Introduction

Activities of Federal Law Enforcement Agencies Toward the Branch Davidians

Report House of Representatives
104th Congress, 2nd Session, Union Calendar No. 395
August 2, 1996

                             I. Introduction

                    a. the need for the waco inquiry

    On February 28, 1993, four special agents of the Bureau of Alcohol, 
Tobacco and Firearms (ATF) were tragically killed near Waco, TX, in a 
shootout with a religious sect known as the Branch Davidians. The 
group's leader, Vernon Howell, also known as David Koresh, was wounded 
in the violent confrontation, and several of its members were killed. 
Then on April 19, 1993, after a 51 day standoff with the Federal Bureau 
of Investigation (FBI), the episode came to a fiery conclusion when more 
than 70 Davidians, including 22 children, died inside the group's 
residence.
    From any perspective, Waco ranks among the most significant events 
in U.S. law enforcement history. For ATF, it was the largest and most 
deadly raid ever conducted. For the FBI, it was an unprecedented failure 
to achieve a critical objective--the rescue of dozens of innocent women 
and children.
    The television coverage and news accounts generated by the media at 
the scene near Waco presented a troubling picture to Americans. On the 
one hand, it seemed clear enough that a Jonestown-like religious cult 
led by an irrational leader had brought disaster on itself. On the other 
hand, images of the tanks and other military vehicles gave the 
impression that the FBI was using excessive force together with military 
weapons and tactics against U.S. citizens, contrary to our civilian law 
enforcement tradition. In the aftermath of the April 19th fire, 
government officials, Members of Congress, and assorted observers called 
for a thorough review of the matter. Outside the corridors of power, a 
mixture of fact, rumor, and suspicion produced a wide variety of lasting 
impressions and conspiracy theories.
    Both the Justice and Treasury Departments issued detailed written 
reports many months later. The Treasury Department Report criticized ATF 
personnel, but it exonerated all Department officials. The Justice 
Department Report found no fault with any actions of the FBI or any 
Justice Department official.
    Several congressional committees conducted hearings in the weeks 
following the disaster. Unfortunately, little information was available 
from administration officials at the time. Representative Jack Brooks, 
chairman of the House Judiciary Committee, promised additional hearings 
to resolve remaining questions, but none were held.
    Several developments in 1994 contributed to the pervasive view that 
serious questions about Waco remained unanswered. The criminal trial of 
the surviving Branch Davidians resulted in acquittals on murder charges. 
The self-defense arguments raised at trial and their obvious effect on 
the jury encouraged the public's outcry and desire for accountability. 
Journalists, investigators, and attorneys involved in the case decried 
the absence of candor and independence in the administration's reports 
and demanded a more comprehensive and detailed inquiry. In addition, 
widely distributed video tapes entitled ``Waco: The Big Lie'' and 
``Waco: The Big Lie Continues'' had a significant impact on public 
opinion. Also, many policymakers read an article published in First 
Things, written by Dean Kelly of the National Council of Churches,\1\ 
which stirred up considerable speculation about the ATF's conduct and 
the FBI's use of CS chemical agent. In short, by the start of the 104th 
Congress, the need for a sufficient and thorough congressional 
examination of the Waco tragedy was indisputable.
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    \1\ Dean M. Kelley, Waco: A Massacre and Its Aftermath, First 
Things, May 1995, at 22.
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    At the outset of the 104th Congress, both the Committee on the 
Judiciary and the Committee on Government Reform and Oversight indicated 
in their formal oversight plans, filed in February 1995, the intention 
to conduct hearings on the Waco matter. Representative Bill McCollum, 
chairman of the Subcommittee on Crime of the Committee on the Judiciary 
and Representative Bill Zeliff, chairman of the Subcommittee on National 
Security, International Affairs, and Criminal Justice of the Committee 
on Government Reform and Oversight stated on several occasions that such 
hearings were a necessary response to the widespread dissatisfaction 
with the Federal Government's follow-up to what happened at the Branch 
Davidian residence. The deplorable bombing in Oklahoma City 2 months 
later revealed the extent to which Waco continued to served as a source 
of controversy for some Americans. With the concurrence of the Speaker 
of the House and the chairmen of the Committees on the Judiciary and 
Government Reform and Oversight, the subcommittee chairmen began to 
organize comprehensive joint hearings on the Waco matter. As the July 
timetable was set for the hearings, both chairmen hoped a comprehensive 
investigation, primarily involving testimony from a wide variety of 
witnesses presented in public hearings, would lay to rest questions 
which persisted, assess responsibility for any misconduct, and 
ultimately restore full confidence in Federal law enforcement.

