koresh left the room to speak with Jones.^[4] At this point, David Jones relayed to Koresh his discussion with the television station cameraman.

a. The Treasury Department Report version of events

The Treasury Department Report summarizes the subsequent events as follows:

Upon Koresh's return, Rodriguez could see that he was extremely agitated, and though he tried to resume the Bible session, he could not talk and had trouble holding his Bible. Rodriguez grabbed the Bible from Koresh and asked him what was wrong. Rodriguez recalls that Koresh said something about, "the Kingdom of God," and proclaimed, "neither the ATF nor the National Guard will ever get me. They got me once and they'll never get me again." Koresh then walked to the window and looked out, saying, "They're coming, Robert, the time has come." He turned, looked at Rodriguez and repeated, "They're coming Robert, they're coming." ^[5]

According to the Treasury Department Report, Rodriguez went first to the undercover house announcing to the agents there and to James Cavanaugh, deputy tactical coordinator of the ATF operation, that Koresh was agitated and had said the "ATF and the National Guard were coming."^[6] The report states that Cavanaugh asked Rodriguez whether he had seen any guns, had heard anyone talking about guns, or had seen anyone hurrying around. Rodriguez responded in the negative to all three questions. Cavanaugh then told Rodriguez to report his observations to Chuck Sarabyn, the tactical coordinator for the raid.</ref>

The Treasury Department Report states that Rodriguez called Sarabyn at the command post telling him that Koresh was upset, that Koresh had said the ATF and the National Guard were coming, and that as Rodriguez left Koresh was shaking and reading the Bible. The report continues that Sarabyn then asked Rodriguez a series of questions from a prepared list provided by the tactical planners concerning the presence of weapons, whether there had been a call to arms, and other preparations the Davidians were making, to which Rodriguez responded in the negative to each question.

The Treasury Department Report then notes that Sarabyn left the command post at the Texas State Technical College (TSTC) and went to the tarmac area nearby to confer with Phillip Chojnacki, the overall ATF incident commander, and that Sarabyn told Chojnacki what Rodriguez had said as well as the answers to the questions Sarabyn asked of Rodriguez. The Treasury Department Report states that Chojnacki asked Sarabyn what he thought should be done and that Sarabyn expressed his belief that the raid could still be executed successfully "if they hurried."^[7]

According to the Treasury Department Report, Sarabyn then went to the staging area, at the Bellmead Civic Center near the TSTC. When he arrived he was excited, "obviously in a hurry," and telling agents "get ready to go, they know we are coming" and "they know ATF and the National Guard are coming. We are going to hit them now."^[8]

b. Testimony before the subcommittees

At the hearings before the subcommittees, these individuals testified in a manner that was similar to, but not entirely consistent with the summary of these events in the Treasury Department Report. When he testified before the subcommittees, agent Rodriguez expanded upon the Treasury Department's description of the events on the morning of February 28th.

Mr. Scott: Mr. Rodriguez, is there--was there any question in your mind, having been inside the residence, that Koresh knew that the agents were coming that day?

Mr. Rodriguez: Sir, there's no question in my mind that Koresh knew--there's no question in my mind that Koresh knew that we were coming, yes, sir.

Mr. Scott: And can you describe briefly his emotion when he got the word?

Mr. Rodriguez: Yes, sir. We were--I was inside the compound,on that day, that morning. I had asked him some questions regarding a newspaper clipping. He sat down and started to explain to me the difference between his preachings and another subject's preachings.

As we were discussing the Bible, one of his subjects, Mr. Jones, came in and advised him that he had a telephone call. He ignored the call and continued to talk to me.

At that point, everything was normal. There was only three people in that living room at that point. Everything was calm. He was normal. He was talking to me as he always spoke to me during all our sessions. Nothing--nothing was wrong.

Mr.--Mr. Jones again came to the living room and advised him that he had an emergency call from England. At that time, he quickly got up and left the room. At that time it was still just Mr. Schneider and Sherri Jewell were in that room with me, at that time. He came back approximately 3 or 4 minutes later, and when he came back, I mean it was like day and night.

As he approached me, he was--he was shaking real bad. He was breathing real hard. At one time he put his hands in his pocket, in his jacket pocket, to probably keep his hands from shaking. He sat down next to me, probably about this far, and he continued to try to finish what he was talking to me about.

When he grabbed the Bible, he was shaking so bad that he could not actually read it. I grabbed the Bible and asked him what is wrong. At that time he stopped, and as I sit here I can remember, clearly, he took a deep breath, he turned and looked at me and said, "Robert, neither the ATF or the National Guard will ever get me. They got me once, and they'll never get me again." ^[9]

Later, Rodriguez continued his testimony:

Mr. Ehrlich: And what did you do next?

Mr. Rodriguez: I quickly--I felt--I felt very threatened and I stood up, I felt I had to--I had to leave the compound. By that time, there was more--more people that had come into the living room. At first there was only three when we first started.

Mr. Ehrlich: All right, sir. Now, why did you feel you needed to leave the compound?

Mr. Rodriguez: I was threatened because I didn't know--I was afraid that I would be exposed as to who I was. And as I stood there, I looked and I noticed that the door--there's people in front of the door, people behind me, there was no place for me to go. As I was--as I stood there, Koresh went from one window, did the same thing, looked outside, and came back to the other window and again looked outside and said, they're coming, Robert, they're coming.^[10]

*****

Mr. Ehrlich: All right, sir. And there came a point in time around 9:15, 9:20 where you left the house, correct?

Mr. Rodriguez: Yes, sir. He finally--he motioned, he gave a head signal, they opened the door for me. I walked out. I got into my vehicle. It took me a while to get it started because I was--by then I was--I was pretty shaken. I quickly went back to the undercover house.^[11]

• * * * *

Mr. Rodriguez: Well, what I did, I went into the--to the room where Mr. Cavanaugh was because that is where the STU phone was. I was supposed to use that telephone to call Mr. Sarabyn. When I got there, we all huddled up and I told Mr. Cavanaugh exactly what had happened in the residence, advised him.

Mr. Ehrlich: And what was his reaction?

Mr. Rodriguez: His reaction was we better call Chuck right now.

Mr. Ehrlich: All right, sir. You got on the phone and did just that, correct?

Mr. Rodriguez: Yes, sir, I did.

