Raid Execution
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
IV. Raid Execution
There is no question that the ATF raid executed on February 28,
1993, went fatally wrong. While many factors played a role in this, one
stands apart as the principal reason why four ATF agents were killed and
many others wounded. Simply put, the Davidians knew that the ATF agents
were coming. And while the ATF expected to serve a search warrant for
Koresh and search the residence, the Davidians apparently feared the
worst that law enforcement agents or military troops were coming to
arrest all of them or, perhaps kill them. In any event, some of the
Davidians armed themselves and lay in ambush, waiting for the arrival of
the ATF agents.
a. rodriguez and the ``element of surprise''
1. How the Davidians knew the ATF was coming
The Davidians learned of the ATF plan to raid their residence when a
local television cameraman happened to get lost on his way to the Branch
Davidian residence.\62\ The cameraman had been dispatched to the
residence by the local television station because the news director of
the station expected the ATF raid would occur on that day. He suspected
this because an employee of the local ambulance service had informed him
that a Fort Worth-based trauma flight company had been put on standby
along with the local ambulance company.\63\
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\62\ U.S. Dept. of the Treasury, Report of the Department of the
Treasury on the Bureau of Alcohol, Tobacco, and Firearms Investigation
of Vernon Wayne Howell also known as David Koresh 85 (1993) [hereinafter
Treasury Department Report].
\63\ Lewis Gene Barber, a retired lieutenant with the Waco Sheriff's
Department, informed the subcommittees during its pre-hearing
investigation into these events that local police suspected that there
was an ``informant'' at the ambulance company who had been tipping off
the local television station. He stated that on several prior occasions,
when police had placed the ambulance company on standby, the station
sent a camera crew to the site of the police activity, even though the
police had not disclosed it to the station.
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While the cameraman was sitting by the side of the road attempting
to locate the Davidian residence, David Jones, a Branch Davidian and a
letter carrier with the U.S. Postal Service, pulled up behind the
cameraman and asked whether he was lost. The cameraman introduced
himself and asked for directions to ``Rodenville,'' the name by which
many local residents referred to the Branch Davidian residence. After
Jones pointed to the residence, which was in sight of where the two men
were stopped, Jones stated that he had read about the group in the paper
and ``thought that they were weird.'' The cameraman, believing that
Jones was not affiliated with the Davidians, warned him that some type
of law enforcement action was going to take place at the residence, that
it was likely to be a raid of some type, and that there may be
shooting.\64\ After the cameraman departed, Jones drove directly to the
residence and informed the Davidians.
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\64\ Treasury Department Report at 85.
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2. The undercover agent
On the morning of February 28, 1993, at approximately 8 a.m., Robert
Rodriguez, the ATF agent who had gone undercover into the Branch
Davidian residence on several prior occasions, went to meet with David
Koresh one final time. While Koresh and Rodriguez were engaged in a
Bible study session, David Jones arrived at the residence and told his
father, Perry Jones, what had happened. The elder Jones then informed
Koresh that he had a telephone call. Koresh, at first, ignored the
statement but, when Perry Jones mentioned that it was long distance from
England, Koresh left the room to speak with Jones.\65\ At this point,
David Jones relayed to Koresh his discussion with the television station
cameraman.
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\65\ Id. at 84-89.
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a. The Treasury Department Report version of events
The Treasury Department Report summarizes the subsequent events as
follows:
Upon Koresh's return, Rodriguez could see that he was
extremely agitated, and though he tried to resume the Bible
session, he could not talk and had trouble holding his Bible.
Rodriguez grabbed the Bible from Koresh and asked him what was
wrong. Rodriguez recalls that Koresh said something about, ``the
Kingdom of God,'' and proclaimed, ``neither the ATF nor the
National Guard will ever get me. They got me once and they'll
never get me again.'' Koresh then walked to the window and
looked out, saying, ``They're coming, Robert, the time has
come.'' He turned, looked at Rodriguez and repeated, ``They're
coming Robert, they're coming.'' \66\
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\66\ Id. at 89.
According to the Treasury Department Report, Rodriguez went first to
the undercover house announcing to the agents there and to James
Cavanaugh, deputy tactical coordinator of the ATF operation, that Koresh
was agitated and had said the ``ATF and the National Guard were
coming.'' \67\ The report states that Cavanaugh asked Rodriguez whether
he had seen any guns, had heard anyone talking about guns, or had seen
anyone hurrying around. Rodriguez responded in the negative to all three
questions. Cavanaugh then told Rodriguez to report his observations to
Chuck Sarabyn, the tactical coordinator for the raid.\68\
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\67\ Id. at 89.
\68\ Id.
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The Treasury Department Report states that Rodriguez called Sarabyn
at the command post telling him that Koresh was upset, that Koresh had
said the ATF and the National Guard were coming, and that as Rodriguez
left Koresh was shaking and reading the Bible. The report continues that
Sarabyn then asked Rodriguez a series of questions from a prepared list
provided by the tactical planners concerning the presence of weapons,
whether there had been a call to arms, and other preparations the
Davidians were making, to which Rodriguez responded in the negative to
each question.
The Treasury Department Report then notes that Sarabyn left the
command post at the Texas State Technical College (TSTC) and went to the
tarmac area nearby to confer with Phillip Chojnacki, the overall ATF
incident commander, and that Sarabyn told Chojnacki what Rodriguez had
said as well as the answers to the questions Sarabyn asked of Rodriguez.
The Treasury Department Report states that Chojnacki asked Sarabyn what
he thought should be done and that Sarabyn expressed his belief that the
raid could still be executed successfully ``if they hurried.'' \69\
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\69\ Id. at 91.
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According to the Treasury Department Report, Sarabyn then went to
the staging area, at the Bellmead Civic Center near the TSTC. When he
arrived he was excited, ``obviously in a hurry,'' and telling agents
``get ready to go, they know we are coming'' and ``they know ATF and the
National Guard are coming. We are going to hit them now.'' \70\
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\70\ Id.
