Military Involvement in the Government Operations at Waco

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

      V. Military Involvement in the Government Operations at Waco

    U.S. military involvement is one of the least explored and most 
misunderstood elements of the events that took place near Waco, TX in 
1993. The Treasury Department Report dedicated only 3\1/2\ of 220 pages 
to explaining the military's involvement, and the Department of Defense 
and National Guard Bureau have only recently taken an interest in 
addressing some of the military issues that Waco raised.

       a. the expansion of military assistance to law enforcement

    Historically in America, there has been a general principle that the 
military should not be involved in civilian law enforcement. Congress 
codified this principle by enacting the Posse Comitatus Act \127\ in 
1878. The subcommittees have found that subsequent congressional actions 
and legal cases have eroded the Posse Comitatus Act to an alarming 
degree and blurred its legal restrictions.
    \127\ Posse Comitatus means ``the power or force of the county. The 
entire population of a county above the age of fifteen, which a sheriff 
may summon to his assistance in certain cases; as to aid him in keeping 
the peace, in pursuing and arresting felon, etc.'' Black's Law 
Dictionary (1st ed. 1891) (citing 1 William Blackstone, Commentaries 
    In determining whether the military assistance provided at Waco was 
illegal, the subcommittees reviewed the current status of the Posse 
Comitatus Act and other laws governing the use of the military in 
civilian law enforcement, why changes in the laws have occurred and what 
effects those changes have had on the use of the military in civilian 
law enforcement.\128\ Additionally, the subcommittees have addressed the 
common practice of Governors using National Guard (NG) personnel across 
State lines.
    \128\ Roger Blake Hohnsbeen, Fourth Amendment and the Posse 
Comitatus Act Restrictions on Military Involvement in Civil Law 
Enforcement, 54 Geo. Wash. L. Rev. 404, 404 (1986).
1. The Posse Comitatus Act
            a. Overview of the law
    The Posse Comitatus Act was enacted in the United Stated in 1878 in 
response to the improper use of military troops in the South during the 
post-Civil War Reconstruction period.\129\ The Posse Comitatus Act 
    \129\ ``Until passage of the Posse Comitatus prohibition in 1878, 
the improper use of troops became a common method of aiding revenue 
officers in suppressing illegal production of whiskey; assisting local 
officials in quelling labor disturbances; and insuring the sanctity of 
the electoral process in the South by posting guards at polling 
places.'' Clarence I. Meeks, III, Illegal Law Enforcement: Aiding Civil 
Authorities in Violation of the Posse Comitatus Act, 70 Mil. L. Rev. 83, 
90 (1975).

          Whoever, except in cases and under circumstances expressly 
        authorized by the Constitution or Act of Congress, willfully 
        uses any part of the Army or the Air Force as a posse comitatus 
        or otherwise to execute the laws shall be fined not more than 
        $10,000 or imprisoned not more than 2 years, or both.\130\
    \130\ 18 U.S.C. Sec. 1385 (1988). A post-Waco amendment changed the 
penalty portion to read, ``shall be fined under this title or imprisoned 
not more than two years, or both.'' Violent Crime Control and Law 
Enforcement Act of 1994 Sec. 330016(L), Pub. L. 103-322, 108 Stat. 2147.

    However, as early as the Magna Carta, prohibitions against the use 
of the military in civilian affairs were being established.\131\ These 
prohibitions are based on the principle that the military should never 
be employed against the citizenry of the Nation it supports and is 
buttressed by the clear separation, in this country, between civilian 
authority and military support for that authority. The clear separation 
between civilian and military authority is embodied in the Declaration 
of Independence \132\ and the U.S. Constitution.\133\
    \131\ Congressional Research Service, The Posse Comitatus Act & 
Related Matters: The Use of the Military to Execute Civilian Law 3 
(1995) (citing Magna Carta, ch. 39 (1215)).
    \132\ The Declaration of Independence (U.S. 1776).
    \133\ U.S. Const. Amend. II, III.
    Nevertheless, no one has ever been prosecuted for violating the 
Posse Comitatus Act.\134\ Due in part to a creeping acceptance of 
military involvement in law enforcement actions, the Posse Comitatus Act 
has been invoked very rarely.\135\ Until the criminal cases arising from 
the 1973 Indian uprising at Wounded Knee,\136\ civilian law enforcement 
apparently relied upon military support without fear of recourse.\137\
    \134\ Meeks, supra note 129, at 128.
    \135\ Id.
    \136\ In the 1973 Wounded Knee uprising, a dissident Indian group 
forcibly took control of the Wounded Knee Village on Pine Ridge 
Reservation, SD. This group entered a U.S. Post Office by force, held 
hostages and refused to allow Federal investigators into the area. In 
support of Federal law enforcement agents, military personnel provided 
an array of assistance, closely resembling the military assistance 
provided to Federal law enforcement agents during the Waco incident.
    \137\ Peter M. Sanchez, The ``Drug War:'' The U.S. Military and 
National Security, 34 A.F. L. Rev. 1, 109 (1991).
    Specifically, at Wounded Knee, the Nebraska National Guard and U.S. 
Air Force personnel conducted aerial reconnaissance photography of the 
site, while the South Dakota National Guard maintained military vehicles 
in the area of the siege.\138\ Two regular Army colonels (Title 10 
personnel) \139\ were present at Wounded Knee as Defense Department 
``observers''; however, these military personnel also provided ``advice, 
urging and counsel . . . to Department of Justice personnel on the 
subjects of negotiations, logistics and rules of engagement.'' \140\
    \138\ As at Wounded Knee, aerial reconnaissance photography and 
maintaining military vehicles were also conducted by military personnel 
at Waco.
    \139\ These two soldiers at Wounded Knee were on active duty, i.e. 
full-time duty in the active military service of the United States. See 
10 U.S.C. Sec. 101 (d)(1), codified as amended by Pub. L. 102-484.
    \140\ Meeks, supra note 129, at 121. Ironically, approximately 10 
active duty Special Forces soldiers were present at Waco as 
``observers'' during various stages of the post-raid siege, including 
the day of the use of CS riot control agent and the fire. Additionally, 
at the request of the commander of the FBI Hostage Rescue Team, two 
senior Army Special Forces officers were present when Attorney General 
Reno was briefed on the FBI's plan to end the standoff. Prior to the 
meeting, one of those officers visited the site of the standoff by 
helicopter accompanied by the HRT commander.