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

Mr. Rodriguez: I got the phone, I called. He came to the phone. The only thing I can't remember was if somebody else answered. I think somebody else answered and he came to the phone.

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

Mr. Rodriguez: Mr. Sarabyn.

Mr. Ehrlich: OK.

Mr. Rodriguez: And the first thing that came out of my mouth was, Chuck, they know, Chuck, they know, they know we're coming. He says, well, what happened? And I explained to him what happened.

I explained to him all the events that took place inside the compound, and his questions were, well, did you see any guns? I said no.

What was he wearing? And I--I advised him of what he was wearing. At that time, he said OK, and that was about the extent of the phone call.

Mr. Ehrlich: All right, sir. Did you request that the raid be called off because the element of surprise had been lost?

Mr. Rodriguez: No, sir. At that time I really didn't have the chance. It was a real quick question and answer thing. He asked me what he was wearing, said OK and he hung up. That's why--that's why I quickly left the undercover house to go talk to him at the command post because I wanted to have a more--more of a lengthy conversation with him about the events.^[12]

Rodriguez then testified that he drove to the command post, looking for Sarabyn, in order to further discuss with him in person the events of that morning. As Rodriguez testified:

Mr. Rodriguez: I--I arrived at the command post and the first thing I asked was, where's Chuck? Where's Chuck? And they advised me that he had left.

At that time, I started yelling and I said, "Why, why, why? They know we're coming, they know we're coming."

Mr. Ehrlich: And what reaction did you get, what response?

Mr. Rodriguez: Sir, everything was very quiet, very quiet, and if I remember right, everybody was really concerned. I went outside and I sat down and I remember starting to cry--starting to cry until Sharon Wheeler came to me and told me what was going on.^[13]

While the Treasury Department Report maintains that "all key participants now agree that Rodriguez communicated, and they understood, that Koresh had said the ATF and National Guard were coming," ^[14] Sarabyn maintained at the hearings before the subcommittees that while he understood the words Rodriguez had spoken, he did not feel that Koresh actually believed that law enforcement personnel were on their way to the residence. As Sarabyn testified:

I did not feel he knew that we were coming at that time. When I talked with Robert, like I testified before, I took notes while we were talking over the thing and I have read all of Robert's statements. Robert did--did a great job, but I think everything that you heard as far as testimony was not passed on to me.

In fact, Robert told the shooting review team, or commanders, he didn't go into detail or should have said more. When I went through the questions I asked him, you know, he had said specifically Koresh said, you know, ATF and the Guard are coming, but when I asked, trying to determine what he was doing from those questions, he wasn't doing anything, he was shaking, reading the Bible. He was preaching. I determined that, you know, in my opinion, his actions spoke louder that his words, so I didn't feel that anything was happening then.^[15]

At another point in the hearings, Chojnacki testified:

When I received the information from Mr. Sarabyn . . . [he] pointed out that he had finished talking with Agent Rodriguez and that Robert says he knows we are coming. He said, "The ATF and the National Guard were coming to get me," those kinds of comments that I took to be a repetition of the same comments that we had heard from his other preaching episodes where he preached that the ATF will be coming to get us. "The ATF is coming to get us."^[16]

Chojnacki was then questioned directly as to whether he believed at the time that Koresh did, in fact, know that the ATF was going to the Branch Davidian residence. He stated, "Not at that time, I didn't, no sir."^[17]

Later, during the hearings, however, Rodriguez questioned the truthfulness of the testimony given by Chojnacki and Sarabyn before the subcommittees. Mr. Rodriguez testified,

[T]hose two men know--know what I told them and they knew exactly what I meant. And instead of coming up and admitting to the American people right after the raid that they had made a mistake . . . they lied to the public and in doing so they just about destroyed a very great agency.^[18]

Several other agents also testified that Sarabyn had informed them that the Davidians knew the ATF was coming. Agent Roger Ballesteros, who was present at the staging area when Sarabyn arrived testified:

I was in an auditorium along with a large party . . . and Mr. Sarabyn rushed into the room and made it clear to us that we needed to hurry up because, in fact, Mr. Rodriguez had come out and identified the fact that Koresh had been tipped off and that they knew we were coming.^[19]

c. What the ATF commanders knew

It is difficult to reconcile Sarabyn's testimony that while he heard agent Rodriguez's words, he believed that Koresh's actions spoke louder than his words and that, as a result, he believed that the Davidians did not really think the ATF agents were on their way. In light of the testimony of Rodriguez and the other agents before the subcommittees, the subcommittees conclude that Sarabyn understood that the Davidians were tipped off and would have been lying in wait for the ATF agents to arrive.

The fact that Sarabyn felt it necessary to tell other agents of what Rodriguez had told him, regardless of how he understood it, indicates that he found the information to be important. Unfortunately, when Sarabyn told Chojnacki this information, Chojnacki did not believe it to be important enough to call off the raid. And, inexplicably, Sarabyn apparently did not believe it important enough to urge Chojnacki to delay the raid. Compounding these failures was the fact that the ATF line agents who heard Sarabyn's comments apparently were not confident enough to question their superiors' judgment in going forward with the raid, even given their concerns about the information relayed by Rodriguez.

b. who bears the responsibility for the failure of the raid?

The Treasury Department Report attempts to lay the blame for the failure of the raid squarely on the shoulders of Chojnacki and Sarabyn. Much has been made of what has come to be known as the loss of the "element of surprise," with administration officials asserting that Chojnacki and Sarabyn went forward in the face of a direction to the contrary if the element of surprise were lost.