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b. Testimony before the subcommittees
At the hearings before the subcommittees, these individuals
testified in a manner that was similar to, but not entirely consistent
with the summary of these events in the Treasury Department Report. When
he testified before the subcommittees, agent Rodriguez expanded upon the
Treasury Department's description of the events on the morning of
February 28th.
Mr. Scott: Mr. Rodriguez, is there--was there any question in
your mind, having been inside the residence, that Koresh knew
that the agents were coming that day?
Mr. Rodriguez: Sir, there's no question in my mind that Koresh
knew--there's no question in my mind that Koresh knew that we
were coming, yes, sir.
Mr. Scott: And can you describe briefly his emotion when he
got the word?
Mr. Rodriguez: Yes, sir. We were--I was inside the compound,
on that day, that morning. I had asked him some questions
regarding a newspaper clipping. He sat down and started to
explain to me the difference between his preachings and another
subject's preachings.
As we were discussing the Bible, one of his subjects, Mr.
Jones, came in and advised him that he had a telephone call. He
ignored the call and continued to talk to me.
At that point, everything was normal. There was only three
people in that living room at that point. Everything was calm.
He was normal. He was talking to me as he always spoke to me
during all our sessions. Nothing--nothing was wrong.
Mr.--Mr. Jones again came to the living room and advised him
that he had an emergency call from England. At that time, he
quickly got up and left the room. At that time it was still just
Mr. Schneider and Sherri Jewell were in that room with me, at
that time. He came back approximately 3 or 4 minutes later, and
when he came back, I mean it was like day and night.
As he approached me, he was--he was shaking real bad. He was
breathing real hard. At one time he put his hands in his pocket,
in his jacket pocket, to probably keep his hands from shaking.
He sat down next to me, probably about this far, and he
continued to try to finish what he was talking to me about.
When he grabbed the Bible, he was shaking so bad that he could
not actually read it. I grabbed the Bible and asked him what is
wrong. At that time he stopped, and as I sit here I can
remember, clearly, he took a deep breath, he turned and looked
at me and said, ``Robert, neither the ATF or the National Guard
will ever get me. They got me once, and they'll never get me
again.'' \71\
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\71\ Hearings Part 1 at 757.
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Later, Rodriguez continued his testimony:
Mr. Ehrlich: And what did you do next?
Mr. Rodriguez: I quickly--I felt--I felt very threatened and I
stood up, I felt I had to--I had to leave the compound. By that
time, there was more--more people that had come into the living
room. At first there was only three when we first started.
Mr. Ehrlich: All right, sir. Now, why did you feel you needed
to leave the compound?
Mr. Rodriguez: I was threatened because I didn't know--I was
afraid that I would be exposed as to who I was. And as I stood
there, I looked and I noticed that the door--there's people in
front of the door, people behind me, there was no place for me
to go. As I was--as I stood there, Koresh went from one window,
did the same thing, looked outside, and came back to the other
window and again looked outside and said, they're coming,
Robert, they're coming.\72\
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\72\ Id. at 776.
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* * * * *
Mr. Ehrlich: All right, sir. And there came a point in time
around 9:15, 9:20 where you left the house, correct?
Mr. Rodriguez: Yes, sir. He finally--he motioned, he gave a
head signal, they opened the door for me. I walked out. I got
into my vehicle. It took me a while to get it started because I
was--by then I was--I was pretty shaken. I quickly went back to
the undercover house.\73\
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\73\ Id.
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* * * * *
Mr. Rodriguez: Well, what I did, I went into the--to the room
where Mr. Cavanaugh was because that is where the STU phone was.
I was supposed to use that telephone to call Mr. Sarabyn. When I
got there, we all huddled up and I told Mr. Cavanaugh exactly
what had happened in the residence, advised him.
Mr. Ehrlich: And what was his reaction?
Mr. Rodriguez: His reaction was we better call Chuck right
now.
Mr. Ehrlich: All right, sir. You got on the phone and did just
that, correct?
Mr. Rodriguez: Yes, sir, I did.
Mr. Ehrlich: And please detail the nature of that
conversation.
Mr. Rodriguez: I got the phone, I called. He came to the
phone. The only thing I can't remember was if somebody else
answered. I think somebody else answered and he came to the
phone.
Mr. Ehrlich: Who is he? Mr. Sarabyn?
Mr. Rodriguez: Mr. Sarabyn.
Mr. Ehrlich: OK.
Mr. Rodriguez: And the first thing that came out of my mouth
was, Chuck, they know, Chuck, they know, they know we're coming.
He says, well, what happened? And I explained to him what
happened.
I explained to him all the events that took place inside the
compound, and his questions were, well, did you see any guns? I
said no.
What was he wearing? And I--I advised him of what he was
wearing. At that time, he said OK, and that was about the extent
of the phone call.
Mr. Ehrlich: All right, sir. Did you request that the raid be
called off because the element of surprise had been lost?
Mr. Rodriguez: No, sir. At that time I really didn't have the
chance. It was a real quick question and answer thing. He asked
me what he was wearing, said OK and he hung up. That's why--
that's why I quickly left the undercover house to go talk to him
at the command post because I wanted to have a more--more of a
lengthy conversation with him about the events.\74\
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\74\ Id. at 777.
Rodriguez then testified that he drove to the command post, looking for
Sarabyn, in order to further discuss with him in person the events of
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that morning. As Rodriguez testified:
Mr. Rodriguez: I--I arrived at the command post and the first
thing I asked was, where's Chuck? Where's Chuck? And they
advised me that he had left.
At that time, I started yelling and I said, ``Why, why, why?
They know we're coming, they know we're coming.''
Mr. Ehrlich: And what reaction did you get, what response?
Mr. Rodriguez: Sir, everything was very quiet, very quiet, and
if I remember right, everybody was really concerned. I went
outside and I sat down and I remember starting to cry--starting
to cry until Sharon Wheeler came to me and told me what was
going on.\75\
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\75\ Id. at 777-778.