    Four criminal cases resulted from the Wounded Knee incident. Each 
raised similar challenges to the military's involvement.\141\ The 
diverse rulings on these challenges raised questions about the legality 
of much of the military assistance being broadly and regularly provided 
to law enforcement agencies. The courts in United States v. Banks and 
United States v. Jaramillo found certain military activities to be in 
violation of the Posse Comitatus Act, while the court in United States 
v. Red Feather found the military involvement at Wounded Knee 
permissible.\142\ The Red Feather court determined, that as long as 
military assistance was passive or indirect, such assistance did not 
violate the Posse Comitatus Act.\143\
    \141\ United States v. Jaramillo, 380 F. Supp. 1375 (D.Neb. 1974), 
appeal dismissed, 510 F.2d 808 (8th Cir. 1975); United States v. Banks, 
383 F.Supp. 368 (D.S.D. 1974); United States v. Red Feather, 392 F.Supp. 
916 (D.S.D. 1975); United States v. McArthur, 419 F.Supp. 186 (D.N.D. 
1976), aff'd sub nom., United States v. Casper, 541 F.2d 1275 (8th Cir. 
1976), cert. denied, 430 U.S. 970 (1977).
    \142\ Congressional Research Service, supra note 54, at 23 n.63. The 
court in McArthur ruled that the Posse Comitatus Act is violated only 
when the civilians are subjected to the direct ``regulatory, 
proscriptive or compulsory'' aspect of the military involvement. United 
States v. McArthur, 419 F.Supp. at 194.
    \143\ Sanchez, supra note 137.
    In order to resolve questions raised by the Wounded Knee cases, and 
at the urging of the Defense Department and Justice Department, Congress 
adopted the above distinctions set forth by the Red Feather court \144\ 
and, in 1981, enacted a number of general exceptions to the Posse 
Comitatus Act.\145\ In general, the 1981 exceptions authorized the 
military to make available to civilian law enforcement agencies 
information collected during military operations, training and advice, 
the use of military equipment and facilities, and the use of some 
Defense Department personnel.\146\ However, direct participation in law 
enforcement activities like search, seizure and arrest was 
    \144\ Id. at 7 (citing to 10 U.S.C. Sec. 371-375, as subsequently 
amended by Pub. L. No. 100-456, 102 Stat. 117 (1988)).
    \145\ Congressional Research Service, supra note 54, 23. See also 
Defense Department Authorization Act of 1982 Sec. 905, Pub. L. No. 97-
86, 95 Stat. 1114, as amended by National Defense Authorization Act 
Fiscal Year 1989 Sec. 1004, Pub. L. No. 100-456, 102 Stat. 2043 
(codified as amended at 10 U.S.C. Sec. 377).
    \146\ 10 U.S.C., Ch. 18.
    \147\ Id.
            b. The war on drugs
    By the mid-1980's, there was little question that the Nation was 
struggling with a major increase in illegal drug importation and use, 
and Congress summoned a massive increase of resources to confront this 
modern scourge. The fiscal year 1989 Department of Defense Authorization 
Act significantly expanded the role of the National Guard in support of 
law enforcement agencies.\148\ The following year, the role of the 
military was expanded further in the fiscal year 1990 Department of 
Defense Authorization Act which ``directed the U.S. Armed Forces, to the 
maximum extent possible, to conduct military training in drug 
interdiction areas.'' \149\
    \148\ JTF-6 Operational Support Planning Guide (citing Pub. L. 100-
456, 102 Stat. 1218, 2042, codified at 10 U.S.C. Sec. 124 [See Documents 
produced to the subcommittees by the Department of the Treasury T08786, 
T08788, at Appendix [hereinafter Treasury Documents]. The Appendix is 
published separately.] See also 32 U.S.C. Sec. 112 for the National 
    \149\ JTF-6 Operational Support Planning Guide, Treasury Documents 
T08786, T08788. See also 10 U.S.C. Sec. 371(b).
    After Congress and the courts expanded permissible military 
assistance to civilian law enforcement and the Defense Department 
assumed the lead in the war on drugs, military assistance to law 
enforcement greatly increased. This increased use of military personnel 
is most noticeable with the National Guard because of fewer legal 
restrictions on its use.
            c. The National Guard and the Posse Comitatus Act under 
                    current law
    The National Guard, for reasons that are at least partially 
historical, is not subject to the same legal restrictions placed on 
active duty and reserve military personnel with regard to involvement in 
civilian law enforcement.\150\ Having evolved from the State militia 
concept, the National Guard holds the unique position as both a State 
and a national military force. Thus, a National Guard member can wear a 
U.S. Army or Air Force uniform, fly in a military aircraft, receive 
Federal military pay and allowances, be covered by the Federal Torts 
Claims Act and Federal military medical care. Yet, he or she can perform 
this military service not only as a member of the U.S. Armed Forces, but 
as a member of the State militia, having a Governor for a Commander-in-
Chief rather than the President of the United States.
    \150\ Rich, The National Guard, Drug Interdiction and Counterdrug 
Activities, and Posse Comitatus: The Meaning and Implications of ``in 
Federal Service,'' 35 Army Law. 1 (1994). Active and Reserve military 
personnel are both subject to the proscriptions found in the Posse 
Comitatus Act, while the Posse Comitatus Act only applies to National 
Guard personnel when they have been called ``into federal service.''
    The ability of the National Guard to perform military service in 
this capacity exists because the National Guard has three different 
``statuses'' under the law. The first two are a Title 32 status (also 
called ``state active duty'' status) and a ``pure state'' status. Under 
either a Title 32 or ``pure state'' status, National Guard troops are 
under the command and control of the Governor of their State and the 
Posse Comitatus Act does not apply.\151\ However under current law, 
while the National Guard is in a Title 32 status and under the command 
and control of the Governor, it is still funded with Federal funds.\152\ 
An example of the National Guard being in a Title 32 status is when 
National Guard personnel are conducting counterdrug operations.
    \151\ During the Waco incident, the National Guard was operating 
under Title 32 or ``state active duty'' status as it provided assistance 
to the ATF and FBI. By contrast, the status of the Nebraska and South 
Dakota National Guard units during the 1973 Wounded Knee incident is 
unclear, since the courts did not rule on whether the Posse Comitatus 
Act applied to the National Guard personnel based upon their status. In 
Jaramillo, the court did not indicate whether or not the National Guard 
had been ``federalized.'' Similarly, the Red Feather court decided the 
issue of improper military assistance based on whether the assistance 
was ``active'' or ``passive,'' not on the legal status of the National 
Guard units.
    \152\ In a pure State status, no Federal funding occurs.
    The third National Guard status is called ``Title 10'' or ``federal 
active duty'' status. Title 10 status occurs when Congress or the 
President takes affirmative action to ``federalize'' a National Guard 
unit as in the case of a natural disaster or civilian disturbance. Only 
in a federalized status are National Guard troops under command and 
control of the President of the United States. Under this status, the 
Posse Comitatus Act applies.