                      b. opposition to the inquiry

    Opposition to the Waco hearings was to be expected. The Departments 
of Justice and Treasury believed that their respective reports were 
forthright and complete and that additional scrutiny would only result 
in more negative publicity. Clinton administration officials were 
concerned that the hearings would cause further political damage.
    What was not expected was the extent to which the administration 
tried to control potential damage from the hearings. The White House 
staff assembled a damage control team and retained the services of John 
Podesta, a public relations specialist and former White House official 
who had worked for Handgun Control, Inc.\2\ Treasury Secretary Rubin 
contacted at least one member of the joint subcommittees, Representative 
Bill Brewster of Oklahoma, and requested that he not ask any questions 
that might embarrass the administration.\3\ Also, the Treasury 
Department flew to Washington two Texas Rangers who were scheduled to 
testify before the subcommittees in order to help them prepare their 
testimony. The Justice Department, in concert with the subcommittees' 
Democrats, brought firearms recovered from the charred Davidian compound 
to Washington to be used as props.
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    \2\ Ann Devroy, Clinton Team Focuses Damage Control on Waco, Wash. 
Post, July 19, 1995, at A12.
    \3\ Sue Ann Pressley, Witnesses Say Waco Warnings Went Unheeded, 
Wash. Post, July 22, 1995, at A11.
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    Perhaps the most disturbing counter-measure was the charge, made by 
the President himself, that the hearings were an attack on law 
enforcement. Quite the opposite was the case. All involved in the 
planning and carrying out of the hearings and the investigation were 
strong supporters of Federal law enforcement. All believed that through 
airing and analysis of the Waco events by congressional oversight 
committees were necessary to the long term credibility and viability of 
the Federal law enforcement agencies. The assertion that the hearings 
were anti-law enforcement was contrary to the unambiguous views of 
Federal law enforcement leaders. Finally, and perhaps the strongest 
response to the subcommittees' critics, is that the Waco hearings did in 
fact serve to strengthen public confidence in Federal law enforcement. 
The public was clearly reminded that we live in a Nation of laws and no 
power sits above those laws. Americans are far more likely to support 
law enforcement authorities when they know that such authorities will be 
held accountable for their actions.
    A final issue that arose at the start of the hearings was the extent 
to which the subcommittees would consider the character of David Koresh. 
In the minds of some, evidence of Koresh's despicable behavior would 
provide sufficient justification for not scrutinizing the conduct of 
Federal law enforcement officials. The subcommittees were prepared to 
stipulate then and now that Koresh was, on one level, responsible for 
the death and destruction that occurred at Waco. His actions inside the 
Davidian's religious community were of the vilest sort. Nevertheless, 
Koresh was not accountable to the people's elected Representatives in 
Congress as are Federal law enforcement authorities. Hence the 
subcommittees' inquiry concerned executive branch conduct, and not that 
of David Koresh.

