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 343). --------------------------------------------------------------------------- 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 provides: --------------------------------------------------------------------------- \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 prohibited.\147\ --------------------------------------------------------------------------- \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 Guard. \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 operations.\156\ --------------------------------------------------------------------------- \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 17. \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 events. --------------------------------------------------------------------------- \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. 15. \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 constabulary.'' \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 ratification.\170\ --------------------------------------------------------------------------- \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 T08786. \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 support. \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 assistance.\185\ --------------------------------------------------------------------------- \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 T007884. \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 (BORTAC). --------------------------------------------------------------------------- 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 operations. --------------------------------------------------------------------------- \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 SOT. \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 T007884. \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 T007884. \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 Davidians. --------------------------------------------------------------------------- \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 Report. . . . 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- 1147. \233\ ``SOF Assistance to Federal Law Enforcement in Waco, Texas.'' Defense Documents D-1116A. \234\ Id. --------------------------------------