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V. Military Involvement in the Government Operations at Waco
U.S. military involvement is one of the least explored and most
misunderstood elements of the events that took place near Waco, TX in
1993. The Treasury Department Report dedicated only 3\1/2\ of 220 pages
to explaining the military's involvement, and the Department of Defense
and National Guard Bureau have only recently taken an interest in
addressing some of the military issues that Waco raised.
a. the expansion of military assistance to law enforcement
Historically in America, there has been a general principle that the
military should not be involved in civilian law enforcement. Congress
codified this principle by enacting the Posse Comitatus Act \127\ in
1878. The subcommittees have found that subsequent congressional actions
and legal cases have eroded the Posse Comitatus Act to an alarming
degree and blurred its legal restrictions.
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\127\ Posse Comitatus means ``the power or force of the county. The
entire population of a county above the age of fifteen, which a sheriff
may summon to his assistance in certain cases; as to aid him in keeping
the peace, in pursuing and arresting felon, etc.'' Black's Law
Dictionary (1st ed. 1891) (citing 1 William Blackstone, Commentaries
343).
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In determining whether the military assistance provided at Waco was
illegal, the subcommittees reviewed the current status of the Posse
Comitatus Act and other laws governing the use of the military in
civilian law enforcement, why changes in the laws have occurred and what
effects those changes have had on the use of the military in civilian
law enforcement.\128\ Additionally, the subcommittees have addressed the
common practice of Governors using National Guard (NG) personnel across
State lines.
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\128\ Roger Blake Hohnsbeen, Fourth Amendment and the Posse
Comitatus Act Restrictions on Military Involvement in Civil Law
Enforcement, 54 Geo. Wash. L. Rev. 404, 404 (1986).
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1. The Posse Comitatus Act
a. Overview of the law
The Posse Comitatus Act was enacted in the United Stated in 1878 in
response to the improper use of military troops in the South during the
post-Civil War Reconstruction period.\129\ The Posse Comitatus Act
provides:
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\129\ ``Until passage of the Posse Comitatus prohibition in 1878,
the improper use of troops became a common method of aiding revenue
officers in suppressing illegal production of whiskey; assisting local
officials in quelling labor disturbances; and insuring the sanctity of
the electoral process in the South by posting guards at polling
places.'' Clarence I. Meeks, III, Illegal Law Enforcement: Aiding Civil
Authorities in Violation of the Posse Comitatus Act, 70 Mil. L. Rev. 83,
90 (1975).
Whoever, except in cases and under circumstances expressly
authorized by the Constitution or Act of Congress, willfully
uses any part of the Army or the Air Force as a posse comitatus
or otherwise to execute the laws shall be fined not more than
$10,000 or imprisoned not more than 2 years, or both.\130\
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\130\ 18 U.S.C. Sec. 1385 (1988). A post-Waco amendment changed the
penalty portion to read, ``shall be fined under this title or imprisoned
not more than two years, or both.'' Violent Crime Control and Law
Enforcement Act of 1994 Sec. 330016(L), Pub. L. 103-322, 108 Stat. 2147.
However, as early as the Magna Carta, prohibitions against the use
of the military in civilian affairs were being established.\131\ These
prohibitions are based on the principle that the military should never
be employed against the citizenry of the Nation it supports and is
buttressed by the clear separation, in this country, between civilian
authority and military support for that authority. The clear separation
between civilian and military authority is embodied in the Declaration
of Independence \132\ and the U.S. Constitution.\133\
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\131\ Congressional Research Service, The Posse Comitatus Act &
Related Matters: The Use of the Military to Execute Civilian Law 3
(1995) (citing Magna Carta, ch. 39 (1215)).
\132\ The Declaration of Independence (U.S. 1776).
\133\ U.S. Const. Amend. II, III.
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Nevertheless, no one has ever been prosecuted for violating the
Posse Comitatus Act.\134\ Due in part to a creeping acceptance of
military involvement in law enforcement actions, the Posse Comitatus Act
has been invoked very rarely.\135\ Until the criminal cases arising from
the 1973 Indian uprising at Wounded Knee,\136\ civilian law enforcement
apparently relied upon military support without fear of recourse.\137\
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\134\ Meeks, supra note 129, at 128.
\135\ Id.
\136\ In the 1973 Wounded Knee uprising, a dissident Indian group
forcibly took control of the Wounded Knee Village on Pine Ridge
Reservation, SD. This group entered a U.S. Post Office by force, held
hostages and refused to allow Federal investigators into the area. In
support of Federal law enforcement agents, military personnel provided
an array of assistance, closely resembling the military assistance
provided to Federal law enforcement agents during the Waco incident.
\137\ Peter M. Sanchez, The ``Drug War:'' The U.S. Military and
National Security, 34 A.F. L. Rev. 1, 109 (1991).
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Specifically, at Wounded Knee, the Nebraska National Guard and U.S.
Air Force personnel conducted aerial reconnaissance photography of the
site, while the South Dakota National Guard maintained military vehicles
in the area of the siege.\138\ Two regular Army colonels (Title 10
personnel) \139\ were present at Wounded Knee as Defense Department
``observers''; however, these military personnel also provided ``advice,
urging and counsel . . . to Department of Justice personnel on the
subjects of negotiations, logistics and rules of engagement.'' \140\
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\138\ As at Wounded Knee, aerial reconnaissance photography and
maintaining military vehicles were also conducted by military personnel
at Waco.
\139\ These two soldiers at Wounded Knee were on active duty, i.e.
full-time duty in the active military service of the United States. See
10 U.S.C. Sec. 101 (d)(1), codified as amended by Pub. L. 102-484.
\140\ Meeks, supra note 129, at 121. Ironically, approximately 10
active duty Special Forces soldiers were present at Waco as
``observers'' during various stages of the post-raid siege, including
the day of the use of CS riot control agent and the fire. Additionally,
at the request of the commander of the FBI Hostage Rescue Team, two
senior Army Special Forces officers were present when Attorney General
Reno was briefed on the FBI's plan to end the standoff. Prior to the
meeting, one of those officers visited the site of the standoff by
helicopter accompanied by the HRT commander.
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Four criminal cases resulted from the Wounded Knee incident. Each
raised similar challenges to the military's involvement.\141\ The
diverse rulings on these challenges raised questions about the legality
of much of the military assistance being broadly and regularly provided
to law enforcement agencies. The courts in United States v. Banks and
United States v. Jaramillo found certain military activities to be in
violation of the Posse Comitatus Act, while the court in United States
v. Red Feather found the military involvement at Wounded Knee
permissible.\142\ The Red Feather court determined, that as long as
military assistance was passive or indirect, such assistance did not
violate the Posse Comitatus Act.\143\
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\141\ United States v. Jaramillo, 380 F. Supp. 1375 (D.Neb. 1974),
appeal dismissed, 510 F.2d 808 (8th Cir. 1975); United States v. Banks,
383 F.Supp. 368 (D.S.D. 1974); United States v. Red Feather, 392 F.Supp.
916 (D.S.D. 1975); United States v. McArthur, 419 F.Supp. 186 (D.N.D.
1976), aff'd sub nom., United States v. Casper, 541 F.2d 1275 (8th Cir.
1976), cert. denied, 430 U.S. 970 (1977).
\142\ Congressional Research Service, supra note 54, at 23 n.63. The
court in McArthur ruled that the Posse Comitatus Act is violated only
when the civilians are subjected to the direct ``regulatory,
proscriptive or compulsory'' aspect of the military involvement. United
States v. McArthur, 419 F.Supp. at 194.
\143\ Sanchez, supra note 137.
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In order to resolve questions raised by the Wounded Knee cases, and
at the urging of the Defense Department and Justice Department, Congress
adopted the above distinctions set forth by the Red Feather court \144\
and, in 1981, enacted a number of general exceptions to the Posse
Comitatus Act.\145\ In general, the 1981 exceptions authorized the
military to make available to civilian law enforcement agencies
information collected during military operations, training and advice,
the use of military equipment and facilities, and the use of some
Defense Department personnel.\146\ However, direct participation in law
enforcement activities like search, seizure and arrest was
prohibited.\147\
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\144\ Id. at 7 (citing to 10 U.S.C. Sec. 371-375, as subsequently
amended by Pub. L. No. 100-456, 102 Stat. 117 (1988)).
\145\ Congressional Research Service, supra note 54, 23. See also
Defense Department Authorization Act of 1982 Sec. 905, Pub. L. No. 97-
86, 95 Stat. 1114, as amended by National Defense Authorization Act
Fiscal Year 1989 Sec. 1004, Pub. L. No. 100-456, 102 Stat. 2043
(codified as amended at 10 U.S.C. Sec. 377).
\146\ 10 U.S.C., Ch. 18.
\147\ Id.
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b. The war on drugs
By the mid-1980's, there was little question that the Nation was
struggling with a major increase in illegal drug importation and use,
and Congress summoned a massive increase of resources to confront this
modern scourge. The fiscal year 1989 Department of Defense Authorization
Act significantly expanded the role of the National Guard in support of
law enforcement agencies.\148\ The following year, the role of the
military was expanded further in the fiscal year 1990 Department of
Defense Authorization Act which ``directed the U.S. Armed Forces, to the
maximum extent possible, to conduct military training in drug
interdiction areas.'' \149\
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\148\ JTF-6 Operational Support Planning Guide (citing Pub. L. 100-
456, 102 Stat. 1218, 2042, codified at 10 U.S.C. Sec. 124 [See Documents
produced to the subcommittees by the Department of the Treasury T08786,
T08788, at Appendix [hereinafter Treasury Documents]. The Appendix is
published separately.] See also 32 U.S.C. Sec. 112 for the National
Guard.
\149\ JTF-6 Operational Support Planning Guide, Treasury Documents
T08786, T08788. See also 10 U.S.C. Sec. 371(b).
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After Congress and the courts expanded permissible military
assistance to civilian law enforcement and the Defense Department
assumed the lead in the war on drugs, military assistance to law
enforcement greatly increased. This increased use of military personnel
is most noticeable with the National Guard because of fewer legal
restrictions on its use.
c. The National Guard and the Posse Comitatus Act under
current law
The National Guard, for reasons that are at least partially
historical, is not subject to the same legal restrictions placed on
active duty and reserve military personnel with regard to involvement in
civilian law enforcement.\150\ Having evolved from the State militia
concept, the National Guard holds the unique position as both a State
and a national military force. Thus, a National Guard member can wear a
U.S. Army or Air Force uniform, fly in a military aircraft, receive
Federal military pay and allowances, be covered by the Federal Torts
Claims Act and Federal military medical care. Yet, he or she can perform
this military service not only as a member of the U.S. Armed Forces, but
as a member of the State militia, having a Governor for a Commander-in-
Chief rather than the President of the United States.
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\150\ Rich, The National Guard, Drug Interdiction and Counterdrug
Activities, and Posse Comitatus: The Meaning and Implications of ``in
Federal Service,'' 35 Army Law. 1 (1994). Active and Reserve military
personnel are both subject to the proscriptions found in the Posse
Comitatus Act, while the Posse Comitatus Act only applies to National
Guard personnel when they have been called ``into federal service.''
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The ability of the National Guard to perform military service in
this capacity exists because the National Guard has three different
``statuses'' under the law. The first two are a Title 32 status (also
called ``state active duty'' status) and a ``pure state'' status. Under
either a Title 32 or ``pure state'' status, National Guard troops are
under the command and control of the Governor of their State and the
Posse Comitatus Act does not apply.\151\ However under current law,
while the National Guard is in a Title 32 status and under the command
and control of the Governor, it is still funded with Federal funds.\152\
An example of the National Guard being in a Title 32 status is when
National Guard personnel are conducting counterdrug operations.
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\151\ During the Waco incident, the National Guard was operating
under Title 32 or ``state active duty'' status as it provided assistance
to the ATF and FBI. By contrast, the status of the Nebraska and South
Dakota National Guard units during the 1973 Wounded Knee incident is
unclear, since the courts did not rule on whether the Posse Comitatus
Act applied to the National Guard personnel based upon their status. In
Jaramillo, the court did not indicate whether or not the National Guard
had been ``federalized.'' Similarly, the Red Feather court decided the
issue of improper military assistance based on whether the assistance
was ``active'' or ``passive,'' not on the legal status of the National
Guard units.
\152\ In a pure State status, no Federal funding occurs.
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The third National Guard status is called ``Title 10'' or ``federal
active duty'' status. Title 10 status occurs when Congress or the
President takes affirmative action to ``federalize'' a National Guard
unit as in the case of a natural disaster or civilian disturbance. Only
in a federalized status are National Guard troops under command and
control of the President of the United States. Under this status, the
Posse Comitatus Act applies.
Aside from the Title 10 status and Wounded Knee cases, the Posse
Comitatus Act has been widely interpreted as not applying to the
National Guard. Thus under current law, the leading interpretation of
the Posse Comitatus Act is that unless otherwise prohibited by policy
directive, regulation or State law, the National Guard can participate
actively in civilian law enforcement. The National Guard, however, does
implement similar proscriptions as the Posse Comitatus Act by regulation
even while in a Title 32 status.\153\
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\153\ Rich, supra note 150. The National Guard Bureau policy on
authorized support to law enforcement currently lists 16 approved
counterdrug missions. Any mission outside the parameters of the approved
list must receive Department of Defense approval. See also NGB Reg. 500-
2 and National Guard Counterdrug Coordinator's Handbook.
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d. Active duty personnel & the Posse Comitatus Act under
current law
Unlike the National Guard, active duty military personnel clearly
fall within the proscriptions of the Posse Comitatus Act. Any assistance
they provide to civilian law enforcement personnel must be either within
a statutory exception or expressly authorized by the U.S. Constitution.
Many of the statutory exceptions to the Posse Comitatus Act have
been enacted in the last 15 years and evolved from a desire to support
counterdrug efforts. Title 10 U.S. Code, Section 371 et. seq. outlines
the types of routine law enforcement assistance that active duty
military personnel may provide. Such assistance, includes equipment,
training and advice.
One of the most important issues for a civilian law enforcement
agency in deciding whether to seek and accept military assistance, is
whether the agency must reimburse the military for the assistance
provided. Generally, a civilian law enforcement agency must reimburse
the military for the cost of assistance, except under three
circumstances. Reimbursement may be waived if the assistance: (1) is
provided in the normal course of military training; \154\ (2) results in
a benefit to the unit providing the support ``that is substantially
equivalent to that which would otherwise be obtained from military
operations or training;'' \155\ or (3) is for counterdrug
operations.\156\
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\154\ 10 U.S.C. Sec. 377.
\155\ Id.
\156\ Pub. L. No. 102-190 Sec. 1088, 105 Stat. 1484 (1991). See also
Pub. L. No. 101-510 Sec. 1004, 104 Stat. 1629 (1990) and Pub. L. No.
101-189 Sec. 1212, 103 Stat. 1567 (1989).
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The counterdrug statutory waiver has come to mean in practice that
before a waiver of reimbursement can occur under the counterdrug
operation exception, the civilian law enforcement agency must
demonstrate the existence of a sufficient ``drug nexus'' in the
investigation.\157\ Although there is no defined standard for what
constitutes a ``drug nexus,'' it is essentially a quantum of credible
evidence that links an otherwise non-drug investigation with the
existence, or well-founded belief of the existence, of significant
illegal drug crimes.
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\157\ Office of the Department of Defense coordinator for Drug
Enforcement Policy and Support Memorandum, Subject: Priorities,
Policies, and Procedures for DoD CD Support to Domestic Law Enforcement
Agencies, 26 Jan. 95. Defense Documents 109-115, at 111.
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This waiver for counterdrug operations developed when Congress
created a specialized subset of military assistance for counterdrug
operations in 1990.\158\ Military assistance for counterdrug operations
provided under this statutory authority is on a non-reimbursable basis,
which means civilian law enforcement agencies do not have to reimburse
the military for the assistance. Instead, Congress provides a separate
fund to the military for this type of assistance. However, these funds
must be used solely for military assistance to civilian law enforcement
agencies for counterdrug operations. Significant portions of military
assistance provided to ATF and even the FBI were funded through these
counterdrug funds.
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\158\ Id.
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A further formalization of the military's increased support to the
war on drugs involved the creation of Joint Task Forces \159\ between
civilian drug law enforcement agencies and the regular army. The Defense
Department created these Joint Task Forces to increase the coordination
between the military and civilian law enforcement agencies and to
increase the civilian agencies' accessibility to regular army assets for
counterdrug operations. For the Southwest border region where the ATF
investigation of the Davidians took place, Joint Task Force-Six (JTF-6)
\160\ was responsible for the operational support to ATF by active duty
military personnel.
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\159\ In early 1989, the Defense Department, at the direction of
Congress and the President, ``tasked four war fighting, regional
Commander's in Chief (CINCs) to carry out the drug interdiction mission.
The CINC of Atlantic Command (USCINCLANT) created Joint Task Force, JTF-
4 at the Key West Naval Air Station, Florida. The Pacific Command CINC
(USCINCPAC) established JTF-5 at the Alameda Naval Air Station,
California. And, the CINC for Continental Defense (USCINCFOR)
established JTF-6 at Fort Bliss, Texas.'' Sanchez, supra note 137, at
17.
\160\ JTF-6 was created in 1989 to serve as the planning and
coordinating (operational) headquarters for military assistance to
counterdrug operations of drug law enforcement agencies. JTF-6 is
located at El Paso, TX (Fort Bliss), and supports the Federal, State,
and local law enforcement agencies within the southwest border region.