In their report, Treasury Department officials assert that Stephen Higgins, then Deputy Director of the ATF, had instructed "those directing the raid . . . to cancel the operation if they learned that its secrecy had been compromised . . . ."^[20] This statement was purportedly made by Higgins to Ronald Noble, then Assistant Secretary- Designate of the Treasury for Law Enforcement, and John P. Simpson, the acting Assistant Secretary of the Treasury for Enforcement. Noble and Simpson had expressed concerns about the raid when they first learned of it on the afternoon of the Friday before the raid was to take place and Simpson had initially ordered that the raid not go forward. According to the Treasury Department Report, Higgins made this statement to Noble and Simpson in response to their concerns about the raid and in order to convince Simpson to reverse his earlier decision.^[21] At the hearings before the subcommittee, Undersecretary of the Treasury Noble testified:

It's been our--it's been our contention in the Department of the Treasury's report that only Mr. Hartnett and Mr. Chojnacki and Mr. Sarabyn deny, because Mr. Simpson--I mean Mr. Higgins made it absolutely clear that this raid was not supposed to proceed if the advantage of surprise was lost and Mr. Aguilera testified about that being clear on February 12th as well.^[22]

Representative Bill McCollum, co-chairman of the joint subcommittees, read into the record at the hearing a similar statement that Mr. Noble had made during an appearance on the television news program "60 Minutes" in May 1995.^[23]

But ATF on-site commanders and senior ATF officials disputed the position asserted by the administration in the Treasury Department Report, by Noble in his television interview, and by Noble during his testimony to the subcommittees. As Dan Hartnett, Deputy Director of the ATF for Enforcement in February 1993, testified:

Mr. Hartnett: I saw Ron Noble testify on a national program several months ago or a month ago where he said both Treasury and ATF ordered the commanders at Waco not to proceed, or to abort the raid if they lost the element of surprise. And what I'm saying to this committee is that I have never heard the term, "element of surprise," until after the raid, when we started using it ourself and the media started using it.

But I have to also add that in the briefings, the briefings that I had and Mr. Higgins had, the secrecy of the raid was discussed and was an element of the raid plan that was given to me and to Mr. Higgins. It was just that nobody ever called and said abort the raid if you lose the element of surprise. That just never happened. But secrecy was a part of the plan--secrecy and safety. I mean it was discussed over and over again.^[24]

Later, under further questioning on this point by Representative Bill Zeliff, co-chairman of the joint subcommittees, he stated that the administration had tried to cover up the failure of its senior Treasury Department officials to properly direct the actions of ATF officials:

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

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

Mr. Zeliff: One final question so the record may stand clearly on its own. Do you believe that these facts demonstrate an effort to cover up the truth by the Treasury Department Report?

Mr. Hartnett: Yes, yes, I do.

Mr. Zeliff: By Ron Noble, specifically?

Mr. Hartnett: Yes.

Sarabyn also testified before the subcommittees that he was never ordered not to go forward if the tactical advantage of surprise had been lost.

Mr. Chabot: Mr. Sarabyn, I'd just like to follow up again with your statement, where you said, "Obviously, some people way up said some things after that which weren't true. It goes right down to the decision to go. And they were part of it." By "way up," you're talking about upper echelon officials, I assume. Is that correct?

Mr. Sarabyn: What I was making reference to, sir, is the element of surprise. Throughout--at this point, it became a very big issue. The point I was trying to make is I was never given the order not to go if we lost the element of surprise. There has been much conversation after that about the element of surprise and I was trying to say I do not know who up above me, how far, whatever, gave that order to somebody, but I never received that order.^[25]

The Clinton administration's attempts to suggest that maintaining the "element of surprise" had been an overriding feature of the directives of Treasury Department officials to ATF officials is inaccurate. While the issue was discussed, there was no absolute direction given to ATF officials or ATF commanders on-site that if secrecy were compromised that they were to not go forward with the raid. The Clinton administration's attempt to suggest otherwise, appears to be a veiled attempt to distance the administration and its most senior officials from the results of the failed raid.

But as Hartnett testified, "Secrecy was part of the plan--secrecy and safety. I mean it was discussed over and over again."^[26] And Secret Service Agent Louis Merletti, the Assistant Project Director of the Waco Administrative Review Team created by the Department of the Treasury to review the Waco incident, testified that there is no difference between "the element of surprise and secrecy." He testified that it was "basic to a dynamic entry" method of conducting a raid.^[27] Later, however, Hartnett testified:

Mr. Mica: Mr. Hartnett, you had said you disagreed with Mr. Merletti . . . about some comments he made about assessing the element of surprise. Do you want to respond now?

Mr. Hartnett: Well, I've always disagreed with that terminology, ever since the Waco review came out. I think that it's a created phrase, and I don't mean to mislead the committee.

You know, I've testified many, many times that a part of the raid was secrecy. But part of the raid was not specifically directed toward those commanders when they say they were given a direct order. That is just not true. They just were not given a direct order.^[28]

Regardless of whether it is called the "element of surprise" or simply "secrecy," it is difficult to understand why senior ATF officials did not require that sufficient checks be in place to ensure that secrecy had been maintained up to the beginning of the raid. And it is almost impossible to understand why ATF commanders did not find Rodriguez's information to be important enough to call off the raid. Given the type of tactical operation selected, maintaining the secrecy of the timing of the raid is so fundamental that the blame for the failure to ensure that it was maintained must be shared not only by the commanders on-site but by senior ATF officials.

It is unclear from the testimony and from the Treasury Department Report why ATF Director Higgins and Deputy Director Hartnett did not significantly involve themselves in the planning and oversight of the execution of a raid of this magnitude. This is especially puzzling in light of the amount of weaponry the ATF suspected was possessed by the Davidians. Given the high risk involved in any dynamic entry, and the fact that the open location of the Davidian residence created a greater risk to the ATF agents in using this tactic, it is simply incomprehensible that the most senior ATF officials were not directly involved with the planning of this operation and in overseeing its implementation. In retrospect, maintaining the secrecy of this operation was one of the most important aspects of this plan. To experienced law enforcement officials this fact should have been obvious from the beginning. In fact, it should have been the overriding concern of all involved. It was not something of which senior officials should have had to order agents to be aware.

Higgins and Hartnett must share a portion of the blame for the failure of the raid because they failed to become significantly involved in the planning for it. Had they done so, they presumably would have ensured that a procedure was in place through which Rodriguez's information was relayed to them and they would have acted upon it. At the very least, they share some blame for not instilling in the senior raid commanders an understanding of the need to ensure that secrecy was maintained in an operation of this type.

