FBI misled Reno to get tear-gas OK, ex-agent alleged

Request to use force in Waco omitted expert's cautions, 1995 bureau file says

The Dallas Morning News, March 6, 2000
By Lee Hancock

A veteran FBI behavioral expert told a bureau lawyer in a 1995 interview that he believed FBI officials "misled" Attorney General Janet Reno to gain her approval to gas the Branch Davidian compound on April 19, 1993, a confidential document states.

Retired FBI Agent Peter Smerick, whose psychological profiles were termed the best predictors of the Waco tragedy by experts and negotiators involved in the siege, told FBI interviewers that he believed "the FBI misled the attorney general by giving her 'a slanted view of the operation' in Waco."

A 1995 report obtained by The Dallas Morning News says that Mr. Smerick blamed FBI headquarters for convincing the attorney general that using tear gas was the only way to end the standoff peacefully. He said that he and one of the FBI's top negotiators had by then "concluded that the best strategy would have been to convert the Branch Davidian compound into a prison and simply announce to [sect leader David] Koresh that he was in the custody of the United States. This idea was not endorsed, however."

"Smerick speculated that FBI headquarters viewed this option as one which would have caused them to 'lose face' and therefore was unacceptable," the report said.

Mr. Smerick, who retired from the FBI in late 1993 and now is a behavioral consultant in a firm of ex-FBI agents, could not be reached for comment. He has declined interviews, citing ongoing investigations by Congress and Waco special counsel John Danforth. Ms. Reno's spokesman declined to comment. The 15-page FBI report of Mr. Smerick's interview, written by the FBI general counsel's office, is labeled "attorney-client privileged and confidential." It has never before been made public, and lawyers representing the Branch Davidians in a federal wrongful-death lawsuit say they have never seen the document despite repeated requests for such information.

The report states that Mr. Smerick based his allegation that Ms. Reno was misled on the fact that his five Waco profiling memos were not in the "briefing book" that FBI leaders gave her when they began lobbying her on April 12 to approve using tear gas.

'Last option'

Those memos warned that using force against the Branch Davidians would intensify a "bunker mentality" in which "they would rather die than surrender." Mr. Smerick's memos also warned that the sect considered its home "sacred ground" and would "fight back to the death" if the authorities tried to go in. "The bottom line is that we can always resort to tactical pressure, but it should be the absolute last option we should consider," one memo said.

Two of the most experienced negotiators in Waco, including the current head of FBI negotiations and crisis management, said in recent depositions that they agreed with Mr. Smerick's assessments and recommendations in Waco. Both testified that they shared his belief that punitive FBI tactics and impatience killed negotiations and kept many Branch Davidians from leaving before the final day.

More than 80 sect members died when the compound burned. The fire erupted about six hours after FBI agents began spraying in tear gas and ramming the building with tanks. "I think we could've gotten more people out if there were better decisions," retired FBI Agent Frederick Lanceley testified. "I don't think we would have gotten everybody out. But I think we would've gotten more people out."

Mr. Smerick's memos were so adamant about the danger of using force that they drew intense criticism from FBI leaders in Waco and Washington who favored tactical options, FBI records show. An administrative notebook kept by the hostage rescue team in Waco belittled his profiling of Mr. Koresh. One unsigned note in the notebook outlined Mr. Smerick's recommendations for ensuring "safety of children who are victims," and "facilitat[ing] peaceful surrender." It concluded: "psychological profile of a . . . [expletive] by jerks." New procedure

On March 9, Mr. Smerick told FBI interviewers, he was called by his boss in Washington and told that his future memos must go to Washington before being read by commanders in Waco.

Although no one plainly stated that he would be censored, Mr. Smerick said in 1995, he felt unmistakable pressure to change his advice. He added in the confidential interview that he believed that "the traditionally independent process of FBI criminal analysis . . . was compromised at Waco."

Mr. Smerick told interviewers that he quit writing after submitting an "acquiescent" final memo that omitted previous cautions against pushing the sect and incorporated suggestions from his Washington boss for tactical pressure. He said he left Waco "in frustration" on March 17, though he kept in contact with some negotiators.