It's region of responsibility mirrors that of Operation Alliance and
includes the States of Texas, New Mexico, Arizona, and Southern
California. [JTF-6 Operational Support Planning Guide, Treasury
Documents T08786-08789.] As of October 1, 1995, JTF-6's area of
responsibility expanded from the southwest border to the entire
continental United States, Puerto Rico and the U.S. Virgin Islands.
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JTF-6's Operational Support Planning Guide, in explaining its
support capabilities, states, ``No list of military support capabilities
is ever all-inclusive. Innovative approaches to providing new and more
effective support to law enforcement agencies are constantly sought, and
legal and policy barriers to the application of military capabilities
are gradually being eliminated.'' \161\ This quote from the JTF-6
Operation Support Planning Guide clearly and succinctly describes the
weakening of the Posse Comitatus Act proscriptions since the 1973
Wounded Knee cases. This observation foreshadowed the potential for
military involvement that was realized eventually at the 1993 Waco
events.
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\161\ JTF-6 Operational Support Planning Guide, Treasury Documents
T08786, 08791 (emphasis added).
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2. Interstate use of National Guard by Governors
There is a common practice among the States of using National Guard
personnel across State lines.\162\ States enter into memoranda of
agreement with one another which provide for the mutual use of National
Guard forces across State lines. However, these agreements raise several
legal concerns, particularly when the National Guard personnel are used
to assist civilian law enforcement.
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\162\ The interstate use of National Guard personnel occurred at
Waco with the use of the Alabama National Guard in Texas.
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Although a thorough examination of memoranda of agreement is far
beyond the scope of the subcommittees' Waco investigation, the most
significant legal issues arising from the use of memoranda of agreement
will be highlighted. While the National Guard has attempted to address
these legal issues, the Defense Department and the States have failed to
adequately address the potential legal problems which memoranda of
agreement raise. Two major legal concerns are (1) whether these
memoranda of agreement, or other similar agreements between states are
either a treaty, an alliance, or confederation in violation of the U.S.
Constitution, or at the very least a compact requiring congressional
ratification; and (2) whether these memoranda of agreement or similar
agreements attempt to supersede State constitutions and statutes without
legal authority.
a. States' power to enter memoranda of agreement
Only the Congress \163\ and the President (to the extent presently
delegated by law) have the power to use military force across State
lines. Many argue that any agreement between States to concert their
military forces for the use of force for any purpose constitutes a
treaty or an alliance.\164\ However, the U.S. Constitution specifically
prohibits States from entering into treaties in any instance,\165\ and
into alliances or confederations without congressional consent.\166\
Applying such an argument would mean that the use of the National Guard
for law enforcement purposes across State lines is strictly prohibited
by the U.S. Constitution. The National Guard Bureau takes the position
that such interstate use of force is prohibited, but the contrary
opinion is advanced by the Defense Department General Counsel and the
Army Staff Judge Advocate.\167\
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\163\ ``The Congress shall have Power . . . to provide for calling
forth the Militia to execute the laws of the Union, suppress
insurrections, and repel invasions.'' U.S. Const. art. I, Sec. 8, cl.
15.
\164\ The U.S. Supreme Court, in U.S. Steel Corp. v. Multistate Tax
Commission, 434 U.S. 452 n.12 (1978) discussed the distinctions between
treaties, compacts and mere agreements. ``Military alliances'' are cited
as examples of treaties. The Court quotes Story to the effect that:
``Treaties, alliances, and confederations . . . generally connote
military and political accords and are forbidden by the States. Compacts
and agreements, such as questions or boundary; interests in land situate
in the territory of each other; and other internal regulations for the
mutual comfort and convenience of States bordering each other.'' 434
U.S. at 464. See also 32 U.S.C. Sec. 109 (b) which infers that States do
not have the authority to employ their militia (i.e., the National
Guard) outside their boundaries, ``Nothing in this title limits the
right of a State or Territory . . . to use the National Guard or its
defense forces authorized by subsection (c) within its border in time of
peace, or prevents it from organizing and maintaining police or
constabulary.''
\165\ The treaty-making power is exclusively vested by the
Constitution, in the President, with the advice and consent of the
Senate. U.S. Const. art. 2, Sec. 2, cl. 1.
\166\ U.S.C.A. Const. art. I, Sec. 10, cl. 1.
\167\ National Guard Draft Legal Memorandum, ``Cross Border use of
National Guard for Law Enforcement: Constitutional Issues and Need for
Congressional Ratification of Interstate Agreements'' (Received by
subcommittees on March 12, 1996).
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The National Guard Bureau further argues, also contrary to the
Defense Department General Counsel and the Army Staff Judge Advocate,
that even if such agreements among States are not treaties, they are at
the very least compacts which require the consent of Congress.\168\ If
an agreement among States results in a potential encroachment on Federal
authority or a tendency to enhance State power, then it would constitute
a compact requiring congressional consent.\169\ The National Guard
Bureau argues that these National Guard memoranda of agreement enhance
State power by allowing Governors to command militia employed for force
across State lines, and therefore, encroach on the President's power to
either deny or command and control such interstate use. Thus, the
National Guard Bureau believes they require congressional
ratification.\170\
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\168\ U.S. Const. art. I, Sec. 10, cl. 3. ``Not all agreements
between states are subject to strictures of this clause; application of
this clause is limited to agreements that are directed to the formation
of any combination tending to increase the political power in the states
and which may encroach on or interfere with the just supremacy of the
United States.'' U.S. Steel Corp. v. Multistate Tax Commission, 434 U.S.
452 n.43 (1978) (citing U.S. Const. art. 1, Sec. 10, cl. 3). See also,
Virginia v. Tennessee, 148 U.S. 503 (1893).
\169\ ``Appellants further urge that the pertinent inquiry is one of
potential, rather than actual, impact on federal supremacy. We agree.''
U.S. Steel Corp. v. Multistate Tax Commission, 434 U.S. 452, 472 (1978).
This is the current position of the National Guard Bureau. However, the
position of the Defense Department and the Army SJA is that these
agreements violate the Compact Clause of the Constitution only if they
actually encroach of Federal power or enhance State power.
\170\ National Guard Draft Legal Memoranda, supra note 167.
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Currently, none of the memoranda of agreement (or compacts)
involving the use of National Guard personnel across State lines for law
enforcement purposes have been ratified by Congress. Although the
Southern Governors' Association recently amended its Southern Regional
Emergency Management Assistance Compact at the advice of the National
Guard Bureau, to preclude the use of force across State lines and seek
congressional approval of the compact, most of the interstate National
Guard assistance to law enforcement agencies is occurring under the
guise of memoranda of agreement, not congressionally approved compacts.
Moreover, this issue expands beyond direct involvement in law
enforcement actions, such as Waco, to the use of the National Guard for
interstate assistance in disaster \171\ and emergency relief. In fact,
the issue has arisen with respect to the proposed use of non-Georgia
National Guard units to assist the Georgia National Guard during the
1996 Summer Olympics, in Atlanta, GA.
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\171\ The subcommittees have been informed during meetings and
follow-up discussion with National Guard Bureau personnel that the
Bureau opposed the loan of Puerto Rico National Guard personnel to the
Virgin Islands to suppress looting during Hurricane Marilyn based on
these constitutionality concerns.
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b. Memoranda of agreement may attempt to supersede State law
without legal authority
During the ATF investigation of the Branch Davidians, National Guard
assistance to ATF came not only from the Texas National Guard, but from
the Alabama National Guard.\172\ At the behest of the ATF, the Adjutant
General of the Texas National Guard requested and received support from
the Alabama National Guard to take aerial photographs. Those aerial
photographs were taken on January 14, 1993. This assistance was
authorized by a ``memorandum of agreement'' between the Adjutant
Generals of the Texas and Alabama National Guards which simply provided
for the use of the Alabama National Guard at the request of the Texas
Adjutant General. However, a review of the State laws of both Texas and
Alabama raises legal concerns with the legal authority for conducting
this interstate National Guard operation.
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\172\ After Action Report of Texas National Guard Counterdrug
Support in Waco, TX as (April 29, 1993). [See Documents produced to the
subcommittees 2344, at Appendix [hereinafter Defense Documents]. The
Appendix is published separately.]
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Texas law requires that, ``[a] military force from another state,
territory, or district, except a force that is part of the United States
armed forces, may not enter the state without the permission of the
governor.'' \173\ Yet, National Guard personnel who were involved in
post-raid National Guard investigations of the Waco incident have stated
that Governors Richards did not approve the use of the Alabama National
Guard. Military documents indicate that Governor Richards was unaware of
the extent of even the Texas National Guard's involvement until after
the failed raid occurred.
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\173\ Tex. Code Ann., Title 4, Sec. 431.001.
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An examination of Alabama law indicates that the Alabama National
Guard had no authority to conduct military operations outside Alabama
because the Governor's authority over the Alabama National Guard appears
only to extend to the State's boundaries.\174\ Thus, it appears that the
Alabama National Guard entered and conducted military operations in
Texas without the proper authority to do so.
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\174\ Ala. Code Sec. 31-2-7.
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If the Alabama Governor's command and control authority ended at the
Alabama State line and Gov. Richards did not approve the Alabama
National Guard's entrance into the State of Texas, then several
questions are raised: Which governor had command and control of the
Alabama National Guard unit? Who (Texas, Alabama or the Federal
Government) would have been liable for claims of injury and property
damage had any occurred? If the Alabama unit is considered to be
operating outside its scope of employment, would its personnel lose
Federal Torts Claims Act's protection against personal liability? And,
would the National Guard personnel risk losing their military health
care and other military benefits in the event of an accident?
Memoranda of agreement currently used fail to address the
intricacies which State laws present and they do not appear to have
legal authority to supersede State constitutions and statutes. Because
State laws differ, these questions must be addressed on a case by case
basis if States are going to engage in the interstate use of National
Guard personnel.
b. the bureau of alcohol, tobacco and firearms' request for military
assistance and the military assistance actually provided
The pre-raid military assistance in Waco was provided through active
duty and National Guard counterdrug units based on an alleged drug
nexus. Much of the post-raid military assistance to the FBI and ATF also
came from counterdrug units and funds. Central to understanding how the
military became involved in the Waco matter is an understanding of how
ATF's initial request for military assistance, based on alleged drug
involvement, progressed.
1. Overview
a. The process for requesting military assistance along the
southwest border
Military support to counterdrug operations along the Southwest
border of the United States is designed ``to assist law enforcement
agencies in their mission to detect, deter, disrupt, and dismantle
illegal drug trafficking organizations.'' \175\ Thus, military support
acts as a ``force multiplier,'' allowing law enforcement agencies to
focus on ``interdiction seizure actions.'' \176\
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\175\ JTF-6 Operational Support Planning Guide, Treasury Documents
T08786.
\176\ Id. at T08790.
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When a drug law enforcement agency \177\ requests counterdrug
military assistance along the Southwest border, that request is received
and reviewed by Operation Alliance, which acts as the
clearinghouse.\178\ The request is then coordinated with support
organizations such as JTF-6 \179\ , the North American Aerospace Defense
Command (NORAD),\180\ the Regional Logistics Support Office \181\ and
the pertinent National Guard. Operational support is provided as a joint
effort by JTF-6, NORAD and the National Guard.\182\ Non-operational
support which would include, but is not limited to, equipment,
institutional training, and use of facilities would be provided by the
Regional Logistics Support Office.\183\
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\177\ A drug law enforcement agency is a law enforcement agency that
has jurisdiction over drug laws. ATF was authorized to investigate
narcotics traffickers who use firearms and explosives as tools of their
trade, especially violent gangs.
\178\ Operation Alliance is the clearinghouse for all civilian law
enforcement requests for military support along the Southwest border.
Operation Alliance reviews all requests and coordinates the requests of
Federal, State and local agencies, and determines the appropriate
military agency to provide the support. JTF-6 Operational Support
Planning Guide, Treasury Documents T08786, 08790.
\179\ See note 160 and accompanying text.
\180\ NORAD incorporated the counterdrug mission into its command
structure in 1989.
\181\ The Regional Logistics Support Organizations are under the
direct supervision of the Office of the Defense Department Coordinator
for Drug Enforcement Policy and are the primary point of contact for
Drug Law Enforcement Agency requests for equipment i.e., non-operational
support.
\182\ JTF-6 and NORAD employ active duty military personnel. The
State National Guard personnel are in a Title 32 status.
\183\ JTF-6 Operational Support Planning Guide, Treasury Documents
T08786, 08789.
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To receive assistance through Operation Alliance and from these
organizations, the civilian law enforcement investigation must involve
criminal violations of U.S. drug laws, i.e., have a ``drug nexus.''
Having initiated 232 Operation Alliance investigations through fiscal
year 1989,\184\ ATF was no stranger to Operation Alliance's counterdrug
mission and its drug nexus prerequisite. In fact, documents dated as far
back as March 15, 1990, designated ATF Special Agent Sarabyn, and ATF
Special Agent Pali, the ATF coordinator for Operation Alliance during
the Branch Davidian investigation, as ATF coordinators for military
assistance.\185\
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\184\ Hearings before the Subcommittee on the Treasury, Postal
Service, and General Government Appropriations of the House Committee on
Appropriations, 101st Cong., 2d Sess. 688, 695 (1991) (statement of
Stephen E. Higgins, Director, Department of Treasury, Bureau of Alcohol,
Tobacco and Firearms).
\185\ Memorandum from Special Agent Eddie Pali, Tactical Operations
Coordinator to the ATF SAC's in Dallas, Houston, and Los Angeles (March
15, 1990). Treasury Documents T006661.
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b. Chronology of ATF's request
The chronology of ATF's request for military assistance provides
insight into how early ATF wanted military assistance, how the military
and ATF became concerned with the drug nexus issue, and how the
military's concerns changed the scope of military assistance provided.
As early as November 1992, ATF agents were discussing the need for
military support with Lt. Col. Lon Walker, the Defense Department
representative to ATF.\186\ In his ``summary of events'' \187\ November
entry, Lt. Col. Walker specifically states that, at that time, he was
not told of any drug connection.\188\
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\186\ Lt. Col. Lon Walker's summary of events. Treasury Documents
T007884.
\187\ Id.
\188\ Id.
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By December 1992 (almost 3 months before the raid), ATF agents were
requesting Close Quarters Combat/Close Quarters Battle \189\ (CQB)
training by U.S. Army Special Forces soldiers for ATF agents.\190\ A
basic CQB course takes a minimum of 2 months and advanced CQB training
takes a minimum of 6 months. Moreover, CQB is the type of specialized
training a terrorist or hostage rescue team such as the FBI Hostage
Rescue Team would use. CQB is also a perishable skill requiring
frequent/continuous training that ATF, as an agency, is not designed to
maintain or utilize. Somewhat surprisingly, neither the documents from
the Treasury investigation, nor the Treasury Report, itself, never refer
to this request.
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\189\ Close Quarters Battle involves ``combative techniques which
include advanced marksmanship, use of special purpose weapons,
munitions, demolitions and selective target engagement conducted by
small, specially trained units against static or halted man-made targets
to defeat a hostile force with a minimum of collateral damage.''
Headquarters, U.S. Army Special Forces Command, Policy Letter on Close
Quarters Combat (CQC) Training (24 November 1993). The terms CQC and CQB
have been used interchangeably for a number of years. CQC is the
military doctrinally correct term. However, in this Report the
subcommittees will continue to use CQB since that was the term used
throughout the post-Waco investigations and the congressional hearings.
\190\ After discussions between the Special Operations Command and
Special Forces Command had taken place regarding U.S. Army Special
Forces Command (Airborne) participation in conducting CQB/SOT for drug
law enforcement agencies, the Commander of the U.S. Army Special
Operations Command (USASOC) informed the Commander of JTF-6 by military
message, dated 4 January 93 (within a very close proximity to ATF's
request for CQB), that the USASOC would provide CQB Special Operations
Training CQB/SOT training to law enforcement agencies. ``It is
anticipated that CQB/SOT training support requests may be filled by the
U.S. Army John F. Kennedy Special Warfare Center and School (USAJFKSWCS)
or other units that include CQB/SOT as part of their METL.'' The
memorandum goes on to state that USASOC and USASFC(A) have only agreed
to provide CQB/SOT instruction to the U.S. Border Patrol Tactical Unit
(BORTAC).
---------------------------------------------------------------------------
However, one military document furnished to the subcommittees as
part of their document request specifically states that no written
documentation is available on this extraordinary request by ATF for CQB
training.\191\ This is the case despite ongoing discussions in 1992 and
early 1993 within the senior ranks of the U.S. Army Special Operations
Command regarding the prudence of making SOT \192\ /CQB training
available to civilian law enforcement and foreign military
personnel.\193\ These discussions are significant because they again
foreshadow the potential use in civilian law enforcement of highly
specialized military training, designed and intended for military
operations.
---------------------------------------------------------------------------
\191\ ``SOF Assistance to Federal Law Enforcement in Waco, Texas.''
Defense Documents D-1116A.
\192\ SOT stands for Special Operations Training. Although SOT is
not an official military term for Special Operations Training, i.e., it
is an acronym for a course taught at the U.S. Army John F. Kennedy
Special Warfare Center and School (USAJFKSWCS), it will be used here to
identify Special Operations Training because that is how it is used by
the military documents referred to by the subcommittee investigators.
See Headquarters, USASFC (A) Policy Letter on Close Quarters Combat
Training (24 Nov. 1993) (unnumbered) for discussion on proper usage of
SOT.