But most of the blame for the failure of the raid, and for the loss of life that occurred, however, must be born by the raid commanders themselves, and in particularly by Sarabyn. Both Sarabyn and Chojnacki understood what Rodriguez had told Sarabyn but, inexplicably, somehow did not find it to be significant enough to warrant calling off the raid. Perhaps they thought that because the Davidians were not arming themselves when Rodriguez left the residence that they would not do so. Perhaps they believed that the agents could have arrived at the residence before the Davidians had fully armed and taken up offensive positions against them. Perhaps they even thought that their abilities were so superior to those of the Davidians that they could have successfully overcome the Davidians, even if the Davidians had been expected to be lying in wait. Whatever the reason, however, the facts are that they knew or should have known that the Davidians had become aware of the impending raid and were likely to resist with deadly force. The only realistic conclusion that can be drawn is that Chojnacki and Sarabyn acted recklessly failing to call off the raid.

Given the manner in which Sarabyn relayed the information to Chojnacki, it is perhaps understandable that Chojnacki presumed that the information was not important. But Chojnacki's overriding concern on February 28 should have been that the secrecy of the mission be maintained. When any credible evidence was brought to his attention that secrecy might have been compromised he should have delayed the start of the operation until he could confirm or deny those reports.

As Chojnacki testified before the subcommittees, "I accept the responsibility for making the field decision. I was the incident commander, I was the person to make that decision."^[29] Regardless of whether he fully understood the significance of what Sarabyn told him, it was his job to take whatever steps were necessary to insure that secrecy was maintained. Because he did not, his portion of the blame for the failure of the raid and its consequences is equal to that of Sarabyn.

c. other ways in which the plan selected was bungled

While the failure of ATF's commanders to recognize and respond to the fact that their raid plan had been severely compromised was, by far, the most significant mistake made on February 28, a number of other failures came to light during the subcommittees' investigation.

1. Command and control issues

A number of command and control issues significantly undermined the possibility of success for the raid. Most of these issues were addressed in the Treasury Department Report,^[30] however, three of them bear repeating here.

a. Assigning command and control functions under the ATF's National Response Plan

The decision to designate Chojnacki as incident commander and Sarabyn as tactical commander was mandated under the ATF's National Response Plan. While the tactical experts who testified at the hearings and briefed the subcommittees noted that the use of an overall coordinating document, such as the National Response Plan, is an appropriate organizational and standardization tool, some of the plan's requirements resulted in less qualified people being placed in positions of command and control when agents who were more qualified for these positions, and who were already selected to be involved in the raid, were available.

Chojnacki was selected as incident commander because he was the special agent in charge of the field office in whose region the raid was to occur. While the special agent in charge of a geographic area may have a great interest in an operation that takes place in his area, his position has little bearing on his qualification to run the operation. And even though Chojnacki had 27 years of law enforcement experience, there were other agents involved in the raid who possessed substantially more experience in tactical operations.

Chojnacki, in turn, appointed Sarabyn, to be tactical coordinator because the National Response Plan required that position to be filled by an assistant special agent in charge who had completed special response team (SRT) training, as had Sarabyn. But Sarabyn had attended SRT training only as an observer, and there were other agents of lesser rank who had more experience in this area.^[31] As in the case with Chojnacki, the National Response Plan's emphasis on rank and geographical assignment created the unintended result of placing a less qualified person into a position for which he was either simply not qualified or for which there were others more qualified.

b. Command and control on the scene on raid day

Chojnacki decided to ride in one of the helicopters on raid day.^[32] This decision placed him out of effective communications with the other raid commanders and SRT teams leaders prior to the beginning of the raid. Had he chosen to remain in central position from which he could control the evolving raid, he might have had other opportunities to learn of Rodriguez's information about what the Davidians' forewarning. He might also have been able to learn from agents in the undercover house that the Davidians were not where the ATF anticipated they would be on the morning of February 28, a key element of the tactical plan, but instead were lying in wait for the agents.

Sarabyn, the tactical commander, chose to ride in one of the cattle trailers^[33] rather than observing the residence from a vantage point such as the undercover house, where he could monitor activity in and around the building, as well as view the approach of the ATF agents in the cattle trailers. By riding in the trailers with the agents who were to conduct the raid, Sarabyn severely limited his view of the Branch Davidian residence, which also prevented him from observing that the Davidians were not where the ATF expected them to be just before the raid began.

Additionally, once Sarabyn arrived at the residence he became pinned down with the other agents and was unable to communicate with many of the other agents at different points around the building. Had he chosen to place himself in a position where he would not have come under fire, such as the undercover house, he might have been able to communicate with all of the agents, perhaps diverting or redirecting the actions of some and reducing the number of casualties sustained.

c. Command and control from Washington

On February 28, ATF activated its "National Command Center" at its Washington headquarters staffed with "high-level managers . . . experience[d] in field operations."^[34] Yet it appears that the command center played no role in the planning or implementation of the operation until after ATF agents had been killed or wounded. The personnel in the command center never learned that Rodriguez knew the Davidians thought the raid was imminent because Chojnacki never told them. Apparently, the person in the command center with whom Chojnacki spoke did not know enough about the raid to know that an undercover agent was to have been inside with the Davidians until shortly before the raid was scheduled to begin and valuable information might have been available. In fact, according to the Treasury Department Report, no one in the command center asked any questions of Chojnacki at all when he reported in shortly before the raid.^[35]

2. The lack of a written raid plan

The Treasury Department review of the ATF's investigation of David Koresh noted that the ATF agents who were in command of the raid did not prepare a written raid plan in advance of the raid. While two ATF agents took it upon themselves to create one, it was never reviewed by the senior raid planners and commanders, and never distributed to any of the agents who were to participate in the raid.^[36]

During the hearing before the subcommittees, several tactical experts testified that the drafting of a written raid is an important part of developing an overall operational plan. Indeed, the ATF's own National Response Plan, which was drafted to establish "consistent policies and procedures" when several Special Response Teams are involved in an operation,^[37] requires that a written plan "for managing the critical incident or major ATF operation" be produced before the operation begins.^[38] Yet this was not done in this case.

3. Lack of depth in the raid plan

One problem with overall planning was the fact that no written plan existed. A factor that may have exacerbated the losses the ATF sustained on February 28 was the lack of depth in the oral raid plan. The plan involved agents in two cattle cars driving up an exposed driveway to the front of the Davidian residence and running out of the cars, with one group storming through the front doors while the other went to the side of the building, climbed ladders carried by agents onto the roof and in through the second-story windows.^[39] There was little else to the plan and, importantly, little or no discussion of what might go wrong.