Ms. Reno initially balked at the tear-gas plan. On April 16, she asked senior FBI and Justice officials to prepare an annotated report explaining the situation in Waco and the need for a tactical resolution. FBI headquarters immediately sent a detailed request to Texas seeking "specific documentation to support our position" that tear gas was the only option. The request outlined how the information would be used to argue against waiting out the sect.

The request also stated the FBI's plan for addressing questions about negotiations in the report to the attorney general: "The universal assessment of all involved - including FBI and outside consultants: that negotiation would not work," the internal memo says.

The resulting report, presented to Ms. Reno on the evening of April 17, does not mention Mr. Smerick's behavioral memos. The report said nothing about repeated complaints from him and top negotiators that their efforts to coax sect members out were working until negotiations were derailed by intimidating FBI tactics. The report also said nothing about their warnings that using tanks or other force against the Branch Davidians would cause violence and death.

Instead, the final report to Ms. Reno offered a terse assessment of the Waco negotiations: "Since negotiations began on Feb. 28, 1993, despite 51 days of efforts, the negotiators have concluded that they have not been able to successfully negotiate a single item with Koresh."

Reno gives go-ahead

According to the 1993 Justice review, Ms. Reno gave that report "a cursory review" and then said that the gassing operation could begin at dawn on April 19.

After seeing the briefing book presented to the attorney general, the report on Mr. Smerick's 1995 FBI interview said, "Smerick speculated that the preparers selectively incorporated memoranda and evidence from the case which selectively supported the tactical step of tear-gas insertion. "He feels compelled to present the foregoing information for the Bureau's consideration and deliberation in an attempt to prevent similar outcomes in future hostage situations," the report said. "Smerick explained that if he is called to testify at any official public hearings regarding this matter, he will present the facts in a fashion as favorable to the FBI as possible." Two months after his confidential FBI interview, Mr. Smerick was a witness in congressional Waco hearings. He discussed his memos briefly but offered none of the intense criticisms that he voiced in his FBI interview.

FBI leaders also testified, maintaining that they did everything possible to resolve the 51-day siege peacefully before taking tactical action.

Ms. Reno echoed that in her 1995 testimony, telling Congress that she was "very satisfied" with the information she was given by FBI officials. The Justice Department's 1993 review of government actions in Waco offered a similar assessment, adding that Ms. Reno's belief "was well founded. . . . No witness involved in this review has claimed otherwise."

Mr. Smerick and some top negotiators did offer highly critical statements to Justice interviewers after the siege, but most details of those complaints were omitted from the review, internal Justice memos show.

Criticisms edited

Internal FBI records show that reports from other interviews conducted by the FBI for the 1993 review, including earlier interviews with Mr. Smerick, were edited to remove critical or controversial statements that might reflect negatively on the FBI's efforts in Waco.

In his 1995 FBI interview, Mr. Smerick voiced concerns about the objectivity and accuracy of the Justice review. He complained that he had been shut out of presentations to a panel of outside experts that the Justice Department asked to help with the review in the summer of 1993.

Mr. Smerick said he was excluded from initial meetings with the panel and talked with them only because he barged in uninvited to a final meeting. "He walked into the meeting room unannounced and requested to speak to the panel . . . and gave them copies of the memoranda he had authored," the 1995 FBI report said. Mr. Smerick added that the agents there were so displeased "that they would not speak to him afterwards."

The panel of experts recommended that select FBI regional leaders receive intensive training in crisis management, including behavioral-science training.

The recommendation prompted a new FBI crisis-training program. But Mr. Smerick told FBI lawyers in 1995 that he and other Waco behavioral experts and negotiators were excluded from classes detailing what happened in the Branch Davidian standoff. Instead, he noted in his 1995 interview, only the two FBI commanders who led the operation in Waco - both vocal advocates of aggressive tactics against the sect - were asked to brief the FBI classes. "Smerick explained that he finds this very troubling because these [leaders] should have been advised as to what actually happened at Waco from a behavioral-science perspective," the report on the interview said. "Smerick concluded the interview by noting that he has always been loyal to the FBI and will continue to be loyal. He advised that he is providing the foregoing information for in-house edification, not to publicly criticize the FBI."