                      c. the nature of the inquiry

    Given the extensive and expanding public concern about the Federal 
Government's actions against the Branch Davidians, and the effect such 
concerns were having on the credibility of Federal law enforcement, the 
subcommittees determined, in early 1995, that it would be advisable to 
hold hearings as soon as practicable. As a result, rather than using the 
hearings as a forum for presenting the results of a lengthy and 
completed investigation, it was decided that the hearings would consist 
of an exhaustive public airing of the issues associated with Waco. These 
``discovery hearings,'' rather than ``presentation hearings,'' would 
afford members of the joint subcommittees, interested attendees, the 
media, and C-SPAN audiences an opportunity to hear from the people who 
were directly involved in the Waco matter.
    The structure of the inquiry consisted of requests for and review of 
documents before and during the hearings; a pre-hearing investigation 
phase, including numerous interviews with many of the persons involved; 
the hearings themselves; and a post-hearing investigation.
1. Document requests and review
    On June 8, 1995, subcommittee Chairmen McCollum and Zeliff delivered 
document production requests to the Federal agencies involved at Waco. 
The agencies contacted were the Departments of Defense, Justice, and the 
Treasury. The White House also received a document request. The 
subcommittees took the position that virtually every Federal agency 
document associated with the Waco incident required some level of 
review. To review the matter any less thoroughly would leave lingering 
doubt as to whether a complete and comprehensive job had been done.
    Despite public commitments and private assurances of cooperation by 
the relevant departments, the subcommittees experienced a lack of 
cooperation which clearly frustrated hearing preparations. Throughout 
the month of June and early July, representatives of the White House, 
and Departments of Treasury and Justice attempted to narrow the scope of 
the subcommittees' requests and restrict access to a wide array of 
information. The first significant documents were delivered only 3 weeks 
prior to the hearings, some just days before, and tens of thousands of 
others were received after the hearings had already begun. This ``wait-
and-dump'' strategy rendered meaningful staff review of many key 
documents virtually impossible prior to commencement of the hearings.
    Moreover, the task of reviewing these documents was made more 
difficult by the manner in which they were presented. The Treasury 
Department's documents were in no apparent order, making the retrieval 
of a particular document nearly impossible. In what became symbolic of 
the administration's uncooperative attitude experienced by the 
subcommittees, it was discovered that the minority, but not the 
majority, had been provided an index for locating Treasury documents.
    It should be noted that cooperation, particularly from the 
Department of Justice, improved considerably shortly before the hearings 
began and continued throughout the course of the public inquiry.
2. Investigation and interviews
    The subcommittees engaged in investigative interviews, an 
examination of physical evidence, and an on-site inspection of the 
former Branch Davidian residence as a part of the preliminary inquiries. 
Both majority and minority staff traveled to Austin and Waco, TX for a 
fact-finding trip. Interviews were conducted with several Branch 
Davidians both at the former residence and at the home of Sheila Martin, 
widow of Wayne Martin, who died in the April 19 fire. Former Davidian 
Clive Doyle provided a tour of the ruins of the Davidian residence. 
Staff also met with members of the local county sheriff's office and 
with FBI personnel who, among other things, also took them on a visit to 
the Davidian residence site.
    The staff also had an opportunity to inspect the physical evidence 
taken from the ruins of the residence after the fire, much of which had 
been used in the criminal trial of surviving Davidians. By prior 
agreement with the Justice Department, a potential witness at the 
hearings, Failure Analysis Associates Inc., was to inspect some of the 
physical evidence in order to respond to tampering allegations. It was 
believed that the views of scientists from Failure Analysis, who had 
often performed scientific evaluations for the Federal Government, 
including the Justice Department and NASA after the Challenger 
explosion, would be beneficial given public suspicions about the 
firearms recovered from the site of the Davidian residence. The 
inspection would not have damaged the weapons and was to have been 
conducted in the presence of all parties. It was hoped that the 
inspection would determine whether the Davidians had attempted to alter 
legal, semi-automatic weapons by converting them into illegal, automatic 
weapons as the ATF had alleged, and whether any of this evidence had 
been altered after it was gathered from the destroyed Davidian 
residence. When the scientists arrived in Austin, the Department 
declined to make the firearms available to them. The Department agreed 
instead to conduct the tests itself and present its findings to the 
subcommittees. A short time later, the Department urged, for cost 
considerations, that the tests not be performed. As a result, no tests 
were performed on the firearms.
    Pre-hearing interviews were held with senior officers of the Texas 
Rangers, authors of books about the Waco disaster, personnel in the 
McLennan County Sheriff's office, and officials from the Departments of 
the Treasury, Justice, and Defense, ATF, Drug Enforcement 
Administration, and the FBI. Also, thousands of pages of materials 
submitted by outside groups and individuals interested in Waco were 
reviewed. Regrettably, the Treasury Department balked at making ATF 
agents available for interviews. The Department steadfastly refused to 
allow the subcommittee staff to meet with ATF agents who participated in 
the raid. Only the threat of subpoenas secured the appearance of ATF 
agents at the hearings. The inability to interview these individuals 
before public hearings was a significant investigative roadblock.
    Finally, the subcommittees' staff traveled to Fort Bragg, NC to 
interview the Army personnel involved with the training of ATF agents in 
preparation for the raid. Several of the military personnel involved 
with the training were not available prior to the hearings due to duty 
assignments, however, other military personnel whom the staff sought to 
interview, and who were stationed at Fort Bragg, were not made available 
to the subcommittees' staff for interviews. Disturbingly, all of the 
military personnel interviewed by the subcommittees' staff were 
counseled about the interviews prior to them by senior commanders, 
despite requests to the contrary.
3. Hearings
    The plan for the Waco hearings was to receive testimony under oath 
from as many persons material to the matter as possible. Thus, nearly 
100 witnesses appeared before the joint subcommittees over a period of 
10 days. The hearings included individuals from ATF and the Treasury 
Department who played critical roles in the investigation of David 
Koresh, and the planning, approval and execution of the February 28 
raid. They also included the key participants from the FBI and the 
Justice Department with regard to the 51 day standoff and the planning, 
approval, and execution on April 19 of the plan to end the standoff. 
More than a dozen experts on issues associated with Waco, such as fire, 
riot control agents, and tactical operations testified. The attorneys 
who represented Koresh, Davidian Steve Schneider, and several Davidian 
survivors of Waco also were among the witnesses.
    The minority was afforded an opportunity to add witnesses to the 
panels. Every effort was made to accommodate the requests received; more 
than 90 percent of the names submitted by the minority were added to the 
witness lists. The administration also requested witnesses to be 
included. On a few occasions, these requests conflicted with the 
minority's requests. Again, these desires were accommodated to the 
greatest extent practicable.
    The transcripts of these hearings will serve as a valuable tool for 
years to come. Many of the most significant documents were incorporated 
into the record. Many others are gathered in the appendix to this 
report. Additionally, the appendix contains a complete listing of 
hearing witnesses.
4. Post-hearing investigation
    Additional document requests were made after the hearings to the 
Departments of the Treasury, Justice, and Defense. Unfortunately, the 
lack of cooperation from the Treasury and Defense Departments which 
existed prior to the hearings continued, delaying release of the 
subcommittees' report.
    Other investigative activities which occurred after the hearings 
included inspection of photographs at the FBI laboratories and 
interviews with munitions experts, experts on riot control agents, and 
National Guard officials. Numerous written questions were posed to the 
Justice, Treasury, and Defense Departments. For the most part, they were 
answered. Legal experts on the Posse Comitatus Act were consulted. 
Subcommittee staff also met with the FBI agent who drove one of the 
armored vehicles involved in the destruction of the backside of the 
Davidian residence and other FBI officials involved at Waco. Finally, 
several investigative reporters shared information they have gathered 
regarding the Waco matter.

                d. the structure and scope of the report

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

                         e. additional comments

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