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


2nd Session

Report 104-749

HOUSE OF REPRESENTATIVES

 August 2, 1996. -_Committed to the Committee of the Whole House on
the State of the Union and ordered to be printed

      Mr. Clinger, from the Committee on Government Reform and Oversight,
submitted the following

      THIRTEENTH REPORT

      together with

      ADDITIONAL AND DISSENTING VIEWS


      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

 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.

 While not dispositive, the evidence presented to the subcommittees
indicates that some of the Davidians intentionally set the fires inside the
Davidian residence.

 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.

 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


 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.

 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.

 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


 The ATF's investigation of the Branch Davidians was grossly incompetent.
It lacked the minimum professionalism expected of a major Federal law
enforcement agency.

 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.

 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.

 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.

 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.

 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.

 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.

 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.

 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


 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.

 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.

 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.

 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


 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.

 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.

 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.

 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.

 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.

 There is no evidence that the FBI discharged firearms on April 19.

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

 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


 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.

 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.

 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:


 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.

 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.

 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.

 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.

 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.

 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.

 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.

 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.

 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.

 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.

 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.

 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.

 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.

 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.

 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.

 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.

 The government should further study and analyze the effects of CS riot
control agent on children, persons with respiratory problems, pregnant women,
and the elderly. The subcommittees note that only limited scientific
literature exists concerning the effects of CS riot control agent, especially
with regard to the effects of long-term exposure in a closed area. Until such
time as more is known about the actual effects of exposure to this agent, the
subcommittees recommend that CS not be used when children, persons with
respiratory problems, pregnant women, and the elderly are present. Federal law
enforcement agencies should develop guidelines for the use of riot control
agents in light of this further study and analysis.

      I. Introduction

      A. The Need for the Waco Inquiry

      On February 28, 1993, four special agents of the Bureau of Alcohol, Tobacco
and Firearms (ATF) were tragically killed near Waco, TX, in a shootout with a
religious sect known as the Branch Davidians. The group's leader, Vernon Howell,
also known as David Koresh, was wounded in the violent confrontation, and
several of its members were killed. Then on April 19, 1993, after a 51 day
standoff with the Federal Bureau of Investigation (FBI), the episode came to a
fiery conclusion when more than 70 Davidians, including 22 children, died inside
the group's residence.

      From any perspective, Waco ranks among the most significant events in U.S.
law enforcement history. For ATF, it was the largest and most deadly raid ever
conducted. For the FBI, it was an unprecedented failure to achieve a critical
objective_the rescue of dozens of innocent women and children.

      The television coverage and news accounts generated by the media at the
scene near Waco presented a troubling picture to Americans. On the one hand, it
seemed clear enough that a Jonestown-like religious cult led by an irrational
leader had brought disaster on itself. On the other hand, images of the tanks
and other military vehicles gave the impression that the FBI was using excessive
force together with military weapons and tactics against U.S. citizens, contrary
to our civilian law enforcement tradition. In the aftermath of the April 19th
fire, government officials, Members of Congress, and assorted observers called
for a thorough review of the matter. Outside the corridors of power, a mixture
of fact, rumor, and suspicion produced a wide variety of lasting impressions and
conspiracy theories.

      Both the Justice and Treasury Departments issued detailed written reports
many months later. The Treasury Department Report criticized ATF personnel, but
it exonerated all Department officials. The Justice Department Report found no
fault with any actions of the FBI or any Justice Department official.

      Several congressional committees conducted hearings in the weeks following
the disaster. Unfortunately, little information was available from
administration officials at the time. Representative Jack Brooks, chairman of
the House Judiciary Committee, promised additional hearings to resolve remaining
questions, but none were held.

      Several developments in 1994 contributed to the pervasive view that serious
questions about Waco remained unanswered. The criminal trial of the surviving
Branch Davidians resulted in acquittals on murder charges. The self-defense
arguments raised at trial and their obvious effect on the jury encouraged the
public's outcry and desire for accountability. Journalists, investigators, and
attorneys involved in the case decried the absence of candor and independence in
the administration's reports and demanded a more comprehensive and detailed
inquiry. In addition, widely distributed video tapes entitled ``Waco: The Big
Lie'' and ``Waco: The Big Lie Continues'' had a significant impact on public
opinion. Also, many policymakers read an article published in First Things,
written by Dean Kelly of the National Council of Churches,(1) which stirred up
considerable speculation about the ATF's conduct and the FBI's use of CS
chemical agent. In short, by the start of the 104th Congress, the need for a
sufficient and thorough congressional examination of the Waco tragedy was
indisputable.

      At the outset of the 104th Congress, both the Committee on the Judiciary and
the Committee on Government Reform and Oversight indicated in their formal
oversight plans, filed in February 1995, the intention to conduct hearings on
the Waco matter. Representative Bill McCollum, chairman of the Subcommittee on
Crime of the Committee on the Judiciary and Representative Bill Zeliff, chairman
of the Subcommittee on National Security, International Affairs, and Criminal
Justice of the Committee on Government Reform and Oversight stated on several
occasions that such hearings were a necessary response to the widespread
dissatisfaction with the Federal Government's follow-up to what happened at the
Branch Davidian residence. The deplorable bombing in Oklahoma City 2 months
later revealed the extent to which Waco continued to served as a source of
controversy for some Americans. With the concurrence of the Speaker of the House
and the chairmen of the Committees on the Judiciary and Government Reform and
Oversight, the subcommittee chairmen began to organize comprehensive joint
hearings on the Waco matter. As the July timetable was set for the hearings,
both chairmen hoped a comprehensive investigation, primarily involving testimony
from a wide variety of witnesses presented in public hearings, would lay to rest
questions which persisted, assess responsibility for any misconduct, and
ultimately restore full confidence in Federal law enforcement.

      B. Opposition to the Inquiry

      Opposition to the Waco hearings was to be expected. The Departments of
Justice and Treasury believed that their respective reports were forthright and
complete and that additional scrutiny would only result in more negative
publicity. Clinton administration officials were concerned that the hearings
would cause further political damage.

      What was not expected was the extent to which the administration tried to
control potential damage from the hearings. The White House staff assembled a
damage control team and retained the services of John Podesta, a public
relations specialist and former White House official who had worked for Handgun
Control, Inc.(2) Treasury Secretary Rubin contacted at least one member of the
joint subcommittees, Representative Bill Brewster of Oklahoma, and requested
that he not ask any questions that might embarrass the administration.(3) Also,
the Treasury Department flew to Washington two Texas Rangers who were scheduled
to testify before the subcommittees in order to help them prepare their
testimony. The Justice Department, in concert with the subcommittees' Democrats,
brought firearms recovered from the charred Davidian compound to Washington to
be used as props.

      Perhaps the most disturbing counter-measure was the charge, made by the
President himself, that the hearings were an attack on law enforcement. Quite
the opposite was the case. All involved in the planning and carrying out of the
hearings and the investigation were strong supporters of Federal law
enforcement. All believed that through airing and analysis of the Waco events by
congressional oversight committees were necessary to the long term credibility
and viability of the Federal law enforcement agencies. The assertion that the
hearings were anti-law enforcement was contrary to the unambiguous views of
Federal law enforcement leaders. Finally, and perhaps the strongest response to
the subcommittees' critics, is that the Waco hearings did in fact serve to
strengthen public confidence in Federal law enforcement. The public was clearly
reminded that we live in a Nation of laws and no power sits above those laws.
Americans are far more likely to support law enforcement authorities when they
know that such authorities will be held accountable for their actions.

      A final issue that arose at the start of the hearings was the extent to
which the subcommittees would consider the character of David Koresh. In the
minds of some, evidence of Koresh's despicable behavior would provide sufficient
justification for not scrutinizing the conduct of Federal law enforcement
officials. The subcommittees were prepared to stipulate then and now that Koresh
was, on one level, responsible for the death and destruction that occurred at
Waco. His actions inside the Davidian's religious community were of the vilest
sort. Nevertheless, Koresh was not accountable to the people's elected
Representatives in Congress as are Federal law enforcement authorities. Hence
the subcommittees' inquiry concerned executive branch conduct, and not that of
David Koresh.