There was almost no training given on how to withdraw from the residence.^[40] Even the written plan created after the raid and given to the Texas Rangers during their investigation (which was never distributed to the commanders or any agents in advance of the raid) devoted much of its 8\1/2\ pages to administrative issues. It contained no mention of what agents were to do if anything went wrong with the "dynamic entry" into the residence. The three short paragraphs under the heading "contingencies" simply mentioned the presence of an ambulance and nurse near the scene.^[41]

As discussed above, the most grievous failure on the part of ATF officials on February 28 was the failure to understand and appreciate the significance of undercover agent Rodriguez's report that the Davidians knew the ATF raid was imminent. Yet, the omission of any contingency planning was a failure that may have led to the deaths of agents who might otherwise have survived. Contingency planning might have been effective at a number of stages: when the agents turned into the driveway; when they first realized they were coming under fire from the Davidians; or when the order was given to retreat in the face of the Davidians' fire.

The Treasury Department Report states "the failure of the planners to consider that their operation might go awry and prepare for that eventuality is tragic, but somewhat understandable."^[42] It notes that most ATF agents were used to operations going without incident, or at least being resolved in favor of the ATF, and that the only other ATF operation similar in magnitude to the one against the Davidians had been resolved peacefully. The report places stronger blame on ATF's national leadership for this failure, calling its failure to ensure that some contingency planning was done "simply unacceptable."^[43]

The subcommittees agree that ATF leadership shares the blame for the failure of this operation and that, clearly, it would have been beneficial had they been involved in a meaningful way in the planning of the operation. But it should not take directives from Washington to ensure that agents in charge of the ATF's various field offices and Special Response Teams, the people who actually conduct an operation, will know enough to ask the simple question "what happens if this doesn't go as planned." No amount of past success is reason enough to explain why this possibility wasn't considered and planned for. The fact that it was not done is, at best, additional evidence of the lack of skill and sophistication of senior ATF commanders involved. At worst, it is evidence of grievous negligence on their part.

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

Another fact which indicates a lack of skill on the part of both senior ATF officials and the ATF on-site commanders, particularly overall incident commander Chojnacki, is the fact that the Special Response Teams (SRT's) involved in conducting the operation trained together for only 3 days prior to the operation.^[44] The ATF does not maintain a large standing force of specially trained agents which can be dispatched to the site of a disturbance, such as the FBI's Hostage Rescue Team. Instead, the ATF put together its team for the operation against the Davidians by combining special response teams from several of the ATF's regional offices.

While the subcommittees do not conclude that the ATF should have created a special team such as the FBI's Hostage Rescue Team in advance of the raid (and does not conclude that it need do so now), it appears that the reason why the FBI maintains its HRT as a single unit is because coordination of the agents involved in a tactical operation, especially one involving great risk, is of the utmost importance. Senior ATF officials and the ATF's on-site commanders either were unaware of this fact or, more likely, simply ignored it for reasons which are unknown to the subcommittees. Regardless of the reason, however, the fact that ATF officials believed that they could create a force of over 70 agents, adequately trained to conduct an operation of this complexity against a heavily armed opposing force, indicates a lack of foresight on the part of these senior officials which is unacceptable.

5. True National Guard role only made clear 24 hours prior to the raid

The subcommittees have learned that when the Texas National Guard was asked to provide helicopters to the ATF, the purpose given was that they would be used as an observation platform or command and control platform.^[45] When the National Guard pilots arrived at Fort Hood to train with the ATF the day before the raid they learned for the first time that the ATF intended to use the helicopters as a diversion just before the raid was to begin. The helicopters were to fly close to the residence, attracting the attention of those inside to the back side of the building, while the ATF agents arrived at the front of the structure.^[46]

While the National Guard was conducting its role in its Title 32 status,^[47] and so was not limited by the terms of the Posse Comitatus Act,^[48] this change in plan is still troubling. The failure to inform National Guard commanders of the true role for the National Guard troops and equipment well in advance of the raid is an omission that is, at best, additional evidence of the poor planning for the raid done by the ATF commanders. At worst, this may have been an attempt by ATF commanders to obtain operational assistance that, while not prohibited by law, might have been declined by the Governor of Texas as commander of the Texas National Guard had the ATF given sufficient notice for word to have reached her. In any event, it does not appear that senior ATF or Treasury officials gave any consideration to the negative image of military helicopters being used as part of a raid on American civilians.

d. service of the warrant

One of the issues considered by the subcommittees was whether the ATF agents serving the arrest and search warrants on February 28 were required to "knock and announce" their intention to serve the warrant before entering the Davidian residence. When the ATF agents conducted the raid on the Davidian residence the agents did not knock on the Davidians' front door and announce their intentions to serve the warrant. Rather, the ATF agents dismounted from the cattle trailers in which they were riding on the run. One group attempted to enter the residence forcibly through the front door. A second group attempted to enter the second floor windows via the roof.

The subcommittees' review of videotapes made of the training sessions during which ATF practiced the raid plan revealed that the plan was designed around this type of dynamic entry and did not involve a knock and announce approach. In other words, the use of these tactics was not the result of any circumstances which had occurred on February 28.

In 1917,^[49] Congress enacted the Federal knock and announce statute.^[50] Generally speaking, the statute permits forcible entry for the purpose of executing a search warrant only after the officer gives notice of his authority and his purpose but is refused admittance. Courts interpreting the statute, however, have adopted a number of exceptions to the rule allowing unannounced police entries in limited exigent circumstances. For example, courts have held that such an announcement is unnecessary when the facts known to officers would justify them in being virtually certain that the person on whom the warrant is to be served already knows the officers' purpose and that an announcement would be a useless gesture.^[51] Courts also have held that police need not knock and announce their intent to serve a warrant if they fear that to do so would allow the person on whom the warrant is to be served to destroy the evidence to be seized under the warrant.^[52] A third general exception to the rule requiring the police to knock and announce their intent to serve a warrant is when to do so would increase the risk of danger to the officers serving the warrant.^[53]

Given the fact that the arrest and search warrants were based, in part, on the evidence that the Davidians were in possession of illegal automatic weapons, the subcommittees believe it was reasonable for the ATF to have presumed that the Davidians might fire on them had they announced their intent to serve the warrants in advance. The Davidians own behavior in firing on the ATF agents proves the reasonableness of that belief.

e. unresolved allegations

1. Who shot first?

Much has been made of the issue as to which side in the gun battle shot first. Conflicting evidence on this point was presented to the subcommittees by the ATF agents who were involved in the raid, the Texas Rangers who conducted an investigation into the events of the raid following the end of the standoff on April 19, and by the attorneys for the Davidians.

