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VII. The Attorney General's Decision to End the Stand-off
a. overview of the plan to end the standoff
On April 12, 1993, the FBI presented Attorney General Janet Reno
with a plan to end the standoff with the Branch Davidians. On April 17,
1993, the Attorney General gave her approval for the plan to be
implemented on April 19. The stated mission of the plan was to ``secure
the surrender/arrest of all adult occupants of the residence while
providing the maximum possible security for the children within the
compound.'' A key component of the plan was the decision to use CS, a
chemical riot control agent, which would be sprayed into the Branch
Davidian residence in an attempt to induce the Davidians to leave. The
plan was implemented on April 19, but the Davidians did not leave their
residence as government officials suggested. Instead, 6 hours after the
beginning of the operations, a fire erupted inside the structure,
ultimately consuming it and the more than 70 persons inside.
b. the operation plan for april 19, 1993
1. Overview of the written operation plan to end the standoff
As early as March 22, 1993 the FBI began formulating an operation
plan to end the standoff with the Davidians.\494\ On April 12, 1993, the
FBI presented its plan to the Attorney General for her approval.\495\
According to the Justice Department Report, ``Over the next several days
the Attorney General and Senior Justice Department and FBI officials
discussed, debated and dissected every aspect of the plan.'' \496\
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\494\ U.S. Dept. of Justice, Report to the Attorney General on the
Events at Waco, Texas 79 (1993) [hereinafter Justice Department Report].
Larry Potts, Assistant Director of the FBI in 1993, testified before the
subcommittees that ``[I]n terms of the formation of the gas plan, I
think that Mr. Jamar first contacted me around March 27th or sometime
near the very end of March, to indicate that such a plan was being
submitted [to senior FBI officials].'' Hearings Part 2 at 480.
\495\ Justice Department Report at 263.
\496\ Id.
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The operations plan provided that its mission was to ``secure the
surrender/arrest of all adult occupants of the residence while providing
the maximum possible security for the children within the compound.''
The key component of the plan was the delivery of a chemical riot
control agent, known as CS, into the Branch Davidian residence in order
to induce the Davidians to leave. While the CS agent was being inserted,
FBI officials planned to use a loud speaker system and the telephone to
advise the Davidians that tear gas was being inserted into the residence
to force them to leave, but that an attack was not underway. The plan
also provided for a demand that all subjects leave the building and
surrender to authorities.\497\
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\497\ Federal Bureau of Investigation, Briefing for the Attorney
General, at 25. [See Documents produced to the subcommittees by the
Department of Justice 003370-003480, at Appendix [hereinafter Justice
Documents]. The Appendix is published separately.]
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The plan provided for the operation to last up to 48 hours or until
all subjects had exited the residence and surrendered. The plan provided
for the first insertion of CS agent to be made into the front/left
portion of the residence. After a period of time, which was to be
dependent on the Davidians' response to the initial delivery of the CS
agent and any subsequent negotiations that were possible, an additional
tear gas delivery was to be made into the back/right portion of the
residence. After a third delivery of CS, into an area not specified in
the plan, all subsequent deliveries of CS agent were to be made into the
upper and lower windows of the residence.\498\
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\498\ Id.
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During the first three insertions, the CS agent was to be delivered
into the residence by two combat engineering vehicles (CEV's), an
armored vehicle similar to the Bradley Fighting Vehicle (Bradley), but
which is unarmed. The CEV's at Waco were mounted with boom-like arms
which were capable of penetrating the walls of the structure. Mounted on
the arms of the CEV's were mechanical devices designed to spray a stream
of CS agent into the holes made by the booms. After the third insertions
of CS agent, the operations plan called for agents located in unarmed
Bradley Fighting Vehicles to maneuver close enough to the residence so
that they could fire Ferret round projectiles through the windows of the
structure. These small non-explosive grenade-like projectiles contained
CS agent which would rise into the air when the projectile broke open
upon impact. The use of Ferret rounds was to be in addition to
continuing insertions of CS by agents in the CEV's.
The plan also provided for specific assignments for the different
HRT and SWAT teams involved in the operation. It specified the maneuvers
to be made by the two CEV's, the nine Bradley Fighting Vehicles, and the
M-88 tank retrieval vehicle, and provided for miscellaneous
administrative and logistical issues such as types of uniforms to be
used and the appropriate manner for handling prisoners.
Additionally, the plan provided to the Attorney General on April 12,
1993 included details concerning where the FBI's snipers were to be
positioned and the positioning and capabilities of SWAT team members.
The plan contained a ``medical annex'' providing for a means to treat
``the potentially large number of casualties which could exceed the
current medical capabilities of any single agency present'' as well as
procedures to be followed to arrest persons who had been exposed to CS.
The annex also provided for locations where the injured were to be
treated, provided a list of local and secondary hospitals (including
address, latitude/longitude location, and estimated air travel time).
And the medical annex provided instructions to the agents on the
procedure to handle a mass surrender by the Davidians.
Finally, the plan provided for the possibility that the Davidians
might not surrender. The final contingency provision in the plan stated
that ``if all subjects failed to surrender after 48 hours of tear gas,
then a CEV with a modified blade will commence a systematic opening up/
disassembly of the structure until all subjects are located.''
2. Acceleration provisions of the operations plan
While the operations plan called for the government's actions to end
the standoff to unfold over a period of 2 days, the plan also contained
contingency provisions that allowed for a departure from the concept of
a methodical insertion of CS. One of these provisions was implemented on
April 19 and resulted in a rapid acceleration of the insertion of CS
agent.
The first of the two contingency provisions in the plan provided
that if the Davidians were observed in the tower during the operations,
after having been informed not to be there, agents were permitted to
insert CS gas into the tower by firing Ferret round projectiles into the
tower. More importantly, however, the second contingency provision in
the plan provided:
If during any tear gas delivery operations, subjects open fire
with a weapon, then the FBI rules of engagement will apply and
appropriate deadly force will be used. Additionally, tear gas
will immediately be inserted into all windows of the compound
utilizing the four Bradley Vehicles as well as the CEV's.\499\
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\499\ Id.
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c. the way the plan actually unfolded
At approximately 5:55 a.m., Dick Rogers, commander of the FBI's
Hostage Rescue Team, ordered the two CEV's, which were to insert the CS
riot control agent, deployed to the compound. At 5:56 a.m., the FBI's
chief day-to-day negotiator, Byron Sage, telephoned the residence and
asked to speak with Davidian Steve Schneider. It took approximately 3
minutes for someone to come to the phone.\500\ At 5:59 a.m., Sage
informed the person answering the telephone that ``We are in the process
of putting tear gas into the building. This is not an assault. We will
not enter the building.'' The person on the other end of the telephone
responded ``You are going to spray tear gas into the building?''
whereupon Sage replied, ``In the building . . . no, we are not entering
the building.'' \501\ While the Justice Department Report is ambiguous
on the person to whom Sage was speaking, Sage testified at the hearings
before the subcommittees that the person he talked with was
Schneider.\502\ At the conclusion of this conversation, someone threw
the telephone outside of the building.\503\
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\500\ Justice Department Report at 285.
\501\ Justice Department Report at 286.
\502\ Hearings Part 3 at 269.
\503\ Justice Department Report at 286.
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From 6 a.m. to approximately noon on April 19, 1993, FBI agents
implemented the operations plan and injected a large quantity of CS riot
control agent into the Branch Davidian residence in four distinct
phases. The agents moved close to the Davidian residence in CEV's
equipped with devices \504\ which could shoot a horizontal stream of CS
agent in short bursts or continuously for up to 15 seconds.\505\ The
device uses carbon dioxide as a disbursant to propel a stream of CS
agent, suspended in methylene chloride, horizontally into the air. Once
the CS stream is fired, the carbon dioxide quickly evaporates and the
methylene chloride gas disperses the CS evenly through a room, until the
methylene chloride itself evaporates. The CS agent, which is a fine
powder, then slowly falls to the floor, where it remains. The capacity
of each delivery system on the CEV's was 30 grams of CS agent.
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\504\ The delivery systems mounted on the CEV's were Protecto-jet
Model 5 Tear Gas Delivery Systems manufactured by ISPRA, Ltd., an
Israeli company. The systems were sold to the FBI by Advanced Materials
Laboratories, Inc. of Forrest Hills, NY. The Justice Department Report
refers to the systems as Mark V systems. See Justice Department Report
at 287. The subcommittees investigation indicates that while the Mark V
system does exist, there is no evidence that it was used at Waco. The
evidence indicates that only the Protecto-jet Model 5 system was mounted
on the CEV's furnished to the FBI by the Defense Department. The
references to the Mark V system in the Justice Department Report appear
to be in error.
\505\ The Protecto-jet Model 5 system consists of a cylinder
approximately 27 inches long, 4\1/8\ inches in diameter, weighing
approximately 16 lbs., which is connected to a hose with a nozzle. The
device uses carbon dioxide to propel a chemical agent, such as CS, mixed
in a suspension of methylene chloride, into the air. The range of the
device is 15-20 yards in still air. The device can be used to shoot 13-
17 1-second bursts or a continuous burst for up to 15 seconds.
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The insertion of CS agent into the Branch Davidian residence was
performed in four phases. The first two phases employed two CEV's. On
one CEV was mounted two CS delivery systems, while four systems were
mounted on the second CEV. The CEV's were operated in tandem, each
inserting the entire contents of the six CS agent delivery systems
during the first two phases of the operation, at 6 a.m. and again at
approximately 8 a.m. In each of the first two phases, a total of 180
grams of CS was delivered. The third and fourth phases, also 2 hours
apart, involved only one CEV, as the second CEV had experienced
mechanical difficulties and no longer operated. Four cylinders of CS
were delivered in each of these two phases, for a total 120 grams of CS
inserted into the residence. Thus, over the entire 6 hours of the
operation, a total of 600 grams of CS agent was inserted into the Branch
Davidian residence.
During the standoff with the Davidians, FBI agents used unarmed
Bradley Fighting Vehicles as a means of transportation while guarding
the perimeter of the residence. The FBI's overall operational plan for
April 19 provided for the Bradleys to be used in a contingency plan to
be implemented in the event the Davidians began to fire on the CEV's. If
that occurred, agents in Bradleys who had maneuvered close to the
building and were standing ready were to insert additional quantities of
CS agent into all parts of the building. Agents in the Bradleys were to
fire Ferret round projectiles into the residence. Ferret rounds \506\
resemble large plastic bullets, and are fired from hand-held grenade
launchers. Each projectile carries 3.7 grams of CS agent, mixed in a
suspension of methylene chloride.
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\506\ Ferret Rounds are 37, 38, and 40 millimeter projectiles which
can be fired from hand-held grenade launchers. Each projectile carries
3.7 grams of CS riot control agent, mixed in a suspension of methylene
chloride.
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Once the Davidians began firing on the CEV's Rogers gave the order
to implement the contingency plan. The agents in the Bradleys then
maneuvered close to the Branch Davidian residence and began to fire the
Ferret round projectiles through the windows of the building. During the
6-hour operation, 400 Ferret round projectiles were fired at the Branch
Davidian residence, a number of projectiles struck the side of the
building and did not enter the building. Estimates of the number of
projectiles that actually entered the residence range from 300 to 380.