      C. The Nature of the Inquiry

      Given the extensive and expanding public concern about the Federal
Government's actions against the Branch Davidians, and the effect such concerns
were having on the credibility of Federal law enforcement, the subcommittees
determined, in early 1995, that it would be advisable to hold hearings as soon
as practicable. As a result, rather than using the hearings as a forum for
presenting the results of a lengthy and completed investigation, it was decided
that the hearings would consist of an exhaustive public airing of the issues
associated with Waco. These ``discovery hearings,'' rather than ``presentation
hearings,'' would afford members of the joint subcommittees, interested
attendees, the media, and C-SPAN audiences an opportunity to hear from the
people who were directly involved in the Waco matter.

      The structure of the inquiry consisted of requests for and review of
documents before and during the hearings; a pre-hearing investigation phase,
including numerous interviews with many of the persons involved; the hearings
themselves; and a post-hearing investigation.

      1. Document requests and review

      On June 8, 1995, subcommittee Chairmen McCollum and Zeliff delivered
document production requests to the Federal agencies involved at Waco. The
agencies contacted were the Departments of Defense, Justice, and the Treasury.
The White House also received a document request. The subcommittees took the
position that virtually every Federal agency document associated with the Waco
incident required some level of review. To review the matter any less thoroughly
would leave lingering doubt as to whether a complete and comprehensive job had
been done.

      Despite public commitments and private assurances of cooperation by the
relevant departments, the subcommittees experienced a lack of cooperation which
clearly frustrated hearing preparations. Throughout the month of June and early
July, representatives of the White House, and Departments of Treasury and
Justice attempted to narrow the scope of the subcommittees' requests and
restrict access to a wide array of information. The first significant documents
were delivered only 3 weeks prior to the hearings, some just days before, and
tens of thousands of others were received after the hearings had already begun.
This ``wait-and-dump'' strategy rendered meaningful staff review of many key
documents virtually impossible prior to commencement of the hearings.

      Moreover, the task of reviewing these documents was made more difficult by
the manner in which they were presented. The Treasury Department's documents
were in no apparent order, making the retrieval of a particular document nearly
impossible. In what became symbolic of the administration's uncooperative
attitude experienced by the subcommittees, it was discovered that the minority,
but not the majority, had been provided an index for locating Treasury
documents.

      It should be noted that cooperation, particularly from the Department of
Justice, improved considerably shortly before the hearings began and continued
throughout the course of the public inquiry.

      2. Investigation and interviews

      The subcommittees engaged in investigative interviews, an examination of
physical evidence, and an on-site inspection of the former Branch Davidian
residence as a part of the preliminary inquiries. Both majority and minority
staff traveled to Austin and Waco, TX for a fact-finding trip. Interviews were
conducted with several Branch Davidians both at the former residence and at the
home of Sheila Martin, widow of Wayne Martin, who died in the April 19 fire.
Former Davidian Clive Doyle provided a tour of the ruins of the Davidian
residence. Staff also met with members of the local county sheriff's office and
with FBI personnel who, among other things, also took them on a visit to the
Davidian residence site.

      The staff also had an opportunity to inspect the physical evidence taken
from the ruins of the residence after the fire, much of which had been used in
the criminal trial of surviving Davidians. By prior agreement with the Justice
Department, a potential witness at the hearings, Failure Analysis Associates
Inc., was to inspect some of the physical evidence in order to respond to
tampering allegations. It was believed that the views of scientists from Failure
Analysis, who had often performed scientific evaluations for the Federal
Government, including the Justice Department and NASA after the Challenger
explosion, would be beneficial given public suspicions about the firearms
recovered from the site of the Davidian residence. The inspection would not have
damaged the weapons and was to have been conducted in the presence of all
parties. It was hoped that the inspection would determine whether the Davidians
had attempted to alter legal, semi-automatic weapons by converting them into
illegal, automatic weapons as the ATF had alleged, and whether any of this
evidence had been altered after it was gathered from the destroyed Davidian
residence. When the scientists arrived in Austin, the Department declined to
make the firearms available to them. The Department agreed instead to conduct
the tests itself and present its findings to the subcommittees. A short time
later, the Department urged, for cost considerations, that the tests not be
performed. As a result, no tests were performed on the firearms.

      Pre-hearing interviews were held with senior officers of the Texas Rangers,
authors of books about the Waco disaster, personnel in the McLennan County
Sheriff's office, and officials from the Departments of the Treasury, Justice,
and Defense, ATF, Drug Enforcement Administration, and the FBI. Also, thousands
of pages of materials submitted by outside groups and individuals interested in
Waco were reviewed. Regrettably, the Treasury Department balked at making ATF
agents available for interviews. The Department steadfastly refused to allow the
subcommittee staff to meet with ATF agents who participated in the raid. Only
the threat of subpoenas secured the appearance of ATF agents at the hearings.
The inability to interview these individuals before public hearings was a
significant investigative roadblock.

      Finally, the subcommittees' staff traveled to Fort Bragg, NC to interview
the Army personnel involved with the training of ATF agents in preparation for
the raid. Several of the military personnel involved with the training were not
available prior to the hearings due to duty assignments, however, other military
personnel whom the staff sought to interview, and who were stationed at Fort
Bragg, were not made available to the subcommittees' staff for interviews.
Disturbingly, all of the military personnel interviewed by the subcommittees'
staff were counseled about the interviews prior to them by senior commanders,
despite requests to the contrary.

      3. Hearings

      The plan for the Waco hearings was to receive testimony under oath from as
many persons material to the matter as possible. Thus, nearly 100 witnesses
appeared before the joint subcommittees over a period of 10 days. The hearings
included individuals from ATF and the Treasury Department who played critical
roles in the investigation of David Koresh, and the planning, approval and
execution of the February 28 raid. They also included the key participants from
the FBI and the Justice Department with regard to the 51 day standoff and the
planning, approval, and execution on April 19 of the plan to end the standoff.
More than a dozen experts on issues associated with Waco, such as fire, riot
control agents, and tactical operations testified. The attorneys who represented
Koresh, Davidian Steve Schneider, and several Davidian survivors of Waco also
were among the witnesses.

      The minority was afforded an opportunity to add witnesses to the panels.
Every effort was made to accommodate the requests received; more than 90 percent
of the names submitted by the minority were added to the witness lists. The
administration also requested witnesses to be included. On a few occasions,
these requests conflicted with the minority's requests. Again, these desires
were accommodated to the greatest extent practicable.

      The transcripts of these hearings will serve as a valuable tool for years to
come. Many of the most significant documents were incorporated into the record.
Many others are gathered in the appendix to this report. Additionally, the
appendix contains a complete listing of hearing witnesses.

      4. Post-hearing investigation

      Additional document requests were made after the hearings to the Departments
of the Treasury, Justice, and Defense. Unfortunately, the lack of cooperation
from the Treasury and Defense Departments which existed prior to the hearings
continued, delaying release of the subcommittees' report.

      Other investigative activities which occurred after the hearings included
inspection of photographs at the FBI laboratories and interviews with munitions
experts, experts on riot control agents, and National Guard officials. Numerous
written questions were posed to the Justice, Treasury, and Defense Departments.
For the most part, they were answered. Legal experts on the Posse Comitatus Act
were consulted. Subcommittee staff also met with the FBI agent who drove one of
the armored vehicles involved in the destruction of the backside of the Davidian
residence and other FBI officials involved at Waco. Finally, several
investigative reporters shared information they have gathered regarding the Waco
matter.

      D. The Structure and Scope of the Report

      The report does not attempt to restate a chronological summary of what
happened at Waco. The administration's reports, supplemented by several
commercial publications, tell the story fairly well. Instead, to avoid
duplication the report consists of review, analysis, and, where appropriate,
recommendations concerning the major issues raised. It is structured in the same
chronological pattern as the hearings.