While the Treasury Department Report maintains that ``all key
participants now agree that Rodriguez communicated, and they understood,
that Koresh had said the ATF and National Guard were coming,'' \76\
Sarabyn maintained at the hearings before the subcommittees that while
he understood the words Rodriguez had spoken, he did not feel that
Koresh actually believed that law enforcement personnel were on their
way to the residence. As Sarabyn testified:
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\76\ Treasury Department Report at 90.
I did not feel he knew that we were coming at that time. When
I talked with Robert, like I testified before, I took notes
while we were talking over the thing and I have read all of
Robert's statements. Robert did--did a great job, but I think
everything that you heard as far as testimony was not passed on
to me.
In fact, Robert told the shooting review team, or commanders,
he didn't go into detail or should have said more. When I went
through the questions I asked him, you know, he had said
specifically Koresh said, you know, ATF and the Guard are
coming, but when I asked, trying to determine what he was doing
from those questions, he wasn't doing anything, he was shaking,
reading the Bible. He was preaching. I determined that, you
know, in my opinion, his actions spoke louder that his words, so
I didn't feel that anything was happening then.\77\
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\77\ Hearings Part 1 at 786.
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At another point in the hearings, Chojnacki testified:
When I received the information from Mr. Sarabyn . . . [he]
pointed out that he had finished talking with Agent Rodriguez
and that Robert says he knows we are coming. He said, ``The ATF
and the National Guard were coming to get me,'' those kinds of
comments that I took to be a repetition of the same comments
that we had heard from his other preaching episodes where he
preached that the ATF will be coming to get us. ``The ATF is
coming to get us.'' \78\
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\78\ Id. at 466.
Chojnacki was then questioned directly as to whether he believed at the
time that Koresh did, in fact, know that the ATF was going to the Branch
Davidian residence. He stated, ``Not at that time, I didn't, no sir.''
\79\
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\79\ Id.
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Later, during the hearings, however, Rodriguez questioned the
truthfulness of the testimony given by Chojnacki and Sarabyn before the
subcommittees. Mr. Rodriguez testified,
[T]hose two men know--know what I told them and they knew
exactly what I meant. And instead of coming up and admitting to
the American people right after the raid that they had made a
mistake . . . they lied to the public and in doing so they just
about destroyed a very great agency.\80\
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\80\ Id. at 788.
Several other agents also testified that Sarabyn had informed them that
the Davidians knew the ATF was coming. Agent Roger Ballesteros, who was
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present at the staging area when Sarabyn arrived testified:
I was in an auditorium along with a large party . . . and Mr.
Sarabyn rushed into the room and made it clear to us that we
needed to hurry up because, in fact, Mr. Rodriguez had come out
and identified the fact that Koresh had been tipped off and that
they knew we were coming.\81\
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\81\ Id.
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c. What the ATF commanders knew
It is difficult to reconcile Sarabyn's testimony that while he heard
agent Rodriguez's words, he believed that Koresh's actions spoke louder
than his words and that, as a result, he believed that the Davidians did
not really think the ATF agents were on their way. In light of the
testimony of Rodriguez and the other agents before the subcommittees,
the subcommittees conclude that Sarabyn understood that the Davidians
were tipped off and would have been lying in wait for the ATF agents to
arrive.
The fact that Sarabyn felt it necessary to tell other agents of what
Rodriguez had told him, regardless of how he understood it, indicates
that he found the information to be important. Unfortunately, when
Sarabyn told Chojnacki this information, Chojnacki did not believe it to
be important enough to call off the raid. And, inexplicably, Sarabyn
apparently did not believe it important enough to urge Chojnacki to
delay the raid. Compounding these failures was the fact that the ATF
line agents who heard Sarabyn's comments apparently were not confident
enough to question their superiors' judgment in going forward with the
raid, even given their concerns about the information relayed by
Rodriguez.
b. who bears the responsibility for the failure of the raid?
The Treasury Department Report attempts to lay the blame for the
failure of the raid squarely on the shoulders of Chojnacki and Sarabyn.
Much has been made of what has come to be known as the loss of the
``element of surprise,'' with administration officials asserting that
Chojnacki and Sarabyn went forward in the face of a direction to the
contrary if the element of surprise were lost.
In their report, Treasury Department officials assert that Stephen
Higgins, then Deputy Director of the ATF, had instructed ``those
directing the raid . . . to cancel the operation if they learned that
its secrecy had been compromised . . . .'' \82\ This statement was
purportedly made by Higgins to Ronald Noble, then Assistant Secretary-
Designate of the Treasury for Law Enforcement, and John P. Simpson, the
acting Assistant Secretary of the Treasury for Enforcement. Noble and
Simpson had expressed concerns about the raid when they first learned of
it on the afternoon of the Friday before the raid was to take place and
Simpson had initially ordered that the raid not go forward. According to
the Treasury Department Report, Higgins made this statement to Noble and
Simpson in response to their concerns about the raid and in order to
convince Simpson to reverse his earlier decision.\83\ At the hearings
before the subcommittee, Undersecretary of the Treasury Noble testified:
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\82\ Treasury Department Report at 179.
\83\ Id.
It's been our--it's been our contention in the Department of
the Treasury's report that only Mr. Hartnett and Mr. Chojnacki
and Mr. Sarabyn deny, because Mr. Simpson--I mean Mr. Higgins
made it absolutely clear that this raid was not supposed to
proceed if the advantage of surprise was lost and Mr. Aguilera
testified about that being clear on February 12th as well.\84\
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\84\ Hearings Part 1 at 934-935.
Representative Bill McCollum, co-chairman of the joint subcommittees,
read into the record at the hearing a similar statement that Mr. Noble
had made during an appearance on the television news program ``60
Minutes'' in May 1995.\85\
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\85\ During that program Noble stated, ``What was absolutely clear
in Washington at Treasury and in Washington and ATF was that no raid
should proceed once the element of surprise was lost.'' Investigation
Into the Activities of Federal Law Enforcement Agencies Toward the
Branch Davidians (Part 2): Hearings Before the Subcommittee on Crime of
the House Committee on the Judiciary and the Subcommittee on National
Security, International Affairs, and Criminal Justice of the House
Committee on Government Reform and Oversight, 104th Cong., 1st Sess. 7
(1995) [hereinafter Hearings Part 2].