    Aside from the Title 10 status and Wounded Knee cases, the Posse 
Comitatus Act has been widely interpreted as not applying to the 
National Guard. Thus under current law, the leading interpretation of 
the Posse Comitatus Act is that unless otherwise prohibited by policy 
directive, regulation or State law, the National Guard can participate 
actively in civilian law enforcement. The National Guard, however, does 
implement similar proscriptions as the Posse Comitatus Act by regulation 
even while in a Title 32 status.\153\
    \153\ Rich, supra note 150. The National Guard Bureau policy on 
authorized support to law enforcement currently lists 16 approved 
counterdrug missions. Any mission outside the parameters of the approved 
list must receive Department of Defense approval. See also NGB Reg. 500-
2 and National Guard Counterdrug Coordinator's Handbook.
            d. Active duty personnel & the Posse Comitatus Act under 
                    current law
    Unlike the National Guard, active duty military personnel clearly 
fall within the proscriptions of the Posse Comitatus Act. Any assistance 
they provide to civilian law enforcement personnel must be either within 
a statutory exception or expressly authorized by the U.S. Constitution.
    Many of the statutory exceptions to the Posse Comitatus Act have 
been enacted in the last 15 years and evolved from a desire to support 
counterdrug efforts. Title 10 U.S. Code, Section 371 et. seq. outlines 
the types of routine law enforcement assistance that active duty 
military personnel may provide. Such assistance, includes equipment, 
training and advice.
    One of the most important issues for a civilian law enforcement 
agency in deciding whether to seek and accept military assistance, is 
whether the agency must reimburse the military for the assistance 
provided. Generally, a civilian law enforcement agency must reimburse 
the military for the cost of assistance, except under three 
circumstances. Reimbursement may be waived if the assistance: (1) is 
provided in the normal course of military training; \154\ (2) results in 
a benefit to the unit providing the support ``that is substantially 
equivalent to that which would otherwise be obtained from military 
operations or training;'' \155\ or (3) is for counterdrug 
    \154\ 10 U.S.C. Sec. 377.
    \155\ Id.
    \156\ Pub. L. No. 102-190 Sec. 1088, 105 Stat. 1484 (1991). See also 
Pub. L. No. 101-510 Sec. 1004, 104 Stat. 1629 (1990) and Pub. L. No. 
101-189 Sec. 1212, 103 Stat. 1567 (1989).
    The counterdrug statutory waiver has come to mean in practice that 
before a waiver of reimbursement can occur under the counterdrug 
operation exception, the civilian law enforcement agency must 
demonstrate the existence of a sufficient ``drug nexus'' in the 
investigation.\157\ Although there is no defined standard for what 
constitutes a ``drug nexus,'' it is essentially a quantum of credible 
evidence that links an otherwise non-drug investigation with the 
existence, or well-founded belief of the existence, of significant 
illegal drug crimes.
    \157\ Office of the Department of Defense coordinator for Drug 
Enforcement Policy and Support Memorandum, Subject: Priorities, 
Policies, and Procedures for DoD CD Support to Domestic Law Enforcement 
Agencies, 26 Jan. 95. Defense Documents 109-115, at 111.
    This waiver for counterdrug operations developed when Congress 
created a specialized subset of military assistance for counterdrug 
operations in 1990.\158\ Military assistance for counterdrug operations 
provided under this statutory authority is on a non-reimbursable basis, 
which means civilian law enforcement agencies do not have to reimburse 
the military for the assistance. Instead, Congress provides a separate 
fund to the military for this type of assistance. However, these funds 
must be used solely for military assistance to civilian law enforcement 
agencies for counterdrug operations. Significant portions of military 
assistance provided to ATF and even the FBI were funded through these 
counterdrug funds.
    \158\ Id.
    A further formalization of the military's increased support to the 
war on drugs involved the creation of Joint Task Forces \159\ between 
civilian drug law enforcement agencies and the regular army. The Defense 
Department created these Joint Task Forces to increase the coordination 
between the military and civilian law enforcement agencies and to 
increase the civilian agencies' accessibility to regular army assets for 
counterdrug operations. For the Southwest border region where the ATF 
investigation of the Davidians took place, Joint Task Force-Six (JTF-6) 
\160\ was responsible for the operational support to ATF by active duty 
military personnel.
    \159\ In early 1989, the Defense Department, at the direction of 
Congress and the President, ``tasked four war fighting, regional 
Commander's in Chief (CINCs) to carry out the drug interdiction mission. 
The CINC of Atlantic Command (USCINCLANT) created Joint Task Force, JTF-
4 at the Key West Naval Air Station, Florida. The Pacific Command CINC 
(USCINCPAC) established JTF-5 at the Alameda Naval Air Station, 
California. And, the CINC for Continental Defense (USCINCFOR) 
established JTF-6 at Fort Bliss, Texas.'' Sanchez, supra note 137, at 
    \160\ JTF-6 was created in 1989 to serve as the planning and 
coordinating (operational) headquarters for military assistance to 
counterdrug operations of drug law enforcement agencies. JTF-6 is 
located at El Paso, TX (Fort Bliss), and supports the Federal, State, 
and local law enforcement agencies within the southwest border region. 
It's region of responsibility mirrors that of Operation Alliance and 
includes the States of Texas, New Mexico, Arizona, and Southern 
California. [JTF-6 Operational Support Planning Guide, Treasury 
Documents T08786-08789.] As of October 1, 1995, JTF-6's area of 
responsibility expanded from the southwest border to the entire 
continental United States, Puerto Rico and the U.S. Virgin Islands.
    JTF-6's Operational Support Planning Guide, in explaining its 
support capabilities, states, ``No list of military support capabilities 
is ever all-inclusive. Innovative approaches to providing new and more 
effective support to law enforcement agencies are constantly sought, and 
legal and policy barriers to the application of military capabilities 
are gradually being eliminated.'' \161\ This quote from the JTF-6 
Operation Support Planning Guide clearly and succinctly describes the 
weakening of the Posse Comitatus Act proscriptions since the 1973 
Wounded Knee cases. This observation foreshadowed the potential for 
military involvement that was realized eventually at the 1993 Waco 
    \161\ JTF-6 Operational Support Planning Guide, Treasury Documents 
T08786, 08791 (emphasis added).
2. Interstate use of National Guard by Governors
    There is a common practice among the States of using National Guard 
personnel across State lines.\162\ States enter into memoranda of 
agreement with one another which provide for the mutual use of National 
Guard forces across State lines. However, these agreements raise several 
legal concerns, particularly when the National Guard personnel are used 
to assist civilian law enforcement.
    \162\ The interstate use of National Guard personnel occurred at 
Waco with the use of the Alabama National Guard in Texas.