      E. Additional Comments

      If Federal law enforcement actions since the Waco hearings are a fair
indication, then the inquiry has already had a considerably positive effect. The
apparently increasing presence of separatist religious or anti-government groups
had created a significant new challenge for Federal law enforcement agencies.
Finding the proper balance between the need to enforce Federal law with the
responsibility to avoid violent confrontations will continue to be difficult. It
is complicated by the fact that innocent people, especially children, are so
often in harm's way. Yet, over the past several months, Federal law enforcement,
and the FBI in particular, has demonstrated an increased level of tactical
patience. This change in policy, combined with other important reforms
instituted by Director Louis Freeh at the FBI and Director John Magaw at ATF, is
to be commended.

      II. The ATF Investigation

      In May 1992, the Austin, TX Office of the Bureau of Alcohol, Tobacco and
Firearms was called by Chief Deputy Daniel Weyenberg of the McLennan County
Sheriff's Department. Weyenberg notified the ATF that his office had been
contacted by the local United Parcel Service regarding a package it was to
deliver to the Branch Davidian residence. The package had broken open and
contained firearms, inert grenade casings, and black powder.(4)

      On June 9, 1992, Special Agent Davey Aguilera of the Austin ATF office
opened a formal investigation. Within a week, Philip Chojnacki, the Special
Agent in Charge of the Houston ATF Office classified the case ``sensitive,''
thereby calling for a high degree of oversight from both Houston and
Headquarters in Washington, DC.(5) Notwithstanding the priority given to the
case, numerous and serious missteps occurred throughout the investigation that
followed. The most troubling aspects of the case were the ATF's overall lack of
thoroughness in its investigation, the ineffectiveness of the undercover
operation, and an affidavit in support of the search and arrest warrants that
was replete with deficiencies.

      A. The McMahon Compliance Visit

      On July 30, Aguilera joined ATF compliance officer Jimmy Ray Skinner to
conduct a compliance inspection of the premises of Henry McMahon, proprietor of
Hewitt Hand Guns. The inspection revealed that certain AR-15 lower receivers
supposedly in McMahon's inventory were neither on the premises nor listed in his
records as sold.(6) McMahon indicated that they were in the possession of David
Koresh. McMahon then called Koresh, who offered to allow the agents to inspect
for possible firearms violations. The agents declined the invitation.(7) Shortly
thereafter, McMahon told Koresh that he was suspicious that an investigation of
Koresh and his followers was underway.(8)

      It is unclear why the ATF did not accept the offer to do a compliance
inspection of Koresh's firearms. Importantly, the Treasury Report fails to
mention that Aguilera had an opportunity at the time of the compliance
inspection to inspect Koresh's firearms. Wade Ishimoto, a reviewer of the
Treasury Department Report, indicated to the subcommittees that he had not been
made aware of the McMahon compliance visit by the Department of Treasury during
his review.(9) Mr. Ishimoto maintained that Koresh's offer should have been
accepted, presenting an invaluable opportunity to gather critical
intelligence.(10) The agents' decline of the Koresh offer was a serious mistake.

      B. The Investigation Continued

      Tracing UPS invoices, Aguilera learned that more than $43,000 worth of
firearms (including AR-15 semiautomatics), firearms parts (including AR-15 lower
receivers), grenade hulls, and black powder had been shipped to the Davidians'
storage facility.(11) One of Koresh's neighbors, who had served in an Army
artillery unit, told Aguilera that he had frequently heard the sound of
automatic weapons fire_including .50-caliber fire_coming from the Davidian
residence.(12) Aguilera also learned that in November, a deputy sheriff had
heard a loud explosion at the Davidian residence which produced a cloud of grey
smoke.(13) Through interviews with former cult members, Aguilera learned of
numerous allegations that Koresh had had sexual relations with girls younger
than 16 years of age.(14) These allegations would later feature prominently in
Aguilera's affidavit in support of the search and arrest warrants.

      In December 1992, after reviewing all of the available evidence associated
with the Koresh investigation in ATF headquarters in Washington, ATF decided
they did not yet have probable cause to support a warrant. Director Higgins
stated: ``[W]e went out and got more information and came back in February . . .
. We didn't have it [probable cause] until mid-February.''(15) As part of its
effort to develop probable cause and to gather additional intelligence, on
January 10, 1993 the ATF set up surveillance cameras in an undercover house
across from the Davidian residence. The surveillance produced no additional
evidence of criminal activity. Former Davidians were interviewed in December
1992 and January 1993. Among those interviewed were three members of the Bunds
family, all of whom had left the compound before 1992. The events that were
described by the Bunds occurred prior to 1992,(16) and the information they
provided was so stale as to be of little or no value.

      Importantly, the only activity mentioned in the affidavit involving the
Branch Davidians that occurred between December 1992 and February 1993 was Agent
Rodriguez's undercover visits to the Davidian residence. The visits consisted of
Koresh speaking to Rodriguez about Second Amendment rights, Koresh showing a
tape of alleged ATF abuses, and the two men shooting legal firearms at the
compound's range. It appears that Rodriguez discovered no evidence during his
visits that would have contributed to a finding of probable cause, or that would
have provided valuable information to guide subsequent ATF action. Nevertheless,
in a case of such potential danger that it was designated ``sensitive'' and
``significant,'' the ATF proceeded with its February raid.

      Throughout the ATF's investigation decisions were made and actions were
taken which demonstrated a reckless disregard for the value of well-developed
intelligence. Furthermore, the haphazard manner in which the investigation was
pursued repeatedly exposed the lack of adequate command, control and
communications processes to support such an operation.

      C. Undercover Operation

      On January 11, 1993, eight ATF agents moved into a small house directly
across from the front drive of the Davidian residence, posing as college
students attending the nearby Texas State Technical College. Through a series of
mistakes, the ATF appeared to lose the security of its undercover operation. At
least some of the breaches of security were so serious, and obvious, that they
should have been recognized as such by ATF, and become the basis for modifying
the nature and timing of any subsequent action against Koresh.

      There is substantial evidence to suggest that Koresh and the Davidians knew
that the undercover house established by the ATF across the street from the
compound was occupied by law enforcement officials. Koresh told his next door
neighbor that he believed that the self-identified ``college students'' were too
old to be actual college students, with cars too new and expensive to be owned
by college students. He commented that they were probably Federal agents.(17)
The agents were also informed by one of Koresh's neighbors shortly after they
began surveillance that Koresh suspected they were not what they claimed to
be.(18) On one occasion, the Davidians visited their new neighbors in the
undercover house to deliver a six pack of beer, but the occupants of the house
would not let them in.(19) Finally, Koresh complained to the local sheriff that
the UPS delivery man was an undercover police officer.(20) Koresh commented that
he did not appreciate being investigated. At the hearing, Agent Rodriguez
testified that ``all of [the undercover ATF agents], or myself knew we were
going to have problems. It was just too_too obvious.''(21)

      The undercover operation was also undermined by its limited nature: The
24-hour-a-day surveillance was only sustained from January 11 through January
19, at which time Agent Chuck Sarabyn, the ATF tactical commander, ended the
constant surveillance and redirected the mission toward infiltration of the
compound.(22) It was later determined at trial that during the period of
constant surveillance the agents within the house did not know what Koresh
looked like. Rodriguez testified at trial that the only picture identification
that the agents possessed was ``a driver's license picture of him, which was not
that good. That was one reason we [later] needed to make contact with the people
inside the compound, so we could identify him. I myself did not know what he
looked like [at the time of surveillance].''(23) Significantly, the surveillance
log cites two occasions when a white male jogged up and down the road on which
the undercover house was located.(24) If this jogger had been Koresh, according
to Rodriguez's trial testimony, the agents would not have known it. The lack of
an effective surveillance operation was further demonstrated through the ATF's
failure to develop nearly 900 photographs taken from the undercover house or to
review videotapes of the movements of the Davidians.(25) This evidence
represented an opportunity to develop critical intelligence regarding the habits
and movements of compound residents, including Koresh.

      The lack of such basic and critical intelligence clearly undermined the
ability of the undercover operation to fulfill its mission. The operation's
failure to develop useful intelligence after 8 days of continuous surveillance
should not have led to the termination of the surveillance, but rather to its
modification and prolongation. Given the potential for danger to agents and
those within the compound and the dearth of intelligence, the decision to end
around-the-clock surveillance was seriously flawed. Significantly, all of the
ATF supervisory agents involved in the planning of the operation believed the
continuous surveillance continued beyond the date it was actually ended. This
mistaken belief both confirms that the termination of the surveillance was
ill-advised, and highlights the wholly inadequate command, control and
communications processes utilized by ATF throughout the operation. The eyes and
ears were poorly utilized, and what intelligence they did supply was poorly
used.