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But ATF on-site commanders and senior ATF officials disputed the
position asserted by the administration in the Treasury Department
Report, by Noble in his television interview, and by Noble during his
testimony to the subcommittees. As Dan Hartnett, Deputy Director of the
ATF for Enforcement in February 1993, testified:
Mr. Hartnett: I saw Ron Noble testify on a national program
several months ago or a month ago where he said both Treasury
and ATF ordered the commanders at Waco not to proceed, or to
abort the raid if they lost the element of surprise. And what
I'm saying to this committee is that I have never heard the
term, ``element of surprise,'' until after the raid, when we
started using it ourself and the media started using it.
But I have to also add that in the briefings, the briefings
that I had and Mr. Higgins had, the secrecy of the raid was
discussed and was an element of the raid plan that was given to
me and to Mr. Higgins. It was just that nobody ever called and
said abort the raid if you lose the element of surprise. That
just never happened. But secrecy was a part of the plan--secrecy
and safety. I mean it was discussed over and over again.\86\
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\86\ Hearings Part 1 at 763.
Later, under further questioning on this point by Representative Bill
Zeliff, co-chairman of the joint subcommittees, he stated that the
administration had tried to cover up the failure of its senior Treasury
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Department officials to properly direct the actions of ATF officials:
Mr. Zeliff: In fact, the element of surprise was never in that
plan. Is that correct?
Mr. Hartnett: The terminology. Secrecy was part of the plan,
sir.
Mr. Zeliff: One final question so the record may stand clearly
on its own. Do you believe that these facts demonstrate an
effort to cover up the truth by the Treasury Department Report?
Mr. Hartnett: Yes, yes, I do.
Mr. Zeliff: By Ron Noble, specifically?
Mr. Hartnett: Yes.
Sarabyn also testified before the subcommittees that he was never
ordered not to go forward if the tactical advantage of surprise had been
lost.
Mr. Chabot: Mr. Sarabyn, I'd just like to follow up again with
your statement, where you said, ``Obviously, some people way up
said some things after that which weren't true. It goes right
down to the decision to go. And they were part of it.'' By ``way
up,'' you're talking about upper echelon officials, I assume. Is
that correct?
Mr. Sarabyn: What I was making reference to, sir, is the
element of surprise. Throughout--at this point, it became a very
big issue. The point I was trying to make is I was never given
the order not to go if we lost the element of surprise. There
has been much conversation after that about the element of
surprise and I was trying to say I do not know who up above me,
how far, whatever, gave that order to somebody, but I never
received that order.\87\
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\87\ Id. at 758.
The Clinton administration's attempts to suggest that maintaining
the ``element of surprise'' had been an overriding feature of the
directives of Treasury Department officials to ATF officials is
inaccurate. While the issue was discussed, there was no absolute
direction given to ATF officials or ATF commanders on-site that if
secrecy were compromised that they were to not go forward with the raid.
The Clinton administration's attempt to suggest otherwise, appears to be
a veiled attempt to distance the administration and its most senior
officials from the results of the failed raid.
But as Hartnett testified, ``Secrecy was part of the plan--secrecy
and safety. I mean it was discussed over and over again.'' \88\ And
Secret Service Agent Louis Merletti, the Assistant Project Director of
the Waco Administrative Review Team created by the Department of the
Treasury to review the Waco incident, testified that there is no
difference between ``the element of surprise and secrecy.'' He testified
that it was ``basic to a dynamic entry'' method of conducting a
raid.\89\ Later, however, Hartnett testified:
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\88\ Id. at 763.
\89\ Id. at 766.
Mr. Mica: Mr. Hartnett, you had said you disagreed with Mr.
Merletti . . . about some comments he made about assessing the
element of surprise. Do you want to respond now?
Mr. Hartnett: Well, I've always disagreed with that
terminology, ever since the Waco review came out. I think that
it's a created phrase, and I don't mean to mislead the
committee.
You know, I've testified many, many times that a part of the
raid was secrecy. But part of the raid was not specifically
directed toward those commanders when they say they were given a
direct order. That is just not true. They just were not given a
direct order.\90\
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\90\ Id. at 773.
Regardless of whether it is called the ``element of surprise'' or
simply ``secrecy,'' it is difficult to understand why senior ATF
officials did not require that sufficient checks be in place to ensure
that secrecy had been maintained up to the beginning of the raid. And it
is almost impossible to understand why ATF commanders did not find
Rodriguez's information to be important enough to call off the raid.
Given the type of tactical operation selected, maintaining the secrecy
of the timing of the raid is so fundamental that the blame for the
failure to ensure that it was maintained must be shared not only by the
commanders on-site but by senior ATF officials.
It is unclear from the testimony and from the Treasury Department
Report why ATF Director Higgins and Deputy Director Hartnett did not
significantly involve themselves in the planning and oversight of the
execution of a raid of this magnitude. This is especially puzzling in
light of the amount of weaponry the ATF suspected was possessed by the
Davidians. Given the high risk involved in any dynamic entry, and the
fact that the open location of the Davidian residence created a greater
risk to the ATF agents in using this tactic, it is simply
incomprehensible that the most senior ATF officials were not directly
involved with the planning of this operation and in overseeing its
implementation. In retrospect, maintaining the secrecy of this operation
was one of the most important aspects of this plan. To experienced law
enforcement officials this fact should have been obvious from the
beginning. In fact, it should have been the overriding concern of all
involved. It was not something of which senior officials should have had
to order agents to be aware.
Higgins and Hartnett must share a portion of the blame for the
failure of the raid because they failed to become significantly involved
in the planning for it. Had they done so, they presumably would have
ensured that a procedure was in place through which Rodriguez's
information was relayed to them and they would have acted upon it. At
the very least, they share some blame for not instilling in the senior
raid commanders an understanding of the need to ensure that secrecy was
maintained in an operation of this type.