ATF Special Agent John Henry Williams, a member of the SRT team assigned to enter the front door of the Davidian Residence, and who spoke to David Koresh at the front door of the Davidian residence as the raid began, testified that he was convinced that the Davidians shot first. As Williams testified before the subcommittees,

As we approached the front door, David Koresh came to the front door dressed in black cammo fatigues.

As he closed the door, before we reached the door, one agent reached the door, and at that point that is when the doors erupted with gunfire coming from inside. It was 10 seconds or more before we even fired back.^[54]

Later on that same day, Williams testified at greater length about the start of the gun battle.

Mr. Scott: Can you go through just very briefly, you were walking up to the door, and how close to the door were you when the shooting started?

Mr. Williams: About 10 feet from the door.

Mr. Scott: Was it your intention prior to that to--had Koresh come out by then?

Mr. Williams: Yes.

Mr. Scott: And how far from the door were you when he closed the door in your face?

Mr. Williams: Approximately 15 feet from the door.

Mr. Scott: And did you continue walking forward?

Mr. Williams: Yes.

Mr. Scott: And how close were you when the shooting started?

Mr. Williams: I--basically about 10 feet. After that, the shooting started immediately after he closed the door.

Mr. Scott: Is there any question in your mind as to where the shooting began?

Mr. Williams: None.

Mr. Scott: Thank you--excuse me, that was from the inside coming out.

Mr. Williams: Yes, from the inside coming out.^[55]

Senior officers of the Texas Rangers also testified as to the findings of their investigation into these events after April 19. The Rangers interviewed virtually everyone who was present at the Branch Davidian residence on February 28, including several of the surviving Davidians and all of the ATF agents who were present. As Texas Ranger Captain David Byrnes testified to the subcommittees:

I believe the evidence was to me overwhelming in the trial that the Davidians fired first. The cameraman and the reporter, although very reluctantly, finally I believe conceded that. He had broadcast that several times. He was more or less a hostile witness. But in my mind there is no doubt who fired first.^[56]

But the attorneys for the Davidians testified that they believed the gun battle erupted as the result of an accidental discharge by one of the ATF agents. Jack Zimmerman, attorney for David Koresh during the standoff, testified

My personal opinion is that it was an accidental discharge by one of the ATF agents as he was dismounting and that that was a signal to open fire, which you haven't heard a testimony about. Nobody asked them, what was the signal to open fire if you did open fire? Who made that decision? What command was it?

But I believe that what the evidence from the trial, the criminal trial, was that somebody off to the side heard, somebody fired, and they testified that it came from behind them . . . . I will point out to you from talking to the foreman of the criminal trial jury, who heard 6 weeks of testimony by the Government in 2 days of testimony from the defense, they could not decide, he told me. The foreman of the jury told me they could not decide because the evidence was in such conflict as to who fired first.^[57]

2. Were shots fired from the helicopters?

Allegations were leveled by the Davidians' attorneys that agents in the National Guard helicopters used in the raid fired into the Branch Davidian residence from the air. The Davidians' attorneys testified that they were shown holes in the roof of the structure which appeared to them to be bullet holes fired from the outside into the structure.

Phillip Chojnacki, who was riding in one of the helicopters, testified, however, that no shots were fired from the helicopters. He testified that ATF personnel on the helicopters were armed only with 9 millimeter sidearms and that he observed no shots fired from the helicopters.^[58] His testimony is supported by the sworn statements of each of the pilots of the helicopters, taken on April 20, 1993, that the helicopters were unarmed and that no ATF agents fired from the helicopters.^[59] Texas Ranger Captain David Byrnes also testified as to what the Rangers' investigation concluded with respect to this issue. He stated that the Rangers found no evidence that shots were fired from the helicopters.^[60]

The subcommittees reviewed videotape of the raid shot by agents in the helicopters as well as videotape of the exterior of the helicopters involved in the raid after the helicopters withdrew from the scene. At no point in the videotape does any ATF agent fire a weapon from the helicopters and the helicopters do not appear to have been equipped with machine guns or other weaponry. The video tape reviewed, however, is not continuous from the point from which the helicopters lifted off to the point at which they landed. The fact that videotape was taken at some points in the raid and not at others has not been explained to the subcommittees.

It has been suggested that the bullet holes in the roof of the Branch Davidian residence may have come from ATF agents on the roof who were firing into the structure as the firefight continued. Jack Zimmerman, the attorney for Branch Davidian Steve Schneider during the standoff, conceded that this was a possible explanation for the presence of the bullet holes during his testimony before the subcommittees.^[61] Given that there were several ATF agents who were on the roof of the residence during the firefight with the Davidians, this explanation seems plausible.

f. the firing and rehiring of chojnacki and sarabyn

In October 1994, following the Treasury Department's review of the failed raid against the Davidians, the Department terminated the employment of the two senior raid commanders, Chojnacki and Sarabyn.^[62] Both of them filed complaints with the Merit System Review Board. While that complaints were pending, the Treasury Department reached agreements with both Chojnacki and Sarabyn.^[63] As a result of those agreements, both were rehired by the ATF. However, neither is assigned to positions of authority over other agents and neither is presently empowered to carry a weapon.