      D. Failure to Comply with ``Sensitive-Significant'' Procedures

      As noted in the Treasury Report, the Koresh investigation was classified as
``sensitive'' and ``significant'' within a week of its formal initiation on June
9, 1992. Such a classification is intended to ensure a higher degree of
involvement and oversight from both the ATF Special Agent in charge and ATF
headquarters. Yet, in spite of this designation, the agents in charge of the
investigation received minimal oversight in developing the investigation and
raid, with important elements of the plan, such as whether or not to abort the
raid if the element of surprise was lost, apparently not being understood by the
agents in charge. In view of this designation, the lack of knowledge on the part
of the Special Agent in Charge, and Headquarters, throughout the
investigation_including the undercover operation_is striking. The
``sensitive/significant'' designation makes ATF's failure to have implemented a
process for continually reviewing intelligence and modifying plans accordingly a
glaring omission.

      E. The Affidavit in Support of the Warrants

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

      The fourth amendment to the Constitution provides: ``No warrants shall
issue, but upon probable cause, supported by oath or affirmation, and
particularly describing the place to be searched, and the persons or things to
be seized.''(26) The Supreme Court has ruled that, in order for this protection
to be enforced, a warrant may issue only upon the determination of a neutral and
detached magistrate that probable cause exists to believe that the search will
yield evidence of criminality.(27) The standard articulated in Illinois v.
Gates, which guides a magistrate's probable cause determinations, is whether
``there is a fair probability that contraband or evidence of a crime will be
found in a particular place.''(28) Such a determination is, in the Supreme
Court's words, a ``practical, common-sense decision whether, given all the
circumstances set forth in the affidavit before the magistrate . . . there is a
fair probability that the contraband or evidence of a crime will be found in a
particular place.''(29)

      When applying this common sense standard to the circumstances of the ATF
investigation, the affidavit appears to have contained sufficient evidence of
violations of Federal firearms law to support the magistrate's decision to issue
the warrants.(30) There were substantial purchases of AR-15 semiautomatics and
AR-15 lower receivers, grenade hulls, and black powder. A neighbor, who had
served in an Army artillery unit, testified that he had frequently heard the
sound of automatic weapons fire. A deputy sheriff testified that he had heard a
loud explosion at the Davidian residence which produced a cloud of grey smoke.
Taken together, this information provided a sufficient basis for finding
probable cause to issue the warrants.

      While the warrants may have met the minimal standard of constitutional
sufficiency, the affidavit supporting the warrants contained numerous
misstatements of the facts, misstatements of the law, and misapplication of the
law to the facts, and serves as a de facto record of a poorly developed and
mismanaged investigation. The affidavit included misleading and factually
inaccurate statements, contained substantial irrelevant and confusing
information, and failed to properly qualify witnesses' testimony when obviously
called for based on their backgrounds. Consequently, the affidavit gave the
appearance that the ATF was not going to let questionable facts or evidence
stand in the way of moving forward on their timetable.

      The affidavit provided and sworn to by Aguilera contained numerous errors
and misrepresentations, which, taken together, create a seriously flawed
affidavit. The affidavit misstated that Koresh possessed a British Boys
anti-tank .52 caliber rifle, when in fact Koresh owned a Barret light .50
firearm.(31) Possession of the British Boys would have been a felony (32) while
possession of the Barret was completely legal. The affidavit misstated that the
M16 parts kits from Nesard company were two CAR and two EZ kits which contained
all the parts of an M16 machine gun except for the lower receiver unit, when, in
fact, the Nesard parts kits do not contain the auto sear and pin which are
absolutely necessary to convert semi automatic weapons to machine guns.(33) The
affidavit failed to mention that grenade hulls like those cited in the affidavit
to help establish probable cause had been sold by the Davidians in the past at
gun shows as paper weights and mounted on plaques. Finally, the affidavit was
misleading by reporting that Deputy Sheriff Terry Fuller was in the vicinity of
the compound when he heard a loud explosion, but then failed to report that
Fuller investigated and learned that the Davidians were using dynamite for
construction.

      Former Davidian Marc Breault provided much of the information contained in
the ATF's affidavit. Yet, nowhere in the affidavit is it mentioned that Breault
left the compound as an opponent of Koresh, a fact certain to call into question
Breault's motives. Nor does the affidavit mention that he is blind. On the
contrary, the affidavit implies that he was a compound bodyguard. It states that
Breault ``participated in physical training and firearm shooting exercises
conducted by Howell. He stood guard armed with a loaded weapon.''(34)

      The affidavit also contained misapplications of firearms law. The affidavit
alleged the violation of one statute: 26 U.S.C. § 5845(f). This statute,
however, merely defines ``destructive device.'' It does not establish any crime.
It is 26 U.S.C. § 5861 which establishes crimes related to destructive
devices. The affidavit also confused the term ``explosive'' with the term
``explosive device,'' a term which does not appear in Federal law.

      In the affidavit, Aguilera misstated that a ``machinegun conversion kit''
was a combination of parts ``either designed or intended'' to convert a
semiautomatic into an automatic firearm. In fact, Federal law defines a
conversion kit to be a combination of parts ``designed and intended'' to convert
a semiautomatic into an automatic.(35)

      In the affidavit, Aguilera also misstated that Koresh had ordered M-16 ``EZ
kits.'' The kits to which Aguilera was referring are called ``E2'' kits.
Furthermore, the E2 kit is a spare parts kit, not a conversion kit. It contains
spare parts which fit either a semiautomatic Colt AR-15 Sporter or an automatic
Colt M-16 automatic. Because it is not a conversion kit, the E2 kit is not
regulated by Federal law. Yet the affidavit implies that the kit's purpose is
for converting semiautomatics into automatics. On this point, the Treasury
Department Report is mistaken as well. While it correctly named the E2 kit, it
wrongly asserted that ``the parts in the kit can be used with an AR-15 rifle or
lower receiver to assemble a machinegun . . . The parts in the E2 kit also can
be used to convert an AR-15 into a machinegun.''(36) These assertions are false.
The Treasury Department regulates genuine conversion kits as if they were
themselves machineguns. It does not regulate E2 kits.

      Intimating that Koresh was converting AR-15 Sporters and semiautomatic
copies of AK-47's into automatics, Aguilera included evidence of purchases made
by Koresh from a South Carolina Company which was known to sell parts needed to
convert semiautomatics of the type that Koresh possessed into automatics.
Aguilera failed even to allege that Koresh purchased parts from this company
which would have allowed the conversion of semiautomatics into automatics.
Nowhere in the affidavit is there evidence that Davidians were manufacturing
their own automatic sears, or modifying the lower receivers of semiautomatics,
both of which would have been violations of firearms laws.

      The affidavit was misleading in that it falsely referred to ``clandestine''
publications. The affidavit reported that in June 1992, a witness had ``observed
at the compound published magazines such as, the Shotgun News and other related
clandestine magazines.''(37) Far from clandestine, Shotgun News has a
circulation of about 165,000. Subscriptions are available by mail or telephone.
The Austin, TX ATF office_Aguilera's home office_was a subscriber.

      F. Findings Concerning the ATF Investigation

1. The ATF's investigation of the Branch Davidians was grossly
incompetent. It lacked the minimum professionalism expected of a Federal law
enforcement agency. Among the failures of the investigation were:

      o The failure to accept Koresh's offer to inspect the firearms held at the
Branch Davidian residence. It is unclear why the ATF did not accept the offer to
conduct a compliance inspection of Koresh's firearms. What is clear is that the
agents' refusal of Koresh's invitation was the first of a series of instances in
which the ATF rejected opportunities to proceed in a non-confrontational manner.
The agents' decision to decline Koresh's offer was a serious mistake.

      o The failure to recognize obvious breaches of surveillance security. Some
of these breaches were so serious and obvious that they should have been
recognized by the ATF agents and commanders involved, and should have become the
basis for modifying the nature of the surveillance.

      o The failure to analyze intelligence gathered during the undercover
operation, including more than 900 photographs of activities around the Branch
Davidian residence. These photographs could have led to the development of
critical intelligence regarding the habits and movements of the Davidians, and
Koresh in particular.

      o The premature termination of the undercover operation. The operation's
failure to develop useful intelligence after 8 days of continuous surveillance
should not have led to the termination of the surveillance, but rather to its
prolongation. Given the potential for danger to agents and those within the
residence, and the dearth of intelligence, the decision to end around-the-clock
surveillance was seriously flawed.