But most of the blame for the failure of the raid, and for the loss
of life that occurred, however, must be born by the raid commanders
themselves, and in particularly by Sarabyn. Both Sarabyn and Chojnacki
understood what Rodriguez had told Sarabyn but, inexplicably, somehow
did not find it to be significant enough to warrant calling off the
raid. Perhaps they thought that because the Davidians were not arming
themselves when Rodriguez left the residence that they would not do so.
Perhaps they believed that the agents could have arrived at the
residence before the Davidians had fully armed and taken up offensive
positions against them. Perhaps they even thought that their abilities
were so superior to those of the Davidians that they could have
successfully overcome the Davidians, even if the Davidians had been
expected to be lying in wait. Whatever the reason, however, the facts
are that they knew or should have known that the Davidians had become
aware of the impending raid and were likely to resist with deadly force.
The only realistic conclusion that can be drawn is that Chojnacki and
Sarabyn acted recklessly failing to call off the raid.
Given the manner in which Sarabyn relayed the information to
Chojnacki, it is perhaps understandable that Chojnacki presumed that the
information was not important. But Chojnacki's overriding concern on
February 28 should have been that the secrecy of the mission be
maintained. When any credible evidence was brought to his attention that
secrecy might have been compromised he should have delayed the start of
the operation until he could confirm or deny those reports.
As Chojnacki testified before the subcommittees, ``I accept the
responsibility for making the field decision. I was the incident
commander, I was the person to make that decision.'' \91\ Regardless of
whether he fully understood the significance of what Sarabyn told him,
it was his job to take whatever steps were necessary to insure that
secrecy was maintained. Because he did not, his portion of the blame for
the failure of the raid and its consequences is equal to that of
Sarabyn.
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\91\ Hearings Part 1 at 759-760.
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c. other ways in which the plan selected was bungled
While the failure of ATF's commanders to recognize and respond to
the fact that their raid plan had been severely compromised was, by far,
the most significant mistake made on February 28, a number of other
failures came to light during the subcommittees' investigation.
1. Command and control issues
A number of command and control issues significantly undermined the
possibility of success for the raid. Most of these issues were addressed
in the Treasury Department Report,\92\ however, three of them bear
repeating here.
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\92\ Treasury Department Report at 152-156.
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a. Assigning command and control functions under the ATF's
National Response Plan
The decision to designate Chojnacki as incident commander and
Sarabyn as tactical commander was mandated under the ATF's National
Response Plan. While the tactical experts who testified at the hearings
and briefed the subcommittees noted that the use of an overall
coordinating document, such as the National Response Plan, is an
appropriate organizational and standardization tool, some of the plan's
requirements resulted in less qualified people being placed in positions
of command and control when agents who were more qualified for these
positions, and who were already selected to be involved in the raid,
were available.
Chojnacki was selected as incident commander because he was the
special agent in charge of the field office in whose region the raid was
to occur. While the special agent in charge of a geographic area may
have a great interest in an operation that takes place in his area, his
position has little bearing on his qualification to run the operation.
And even though Chojnacki had 27 years of law enforcement experience,
there were other agents involved in the raid who possessed substantially
more experience in tactical operations.
Chojnacki, in turn, appointed Sarabyn, to be tactical coordinator
because the National Response Plan required that position to be filled
by an assistant special agent in charge who had completed special
response team (SRT) training, as had Sarabyn. But Sarabyn had attended
SRT training only as an observer, and there were other agents of lesser
rank who had more experience in this area.\93\ As in the case with
Chojnacki, the National Response Plan's emphasis on rank and
geographical assignment created the unintended result of placing a less
qualified person into a position for which he was either simply not
qualified or for which there were others more qualified.
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\93\ Id. at 153.
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b. Command and control on the scene on raid day
Chojnacki decided to ride in one of the helicopters on raid day.\94\
This decision placed him out of effective communications with the other
raid commanders and SRT teams leaders prior to the beginning of the
raid. Had he chosen to remain in central position from which he could
control the evolving raid, he might have had other opportunities to
learn of Rodriguez's information about what the Davidians' forewarning.
He might also have been able to learn from agents in the undercover
house that the Davidians were not where the ATF anticipated they would
be on the morning of February 28, a key element of the tactical plan,
but instead were lying in wait for the agents.
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\94\ Id. at 154.
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Sarabyn, the tactical commander, chose to ride in one of the cattle
trailers \95\ rather than observing the residence from a vantage point
such as the undercover house, where he could monitor activity in and
around the building, as well as view the approach of the ATF agents in
the cattle trailers. By riding in the trailers with the agents who were
to conduct the raid, Sarabyn severely limited his view of the Branch
Davidian residence, which also prevented him from observing that the
Davidians were not where the ATF expected them to be just before the
raid began.
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\95\ Id.
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Additionally, once Sarabyn arrived at the residence he became pinned
down with the other agents and was unable to communicate with many of
the other agents at different points around the building. Had he chosen
to place himself in a position where he would not have come under fire,
such as the undercover house, he might have been able to communicate
with all of the agents, perhaps diverting or redirecting the actions of
some and reducing the number of casualties sustained.
c. Command and control from Washington
On February 28, ATF activated its ``National Command Center'' at its
Washington headquarters staffed with ``high-level managers . . .
experience[d] in field operations.'' \96\ Yet it appears that the
command center played no role in the planning or implementation of the
operation until after ATF agents had been killed or wounded. The
personnel in the command center never learned that Rodriguez knew the
Davidians thought the raid was imminent because Chojnacki never told
them. Apparently, the person in the command center with whom Chojnacki
spoke did not know enough about the raid to know that an undercover
agent was to have been inside with the Davidians until shortly before
the raid was scheduled to begin and valuable information might have been
available. In fact, according to the Treasury Department Report, no one
in the command center asked any questions of Chojnacki at all when he
reported in shortly before the raid.\97\
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\96\ Id. at 175.
\97\ Id.