\193\ See memorandum of 3rd Special Forces Group, Headquarter's
Memorandum on Special Operations Training and Close Quarters Battl (21
Sept. 1992) (unnumbered); See also memorandum of U.S. Army Special
Forces Command (Airborne) on USASFC policy for conducting counterdrug
operations in the continental United States (23 Feb. 1993) (unnumbered)
and Headquarters U.S. Army Special Forces Command (Airborne) Policy
Letter on Close Quarters Combat Training (24 Nov. 1993) (unnumbered).
---------------------------------------------------------------------------
On December 4, 1992, several ATF Special Agents, including the SAC's
of the Dallas and Houston ATF offices, met at Houston's ATF field office
for the first time to discuss the Waco investigation.\194\ In attendance
were SAC Phillip J. Chojnacki; SAC Ted Royster; Assistant Special Agent
in Charge James Cavanaugh; Resident Agent in Charge Earl K. Dunagan;
Special Agents Aguilera, Lewis, Petrilli, Buford, K. Lattimer, Williams,
Carter, and John Henry.\195\ Also present at that meeting was Lt. Col.
Lon Walker, the Defense Department representative to ATF. Lt. Col.
Walker's notes of the meeting reveal that he explained to those present
``that the military probably could provide a great deal of support and
[that he] suggested things like aerial overflight thermal photography.''
\196\ Lt. Col. Walker's notes also state that he explained ``that
without a drug connection the military support would be on a
reimbursable basis.'' \197\ This reference to reimbursement is
significant because it reveals that military aid was, as of that date,
understood to require reimbursement by ATF unless a drug nexus could be
identified and articulated with sufficient specification to warrant
military aid on a non-reimbursable basis. Lt. Col. Walker's December 4th
entry is followed by a handwritten note that states ``Aguilera said
there was no known drug nexus.'' \198\
---------------------------------------------------------------------------
\194\ Lt. Col. Lon Walker's summary of events. Treasury Documents
T007884.
\195\ Memorandum from Colleen Callahan and Robert Tevens to Geoff
Moulton and Lew Merletti, ``Chronology and Witnesses Re: Military
Support of ATF'' (July 14, 1993). Treasury Documents T004589.
\196\ Lt. Col. Lon Walker's summary of events. Treasury Documents
T007884.
\197\ Id.
\198\ Id.
---------------------------------------------------------------------------
On December 11, 1992, Special Agent Jose G. Viegra, the Resident in
Charge (RAC) of the Austin, TX ATF Office, met with representatives for
the Texas Governor's Office about the role of the military in any
potential ATF action involving the Davidians.\199\ Representatives of
the Texas Governor's Office present at the meeting were William R.
Enney, Texas State Interagency Coordinator and his assistant Lieutenant
Susan M. Justice, Assistant Interagency Coordinator of the National
Guard Counterdrug Support Program.\200\
---------------------------------------------------------------------------
\199\ Memorandum from Colleen Callahan and Robert Tevens to Geoff
Moulton and Lew Merletti, ``Chronology and Witnesses Re: Military
Support of ATF'' (July 14, 1993). Treasury Documents T004589.
\200\ Id. Mr. Enney was designated by Texas Governor Richards as the
Texas State representative for Defense Department coordination of the
Texas National Guard Counterdrug Support Program.
---------------------------------------------------------------------------
This meeting was requested by ATF to discuss specifically what types
of military assistance were available to the ATF for its raid on the
Branch Davidian residence \201\ in Waco, TX. During the meeting, Special
Agent Viegra was told that military assistance through Operation
Alliance would not be available unless there was a ``drug nexus.'' That
meeting constituted the second time in 8 days that ATF agents inquiring
about military assistance were told of a drug nexus prerequisite. At the
December 11, 1992, meeting, Enney asked the ATF agents to determine
whether a drug nexus did in fact exist.
---------------------------------------------------------------------------
\201\ The Branch Davidian residence was termed a ``compound'' by
ATF, during the investigation, and the media and other commentators
subsequently adopted this militaristic term for a fortified or highly
secure structure.
---------------------------------------------------------------------------
Three days after their meeting with ATF, the Texas counterdrug
representatives received a facsimile of a letter dated December 14,
1992, on ``Houston SAC letterhead'' from the RAC of the Austin ATF
office, Earl K. Dunagan, requesting military assistance from the Texas
Counterdrug Program.\202\ The military assistance requested from the
Texas National Guard was for aerial reconnaissance photography,
interpretation and evaluation of the photos, and transportation of ATF
agents aboard the aircraft during the reconnaissance.\203\ Although the
request did not mention suspected drug violations (drug nexus), as would
be required to secure non-reimbursable assistance or military assistance
from a counterdrug unit, Lt. Col. Pettit, the Texas Counterdrug Task
Force Commander, initialed his approval on the request.\204\
---------------------------------------------------------------------------
\202\ Memorandum from Colleen Callahan and Robert Tevens to Geoff
Moulton and Lew Merletti, ``Chronology and Witnesses Re: Military
Support of ATF'' (July 14, 1993). Treasury Documents T004589, T004590.
\203\ Id.
\204\ Id.
---------------------------------------------------------------------------
Lt. Col. Pettit told National Guard investigators that he provided
his approval because the request required another person's approval as
well.\205\ However this decision, in itself, raises several unanswered
questions. Did Lt. Col. Pettit assume a drug nexus existed or that one
was not needed? Did he believe that the request should be approved
despite the absence of legally required drug nexus? Or did he believe
that ATF would reimburse the National Guard? These questions repeat
themselves throughout the approval process, and are raised here to
illustrate the difficulties encountered in disentangling a past approval
of military aid involving a drug nexus.
---------------------------------------------------------------------------
\205\ Meeting with Army National Guard Brigadier General Sagsveen,
in Washington, DC (October 19, 1995).
---------------------------------------------------------------------------
Two days after Lt. Col. Pettit's approval, Special Agent Aguilera
informed Lt. Col. Walker on December 16, 1992, that he received a
facsimile from Mark Breault in Australia suggesting the existence of a
methamphetamine lab at the Branch Davidian residence.\206\ Mr. Breault
was a former Branch Davidian who left the group on bad terms, and
exhibited strong personal animosity toward Koresh and several of the
Davidians.
---------------------------------------------------------------------------
\206\ Memorandum from Colleen Callahan and Robert Tevens to Geoff
Moulton and Lew Merletti, ``Chronology and Witnesses Re: Military
Support of ATF'' (July 14, 1993). Treasury Documents T004589. This
document lists the date as Dec 17th. Lt. Col. Walker's Waco Summary of
Events lists the date as the 16th. Treasury Documents T007884.
---------------------------------------------------------------------------
The following day, December 17, 1992, SAC Phillip Chojnacki held a
meeting in his office with Special Agent Ivan Kallister, Special Agent
Davey Aguilera, and Lt. Col. Walker regarding the Waco
investigation.\207\ According to ATF, Lt. Col. Walker told SAC Chojnacki
during the meeting that the Defense Department could provide non-
reimbursable military support if there is a ``suspicion of drug
activity.'' \208\ Aguilera was subsequently instructed to ``actively
pursue information from his informants about a drug nexus.'' \209\
Additionally, ATF Intelligence Research Specialist Sandy Betterton
searched criminal records to determine if Branch Davidians had ``some''
prior drug offenses.\210\ It later was determined that only one Branch
Davidian had a prior narcotics conviction.\211\
---------------------------------------------------------------------------
\207\ Memorandum from Colleen Callahan and Robert Tevens to Geoff
Moulton and Lew Merletti, ``Chronology and Witnesses Re: Military
Support of ATF'' (July 14, 1993). Treasury Documents T004589.
\208\ Id.
\209\ Id.
\210\ Id.
\211\ Id.
---------------------------------------------------------------------------
January 6, 1993 was the first National Guard overflight of the
Branch Davidian residence and their auto body shop, called the ``Mag
Bag.'' This overflight was conducted by the Texas National Guard
Counterdrug unit in a UC-26 counterdrug aircraft. Forward Looking
Infrared (FLIR) \212\ videotape taken during the overflight indicated a
``hot spot'' inside the residence and three persons outside behind the
residence whom ATF designated as ``sentries.'' \213\ The Texas National
Guard conducted five more reconnaissance/surveillance overflights over
the Branch Davidian property from February 3, 1993, to February 25,
1993. These overflights were conducted to ``search for armed guards and
drug manufacturing facilities.'' \214\
---------------------------------------------------------------------------
\212\ A FLIR, also called a Thermal Imaging System (TIS), is a type
of photography which images thermal heat sources.
\213\ Memorandum from Special Agent Robert Tevens, ``Chronology and
Witnesses Re: Military Support of ATF'' (July 14, 1993). Treasury
Documents T004589, T004591.
\214\ Treasury Department Report at 44 n.18.
---------------------------------------------------------------------------
On the same day as the first National Guard overflight, January 6,
1993, Richard Garner, Chief of Special Operations Division of ATF,
drafted another request on ATF Headquarters letterhead directly to
Colonel Judith Browning, Director of Plans and Support, of the Office of
the Department of Defense Coordinator for Drug Enforcement Policy and
Support.\215\ ATF requested the loan of various office equipment, a
refrigerator, cots and sleeping bags to be made available on January 11,
1993. The letter states that the ATF was investigating violations of
``firearms and drug laws'' and requested the equipment as ``part of
Defense Department support for counterdrug effort.'' Col. Browning
responded by letter on January 15 approving the support to be provided
by the Regional Logistics Support Office \216\ in El Paso, TX.\217\ The
same questions asked of Lt. Col. Pettit above must be asked here of Col.
Browning. Here, as with Lt. Col. Pettit, key documentation justifying
the deployment of non-reimbursable military aid on the basis of a proven
or suspected drug nexus is missing. Yet, Col. Browning approved the
request and directed further ATF requests to be made directly to the
Regional Logistics Support Office in Texas.
---------------------------------------------------------------------------
\215\ Treasury Documents T004601, T004602. The proper procedure for
requesting military assistance along the Southwest border is to go
through Operation Alliance. Letter from Operational Alliance to Special
Agent Eddie Pali, ATF Coordinator for Operation Alliance (January 26,
1990). Treasury Documents T006663-006664. Despite ATF not following this
process, documents provided by Treasury indicate their agents were aware
the procedural requirements. Id.
\216\ See note 181.
\217\ Treasury Documents T004603.
---------------------------------------------------------------------------
Within a week after Col. Browning's response, Garner sent a further
request to Major Victor Bucowsky, the Officer-in-Charge of the Regional
Logistics Support Office requesting an MOUT \218\ site for Special
Response Team training, driver training and maintenance support for
Bradley fighting vehicles, seven Bradley fighting vehicles, and on-call
support in the event a siege occurred.\219\ This was the largest request
for assistance in Regional Logistics Support Office's history and
eventually had to be supplied by Texas National Guard because the
Regional Logistics Support Office was unable to handle a law enforcement
request of such magnitude.\220\
---------------------------------------------------------------------------
\218\ MOUT stands for Military Operations on Urbanized Training
``which would include all military actions that are planned and
conducted on a terrain complex where man-made construction impacts on
the tactical options available to the commander. These types of
operations are characterized by large-scale offensive and defensive
operations. The primary objective is to seize and hold ground using all
available means. This often results in extensive damage to the area.''
Memorandum from U.S. Army Special Forces Command regarding Policy Letter
on Close Quarters Combat (CQC) Training (November 24, 1993).
\219\ Treasury Documents T004606 (dated January 22, 1993), T004612.
Treasury Document T004610 is a duplicate of the letter except it is
dated January 21, 1993 and has handwritten notes along the border. The
notes along the border appear to indicate that JTF-6 was responsible for
the SRT training and ``No, T-32 TX'' is written next to the Bradley
training (T-32 apparently refers to Title 32).
\220\ Memorandum of interview from Special Agent Robert Tevens for
the Waco Administrative Review (September 14, 1993). Treasury Documents
T005397, T005399.
---------------------------------------------------------------------------
On February 2, 1993, Operation Alliance made a request to the
Commanding General of JTF-6 for the use of Special Forces personnel
assigned to his organization.\221\ Lt. Col. Philip W. Lindley,\222\ the
U.S. Army Special Forces Command Staff Judge Advocate, was notified of
this request and advised JTF-6,
---------------------------------------------------------------------------
\221\ Memorandum from Colleen Callahan and Robert Tevens to Geoff
Moulton and Lew Merletti, ``Chronology and Witnesses Re: Military
Support of ATF'' (July 14, 1993). Treasury Documents T004589, T004590.
\222\ At the time of the Waco incident Philip Lindley served as a
Major in the U.S. Army. However, since that time, he has been promoted
and testified before the subcommittees with the rank of the Lieutenant
Colonel. He will be referred to as Lt. Col. Lindley throughout the
Report.
. . . that Rapid Support Unit (RSU) \223\ assistance in actual
planning and rehearsal of proposed ``takedown'' could violate
posse comitatus law, expose RSU to liability. [A q]uestion also
arises as to appropriateness of RSU giving non-METL, \224\ i.e.,
SOT/CQB training to ATF.\225\
---------------------------------------------------------------------------
\223\ A Rapid Support Unit (RSU) is comprised of a Special Forces
Company with attached aviation asset. Rapid Support Unit Description
Paper. Defense Documents D-1353. The subcommittees are aware of no RSU
aviation assets being used at Waco. ``RSU missions are characterized by
small, short duration, interdiction missions normally limited to border
areas.'' Id. (emphasis added). The paper states under Mission Parameters
that ``the mission must be related to the Special Operations Mission
Essential Task List (wartime tasks) and should be intel-prompted.'' Id.
\224\ Mission Essential Task List (METL) includes soldiers' wartime
tasks, i.e. what skills a soldier has been trained in and capable of
training others in. Special Forces units who were assigned to Operation
Alliance were restricted to their METL training law enforcement agents.
\225\ Defense Department Documents D118.
However, there again is no written documentation of ATF's request for
this highly controversial training.
Within days, the training mission by Special Forces soldiers was
revised to include only coordination on Army ranges and teaching ATF how
to develop an operations order.\226\
---------------------------------------------------------------------------
\226\ Id.
---------------------------------------------------------------------------
c. Pre-raid military assistance requested by ATF and
assistance actually received
The military assistance provided to ATF can be separated into four
areas: (1) surveillance overflights by counterdrug National Guard units
in January and February 1993; (2) training by Special Forces soldiers
assigned to JTF-6 for counterdrug missions in late February 1993; (3)
direct support by Texas National Guard counterdrug personnel who
conducted an aerial diversion the day of the raid on February 28, 1993;
and (4) post-raid support to FBI and ATF.
Six surveillance overflights were conducted by counterdrug National
Guard units. Aerial photography missions by the Texas National Guard
began on January 6, 1993.\227\ The January 6 missions and subsequent
missions on February 3, 18, and 25, 1993, were taken by a Texas National
Guard Counterdrug UC-26 aircraft.\228\ On January 14, 1993, aerial
photographs were taken by the Alabama National Guard.\229\ And, on
February 6, 1993, the Texas National Guard provided infrared video
(FLIR) and aerial photography in a Counterdrug UC-26 aircraft.\230\
---------------------------------------------------------------------------
\227\ Texas National Guard After-Action Report (April 29, 1993).
Defense Documents D2344 at D2346.
\228\ Id.
\229\ Id.
\230\ Id.
---------------------------------------------------------------------------
ATF's request for training of ATF agents by Special Forces soldiers
went through several alterations before the actual training took place.
Although ATF initially requested Bradley fighting vehicles, SOT/CQB
training, on-site medical evacuation assistance and planning assistance,
legal restrictions caused the ATF request to be scaled down.\231\ A
Special Forces Rapid Support Unit, assigned to Operation Alliance,
trained ATF on 25-27 February 1993, in company-level tactical C2,
Medical Evacuation training, IV ABC's,\232\ and assistance with Range
and MOUT sites.\233\ According to military documents and military
witnesses who appeared before the subcommittees, no non-Mission
Essential Task List (wartime tasks) training,
V. Military
involvement in actual planning occurred.\234\
---------------------------------------------------------------------------
\231\ ``SOF Assistance to Federal Law Enforcement in Waco, Texas.''
Defense Documents D-1116A.
\232\ Medical techniques for treating battlefield injuries including
intravenous injections of fluids, clearing airways, controlling bleeding
and treating shock. Sworn statement of Maj. Petree. Defense Documents D-
1147.
\233\ ``SOF Assistance to Federal Law Enforcement in Waco, Texas.''
Defense Documents D-1116A.
\234\ Id.
---------------------------------------------------------------------------
For the February 28 raid, the Texas National Guard supplied three
helicopters and 10 counterdrug personnel. When ATF requested National
Guard assistance, their stated mission to the National Guard was to use
the helicopters as a command and control platform during the raid, and
to transport personnel and evidence after the area was secured.\235\
Only when the National Guard team arrived at Fort Hood for the pre-raid
training, less than 24 hours before the raid, did ATF agents inform the
National Guard personnel that the helicopters would be used as an aerial
diversion during the raid itself. ATF had even assigned one of the
National Guard counterdrug soldiers to hang from a monkey sling outside
the helicopter to film the raid.\236\ The soldier was in that position
when the helicopters took incoming fire.\237\ Although all of the three
helicopters sustained damage from weapons fire, none of the National
Guard crews or ATF personnel aboard were injured.\238\ Since such direct
involvement is prohibited by National Guard Bureau regulations \239\ and
placed National Guard personnel in imminent danger, it is unclear why
the National Guard consented to ATF's ``last-minute'' changes.