Had all 400 projectiles fired at the residence actually entered the
residence, however, the total quantity of CS agent delivered by the
Ferret round projectiles would have been 1,480 grams.
d. overview of the use of cs chemical agent
1. Introduction
Chlorobenzylidene malononitrile, commonly called CS, is one of a
family of approximately 15 chemical compounds used to control civilian
populations during periods of disturbance and unrest. These ``riot-
control agents'' cause acute irritation to the eyes, mouth, nose, and
upper respiratory tract, that is relatively brief and not usually
accompanied by permanent toxic effects. Exposure to riot-control agents
renders the victim temporarily incapacitated, but the symptoms typically
persist for only a few minutes after cessation of exposure.\507\
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\507\ F.W. Beswick, Chemical Agents Used in Riot-Control and
Warfare, 2 Hum. Toxicology 247-256.
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The first riot control agent was developed in the early 1900's.\508\
In 1928, two chemists, Corson and Stoughton, developed 2-
chlorobenzylidene malononitrile, code named CS. However, CS was not
developed as riot-control agent until the 1950's, when the British War
Office began to search for a chemical that was more potent than either
CA or CN.\509\ By the 1960's, CS had replaced CN as the preferred tear
gas among police authorities around the world. Its popularity stemmed
from the fact that it was shown to be a more potent irritant than CN,
and appeared to cause less long-term injury, particularly to the
eye.\510\ Military forces also saw CS as a potent weapon for particular
operations. Large quantities of CS were used by the United States during
the Vietnam War. CN is no longer used by the U.S. military operations,
but it is still used by some civil authorities, and by individuals for
self-defense. Among civilian law enforcement agencies CS is, by far, the
most widely-used riot control agent.
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\508\ The first riot-control agent may have been ethyl bromacetate,
which was used by the Paris police in a hand grenade to disable criminal
gangs. The German chemical industry that produced many lethal chemical
weapons during World War I (e.g., nerve gases) also developed new tear
gases. For example, xylyl bromide was packed in 150-mm artillery shells
and used during the battle against the Russians at Bolimow in January
1915. This early military use of a tear gas was not judged to be a
success, owing to the failure of the chemical to vaporize in the sub-
zero temperatures on the battlefield. However, it provided an early
indication of the importance of weather conditions to the effectiveness
of these agents. By 1918, the French had developed bromobenzylcyanide,
known by the military code CA, and the British and Americans had
developed chloroacetophenone, known by the military code CN, which
became the most effective and widely used tear gas. In the postwar
period, the urban crime wave and emergence of gangsters in the 1920's in
the United States spurred renewed efforts to develop riot-control
agents. By the mid-1920's, small explosive cartridges containing CN were
available over the counter for personal protection. CN rapidly became
the tear gas of choice for law-enforcement authorities. Howard Hu,
Toxicodynamics of Riot-Control Agents (Lacriminators) 271, 273 in
Chemical Warfare Agents (Satu M. Somani ed., 1992).
\509\ J. Cookson and J. Nottingham, A Survey of Chemical and
Biological Warfare (1969).
\510\ Hu, supra note 508.
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2. Concerns over use of CS
CS has gained wide acceptance as a means of controlling and subduing
riotous crowds. However, its widespread use has raised questions about
its safety. Most published studies have concluded that, if used
correctly, the irritant effects of exposure are short-lived and do not
cause permanent damage.\511\ However, there have been isolated reports
of fatalities from the use of riot control agents. The most common
reports involve deaths attributed to the use of riot control agents by
American miltary personnel in Vietnam.\512\ Additionally, other reports
involve injury and death from the use of CS in Chile, Panama, South
Korea, and the Gaza Strip and West Bank of Israel.\513\ It has been
unclear from these reports, however, whether the riot control agent used
was CS or another, more toxic, agent.\514\ Of particular concern,
however, has been the indiscriminate use of riot control agents in
enclosed and indoor spaces where it is feared that resulting high
concentrations may have resulted in harmful levels of exposure. Severe
injuries from exploding tear gas grenades as well as deaths from the
toxicity of riot control agents used in confined, indoor spaces have
been reported.
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\511\ The most thorough study of the use of CS agent against humans
is the Himsworth Report, which investigated the use of CS agent in
Northern Ireland in 1969. It concluded that exposure to CS did not
produce long-term injury or death in humans. Home Office, report of the
enquiry into the Medical and Toxicological aspects of CS (Ortho-
chlorobenzylidene malononitrile), Part II: Inquiry into Toxicological
Aspects of CS and its use for Civil Purposes (1971) [hereinafter
Himsworth Report]. A recent study of the use of CS on 1,500 persons in a
confined area space made the same findings. P.J. Anderson et al., Acute
effects of the potent lacrimator o-chlorobenzylidene malonitrile (CS)
tear gas, 15 Hum. & Experimental Toxicology 461, 464-465 (1996).
\512\ The United States used large amounts of CS during the Vietnam
War in both offensive and defensive military operations. The basic
doctrine for the use of CS weapons by U.S. sources is summarized in the
following passage taken from a 1969 Army training circular:
The employment of riot-control agents (CS, CN) in Counter guerilla
operations is most feasible in tactical situations characterized by
close combat in which rapidly responding systems are essential and
permanent effects are undesirable. Riot-control munitions can be used
tactically to temporarily disable hostile troops, to suppress their
fire, or to cause them to abandon their position. Offensively, riot-
control agents can be used to ``flush out'' unprotected enemy troops
from concealed positions or to reduce their ability to maneuver or use
their weapons. Defensively, riot-control munitions can be integrated
into defensive perimeters to provide rapid CS delivery in case of enemy
attack.
CS was employed for defensive purposes such as in the event of a
surprise attack from superior enemy forces, and to help secure
helicopter extractions of combat units or downed airman. It was used
extensively in area-denial operations to render terrain uninhabitable by
the enemy. CS was also used routinely in direct engagement of the enemy
during offensive combat operations.
U.S. forces were issued gas masks to protect themselves against use
of CS and other tear gases by the enemy. According to one U.S.
evaluation, the North Vietnamese had only a limited supply of tear gas,
but they used it to good effect. During the conflict, the general
service respirator was replaced by a lighter mask, which went through a
number of further modifications. The protection which it conferred was
adequate but not complete, because dense CS aerosols can have a strong
irritant effect on bare skin, especially in hot and humid conditions
when the skin is moist.
\513\ See generally, H. Jack Geiger & Robert M. Cook-Deegan, The
Role of Physicians in Conflicts and Humanitarian Crises, Case Studies
from the Field Missions of Physicians for Human Rights, 1988 to 1993,
270 JAMA 616 (1993).
\514\ In a 1989 report, the General Accounting Office noted that the
group Physicians for Human Rights had conducted a fact-finding trip to
investigate allegations of deaths from the use of CS in the occupied
territories but that the members of the group could not confirm that any
of the reported deaths were attributable to tear gas inhalation. See
e.g., U.S. General Accounting Office, Isreal: Use of U.S.--Manufactured
Tear Gas in the Occupied Territories 3 (1989) (citing Physicians for
Human Rights, ``The Casualties of Conflict: Medical Care and Human
Rights in the West Bank and Gaza Strip,'' Report of a Medical Fact
Finding Mission by Physicians for Human Rights (1988)). The GAO report
also noted that while Amnesty International had reported concerns over a
``pattern of death [that] appeared to follow expose to high
concentrations of tear gas'' they also stated that ``Amnesty
International noted that it was in no position to verify the exact cause
of death in every case.'' Id. at 4.
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Critics of the use of these agents argue that the available
toxicological data is insufficient to describe with any confidence the
potential for long-term pulmonary, carcinogenic, and reproductive
effects. One recently published review of the toxicological data on riot
control agents concluded that relatively little has been published in
the mainstream medical literature and that epidemiologic studies
following tear gas use under actual field conditions are almost
nonexistent. The author of this review wrote:
There is clearly a great need for openly conducted research
illuminating the full health consequences of exposure to riot-
control agents including outcomes such as tumor formation,
reproductive effects, and pulmonary disease. Consideration must
be given to the possible effects of these agents on the young,
the elderly, and other persons who might have increased
susceptibility.\515\
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\515\ Hu, supra note 508, at 284-285.
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e. clinical effects and toxicity of cs
1. Common effects of exposure to CS
All riot control agents, including CS, produce intense sensory
irritation even in the most minute concentrations. For most of these
agents, the eye is the most sensitive organ, with pain arising rapidly,
accompanied by conjunctivitis, excessive tearing, and uncontrolled
blinking. The inside of the mouth and nose experience a stinging or
burning sensation, and there is usually excessive discharge of nasal
mucus. Chest tightness and burning are accompanied by coughing,
sneezing, and increased secretions from the respiratory passageways. A
burning sensation is felt on the skin, often followed by inflammation
and redness, and in some cases, actual burning of the skin occurs. Tear
gas exposure may also irritate the stomach, leading to vomiting and
possibly diarrhea. In addition to the physical symptoms, panic and
severe agitation are common among those individuals with no prior
experience of exposure to tear gas.\516\
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\516\ See generally Id. at 276; Anderson, supra note 511, at 461.
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Most of the symptoms are felt within 10 to 30 seconds after exposure
to the agent. After cessation of exposure, however, most symptoms
continue to persist for a period of minutes before subsiding and
disappearing.\517\ The effects of expose vary among individuals.
Additionally, weather conditions, such as temperature and humidity, can
heighten the potency of these agents.\518\
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\517\ Hu, supra note 508, at 276.
\518\ Id. at 277.
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2. Toxicity of CS
A review of the scientific literature concerning the use of CS
indicates that limited conclusions as to the toxicity and lethality of
CS are known. It seems generally accepted by the scientific community
that the concentration of CS agent which is noticeable by humans and
which will provoke physical responses in humans is 4 milligrams per
cubic meter (4 mg/m\3\).\519\ While no studies on humans have been
conducted concerning the lethality of CS, several studies have projected
the concentrations at which CS is lethal to humans from the effects of
studies performed on animals. Those studies estimate that the
concentration of CS agent which would prove lethal to 50 percent of any
given human population ranges from as low as 25,000 \520\ to as high as
150,000 mg-min/m\3\.\521\ Recent estimates by the U.S. military,
however, estimate that the lethal concentration for humans is 61,000 mg-
min/m\3\.\522\ That study projects that the concentrations which would
be injurious to the health of approximately 50 percent of any human
population range from between 10-20 mg-min/m\3\.\523\
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\519\ Bryan Ballantyne, Riot Control Agents, Biomedical and Health
Aspects of the Use of Chemicals in Civil Disturbances 27 (1977); Hu,
supra note 508, at 279.
\520\ Dow Chemical Co., Material Data Safety Sheet (1988);
Ballantyne, supra note 519.
\521\ Id.
\522\ Headquarters, Departments of the Army, Navy, and the Air
Force, Potential Military Chemical/Biological Agents and Compounds 59
(1989).
\523\ Id.
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It is important to note, however, that there are no published
studies which find that any human death has been caused by exposure to
CS agent. While a number of unverified reports of human deaths can be
found in the literature, in all of these reports it is unclear precisely
whether CS or some other, more toxic, riot control agent was used or
whether some other circumstance could have caused the deaths. The most
extensive study of the use of CS agent on humans, by United Kingdom
forces in Northern Ireland in the late 1960's, found that no deaths (and
no long-term injuries) resulted from the widespread use of CS agent
there.\524\ The only other documented study of the effects of CS used on
a large number of humans confirms this finding.\525\
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\524\ Himsworth Report, supra note 511, at 23-25.