2. While the ATF had probable cause to obtain the arrest warrant for
David Koresh and the search warrant for the Branch Davidian residence, the
affidavit filed in support of the warrants contained numerous false statements.
The ATF agents responsible for preparing the affidavits knew or should have
known that many of the statements were false.

3. David Koresh could have been arrested outside the Davidian compound.
The ATF deliberately chose not to arrest Koresh outside the Davidian residence
and instead determined to use a dynamic entry approach. In making this decision
ATF agents exercised extremely poor judgment, made erroneous assumptions, and
ignored the perils of this course of action which they should have foreseen.

      G. Recommendations

1. Whenever it is feasible to achieve its objectives, the ATF should use
less confrontational tactics. The ATF had an opportunity to search the
Davidian residence at the invitation of Koresh. Koresh was off the property and
subject to the capture of law enforcement on numerous occasions before the raid.
The ATF should have taken advantage of these less confrontational opportunities.
The ATF should pursue such alternatives in the future.

2. Federal law enforcement agencies should verify the credibility and
the timeliness of the information on which they rely in obtaining warrants to
arrest or search the property of an American citizen. The affidavits on
which the arrest and search warrants of Koresh were ordered contained
information provided to the ATF by informants with obvious bias toward Koresh
and the Davidians. In addition, much of the information was stale, based on
experiences years before the investigation. The ATF should obtain fresh and
unbiased information when relying on that information to arrest or search the
premises of the subjects of investigations.

3. The ATF should make every effort to obtain continuous and substantial
intelligence and should ensure that the efforts to obtain such intelligence are
not hindered by breaches of security. The ATF had a broken and insecure
intelligence operation. Gaps in the surveillance and breaches of the security of
undercover operations jeopardized the investigation and the raid. The ATF should
take precautions to ensure that these breaches do not occur in the future.

4. If the false statement in the affidavits filed in support of the
search and arrest warrants were made with knowledge of their falsity, criminal
charges should be brought against the persons making the statements.

      III. Planning and Approval of the Raid

      The ATF had a variety of options in the manner in which it could have served
the arrest and search warrants on Koresh. These options included luring Koresh
off the Davidian residence, arresting Koresh while he was off the Davidian
property, surrounding the Davidian residence and waiting for Koresh to surrender
himself and consent to the search, and executing a ``dynamic entry'' style raid
into the residence. The ATF chose the dynamic entry raid, the most hazardous of
the options, despite its recognition that a violent confrontation was
predictable. The decisions regarding the raid were made without the
participation of either Secretary of the Treasury Lloyd Bentsen or the Deputy
Secretary of the Treasury Roger Altman.

      A. Was ``Show Time'' Even Necessary?

      The subcommittees received evidence of numerous opportunities to arrest
Koresh away from the residence, thereby reducing the likelihood of violence. The
failure to make use of these opportunities raises the question of the dynamic
entry's necessity. ATF officials offered at least three different reasons for
this critical decision.

      ATF Special Agent Phillip Chojnacki, the overall commander of the raid,
testified that Koresh could not be arrested outside the residence because the
intelligence from the undercover house was that he rarely left the
residence.(38) ATF did not want the tactical problem of having agents on standby
indefinitely while they waited for the rare occurrence of Koresh going into
town.

      Yet the testimony before the subcommittees revealed that Koresh left the
Davidian residence at least once a week during January and February.(39) David
Thibodeau, who lived at the Branch Davidian residence but did not consider
himself to be a member of the Branch Davidian religious community, testified
that Koresh was a regular jogger.(40) It was also revealed during the trial that
Koresh had left the residence on January 29, 1993, to conduct business at a
machine shop.(41) Finally, the manager at the Chelsea Bar and Grill in Waco
stated that they served Koresh about once a week through February.(42)

      ATF agents next explained that it did not make practical sense to arrest
Koresh outside because he would immediately be released and would be back at the
residence. The window was simply too narrow.(43) This answer also lacked
credibility since Federal law provides that the arrestee can be held for 3 days
upon motion of the government.(44)

      Finally, ATF officials testified at the hearings that they abandoned the
idea of trying to arrest Koresh outside the residence because their primary goal
was to get inside to conduct a search. These officials maintained that it was
preferable to attack the residence by surprise and get Koresh and the guns at
the same time.(45) However, the ATF had developed its own scheme to lure Koresh
off the complex. The ruse was proposed to Joyce Sparks, the social worker who
had conducted an earlier child protection investigation at the Branch Davidian
residence. Sparks was to contact Koresh, who she had come to know relatively
well, and make an appointment with him to be held in her office. While Sparks
agreed to cooperate with the ATF, Sparks' supervisor refused to approve the ruse
tactic.(46)

      B. Was the Violent Outburst Predictable?

      The record of the subcommittees' investigation shows that persons who
through contact and experience became familiar with the belief system and the
authoritarian structure of the Branch Davidians could have predicted a violent
resistance by the Davidians to a mass law enforcement action. The Branch
Davidians predicted a violent apocalypse, a vision that followers believed be
necessary to go to heaven.(47)

      The ATF investigative agents interviewed Sparks, who had kept lines of
communication open between Koresh and herself even after the end of her Child
Protective Services investigation. During their conversations, Koresh would
often provide lengthy presentations of his religious beliefs. Sparks developed
an understanding of how Koresh thought and how he was viewed within the Branch
Davidian group at the residence. When ATF sought her opinion about the raid, she
stated that the Branch Davidians believed that Koresh was the Lamb of God and
that they would protect him to the death. ``They will get their guns and kill
you,'' Sparks recalls saying.(48)

      The ATF also received information from Marc Breault, a former Branch
Davidian and resident at Mount Carmel, the Davidians' home.(49) Contact between
ATF and Breault was made during December 1992. During that time and up to the
time of the raid, the former Branch Davidian provided information about the
Davidians and Koresh in particular, including his past correspondence. In a
paper prepared by Breault and provided to the ATF, a recent history of the
Branch Davidians recounts the group's views that the world will end in a final
violent battle.

      C. The Predisposition to Dynamic Entry

      An examination of ATF's timeline in the Waco investigation and raid planning
activities reveals that planning for a military style raid began more than 2
months before undercover and infiltration efforts even began.

      1. The source of the predisposition

      a. The culture within the ATF

      Management initiatives, promotional criteria, training, and a broad range of
other cultural factors point to ATF's propensity to engage in aggressive law
enforcement. Senior officials from other law enforcement agencies have commented
on the ATF raid. Several have informed the subcommittees that their
organizations would not have handled the execution of the Branch Davidian search
warrants in the aggressive way chosen by ATF.(50) For example, Jeffrey Jamar,
the FBI Special Agent-in-Charge of the Waco standoff, was asked about the FBI's
approach to such a circumstance. He stated that he ``would not have gone near
the place with 100 assault weapons.''(51)

      b. The Waco Tribune-Herald's ``Sinful Messiah''

      One factor affecting ATF's decision to employ a dynamic entry was the
impending release of a newspaper story about Koresh and the Davidians which
revealed the Federal law enforcement investigation then underway. The Waco
Tribune-Herald had planned to release a series of articles on David Koresh in
early 1993.(52) Fearing publication of the article, ATF hastened its plans to
serve the arrest and search warrant. It was unclear, however, how Koresh would
react to the story. In fact, ATF Special Agent Robert Rodriguez suggested that
the newspaper article did not upset Koresh.(53)

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

      Testimony received during the hearings established that there was no process
through which Treasury Department officials were able to review pending ATF
matters prior to their reaching a crisis stage. In the investigation of Koresh,
there was no oversight by Treasury over the ATF's planning and execution of the
raid until approximately 48 hours before the raid occurred.(54) Testimony
revealed that, even though Bentsen had been Treasury Secretary for approximately
1 month at the time of the ATF raid, and Altman had been serving as Deputy
Secretary for the same time period, ATF Director Steven Higgins had never met
either of them, let alone briefed them regarding the investigation and planned
raid. This point was established at the hearings during the questioning of
Higgins by Representative Ed Bryant.