    Although a thorough examination of memoranda of agreement is far 
beyond the scope of the subcommittees' Waco investigation, the most 
significant legal issues arising from the use of memoranda of agreement 
will be highlighted. While the National Guard has attempted to address 
these legal issues, the Defense Department and the States have failed to 
adequately address the potential legal problems which memoranda of 
agreement raise. Two major legal concerns are (1) whether these 
memoranda of agreement, or other similar agreements between states are 
either a treaty, an alliance, or confederation in violation of the U.S. 
Constitution, or at the very least a compact requiring congressional 
ratification; and (2) whether these memoranda of agreement or similar 
agreements attempt to supersede State constitutions and statutes without 
legal authority.
            a. States' power to enter memoranda of agreement
    Only the Congress \163\ and the President (to the extent presently 
delegated by law) have the power to use military force across State 
lines. Many argue that any agreement between States to concert their 
military forces for the use of force for any purpose constitutes a 
treaty or an alliance.\164\ However, the U.S. Constitution specifically 
prohibits States from entering into treaties in any instance,\165\ and 
into alliances or confederations without congressional consent.\166\ 
Applying such an argument would mean that the use of the National Guard 
for law enforcement purposes across State lines is strictly prohibited 
by the U.S. Constitution. The National Guard Bureau takes the position 
that such interstate use of force is prohibited, but the contrary 
opinion is advanced by the Defense Department General Counsel and the 
Army Staff Judge Advocate.\167\
    \163\ ``The Congress shall have Power . . . to provide for calling 
forth the Militia to execute the laws of the Union, suppress 
insurrections, and repel invasions.'' U.S. Const. art. I, Sec. 8, cl. 
    \164\ The U.S. Supreme Court, in U.S. Steel Corp. v. Multistate Tax 
Commission, 434 U.S. 452 n.12 (1978) discussed the distinctions between 
treaties, compacts and mere agreements. ``Military alliances'' are cited 
as examples of treaties. The Court quotes Story to the effect that: 
``Treaties, alliances, and confederations . . . generally connote 
military and political accords and are forbidden by the States. Compacts 
and agreements, such as questions or boundary; interests in land situate 
in the territory of each other; and other internal regulations for the 
mutual comfort and convenience of States bordering each other.'' 434 
U.S. at 464. See also 32 U.S.C. Sec. 109 (b) which infers that States do 
not have the authority to employ their militia (i.e., the National 
Guard) outside their boundaries, ``Nothing in this title limits the 
right of a State or Territory . . . to use the National Guard or its 
defense forces authorized by subsection (c) within its border in time of 
peace, or prevents it from organizing and maintaining police or 
    \165\ The treaty-making power is exclusively vested by the 
Constitution, in the President, with the advice and consent of the 
Senate. U.S. Const. art. 2, Sec. 2, cl. 1.
    \166\ U.S.C.A. Const. art. I, Sec. 10, cl. 1.
    \167\ National Guard Draft Legal Memorandum, ``Cross Border use of 
National Guard for Law Enforcement: Constitutional Issues and Need for 
Congressional Ratification of Interstate Agreements'' (Received by 
subcommittees on March 12, 1996).
    The National Guard Bureau further argues, also contrary to the 
Defense Department General Counsel and the Army Staff Judge Advocate, 
that even if such agreements among States are not treaties, they are at 
the very least compacts which require the consent of Congress.\168\ If 
an agreement among States results in a potential encroachment on Federal 
authority or a tendency to enhance State power, then it would constitute 
a compact requiring congressional consent.\169\ The National Guard 
Bureau argues that these National Guard memoranda of agreement enhance 
State power by allowing Governors to command militia employed for force 
across State lines, and therefore, encroach on the President's power to 
either deny or command and control such interstate use. Thus, the 
National Guard Bureau believes they require congressional 
    \168\ U.S. Const. art. I, Sec. 10, cl. 3. ``Not all agreements 
between states are subject to strictures of this clause; application of 
this clause is limited to agreements that are directed to the formation 
of any combination tending to increase the political power in the states 
and which may encroach on or interfere with the just supremacy of the 
United States.'' U.S. Steel Corp. v. Multistate Tax Commission, 434 U.S. 
452 n.43 (1978) (citing U.S. Const. art. 1, Sec. 10, cl. 3). See also, 
Virginia v. Tennessee, 148 U.S. 503 (1893).
    \169\ ``Appellants further urge that the pertinent inquiry is one of 
potential, rather than actual, impact on federal supremacy. We agree.'' 
U.S. Steel Corp. v. Multistate Tax Commission, 434 U.S. 452, 472 (1978). 
This is the current position of the National Guard Bureau. However, the 
position of the Defense Department and the Army SJA is that these 
agreements violate the Compact Clause of the Constitution only if they 
actually encroach of Federal power or enhance State power.
    \170\ National Guard Draft Legal Memoranda, supra note 167.
    Currently, none of the memoranda of agreement (or compacts) 
involving the use of National Guard personnel across State lines for law 
enforcement purposes have been ratified by Congress. Although the 
Southern Governors' Association recently amended its Southern Regional 
Emergency Management Assistance Compact at the advice of the National 
Guard Bureau, to preclude the use of force across State lines and seek 
congressional approval of the compact, most of the interstate National 
Guard assistance to law enforcement agencies is occurring under the 
guise of memoranda of agreement, not congressionally approved compacts. 
Moreover, this issue expands beyond direct involvement in law 
enforcement actions, such as Waco, to the use of the National Guard for 
interstate assistance in disaster \171\ and emergency relief. In fact, 
the issue has arisen with respect to the proposed use of non-Georgia 
National Guard units to assist the Georgia National Guard during the 
1996 Summer Olympics, in Atlanta, GA.
    \171\ The subcommittees have been informed during meetings and 
follow-up discussion with National Guard Bureau personnel that the 
Bureau opposed the loan of Puerto Rico National Guard personnel to the 
Virgin Islands to suppress looting during Hurricane Marilyn based on 
these constitutionality concerns.
            b. Memoranda of agreement may attempt to supersede State law 
                    without legal authority
    During the ATF investigation of the Branch Davidians, National Guard 
assistance to ATF came not only from the Texas National Guard, but from 
the Alabama National Guard.\172\ At the behest of the ATF, the Adjutant 
General of the Texas National Guard requested and received support from 
the Alabama National Guard to take aerial photographs. Those aerial 
photographs were taken on January 14, 1993. This assistance was 
authorized by a ``memorandum of agreement'' between the Adjutant 
Generals of the Texas and Alabama National Guards which simply provided 
for the use of the Alabama National Guard at the request of the Texas 
Adjutant General. However, a review of the State laws of both Texas and 
Alabama raises legal concerns with the legal authority for conducting 
this interstate National Guard operation.