\525\ Anderson, supra note 511, at 464-465.
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Some people may find curious the fact that all of these studies (and
similar studies on the effects of chemical agents) uniformly give
estimates of the level at which CS is lethal or injurious to 50 percent
of a given population of humans. It appears from the literature that the
effect of CS on humans (and on other animals) is not ``linear,'' i.e.,
that proportionately greater concentrations do not have equally
proportionate increases in effect. While scientists can estimate the
levels which would prove lethal to 50 percent of a given population, it
would be incorrect to presume that half of that quantity would kill 25
percent of that population. In fact, the most well-known study of the
effects of CS on humans estimates that the likelihood of death after
exposure to a dose of CS that is one-tenth the estimated lethal does is
less than 1 in 100,000.\526\ Accordingly, any analysis of the lethality
of the CS agent used in the concentrations that resulted on April 19 can
only be performed in light of the 50 percent lethality estimates.
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\526\ Himsworth Report, supra note 511, at 55-56; Ballantyne, supra
note 519, at 30.
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Even when the quantities of CS riot control agent used do not reach
lethal toxic levels, there are, nevertheless, significant physical
consequences that occur from exposure to CS, and often severe emotional
reactions caused by the symptoms brought on from exposure to CS. As
discussed above, one recent study of the use of large quantities of CS
against a population unable to leave the area in which the CS was used
indicated that first, second, and even third degree burns are possible
when skin is exposed to CS.\527\ Additionally, some studies have shown
that exposure to CS can cause allergic contact dermatitis.\528\ Other
studies have shown that when CS can cause severe gastroenteritis when
ingested, whether directly or as a result of ingesting mucus secretions
containing CS from oral inhalation.\529\
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\527\ Anderson, supra note 511, at 463-464.
\528\ Hu, supra note 508, at 280.
\529\ Id.
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Additionally, some studies on animals have suggested that exposure
to CS might cause cancer and genetic abnormalities.\530\ Some studies
have stated that exposure to high concentrations of CS for prolong
periods could result in inflammatory changes in the respiratory tract
that might be conducive to secondary respiratory infection.\531\ And it
is believed that CS may exacerbate existing medical conditions of
persons with bronchitis or asthma, although no reports of death from
these conditions exist.
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\530\ Id.
\531\ Ballantyne, supra note 519, at 30.
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f. effect of the cs and methylene chloride in the quantities used on
april 19th
1. Lethality of CS as used at Waco
Testimony before the subcommittees presented contradictory evidence
on the effects of CS riot control agent. The published literature
described above, however, is more consistent in the conclusions drawn.
While it cannot be concluded with certainty, it is unlikely that the CS
riot control agent, in the quantities used by the FBI, reached lethal
toxic levels. The evidence presented to the subcommittees does indicate,
however, that CS insertion into the enclosed bunker at a time when women
and children were assembled inside that enclosed space could have been a
proximate cause of or directly resulted in some or all of the deaths
attributed to asphyxiation in the autopsy reports.
In order to answer the question of whether the quantities of CS
agent inserted into the residence might have reached lethal levels, the
subcommittees attempted to determine the concentrations that were
present in the residence under the ``worst-case'' circumstances. To make
this determination, a number of assumptions must be made. Many of these
assumptions were overstated solely for the purpose of calculation in
order to place the greatest scrutiny on the government's actions.
In each of the first two phases of insertion into the Branch
Davidian residence, a total of 180 grams (180,000 mgs) of CS was
delivered.\532\ For the purposes of analysis, the subcommittees assumed
an ``extreme case'' scenario, where all 180 grams were delivered into
the building by the two CEV's at the same instant, and that one-quarter
of the Ferret rounds fired at the residence were fired at the precise
moment that the CS delivered by the CEV's entered the residence.\533\ If
so, then during the first and second phases of the CS operation, 550
grams (550,000 mgs) of CS were delivered to the residence.\534\ During
the first and second phases, therefore, the total concentration of CS
delivered into the compound was 108.92 mgs/m\3\.\535\ During the third
and fourth phases, due to the mechanical failure of the second CEV, only
490 grams (490,000 mgs) of CS agent was delivered into the
residence.\536\ During each of the third and fourth phases the total
concentration at the (assumed) moment of insertion was 97.04 mgs/
m\3\.\537\
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\532\ CEV-1 emptied its four 30-gram cylinders while CEV-2 emptied
the contents of its two 30-gram cylinders. The total delivered was thus
(4 x 30) + (2 x 30) = 180 grams.
\533\ Each Ferret round carried 3.7 grams of CS agent. A total of
400 Ferret rounds were fired at the residence. Thus, the total quantity
of CS agent in one quarter of the Ferret rounds used was 370 grams (3.7
x 100).
\534\ On each of the first two phases, 180 grams of CS agent was
delivered by the CEV's and approximately 370 grams was delivered by
Ferret Rounds. This totals 550 grams, or 550,000 milligrams.
\535\ The Branch Davidian residence contained approximately 178,310
cubic feet of living area. Converted into meters, the volume of the
residence was 5,049.7 cubic meters. The concentration inside the
building, therefore, was 108.92 mgs/m\3\ (550,000 mgs/5,049.7m\3\ =
108.92 mgs/m\3\).
\536\ The 180 grams from CEV-1 and the approximately 370 grams from
100 of the Ferret Rounds totals 490 grams, or 490,000 milligrams.
\537\ 490,000 mgs/5049.7 m\3\ = 97.04 mgs/m\3\.
---------------------------------------------------------------------------
Assuming the Branch Davidian residence been air-tight, so that none
of the CS agent escaped the building (which was not the case), the total
amount of CS agent delivered present in the building would have been
411.92 mgs/m\3\.\538\ This concentration is far below the 61,000 mgs/
m\3\ amount projected to be lethal to 50 percent of a given population
of humans. Stated in another way, it would take a concentration of CS
148 times greater than the greatest amount that could have been present
at the Branch Davidian residence on April 19 to reach that lethal level.
---------------------------------------------------------------------------
\538\ The concentration inside the building, therefore, was 108.92
mgs/m\3\ + 108.92 mgs/m\3\ + 97.04 mgs/m\3\ + 97.04 mgs/m\3\ = 411.92
mgs/m\3\).
---------------------------------------------------------------------------
In reality, the concentrations of CS inside the Branch Davidian
residence did not reach even these levels. The Branch Davidian residence
was a poorly constructed structure which allowed for air to move in and
out of the residence continuously. The air circulation carried some of
the CS agent out of the building. Adding to the air circulation inside
the Davidians residence that day was the fact that the FBI began to use
the CEV's to ram openings into the building, ostensibly to create a
means of escape for the Davidians and, later, to ``deconstruct''
portions of the structure in an effort to prevent the Davidians from
occupying those areas of the residence. These actions greatly enhanced
the circulation into the residence and further depleted the
concentration of CS agent inside the residence. Additionally, on April
19th, the winds were gusting up to 25 mph.\539\ This fact greatly
enhanced the air circulation inside the residence, adding to the
dissipation of the concentration of CS agent in the residence. Thus, the
actual levels of CS inside the Davidian residence were less than those
calculated above.
---------------------------------------------------------------------------
\539\ The National Oceanic and Atmospheric Administration recorded
high winds beginning at noon on April 18, 1993. The winds continued
through April 19. At 11:52 a.m. on April 19, winds were recorded at 25
mph with gusts to 30 mph.
---------------------------------------------------------------------------
Some who have contacted the subcommittees have suggested that the
above analysis is flawed because it does not allow for the possibility
that some CS agent was concentrated in certain areas of the residence
rather than being evenly distributed throughout the entire structure.
The subcommittees believe that it is important to address that
possibility.
Because the largest group of bodies recovered after the fire was
found in the area of the residence commonly known as the gun room or
bunker \540\ consideration was given to the concentrations of CS in that
area.\541\ The bunker was a solid concrete room inside the Davidian
residence. It had no windows or other access to the outside of the
building, but did open into a hallway inside the residence. It appears
that there was little opportunity for CS to have been directly sprayed
into the bunker and that any CS that was present in the bunker likely
drifted into that room after it was sprayed into one or more of the
rooms along the outside of the structure. The subcommittees note,
however, that the videotape of the insertion of CS on April 19 indicates
that one of the CEV's drove into the structure near the bunker during
the fourth phase of the CS insertion. If the door to the bunker had been
open at that time, it is possible that CS might have been injected
directly into the bunker.
---------------------------------------------------------------------------
\540\ See Justice Documents at the Appendix for a diagram of the
floorplan of the Branch Davidian residence.
\541\ It should be noted, however, that none of the autopsies of the
persons found in the bunker indicate the cause of death was from
exposure to CS.
---------------------------------------------------------------------------
Based on this possibility the subcommittees attempted to determine,
as a worst case scenario, the concentration of CS that would have been
present in that room had the CEV emptied the entire contents of one of
its CS containers into the bunker. It appears, however, that even in
that event the concentration of CS would not have reached lethal levels.
The volume of the bunker room was approximately 44.40 cubic meters.
Assuming that an entire cylinder (30 grams) of CS was injected into the
room, the concentration at that moment would have been 675.67 mgs/
m\3\.\542\ As discussed above, the concentration level estimated to be
lethal to humans is 61,000 mgs-min/m\3\. Even had the CEV which was
mounted with four containers of CS inserted the contents of all four
containers into the bunker, the resulting concentration would have been
2,702.70 mgs/m\3\.\543\ Again, this figure is well below the
concentration level estimated to be lethal to humans.
---------------------------------------------------------------------------
\542\ Each cylinder of CS contained 30 grams, or 30,000 milligrams,
of CS. 30,000 mgs/44.40 m\3\ = 675.67 mgs/m\3\.
\543\ 120,000 mgs/44.4 m\3\ = 2,702.70 mgs/m\3\.
---------------------------------------------------------------------------
Another worse case scenario considered by the subcommittees was the
possibility that one of the CEV's might have delivered the entire
contents of one of its cylinders of CS agent into one of the smallest
rooms of the residence, and that that room was inhabited at the time. It
still appears that the concentration of CS would not have reached lethal
levels. The smallest rooms in the structure were the women's quarters
located on the second floor of the residence. The smallest of these had
a total volume of 16.17 cubic meters. Assuming that an entire cylinder
of CS had been injected into this room, the concentration at that moment
would have been 1855.29 mgs/m\3\.\544\ Assuming further that a number of
Ferret rounds also happened to be fired into the room at the exact
moment that the CS was injected by the CEV (assume an impossible event
such as 20 rounds entering the room at the same instant), the
concentration at that instant would have been 6,431.66 mgs/m\3\.\545\
Again, these figures fall far below the concentrations estimated to be
lethal to humans.
---------------------------------------------------------------------------
\544\ Each cylinder of CS agent contained 30 grams, or 30,000
milligrams. 30,000 mgs/16.17 m\3\ = 185.52 mgs/m\3\.
\545\ 30 grams of CS agent from a CEV plus 74 grams of CS agent from
20 Ferret rounds is a total of 104 grams (30 + (3.7 x 20) = 104), or
104,000 milligrams. 104,000 mgs/16.17 m\3\ = 6,431.66 mgs/m\3\.