      Mr. Bryant: When did you first meet with the Secretary to discuss
anything about your agency, the ATF?

      Mr. Higgins: I don't remember any briefings with the Secretary. I
haven't gone back to look at my documents. Probably in that first month, month
and a half, I don't remember any meetings with him. The only interaction we
really had during the transition would have been with Mr. Simpson.

      Mr. Bryant: Are you saying that you never had met with Secretary
Bentsen prior to this point?

      Mr. Higgins: I can't remember having gone to a staff meeting while
he was there . . . I don't remember specifically today having been at one with
him.

      Mr. Bryant: Had you ever met with his deputy, Mr. Altman, before
this raid?

      Mr. Higgins: I don't believe I knew Mr. Altman until then. I knew
who he was, obviously.

      Mr. Bryant: Well, I am a little confused here. You are saying that
you were the director of the ATF, which we all know is very significant,
powerful element of the Department of Treasury, and you had not met with your
ultimate boss, the Secretary, for 30 days or so?

      Mr. Higgins: I don't believe so, other than maybe to shake hands,
and I don't even remember doing that. It is interesting that those who think
there is some giant conspiracy in the government don't realize how little we
knew each other.(55)

      Under Congressman Bryant's further questioning, Higgins testified that there
was no procedure in place for the director of the ATF to apprise the Secretary
or Deputy Secretary of the ATF's plans.

      Mr. Bryant: Was there any process or procedure available to you as
the Director of the ATF to brief either the Deputy or the Secretary?

      Mr. Higgins: I could have called them and said, yes, I would like to
brief you on something. I think they were accessible, yes.

      Mr. Bryant: But there was no routine process? This was no regularly
done at that point?

      Mr. Higgins: No routine process, although most secretaries at some
point set up a system where there is a regular, either every week or every 2
weeks, meeting with bureau heads.(56)

      The testimony before the subcommittees consistently depicted a Treasury
Department that treated ATF as its lowest priority. Department officials
repeatedly demonstrated a lack of interest in even major ATF actions, such as
that of February 28, 1993. The Department maintained a culture that perceived
law enforcement as, at best, a peripheral part of its mission, according the ATF
correspondingly little attention. This point was brought out during the hearings
through questioning by Representative Bill McCollum, co-chairman of the
subcommittees, of former Treasury Secretary Bentsen about his knowledge of the
raid prior to February 28, 1993.

      Mr. McCollum: When did you first learn of the raid or any plan for
that raid?

      Mr. Bentsen: I was in London at my first meeting with G-7 with the
Ministers of Finance and was very much involved in that one. I came back, to the
best I can recall, some time early Sunday morning on a night flight from London,
and in turn I did not find out about the raid, to the best of my memory, until
early Sunday evening and that is the first knowledge I had of it at all.

      Mr. McCollum: In other words, there was no discussion with you, no
information passed to you prior to the time of the raid that it was anticipated
or that it might exist or any nature__

      Mr. Bentsen: That is correct.

      Mr. McCollum: Isn't it a little surprising one of the largest or one
of the largest raids in the BATF's history was taking place, and the Secretary
of the Treasury, the chief of all of the law enforcement of the ATF was not
notified?

      Mr. Bentsen: I can well understand when I was abroad attending an
international meeting involving questions of monetary exchange rates and some
very serious subjects at that point, that others within the Department were
handling the situation.

      Mr. McCollum: But didn't you keep in contact with your office during
the time you were over there? Weren't there telephone calls?

      Mr. Bentsen: Of course.

      Mr. McCollum: Nobody in the law enforcement division thought

      you ought to be disturbed about this incident and asked about it. I
understand.(57)

      Bentsen's responses reveal that throughout the planning of the raid,
including the critical days just prior to its initiation, the Treasury Secretary
knew nothing about it. Neither he nor his deputy knew anything about an imminent
law enforcement raid_one of the largest ever conducted in U.S. history_being
managed by his Department, which would endanger the lives of dozens of law
enforcement agents, women, and children.

      Other testimony from the hearings further demonstrated insufficient
oversight by Treasury Department officials of ATF planning. At the hearings
before the subcommittees, Representative McCollum questioned Christopher Cuyler,
who in February 1993 was the ATF's liaison to the Treasury Department. Cuyler
testified that no Treasury officials had knowledge about the potential for the
raid until February 26_2 days before the raid was initiated.(58)

      The inadequate oversight of the ATF by Treasury Department officials was
further evidenced in the final communications between Treasury and ATF in the
day before the raid. The Department maintains that it conditioned the raid on
ensuring the element of surprise was preserved. As stated in the Treasury
Department Report, Department officials assured that those directing the raid
were under express orders ``to cancel the operation if they learned that its
secrecy had been compromised. . . .''(59) Yet, ATF officials, including Higgins,
Cuyler, and the agents in charge of the raid testified that it was not at all
clear to them that Treasury wanted the raid canceled if the element of surprise
was lost.(60)

      D. Failure to Comply with ``Sensitive-Significant'' Procedures

      As noted in the Treasury Department Report, the Koresh investigation was
classified as ``sensitive'' and ``significant'' within a week of its formal
initiation on June 9, 1992.(61) Such a classification is designed to ensure a
higher degree of involvement and oversight from both the ATF Special Agent in
charge and ATF headquarters, yet this designation was ignored in practice. In
view of this designation, the lack of knowledge on the part of the Special Agent
in Charge and ATF Headquarters throughout the investigation, including the
undercover operation, is striking. The ``sensitive/ significant'' designation
makes ATF's failure to have implemented a process for continually reviewing
intelligence and modifying plans accordingly a glaring omission.

      E. Findings Concerning the Planning and Approval of the Raid

1. The subcommittees conclude that the ATF was predisposed to using
aggressive, military tactics in an attempt to serve the arrest and search
warrant. The ATF deliberately choose not to arrest Koresh outside the
Davidian residence and instead determined to use a dynamic entry approach. The
bias toward the use of force may in large part be explained by a culture within
ATF.

2. The ATF did not attempt to fully understand the subjects of the raid.
The experience of Joyce Sparks, Marc Breault, and ATF undercover agent
Robert Rodriguez demonstrate that persons who spent a reasonable amount of time
with Koresh, even without professional training specific to persons such as
Koresh, understood with some predictability the range of behaviors that might
result from a military style assault on the Branch Davidians.

3. Treasury Secretary Lloyd Bentsen and Deputy Secretary Roger Altman
acted highly irresponsibly and were derelict in their duties in failing to even
meet with the Director of the ATF in the month or so they were in office prior
to the February 28 raid on the Davidians residence, in failing to request any
briefing on ATF operations during this time, and in wholly failing to involve
themselves with the activities of the ATF.

4. Senior Treasury Department officials routinely failed in their duty
to monitor the actions of ATF officials, and as a result were uninvolved in the
planning of the February 28 raid. This failure eliminated a layer of
scrutiny of the plan during which flaws might have been uncovered and corrected.