At the hearings before the subcommittees, Treasury Department officials were asked why a deal was struck with the two people on whom the Treasury Department blamed the failure of the Davidian raid. No sufficient answers to this question were provided. In light of the Treasury Department Report's conclusion that "raid commanders Chojnacki and Sarabyn appeared to have engaged in a concerted effort to conceal their errors in judgment,"^[64] it is difficult to imagine any basis upon which the rehiring of these two individuals can be justified by Treasury Department officials.

g. findings concerning the raid execution

1. Chojnacki and Sarabyn jointly share most of the responsibility for the failure of the ATF raid against the Davidians. The blame for the failure of the raid, and for the loss of life that occurred, must be born by the senior ATF raid commanders, Phillip Chojnacki and Chuck Sarabyn. They either knew or should have known that the Davidians had become aware of the impending raid and were likely to resist with deadly force. Nevertheless, they recklessly proceeded with the raid, thereby endangering the lives of the ATF agents under their command and the lives of those residing in the compound. This, more than any other factor, led to the deaths of the four ATF agents killed on February 28.
2. The former Director and Deputy Director of the ATF bear a portion of the responsibility for the failure of the raid. Former ATF Director Stephen Higgins and former ATF Deputy Director Daniel Hartnett bear a portion of the responsibility for the failure of the raid because they failed to become involved in the planning for the raid. Had they done so, they might have ensured that a procedure was in place through which the undercover agent's information was relayed to them and they could have acted upon it. At the very least, they share some blame for not instilling in the senior raid commanders an understanding of the need to ensure that secrecy was maintained in an operation of this type.
3. The planning for the raid was seriously flawed. There were numerous problems with the ATF's planning for the raid. These failures evidence the lack of experience and sophistication of the senior ATF agents charged with developing the ATF's raid plan. They also suggest that the ATF's senior officials failed to fully train or monitor the actions of its senior operational commanders. Included among the failures were:
   • The ATF's own internal guidelines resulted in less qualified people being placed in command and control of the operation when other, more qualified agents, were available for these positions. The commanders also made strategic command and control errors on raid day, placing themselves in positions that hampered their ability to receive and act upon important information that might have led them to postpone the raid or redirect it to minimize casualties.
   • The raid plan itself lacked significant depth, principally in that it contained almost no contingency planning which might have minimized the losses suffered by the ATF on February 28.
   • ATF commanders also failed to adequately train the agents involved in the raid or to fully inform the Texas National Guard of the intended role that its personnel would play in the raid.
   • ATF commanders failed to reduce the raid plan to writing, as was required by ATF internal guidelines. Had this been done, and the written plan circulated to those involved in the raid, the errors in the raid planning might have been brought to light and corrected.
   • The activation of the ATF National Command Center occurred only because it was required by the National Response Plan, and not because it was to have any meaningful role in the implementation of the raid plan. Had the senior ATF officials written the National Response Plan in such as way as to ensure that command center personnel would be briefed on the significant details of the operation and would have the clear authority to question on-scene commanders, the raid might have been called off by command center officials asking about the report made by Rodriguez.
4. The ATF agents executing the raid were not required to knock and announce their intention to serve the arrest and search warrants. Given that the arrest and search warrants were based, in part, on the evidence that the Davidians were in possession of illegal automatic weapons, the subcommittees believe it was reasonable for the ATF to have presumed that the Davidians might fire on them had they announced their intent to serve the warrants in advance. Accordingly, the subcommittees conclude that the ATF was not required to knock and announce their intention to serve either the arrest warrant or the search warrant because to do so would have measurably increased the risk to the ATF agents involved.
5. The evidence suggests that the Davidians fired the first shots on February 28, 1993. The subcommittees believe that the question of who fired the first shot on February 28 cannot decisively be resolved given the limited testimony presented to the subcommittees. It appears more likely, however, that the Davidians fired first as the ATF agents began to enter the residence.
6. The evidence presented to the subcommittees generally supports the conclusion that no shots were fired from the helicopters at the Branch Davidian residence. The subcommittees believe, however, that there is insufficient evidence to determine with certainty as to who fired the shots that made the bullet holes in the roof of the Davidian residence.
7. After the raid failed, Clinton administration officials inaccurately stated that the ATF raid commanders had been given explicit orders to not proceed with the raid if the secrecy of the raid was compromised. After the raid failed, Assistant Treasury Secretary Ronald Noble attempted to lay the blame entirely on the ATF despite the fact that Treasury officials, including Noble, failed to properly supervise ATF activities leading to the raid. Moreover, Treasury officials, having approved the raid, failed to clearly and concisely communicate the conditions under which the ATF was to abort the raid.
8. The subcommittees find no justification for the rehiring of Chojnacki and Sarabyn. Given that the largest portion of blame for the failure of the raid against the Davidians must be born by Chojnacki and Sarabyn, the subcommittees find no justification for their rehiring by the ATF. The fact that senior Clinton administration officials approved their rehiring indicates a lack of sound judgment on their part. It also further begs the question as to whether there are facts not disclosed to the subcommittees that led administration officials to agree to rehire these men.

h. recommendations

Because the largest single cause of the ATF raid disaster was the failure of ATF's senior field commanders to recognize or act upon the undercover agent's information that the Davidians knew the ATF raid was underway, there is no overriding recommendation which, if implemented, would prevent similar tragedies from occurring in the future. The subcommittees believe, however, that had more experienced ATF agents been involved in the planning of this raid the many deficiencies in the raid plan itself would have been avoided. Most importantly, the subcommittees believe that had more experienced commanders been assigned to this operation, the information that the Davidians knew that the raid was impending would not have been ignored but, rather, understood for what it was and acted upon accordingly. There are, however, a number of steps that should be taken to correct other problems associated with the failed raid and which, taken together, might help prevent similar failures in the future.

1. Congress should conduct further oversight of the Bureau of Alcohol, Tobacco and Firearms, the oversight of the agency provided by the Treasury Department, and whether jurisdiction over the agency should be transferred to the Department of Justice. Congress should consider whether the lack of Treasury Department oversight of ATF activities in connection with the investigation of the Davidians, and the failures by ATF leadership during that investigation, indicate that jurisdiction over the ATF should be transferred to the Department of Justice.
2. The ATF should revise its National Response Plan to ensure that its best qualified agents are placed in command and control positions in all operations. As discussed above, the ATF's National Response Plan in effect in 1993 led to the placement of Chojnacki as incident commander and Sarabyn as technical commander for the raid, when more experienced ATF personnel were available. The subcommittees recommend that the National Response Plan be revised to provide that incident commanders for significant operations be selected by ATF headquarters personnel from among the most experienced agents in the ATF, rather than based upon any consideration of the agent who may have administrative responsibility for a given geographic area. Likewise, the subcommittees recommend that other senior positions in significant operations, such as tactical commander, also be selected by ATF headquarters personnel from ATF agents most experienced in these areas, regardless of geographical assignment.
3. Senior officials at ATF headquarters should assert greater command and control over significant operations. Just as the National Response Plan should be revised to allow greater control by ATF headquarters, the subcommittees recommend that ATF's most senior officials be personally involved in the planning and oversight of every significant operation. While the ATF did activate its National Command Center in Washington just prior to the commencement of the ATF raid against the Davidians, command center personnel played no actual role in the planning or the implementation of the operation until after it went awry.
   The subcommittees recommend that ATF's most senior officials be directly involved in the planning of all significant operations and personally approve each operation in advance of its implementation. Additionally, the subcommittees recommend that the National Command Center be activated well before the commencement of an operation, that it be staffed with persons experienced in tactical operations and knowledgeable of the operation in question, and that these persons be given the authority to suspend the operation or revise the operation plan as the situation develops.
4. The ATF should be constrained from independently investigating drug-related crimes. Given that the ATF based part of its investigation of the Branch Davidians on unfounded allegations that the Davidians were manufacturing illegal drugs, and as a result improperly obtained military support at no cost, the subcommittees recommend that Congress restrict the jurisdiction of the ATF to investigate cases involving illegal drugs unless such investigations are conducted jointly with the Drug Enforcement Administration as the lead agency.