---------------------------------------------------------------------------
While concluding that it is unlikely that the CS reached toxic
levels, the subcommittees note the level of exposure to CS experienced
by an individual Davidian cannot be determined. It is possible that a
person near one of the CEV's injecting the CS may have been subject to a
level of CS that was high enough to cause death. Additionally, 10 of the
autopsies indicate asphyxiation as the cause of death, but do not
indicate whether CS or other factors may have lead to this. The
subcommittees are unable to conclude that CS did not play a part in the
deaths of these persons.
2. Lethality of methylene chloride used with CS at Waco
During the gassing operation, each cylinder of the CS riot control
agent introduced into the Branch Davidian residence by the CEV's was
mixed with approximately 1,070 grams of methylene chloride. This
suspension was then dispersed into the structure by carbon dioxide,
which almost immediately evaporated, leaving the suspension of CS and
methylene chloride. Additionally, each of the Ferret round projectiles
contained 33 grams of methylene chloride as the dispersant medium for
the CS agent.
The four phases of insertion of CS agent into the Branch Davidian
residence were conducted approximately 2 hours apart. During the first
and second phases six cylinders of CS agent were inserted into the
residence, delivering approximately 6,420 grams of methylene chloride in
each phase.\546\ During the third and fourth insertions only four
cylinders of CS agent were inserted, accounting for approximately 4,280
grams of methylene chloride during each insertion. Assuming a worse case
scenario of all of the CS insertions in one phase occurring at the same
moment and approximately \1/4\ of the Ferret round projectiles entering
the building at that same time, thus adding an additional 3,300 grams of
methylene chloride in each phase,\547\ the total concentration of
methylene chloride delivered into the building during the first and
second insertions was 1,924.87 mgs/m\3\.\548\
---------------------------------------------------------------------------
\546\ Each cylinder contained 1,070 grams of methelyene chloride.
Six cylinders totaled 9,720 grams.
\547\ Each Ferret round contained 33 grams of methylene chloride.
One hundred Ferret rounds thus inserted 3,300 grams of the chemical into
the building.
\548\ In the first two phases the total quantity of methylene
chloride delivered was 9,720 grams ((6 x 1,070) + (100 x 33)) or
9,720,000 milligrams. Divided by the cubic footage of the building
(5,049.7 m\3\) the distribution of the substance throughout the building
in these phases was 1,924.87 mgs/m\3\. In the third and fourth two
phases the total quantity of methylene chloride delivered was 7,580
grams ((4 x 1,070) + (100 x 33)) or 7,580,000 milligrams. Divided by the
cubic footage of the building (5,049.7 m\3\) the distribution of the
substance throughout the building in these phases was 1,501.08 mgs/m\3\.
---------------------------------------------------------------------------
A review of the scientific literature concerning CS agent has
located no estimates of the concentration of methylene chloride which
would prove harmful or lethal to humans. The only estimates which do
exist are with respect to mice and rats. For example, the concentration
that would prove lethal to 50 percent of a rat population is estimated
to be 2,640,000 mgs-min/m\3\.\549\ As can be seen from the above
figures, therefore, the total concentrations of methylene chloride at
the Davidian residence on that day were less than the concentrations
that would prove lethal to even rats.\550\ It appears, therefore, that
the methylene chloride used with the CS agent could not have caused the
death of any of the Davidians.
---------------------------------------------------------------------------
\549\ See generally Mallinckrodt, Inc., Material Data Safety Sheet 2
(1989); Dow Chemical, Inc., Material Data Safety Sheet 3 (1988).
\550\ The total quantities from each of the four insertions of CS
agent was only 5,356.74 mgs/m\3\. ((2 x 1,924.87) + (2 x 1,501.08) =
5,356.74).
---------------------------------------------------------------------------
As in the case with CS, the subcommittees considered the possibility
that some methylene chloride was concentrated in certain areas of the
residence rather than being evenly distributed throughout the entire
structure. Because the largest group of bodies recovered after the fire
was found in the area of the residence commonly known as the gun room or
bunker, consideration was given to the concentrations of methylene
chloride in that area.\551\ As discussed above, the bunker was a solid
concrete room with no windows or other access to the outside of the
building, but did open into a hallway inside the residence. Again, it
appears that there was little opportunity for the methylene chloride
carrying the CS agent to have been directly sprayed into the bunker and
that any methylene chloride that was present in the bunker likely
drifted into that room after it was sprayed into one or more of the
rooms along the outside of the structure. But the subcommittees again
note that the videotape of the insertion of CS on April 19 indicates
that one of the CEV's drove into the structure near the bunker during
the fourth phase of the CS insertion. If the door to the bunker had been
open at that time, it is possible that methylene chloride carrying the
CS agent might have been injected directly into the bunker.
---------------------------------------------------------------------------
\551\ It should be noted, however, that none of the autopsies of the
persons found in the bunker indicate the cause of death was from
exposure to methylene chloride.
---------------------------------------------------------------------------
Based on this possibility the subcommittees attempted to determine,
as a worst case scenario, the concentration of methylene chloride that
would have been present in that room had the CEV emptied the entire
contents of one of its CS containers into the bunker. It appears,
however, that even in that event the concentration of CS would not have
reached lethal levels.
The volume of the bunker room was approximately 44.40 cubic meters.
Assuming that an entire cylinder of CS (with 1,070 grams of methylene
chloride as a disbursant) was injected into the room, the concentration
at that moment would have been 24,099 mgs/m\3\.\552\ Even if the CEV
that was mounted with four cylinders of CS inserted the contents of all
four containers into the bunker, the resulting concentration would have
been 96,396 mgs/m\3\.\553\ Both of these figures are well below the
concentrations estimated to be lethal to rats.\554\
---------------------------------------------------------------------------
\552\ Each cylinder of CS contained 1,070 grams, or 1,070,000
milligrams, of methylene chloride. 1,070,000 mgs/ 44.40 m\3\ = 214,099
mgs/m\3\.
\553\ 4,280,000 mgs/ 44.40 m\3\ = 96,396 mgs/m\3\.
\554\ As stated, there are no studies estimating the lethal
concentration levels to humans of exposure to methylene chloride.
---------------------------------------------------------------------------
Another worse case scenario considered by the subcommittees was the
possibility that one of the CEV's might have delivered the entire
contents of one of its cylinders of CS agent into one of the smallest
rooms of the residence, and that that room was inhabited at the time. It
still appears that the concentration of methylene chloride would not
have reached lethal levels. The smallest rooms in the structure were the
women's quarters located on the second floor of the residence. The
smallest of these had a total volume of 16.17 cubic meters. Assuming
that an entire cylinder of CS had been injected into this room, the
concentration of methylene chloride at that moment would have been
66,171.93 mgs/m\3\.\555\ Assuming further that a number of Ferret rounds
also happened to be fired into the room at the exact moment that the CS
was injected by the CEV (assume, for example, an event as unlikely as 20
rounds entering the room at the same instant), the concentration at that
instant would have been 106,988 mgs/m\3\.\556\ Again, these figures fall
far below the concentrations estimated to be lethal to rats.
---------------------------------------------------------------------------
\555\ Each cylinder of CS agent contained 1,070 grams of methylene
chloride, or 1,070,000 milligrams. 1,070,000 mgs/ 16.17 m\3\ = 66,171
mgs/m\3\.
\556\ 1,070 grams of methylene chloride from a CEV plus 660 grams of
methylene chloride from 20 Ferret rounds is a total of 1,730 grams
(1,070 + (33 x 20) = 1,730), or 1,730,000 milligrams. 1,730,000 mgs/
16.17 m\3\ = 106,988 mgs/m\3\.
---------------------------------------------------------------------------
3. Other possible effects of methylene chloride used with CS at Waco
While the subcommittees conclude that the levels of methylene
chloride did not reach lethal toxic levels, the subcommittees also
considered whether the levels of methylene chloride may have affected
the Davidians in other ways. At levels over 1,000 parts per million
(ppm) anaesthetic effects begin to occur in humans.\557\ At levels above
2,300 ppm, exposure to methylene chloride may cause dizziness.\558\
---------------------------------------------------------------------------
\557\ 2 G. Clayton & F. Clayton, Patty's Industrial Hygiene and
Toxicology 3449-3455 (1981); R. Stewart et al., Methylene Chloride:
Development of a Biological Standard for Industrial Workers by Breath
Analysis (1974).
\558\ Id.
---------------------------------------------------------------------------
Because methylene chloride evaporates rapidly when released into the
air, the subcommittees considered separately the concentrations of
methylene chloride during each of the four phases of the CS agent
insertion. The levels of methylene chloride were greatest during the
first two phases (because one of the CEV's was unable to inject the CS
agent/methylene chloride mixture during the third and fourth phase).
During the first and second phases, six cylinders of CS agent were
inserted into the residence, delivering approximately 6,420 grams of
methylene chloride in each phase.\559\ Assuming that all of the CS
inserted by the CEV's during one phase was inserted at a single moment,
and that approximately \1/4\ of the Ferret round projectiles used during
the entire operation also entering the building at that same time (thus
adding an additional 3,300 grams of methylene chloride in each phase
\560\), and that the Davidian residence was airtight, the concentration
of methylene chloride during each of the first two phases would have
been 548 ppm.\561\ At this concentration, studies have shown no
observable effects in humans.\562\
---------------------------------------------------------------------------
\559\ Each cylinder contained 1,070 grams of methylene chloride. Six
cylinders totaled 9,720 grams.
\560\ Each Ferret round contained 33 grams of methylene chloride.
One hundred Ferret rounds thus inserted 3,300 grams of the chemical into
the building.
\561\ The molecular weight of methylene chloride gas is 85. One mole
of methylene chloride gas is 24.2 liters. 9,720g MC/ 85 = 114 moles. 114
moles x 24.2 liters/mole = 2758 liters of MC. There was 5,049,700 liters
of volume in the Davidian residence (5.049.7 m\3\ x 1000 liters/m\3\ =
5,049,700). Thus 2767.34/ 5,049,700 x 10\6\ = 548 ppm.
\562\ U.S. Dept. Of Commerce, Agency for Toxic Substances and
Disease Registry, Toxicological Profile for Methylene Chloride (1993).
---------------------------------------------------------------------------
In considering the possibility that some methylene chloride was
concentrated in certain areas of the residence, rather than being evenly
distributed throughout the entire structure, the subcommittees found
that it was possible that the levels of methylene chloride reached
concentrations that might have caused levels that produced an
anaesthetic effects in humans.
Again, the subcommittees considered the possible concentration in
the bunker, as the largest group of bodies recovered after the fire was
found there. The volume of the bunker room was approximately 44.40 cubic
meters. Assuming that an entire cylinder of CS (with 1,070 grams of
methylene chloride as a disbursant) was injected into the room, the
concentration at that moment would have been 6,861 ppm.\563\ This
concentration was sufficient to induce dizziness and other anaesthetic
effects in humans.
---------------------------------------------------------------------------
\563\ 1,070 g MC/ 85 = 12.59 moles. 12.59 moles x 24.2 liters/mole =
304.63 liters of MC. There was 44,400 liters of volume in the bunker
(44.40 m\3\ x 1000 liters/m\3\ = 44,400). Thus 304.63/ 44,400 x 10\6\ =
6,861 ppm.
