Negotiations to End the Standoff with the Davidians
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
VI. Negotiations To End the Standoff With the Davidians
Negotiations between the FBI and the Branch Davidians continued for
51 days during which time the negotiators utilized generally accepted
negotiation techniques. The FBI was unwilling to engage in a novel
approach toward the Davidians.
While American hostage negotiation training, especially FBI
training, is thought to be the best in the world, there remains
considerable room for reassessment and, based on the Waco record,
improvement. The FBI possesses exceptional negotiators, but the Bureau
was unwilling to engage outside experts and too eager to ignore the
advice given by its own experts. The evolving nature of hostage
barricade situations necessitates that in the future the FBI continually
strive for the preparedness to confront more emotional and unpredictable
barricaded subjects. At Waco, FBI resistance to different negotiation
methods may have contributed to a premature decision to end the
standoff.
a. the conflict between tactical commanders and negotiators
1. The problem with two teams: one negotiating team and a tactical team
At Waco, the FBI Crisis Management Team was deployed. The Crisis
Management Team is made up of a variety of law enforcement
professionals, among them agents trained as tactical agents and as
negotiators. The team was divided into groups with separate leadership
and different responsibilities. Each team gave its perspective to
Jeffrey Jamar, the Special Agent in Charge, who determined which
strategy to employ in negotiations. There often was a conflict between
these two approaches.
Although disposed to the active approach, Jamar allowed the
proposals of each team to be implemented simultaneously, working against
each other.
a. Standard Procedure in Negotiations
According to the FBI's Chief Negotiator, Gary Noesner, the conflict
between tactical and negotiating teams is the one universal element in
law enforcement operations of this type.\368\ FBI tactical forces are
trained to act in stressful, violent situations. Agents are inclined
toward the ``action imperative,'' the sense among agents that motivates
them to act.\369\ Negotiators are more inclined to seek a nonviolent
resolution of the standoff simply by virtue of their training.
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\368\ Briefing by Federal Bureau of Investigation Supervisory
Special Agent Gary Noesner to the subcommittees, November 1995.
\369\ Id.
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The FBI has a policy in place that favors a negotiated
settlement.\370\ Through a type of negotiation called active listening,
negotiators attempt to find ways to explain to the barricaded subject
why it is in his best interest to seek a nonviolent solution. This FBI
policy and training of negotiators conflicts with the ``action
imperative.''
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\370\ Id.
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b. Major disagreements between the two teams
Each team adamantly argued to Jamar on behalf of its perspective and
adamantly opposed the other's.\371\ Dr. Alan A. Stone \372\ chronicled
the progression in strategy that occurred among the FBI Commanders at
Waco in his Report and Recommendations. At first, according to Stone,
``the agents on the ground proceeded with a strategy of conciliatory
negotiation, which had the approval and understanding of the entire
chain of command. Pushed by the tactical leader, the commander on the
ground began to allow tactical pressures to be placed on the residence
in addition to negotiation.'' \373\ Stone summarized the feelings of
negotiators of this inevitable progression. Stone writes, ``This
changing strategy at the residence from (1) conciliatory negotiating to
(2) negotiation and tactical pressure and then to (3) tactical pressure
alone, evolved over the objections of the FBI's own experts and without
clear understanding up the chain of command.'' \374\
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\371\ U.S. Dept. of Justice, Report to the Deputy Attorney General
on the Events at Waco, TX 75 (1993) [hereinafter Justice Department
Report]. ``The guiding principle in negotiation and tactical employment
is to minimize the risk to all persons involved--hostages, bystanders,
subjects, and law enforcement officers.'' But the Justice Department
report states that the negotiating components of the FBI strategies were
``more often contradictory than complimentary.''
\372\ Alan A. Stone, M.D., Touroff/Glueck Professor of Psychiatry
and Law at Harvard University, originally was asked to participate in
the Department of Justice Waco review team. For a variety of reasons,
including time constraints, Dr. Stone submitted an individual report
apart from the Justice Department Report. See infra note 373.
\373\ Alan A. Stone, Report: To Deputy Attorney General Philip
Heymann, Report and Recommendations Concerning the Handling of Incidents
Such as the Branch Davidian Standoff in Waco, TX, Panelist, Alan A.
Stone, M.D., (November 8, 1993) [hereinafter Stone Report].
\374\ Id.
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The disagreement was called a ``fundamental strategy disagreement.''
\375\ The negotiators suggested that tactical maneuvers worked against
the negotiation process. The tactical team wanted to employ aggressive
tactics. Regarding the conflict with tactical people, McClure says
simply, ``Tactical people think in tactical terms and negotiators think
in negotiation terms.'' \376\ Byron Sage, a Supervisory Special Agent
and the lead day-to-day FBI negotiator at Waco, testified before the
subcommittees, ``[The conflict between tactical and negotiation teams]
presented difficulties, for sure, but that is not unusual. These are not
matters that we were not prepared to attempt to negotiate through.''