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2. The lack of a written raid plan
The Treasury Department review of the ATF's investigation of David
Koresh noted that the ATF agents who were in command of the raid did not
prepare a written raid plan in advance of the raid. While two ATF agents
took it upon themselves to create one, it was never reviewed by the
senior raid planners and commanders, and never distributed to any of the
agents who were to participate in the raid.\98\
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\98\ Id. at 207-208. Additionally, Agent Rodriguez testified before
the subcommittees that he never saw any written raid plan. Hearings Part
1 at 821.
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During the hearing before the subcommittees, several tactical
experts testified that the drafting of a written raid is an important
part of developing an overall operational plan. Indeed, the ATF's own
National Response Plan, which was drafted to establish ``consistent
policies and procedures'' when several Special Response Teams are
involved in an operation,\99\ requires that a written plan ``for
managing the critical incident or major ATF operation'' be produced
before the operation begins.\100\ Yet this was not done in this case.
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\99\ Treasury Department Report at 152.
\100\ Id. at 207.
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3. Lack of depth in the raid plan
One problem with overall planning was the fact that no written plan
existed. A factor that may have exacerbated the losses the ATF sustained
on February 28 was the lack of depth in the oral raid plan. The plan
involved agents in two cattle cars driving up an exposed driveway to the
front of the Davidian residence and running out of the cars, with one
group storming through the front doors while the other went to the side
of the building, climbed ladders carried by agents onto the roof and in
through the second-story windows.\101\ There was little else to the plan
and, importantly, little or no discussion of what might go wrong.
---------------------------------------------------------------------------
\101\ Id. at 54-64.
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There was almost no training given on how to withdraw from the
residence.\102\ Even the written plan created after the raid and given
to the Texas Rangers during their investigation (which was never
distributed to the commanders or any agents in advance of the raid)
devoted much of its 8\1/2\ pages to administrative issues. It contained
no mention of what agents were to do if anything went wrong with the
``dynamic entry'' into the residence. The three short paragraphs under
the heading ``contingencies'' simply mentioned the presence of an
ambulance and nurse near the scene.\103\
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\102\ Id. at 151.
\103\ Id. at C-19.
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As discussed above, the most grievous failure on the part of ATF
officials on February 28 was the failure to understand and appreciate
the significance of undercover agent Rodriguez's report that the
Davidians knew the ATF raid was imminent. Yet, the omission of any
contingency planning was a failure that may have led to the deaths of
agents who might otherwise have survived. Contingency planning might
have been effective at a number of stages: when the agents turned into
the driveway; when they first realized they were coming under fire from
the Davidians; or when the order was given to retreat in the face of the
Davidians' fire.
The Treasury Department Report states ``the failure of the planners
to consider that their operation might go awry and prepare for that
eventuality is tragic, but somewhat understandable.'' \104\ It notes
that most ATF agents were used to operations going without incident, or
at least being resolved in favor of the ATF, and that the only other ATF
operation similar in magnitude to the one against the Davidians had been
resolved peacefully. The report places stronger blame on ATF's national
leadership for this failure, calling its failure to ensure that some
contingency planning was done ``simply unacceptable.'' \105\
---------------------------------------------------------------------------
\104\ Id. at 151.
\105\ Id.
---------------------------------------------------------------------------
The subcommittees agree that ATF leadership shares the blame for the
failure of this operation and that, clearly, it would have been
beneficial had they been involved in a meaningful way in the planning of
the operation. But it should not take directives from Washington to
ensure that agents in charge of the ATF's various field offices and
Special Response Teams, the people who actually conduct an operation,
will know enough to ask the simple question ``what happens if this
doesn't go as planned.'' No amount of past success is reason enough to
explain why this possibility wasn't considered and planned for. The fact
that it was not done is, at best, additional evidence of the lack of
skill and sophistication of senior ATF commanders involved. At worst, it
is evidence of grievous negligence on their part.
4. Tactical teams trained together for only 3 days before the raid
Another fact which indicates a lack of skill on the part of both
senior ATF officials and the ATF on-site commanders, particularly
overall incident commander Chojnacki, is the fact that the Special
Response Teams (SRT's) involved in conducting the operation trained
together for only 3 days prior to the operation.\106\ The ATF does not
maintain a large standing force of specially trained agents which can be
dispatched to the site of a disturbance, such as the FBI's Hostage
Rescue Team. Instead, the ATF put together its team for the operation
against the Davidians by combining special response teams from several
of the ATF's regional offices.
---------------------------------------------------------------------------
\106\ Id. at 73.
---------------------------------------------------------------------------
While the subcommittees do not conclude that the ATF should have
created a special team such as the FBI's Hostage Rescue Team in advance
of the raid (and does not conclude that it need do so now), it appears
that the reason why the FBI maintains its HRT as a single unit is
because coordination of the agents involved in a tactical operation,
especially one involving great risk, is of the utmost importance. Senior
ATF officials and the ATF's on-site commanders either were unaware of
this fact or, more likely, simply ignored it for reasons which are
unknown to the subcommittees. Regardless of the reason, however, the
fact that ATF officials believed that they could create a force of over
70 agents, adequately trained to conduct an operation of this complexity
against a heavily armed opposing force, indicates a lack of foresight on
the part of these senior officials which is unacceptable.
5. True National Guard role only made clear 24 hours prior to the raid
The subcommittees have learned that when the Texas National Guard
was asked to provide helicopters to the ATF, the purpose given was that
they would be used as an observation platform or command and control
platform.\107\ When the National Guard pilots arrived at Fort Hood to
train with the ATF the day before the raid they learned for the first
time that the ATF intended to use the helicopters as a diversion just
before the raid was to begin. The helicopters were to fly close to the
residence, attracting the attention of those inside to the back side of
the building, while the ATF agents arrived at the front of the
structure.\108\
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\107\ Interviews of National Guard personnel. [See documents
produced to the subcommittees by the Department of the Treasury T005368,
T005376 at Appendix [hereinafter Treasury Documents]. The Appendix is
published separately.]