---------------------------------------------------------------------------
\235\ Treasury Investigation interviews of National Guard personnel.
Treasury Documents T005368.
\236\ Treasury Investigation interviews of National Guard personnel.
Treasury Documents T005376.
\237\ Id. Interviews indicate that the helicopters were 350 feet
from the Branch Davidian residence when they were hit. Treasury
Documents T005370.
\238\ Treasury Investigation interviews of National Guard personnel.
Treasury Documents T005371.
\239\ NGB-500-2.
---------------------------------------------------------------------------
The National Guard's focal group review of the incident did not shed
much light on the issue. The summary of its report, dated April 28,
1993, and the report itself ``reveal only one major issue. The issue
deals with the pre-raid threat assessment of the Davidians provided by
ATF to the Texas National Guard as a `docile' environment. A second
issue, which is not included in the written report of the focal group
but has been vocalized by Colonel Spence, deals with the suspected
methamphetamine laboratory at the Branch Davidian residence. Colonel
Spence contends that the drug issue is not included in the focal group
report due to the potential media interest and any resulting Freedom of
Information Act inquiries.'' \240\
---------------------------------------------------------------------------
\240\ Memorandum of Interview from Special Agent Tevens for the Waco
Administrative Review (March 16, 1995). Treasury Documents T008300.
---------------------------------------------------------------------------
d. Without the alleged drug nexus, the ATF most likely would
not have received the same military assistance as
was provided
Treasury and Defense Department officials have repeatedly maintained
that ATF would have received military assistance even without a drug
nexus, but that ATF would had to have paid for it. However, this
statement is misleading because it fails to answer whether ATF would
have received the same training it requested from units other than
counterdrug units and for purposes other than counterdrug operations.
What is clear is that the ATF would not have received military
assistance from the highly trained Special Forces units in such a short
time frame and through the streamlined approval process which it
enjoyed. As stated above, the ATF originally requested Close Quarters
Combat training, a type of training available only from specialized
military units like Special Forces. ATF's request was also the largest
law enforcement request for military assistance in many of the
counterdrug organizations' histories, such as the Regional Logistics
Support Office. ATF further requested that its military training be
conducted less than 30 days after its request, while even the
streamlined Operation Alliance process normally required 90 days.
Requesting through Operation Alliance also allowed ATF to avoid an
approval process with a greater potential of independent oversight.
The same conclusion can be reached for the National Guard support.
Had there been no drug nexus, there again would have been a different
approval process. Without a drug nexus (i.e., non-counterdrug purpose),
ATF's request for National Guard assistance would only be permitted if
both the Texas State Constitution authorized the National Guard's
involvement in the type of assistance ATF requested and the Governor was
willing to expend State funds for that purpose.\241\ National Guard
personnel have indicated that the assistance would not have been
provided under those circumstances.\242\ This is supported by the fact
that the National Guard Bureau regulations prohibit the type of direct
involvement ATF received from the National Guard counterdrug personnel,
i.e., acting as a diversion during the ATF raid.\243\ Further, since the
Texas National Guard depleted its fiscal year 1993 counterdrug funds
during its assistance to ATF at Waco and had to request additional
funding during it assistance, it is doubtful that Governor Richards
would have approved State funding of so expensive an operation.
---------------------------------------------------------------------------
\241\ Memorandum from Debra Diener, Senior Counsel to Geoffrey
Moulton, Director of the Treasury Waco Administrative Review regarding
the statutory and regulatory criteria and requirements for requesting
military assistance and National Guard assistance (August 12, 1993).
Treasury Documents T008304 at T008307.
\242\ Post hearing briefing by National Guard personnel.
\243\ Memorandum of Interview of Special Agent Tevens for the Waco
Administrative Review (March 16, 1995). Treasury Documents T008300;
Treasury Department Report at 95.
---------------------------------------------------------------------------
2. Concerns of military legal advisors
Assistant Secretary of Defense Allen Holmes and Maj. Gen. John M.
Pickler both appeared before the subcommittees. They testified that the
approval process worked as it was intended.\244\ Yet, documents show
that this was so only because Special Forces Command legal advisors at
the U.S. Special Forces Command Headquarters, who were outside the
normal approval process, but who had learned of ATF's request for
assistance from Special Forces soldiers at Operation Alliance, strongly
voiced objections to the Special Forces training mission of ATF as
proposed by JTF-6. As a result of these concerns reaching extremely
senior levels of command within the Department of Defense, the training
missions were scaled back significantly and potential violations of the
law were avoided.
---------------------------------------------------------------------------
\244\ Hearings Part 1 at 385-386.
---------------------------------------------------------------------------
a. Involvement of Special Forces Command legal advisors
As referred to earlier, a Rapid Support Unit (RSU) from Third
Company, Third Division, Special Forces Group was deployed on a regular
rotation to JTF-6 for counterdrug missions. When the original ATF
request was assigned to this RSU team, Maj. Ballard, the Special
Operations Representative at JTF-6, telephoned Special Operation Command
at Fort Bragg and expressed his concern with the ATF training mission to
Mr. Crain, a civilian employee at Special Operations Command.\245\
---------------------------------------------------------------------------
\245\ Id. at 368.
---------------------------------------------------------------------------
Upon hearing the details of the original request, Mr. Crain also
became concerned and immediately notified Lt. Col. Lindley.\246\ Lt.
Col. Lindley subsequently spoke with Maj. Petree, the Special Forces
Rapid Support Unit Commander, who also expressed similar concerns about
the scope of the mission.\247\
---------------------------------------------------------------------------
\246\ Id. at 352-353.
\247\ Id. at 368.
---------------------------------------------------------------------------
Lt. Col. Lindley testified before the subcommittees that he was
principally concerned with three areas of the support requested--the
review and scrub of the ATF operation plan, medical support in close
proximately to the scene, and assistance in developing and constructing
the rehearsal sites.\248\ Lt. Col. Lindley's first concern was the
review and scrub which is an analysis of a mission that has already been
planned. The review and scrub of the operation plan and the review of
the discriminating fire plan would have been done by the Special Forces
unit assigned to JTF-6, which ultimately provided the military training
to ATF.\249\ Lt. Col. Lindley was of the opinion that the actual
planning and rehearsal of the take down was ``active'' and therefore
illegal.\250\ He also believed that the Special Forces unit was not
authorized to offer expert advice on deconstructing a drug lab.\251\
---------------------------------------------------------------------------
\248\ Id. at 350.
\249\ Id. at 351.
\250\ Memorandum for record of Lt. Col. Philip Lindley (3 February
1993). Defense Documents D-1168 at D-1169.
\251\ Id. at D-1172.
---------------------------------------------------------------------------
Lt. Col. Lindley's second concern dealt with the use of military
medical personnel. According to ATF's request, these military medical
personnel would be on-site and directly involved in potential searches
of individuals apprehended and in the collection of evidence, resulting
in Posse Comitatus Act implications. This degree of direct involvement
would also create liability issues associated with the treatment of the
civilians.\252\ The medical personnel potentially would be treating
gunshot wounds of children, and military medical personnel do not have
the training or equipment to treat such trauma wounds (gunshots) in
small children. For example, some medical equipment for children such as
breathing tubes require special sizes with which these medical teams are
not be equipped.\253\
---------------------------------------------------------------------------
\252\ Hearings Part 1 at 350-351.
\253\ Interview of Lt. Col. Phillip Lindley by Glenn R. Schmitt,
Counsel to the Subcommittee on Crime, and Michele Lang, Special Counsel
to the Subcommittee on National Security, International Affairs, and
Criminal Justice, in Washington, DC (July 19, 1995).
---------------------------------------------------------------------------
According to Lt. Col. Lindley, the JTF-6 informed him that the law
enforcement action was a raid on a methamphetamine lab.\254\ Having been
involved in law enforcement actions involving methamphetamine labs as a
civilian, Lt. Col. Lindley was aware of concerns with the physical
characteristics of methamphetamine production and the dangers in the
chemicals, as well as ammunition considerations given the explosive
nature of methamphetamine labs.\255\ Contamination of soldiers' clothing
by chemicals used in the production of methamphetamines would involve
those soldiers in the collection of physical evidence.\256\ Again, such
direct involvement would violate the Posse Comitatus Act.
---------------------------------------------------------------------------
\254\ Hearings Part 1 at 367.
\255\ Id. at 367-368.
\256\ Id.
---------------------------------------------------------------------------
Upon completing his discussions with the Special Operations
personnel, Lt. Col. Lindley directly contacted JTF-6 personnel to
express his concerns about the mission. When Lt. Col. Lindley informed
JTF-6 personnel that, from his initial analysis of the information
presented, the request was impermissible as proposed, he received a
hostile response from Lt. Col. Rayburn, the JTF-6 Legal Advisor.\257\
After his conversation with JTF-6 personnel, Lt. Col. Lindley began a
memorandum for record detailing the chronology of events and
conversations as they took place.\258\ JTF-6, not Lt. Col. Lindley,
subsequently provided the legal review of the request.
---------------------------------------------------------------------------
\257\ Id. at 353.
\258\ Id.
---------------------------------------------------------------------------
After the requests for additional evidence of methamphetamine
production, the military assistance allowed was drastically restricted.
3. Evidence indicating problems in the approval process
Contrary to assertions by Assistant Secretary Holmes, Brig. Gen.
Huffman, and Maj. Gen. Pickler, the approval process did not work as it
was supposed to.\259\ First, although concerns had been raised that JTF-
6 had been providing military assistance to non-counterdrug activities,
little documentation of ATF's requests for military assistance exists.
Second, while some senior military officers and DEA officials had
opportunities to voice concerns about ATF's alleged drug nexus, they
chose not to exercise those opportunities. Third, because a few military
officers identified major legal problems with the training mission and
alerted senior military commanders, despite threats by other senior
military officers, the mission was altered to avoid violations of the
law. Finally, after Waco hearings were scheduled, the Secretary of
Defense acknowledged problems with the military assistance process and
created a working group to review the process.\260\
---------------------------------------------------------------------------
\259\ Id. at 385-386.
\260\ Memorandum of Military Support to Civil Authorities by William
Perry, Secretary of Defense, to the Secretary of the Army, Chairman of
the Joint Chiefs, Under Secretary of Defense (Policy), Under Secretary
of Defense (Comptroller), and the General Counsel of the Department of
Defense (May 17, 1995).
---------------------------------------------------------------------------
a. Concerns of cheating by JTF-6
Military documents indicate that a problem existed with JTF-6
providing military assistance to law enforcement agencies in the absence
of a drug nexus.\261\ These concerns apparently had reached the highest
levels of the Department of Defense.\262\
---------------------------------------------------------------------------
\261\ ``Desires to know the [U.S. Army Special Operations Command]
position regarding the attached draft [message]. Intent is to go on
record confirming the phonelon arrangements, and to reinforce [Special
Operations Forces] Resistance to potential `cheating' which seems to
recur at JTF-6.'' Comments from a U.S. Special Operations Command
facsimile (February 17, 1993). The facsimile cover was attached to the
February 3, 1993 message regarding the Special Forces training mission
of ATF and had multiple routing destinations. (Unnumbered).
\262\ Id.
---------------------------------------------------------------------------
When JTF-6 provides military assistance in non-counterdrug related
law enforcement actions, it is referred to as ``cheating'' because it
allows the law enforcement agency to obtain military assistance without
reimbursing the military. Moreover, military assistance provided under
these circumstances is funded with money specifically appropriated for
counterdrug activities.\263\ Furthermore, cheating allows JTF-6 to
provide military assistance to non-counterdrug activities, outside the
scope of its authorized purpose.\264\ Interviews with Defense Department
counterdrug personnel revealed that self preservation in part fuels JTF-
6 efforts to secure healthy budget allocations.\265\ Documents provided
by the Treasury Department show that in the months following the tragic
end of the Branch Davidian siege, JTF-6 and Operation Alliance were
actively promoting their services to ATF. This was occurring even as
senior military officials expressed concern that ATF misrepresented the
required drug nexus in order to obtain military assistance.\266\
---------------------------------------------------------------------------
\263\ National Defense Authorization Act Fiscal Year 1991,
Sec. 1004, Pub. L. 101-510 (as amended by National Defense Authorization
Act Fiscal Year 1991 Sec. 1088, Pub. L. 102-190, and by National Defense
Authorization Act Fiscal Year 1993 Sec. 1041, Pub. L. 102-484, FY 93
NDAA.).
\264\ Hearings Part 1 at 367.
\265\ The subcommittees discovered a number of post-Waco promotions
of military assistance and ATF requests for military assistance. A
sampling of those include: According to a Defense Department memo dated
September 9, 1993, ATF requested and received approval for 2 weeks of
Special Forces Training for 20 ATF agents less than 5 months after the
tragic incident at Waco. Defense Documents D-1167. Another Special
Operations Judge Advocate memo addressing this Special Forces training,
indicates that ATF again was attempting to obtain military assistance
without reimbursing Defense Department: ``we cannot waive reimbursement
under the fiction that we are `training the trainer' as is not so subtly
suggested by the 3 Aug BATF letter.'' Defense Documents D-1166. A June
15, 1993 ATF memorandum from Special Agent Pali, the ATF Deputy Senior
Tactical Coordinator at Operation Alliance to the Chief of the Special
Firearms Division and the Special Agents in Charge of the Dallas,
Houston and Los Angeles Field Divisions enclosing an Regional Logistics
Support Office document describing the ``latest information regarding
the types of support and procedures for Drug Law Enforcement Agencies to
request excess property, non-operational support or training from the
Department of Defense.'' Treasury Documents T006665.
\266\ ``[T]he only question I have is related to how we got
involved. Was the `methamphetamine' lab a subterfuge to get our
(military) (506) (?) Involvement? Seems to me we need to be sure that
what the ground rules are. Reasonable man rule applies.'' Unsigned
handwritten note on a lieutenant general's note paper. Defense Documents
D-1363.
---------------------------------------------------------------------------
Assistant Secretary Holmes stated that JTF-6 does not verify whether
a ``drug nexus'' exists before providing military assistance because it
would potentially place the military in a capacity of conducting
surveillance and investigations of American citizens, which is a
violation of U.S. law.\267\ Secretary Holmes' purported concern is not
responsive to the issue. Contrary to Mr. Holmes' assertion, the
verification of a drug nexus would not require military personnel to
conduct surveillance of or otherwise investigate American citizens.
Rather, verification could be accomplished simply by establishing a
standard which requires sufficient documentation by the law enforcement
agency of the existence of drug offenses, as opposed to mere speculation
or suspicion. In addition, JTF-6's own planning guide states that it
``reviews and validates all requests for support'' in conjunction with
Operation Alliance, the National Guard, and the Regional Logistics
Office.\268\
---------------------------------------------------------------------------
\267\ Pre-hearing meetings with Assistant Secretary Allen Holmes.
See also Hearings Part 1 at 367 (statement of Maj. Gen. John M.
Pickler).
\268\ JTF-6 Operational Support Planning Guide at 16. Treasury
Documents T08786, T08803.
---------------------------------------------------------------------------
b. Special Forces paper and ATF's response
Further evidence suggesting a serious problem in the military's
approval of assistance to ATF in this case involves ATF agents'
reactions to the Bureau's own claim that a methamphetamine lab existed
in the Branch Davidian residence.
The alleged presence of a methamphetamine lab was the basis for
which the Special Forces assistance provided to ATF. After Special
Forces legal advisors concerns' with the proposed training and ATF's
alleged drug nexus, Maj. Petree, the Commander of Special Forces Rapid
Support Unit which was assigned to provide ATF support, ordered two of
his Special Forces medics to research and write a paper on
methamphetamine labs for ATF. These Special Forces medics, who are
highly skilled military personnel with far more advanced training than a
typical civilian paramedic, spent 3 to 4 days researching and writing a
memorandum on methamphetamine labs for ATF.\269\
---------------------------------------------------------------------------
\269\ Hearings Part 1 at 361.
---------------------------------------------------------------------------
There is no doubt that a central purpose of the memorandum on
methamphetamine labs was to inform the ATF of the potential dangers and
special precautions required when dealing with an active methamphetamine
lab. Yet, when Maj. Petree presented the paper to ATF agents during the
February 4-5, 1993, Houston meeting, these agents openly chose to ignore
this information in front of the soldiers who prepared the document. In
fact, the ATF agents' dismissal of such vital information was so obvious
that these agents' reactions alone made to clear that the ATF believed
that a methamphetamine lab did not exist.\270\
---------------------------------------------------------------------------
\270\ Id. at 372. Maj. Petree had to have known, or certainly should
have known, as a senior military officer assigned to JTF-6, that a drug
nexus was absolutely necessary to receive assistance from his unit
through JTF-6. Even though Staff Sgt. Fitts, one of the writers of the
paper, noticed the ATF agents' disinterest in the vital paper and
clearly came to the conclusion that a methamphetamine lab did not exist,
Maj. Petree indicated that he did not notice any remarkable reaction by
the agents.
---------------------------------------------------------------------------
Maj. Petree indicated that the purpose of the Special Forces paper
was for the informational use of Special Forces units who might be
involved in future counterdrug activities involving methamphetamine
labs. Yet, when the subcommittees requested a copy of the Special Forces
paper during a visit by subcommittees' staff to the U.S. Special
Operations Command in Fort Bragg, NC, they were informed that it could
not be located.\271\ Sgt. Fitts had not seen the Special Forces paper
since the meeting in Houston and had no idea what became of the Special
Forces paper after the meeting. If the Special Forces paper was written
as an information resource, the Special Operations Command would be
expected to have a copy of this paper on file.