    \172\ After Action Report of Texas National Guard Counterdrug 
Support in Waco, TX as (April 29, 1993). [See Documents produced to the 
subcommittees 2344, at Appendix [hereinafter Defense Documents]. The 
Appendix is published separately.]
    Texas law requires that, ``[a] military force from another state, 
territory, or district, except a force that is part of the United States 
armed forces, may not enter the state without the permission of the 
governor.'' \173\ Yet, National Guard personnel who were involved in 
post-raid National Guard investigations of the Waco incident have stated 
that Governors Richards did not approve the use of the Alabama National 
Guard. Military documents indicate that Governor Richards was unaware of 
the extent of even the Texas National Guard's involvement until after 
the failed raid occurred.
    \173\ Tex. Code Ann., Title 4, Sec. 431.001.
    An examination of Alabama law indicates that the Alabama National 
Guard had no authority to conduct military operations outside Alabama 
because the Governor's authority over the Alabama National Guard appears 
only to extend to the State's boundaries.\174\ Thus, it appears that the 
Alabama National Guard entered and conducted military operations in 
Texas without the proper authority to do so.
    \174\ Ala. Code Sec. 31-2-7.
    If the Alabama Governor's command and control authority ended at the 
Alabama State line and Gov. Richards did not approve the Alabama 
National Guard's entrance into the State of Texas, then several 
questions are raised: Which governor had command and control of the 
Alabama National Guard unit? Who (Texas, Alabama or the Federal 
Government) would have been liable for claims of injury and property 
damage had any occurred? If the Alabama unit is considered to be 
operating outside its scope of employment, would its personnel lose 
Federal Torts Claims Act's protection against personal liability? And, 
would the National Guard personnel risk losing their military health 
care and other military benefits in the event of an accident?
    Memoranda of agreement currently used fail to address the 
intricacies which State laws present and they do not appear to have 
legal authority to supersede State constitutions and statutes. Because 
State laws differ, these questions must be addressed on a case by case 
basis if States are going to engage in the interstate use of National 
Guard personnel.

  b. the bureau of alcohol, tobacco and firearms' request for military 
        assistance and the military assistance actually provided

    The pre-raid military assistance in Waco was provided through active 
duty and National Guard counterdrug units based on an alleged drug 
nexus. Much of the post-raid military assistance to the FBI and ATF also 
came from counterdrug units and funds. Central to understanding how the 
military became involved in the Waco matter is an understanding of how 
ATF's initial request for military assistance, based on alleged drug 
involvement, progressed.
1. Overview
            a. The process for requesting military assistance along the 
                    southwest border
    Military support to counterdrug operations along the Southwest 
border of the United States is designed ``to assist law enforcement 
agencies in their mission to detect, deter, disrupt, and dismantle 
illegal drug trafficking organizations.'' \175\ Thus, military support 
acts as a ``force multiplier,'' allowing law enforcement agencies to 
focus on ``interdiction seizure actions.'' \176\
    \175\ JTF-6 Operational Support Planning Guide, Treasury Documents 
    \176\ Id. at T08790.
    When a drug law enforcement agency \177\ requests counterdrug 
military assistance along the Southwest border, that request is received 
and reviewed by Operation Alliance, which acts as the 
clearinghouse.\178\ The request is then coordinated with support 
organizations such as JTF-6 \179\ , the North American Aerospace Defense 
Command (NORAD),\180\ the Regional Logistics Support Office \181\ and 
the pertinent National Guard. Operational support is provided as a joint 
effort by JTF-6, NORAD and the National Guard.\182\ Non-operational 
support which would include, but is not limited to, equipment, 
institutional training, and use of facilities would be provided by the 
Regional Logistics Support Office.\183\
    \177\ A drug law enforcement agency is a law enforcement agency that 
has jurisdiction over drug laws. ATF was authorized to investigate 
narcotics traffickers who use firearms and explosives as tools of their 
trade, especially violent gangs.
    \178\ Operation Alliance is the clearinghouse for all civilian law 
enforcement requests for military support along the Southwest border. 
Operation Alliance reviews all requests and coordinates the requests of 
Federal, State and local agencies, and determines the appropriate 
military agency to provide the support. JTF-6 Operational Support 
Planning Guide, Treasury Documents T08786, 08790.
    \179\ See note 160 and accompanying text.
    \180\ NORAD incorporated the counterdrug mission into its command 
structure in 1989.
    \181\ The Regional Logistics Support Organizations are under the 
direct supervision of the Office of the Defense Department Coordinator 
for Drug Enforcement Policy and are the primary point of contact for 
Drug Law Enforcement Agency requests for equipment i.e., non-operational 
    \182\ JTF-6 and NORAD employ active duty military personnel. The 
State National Guard personnel are in a Title 32 status.
    \183\ JTF-6 Operational Support Planning Guide, Treasury Documents 
T08786, 08789.
    To receive assistance through Operation Alliance and from these 
organizations, the civilian law enforcement investigation must involve 
criminal violations of U.S. drug laws, i.e., have a ``drug nexus.'' 
Having initiated 232 Operation Alliance investigations through fiscal 
year 1989,\184\ ATF was no stranger to Operation Alliance's counterdrug 
mission and its drug nexus prerequisite. In fact, documents dated as far 
back as March 15, 1990, designated ATF Special Agent Sarabyn, and ATF 
Special Agent Pali, the ATF coordinator for Operation Alliance during 
the Branch Davidian investigation, as ATF coordinators for military 
    \184\ Hearings before the Subcommittee on the Treasury, Postal 
Service, and General Government Appropriations of the House Committee on 
Appropriations, 101st Cong., 2d Sess. 688, 695 (1991) (statement of 
Stephen E. Higgins, Director, Department of Treasury, Bureau of Alcohol, 
Tobacco and Firearms).
    \185\ Memorandum from Special Agent Eddie Pali, Tactical Operations 
Coordinator to the ATF SAC's in Dallas, Houston, and Los Angeles (March 
15, 1990). Treasury Documents T006661.
            b. Chronology of ATF's request
    The chronology of ATF's request for military assistance provides 
insight into how early ATF wanted military assistance, how the military 
and ATF became concerned with the drug nexus issue, and how the 
military's concerns changed the scope of military assistance provided.
    As early as November 1992, ATF agents were discussing the need for 
military support with Lt. Col. Lon Walker, the Defense Department 
representative to ATF.\186\ In his ``summary of events'' \187\ November 
entry, Lt. Col. Walker specifically states that, at that time, he was 
not told of any drug connection.\188\
    \186\ Lt. Col. Lon Walker's summary of events. Treasury Documents 
    \187\ Id.