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1. U.S. Dept. of the Treasury, Report of the Department of the Treasury on the Bureau of Alcohol, Tobacco, and Firearms Investigation of Vernon Wayne Howell also known as David Koresh 85 (1993) [hereinafter Treasury Department Report].
2. Lewis Gene Barber, a retired lieutenant with the Waco Sheriff's Department, informed the subcommittees during its pre-hearing investigation into these events that local police suspected that there was an "informant" at the ambulance company who had been tipping off the local television station. He stated that on several prior occasions, when police had placed the ambulance company on standby, the station sent a camera crew to the site of the police activity, even though the police had not disclosed it to the station.
3. Treasury Department Report at 85.
4. Id. at 84-89.
5. Id. at 89.
6. Id. at 89.
7. Id. at 91.
8. Id.
9. Hearings Part 1 at 757.
10. Id. at 776.
11. Id.
12. Id. at 777.
13. Id. at 777-778.
14. Treasury Department Report at 90.
15. Hearings Part 1 at 786.
16. Id. at 466.
17. Id.
18. Id. at 788.
19. Id.
20. Treasury Department Report at 179.
21. Id.
22. Hearings Part 1 at 934-935.
23. During that program Noble stated, "What was absolutely clear in Washington at Treasury and in Washington and ATF was that no raid should proceed once the element of surprise was lost." Investigation Into the Activities of Federal Law Enforcement Agencies Toward the Branch Davidians (Part 2): Hearings Before the Subcommittee on Crime of the House Committee on the Judiciary and the Subcommittee on National Security, International Affairs, and Criminal Justice of the House Committee on Government Reform and Oversight, 104th Cong., 1st Sess. 7 (1995) [hereinafter Hearings Part 2].
24. Hearings Part 1 at 763.
25. Id. at 758.
26. Id. at 763.
27. Id. at 766.
28. Id. at 773.
29. Hearings Part 1 at 759-760.
30. Treasury Department Report at 152-156.
31. Id. at 153.
32. Id. at 154.
33. Id.
34. Id. at 175.
35. Id.
36. Id. at 207-208. Additionally, Agent Rodriguez testified before the subcommittees that he never saw any written raid plan. Hearings Part 1 at 821.
37. Treasury Department Report at 152.
38. Id. at 207.
39. Id. at 54-64.
40. Id. at 151.
41. Id. at C-19.
42. Id. at 151.
43. Id.
44. Id. at 73.
45. Interviews of National Guard personnel. [See documents produced to the subcommittees by the Department of the Treasury T005368, T005376 at Appendix [hereinafter Treasury Documents]. The Appendix is published separately.]
46. Treasury Department Report at 95.
47. For an explanation of the three "statuses" in which National Guard forces operate, see Section V of this report.
48. See Section V of this report.
49. See generally Robert J. Driscoll, Unannounced Police Entries and Destruction of Evidence After Wilson v. Arkansas, 29 Colum. J.L. & Soc. Probs. 1, 10 (1995).
50. The Federal knock and announce statute is found in 18 U.S.C. Sec. 3901. That section states, "The officer may break open any outer or inner door or window of a house, or any part of a house or anything therein, to execute a search warrant, if, after notice of his authority and purpose, he is refused admittance or when necessary to liberate himself or a person aiding him in the execution of the warrant."
51. Driscoll, supra note 111, at 11.
52. Id.
53. Id.
54. Hearings Part 1 at 725.
55. Id. at 756.
56. Hearings Part 2 at 150.
57. Hearings Part 2 at 26.
58. Hearings Part 2 at 821-822.
59. See Documents produced to the subcommittees by the Department of the Treasury T005723, T005730, T005731, at Appendix [hereinafter Treasury Documents]. The Appendix is separately published.
60. Mr. McCollum: What about with regard to firing from the helicopters? Did any of the ATF agents tell you that there had been shots fired from the helicopters?
    
    Mr. Byrnes: Quite to the contrary, we could find no evidence that there was ever any shots fired. Our best evidence is that they peeled off at about 300, 350 meters, because there was gunfire, and those pilots were not going to fly over that residence.
    
    Hearings Part 2 at 197.
61. "I couldn't tell you whether those rounds were fired from a helicopter or not. All I could tell you is they come from the sky downward. If somebody were standing on top of the roof shooting down into the ceiling, it would look exactly the same way." Hearings Part 2 at 27 (statement of Jack Zimmerman).
62. Memorandum to Charles D. Sarabyn from ATF Deputy Director, "Decision to Remove from Position and from the Federal Service" (October 26, 1994); Memorandum to Phillip J. Chojnacki from ATF Deputy Director, "Decision to Remove from Position and from the Federal Service" (October 26, 1994). Treasury Documents T00012743-T00013735.
63. Settlement Agreement, Ph
    
    IV. R
    
    the Treasury, Case No. DA-0752-95-0126-I-1, Merit Systems Protection Board, Denver Field Office (December 1994). Treasury Documents T00013868-T00013874. Settlement Agreement, Charles D. Sarabyn v. Department of the Treasury, Case No. DA-0752-95-0127-I-1, Merit Systems Protection Board, Denver Field Office (December 1994). Treasury Documents T00013428-T00013434.
64. Treasury Department Report at 193.