---------------------------------------------------------------------------
As stated, however, the evidence is not determinative as to whether
one of the CEV's did, in fact, insert CS directly into the bunker.
Additionally, it is unknown if the bunker door was open or closed, a
factor that would have significantly affected the concentration levels
inside the room. Finally, the air circulation inside the building would
have affected the levels of methylene chloride present at any one time.
The subcommittees conclude, however, that it is possible that the levels
of methylene chloride in the bunker were such that the chemical impaired
the Davidians' ability to escape the room. Additionally, the possibility
cannot be dismissed that other Davidians, in other areas of the
residence, might have been similarly adversely affected if they were
directly exposed to an insertion of an entire cylinder of the CS agent/
methylene chloride mixture. Thus, the levels of methylene chloride that
were present in the Davidian residence as a result of the use of the CS
riot control agent might have impaired the ability of some of the
Davidians to be able to leave the residence had they otherwise wished to
do so.
g. analysis of the attorney general's decision to end the standoff on
april 19, 1993
1. The decision not to storm the residence
The subcommittees received testimony concerning the FBI's decision
not to storm the residence in order to end the standoff. Additionally,
the Justice Department Report on these events also discusses the factors
that went into this decision. According to that report, FBI tactical
experts believed that there was a substantial likelihood of significant
casualties to FBI agents if a frontal assault on the residence was
attempted. The FBI believed that the Davidians had fortified the
residence and were ready to offer resistance equal to or perhaps even
greater than that they had showed during the failed February 28 assault
on the residence by the ATF. The FBI was also concerned about the
possibility of suicide by the Davidians in the event of such an
assault.\564\
---------------------------------------------------------------------------
\564\ Justice Department Report at 259.
---------------------------------------------------------------------------
Experts on tactics testified before the subcommittees that a frontal
assault is one of the riskiest types of tactical operations.\565\ That
risk was even greater in this situation given the large size of the
structure and the wide-open areas around the structure with the
resulting lack of cover for any approach to the residence.
---------------------------------------------------------------------------
\565\ Hearings Part 2 at 315, 318 (statement of Donald A. Bassett).
---------------------------------------------------------------------------
The FBI's decision to pursue options other than a frontal assault in
order to end the standoff was a wise one. It seems clear that a raid,
even one better planned than that of the ATF of February 28, was of
unacceptably high risk. It is likely that FBI agents would have
sustained casualties in such an assault. Any assault on the Branch
Davidian residence also risked the lives of the Davidians. Additionally,
the FBI appropriately considered the possibility of suicide by the
Davidians in the event of an assault.
2. The reasons asserted for ending the standoff on day 51
a. The situation would not soon be resolved
One of the key factors influencing the FBI's decision to recommend
to the Attorney General that the standoff be ended on day 51 was the
belief by FBI officials that continuing to negotiate with the Davidians
would not lead to their peaceful surrender. At the hearings held by the
subcommittees, FBI chief negotiator Byron Sage testified that he
believed that further negotiations would not be fruitful.\566\ Tactical
commander Jeffrey Jamar testified that he was skeptical that
negotiations would end the stand-off, and that he became even more
skeptical after Koresh reneged on a promise to come out on March 2.\567\
Documentary evidence reviewed by the subcommittees indicated, however,
that some of the FBI's behavioral experts believed that there were
further steps that could be taken through negotiations. Additionally, at
the subcommittees' hearings, testimony was received from the attorneys
for the Davidians that they believed further negotiations could have led
to the Davidians' peaceful surrender.\568\
---------------------------------------------------------------------------
\566\ ``I never abandoned the concept or the hope that negotiations
could successfully and peacefully resolve this matter. My statement to
[Hubbell] at the time . . . was that I felt that negotiations were at an
impasse . . . .'' Hearings Part 2 at 345 (statement of Byron Sage).
\567\ Hearings Part 2 at 306-307.
\568\ See section VI E of this report.
---------------------------------------------------------------------------
Sage's view was that Koresh had broken many of the promises he had
made throughout the standoff. After a experiencing a number of these
broken promises, Sage and the other FBI commanders believed that they
could not rely on Koresh's assurances.
Another factor that may have affected the FBI commanders' view of
the situation, but which was given little emphasis in the Justice
Department Report, is mental and emotional fatigue affecting the FBI
decisionmakers. Sage was one of the first FBI agents on the scene on
February 28. He worked every day, all day, of the 51 day standoff, and
only returned to his home in Austin for a short period of time on 1 day
to gather more clothes. Jamar and the other senior FBI commanders were
also on site for almost the entire time of the standoff. It seems only
natural then, that physical and mental fatigue would begin to set in and
that dealing with Koresh's rhetoric and disingenuousness would lead to
emotional fatigue as well. Indeed, the Justice Department Report
indicates that the law enforcement personnel present were tired and that
their ``tempers were fraying.'' \569\
---------------------------------------------------------------------------
\569\ Justice Department Report at 271.
---------------------------------------------------------------------------
Nevertheless, FBI commanders to become firmly convinced that nothing
more would come from further negotiations with Koresh. That belief was
communicated by Sage to Associate Attorney General Webster Hubbell
during a 2-hour telephone conversation on April 15.\570\ This belief
played a crucial role in influencing Attorney General Reno's decision to
end the standoff on April 19.\571\
---------------------------------------------------------------------------
\570\ Id. at 270.
\571\ Id.
---------------------------------------------------------------------------
During the hearings, however, the subcommittees received testimony
from the Davidians' attorneys that Koresh was hard at work writing his
interpretation of the Seven Seals discussed in the Book of Revelation in
the Bible. They believe that Koresh was willing to surrender when he
finished his writing.
The FBI's commanders knew of Koresh's desire to write this
manuscript but did not believe he was actually working on it. It appears
that fatigue and frustration at the lack of achieving success in
obtaining the release of additional Davidians may have led the
negotiators to be less than receptive to this information. That the
negotiators were not open to this new information, and did not pass it
on to their superiors, played a part in the Attorney General's decision
to end the standoff on April 19 and in the manner chosen to end it.
VII. The Attorney General's Decision to End the Stand-o
the children as shields
Another factor that went into the FBI's recommendation to the
Attorney General to end the standoff on day 51 was the fear that the
Davidians might attempt to breakout of the residence using the children
as human shields. According to the Justice Department Report, ``some
[unnamed] experts'' had suggested this possibility and that to combat
this possibility, the FBI had to be certain that its best trained troops
(the Hostage Rescue Team members) would be on the scene.\572\ There was
some doubt as to how much longer the HRT could remain at the residence.
---------------------------------------------------------------------------
\572\ Id. at 261.
---------------------------------------------------------------------------
There was little evidence to support this fear. At no time did
Koresh or Schneider threaten that the Davidians might attempt to break
out of the residence or take any other offensive action. In fact, from
February 28 to April 19 all of the Davidians' actions could be viewed as
defensive in nature--defending what they believed to be sacred ground,
their residence. Given the Davidians' professed devotion to their
residence, it is difficult to understand why the FBI thought the
Davidians would try to leave. Given that the FBI also knew that the
Davidians were very much aware of the perimeter security around the
residence it is difficult to understand why the FBI thought the
Davidians believed they could escape. In short, there appears to have
been little support for the FBI's concern that the Davidians would try
to break out of the residence. To the extent it played a part in the
FBI's decision to recommend that the standoff be ended on April 19, this
unfounded fear contributed to the tragic results of that day. The
Attorney General knew or should have known that the fear of breakout
argument was unfounded.
c. The FBI Hostage Rescue Team needed rest and retraining
According to the Justice Department Report, another important factor
that played a part in the Attorney General's decision to end the
standoff on April 19 was concern over the continuing readiness of the
Hostage Rescue Team.\573\ It is unquestioned that the HRT possesses more
skills and skills that are more highly developed that any other civilian
tactical unit within the Federal Government. These skills need constant
use in order to be retained, much as a superior athlete must train each
day to maintain his or her level of athletic skill. Without that
training, these skills begin to deteriorate.
---------------------------------------------------------------------------
\573\ The FBI's HRT is comprised of FBI special agents selected
through a rigorous screening program. Unique in Federal law enforcement,
the HRT trains 5 days a week, all year in tactics related to its mission
to take control of and end hostage and barricade situations without loss
of life to any innocent persons who may be involved. Unlike the several
FBI SWAT teams or ATF SRT teams, HRT members do not carry an
investigative case load in addition to their tactical duties. Thus, they
train each working day, whereas the SWAT and SRT members conduct
tactical training only a few days each month.
---------------------------------------------------------------------------
According to the Justice Department Report and testimony presented
to the subcommittees, the concern about the possible deterioration in
HRT skills was raised at a meeting of Justice Department and FBI
officials with the Attorney General on April 14, 1993.\574\ By that
date, the HRT members had been present at the Branch Davidian center for
almost 7 weeks without the opportunity for the type of training that
they otherwise would be pursuing every day. Also present at that meeting
were several military officers. As a Defense Department witness
testified before the subcommittees, the officers explained that they
were present at the April 14, 1993 meeting at the invitation of FBI
officials in order to answer any questions that the Attorney General
might pose to them about ending the standoff. The officers had been
selected because of their special tactical training and experience.
During the meeting, one of the officers advised the Attorney General
that if the HRT were military troops under his command he would
recommend pulling them away from the Branch Davidian center for rest and
retraining.\575\
---------------------------------------------------------------------------
\574\ Justice Department Report at 268.
\575\ Hearings Part 3 at 304, 314 (statement of Allen Holmes,
Assistant Secretary of Defense for Special Operations and Low Intensity
Conflict).
---------------------------------------------------------------------------
According to the Justice Department report, HRT commander Dick
Rogers informed the Attorney General that the HRT members ``were not too
fatigued to perform in top capacity in any tactical operation at that
time'' but that if the standoff continued for any extended period of
time he would recommend that they ``stand down'' for rest and
retraining.\576\ At the subcommittees' hearings Mr. Rogers and Floyd
Clarke, Deputy Director of the FBI in early 1993, each testified that
they believed the HRT could have remained on site for at least 2
additional weeks before he would have recommended that they ``stand
down.'' \577\
---------------------------------------------------------------------------
\576\ Justice Department Report at 268.
\577\ Hearings Part 2 at 577 (statement of Dick Rogers); Hearings
Part 3 at 73 (statement of Floyd Clarke).
---------------------------------------------------------------------------
The point at which the deterioration of HRT members skills becomes
unacceptable is not a fact which appears to be readily quantifiable, but
rather is a matter of informed judgment. Nothing in the evidence
presented to the subcommittees leads to the conclusion that the HRT
members' skills were not deteriorating or that the recommendation of the
military officers and the HRT commander to remove the HRT members for
rest and retraining was not well-informed. But this observation does not
answer the questions of what weight this fact should have played in the
Attorney General's decision to end the standoff on day 51.
The Justice Department Report states that the Attorney General
discussed with the FBI the possibility of using FBI SWAT teams to
relieve the HRT for a time so that the HRT could be pulled from the
scene, rested, and retrained but that the FBI discouraged that option
and took the position that it should be used only as a last resort. At
the hearings before the subcommittees, however, Floyd Clarke, Deputy
Director of the FBI in early 1993, testified that the FBI was
formulating plans to use FBI SWAT teams in place of the HRT teams if the
Attorney General did not approve the plan to end the standoff in mid-
April.\578\
---------------------------------------------------------------------------
\578\ Hearings Part 3 at 73 (statement of Floyd Clarke).