      IV. Raid Execution

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

      A. Rodriguez and the ``Element of Surprise''

      1. How the Davidians knew the ATF was coming

      The Davidians learned of the ATF plan to raid their residence when a local
television cameraman happened to get lost on his way to the Branch Davidian
residence.(62) The cameraman had been dispatched to the residence by the local
television station because the news director of the station expected the ATF
raid would occur on that day. He suspected this because an employee of the local
ambulance service had informed him that a Fort Worth-based trauma flight company
had been put on standby along with the local ambulance company.(63)

      While the cameraman was sitting by the side of the road attempting to locate
the Davidian residence, David Jones, a Branch Davidian and a letter carrier with
the U.S. Postal Service, pulled up behind the cameraman and asked whether he was
lost. The cameraman introduced himself and asked for directions to
``Rodenville,'' the name by which many local residents referred to the Branch
Davidian residence. After Jones pointed to the residence, which was in sight of
where the two men were stopped, Jones stated that he had read about the group in
the paper and ``thought that they were weird.'' The cameraman, believing that
Jones was not affiliated with the Davidians, warned him that some type of law
enforcement action was going to take place at the residence, that it was likely
to be a raid of some type, and that there may be shooting.(64) After the
cameraman departed, Jones drove directly to the residence and informed the
Davidians.

      2. The undercover agent

      On the morning of February 28, 1993, at approximately 8 a.m., Robert
Rodriguez, the ATF agent who had gone undercover into the Branch Davidian
residence on several prior occasions, went to meet with David Koresh one final
time. While Koresh and Rodriguez were engaged in a Bible study session, David
Jones arrived at the residence and told his father, Perry Jones, what had
happened. The elder Jones then informed Koresh that he had a telephone call.
Koresh, at first, ignored the statement but, when Perry Jones mentioned that it
was long distance from England, Koresh left the room to speak with Jones.(65) At
this point, David Jones relayed to Koresh his discussion with the television
station cameraman.

      a. The Treasury Department Report version of events

      The Treasury Department Report summarizes the subsequent events as follows:

      Upon Koresh's return, Rodriguez could see that he was extremely agitated,
and though he tried to resume the Bible session, he could not talk and had
trouble holding his Bible. Rodriguez grabbed the Bible from Koresh and asked him
what was wrong. Rodriguez recalls that Koresh said something about, ``the
Kingdom of God,'' and proclaimed, ``neither the ATF nor the National Guard will
ever get me. They got me once and they'll never get me again.'' Koresh then
walked to the window and looked out, saying, ``They're coming, Robert, the time
has come.'' He turned, looked at Rodriguez and repeated, ``They're coming
Robert, they're coming.''(66)

      According to the Treasury Department Report, Rodriguez went first to the
undercover house announcing to the agents there and to James Cavanaugh, deputy
tactical coordinator of the ATF operation, that Koresh was agitated and had said
the ``ATF and the National Guard were coming.''(67) The report states that
Cavanaugh asked Rodriguez whether he had seen any guns, had heard anyone talking
about guns, or had seen anyone hurrying around. Rodriguez responded in the
negative to all three questions. Cavanaugh then told Rodriguez to report his
observations to Chuck Sarabyn, the tactical coordinator for the raid.(68)

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

      The Treasury Department Report then notes that Sarabyn left the command post
at the Texas State Technical College (TSTC) and went to the tarmac area nearby
to confer with Phillip Chojnacki, the overall ATF incident commander, and that
Sarabyn told Chojnacki what Rodriguez had said as well as the answers to the
questions Sarabyn asked of Rodriguez. The Treasury Department Report states that
Chojnacki asked Sarabyn what he thought should be done and that Sarabyn
expressed his belief that the raid could still be executed successfully ``if
they hurried.''(69)

      According to the Treasury Department Report, Sarabyn then went to the
staging area, at the Bellmead Civic Center near the TSTC. When he arrived he was
excited, ``obviously in a hurry,'' and telling agents ``get ready to go, they
know we are coming'' and ``they know ATF and the National Guard are coming. We
are going to hit them now.''(70)

      b. Testimony before the subcommittees

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

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

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

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

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

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

      At that point, everything was normal. There was only three people in that
living room at that point. Everything was calm. He was normal. He was talking to
me as he always spoke to me during all our sessions. Nothing_nothing was wrong.

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

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

      try to finish what he was talking to me about.

      When he grabbed the Bible, he was shaking so bad that he could not actually
read it. I grabbed the Bible and asked him what is wrong. At that time he
stopped, and as I sit here I can remember, clearly, he took a deep breath, he
turned and looked at me and said, ``Robert, neither the ATF or the National
Guard will ever get me. They got me once, and they'll never get me again.''(71)

      Later, Rodriguez continued his testimony:

      Mr. Ehrlich: And what did you do next?

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

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

      Mr. Rodriguez: I was threatened because I didn't know_I was afraid
that I would be exposed as to who I was. And as I stood there, I looked and I
noticed that the door_there's people in front of the door, people behind me,
there was no place for me to go. As I was_as I stood there, Koresh went from one
window, did the same thing, looked outside, and came back to the other window
and again looked outside and said, they're coming, Robert, they're coming.(72)

      * * * * *

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

      Mr. Rodriguez: Yes, sir. He finally_he motioned, he gave a head
signal, they opened the door for me. I walked out. I got into my vehicle. It
took me a while to get it started because I was_by then I was_I was pretty
shaken. I quickly went back to the undercover house.(73)

      * * * * *

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

      Mr. Ehrlich: And what was his reaction?

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

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

      Mr. Rodriguez: Yes, sir, I did.

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

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

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

      Mr. Rodriguez: Mr. Sarabyn.

      Mr. Ehrlich: OK.

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

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

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

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

      Mr. Rodriguez: No, sir. At that time I really didn't have the
chance. It was a real quick question and answer thing. He asked me what he was
wearing, said OK and he hung up. That's why_that's why I quickly left the
undercover house to go talk to him at the command post because I wanted to have
a more_more of a lengthy conversation with him about the events.(74)

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

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

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

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

      Mr. Rodriguez: Sir, everything was very quiet, very quiet, and if I
remember right, everybody was really concerned. I went outside and I sat down
and I remember starting to cry_starting to cry until Sharon Wheeler came to me
and told me what was going on.(75)

      While the Treasury Department Report maintains that ``all key participants
now agree that Rodriguez communicated, and they understood, that Koresh had said
the ATF and National Guard were coming,''(76) Sarabyn maintained at the hearings
before the subcommittees that while he understood the words Rodriguez had
spoken, he did not feel that Koresh actually believed that law enforcement
personnel were on their way to the residence. As Sarabyn testified:

      I did not feel he knew that we were coming at that time.

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

      In fact, Robert told the shooting review team, or commanders, he didn't go
into detail or should have said more. When I went through the questions I asked
him, you know, he had said specifically Koresh said, you know, ATF and the Guard
are coming, but when I asked, trying to determine what he was doing from those
questions, he wasn't doing anything, he was shaking, reading the Bible. He was
preaching. I determined that, you know, in my opinion, his actions spoke louder
that his words, so I didn't feel that anything was happening then.(77)

      At another point in the hearings, Chojnacki testified:

      When I received the information from Mr. Sarabyn . . . [he] pointed out that
he had finished talking with Agent Rodriguez and that Robert says he knows we
are coming. He said, ``The ATF and the National Guard were coming to get me,''
those kinds of comments that I took to be a repetition of the same comments that
we had heard from his other preaching episodes where he preached that the ATF
will be coming to get us. ``The ATF is coming to get us.''(78)

      Chojnacki was then questioned directly as to whether he believed at the time
that Koresh did, in fact, know that the ATF was going to the Branch Davidian
residence. He stated, ``Not at that time, I didn't, no sir.''(79)

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

      [T]hose two men know_know what I told them and they knew exactly what I
meant. And instead of coming up and admitting to the American people right after
the raid that they had made a mistake . . . they lied to the public and in doing
so they just about destroyed a very great agency.(80)

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

      I was in an auditorium along with a large party . . . and Mr. Sarabyn rushed
into the room and made it clear to us that we needed to hurry up because, in
fact, Mr. Rodriguez had come out and identified the fact that Koresh had been
tipped off and that they knew we were coming.(81)

      c. What the ATF commanders knew

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

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

      B. Who Bears the Responsibility for the Failure of the Raid?

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

      In their report, Treasury Department officials assert that Stephen Higgins,
then Deputy Director of the ATF, had instructed ``those directing the raid . . .
to cancel the operation if they learned that its secrecy had been compromised .
. . .''(82) This statement was purportedly made by Higgins to Ronald Noble, then
Assistant Secretary-Designate of the Treasury for Law Enforcement, and John P.
Simpson, the acting Assistant Secretary of the Treasury for Enforcement. Noble
and Simpson had expressed concerns about the raid when they first learned of it
on the afternoon of the Friday before the raid was to take place and Simpson had
initially ordered that the raid not go forward. According to the Treasury
Department Report, Higgins made this statement to Noble and Simpson in response
to their concerns about the raid and in order to convince Simpson to reverse his
earlier decision.(83) At the hearings before the subcommittee, Undersecretary of
the Treasury Noble testified:

      It's been our_it's been our contention in the Department of the Treasury's
report that only Mr. Hartnett and Mr. Chojnacki and Mr. Sarabyn deny, because
Mr. Simpson_I mean Mr. Higgins made it absolutely clear that this raid was not
supposed to proceed if the advantage of surprise was lost and Mr. Aguilera
testified about that being clear on February 12th as well.(84)

      Representative Bill McCollum, co-chairman of the joint subcommittees, read
into the record at the hearing a similar statement that Mr. Noble had made
during an appearance on the television news program ``60 Minutes'' in May
1995.(85)

      But ATF on-site commanders and senior ATF officials disputed the position
asserted by the 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.(86)

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

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

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

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

      Mr. Hartnett: Yes, yes, I do.

      Mr. Zeliff: By Ron Noble, specifically?

      Mr. Hartnett: Yes.

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

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

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

      gave that order to somebody, but I never received that order.(87)

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

      But as Hartnett testified, ``Secrecy was part of the plan_secrecy and
safety. I mean it was discussed over and over again.''(88) And Secret Service
Agent Louis Merletti, the Assistant Project Director of the Waco Administrative
Review Team created by the Department of the Treasury to review the Waco
incident, testified that there is no difference between ``the element of
surprise and secrecy.'' He testified that it was ``basic to a dynamic entry''
method of conducting a raid.(89) Later, however, Hartnett testified:

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

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

      You know, I've testified many, many times that a part of the raid was
secrecy. But part of the raid was not specifically directed toward those
commanders when they say they were given a direct order. That is just not true.
They just were not given a direct order.(90)

      Regardless of whether it is called the ``element of surprise'' or simply
``secrecy,'' it is difficult to understand why senior ATF officials did not
require that sufficient checks be in place to ensure that secrecy had been
maintained up to the 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.''(91) Regardless of whether he fully
understood the significance of what Sarabyn told him, it was his job to take
whatever steps were necessary to insure that secrecy was maintained. Because he
did not, his portion of the blame for the failure of the raid and its
consequences is equal to that of Sarabyn.

      C. Other Ways in Which the Plan Selected was Bungled

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

      1. Command and control issues

      A number of command and control issues significantly undermined the
possibility of success for the raid. Most of these issues were addressed in the
Treasury Department Report,(92) however, three of them bear repeating here.

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

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

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

      Chojnacki, in turn, appointed Sarabyn, to be tactical coordinator because
the National Response Plan required that position to be filled by an assistant
special agent in charge who had completed special response team (SRT) training,
as had Sarabyn. But Sarabyn had attended SRT training only as an observer, and
there were other agents of lesser rank who had more experience in this area.(93)
As in the case with Chojnacki, the National Response Plan's emphasis on rank and
geographical assignment created the unintended result of placing a less
qualified person into a position for which he was either simply not qualified or
for which there were others more qualified.

      b. Command and control on the scene on raid day

      Chojnacki decided to ride in one of the helicopters on raid day.(94) This
decision placed him out of effective communications with the other raid
commanders and SRT teams leaders prior to the beginning of the raid. Had he
chosen to remain in central position from which he could control the evolving
raid, he might have had other opportunities to learn of Rodriguez's information
about what the Davidians' forewarning. He might also have been able to learn
from agents in the undercover house that the Davidians were not where the ATF
anticipated they would be on the morning of February 28, a key element of the
tactical plan, but instead were lying in wait for the agents.

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

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

      c. Command and control from Washington

      On February 28, ATF activated its ``National Command Center'' at its
Washington headquarters staffed with ``high-level managers . . . experience[d]
in field operations.''(96) Yet it appears that the command center played no role
in the planning or implementation of the operation until after ATF agents had
been killed or wounded. The personnel in the command center never learned that
Rodriguez knew the Davidians thought the raid was imminent because Chojnacki
never told them. Apparently, the person in the command center with whom
Chojnacki spoke did not know enough about the raid to know that an undercover
agent was to have been inside with the Davidians until shortly before the raid
was scheduled to begin and valuable information might have been available. In
fact, according to the Treasury Department Report, no one in the command center
asked any questions of Chojnacki at all when he reported in shortly before the
raid.(97)

      2. The lack of a written raid plan

      The Treasury Department review of the ATF's investigation of David Koresh
noted that the ATF agents who were in command of the raid did not prepare a
written raid plan in advance of the raid. While two ATF agents took it upon
themselves to create one, it was never reviewed by the senior raid planners and
commanders, and never distributed to any of the agents who were to participate
in the raid.(98)

      During the hearing before the subcommittees, several tactical experts
testified that the drafting of a written raid is an important part of developing
an overall operational plan. Indeed, the ATF's own National Response Plan, which
was drafted to establish ``consistent policies and procedures'' when several
Special Response Teams are involved in an operation,(99) requires that a written
plan ``for managing the critical incident or major ATF operation'' be produced
before the operation begins.(100) Yet this was not done in this case.

      3. Lack of depth in the raid plan

      One problem with overall planning was the fact that no written plan existed.
A factor that may have exacerbated the losses the ATF sustained on February 28
was the lack of depth in the oral raid plan. The plan involved agents in two
cattle cars driving up an exposed driveway to the front of the Davidian
residence and running out of the cars, with one group storming through the front
doors while the other went to the side of the building, climbed ladders carried
by agents onto the roof and in through the second-story windows.(101) There was
little else to the plan and, importantly, little or no discussion of what might
go wrong.

      There was almost no training given on how to withdraw from the
residence.(102) Even the written plan created after the raid and given to the
Texas Rangers during their investigation (which was never distributed to the
commanders or any agents in advance of the raid) devoted much of its 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.(103)

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

      The Treasury Department Report states ``the failure of the planners to
consider that their operation might go awry and prepare for that eventuality is
tragic, but somewhat understandable.''(104) It notes that most ATF agents were
used to operations going without incident, or at least being resolved in favor
of the ATF, and that the only other ATF operation similar in magnitude to the
one against the Davidians had been resolved peacefully. The report places
stronger blame on ATF's national leadership for this failure, calling its
failure to ensure that some contingency planning was done ``simply
unacceptable.''(105)

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

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

      Another fact which indicates a lack of skill on the part of both senior ATF
officials and the ATF on-site commanders, particularly overall incident
commander Chojnacki, is the fact that the Special Response Teams (SRT's)
involved in conducting the operation trained together for only 3 days prior to
the operation.(106) The ATF does not maintain a large standing force of
specially trained agents which can be dispatched to the site of a disturbance,
such as the FBI's Hostage Rescue Team. Instead, the ATF put together its team
for the operation against the Davidians by combining special response teams from
several of the ATF's regional offices.

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

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

      The subcommittees have learned that when the Texas National Guard was asked
to provide helicopters to the ATF, the purpose given was that they would be used
as an observation platform or command and control platform.(107) When the
National Guard pilots arrived at Fort Hood to train with the ATF the day before
the raid they learned for the first time that the ATF intended to use the
helicopters as a diversion just before the raid was to begin. The helicopters
were to fly close to the residence, attracting the attention of those inside to
the back side of the building, while the ATF agents arrived at the front of the
structure.(108)

      While the National Guard was conducting its role in its Title 32
status,(109) and so was not limited by the terms of the Posse Comitatus
Act,(110) this change in plan is still troubling. The failure to inform National
Guard commanders of the true role for the National Guard troops and equipment
well in advance of the raid is an omission that is, at best, additional evidence
of the poor planning for the raid done by the ATF commanders. At worst, this may
have been an attempt by ATF commanders to obtain operational assistance that,
while not prohibited by law, might have been declined by the Governor of Texas
as commander of the Texas N