\108\ Treasury Department Report at 95.
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While the National Guard was conducting its role in its Title 32
status,\109\ and so was not limited by the terms of the Posse Comitatus
Act,\110\ this change in plan is still troubling. The failure to inform
National Guard commanders of the true role for the National Guard troops
and equipment well in advance of the raid is an omission that is, at
best, additional evidence of the poor planning for the raid done by the
ATF commanders. At worst, this may have been an attempt by ATF
commanders to obtain operational assistance that, while not prohibited
by law, might have been declined by the Governor of Texas as commander
of the Texas National Guard had the ATF given sufficient notice for word
to have reached her. In any event, it does not appear that senior ATF or
Treasury officials gave any consideration to the negative image of
military helicopters being used as part of a raid on American civilians.
---------------------------------------------------------------------------
\109\ For an explanation of the three ``statuses'' in which National
Guard forces operate, see Section V of this report.
\110\ See Section V of this report.
---------------------------------------------------------------------------
d. service of the warrant
One of the issues considered by the subcommittees was whether the
ATF agents serving the arrest and search warrants on February 28 were
required to ``knock and announce'' their intention to serve the warrant
before entering the Davidian residence. When the ATF agents conducted
the raid on the Davidian residence the agents did not knock on the
Davidians' front door and announce their intentions to serve the
warrant. Rather, the ATF agents dismounted from the cattle trailers in
which they were riding on the run. One group attempted to enter the
residence forcibly through the front door. A second group attempted to
enter the second floor windows via the roof.
The subcommittees' review of videotapes made of the training
sessions during which ATF practiced the raid plan revealed that the plan
was designed around this type of dynamic entry and did not involve a
knock and announce approach. In other words, the use of these tactics
was not the result of any circumstances which had occurred on February
28.
In 1917,\111\ Congress enacted the Federal knock and announce
statute.\112\ Generally speaking, the statute permits forcible entry for
the purpose of executing a search warrant only after the officer gives
notice of his authority and his purpose but is refused admittance.
Courts interpreting the statute, however, have adopted a number of
exceptions to the rule allowing unannounced police entries in limited
exigent circumstances. For example, courts have held that such an
announcement is unnecessary when the facts known to officers would
justify them in being virtually certain that the person on whom the
warrant is to be served already knows the officers' purpose and that an
announcement would be a useless gesture.\113\ Courts also have held that
police need not knock and announce their intent to serve a warrant if
they fear that to do so would allow the person on whom the warrant is to
be served to destroy the evidence to be seized under the warrant.\114\ A
third general exception to the rule requiring the police to knock and
announce their intent to serve a warrant is when to do so would increase
the risk of danger to the officers serving the warrant.\115\
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\111\ See generally Robert J. Driscoll, Unannounced Police Entries
and Destruction of Evidence After Wilson v. Arkansas, 29 Colum. J.L. &
Soc. Probs. 1, 10 (1995).
\112\ The Federal knock and announce statute is found in 18 U.S.C.
Sec. 3901. That section states, ``The officer may break open any outer
or inner door or window of a house, or any part of a house or anything
therein, to execute a search warrant, if, after notice of his authority
and purpose, he is refused admittance or when necessary to liberate
himself or a person aiding him in the execution of the warrant.''
\113\ Driscoll, supra note 111, at 11.
\114\ Id.
\115\ Id.
---------------------------------------------------------------------------
Given the fact that the arrest and search warrants were based, in
part, on the evidence that the Davidians were in possession of illegal
automatic weapons, the subcommittees believe it was reasonable for the
ATF to have presumed that the Davidians might fire on them had they
announced their intent to serve the warrants in advance. The Davidians
own behavior in firing on the ATF agents proves the reasonableness of
that belief.
e. unresolved allegations
1. Who shot first?
Much has been made of the issue as to which side in the gun battle
shot first. Conflicting evidence on this point was presented to the
subcommittees by the ATF agents who were involved in the raid, the Texas
Rangers who conducted an investigation into the events of the raid
following the end of the standoff on April 19, and by the attorneys for
the Davidians.
ATF Special Agent John Henry Williams, a member of the SRT team
assigned to enter the front door of the Davidian Residence, and who
spoke to David Koresh at the front door of the Davidian residence as the
raid began, testified that he was convinced that the Davidians shot
first. As Williams testified before the subcommittees,
As we approached the front door, David Koresh came to the
front door dressed in black cammo fatigues.
As he closed the door, before we reached the door, one agent
reached the door, and at that point that is when the doors
erupted with gunfire coming from inside. It was 10 seconds or
more before we even fired back.\116\
---------------------------------------------------------------------------
\116\ Hearings Part 1 at 725.
Later on that same day, Williams testified at greater length about the
---------------------------------------------------------------------------
start of the gun battle.
Mr. Scott: Can you go through just very briefly, you were
walking up to the door, and how close to the door were you when
the shooting started?
Mr. Williams: About 10 feet from the door.
Mr. Scott: Was it your intention prior to that to--had Koresh
come out by then?
Mr. Williams: Yes.
Mr. Scott: And how far from the door were you when he closed
the door in your face?
Mr. Williams: Approximately 15 feet from the door.
Mr. Scott: And did you continue walking forward?
Mr. Williams: Yes.
Mr. Scott: And how close were you when the shooting started?
Mr. Williams: I--basically about 10 feet. After that, the
shooting started immediately after he closed the door.
Mr. Scott: Is there any question in your mind as to where the
shooting began?
Mr. Williams: None.
Mr. Scott: Thank you--excuse me, that was from the inside
coming out.
Mr. Williams: Yes, from the inside coming out.\117\
---------------------------------------------------------------------------
\117\ Id. at 756.