---------------------------------------------------------------------------
The FBI testified that the qualification of its several SWAT teams
do not equal that of the HRT. What must be considered, however, is the
actual task for which the SWAT teams would have been used. It would not
have been an attempt to enter and take control of the residence. As the
Justice Department Report and hearing testimony made clear, during the
51 day standoff the HRT was used only for perimeter security--keeping
the Davidians in and outsiders out of the residence. Had the HRT had
been relieved by SWAT teams, they would have been assigned to the same
task. In short, while HRT capabilities exceed SWAT capabilities, the
HRT's additional capabilities are not those essential to the task of
securing the perimeter of a crime scene.
Given that the threat of a Branch Davidian breakout was minimal at
most, it appears that the FBI was overcautious in informing the Attorney
General that its own SWAT teams were not capable of securing the
residence perimeter.\579\ While the HRT might best have done the job of
securing the residence, nothing in the record suggests that the SWAT
teams could not have done that job adequately for a short time. Indeed,
had the Attorney General not approved the plan to end the standoff in
mid-April, the FBI was planning to use its SWAT teams to relieve the
HRT. It does not appear that the FBI informed the Attorney General of
this fact, however.
---------------------------------------------------------------------------
\579\ For example, the Justice Department points to the fact that
HRT members had been training in the maneuvering of the armored vehicles
loaned to the FBI by the military, implying that the SWAT teams did not
have this training. Yet, even the HRT members had to receive remedial
training on the use of these vehicles while at the residence. In fact,
at one point, an armored vehicle driven by an HRT member who was being
retrained drove over an automobile belonging to a member of the press,
destroying the vehicle. Surely it would not have taken much more
training to enable the SWAT members to perform their task adequately,
even if it were not up to HRT skill levels. It is unclear why the SWAT
members could not have received sufficient training to drive these
vehicles around the perimeter of the residence.
---------------------------------------------------------------------------
Representatives of the Texas Rangers testified before the
subcommittees that they believed that State police SWAT teams could have
relieved the FBI HRT and maintained the perimeter while the HRT was
rested.\580\ Representatives of the Texas Rangers interviewed by
subcommittees' staff stated that the Texas State police did offer to
assist the FBI in maintaining the perimeter during the standoff but that
this offer was rejected.
---------------------------------------------------------------------------
\580\ Mr. McCollum: In your opinion, knowing the Texas officers, you
all don't have SWAT teams, do you, the Texas Rangers, but the State
police do, don't they?
Mr. Byrnes: Yes, they have a SWAT team.
Mr. McCollum: Either the State police or the local officials in the
area, were there SWAT teams or combinations thereof that could have been
put together from State law enforcement or local law enforcement that
could have maintained that perimeter for a few days or a week or two, if
necessary, to let this FBI hostage team regroup had the negotiations
continued for another month or something?
Mr. Byrnes: Well, to answer your question, just generically, yes.
Frankly, I don't know. And let me say that the HRT team, in my opinion,
is probably the most highly trained unit for what they are doing in the
world, and I think they were the people to be there.
Mr. McCollum: I don't doubt that for a minute. I am not even
questioning that, I am just asking because I know you may not know all
of this, but we have looked into it, and it appears that is a factor. We
are going to hear more from them.
Mr. Byrnes: I never heard that before.
Mr. McCollum: Whether it is or not, the question I was really
asking, just because you are here tonight, you believe that, at least
form the standpoint of holding the perimeter--and I would ask that to
you as well, Captain Cook--that State police or SWAT teams from local
police units could have been mustered if you had been asked and
consulted with to do that, even though they wouldn't have been as
effective at it perhaps as the FBI's HRT team. Is that right or not?
Mr. Cook: I think it could have been accomplished. I think that is
just a basic law enforcement trait, No. 1. We have police officers
trained in different areas. Hearings Part 2 at 198.
---------------------------------------------------------------------------
The FBI's decision to reject outside assistance is consistent with
the prevailing FBI attitude of resisting any involvement from other
agencies, whether Federal, State, or local. This attitude is
counterproductive. While the subcommittees cannot evaluate the
capabilities of the Texas State police, and are mindful of the command
and control problems that may be encountered when bringing together
members for organizations that have had no previous experience together,
it appears short-sighted for the FBI to have rejected out of hand the
offer of assistance from the State police and, specifically for not
considering using State police SWAT teams to help maintain the perimeter
around the Branch Davidian residence. Given FBI concerns with the size
of the perimeter to be maintained, it would seem that these additional
personnel could have been of some assistance to the FBI, even if they
were used in a merely supporting role, such as at a secondary perimeter
established beyond that maintained by the FBI.
While using FBI SWAT teams to relieve the HRT might not have been
the optimal approach to the problem, using them (perhaps augmented by
State police teams) would have enabled the FBI to rest and retrain the
HRT so that it could have been redeployed to the scene after an
appropriate time. The FBI's failure to recommend to the Attorney General
that SWAT teams be used to relieve the HRT, or to inform her that the
FBI planned to use them for this very purpose had she not approved the
plan to end the standoff, limited the options and created an unnecessary
sense of urgency about ending the standoff. The Attorney General knew or
should have known that the HRT did not need to stand down to rest or
retrain for at least 2 more weeks after April 19, and if and when it did
stand down, FBI and local law enforcement SWAT teams could have been
brought in to maintain the perimeter. If she did not know the true facts
it is because she did not ask the questions of the FBI that a reasonably
prudent person faced with the decision would have asked. If the Attorney
General did ask these questions, someone in the FBI lied to her or was
grossly negligent in reporting the facts. If the latter was the case,
the responsible party should have been disciplined long ago. The absence
of such action leads the subcommittees to conclude that the Attorney
General was herself negligent.
d. Conditions inside the residence were deteriorating
Another factor that the Attorney General says played a part in her
decision to end the standoff on April 19 was a concern about
deteriorating conditions inside the residence. There is little support
for this concern and it should not have played any significant part of
the decision to end the standoff.
The concern about deteriorating conditions is mentioned in only two
places in the Justice Department Report.\581\ The report also States,
however, that the FBI became convinced that while Koresh was rationing
water to ensure discipline he was continuing to replenish the water
supply.\582\ The report further States that the FBI believed that the
Davidians had food to last up to 1 year.
---------------------------------------------------------------------------
\581\ Justice Department Report at 269, 275.
\582\ Id. at 269-270.
---------------------------------------------------------------------------
In short, if the concern about conditions inside the residence was a
factor in the Attorney General's decision, it could only have been about
lack of electricity or the lack of sanitation inside the residence.
While electricity to the residence was cut off for the final time on
March 12,\583\ the Davidians had kerosene lamps inside the residence
which they used to illumine the interior. And while the Davidians had no
way to cook food, they had ample stores of food that did not need to be
cooked. In short, there is no evidence that the lack of electricity
resulted in any real harm to the Davidians.
---------------------------------------------------------------------------
\583\ Id. at 67.
---------------------------------------------------------------------------
The purported concern over sanitary conditions inside the residence
is also exaggerated. Even before the February 28 raid, the Davidians had
never had running water or other sanitation inside the residence. Human
waste was collected in buckets and other containers each day and taken
outside to an designated dumping site for the waste. During the
standoff, waste was dumped into the half-finished swimming pool next to
the residence. Apart from the odor from the swimming pool, however,
there is no evidence that the materials in the pool was leaking or
leeching into the residence. At the hearings before the subcommittees,
one of the surviving Davidians testified that sanitation ``was no worse
on the last day than it was throughout the fifty-one days.'' \584\ The
assertion in the Justice Department Report that ``sanitary conditions
had deteriorated significantly'' is simply incorrect.
---------------------------------------------------------------------------
\584\ Hearings Part 3 at 195 (statement of Clive Doyle).
---------------------------------------------------------------------------
In summary, the conditions inside the residence had changed only
slightly from those in which the Davidians lived before February 28. The
conditions appear to not have presented any immediate health risk to the
adults or children inside the residence. If concerns about these
conditions played a role in the Attorney General's decision to end the
standoff on April 19, they were unfounded and she knew or should have
known this.
e. There was the possibility of on-going physical and sexual
child abuse
The Justice Department Report states that during the week of April
12, an (unnamed) individual informed the Attorney General that the FBI
had learned that the Davidians were physically abusing the children in
the residence and that this abuse had occurred after February 28. The
report states, ``[T]he Attorney General had no doubt that the children
were living in intolerable conditions.'' The report goes on to State
that the Attorney General had been told that Koresh had sexually abused
minors in the past and ``continued to have sex while recovering from his
wounds.'' \585\ The report does not State on what intelligence these
assertions were based.
---------------------------------------------------------------------------
\585\ Justice Department Report at 275.
---------------------------------------------------------------------------
In another part of the report, however, the Justice Department
admits that the FBI had no direct evidence of physical or sexual abuse.
As the reports states,
[T]here was no direct evidence establishing that any children
were being either sexually abused of physically abused the
February 28 through April 19 time period. There were
circumstantial indications, however, that the children were
living in a deteriorating environment, and that the prospect of
living in a deteriorating environment, and that the prospect of
sexual or physical abuse was likely as the standoff
continued.\586\
---------------------------------------------------------------------------
\586\ Id. at 226.
There is little circumstantial evidence revealed in the report as well.
It is clear that Koresh sexually abused minor females at the
residence, in addition to having consensual sexual relations with a
several of the adult females who lived there. A number of former
Davidians provided affidavits detailing these sexual relations,
including the sexual abuse involving minors females. Joyce Sparks, an
employee of the Texas Children's Protective Services agency provided the
FBI with a report of an interview she conducted with a child who lived
at the residence detailing an incident of sexual abuse. This child
testified about her experience before the subcommittees at the July
hearings. Also, during conversation between the FBI and Steve Schneider
during the week of April 14, Schneider admitted that he knew of Koresh's
sexual abuse of a minor female.\587\ While all of these incidents
occurred prior to February 28, FBI behavioral expert Dr. Park Dietz, in
an April 17 memoranda to the FBI, opined that ``Koresh may continue to
make sexual use of any minor female children who remain inside.'' \588\
---------------------------------------------------------------------------
\587\ Id. at 222-223.
\588\ Id. at 223.
---------------------------------------------------------------------------
It also appears certain that Koresh employed severe physical
punishments as a means of disciplining the children. A March 26 report
of Dr. Bruce Perry, a child psychiatrist who interviewed the children
who had been released during the standoff, confirmed that Koresh
physically abused children who had misbehaved.\589\
---------------------------------------------------------------------------
\589\ Id. at 223-224.