---------------------------------------------------------------------------
\271\ The presence of the Special Forces paper alone would provide
evidence to produce charges that: (1) Special Forces trainers were
deficient in their training of ATF in failing to ensure ATF took proper
precautions; (2) Special Forces trainers knew from ATF's failure to
incorporate proper precautions that no methamphetamine lab existed and
thus they inappropriately provided military assistance in a non-
counterdrug law enforcement operation. Neither of these potential
charges is flattering to JTF-6, and especially to Maj. Petree, who
presented the paper to ATF and who commanded the Special Forces units
which trained ATF.
---------------------------------------------------------------------------
c. Two DEA agents were members of the Operation Alliance
board
Military officers were not alone in their inaction. Documents show
that two senior DEA agents were assigned to Operation Alliance at the
time of ATF's request for military assistance at Waco.\272\ Yet, none of
the documents indicate that either of these DEA agents expressed
concerns about the evidence ATF offered in support of its claim of an
active methamphetamine lab or how ATF was planning to take down the
alleged methamphetamine lab.
---------------------------------------------------------------------------
\272\ Senior DEA Representative William C. Rochon and DEA Staff
Coordinator Richard G. Thomas were on the Operation Alliance board.
However, Special Agent Thomas was on sick leave from approximately
October 1992 until his retirement in January 1993, so he has no personal
knowledge of Operation Alliance's activities in support of ATF's
investigation of the Branch Davidians. Letter from the U.S. Department
of Justice to the subcommittees (January 5, 1996) (responding to the
subcommittees' October 25, 1995, request for information).
---------------------------------------------------------------------------
These two senior DEA agents were members of the Operation Alliance
Board which provides the final approval of military assistance missions
to drug law enforcement agencies. It is reasonable to assume that these
DEA agents were aware of the safety and health risks a methamphetamine
lab would present.
Treasury and Defense Department documents provided to the
subcommittees indicate that Operation Alliance at least twice requested
additional information on ATF's drug nexus, that a very contentious
discussion between legal advisors and senior military officials of
Special Operations Command and Operation Alliance had taken place, and
that this was the largest raid in law enforcement history. Yet, no
evidence was presented to show that these DEA agents expressed any
concerns that ATF was not addressing these risks in their operational
planning.
d. Approval process did not work
Contrary to the testimony of Assistant Secretary Holmes and Maj.
General Pickler, the training mission did not violate laws because the
approval process worked, but in spite of it. Only because certain
soldiers recognized a legal problem and had the courage to raise the
issue in light of opposition from their chain of command at JTF-6, was a
``major incident avoided, lives were saved, and the law was not
violated.'' \273\
---------------------------------------------------------------------------
\273\ Handwritten memorandum on the letterhead of Judge Advocate
General's Corp, U.S. Army. Defense Documents D-1155 at D-1157. The memo
refers to the soldiers actions as ``doing the right thing, not the easy
thing.''
---------------------------------------------------------------------------
JTF-6 and Operation Alliance have the approval authority for law
enforcement requests for military assistance along the Southwest border,
which means their legal advisors conduct the legal review of the
proposed assistance, not Special Operations Command legal advisors at
Fort Bragg.\274\
---------------------------------------------------------------------------
\274\ All law enforcement agency requests for military assistance
along the Southwest border must be routed through Operation Alliance.
Once the request is received, it is reviewed by Operation Alliance. If
Operation Alliance accepts the request, it is then sent to JTF-6 for
processing. JTF-6 Operations Section will develop a draft operations
order with the law enforcement agency. Once the planning is complete,
the draft order is returned to Operation Alliance for its approval. A
final approval of the operations order is then determined at a joint
meeting of the heads of supporting field drug law enforcement agencies,
the Special Forces Rapid Support Unit tasked by JTF-6 and the tactical
coordinator for Operational Alliance. Letter from Operational Alliance
Special Agent Eddie Pali, ATF Coordinator for Operation Alliance
(January 26, 1990). Treasury Documents T006663-006664.
---------------------------------------------------------------------------
Soldiers are taught that they should always go through their chain
of command to address a problem. Only under significant circumstances
are soldiers encouraged to go outside their chain of command for
assistance. The Special Forces soldiers assigned to assist ATF,
apparently had been properly trained to go outside their chain of
command, which at the time was at JTF-6, by contacting their legal
advisor at Special Operations Command, (USAFC) if they had concerns
about a mission.
The Special Forces soldiers assigned the ATF mission did just that.
Maj. Ballard, the Special Operations Representative at Operation
Alliance, contacted Mr. Crain at Special Operations Command. Crain then
informed Lt. Col. Lindley of their concerns.
It was Lt. Col. Lindley, the legal advisor of the Special Operation
Command, who raised the legal concerns with JTF-6. Lt. Col. Lindley
received a hostile response from Lt. Col. Rayburn, the JTF-6 legal
advisor who accused him of attempting to ``undermine'' and ``undercut''
JTF-6's mission.\275\ Lt. Col. Lindley was also told that he could
consider Lt. Col. Rayburn's words a personal attack.\276\ Subsequent to
Lt. Col. Lindley's telephone conversation with Lt. Col. Rayburn, these
concerns were raised with the Commanding Generals of both Special
Operations Command and JTF-6 and eventually reached the Office of the
Secretary of Defense. When the legal concerns were reviewed at that
level, the Special Forces training mission was modified to comply with
the law.\277\
---------------------------------------------------------------------------
\275\ Memorandum for record from Lt. Col. Philip Lindley. Defense
Documents D-1168 at D-1170.
\276\ Id.
\277\ Handwritten memo on the letterhead of The Judge Advocate
General's Corps, U.S. Army. Defense Documents D-1155 at D-1156.
---------------------------------------------------------------------------
e. The working group established by the Secretary of Defense
The final piece of evidence that serious problems exist in the
process by which the military provides support to civilian law
enforcement agencies is the Secretary of Defense's creation of a working
group to review the process in the wake of the subcommittees'
announcement of Waco hearings which would also explore the military's
role in the incident.
On May 17, 1995, Secretary of Defense William J. Perry directed the
Under Secretary of Defense for Policy to establish a working group ``to
conduct a comprehensive review of the current system by which Defense
Department evaluates and responds to requests for assistance initiated
by outside agencies.'' \278\ Perry acknowledged in his memorandum that,
``several recent events suggest that the process by which Defense
Department evaluates and approves outside requests for assistance may be
less than adequate'' and that ``there are indications that Defense
Department's ability to respond smoothly is encumbered by conflicting
directives, multiple entry points and diverse funding authorities.''
\279\
---------------------------------------------------------------------------
\278\ Memorandum of Military Support to Civil Authorities by William
Perry, Secretary of Defense, to the Secretary of the Army, Chairman of
the Joint Chiefs, Under Secretary of Defense (Policy), Under Secretary
of Defense (Comptroller), and the General Counsel of the Department of
Defense (May 17, 1995).
\279\ Id.
---------------------------------------------------------------------------
c. the alleged drug nexus
As explained earlier, in order to receive military assistance at
Waco from the military counterdrug units, ATF was required to have a
drug nexus. The existence of a drug nexus also would have allowed ATF to
receive that military assistance without being required to reimburse the
military for the cost of the training. ATF's allegation that a drug
nexus existed at the Davidians' residence raised two concerns: (1)
whether ATF used this alleged drug nexus as a subterfuge in order to
obtain free military assistance from specially trained Special Forces
counterdrug units; and (2) assuming ATF actually believed a drug nexus
existed, whether ATF ensured that its agents were aware of the extreme
health and safety hazards that a methamphetamine lab presents, and were
properly trained and equipped to address those hazards.
1. Methamphetamine laboratories
ATF alleged to the military that it had evidence of an ``active
methamphetamine lab'' on the premises of the Davidians' residence.
Unlike general narcotics seizures, clandestine labs, by their very
nature, ``present a unique series of hazards and risks to law
enforcement personnel.'' \280\ Therefore, an allegation of an active
methamphetamine lab should alarm any law enforcement official, because
of the extreme safety and health dangers involved.
---------------------------------------------------------------------------
\280\ The Joint Task Force of the Drug Enforcement Administration,
the U.S. Environmental Protection Agency, and the U.S. Coast Guard,
Guidelines for the Cleanup of Clandestine Drug Laboratories 8. See also,
Bureau of Justice Assistance, Developing a Strategy for a Multiagency
Response to Clandestine Drug Laboratories 4 (September 1995).
---------------------------------------------------------------------------
a. Dangers associated with methamphetamine labs
Hazards which law enforcement agents may expect to encounter in
clandestine lab operations include exposure to toxic chemicals,
explosive and reactive chemicals, flammable agents, irritant and
corrosive agents, booby traps, and physical injury from close quarter
contact with illegal lab operators.\281\
---------------------------------------------------------------------------
\281\ Id. at 8.
---------------------------------------------------------------------------
Illegal methamphetamine labs use highly volatile chemicals during
the production process. Notwithstanding the booby traps law enforcement
agents frequently encounter at methamphetamine labs, the firing of a
single bullet, sparks from turning off and/or on light switches,
flashlights, or even a flash from a typical photography flashbulb can
easily trigger an instantaneous explosion. Toxic vapors produced during
chemical reactions can permeate a building's structure and buildings
with poor ventilation and temperature controls (like the Davidians'
residence) ``add to the potential for fire, explosion, and human
exposure.'' \282\ One chemical used in clandestine drug labs is so
deadly that an amount small enough to fit on the head of a pin, could
kill a room full of people.\283\
---------------------------------------------------------------------------
\282\ Id. at 3.
\283\ Drug Enforcement Administration briefing to the subcommittees
(June 8, 1995) and subsequent telephonic interviews with DEA chemists.
---------------------------------------------------------------------------
Other health concerns are no less serious. In the absence of proper
safety precautions and cleanup procedures, law enforcement agents may
``experience both acute and chronic adverse health effects as a result
of exposure to solvents, reagents, precursors, by-products, and drug
products improperly used or generated during the manufacture of illegal
drugs.'' \284\ Toxic materials produced at these labs can injure the
lungs or the skin, damage the liver, kidneys, even the central nervous
system.\285\ Some toxins have been linked to malformation of embryos,
other genetic damage, cancers, and reproductive failure.\286\
---------------------------------------------------------------------------
\284\ Id. at iii.
\285\ Bureau of Justice Assistance, supra note 280, at 5.
\286\ Id.
---------------------------------------------------------------------------
In determining appropriate safety and health precautions, the
subcommittees relied on standards set forth by the Drug Enforcement
Administration (DEA). DEA has primary jurisdiction over investigations
of clandestine drug labs. As the lead Federal agency, it has established
procedures that DEA agents must follow during the investigation and
seizure of drug labs.\287\ Moreover, this approach by DEA has been a
model for State and local agencies in developing their own clandestine
drug lab programs.\288\
---------------------------------------------------------------------------
\287\ The Joint Task Force of the Drug Enforcement Administration,
the U.S. Environmental Protection Agency, and the U.S. Coast Guard,
supra note 280, at 4.
\288\ Id.
---------------------------------------------------------------------------
b. Certification/training requirements for deconstruction of
methamphetamine labs
Law enforcement personnel engaged in the investigation and seizures
of clandestine drug labs should have specialized training in the
investigation of such labs, in appropriate health and safety procedures,
and in the use of the protective equipment.\289\
---------------------------------------------------------------------------
\289\ Id.
---------------------------------------------------------------------------
The DEA requires all of its personnel to complete a course on
clandestine methamphetamine labs and be certified prior to ever
participating in a methamphetamine lab raid.\290\ Simply stated, no DEA
agent may participate in ``take downs'' of methamphetamine labs without
proper certification. Annual recertification also is required. In
addition, DEA provides seminars on clandestine methamphetamine labs
throughout the Nation to other local, State, and Federal law enforcement
personnel.
---------------------------------------------------------------------------
\290\ Id. at 5.
---------------------------------------------------------------------------
DEA agents are also required to receive a ``baseline medical
screening, including an occupational/medical history, a complete
physical examination, a blood chemistry screen, pulmonary function and
spirometry testing, and a stress-treadmill test prior to assignment.''
\291\ Agents have regular follow-up medical evaluations and, because of
the risks associated with long-term exposure, regularly are rotated out
of the Clandestine Lab Program.
---------------------------------------------------------------------------
\291\ Bureau of Justice Assistance, supra note 280, at 16.
---------------------------------------------------------------------------
The initial entry team also must have and be trained in the use of
``appropriate monitoring instrumentation, such as air-sampling pumps,
explosimeters, oxygen meters, organic-vapor analyzers . . . that are
used to determine the lower explosive limit and the concentration of
organic vapors in the laboratory atmosphere.'' \292\ All of the
monitoring devices must be ``designed to suppress sparks'' that may
ignite and cause fires or explosions.\293\
---------------------------------------------------------------------------
\292\ The Joint Task Force of the Drug Enforcement Administration,
the U.S. Environmental Protection Agency, and the U.S. Coast Guard,
supra note 280, at 8.
\293\ Id.
---------------------------------------------------------------------------
c. The special precautions required when law enforcement
actions involve a methamphetamine lab
After an investigation has gathered sufficient probable cause to
establish that a drug lab is operating on a premises, DEA agents obtain
a search warrant. Agents may request in the warrant the authority to
destroy any hazardous bulk chemicals and equipment.\294\ A forensic
chemist is consulted prior to and during the seizure.\295\ Once the
warrant is obtained, the case agents begin a six step process for
conducting the seizure: planning, entry, assessments, processing, exit,
and follow-up.\296\ Because ATF entered the Branch Davidian residence,
only the first two steps will be discussed in detail.
---------------------------------------------------------------------------
\294\ ATF did not mention a drug lab or possession of illegal drugs
as suspected crimes in its search warrant.
\295\ The Joint Task Force of the Drug Enforcement Administration,
the U.S. Environmental Protection Agency, and the U.S. Coast Guard,
supra note 280, at 5.
\296\ Id.
---------------------------------------------------------------------------
In the planning stage, the case agents must first assess of the
hazards likely to be encountered and determine who needs to be notified
before the raid (i.e. police, fire department, hospitals, hazardous
waste contractors.) \297\ This includes a determination of what
chemicals the agents might encounter. Once the assessment is complete,
certified teams, including a forensic chemist and site safety agent
trained and equipped with the requisite safety equipment, are assigned.
---------------------------------------------------------------------------
\297\ ``In seizing a clandestine drug laboratory, the law
enforcement agency may encounter materials that technically qualify as
hazardous wastes and therefore are `subject to regulation.' If those
wastes exceed certain minimal quantities, the law enforcement agency
becomes a hazardous waste generator and is required to adhere to waste
disposal regulations promulgated under RCRA, and to regulations
governing the transportation of hazardous materials promulgated by the
Department of Transportation.'' Id. at iv.
---------------------------------------------------------------------------
The second stage is the initial entry to apprehend and remove the
operators and to secure the lab. Typically in methamphetamine lab
operations, law enforcement agents will attempt to arrest the suspects
away from the premises to avoid many of the aforementioned dangers. This
is usually accomplished through surveillance and investigative
techniques which provide law enforcement agents with sufficient
information to determine the lab's exact location, what chemicals are
being used, the stage of the production process and when the suspects
will leave the premises.
If the lab operators cannot be apprehended away from the premises,
then the initial entry takes place. ``DEA protocol calls for the initial
entry team to employ ballistic protection equipment and fire retardant
clothing.'' \298\ Other safety procedures include avoiding the use of
shotguns or diversionary devices such as flash bangs, smoke, or tear gas
canisters which can ignite fumes.\299\ Additionally, agents should avoid
turning light electrical switches on or off, use only explosion-proof
flashlights, and use electronic strobes, not flashbulbs.\300\ Once the
premises are secure and everyone is evacuated, the assessment step
begins.
---------------------------------------------------------------------------
\298\ Id. at 8.
\299\ Id.
\300\ Id.
---------------------------------------------------------------------------
d. Did ATF address the extreme safety and health concerns a
methamphetamine lab presents in its raid on the
Branch Davidian residence?
In 1990, Stephen E. Higgins,\301\ the Director of the Bureau of
Alcohol, Tobacco and Firearms, testified before the Subcommittee on the
Treasury, Postal Service, and General Government Appropriations of the
Committee on Appropriations. In written responses to questions from
subcommittee members, Higgins acknowledged:
---------------------------------------------------------------------------
\301\ Mr. Higgins was Director of the ATF both during the
investigation and at the time of the February 28, 1993, raid on the
Branch Davidian residence.
[W]e [at the ATF] are aware of the considerable hazards
presented by the careless storage of chemicals and the
sensitivity of the explosive mixtures at these [clandestine
methamphetamine] laboratories. In an effort to ensure a safe and
thorough investigation, ATF has proposed specific, specialized
training for select ATF personnel to readily identify narcotics
laboratories and to recognize certain hazardous materials
associated with the laboratories.\302\
---------------------------------------------------------------------------
\302\ Hearings before the Subcommittee on Treasury, Postal Service,
and General Government Appropriations of the House Committee on
Appropriations, 101st Cong., 2d Sess. 688, 695 (1991).