Senior officers of the Texas Rangers also testified as to the
findings of their investigation into these events after April 19. The
Rangers interviewed virtually everyone who was present at the Branch
Davidian residence on February 28, including several of the surviving
Davidians and all of the ATF agents who were present. As Texas Ranger
---------------------------------------------------------------------------
Captain David Byrnes testified to the subcommittees:
I believe the evidence was to me overwhelming in the trial
that the Davidians fired first. The cameraman and the reporter,
although very reluctantly, finally I believe conceded that. He
had broadcast that several times. He was more or less a hostile
witness. But in my mind there is no doubt who fired first.\118\
---------------------------------------------------------------------------
\118\ Hearings Part 2 at 150.
But the attorneys for the Davidians testified that they believed the gun
battle erupted as the result of an accidental discharge by one of the
ATF agents. Jack Zimmerman, attorney for David Koresh during the
---------------------------------------------------------------------------
standoff, testified
My personal opinion is that it was an accidental discharge by
one of the ATF agents as he was dismounting and that that was a
signal to open fire, which you haven't heard a testimony about.
Nobody asked them, what was the signal to open fire if you did
open fire? Who made that decision? What command was it?
But I believe that what the evidence from the trial, the
criminal trial, was that somebody off to the side heard,
somebody fired, and they testified that it came from behind them
. . . . I will point out to you from talking to the foreman of
the criminal trial jury, who heard 6 weeks of testimony by the
Government in 2 days of testimony from the defense, they could
not decide, he told me. The foreman of the jury told me they
could not decide because the evidence was in such conflict as to
who fired first.\119\
---------------------------------------------------------------------------
\119\ Hearings Part 2 at 26.
---------------------------------------------------------------------------
2. Were shots fired from the helicopters?
Allegations were leveled by the Davidians' attorneys that agents in
the National Guard helicopters used in the raid fired into the Branch
Davidian residence from the air. The Davidians' attorneys testified that
they were shown holes in the roof of the structure which appeared to
them to be bullet holes fired from the outside into the structure.
Phillip Chojnacki, who was riding in one of the helicopters,
testified, however, that no shots were fired from the helicopters. He
testified that ATF personnel on the helicopters were armed only with 9
millimeter sidearms and that he observed no shots fired from the
helicopters.\120\ His testimony is supported by the sworn statements of
each of the pilots of the helicopters, taken on April 20, 1993, that the
helicopters were unarmed and that no ATF agents fired from the
helicopters.\121\ Texas Ranger Captain David Byrnes also testified as to
what the Rangers' investigation concluded with respect to this issue. He
stated that the Rangers found no evidence that shots were fired from the
helicopters.\122\
---------------------------------------------------------------------------
\120\ Hearings Part 2 at 821-822.
\121\ See Documents produced to the subcommittees by the Department
of the Treasury T005723, T005730, T005731, at Appendix [hereinafter
Treasury Documents]. The Appendix is separately published.
\122\ Mr. McCollum: What about with regard to firing from the
helicopters? Did any of the ATF agents tell you that there had been
shots fired from the helicopters?
Mr. Byrnes: Quite to the contrary, we could find no evidence that
there was ever any shots fired. Our best evidence is that they peeled
off at about 300, 350 meters, because there was gunfire, and those
pilots were not going to fly over that residence.
Hearings Part 2 at 197.
---------------------------------------------------------------------------
The subcommittees reviewed videotape of the raid shot by agents in
the helicopters as well as videotape of the exterior of the helicopters
involved in the raid after the helicopters withdrew from the scene. At
no point in the videotape does any ATF agent fire a weapon from the
helicopters and the helicopters do not appear to have been equipped with
machine guns or other weaponry. The video tape reviewed, however, is not
continuous from the point from which the helicopters lifted off to the
point at which they landed. The fact that videotape was taken at some
points in the raid and not at others has not been explained to the
subcommittees.
It has been suggested that the bullet holes in the roof of the
Branch Davidian residence may have come from ATF agents on the roof who
were firing into the structure as the firefight continued. Jack
Zimmerman, the attorney for Branch Davidian Steve Schneider during the
standoff, conceded that this was a possible explanation for the presence
of the bullet holes during his testimony before the subcommittees.\123\
Given that there were several ATF agents who were on the roof of the
residence during the firefight with the Davidians, this explanation
seems plausible.
---------------------------------------------------------------------------
\123\ ``I couldn't tell you whether those rounds were fired from a
helicopter or not. All I could tell you is they come from the sky
downward. If somebody were standing on top of the roof shooting down
into the ceiling, it would look exactly the same way.'' Hearings Part 2
at 27 (statement of Jack Zimmerman).
---------------------------------------------------------------------------
f. the firing and rehiring of chojnacki and sarabyn
In October 1994, following the Treasury Department's review of the
failed raid against the Davidians, the Department terminated the
employment of the two senior raid commanders, Chojnacki and
Sarabyn.\124\ Both of them filed complaints with the Merit System Review
Board. While that complaints were pending, the Treasury Department
reached agreements with both Chojnacki and Sarabyn.\125\ As a result of
those agreements, both were rehired by the ATF. However, neither is
assigned to positions of authority over other agents and neither is
presently empowered to carry a weapon.
---------------------------------------------------------------------------
\124\ Memorandum to Charles D. Sarabyn from ATF Deputy Director,
``Decision to Remove from Position and from the Federal Service''
(October 26, 1994); Memorandum to Phillip J. Chojnacki from ATF Deputy
Director, ``Decision to Remove from Position and from the Federal
Service'' (October 26, 1994). Treasury Documents T00012743-T00013735.
\125\ Settlement Agreement, Ph
IV. R
the Treasury, Case No. DA-0752-95-0126-I-1, Merit Systems Protection
Board, Denver Field Office (December 1994). Treasury Documents
T00013868-T00013874. Settlement Agreement, Charles D. Sarabyn v.
Department of the Treasury, Case No. DA-0752-95-0127-I-1, Merit Systems
Protection Board, Denver Field Office (December 1994). Treasury
Documents T00013428-T00013434.
---------------------------------------------------------------------------
At the hearings before the subcommittees, Treasury Department
officials were asked why a deal was struck with the two people on whom
the Treasury Department blamed the failure of the Davidian raid. No
sufficient answers to this quest