---------------------------------------------------------------------------
On April 19, the Attorney General made several television statements
during which she stated that her concern of on-going child abuse was
factor that led her to decide to end the standoff. While the Attorney
General's concerns for the children's welfare were real, there was no
reliable evidence that conditions inside the compound had worsened
substantially from those existing prior to the February raid or that the
Davidian children were suffering greater harms than they had in the
past. Additionally, as the Justice Department report makes clear, the
Attorney General was aware of the potential for extreme danger to the
children in pursuing the FBI's assault plan.\590\
---------------------------------------------------------------------------
\590\ The Attorney General ruled out a proposal to end the standoff
during the weekend of April 17 because of her concern about the
availability of emergency rooms. In addition, during pre-raid approval
meetings she questioned the FBI's planned response to the potential
threat of individuals carrying children while firing weapons, and to the
possibility of children being held up windows and being threatened to be
shot. Id. at 272-273.
---------------------------------------------------------------------------
Given the lack of evidence that the children inside the compound
faced immediate life-threatening harm from the ongoing standoff and the
Attorney General's awareness of the extreme risks of an assault,
including the potential for serious or even life-threatening injury to
the children, the Attorney General's decision to approve the raid based
on concerns for the children's welfare was flawed.
While the Justice Department Report tries to downplay this factor by
asserting that the Attorney General was more influenced by other
factors,\591\ the Attorney General's public statements on and after
April 19 indicate otherwise. Particularly troublesome is the statement
in the Justice Department report that ``[u]ltimately, it made no
difference whether the children were undergoing contemporaneous abuse,
because the environment inside the residence was intolerable in any
event.'' \592\ This statement is an attempt to mask the fact that the
Attorney General either was misinformed or misunderstood what was
happening inside the residence as of the third week of April or
intentionally exaggerated the conditions to provide an excuse for
approving the plan she knew could likely end in violence and put the
children at greater risk.
---------------------------------------------------------------------------
\591\ Id. at 216.
\592\ Id. at 217.
---------------------------------------------------------------------------
3. The decision as to how to implement the plan
a. The FBI's mindset--``This is not an assault''
At 5:59 a.m. on April 19, FBI chief negotiator Byron Sage spoke with
Steve Schneider by telephone and told him, ``[W]e're in the process of
putting tear gas into the building. This is not an assault. We will not
enter the building.'' \593\ Schneider responded by throwing the
telephone out of the residence. Sage then began to broadcast the
following message over loudspeakers pointed toward the residence:
---------------------------------------------------------------------------
\593\ Id. at 286.
We are in the process of placing tear gas into the building.
This is not an assault. We are not entering the building. This
is not an assault. Do not fire your weapons. If you fire, fire
will be returned. Do not shoot. This is not an assault. The gas
you smell is a non-lethal tear gas. This gas will temporarily
render the building uninhabitable. Exit the residence now and
follow instructions.
You are not to have anyone in the tower. The tower is off
limits. No one is to be in the tower. Anyone observed to be in
the tower will be considered to be an act of aggression and will
be dealt with accordingly.
If you come out now, you will not be harmed. Follow all
instructions. Come out with your hands up. Carry nothing. Come
out of the building and walk up the driveway toward the Double-E
Ranch Road. Walk toward the large Red Cross flag.
Follow all instructions of the FBI agents in the Bradleys.
Follow all instructions.
You are under arrest. This standoff is over.
We do not want to hurt anyone. Follow all instructions. This
is not an assault. Do not fire any weapons. We do not want
anyone hurt.
Gas will continue to be delivered until everyone is out of the
building.\594\
---------------------------------------------------------------------------
\594\ Id. at 286-287.
Immediately after Sage spoke with Schneider, two CEV's approached the
residence. Both CEV's were fitted with a long triangular boom-like arm
on which was fitted a device that would spray CS agent mixed with carbon
dioxide. The CEV's were maneuvered close enough to the residence so that
the boom could be rammed into and through the wall of the building. The
operator then inserted CS agent into the building using the device
affixed to the boom of the CEV. Insertions of CS agent by the CEV's
occurred in four distinct phases throughout the morning of the April 19.
During this phase of the plan, FBI agents in the Bradleys also
maneuvered close to the residence. The agents used hand-held grenade
launchers to fire CS agent in projectiles knows as Ferret rounds
thorough a firing port in the Bradleys and into the windows of the
residence. This activity also went on throughout the morning of the
19th.
As Sage testified at the subcommittees' hearings, the FBI did not
consider these actions to be an assault against the residence. To Sage,
the fact that the FBI did not plan to enter the residence at any time,
and did not enter the residence, was determinative as to whether the
operation was an assault. While this distinction may have made complete
sense to the FBI, it made sense only because FBI agents, and especially
HRT members, deal with these concepts each day as part of their duties.
The FBI assessed the situation only on their terms. They failed to
consider how their actions would be perceived by those who were the
targets of their actions--the Davidians inside the residence. This
failure was a significant error.
b. The FBI's failure to consider the ``Reasonable Branch
Davidian''
As the FBI implemented its plan to end the stand-off the Branch
Davidians were confronted with the sound of military vehicles
approaching their home, the vibrations from holes being rammed into the
sides of their home, and by the effects of a gas-like substance being
sprayed into their home. Most people would consider this to be an attack
on them--an ``assault'' in the simplest terms. If they then saw other
military vehicles approaching, from which projectiles were fired through
the windows of their home, most people are even more likely to believe
that they were under an assault. If those vehicles then began to tear
down their home there would be little doubt that they were being
attacked. These events are what the Davidians inside the residence
experienced on April 19, yet the FBI did not consider their actions an
assault.
Compounding this situation is the fact that the Davidians were not
``most people.'' They were a close-knit group with ties to their home
stronger than those of most people. The Davidians considered their
residence to be sacred ground. Their religious leader led them to
believe that one day a group of outsiders, non-believers, most likely in
the form of government agents, would come for them. Indeed, they
believed that this destiny had been predicted 2,000 years before in
Biblical prophecy. Given this mindset, it can hardly be disputed that
the Davidians thought they were under assault at 6 a.m. on April 19.
The FBI's failure to consider how the Davidians might respond to
their actions was important. The FBI's operations plan called for a
systematic insertion of the CS riot control agent at different intervals
throughout the day. But the plan also called for a back-up operation if
the armored vehicles used in the operation came under fire. This
contingency plan involved rapid insertion of CS agent and the eventual
``deconstruction'' or tearing down of the residence itself. The vehicles
came under fire almost immediately after the gas insertion began. The
FBI resorted to their fall-back plan as of 6:07 a.m.\595\
---------------------------------------------------------------------------
\595\ Id. at 288-289.
---------------------------------------------------------------------------
As the Justice Department Report makes clear, the majority of the
FBI's briefing to the Attorney General involved the main FBI plan
involving the deliberate, slow insertion of CS agent. Little discussion
apparently took place about the contingency provision in the plan
calling for the rapid insertion of CS agent and the deconstruction of
the residence.
Curiously, the FBI seemed to know that their principal plan would
not govern the way that events would actually unfold on April 19. The
FBI's overall commander, Jeffrey Jamar, testified at the subcommittees'
hearings that he had a belief to a 99 percent certainty that the
contingency plan would be implemented, as he believed the Davidians
would open fire on the CEV's. As he testified before the subcommittees,
``I believed it was 99 percent when we approached with the tank they
would fire. I believe that. Not all people agree with me on that, but I
believed that at the time, yes.'' \596\ Although the Justice Department
Report does not mention that Jamar informed his superiors of his belief,
it is clear the Attorney General also believed the Davidians would open
fire on the FBI. In referenced to firing on the FBI, the Attorney
General testified that she ``knew what these men would do.'' \597\
---------------------------------------------------------------------------
\596\ Hearings Part 2 at 484.
\597\ Hearings Part 3 at 367. The Attorney General testified:
``I think it is important that when you consider the use of tanks
that they be considered as vehicles providing the armored capacity to
prevent the penetration of these--this ammunition that we knew Koresh
had. I can't speak to whatever was done prior to the time I took office,
but, clearly, with respect to the day of April the 19th, I could not put
FBI agents out there exposed when I knew what these men would do and
when they started immediately to fire on the FBI. Id. [emphasis added].
---------------------------------------------------------------------------
It cannot be known whether the Attorney General would have decided
differently had she known that the FBI expected the contingency
provisions of the operations plan to be implemented. What is clear is
that she never had the opportunity to consider this fact because the FBI
believed that their actions did not constitute an attack, based on an
incomplete understanding of the Davidians. Had the FBI considered how
the Davidians would perceive their actions they might have been able to
predict that the fall back plan would be used. If this fact had been
communicated to the Attorney General she might have decided things
differently.
h. presidential involvement in the events at waco, tx
The involvement of the White House occurred in several ways.
According to White House Chief of Staff Mack McLarty, two parallel lines
of communication existed--one from Acting Assistant Attorney General
Stuart Gerson to McLarty, and the other from Gerson to White House
Counsel Bernard Nussbaum. Senior advisor Bruce Lindsey also kept
informed on developments in Waco.\598\
---------------------------------------------------------------------------
\598\ Justice Department Report at 242.
---------------------------------------------------------------------------
No White House officials objected to the plan to end the standoff at
an April 13, 1993 meeting between White House and Justice Department
officials, including Hubbell, Nussbaum, Lindsey and Deputy White House
Counsel Vince Foster. On Sunday, April 18, 1993, Reno called the
President to inform him that she had decided to approve the FBI's
request to use CS as part of a plan to end the standoff. The President
told Reno ``it is your decision.'' \599\ Clinton later told the American
people, ``I was aware [of the plan to insert CS into the residence.] I
think the Attorney General made the decision. I knew it was going to be
done, but the decisions were entirely theirs.'' \600\
---------------------------------------------------------------------------
\599\ Id.
\600\ White House statement, April 19, 1993.
---------------------------------------------------------------------------
i. findings concerning the plan to end the standoff
1. The Attorney General's decision to end the standoff on day 51 was
premature, wrong, and highly irresponsible. The decision by Attorney
General Janet Reno to approve the FBI's plan to end the standoff on
April 19 was premature, wrong, and highly irresponsible. In authorizing
the CS assault to proceed Attorney General Reno was seriously negligent.
The Attorney General knew or should have known that the plan to end the
stand-off would endanger the lives of the Davidians inside the
residence, including the children. The Attorney General knew or should
have known that there was little risk to the FBI agents, society as a
whole, or to the Davidians from continuing this standoff and that the
possibility of a peaceful resolution continued to exist.
a. The ``benefits'' of avoiding problems were not properly
evaluated. The FBI's belief that the standoff was likely to continue
indefinitely was too pessimistic given the advice of behaviorist Dr.
Murray Myron and the Davidians' attorneys that Koresh was turning his
attention to what he considered to be his principal theological work,
his interpretation of the meaning of the Seven Seals. As they believed
that no resolution was possible through further negotiations, the FBI
wrongly concluded and convinced the Attorney General that there was no
alternative to going forward with the plan to end the standoff. The only
issue was timing. There was also no need to rush into action on April
19, but having lost patience with the negotiating process and facing an
initially reluctant Attorney General, FBI officials manufactured or
grossly exaggerated arguments for urgency.
There was never any overt act or even a statement made by Koresh to
support the FBI's asserted fear that the Davidians might try a breakout.
Using the threat of a breakout as a reason to go forward with the CS
assault plan sooner rather than continue the negotiations was wrong. The
FBI and the Attorney General knew or should have known there was no
remotely imminent threat of such a breakout. Also, there was no reason
to go forward on April 19 out of concern that the HRT was exhausted and
needed to step down for retraining. According to the HRT's own
commander, the HRT could have remained on duty at the residence for at
least 2 more weeks. In addition, FBI and local law enforcement SWAT
teams could have been brought in to maintain the perimeter if the HRT
had to step down for a short time. The FBI and the Attorney General knew
or should have known this.