Given that Higgins was still the ATF Director during the period when
David Koresh was being investigated, when the Waco raid took place and
during the post-raid investigation, it is reasonable to conclude ATF was
aware of the safety and health hazards presented by methamphetamine
labs. Furthermore, since the case had the ``highest interest of BATF
Washington and had been approved at that level,'' \303\ ATF headquarters
was aware of the alleged presence of a methamphetamine lab.
---------------------------------------------------------------------------
\303\ Operations Order, February 17, 1993, Defense Documents D-587.
---------------------------------------------------------------------------
Even so, in response to the subcommittees' inquiries, ATF has
acknowledged that no ``ATF agent who was present on February 28, 1993, .
. . had received specific, specialized training in investigating
methamphetamine laboratories.'' \304\ In reviewing videotapes of the
Fort Hood training, subcommittee investigators also found no discussion
of the potential safety and health hazards that the suspected active
methamphetamine lab would present. In other words, ATF agents
participating in the raid had little or no notice of the dangers they
might have forced in the active methamphetamine labs.
---------------------------------------------------------------------------
\304\ Undated Department of Treasury response to subcommittees'
request for information.
---------------------------------------------------------------------------
From numerous briefings and a review of videotape shot on the day of
the raid, it appears that ATF agents did possess ballistic protection
equipment and fire retardant clothing. ATF agents also possessed regular
flashlights and regular cameras (i.e. flash photography), shotguns and
flash bangs,\305\ each of which could trigger instantaneous explosions
if used in the vicinity of a methamphetamine lab. Nor is there any
evidence that any ATF agents possessed appropriate monitoring equipment
to determine the lower explosive limit and the concentration of vapors
in the atmosphere, or explosion proof flashlights.
---------------------------------------------------------------------------
\305\ ATF policy on the use of ``flash bang'' diversionary devices
states, ``Drug laboratories or other explosive environments may be so
hazardous as to preclude the use of [flash bang] devices.'' and ``If [a
flash bang] lands on a combustible material a fire is not only possible
but likely, (laundry, newspaper, clothing, etc.).'' [Page 66 of the ATF
training manual on the use of diversionary devices] no mention of the
alleged presence of a methamphetamine lab is mentioned in ATF's request
to the Chief of Special Operations Division for the use of flash bangs
during the raid. [Request to use flash bangs, dated February 5, 1993,
Treasury Documents 008213-14].
---------------------------------------------------------------------------
Clearly, ATF disregarded the safety of its agents and innocent
civilians. Agencies involved in clandestine lab operations fall under
OSHA regulations requiring the following actions by employers: \306\
---------------------------------------------------------------------------
\306\ Bureau of Justice Assistance, supra note 280, at 7 (citing 29
C.F.R. Part 1910).
---------------------------------------------------------------------------
<bullet> ``Communication to employees of clear, unambiguous
warnings, as well as provision of educational programs on the
hazards of chemical substances.''
<bullet> ``Training of all employees who may be exposed to
hazardous substances in how to recognize and handle safety and
health hazards at laboratory sites, in the use of protective
equipment, and in safe work practices.'' Training must meet OSHA
standards.
<bullet> Examining and monitoring the health of all employees
exposed to hazardous substances including documentation of any
exposure.
<bullet> Provide information to employees regarding any
hazardous conditions in their work environments.
When agencies fail to adhere to these requirements, ``supervisors can be
held strictly and severally liable for situations involving employee
exposure to hazardous substances and the resulting adverse health
effects.'' \307\
---------------------------------------------------------------------------
\307\ Id. at 8.
---------------------------------------------------------------------------
2. Evidence purporting to show the alleged drug nexus
a. Mark Breault's statement
Coincidentally, after repeatedly being informed by military
officials of the drug nexus requirements, Aguilera received a facsimile
on December 16, 1992, from Mark Breault in Australia, which according to
ATF ``suggest[ed] the existence of an illicit methamphetamine laboratory
at the Branch Davidian compound.'' \308\ Mr. Breault's facsimile relays
that upon taking over the Mount Carmel (Residence of the Branch
Davidians) property from George Roden, the former Branch Davidian
leader, Koresh found methamphetamine lab equipment and ``recipes'' and
called the Sheriff's Department to turn over the materials.\309\ It had
been long rumored that an individual who used to rent from Mr. Roden was
into drugs but he had later gone to prison.\310\ This individual was no
longer on the property when Koresh took over.\311\
---------------------------------------------------------------------------
\308\ Memo from Colleen Callahan and Robert Tevens to Geoff Moulton
and Lew Merletti, ``Chronology and Witnesses Re: Military Support of
ATF'' (July 14, 1993). Treasury Documents T004589, 004590. Actual
facsimile, Treasury Documents T008912.
\309\ Facsimile from Mark Breault to Special Agent Davey Aguilera
(December 16, 1992). Treasury Documents T00008912.
\310\ Id.
\311\ Id.
---------------------------------------------------------------------------
Mr. Breault's facsimile to Special Agent Aguilera also indicated
that although Koresh did call the Sheriff's Department and Sheriff's
Department personnel did come out to the property, one individual
present at the residence when the Sheriff's Department visited said she
did not personally observe Koresh turn the lab equipment over to the
Sheriff's Department.\312\ Mr. Breault also stated in his facsimile that
one night in 1989, Koresh ``was talking about trafficking drugs as a way
of raising money.\313\ He [Koresh] seemed very interested in getting
money through this means.'' \314\ However, Mr. Breault also admits in
his facsimile that he was the only ex-member who was present for this
statement.\315\ Mr. Breault goes on to say in the same document that the
building in which he implies the drug lab equipment was located burned
down in Spring 1990.\316\ Lt. Col. Gen. Pickler testified before the
subcommittees that this information from Mr. Breault regarding a
methamphetamine lab also was told to the military by ATF.\317\ However,
military documents indicate that ATF was conveying to the military the
presence of an active methamphetamine lab.\318\
---------------------------------------------------------------------------
\312\ Id.
\313\ Id.
\314\ Id.
\315\ Id.
\316\ Id.
\317\ Hearings Part 1 at 369-370.
\318\ There are numerous examples of where ATF indicated to the
military there was an ``active methamphetamine lab'' and ``deliveries of
precursor chemicals.'' A few are the February 17, 1993, Operations
Order, and the February 2, 1993, letter from Operation Alliance to the
Adjutant General of the Texas National Guard counterdrug unit informing
them that ATF had requested National Guard assistance in serving a
Federal search warrant ``to a dangerous, extremist organization believed
to be producing methamphetamine.'' Treasury Documents T005551. See also
Defense Documents D-581.
---------------------------------------------------------------------------
There were at least six significant problems with its credibility as
evidence that the Branch Davidians were operating a methamphetamine lab
prior to ATF's raid. First, the allegations were very stale by legal
standards. ATF received the information more than 5 years after the
methamphetamine lab equipment was found and the Sheriff's Department
visited the premises to investigate the claim. Second, it is undisputed
that Koresh found the methamphetamine lab equipment and Koresh himself
called the Sheriff to pick up the equipment. Third, the person rumored
to have been involved in drugs was an occupant of the premises prior to
Koresh taking over, and subsequently was sent to prison. Fourth, the
former leader, Mr. Roden, not Koresh, was suspected of having been
involved in illegal drugs. Fifth, the alleged statement by Koresh about
drugs could not be verified independently. Sixth, the building Mr.
Breault implies housed the methamphetamine materials burned down in
1990, 3 years before the raid.
Perhaps the most disturbing fact about this information, however, is
that all of this drug nexus information originated with Mr. Breault, a
disgruntled former member who left the group in 1989. The fact that Mr.
Breault maintained an extensive biographical database on present and
former members and was working with a self-proclaimed cult-buster Rick
Ross in and of itself should have raised questions about Mr. Breault's
intentions and credibility to the ATF agents.
Lt. Robert A. Sobozienski, a New York City Police officer who acted
as an expert consultant to the Treasury Department's Waco Review Team,
summarized the problem with the information Breault provided when he
wrote in his Waco Raid Assessment, ``Former cult members were
interviewed and, apparently much, if not all of their statements are
reported to be facts. No thought is given to the idea that these ex-cult
members had been away from the residence for some time, or to the
individual biases, or if they had an ax to grind with present cult
members.'' \319\
---------------------------------------------------------------------------
\319\ Waco Raid Assessment by Lt. Robert A. Sobozienski. Treasury
Documents T00021383.
---------------------------------------------------------------------------
ATF agents did check with the McLennan County Sheriff's Department
personnel who acknowledged Koresh's request but ``found no record'' of
the removal of methamphetamine lab equipment.\320\ However, Joyce Sparks
\321\ states in written testimony, that during her child protective
services investigation in 1992 she checked with the Sheriff's Department
and was told that Department personnel did receive drug evidence from
David Koresh.\322\ During her interviews with him, Koresh told her that
he had given the Sheriff's Department information, pictures, and drug
evidence but nothing had ever come of it.\323\ Koresh complained in his
interviews with Sparks that the Sheriff's Department was aware of the
illegal methamphetamine lab.\324\
---------------------------------------------------------------------------
\320\ Treasury Department Report at 212.
\321\ Ms. Sparks was an investigations supervisor for the Texas
Department of Protective and Regulatory Services, Children's Protective
Services, who was interviewed repeatedly by ATF.
\322\ Prepared statement of Joyce Sparks. See Appendix. [The
Appendix is published separately.]
\323\ Id.
\324\ Id.
---------------------------------------------------------------------------
The disposal of methamphetamine lab equipment and chemicals presents
great risk and significant problems. As a matter of routine, DEA hires
certified State and local chemical disposal companies to remove the lab
equipment and chemicals for proper disposal under EPA guidelines.\325\
Because the cleanup costs can easily total $20,000, or significantly
more, depending on the size and condition of the lab site, local law
enforcement officials sometimes choose not to remove the lab equipment
and chemicals or not to follow the proper environmental guidelines for
removal in an effort to avoid the legal liabilities and costs associated
with such labs.\326\
---------------------------------------------------------------------------
\325\ The hiring of State and local chemical companies was the
result of legislation which corrected the problem of DEA disposing of
the methamphetamine lab materials. Each time DEA disposed of a
methamphetamine lab, the agency came under the Hazardous Waste laws, as
a hazardous waste generator.
\326\ Although the Sheriff's Department acknowledged visiting the
Branch Davidian residence to remove methamphetamine lab materials at Mr.
Koresh's request in 1989, there was no record of the actual removal of
the methamphetamine lab materials. However, there could be numerous
reasons why no such record existed from a Sheriff's call 4 years prior,
and without further evidence of the methamphetamine lab's continued use
or even its continued existence there is little probative value to Mr.
Breault's information. Neither ATF's search warrant nor its supporting
affidavit contain any information about suspected illegal drug activity.
---------------------------------------------------------------------------
b. The National Crime Center check
As mentioned earlier, after a December 17, 1992, meeting of SAC
Chojnacki, Aguilera and Lt. Col. Walker in which Lt. Col. Walker
informed the ATF agents that ATF could receive non-reimbursable military
support if a drug nexus existed, ATF Intelligence Research Specialist
Sandy Betterton was instructed to search criminal records of Davidians
to identify prior drug offenses.\327\ However, when ATF Special Agent
Pali was interviewed by Treasury Agents during the Post-Waco review, he
admitted that only one Branch Davidian had a prior drug conviction.\328\
---------------------------------------------------------------------------
\327\ Memorandum from Colleen Callahan and Robert Tevens to Geoff
Moulton and Lew Merletti, ``Chronology and Witnesses Re: Military
Support of ATF'' (July 14, 1993). Treasury Documents T004589, 004590.
\328\ Id.
---------------------------------------------------------------------------
c. FLIR hot spot
Treasury Department documents provided to the subcommittees indicate
that at the request of ATF, Forward Looking Infrared Radar (FLIR)
imaging was taken on January 6, 1993, by the Texas National Guard
Counterdrug unit in a National Guard counterdrug aircraft. Eugene
Trevino, a Texas National Guard airman aboard the aircraft, offered an
unofficial interpretation of the FLIR photos to the Austin ATF agents in
which he stated that the ``hot spot'' inside the residence ``could be
indicative of `a methamphetamine lab.' '' \329\ It is unclear whether
ATF agents solicited Trevino's personal interpretation or if he offered
it on his own volition.
---------------------------------------------------------------------------
\329\ Id.
---------------------------------------------------------------------------
Regardless of the impetus for the interpretation, Lt. Col. Pettit
and Lieutenant Justice ``maintained that only information about grid
coordinates was officially provided to ATF'' and that ``no official
interpretation was ever provided to ATF regarding the `hot spot.' ''
\330\ Even though ATF never sought an official interpretation,\331\ ATF
agents later offered the ``hot spot'' as direct evidence of a
methamphetamine lab to the military when JTF-6 requested additional
proof of the drug nexus at a February 4, 1993 meeting.\332\
---------------------------------------------------------------------------
\330\ Id.
\331\ Id.
\332\ Id.
---------------------------------------------------------------------------
Major General Pickler testified that at the February 4 meeting there
was some pictorial evidence (i.e., FLIR evidence) that an active
methamphetamine lab was on the site of the residence and ATF expected
the lab to be there.\333\ Interviews with DEA agents have revealed that
FLIR imaging is not a technique used to identify clandestine drug labs
because using ``hot spots'' as signatures for methamphetamine labs is
too unreliable.\334\ DEA agents have informed subcommittee staff that
the use of FLIR imaging to identify an active methamphetamine lab would
be a last resort and only as ``icing on the cake'' under that
circumstance.
---------------------------------------------------------------------------
\333\ Hearings Part 1 at 363.
\334\ Drug Enforcement Administration briefing to the subcommittees
(June 8, 1995) and telephone interviews with Drug Enforcement
Administration chemists.
---------------------------------------------------------------------------
d. The DEA lab team
Only when General Pickler of JTF-6 continued to request additional
evidence of a methamphetamine lab, did ATF indicate it intended to
include a lab team from the DEA in the operation.\335\ Treasury
documents indicate that two DEA officials were at the Command Post at
the Texas State Technical Institute on the day of the raid; but ATF
declined the DEA offer of direct assistance from a DEA Clandestine
Certified Laboratory Team.\336\ Such a lab team is specially trained and
certified to ``take down'' active methamphetamine labs. These teams also
have the specialized equipment and tactical training required for
methamphetamine lab operations.
---------------------------------------------------------------------------
\335\ General Pickler testified that Lt. Col. Berthal was told at
the February 4 and 5, 1993, meeting in Houston that ATF had intended to
include a DEA lab team in the Waco operation. Hearings Part 1 at 369-
370.
\336\ Treasury Document T4589.
---------------------------------------------------------------------------
e. The precursor chemicals used to produce methamphetamine
There are numerous methods to produce methamphetamine. However,
certain chemicals required in the synthetic process are themselves
incorporated into the molecule of the target drug (in this case
methamphetamine).\337\ These chemicals are referred to as precursor
chemicals anSOT/CQB, or direct
involvement in actual planning occurred
being produced. While ATF agents repeatedly proffered evidence of
deliveries of precursor chemicals to the Branch Davidian residence as
proof of an active methamphetamine lab, the Treasury Department has
since been unable to locate or produce the documents offered to support
its precursor contentions.\338\
---------------------------------------------------------------------------
\337\ U.S. Department of Justice, Drug Enforcement Administration
publication, Chemicals Used in the Clandestine Production of Drugs at ii
(March 1995).
\338\ On February 2, 1993, ATF Special Agents Pali and Phil Lewis
met with representatives of the JTF-6, Texas National Guard and
Operation Alliance. Lewis mentioned the delivery of precursor chemicals
to the residence. On February 4, 1993, ATF Special Agents Lewis, Pali,
and ATF Special Agent Chuck Sarabyn met with representatives from JTF-6
and the Texas National Guard to discuss evidence of a possible drug
nexus. Attendees recall Sarabyn showing documents detailing the delivery
of precursor chemicals to the residence. However, Treasury has been
unable to find those documents. Letter from Department of Treasury to
the subcommittees (January 26, 1996) (responding to the subcommittees'
request for information on November 16, 1995.)
---------------------------------------------------------------------------
Treasury documents outlining the series of meetings between
military, Texas National Guard, and ATF officials, describe a February
4, 1993, meeting held at the SAC/Houston office regarding military
support. In attendance were Special Agent Lewis; Special Agent Sarabyn;
Lt. Col. Bertholf; Special Agent Pali, ATF coordinator to Operation
Alliance; William Enney, Texas State Interagency Coordinator; and Maj.
Lenn Lannaham, JTF-6 Liaison. During the meeting, Sarabyn offered ATF
documents including a list of methamphetamine precursor chemicals, in
support of the drug nexus.\339\ As a result of the meeting, military
support of the Branch Davidian investigation continued.
---------------------------------------------------------------------------
\339\ Again, the subcommittees have never received this document
listing the methamphetamine precursor chemicals, nor has ATF
documentation on the delivery of such chemicals to the Branch Davidian
residence been provided.
---------------------------------------------------------------------------
According to General Pickler's testimony before the subcommittees,
Lt. Col. Berthal was told at the February 4, 1993 meeting in Houston
that precursor chemicals were discussed as one of the elements of proof
proffered by ATF that an active methamphetamine lab existed and those
chemicals may have been on site at the Branch Davidian residence.\340\
General Pickler testified that the ATF representative, while giving a
background briefing as to why ATF had targeted the Davidians, indicated
that UPS or shipping documents ATF was tracking included a great deal of
precursor chemicals consistent with the production of illegal
drugs.\341\ However, General Pickler also testified that precursor
chemicals were discussed in the context of the possibility of a delivery
of those kinds of chemicals much earlier than 1993, but he is not
exactly certain which precursor chemicals were there.\342\
---------------------------------------------------------------------------
\340\ Hearings Part 1 at 363, 369-370.