    \188\ Id.
    By December 1992 (almost 3 months before the raid), ATF agents were 
requesting Close Quarters Combat/Close Quarters Battle \189\ (CQB) 
training by U.S. Army Special Forces soldiers for ATF agents.\190\ A 
basic CQB course takes a minimum of 2 months and advanced CQB training 
takes a minimum of 6 months. Moreover, CQB is the type of specialized 
training a terrorist or hostage rescue team such as the FBI Hostage 
Rescue Team would use. CQB is also a perishable skill requiring 
frequent/continuous training that ATF, as an agency, is not designed to 
maintain or utilize. Somewhat surprisingly, neither the documents from 
the Treasury investigation, nor the Treasury Report, itself, never refer 
to this request.
    \189\ Close Quarters Battle involves ``combative techniques which 
include advanced marksmanship, use of special purpose weapons, 
munitions, demolitions and selective target engagement conducted by 
small, specially trained units against static or halted man-made targets 
to defeat a hostile force with a minimum of collateral damage.'' 
Headquarters, U.S. Army Special Forces Command, Policy Letter on Close 
Quarters Combat (CQC) Training (24 November 1993). The terms CQC and CQB 
have been used interchangeably for a number of years. CQC is the 
military doctrinally correct term. However, in this Report the 
subcommittees will continue to use CQB since that was the term used 
throughout the post-Waco investigations and the congressional hearings.
    \190\ After discussions between the Special Operations Command and 
Special Forces Command had taken place regarding U.S. Army Special 
Forces Command (Airborne) participation in conducting CQB/SOT for drug 
law enforcement agencies, the Commander of the U.S. Army Special 
Operations Command (USASOC) informed the Commander of JTF-6 by military 
message, dated 4 January 93 (within a very close proximity to ATF's 
request for CQB), that the USASOC would provide CQB Special Operations 
Training CQB/SOT training to law enforcement agencies. ``It is 
anticipated that CQB/SOT training support requests may be filled by the 
U.S. Army John F. Kennedy Special Warfare Center and School (USAJFKSWCS) 
or other units that include CQB/SOT as part of their METL.'' The 
memorandum goes on to state that USASOC and USASFC(A) have only agreed 
to provide CQB/SOT instruction to the U.S. Border Patrol Tactical Unit 
    However, one military document furnished to the subcommittees as 
part of their document request specifically states that no written 
documentation is available on this extraordinary request by ATF for CQB 
training.\191\ This is the case despite ongoing discussions in 1992 and 
early 1993 within the senior ranks of the U.S. Army Special Operations 
Command regarding the prudence of making SOT \192\ /CQB training 
available to civilian law enforcement and foreign military 
personnel.\193\ These discussions are significant because they again 
foreshadow the potential use in civilian law enforcement of highly 
specialized military training, designed and intended for military 
    \191\ ``SOF Assistance to Federal Law Enforcement in Waco, Texas.'' 
Defense Documents D-1116A.
    \192\ SOT stands for Special Operations Training. Although SOT is 
not an official military term for Special Operations Training, i.e., it 
is an acronym for a course taught at the U.S. Army John F. Kennedy 
Special Warfare Center and School (USAJFKSWCS), it will be used here to 
identify Special Operations Training because that is how it is used by 
the military documents referred to by the subcommittee investigators. 
See Headquarters, USASFC (A) Policy Letter on Close Quarters Combat 
Training (24 Nov. 1993) (unnumbered) for discussion on proper usage of 
    \193\ See memorandum of 3rd Special Forces Group, Headquarter's 
Memorandum on Special Operations Training and Close Quarters Battl (21 
Sept. 1992) (unnumbered); See also memorandum of U.S. Army Special 
Forces Command (Airborne) on USASFC policy for conducting counterdrug 
operations in the continental United States (23 Feb. 1993) (unnumbered) 
and Headquarters U.S. Army Special Forces Command (Airborne) Policy 
Letter on Close Quarters Combat Training (24 Nov. 1993) (unnumbered).
    On December 4, 1992, several ATF Special Agents, including the SAC's 
of the Dallas and Houston ATF offices, met at Houston's ATF field office 
for the first time to discuss the Waco investigation.\194\ In attendance 
were SAC Phillip J. Chojnacki; SAC Ted Royster; Assistant Special Agent 
in Charge James Cavanaugh; Resident Agent in Charge Earl K. Dunagan; 
Special Agents Aguilera, Lewis, Petrilli, Buford, K. Lattimer, Williams, 
Carter, and John Henry.\195\ Also present at that meeting was Lt. Col. 
Lon Walker, the Defense Department representative to ATF. Lt. Col. 
Walker's notes of the meeting reveal that he explained to those present 
``that the military probably could provide a great deal of support and 
[that he] suggested things like aerial overflight thermal photography.'' 
\196\ Lt. Col. Walker's notes also state that he explained ``that 
without a drug connection the military support would be on a 
reimbursable basis.'' \197\ This reference to reimbursement is 
significant because it reveals that military aid was, as of that date, 
understood to require reimbursement by ATF unless a drug nexus could be 
identified and articulated with sufficient specification to warrant 
military aid on a non-reimbursable basis. Lt. Col. Walker's December 4th 
entry is followed by a handwritten note that states ``Aguilera said 
there was no known drug nexus.'' \198\
    \194\ Lt. Col. Lon Walker's summary of events. Treasury Documents 
    \195\ Memorandum from Colleen Callahan and Robert Tevens to Geoff 
Moulton and Lew Merletti, ``Chronology and Witnesses Re: Military 
Support of ATF'' (July 14, 1993). Treasury Documents T004589.
    \196\ Lt. Col. Lon Walker's summary of events. Treasury Documents 
    \197\ Id.
    \198\ Id.
    On December 11, 1992, Special Agent Jose G. Viegra, the Resident in 
Charge (RAC) of the Austin, TX ATF Office, met with representatives for 
the Texas Governor's Office about the role of the military in any 
potential ATF action involving the Davidians.\199\ Representatives of 
the Texas Governor's Office present at the meeting were William R. 
Enney, Texas State Interagency Coordinator and his assistant Lieutenant 
Susan M. Justice, Assistant Interagency Coordinator of the National 
Guard Counterdrug Support Program.\200\
    \199\ Memorandum from Colleen Callahan and Robert Tevens to Geoff 
Moulton and Lew Merletti, ``Chronology and Witnesses Re: Military 
Support of ATF'' (July 14, 1993). Treasury Documents T004589.
    \200\ Id. Mr. Enney was designated by Texas Governor Richards as the 
Texas State representative for Defense Department coordination of the 
Texas National Guard Counterdrug Support Program.