The Attorney General wrongly based her decision to act in part on
concerns that the conditions inside the residence were deteriorating and
that children were being abused. There was no evidence that sanitary and
other living conditions inside the residence, stark at the beginning of
the standoff, had deteriorated appreciably during the standoff. Further,
while there is no question that physical and sexual abuse of minors
occurred prior to February 28 and may have continued thereafter, there
is no evidence that minors were being subjected to any greater risk of
physical or sexual abuse during the stand-off than prior to February 28.
The Attorney General knew or should have known this. In light of the
risk to the children from a forced end to the stand-off, and the
remaining possibility of a peaceful resolution, it was inappropriate for
the Attorney General to have been occupied with apprehending Koresh for
violations of State law which were outside her jurisdiction to enforce.
b. The risks of ending the standoff were not fully appreciated. In
deciding to end the standoff on April 19, the FBI and the Attorney
General failed to properly evaluate the risks to the Davidians of the
FBI's operational plan. The FBI's plan was based on an assumption that
most reasonable people would flee the residence when CS agent was
introduced. The FBI failed to fully appreciate the fact that the
Davidians could not be relied upon to act as other reasonable people
might. The FBI failed to properly account for the Davidians' resolve,
group cohesiveness, and loyalty to what they believed to be sacred
ground.
More troubling is the fact that the FBI commanders either knew or
should have known that the contingency provisions of the plan presented
to the Attorney General would likely be implemented. While the plan as
described to the Attorney General called for a slow and deliberate
insertion of CS agent in an effort to deny the Davidians access to some
areas of the residence and encourage them to exit the residence in
specific locations, the contingency provision in the plan called for
much larger quantities of CS to be inserted all at once, and in all
areas of the residence, if the Davidians opened fire on the agents
inside the CEV's. The result of the contingency provision would be much
larger quantities of CS being present inside the residence with the
attendant greater likelihood that harmful concentrations might be
reached, and also the strong likelihood that the all-out assault would
cause panic in the people inside the residence.
Jeffrey Jamar, the FBI's overall commander at the residence
testified before the subcommittees that he believed there was 99 percent
chance that the contingency provision would be implemented because the
Davidians would open fire on the FBI against. Clearly, given the
Davidians' actions in response to the ATF raid on February 28, it was
almost certain that the Davidians would respond to the FBI's actions
with gunfire. Yet, Jamar never communicated his opinion to the Attorney
General, or apparently to anyone else for that matter. Other senior FBI
officials, however, should have realized that the Davidians would
respond with gunfire and that the contingency provision of the plan
would be quickly implemented. Given this, they should have more fully
briefed the Attorney General on this aspect of the plan.
More importantly, however, the Attorney General herself admitted
during her testimony before the subcommittees that she expected the
Davidians to fire on the tanks, and that she understood that if they did
the rapid acceleration of contingency plan would be implemented. It is
evident the Attorney General knew or should have known that the
contingency provision of the plan would be implemented once the
operation began on April 19, that the Davidians would not react by
leaving the residence as suggested by the FBI, and that there was a
possibility that a violent and perhaps suicidal reaction would occur
within the residence. At no time has the Attorney General indicated that
she reflected on the consequences of the possibility. At the very least
this demonstrates gross negligence on the part of the Attorney General
in authorizing the plan to proceed.
3. FBI commanders in Waco prematurely ruled-out the possibility of a
negotiated end to the stand-off. After Koresh and the Davidians broke a
promise to come out on March 2, FBI tactical commander Jeffrey Jamar
viewed all statements of Koresh with extreme skepticism and thought the
chances for a negotiated surrender remote. While chief negotiator Byron
Sage may have held out hope longer, FBI officials on the ground had
effectively ruled out a negotiated end long before April 19 and had
closed minds when presented with evidence of a possible negotiated end
involving Koresh's work on interpreting the Seven Seals described in the
Bible's Book of Revelation.
4. FBI tactical commander Jeffrey Jamar and senior FBI and Justice
Department officials acted irresponsibly in advising the Attorney
General to go forward with the plan to end the stand-off on April 19.
Jamar and senior FBI and Justice Department officials advising the
Attorney General knew or should have known that of the reasons given to
end negotiations and go forward with the plan to end the stand-off on
April 19 lacked merit. To urge these as an excuse to act at the time the
Attorney General made the decision to do so was wrong and highly
irresponsible.
5. The FBI's refusal to ask for or accept the assistance of other
law enforcement agencies during the stand-off demonstrated an
institutional bias at the FBI against accepting and utilizing such
assistance. Throughout the 51 day stand-off the FBI refused to ask for
the assistance of other law enforcement agencies and even refused offers
of such assistance. The subcommittees find that there is an
institutional bias inside the FBI against allowing other agencies to
participate in FBI operations. Such bias is short-sighted and, in this
case, proved to be counter-productive in that the failure to seek or
accept assistance added to the pressure to end the stand-off on April
19.
6. It is unlikely that the CS riot control agents used by the FBI
reached toxic levels, however, in the manner in which the CS was used
the FBI failed to demonstrate sufficient concern for the presence of
young children, pregnant women, the elderly, and those with respiratory
conditions. CS riot control agent is capable of causing immediate, acute
and severe physical distress to exposed individuals, especially young
children, pregnant women, the elderly, and those with respiratory
conditions. In some cases, severe or extended exposure can lead to
incapacitation. Evidence presented to the subcommittees show that in
enclosed spaces, such as the bunker, the use of CS riot control agent
significantly increases the possibility that lethal levels will be
reached, and the possibility of harm significantly increases. In view of
the risks posed by insertion of CS into enclosed spaces, particularly
the bunker, the FBI failed to demonstrate sufficient concern for the
presence of young children, pregnant women, the elderly, and those with
respiratory conditions. While it cannot be concluded with certainty, it
is unlikely that the CS riot control agent, in the quantities used by
the FBI, reached lethal toxic levels. The presented evidence does
indicate that CS insertion into the enclosed bunker, at a time when
women and children were assembled inside that enclosed space (i.e.,
during the fourth CS riot control agent insertion), could have been a
proximate cause of or directly resulted in some or all of the deaths
attributed to asphyxiation in the autopsy reports.
It is clear from the testimony at the hearings that the FBI expected
the adult members of the community to care for the children by removing
them from exposure to the CS agent by coming out of the residence with
them. This presumption was flawed. As the Defense Department's witness
testified before the subcommittees, one of the two senior military
officers who attended the meeting with the Attorney General on April 14,
told the Attorney General that during the use of CS mothers might ``run
off and leave their children.'' Yet the Attorney General failed to
appreciate the fact that this possibility was in direct contravention to
a key assumption of the plan's provision for the use of the CS agent--
that the adult members of the community would care for the children.
The FBI failed to properly inform the Attorney General of the risks
of using CS agent on children by not appreciating the military officer's
warning that parents might abandon their children and by not fully
apprising the Attorney General that there was little scientific
information on the effects of CS on children. While the Attorney General
cannot be faulted for relying on the advice given her by persons whose
job it was to be fully informed about the use of CS, it appears that the
Attorney General failed to fully consider the flawed assumption in the
FBI's plan once it should have become obvious to her.
7. There is no evidence that the FBI discharged firearms on April
19.
8. Following the FBI's April 19 assault on the Branch Davidian
compound, Attorney General Reno offered her resignation. In light of her
ultimate responsibility for the disastrous assault and its resulting
deaths the President should have accepted it.
j. recommendations
1. Federal law enforcement agencies should take steps to foster
greater understanding of the target under investigation. The
subcommittees feel strongly that government officials failed to fully
appreciate the philosophy or mindset of the Davidians. If they had,
those officials might have been better able to predict how the Davidians
would react to the plans to raid the residence on February 28 and the
plan to end the standoff on April 19. If so, perhaps many of the errors
made on February 28 and during the standoff could have been avoided.
The subcommittees found troublesome the fact that many of the ATF
and FBI officials involved in this matter seemed uninterested in
understanding the Davidians' goals and belief system. The views of these
officials ranged from assumptions that the Branch Davidian were rational
people likely to respond to authorities as would most citizens to a
belief that the Davidians were a ``cult'' which could not be dealt with
in any way other than by force. Seldom did these officials seem
interested in actually trying to understand this group of people and
their motivations. This attitude was shortsighted and contributed to
several of the mistakes that the government officials made at different
points from February 28 through April 19.
This change in organizational culture can only result if senior
officials in the Federal law enforcement agencies implement changes in
training and operational procedures. The benefits of these changes will
not only protect the targets of government action but, by making it more
likely that Federal law enforcement officials will carry out their
mission in the manner most likely to succeed, will help to protect the
safety of the law enforcement officers as well.
2. Federal law enforcement agencies should revise policies and
training to encourage the acceptance of assistance from other law
enforcement agencies, where possible. The subcommittees recommend that
FBI officials take steps to change the prevailing FBI culture that leads
agents to believe that only the FBI knows best how to handle a
situation. While agency pride is appropriate, and deserving in the case
of the FBI, this pride appears to have caused the agents to have been
foreclosed to other possibilities of dealing with the situation at hand,
such as by allowing other persons whom the Davidians trusted to become
more involved in negotiations or using other law enforcement agency
forces to maintain the Branch Davidian center perimeter and thus relieve
pressure on the HRT. The FBI could have been open to these possibilities
while maintaining its ultimate control of the situation. The FBI needs
to take steps now to ensure that this close-mindedness does not occur in
the future.
3. The government should further study and analyze the effects of CS
riot control agent on children, persons with respiratory conditions,
pregnant women, and the elderly. The subcommittees recommend that the
FBI and Department of Defense investigate further the effects of
exposure to CS on children, pregnant women, the elderly, and persons
with respiratory problems. Until such time as more is learned about the
actual effects of exposure to this agent, the subcommittees recommend
that CS not be used when children, persons with respiratory conditions,
pregnant women, and the elderly are present.
4. The FBI should expand the size of the Hostage Rescue Team. One of
the pressures that led the FBI to recommend to the Attorney General that
the standoff be ended on April 19 was the need to rest and retrain the
HRT. There were not sufficient numbers of HRT members to both guard the
perimeter of the residence and to relieve members on the line
periodically. Given this limitation, the subcommittees also note that if
another hostage or barricade situation had developed involving a Federal
law enforcement agency while the standoff with the Davidians was
continuing, the FBI would have been faced with the choice of not
responding to that situation or pulling the HRT out of Waco and moving
them to the new location.
Both of these scenarios suggest the need to enlarge the size of the
HRT. While the subcommittees are aware that the FBI has increased the
size of the HRT from the 48 ``operator'' agents on the team as of early
1993 to 78 operators as of July 1996, the subcommittees recommend that
further consideration be given to this issue. As the subcommittees have
concluded that the government should have waited beyond April 19 and
continued to negotiate with the Davidians, inherent in that
recommendation was that the HRT or some other tactical force should have
remained at the residence. The FBI should ensure that the HRT is large
enough to maintain a long standoff in the future, should the need arise,
while also having the capacity to respond to another hostage or
barricade situation elsewhere in the country during the standoff.