\341\ Id. at 378. The Treasury Department has been unable to locate
these documents.
\342\ Id.
---------------------------------------------------------------------------
General Pickler's testimony raises several questions: First, what
did ATF actually tell the military about precursor chemicals? Second,
General Pickler's testimony implies it was that information about
deliveries of precursor chemicals that ATF offered when the military
requested additional evidence. If General Pickler was uncertain when
precursor chemicals were present at the Branch Davidian residence, why
did he approve the ATF training by an elite Special Forces military unit
assigned to do counterdrug missions? Third, did General Pickler simply
rely on the absence of a defined drug nexus standard in approving the
training mission? Fourth, after he requested additional information
before approving the military training, why did General Pickler and
other military officials say it is not the position of the military to
question the veracity of a drug law enforcement declaration that a drug
nexus exists? Especially, since JTF-6's own planning guide States that
in conjunction with Operation Alliance, the National Guard and Regional
Logistics Office ``reviews and validates all requests for support.''
\343\
---------------------------------------------------------------------------
\343\ JTF-6 Operational Support Planning Guide, p. 16-T08786, 08803.
---------------------------------------------------------------------------
3. Evidence refuting ATF's claim of a drug nexus
a. ATF failed to address the issue of an active
methamphetamine laboratory into raid planning
Undermining ATF's claim that a methamphetamine lab existed at the
Branch Davidian residence, is the fact that briefing papers which went
up to ATF Headquarters, status reports and other requests failed to
mention the existence of a methamphetamine lab at the planned raid site
or suspected illegal narcotics production.
A review of the January 5, 1993, briefing paper sent to ATF's
Washington, DC. Headquarters reveals that no mention of the subject of
drugs or military involvement even though senior ATF officials at
headquarters were signing off on requests for military assistance under
the guise of a counter-narcotics operation.\344\ Treasury documents
indicate that this briefing paper was forwarded to the Assistant
Secretary of the Treasury for Enforcement after review by the ATF
Director and his staff.\345\ The forwarding of this type of briefing
paper was the normal procedure the ATF Director used to notify Treasury
of major on-going cases.\346\
---------------------------------------------------------------------------
\344\ Treasury Documents T004634-T004642.
\345\ Treasury Documents T004621-T004624.
\346\ Id.
---------------------------------------------------------------------------
In addition to the January 5 briefing paper, monthly status reports
were prepared by Aguilera, reviewed by Dunagan, the Assistant Resident
Agent in Charge of the Austin, TX office and approved by Chojnacki, the
Special Agent in Charge of the Austin, TX office who then forwarded the
reports to the Special Agent in Charge of the Houston Office. Although
these reports being provided over a 9 month period and almost daily
during the weeks leading up to the raid, they never mention the case as
a counter-narcotics investigation or any military involvement.
As late as February 5, 1993, Chojnacki requested the use of flash
bangs and failed to mention the possible existence of an ``active
methamphetamine lab,'' even though ATF policy states that drug
laboratories or other explosive environments may be so hazardous as to
preclude the use of flash bangs.\347\ In fact, the only consistent
mention of any drug activity by Branch Davidians in any of the ATF Waco
documents on Waco is in requests for military assistance which required
drug activity to justify military intervention and assistance.
---------------------------------------------------------------------------
\347\ Treasury Documents T008213-T008214.
---------------------------------------------------------------------------
b. ATF agents were not properly trained and certified
The second piece of evidence refuting ATF's claim that a drug nexus
actually existed is the fact that ATF agents involved in the raid on the
Branch Davidian residence were not trained and/or certified in
methamphetamine operations. Furthermore, the lack of necessary safety
precautions taken in the planning, training and operation indicate that
these agents were ill-equipped and unprepared for the ``suspected''
presence of an active methamphetamine lab. These failures are in direct
conflict with ATF's own guidelines on clandestine lab operations.
c. The DEA's offer of assistance
ATF's claim that a drug nexus actually existed is called into
question by ATF's response to DEA's offers of assistance. The Drug
Enforcement Agency is the lead Federal agency in enforcing narcotics and
controlled substance laws and regulation. While Operation Alliance was
assisting ATF with its investigation of the Davidians, DEA had a Senior
Special Agent, Mr. William Roshon, acting as a Coordinator for DEA at
Operation Alliance. On January 22, 1993, Deputy Tactical Coordinator
William Roshon offered DEA assistance in the form of on-sight laboratory
technicians to ATF Special Agent Pali. Pali placed DEA Agent Roshon in
touch with the SAC/Houston Office.\348\
---------------------------------------------------------------------------
\348\ Special Agent Robert Tevens' ``Chronology and Witnesses re:
Military Support of ATF'' (July 14, 1993). Treasury Documents T004589-
T004593.
---------------------------------------------------------------------------
Post-raid interviews of Pali by the ATF Waco Review Team revealed
that ATF refused twice DEA's offer of on-sight lab technicians, but did
have two DEA officials from the Austin DEA office present at the Command
Post the day of the raid.\349\ Two DEA agents from the Waco office were
on stand-by for the raid.\350\
---------------------------------------------------------------------------
\349\ Id.
\350\ Id.
---------------------------------------------------------------------------
On February 2, 1993 ATF Agent Lewis provided a briefing to Operation
Alliance members on the ``suspected methamphetamine lab'' at the Branch
Davidian residence which, according to the ATF summary of events, was
known at that date ``to have received deliveries of chemical precursors
for the manufacture of methamphetamine.'' After the briefing by Lewis,
Gen. Pickler, Commander of JTF-6, stated ``that it is not the position
of the military to question the veracity of a law enforcement request
regarding a drug nexus.'' \351\ DEA Agent Rochon told Waco Review Team
interviewers, after the February 2, 1993, briefing, that he had offered
the assistance of a DEA Clandestine Certified Laboratory Team and Pali
declined the request. However, Agent Rochon did provide Lewis the phone
number of the Austin DEA Resident in Charge. Agent Roshon `` `opined'
that precursor chemicals for methamphetamine could also be used in the
manufacture of explosives.'' \352\ However, senior DEA chemists told
subcommittee investigators when interviewed regarding the use of
methamphetamine chemicals to make explosives, ``that they had never
heard that one before'' and they were unaware of any chemicals used to
produce methamphetamine which could be used to make explosives. Although
some methamphetamine chemicals are very volatile in nature, using them
to make explosives is another matter entirely. Given that ATF has
jurisdictions over explosives and DEA has jurisdiction over illegal
narcotics, it seems odd that ATF agents and DEA agent Rochon would
attempt to blur this distinction.
---------------------------------------------------------------------------
\351\ Treasury Documents T004589-T004594.
\352\ Id.
---------------------------------------------------------------------------
Although DEA was never informed officially of the Waco investigation
by ATF, two senior DEA officials were well aware of the facts
surrounding the ATF investigation of the Davidians. Two senior DEA
officials were members of the Operation Alliance board which reviewed
law enforcement agency requests. Documents indicate that at least one of
these DEA agents did offer DEA methamphetamine lab assistance and ATF
declined that offer. However, no documents received by the subcommittees
indicate that these DEA agents expressed any concern with ATF's apparent
plan to raid an active methamphetamine laboratory.
In addition, when the subcommittees requested copies of the UPS
receipts as proof of the delivery of chemicals that are required for the
production of methamphetamine or any other evidence of the delivery of
these chemicals, the subcommittees were informed that none could be
found.
d. The Special Forces paper and the ATF response to it
The fourth piece of evidence undermining ATF's claim that a drug lab
existed is ATF's own reaction to the Special Forces paper on the
methamphetamine lab. Sergeant Fitts testified that he and another
Special Forces medic where directed by Major Petree, their Commander, to
research and draft a paper on methamphetamine labs.\353\ Interviews with
Sgt. Fitts revealed that the paper addressed the dangers of
methamphetamine labs from both tactical and exposure perspectives.\354\
Sgt. Fitts and the other medic took 3 or 4 days to complete the
project.\355\
---------------------------------------------------------------------------
\353\ Hearings Part 1 at 361. Special Forces medics are considered
to be highly trained.
\354\ The subcommittees requested a copy of the paper and were told
that it could not be located. In its production of documents to the
subcommittees, the Treasury Department failed to supply a copy of the
paper although testimony before the subcommittees indicated that the
paper was presented to ATF agents at a meeting on February 4-5, 1993 in
Houston, TX.
\355\ Hearings Part 1 at 361.
---------------------------------------------------------------------------
During the February 4-5 Houston meeting, Maj. Petree presented the
paper to ATF agents who showed no interest in its contents. Sgt. Fitts
testified that ATF agents never expressed any concern about the dangers
that would be presented by a methamphetamine lab and that it was his
impression that the subject of a methamphetamine lab ``dropped off the
face of the earth after the paper was presented.'' \356\ In his opinion,
it was obvious from the reaction of the ATF agents that no
methamphetamine lab existed.\357\
---------------------------------------------------------------------------
\356\ Hearings Part 1 at 372; subcommittees' interview of Staff Sgt.
Steve Fitts, in Washington, DC (July 11, 1995).
\357\ Id. Although it was very clear from the interview of Staff
Sgt. Fitts and his testimony before the subcommittees, that this paper
was drafted to be presented to ATF at a Houston meeting on February 4-5,
1993, Maj. Petree during a pre-hearing review at first said that he
could not recall the paper and later whether it was presented to ATF.
After Staff Sgt. Fitts answered under oath that he was present when Maj.
Petree himself presented ATF the paper, Maj. Petree acknowledged that he
had received it.
---------------------------------------------------------------------------
d. post-raid military assistance to the federal bureau of investigation
(february 28-april 19)
The standoff between the government and the Branch Davidians began
on February 28, 1993, as the cease-fire went into effect following the
ATF's failed raid on the Branch Davidian residence. During that time
personnel and equipment of the U.S. Armed Forces were present at or near
the Branch Davidian residence.
1. Military equipment and personnel provided
a. Active duty personnel and equipment
During the standoff, a limited number of active duty military
personnel were present at the Branch Davidian residence providing
services to the FBI in support of the FBI's activities during the
standoff. Most of these troops were dressed in uniforms which indicated
their, rank, service, and function. A small number of troops present at
the site were assigned to Army Special Forces units. Because the
military occupational specialties of these troops are classified, they
dressed in civilian clothes while at or near the Branch Davidian
residence and did not identify themselves as military personnel.
Additionally, one of the two senior Army officers present at the April
14 meeting with the Attorney General also visited the Branch Davidian
residence in order to personally view the tactical situation. This
officer was present at the Branch Davidian residence for part of 1 day.
The type of support provided by the active duty troops consisted
primarily of performing repairs and maintenance on sophisticated
observation and electronics equipment \358\ provided by the Defense
Department to the FBI. Active duty, enlisted military personnel set-up
the equipment and performed necessary maintenance on it. There is no
evidence that military personnel actually operated the equipment.
Instead, it appears that FBI agents operated this equipment. In one
instance, however, civilian employees of the Department of Defense
operated one piece of sophisticated electronics equipment.\359\ In
addition, active duty, enlisted military personnel performed repair and
maintenance work on the electronics equipment belonging to the FBI. The
accounts given by all personnel familiar with this aspect of the
operation and who were interviewed by the subcommittees confirm that,
with this one exception, only FBI personnel operated the equipment
during the standoff.
---------------------------------------------------------------------------
\358\ The electronics equipment was used to block the Davidians'
television reception.
\359\ Hearings Part 3 at 315 (statement of Allen Holmes, Assistant
Secretary of Defense for Special Operations and Low Intensity Conflict).
---------------------------------------------------------------------------
b. National Guard personnel and equipment
During the standoff, the Texas National Guard provided a number of
military vehicles to the FBI. Principal among these were 10 Bradley
Fighting Vehicles (Bradleys), 4 M728 Combat Engineering Vehicles
(CEV's), 2 M1A1 Abrams tanks, and 1 M88 tank retriever. The weapons
systems in those of these vehicles which are normally armed were removed
before they were transported to the Branch Davidian residence.\360\
---------------------------------------------------------------------------
\360\ Id. at 314.
---------------------------------------------------------------------------
During the standoff the Bradleys were used primarily as armored
personnel carriers to transport FBI officials to meetings with the
Davidians, to transport FBI agents to their observation posts around the
Branch Davidian residence, and by FBI agents to guard the perimeter of
the operation. During the insertion of the CS agent on April 19, the
Bradleys were used by FBI agents to maneuver close enough to the Branch
Davidian residence so that the agents could fire Ferret round
projectiles containing CS agent into the windows of the residence.
The CEV's were not used until April 19. Attached to each CEV was a
long triangular boom-like arm. Attached to the booms of two of the CEV's
were mounted devices that sprayed CS agent mixed with carbon dioxide. On
April 19, these CEV's were used to ram holes into the Davidians
residence. The operators in each CEV then inserted CS agent into the
building using the devices affixed to the boom. Insertions of CS agent
occurred in four distinct phases throughout the morning of the 19th. At
one point, one of the CEV's became damaged and could no longer spray CS
agent. As the day progressed, the FBI began to use the CEV's to
``deconstruct'' the Branch Davidian residence, using them to ram into
the corners and sides of the building, creating large openings in the
building. At one point, part of the rear roof collapsed after one CEV
made multiple entries into the side of the building.
In addition to these vehicles, a number of support vehicles (e.g.,
Humvees, used to transport personnel, and flatbed trucks, used to haul
the Bradleys and CEV's to Waco) were located at or near the Branch
Davidian residence. Additionally, Defense Department provided support
equipment (e.g., tents, generators, concertina wire) to the FBI.
An unknown number of Texas National Guard personnel were present
during the standoff. Most of these personnel performed maintenance on
the military vehicles loaned to the FBI or to provide support services
for these troops (i.e., National Guard cooks were present to prepare
meals for the mechanics). Other National Guard troops provided remedial
training to the FBI's HRT members who were to operate the Bradleys and
CEV's. Additionally, on April 19, some National Guard troops assisted
FBI agents in refilling the CEV's with the CS riot control agent.
c. Reimbursement
The Economy Act \361\ requires the Justice Department to reimburse
the Department of Defense for the cost of the equipment and personnel
support provided to it. The subcommittees have been informed that this
reimbursement has been made.
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\361\ 31 U.S.C. Sec. 1535.
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2. Advice/consultation provided by military officers
a. Request by Texas Governor
When Texas Governor Ann Richards learned of the failed ATF raid on
February 28, she requested to consult with a knowledgeable military
officer about the incident. In response to her request, the commander of
the U.S. Army's III Corps at Fort Hood, TX, asked the assistant division
commander of the First Cavalry Division of the III Corps, also at Fort
Hood, to meet with Governor Richards. That officer met with the Governor
on the evening of February 28. During the meeting, the officer answered
the Governor's questions concerning the types of military equipment the
ATF had used during the raid and the types of military equipment which
Federal law enforcement officials might use in the future. The Governor
also requested that the officer meet with the Texas Adjutant General
(the commander of the Texas National Guard), who only recently had been
appointed to his position.
b. Visit to the Branch Davidian residence with FBI officials
Two senior Army officers participated in a meeting of Justice
Department and FBI officials with the Attorney General on April 14.
During the meeting, the participants discussed the FBI's plan to end the
standoff. The subcommittees' investigation revealed that one of the Army
officers visited the Branch Davidian residence on April 13, accompanied
by HRT commander Rogers.
During a briefing of the subcommittees these officers indicated that
Rogers had arranged for the officers to be included in the April 14
meeting and had invited one of them to view the Branch Davidian
residence to better understand the tactical situation. Rogers met the
officer at the Branch Davidian residence and arranged for a helicopter
tour of the perimeter of the area. The officer informed the
subcommittees that he only observed the FBI's activities there and did
not take part in the ongoing operation. The officer and Rogers then left
Waco to travel to Washington for the meeting with Attorney General Reno.
The officer further informed the subcommittees that his visit to the
Branch Davidian residence was his first visit and that he did not return
to the Branch Davidian residence after April 14. The other officer
present at the April 14 meeting stated that he did not visit the Branch
Davidian residence at any time. The subcommittees' interviews with both
FBI and other military personnel present at Waco during the standoff
confirmed the statements of the Army officers.
c. April 14, 1993 meeting with Attorney General Reno
On April 14, 1993, a meeting was held in the office of the Director
of the FBI with Attorney General Reno and several Justice Department and
FBI officials. According to the Justice Department Report, ``several
military representatives'' were also present.\362\ The subcommittees'
investigation identified the two senior military officers present at the
meeting. These two officers briefed the members of the subcommittees in
a classified briefing in July of 1995 in conjunction with the
subcommittees' public hearings. Additionally, a Defense Department
representative testified before the subcommittees in open session
generally as to the discussions between the officers and Attorney
General Reno on April 14, 1993.
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\362\ Justice Department Report at 266.
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The officers present at the April 14 meeting at the invitation of
FBI officials were to answer any questions Attorney General Reno might
pose about the FBI's plan to end the standoff. The officers understood
they had been selected to attend the meeting because of their special
tactical training and experience. Additionally, HRT commander Rogers
knew one of the officers personally and had facilitated the request from
the Justice Department to Defense Department that the officers attend
the meeting.\363\
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\363\ Hearings Part 3 at 304, 314 (statement of Allen Holmes,
Assistant Secretary of Defense for Special Operations and Low Intensity
Conflict).