    This meeting was requested by ATF to discuss specifically what types 
of military assistance were available to the ATF for its raid on the 
Branch Davidian residence \201\ in Waco, TX. During the meeting, Special 
Agent Viegra was told that military assistance through Operation 
Alliance would not be available unless there was a ``drug nexus.'' That 
meeting constituted the second time in 8 days that ATF agents inquiring 
about military assistance were told of a drug nexus prerequisite. At the 
December 11, 1992, meeting, Enney asked the ATF agents to determine 
whether a drug nexus did in fact exist.
    \201\ The Branch Davidian residence was termed a ``compound'' by 
ATF, during the investigation, and the media and other commentators 
subsequently adopted this militaristic term for a fortified or highly 
secure structure.
    Three days after their meeting with ATF, the Texas counterdrug 
representatives received a facsimile of a letter dated December 14, 
1992, on ``Houston SAC letterhead'' from the RAC of the Austin ATF 
office, Earl K. Dunagan, requesting military assistance from the Texas 
Counterdrug Program.\202\ The military assistance requested from the 
Texas National Guard was for aerial reconnaissance photography, 
interpretation and evaluation of the photos, and transportation of ATF 
agents aboard the aircraft during the reconnaissance.\203\ Although the 
request did not mention suspected drug violations (drug nexus), as would 
be required to secure non-reimbursable assistance or military assistance 
from a counterdrug unit, Lt. Col. Pettit, the Texas Counterdrug Task 
Force Commander, initialed his approval on the request.\204\
    \202\ Memorandum from Colleen Callahan and Robert Tevens to Geoff 
Moulton and Lew Merletti, ``Chronology and Witnesses Re: Military 
Support of ATF'' (July 14, 1993). Treasury Documents T004589, T004590.
    \203\ Id.
    \204\ Id.
    Lt. Col. Pettit told National Guard investigators that he provided 
his approval because the request required another person's approval as 
well.\205\ However this decision, in itself, raises several unanswered 
questions. Did Lt. Col. Pettit assume a drug nexus existed or that one 
was not needed? Did he believe that the request should be approved 
despite the absence of legally required drug nexus? Or did he believe 
that ATF would reimburse the National Guard? These questions repeat 
themselves throughout the approval process, and are raised here to 
illustrate the difficulties encountered in disentangling a past approval 
of military aid involving a drug nexus.
    \205\ Meeting with Army National Guard Brigadier General Sagsveen, 
in Washington, DC (October 19, 1995).
    Two days after Lt. Col. Pettit's approval, Special Agent Aguilera 
informed Lt. Col. Walker on December 16, 1992, that he received a 
facsimile from Mark Breault in Australia suggesting the existence of a 
methamphetamine lab at the Branch Davidian residence.\206\ Mr. Breault 
was a former Branch Davidian who left the group on bad terms, and 
exhibited strong personal animosity toward Koresh and several of the 
    \206\ Memorandum from Colleen Callahan and Robert Tevens to Geoff 
Moulton and Lew Merletti, ``Chronology and Witnesses Re: Military 
Support of ATF'' (July 14, 1993). Treasury Documents T004589. This 
document lists the date as Dec 17th. Lt. Col. Walker's Waco Summary of 
Events lists the date as the 16th. Treasury Documents T007884.
    The following day, December 17, 1992, SAC Phillip Chojnacki held a 
meeting in his office with Special Agent Ivan Kallister, Special Agent 
Davey Aguilera, and Lt. Col. Walker regarding the Waco 
investigation.\207\ According to ATF, Lt. Col. Walker told SAC Chojnacki 
during the meeting that the Defense Department could provide non-
reimbursable military support if there is a ``suspicion of drug 
activity.'' \208\ Aguilera was subsequently instructed to ``actively 
pursue information from his informants about a drug nexus.'' \209\ 
Additionally, ATF Intelligence Research Specialist Sandy Betterton 
searched criminal records to determine if Branch Davidians had ``some'' 
prior drug offenses.\210\ It later was determined that only one Branch 
Davidian had a prior narcotics conviction.\211\
    \207\ Memorandum from Colleen Callahan and Robert Tevens to Geoff 
Moulton and Lew Merletti, ``Chronology and Witnesses Re: Military 
Support of ATF'' (July 14, 1993). Treasury Documents T004589.
    \208\ Id.
    \209\ Id.
    \210\ Id.
    \211\ Id.
    January 6, 1993 was the first National Guard overflight of the 
Branch Davidian residence and their auto body shop, called the ``Mag 
Bag.'' This overflight was conducted by the Texas National Guard 
Counterdrug unit in a UC-26 counterdrug aircraft. Forward Looking 
Infrared (FLIR) \212\ videotape taken during the overflight indicated a 
``hot spot'' inside the residence and three persons outside behind the 
residence whom ATF designated as ``sentries.'' \213\ The Texas National 
Guard conducted five more reconnaissance/surveillance overflights over 
the Branch Davidian property from February 3, 1993, to February 25, 
1993. These overflights were conducted to ``search for armed guards and 
drug manufacturing facilities.'' \214\
    \212\ A FLIR, also called a Thermal Imaging System (TIS), is a type 
of photography which images thermal heat sources.
    \213\ Memorandum from Special Agent Robert Tevens, ``Chronology and 
Witnesses Re: Military Support of ATF'' (July 14, 1993). Treasury 
Documents T004589, T004591.
    \214\ Treasury Department Report at 44 n.18.
    On the same day as the first National Guard overflight, January 6, 
1993, Richard Garner, Chief of Special Operations Division of ATF, 
drafted another request on ATF Headquarters letterhead directly to 
Colonel Judith Browning, Director of Plans and Support, of the Office of 
the Department of Defense Coordinator for Drug Enforcement Policy and 
Support.\215\ ATF requested the loan of various office equipment, a 
refrigerator, cots and sleeping bags to be made available on January 11, 
1993. The letter states that the ATF was investigating violations of 
``firearms and drug laws'' and requested the equipment as ``part of 
Defense Department support for counterdrug effort.'' Col. Browning 
responded by letter on January 15 approving the support to be provided 
by the Regional Logistics Support Office \216\ in El Paso, TX.\217\ The 
same questions asked of Lt. Col. Pettit above must be asked here of Col. 
Browning. Here, as with Lt. Col. Pettit, key documentation justifying 
the deployment of non-reimbursable military aid on the basis of a proven 
or suspected drug nexus is missing. Yet, Col. Browning approved the 
request and directed further ATF requests to be made directly to the 
Regional Logistics Support Office in Texas.
    \215\ Treasury Documents T004601, T004602. The proper procedure for 
requesting military assistance along the Southwest border is to go 
through Operation Alliance. Letter from Operational Alliance to Special 
Agent Eddie Pali, ATF Coordinator for Operation Alliance (January 26, 
1990). Treasury Documents T006663-006664. Despite ATF not following this 
process, documents provided by Treasury indicate their agents were aware 
the procedural requirements. Id.
    \216\ See note 181.
    \217\ Treasury Documents T004603.
    Within a week after Col. Browning's response, Garner sent a further 
request to Major Victor Bucowsky, the Officer-in-Charge of the Regional 
Logistics Support Office requesting an MOUT \218\ site for Special 
Response Team training, driver training and maintenance support for 
Bradley fighting vehicles, seven Bradley fighting vehicles, and on-call 
support in the event a siege occurred.\219\ This was the largest request 
for assistance in Regional Logistics Support Office's history and 
eventually had to be supplied by Texas National Guard because the 
Regional Logistics Support Office was unable to handle a law enforcement 
request of such magnitude.\220\
    \218\ MOUT stands for Military Operations on Urbanized Training 
``which would include all military actions that are planned and 
conducted on a terrain complex where man-made construction impacts on 
the tactical options available to the commander. These types of 
operations are characterized by large-scale offensive and defensive 
operations. The primary objective is to seize and hold ground using all 
available means. This often results in extensive damage to the area.'' 
Memorandum from U.S. Army Special Forces Command regarding Policy Letter 
on Close Quarters Combat (CQC) Training (November 24, 1993).
    \219\ Treasury Documents T004606 (dated January 22, 1993), T004612. 
Treasury Document T004610 is a duplicate of the letter except it is 
dated January 21, 1993 and has handwritten notes along the border. The 
notes along the border appear to indicate that JTF-6 was responsible for 
the SRT training and ``No, T-32 TX'' is written next to the Bradley 
training (T-32 apparently refers to Title 32).
    \220\ Memorandum of interview from Special Agent Robert Tevens for 
the Waco Administrative Review (September 14, 1993). Treasury Documents 
T005397, T005399.
    On February 2, 1993, Operation Alliance made a request to the 
Commanding General of JTF-6 for the use of Special Forces personnel 
assigned to his organization.\221\ Lt. Col. Philip W. Lindley,\222\ the 
U.S. Army Special Forces Command Staff Judge Advocate, was notified of 
this request and advised JTF-6,
    \221\ Memorandum from Colleen Callahan and Robert Tevens to Geoff 
Moulton and Lew Merletti, ``Chronology and Witnesses Re: Military 
Support of ATF'' (July 14, 1993). Treasury Documents T004589, T004590.
    \222\ At the time of the Waco incident Philip Lindley served as a 
Major in the U.S. Army. However, since that time, he has been promoted 
and testified before the subcommittees with the rank of the Lieutenant 
Colonel. He will be referred to as Lt. Col. Lindley throughout the 

          . . . that Rapid Support Unit (RSU) \223\ assistance in actual 
        planning and rehearsal of proposed ``takedown'' could violate 
        posse comitatus law, expose RSU to liability. [A q]uestion also 
        arises as to appropriateness of RSU giving non-METL, \224\ i.e., 
        SOT/CQB training to ATF.\225\
    \223\ A Rapid Support Unit (RSU) is comprised of a Special Forces 
Company with attached aviation asset. Rapid Support Unit Description 
Paper. Defense Documents D-1353. The subcommittees are aware of no RSU 
aviation assets being used at Waco. ``RSU missions are characterized by 
small, short duration, interdiction missions normally limited to border 
areas.'' Id. (emphasis added). The paper states under Mission Parameters 
that ``the mission must be related to the Special Operations Mission 
Essential Task List (wartime tasks) and should be intel-prompted.'' Id.
    \224\ Mission Essential Task List (METL) includes soldiers' wartime 
tasks, i.e. what skills a soldier has been trained in and capable of 
training others in. Special Forces units who were assigned to Operation 
Alliance were restricted to their METL training law enforcement agents.
    \225\ Defense Department Documents D118.

However, there again is no written documentation of ATF's request for 
this highly controversial training.
    Within days, the training mission by Special Forces soldiers was 
revised to include only coordination on Army ranges and teaching ATF how 
to develop an operations order.\226\
    \226\ Id.
            c. Pre-raid military assistance requested by ATF and 
                    assistance actually received
    The military assistance provided to ATF can be separated into four 
areas: (1) surveillance overflights by counterdrug National Guard units 
in January and February 1993; (2) training by Special Forces soldiers 
assigned to JTF-6 for counterdrug missions in late February 1993; (3) 
direct support by Texas National Guard counterdrug personnel who 
conducted an aerial diversion the day of the raid on February 28, 1993; 
and (4) post-raid support to FBI and ATF.
    Six surveillance overflights were conducted by counterdrug National 
Guard units. Aerial photography missions by the Texas National Guard 
began on January 6, 1993.\227\ The January 6 missions and subsequent 
missions on February 3, 18, and 25, 1993, were taken by a Texas National 
Guard Counterdrug UC-26 aircraft.\228\ On January 14, 1993, aerial 
photographs were taken by the Alabama National Guard.\229\ And, on 
February 6, 1993, the Texas National Guard provided infrared video 
(FLIR) and aerial photography in a Counterdrug UC-26 aircraft.\230\
    \227\ Texas National Guard After-Action Report (April 29, 1993). 
Defense Documents D2344 at D2346.
    \228\ Id.
    \229\ Id.
    \230\ Id.
    ATF's request for training of ATF agents by Special Forces soldiers 
went through several alterations before the actual training took place. 
Although ATF initially requested Bradley fighting vehicles, SOT/CQB 
training, on-site medical evacuation assistance and planning assistance, 
legal restrictions caused the ATF request to be scaled down.\231\ A 
Special Forces Rapid Support Unit, assigned to Operation Alliance, 
trained ATF on 25-27 February 1993, in company-level tactical C2, 
Medical Evacuation training, IV ABC's,\232\ and assistance with Range 
and MOUT sites.\233\ According to military documents and military 
witnesses who appeared before the subcommittees, no non-Mission 
Essential Task List (wartime tasks) training, 
      V. Military 
involvement in actual planning occurred.\234\
    \231\ ``SOF Assistance to Federal Law Enforcement in Waco, Texas.'' 
Defense Documents D-1116A.
    \232\ Medical techniques for treating battlefield injuries including 
intravenous injections of fluids, clearing airways, controlling bleeding 
and treating shock. Sworn statement of Maj. Petree. Defense Documents D-
    \233\ ``SOF Assistance to Federal Law Enforcement in Waco, Texas.'' 
Defense Documents D-1116A.
    \234\ Id.

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