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The officers informed Attorney General Reno that they could not
comment on specific FBI plans to end the standoff.\364\ One of the
officers did inform Attorney General Reno that if the HRT had been a
military force under his command, he would recommend pulling it away
from the Branch Davidian residence for rest and retraining.\365\ They
also explained to Attorney General Reno that if the military had been
called in to end a barricade situation as part of a military operation
in a foreign country, it would focus its efforts on ``taking out'' the
leader of the operation.
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\364\ Id. at 304.
\365\ Id. at 304, 314.
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The officers believed Attorney General Reno understood their
comments as an illustration of the tactical principal that a group
heavily dependent on a charismatic leader for direction, such as the
Davidians, can best be controlled if the leader is removed from control.
The officers believe Attorney General Reno understood that their
comments were appropriate to a military operation abroad but were not
directly applicable to the domestic law enforcement situation facing
Attorney General Reno.
3. Foreign military personnel
Foreign military personnel were present at the Branch Davidian
residence during the standoff sometime in March. The two persons present
were members of the 22nd Regiment of the British Army's Special Air
Service (SAS). This branch possesses special tactical military skills
and has a role similar to U.S. Army Special Forces troops. American
military personnel present during the standoff informed the
subcommittees that the SAS personnel observed the activities of the FBI
and took no part in the actions of the military or the FBI. The two SAS
representatives were not present on April 19, the date the standoff
ended.
Accordingly to the Justice Department's written response to
questions submitted by the subcommittees, the SAS personnel were present
at Fort Bragg, NC in early 1993 on other business and requested to
observe the FBI's HRT command post and forward tactical positions at
Waco. FBI officials have informed the subcommittees that the HRT
maintains liaison with the military and law enforcement counter-
terrorist units of friendly foreign countries, including the United
Kingdom, Germany, Italy, Spain, Australia, and Denmark. HRT commanders
occasionally invite representatives of these units, a well as the U.S.
Army Special Forces, to observe operations in which the HRT is engaged,
as each of the organizations has similar skills and performs similar
functions. This professional courtesy apparently is extended to FBI
officials as well by the U.S. Special Forces and the counter-terrorist
units of the countries listed above. The FBI explained the presence of
the SAS personnel at the Branch Davidian residence as an example of this
type of information-sharing.
The subcommittees' investigation finds no support for the assertions
made by some that SAS personnel, or any other foreign persons, took part
in the activities of U.S. Government agencies at the Branch Davidian
residence. Accordingly, the subcommittees conclude that the two SAS
personnel were the only foreign persons present at the Branch Davidian
residence \366\ and that they took no part in the government's
activities there.
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\366\ Other than some of the Davidians, several of whom were foreign
nationals.
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e. findings concerning military involvement in the government operations
at waco
1. The Posse Comitatus Act was not violated.
a. No violations of the Posse Comitatus Act occurred up to February
28, 1993. The subcommittees conclude that no actual violation of the
Posse Comitatus Act occurred as a result of the military support
provided to the ATF through February 29, 1993. The subcommittees review
of this question was divided into two parts: the support provided by
active duty military personnel prior to February 28 and the support
provided by Texas National Guard troops up to and on February 28, 1993.
The subcommittees find no violation of the Posse Comitatus Act as a
result of the support provided by the active duty military personnel who
facilitated the training of ATF agents at Fort Hood, TX in late February
1993. The ATF's initial request to Operation Alliance included a request
that military medical personnel actually participate in the raid on the
Branch Davidian residence. The ATF also requested that military
personnel participate in the formulation of the ATF's overall raid plan
against the Davidians' residence. These requests raised the concern of
military lawyers due to their Posse Comitatus implications. The
subcommittees conclude that these officers were correct to raise these
concerns and that their actions helped prevent a violation of the Posse
Comitatus Act.
As a result of the concern by these officers as to ATF's request,
less support was provided than initially requested. That support was
limited to providing and staffing a training area for the ATF at Fort
Hood, teaching basic first aid, and providing general advice on
communications questions. Because these activities do not rise to the
level of direct participation in a law enforcement action, they did not
violate the Posse Comitatus Act.
The subcommittees also find no violation of the Posse Comitatus Act
as a result of the support provided by the Texas National Guard which
participated in the training that the ATF conducted for its agents at
Fort Hood, TX in late February 1993 and which flew the helicopters on
February 28 that were part of the ATF's raid on the Branch Davidian
residence. The Texas National Guard troops who participated in these
activities were acting in their ``state national guard'' status under
the command and control of the Governor of Texas, even though the costs
of the operation were paid by the Federal Government pursuant to title
32 of the U.S. Code.
The Posse Comitatus Act does not govern the actions of the National
Guard when it is acting in a non-Federal (i.e., State) status. Because
the Texas National Guard troops participating in the ATF's training and
the raid itself were acting in this status, the Posse Comitatus Act did
not apply to them. Accordingly, no violation was possible and none,
therefore, occurred.
b. No violations of the Posse Comitatus Act occurred after February
28, 1993. The subcommittees conclude that no actual violation of the
Posse Comitatus Act occurred as a result of the military support
provided to the FBI after February 28, 1993. The subcommittees review of
this question involved two issues: the support provided by active duty
military personnel prior to February 28 and the support provided by
Texas National Guard troops through April 19, 1993.
The subcommittees find no violation of the Posse Comitatus Act as a
result of the support provided by the active duty military personnel who
were present at the Branch Davidian residence from February 28, 1993 to
April 19, 1993. The subcommittees' investigation indicates, and the
testimony of the witnesses who testified at the hearings confirmed that
no active duty military personnel actively participated in any actions
that can be characterized as the exercise of the law. The actions of the
enlisted personnel appear to have been limited to setting up equipment
and performing maintenance on it, or providing support to other military
personnel (e.g., transportation, food service). All of the military
personnel interviewed by the subcommittees confirmed that only FBI
employees operated the military equipment during the law enforcement
activities conducted at the Branch Davidian residence. The subcommittees
found no evidence to the contrary.
As discussed above, the Posse Comitatus Act does not govern the
actions of the National Guard when it is acting in a non-Federal (i.e.,
State) status. Accordingly, none of the actions taken by the National
Guard during the standoff violated the Posse Comitatus Act. The
subcommittees note, however, that it appears that the National Guard's
role during the standoff was very limited. The National Guard role
generally involved troops transporting to the Branch Davidian residence
all of the military vehicles used by the FBI during the standoff and
performing routine maintenance on them.
On April 19, National Guard troops assisted the FBI in refilling the
CEV's with the CS agent used in the unsuccessful effort to induce the
Davidians to leave the residence. Because the National Guard troops are
not subject to the Prohibitions of the Posse Comitatus Act when acting
in their State status, no violation occurred. The subcommittees note,
however, that had the National Guard troops instead been active duty
personnel, or acting in a Federal status, their participation in the
execution of the CS gas plan would have violated the Posse Comitatus
Act.
2. The ATF misled the Defense Department as to the existence of a
drug nexus in order to obtain non-reimbursable support from the Defense
Department. The subcommittees conclude that the ATF intentionally misled
Defense Department and military personnel as to whether the Davidians
were operating an illegal drug manufacturing operation at the Davidian
residence. It appears that the ATF agents involved in planning the raid
knew that they could obtain support from the military at no cost in
preparation for their raid. It also appears that the ATF knew that this
support would be provided promptly if the presence of a drug
manufacturing operation was alleged. While there had been allegations
that a drug manufacturing operation was located at the Davidian
residence at some point in the mid to late 1980's before Koresh took
control of the group, there was no evidence that the drug operation
continued into late 1992. The ATF's misrepresentations improperly
enabled it to obtain military assistance from forces which otherwise
would not have provided it, more quickly than might have been possible,
and without having to reimburse the Defense Department as otherwise
would have been required under Federal law.
The subcommittees also conclude that the commander of the military
personnel providing the training knew or should have known that the
ATF's allegations as to the existence of a drug manufacturing operation
at the Davidian residence were, at best, overstated and were probably
untrue. His failure to raise this issue with his superiors is troubling.
The subcommittees believe this failure should be reviewed by Defense
Department authorities.
3. No foreign military personnel or other foreign persons took part
in any way in any of the government's actions toward the Branch
Davidians. While some foreign military personnel were present in Waco
during the government's operations toward the Davidians, there is no
evidence that any of these persons took part in the government's
operations in any way.
4. Civilian law enforcement's increasing use of militaristic tactics
is unacceptable. The FBI's and ATF's reliance on military type tactics
greatly concerns the subcommittees. The Waco and Ruby Ridge incidents
epitomize civilian law enforcement's growing acceptance and use of
military type tactics. The subcommittees find this trend unacceptable.
When ATF faced the option of conducting a regulatory inspection or
tactical operation, it chose the tactical operation. When ATF had to
decide between arresting Koresh away from the Branch Davidian residence
or a direct confrontation, it chose direct confrontation. ATF also
decided to conduct a dynamic entry as opposed to a siege.
The subcommittees are not recommending that the use of militaristic
tactics should always be precluded. The subcommittees acknowledge that
there are certain circumstances in which military type tactics may be
necessary. The subcommittees urge all Federal law enforcement agencies
to review their policies on military training and tactics and develop
appropriate guidelines for when such tactics are acceptable. Military
training, especially specialized training in combat tactics, should be
highly restricted and the use of military tactics, such as a dynamic
entry should be approved at the highest agency levels.
f. recommendations
1. 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 subcommittees
acknowledge that the Posse Comitatus Act has been and continues to be a
significant protection for the rights of the people. The events in Waco,
however, suggest that these protections may not be as strong as most
citizens assume.
As discussed above, the Posse Comitatus Act does not apply to the
National Guard when it is acting in its State status. As the events at
Waco illustrate, actions taken by National Guard troops can never
violate this law, even when those same acts would violate the law were
they undertaken by active duty military personnel. The subcommittees
question whether this distinction is acceptable to the American people.
The purpose of the Posse Comitatus Act is to prevent the government
from using the military against its own citizens. Yet the National Guard
and the Reserve exists in part, to augment the active duty military in
times of need. National Guard troops receive military training. National
Guard units are equipped with military equipment, in some cases the most
sophisticated and lethal military equipment in the Defense Department's
arsenal, including tanks, fighter and bomber aircraft, and armored
personnel carriers. These units, by design, possess many of the same
capabilities as active military units. In fact, almost one-half of the
U.S. Armed Forces is composed of National Guard and Reserve forces. When
activated by the President, the National Guard becomes part of the
active duty military.
While Federal law distinguishes between the National Guard in its
various ``statuses,'' this distinction is unclear to the vast majority
of the public. Many citizens no doubt would be surprised and concerned
to learn that components of the same forces the United States used in
Operation Desert Storm, Somalia, and Bosnia also can be used against
them in the United States as long as the ``status'' of the troops used
fits within the proper category. Given that many National Guard units
have force capabilities similar to that of active duty units, it makes
little common sense that one unit's activities may be constrained by the
Posse Comitatus Act while another's are not. In short, if it is
important to prevent military force from being used to enforce the civil
laws, it should matter little the ``status'' of the force used against
the citizenry.
The question of applying the Posse Comitatus Act to the National
Guard has not been examined recently by the Congress. Accordingly, the
subcommittees recommend that Congress hold hearings on this matter to
determine whether the Posse Comitatus Act should be broadened to apply
to the National Guard and what exceptions to the act's prohibitions, if
any, are appropriate to the National Guard in light of its role and
mission.
2. The Department of Defense should streamline the approval process
for military support so that both Posse Comitatus Act conflicts and drug
nexus controversies are avoided in the future. The subcommittees'
investigation revealed that Department of Defense procedures for
receiving, evaluating, and deciding upon requests for assistance from
domestic law enforcement agencies was unclear in early 1993. Generally,
requests for military assistance to domestic law enforcement agencies
were channeled through the Director of Military Support (DOMS), an Army
two-star general headquartered at the Pentagon who heads a staff that is
on-call 24 hours a day. In some cases, commanders of local military
bases are authorized to provide support without approval of the DOMS if
the requests are limited in scope.
As of 1993, requests for military support relating to counterdrug
operations were not required to be submitted to the DOMS for approval
but instead were channeled through Operation Alliance, a group
representing agencies such as the ATF, the Border Patrol, and other
Federal law enforcement agencies together with military representatives.
Operation Alliance serves merely as a clearinghouse for requests,
tasking actual military organizations to provide the support. In this
case, Operation Alliance tasked Joint Task Force-6 and the Texas
National Guard, two of the military organizations at its disposal.
Requests for support involving the use of lethal equipment, such as
Bradley Fighting Vehicles and tanks,\367\ were to be made through the
Office of the Secretary of Defense in the Pentagon. Apparently, however,
that requirement was not complied with in this case.
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\367\ As discussed above, however, while some of these vehicles are
considered lethal equipment the weapons systems in all of the military
vehicles used by the FBI during the standoff had been rendered
inoperative prior to the delivery of the vehicles to the Branch Davidian
residence. Hearings Part 3 at 314 (statement of Allen Holmes, Assistant
Secretary of Defense for Special Operations and Low Intensity Conflict).
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The subcommittees believe that authority for approving military
support for domestic law enforcement operations should be located within
one office within the Office of the Secretary of Defense. Centrally
locating this responsibility will help ensure that uniform standards are
applied in evaluating all requests for military support and that no
agencies can successfully ``end-run'' the approval process. It also will
reduce confusion among law enforcement agencies which, under the process
as it existed in 1993, first had to determine without Defense Department
guidance the purpose for the support (i.e., counterdrug or not
counterdrug) and the type of military assets that might be involved
(i.e. lethal assets or strictly non-lethal assets). The subcommittees
believe that it is best left to the military, in the first instance, to
determine the nature and type of support it is able to provide, in
keeping with the Posse Comitatus Act and it own need to fulfill its
primary defense mission.
The process for civilian law enforcement agencies receiving military
assistance must require that all requests and approvals be in writing,
specifying in detail the requested and approved military assistance.
Additionally, the Department of Defense needs to establish a clear and
concise standard for what constitutes a sufficient drug nexus. Congress
should specifically establish criminal and pecuniary penalties for
willful violations of the drug nexus standard.
The subcommittees acknowledge that in May 1995, the Secretary of
Defense directed the Under Secretary of Defense for Policy to establish
a working group ``to conduct a comprehensive review of the current
system by which Defense Department evaluates and responds to request for
assistance initiated by outside agencies.'' As a result of the working
group's recommendations, the Secretary recently directed that requests
for military support are to be channeled through the Office of the
Assistant Secretary of Defense for Special Operations and Low Intensity
Conflict. The subcommittees commend this decision to centralize the
approval process for providing this type of support. This policy should
be frequently monitored so as to ensure that law enforcement agencies,
and field commanders, are complying with it.
3. Congress should review the legal status of memoranda of agreement
for the interstate use of National Guard personnel for civilian law
enforcement purposes. The subcommittees' investigation revealed that the
use of National Guard personnel across State lines for law enforcement
purposes is a common practice. This practice is conducted through
simple, pro forma memoranda of agreement which rarely take into account
State laws governing the use of the National Guard. The subcommittees
believe that, in practice, many of these agreements supersede State
constitutions and statutes without legal authority. The subcommittees
are concerned that these agreements do not comply with Federal laws and
may violate the U.S. Constitution.
The subcommittees recommend that Congress, the Department of
Defense, and its National Guard Bureau come to an agreement on the
proper legal status of these National Guard Memoranda of Agreement. If
it is determined these agreements require congressional ratification,
procedures to obtain such approval should be established by the National
Guard Bureau.
Regardless of whether these memoranda of agreement require
congressional ratification, however, the National Guard Bureau should
establish a centralized review process for all Memoranda of Agreement
involving the interstate use of the National Guard personnel. This
review process must include a per case legal determination that
pertinent State law is not violated by the agreement.
4. 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. If violations of the Anti-Deficiency Act or other
Federal laws are found, the appropriate legal action should occur,
including criminal prosecution if permitted under existing law.
5. The General Accounting Office should investigate the activities
of Operation Alliance in light of the Waco incident. The subcommittees
concluded that Operation Alliance personnel knew or should have known
that ATF did not have a sufficient drug nexus to warrant the military
support provided to it on a non-reimbursable basis. Senior DEA agents
were members of the Operation Alliance board which approved requests for
military assistance, yet they voiced no concerns regarding ATF's plan to
directly assault an alleged active methamphetamine laboratory. Military
officers were present when ATF was presented a paper detailing the
potential dangers and special precautions required when dealing with an
active methamphetamine laboratory. The purpose of the meeting was to
determine whether a drug nexus existed. Even though there was evidence
that no drug existed, those military officers present took no action.
UPS receipts which allegedly detailed deliveries of precursor chemicals
to the Branch Davidian residence and were used to substantiate the drug
nexus were nowhere to be found when the subcommittees requested copies.
Additionally, the subcommittees' review of military documents
provided at their request and the results of interviews with persons
involved in this matter clearly demonstrate that there was a continuing
concern from senior military officers that JTF-6 was providing support
to non-counterdrug activities, and that the Special Operations Command
was attempting to reinforce resistance to this recurring misuse of
military counterdrug assets and funds, referred to as ``cheating.''
Given that the military assistance to ATF for Waco under dubious
circumstances appears to not have been an anomaly, and the fact that
Operation Alliance's jurisdiction has significantly expanded since Waco,
the subcommittees recommend that the General Accounting Office
investigate the activities of Operation Alliance.