\377\ In the end, however, the tactical team won the endorsement of
Jamar.
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\375\ Hearings Part 2 at 316. Gary Noesner testified before the
subcommittees, ``At Waco, there was a fundamental strategy disagreement
on what was the best way to proceed. In Waco, the negotiation team
wanted to have a lower-keyed approach and the tactical team's approach
was more to apply pressure.'' Id.
\376\ Id. at 147.
\377\ Id. at 321.
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Jamar decided to constrict the perimeter of the building by moving
vehicles closer to the residence. On March 9, 1993 the FBI began to use
Bradley Fighting Vehicles to clear debris (including automobiles and
boats) from the front of Mount Carmel. On March 14, 1993 the FBI focused
bright lights on the residence in an effort to disrupt the sleep of
those inside. Four days later, loudspeakers were set up to communicate
messages from the FBI to the Davidians inside the residence. Soon
thereafter, the FBI began playing recordings of Tibetan chants, rabbits
being slaughtered, and other sound effects.\378\
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\378\ Justice Department Report at 78.
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While negotiators were trying to gain the trust of Koresh and the
Davidians, the actions of the tactical team gave Davidians reason to
distrust FBI's negotiators. At the hearings, Sage explained, ``It is not
uncommon to, as part of the negotiation process, to actually try to
ingratiate yourself a little bit more with Koresh and his followers by
saying, look, this is out of our hands, but that is why you need to give
us something to work with.'' \379\ It is difficult to imagine that use
of tactical force could be a beneficial tool with those whom experts say
should be treated with caution and conciliation. Notwithstanding Sage's
description of the tactical maneuvers as helpful to negotiations, any
consequences of aggressive movements on the part of FBI were not ones it
intended. They were predicted, however. Gary Noesner remarked, ``I do
not awake from nightmares or have trouble sleeping at night . . .
because everything that I predicted would happen, did happen.'' \380\
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\379\ Id.
\380\ Briefing by Gary Noesner to the subcommittees.
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c. Insufficient communication between the two teams and
their commanders
In testimony before the subcommittees, Jamar described the strategic
decisionmaking process. He said, ``The supervisors of each component
would get together and report and discuss matters. And we would have
various meetings.'' \381\ Noesner said the problem was not one of
communication. Jamar's office was across from the negotiation room.
Noesner communicated the desired approach of negotiators with regularity
and often in heated exchanges. Jamar heard opinions from the negotiators
and tactical agents given with equal force. He let each strategy go
forward as if it was the primary one.\382\
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\381\ Hearings Part 2 at 300.
\382\ Briefing by Gary Noesner to the subcommittees.
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d. Decisions between the options presented by the two teams
In early 1993, FBI policy was to place the Special Agent in Charge
of the FBI's regional office in charge of making operational decisions
in a crisis like Waco. Noesner described the role of the SAC saying,
``He has to take the information and couple that with the information he
receives from other intelligence sources, from the tactical team and he
has to weigh all those things, weigh them with his own experiences and
his own perceptions and he has to come to a decision.'' \383\
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\383\ Hearings Part 2 at 311.
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Noesner emphasized the fact that the real problem in Waco was one of
leadership. The situation at Waco required someone to make the decision
on what strategy to utilize to confront this ``unconventional'' group.
He characterized Jamar as an action-oriented agent, one who fell prey to
the ``action imperative.'' \384\
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\384\ Briefing by Gary Noesner to the subcommittees.
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Stone describes the action imperative in terms of the FBI's ``group
psychology.'' The options available to the FBI, according to Stone, fell
somewhere between ``doing nothing (passivity) and a military assault
(the action imperative).'' \385\ In light of the fact that ``the appeal
of any tactical initiative to an entrenched, stressed FBI must have been
overwhelming,'' Stone reasons, ``the desultory strategy of simultaneous
negotiation and tactical pressure was enacted as a compromise.'' \386\
Stone concluded that tactical maneuvers were initiated as a way to
relieve agents' desire to act. It is left to the SAC to override the
group psychology of the agents on the ground and make the decisions
necessary to reach a peaceful conclusion. Stone writes, ``The FBI should
not be pushed by their group psychology into misguided ad hoc decision
making the next time around.'' \387\
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\385\ Stone Report at 23.
\386\ Id.
\387\ Id. at 24.
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e. The effect on negotiations of the decision to employ
tactical maneuvers
The decision to employ tactical maneuvers had the exact result
negotiators and experts predicted. The experts advised against
antagonizing the Davidians.\388\ In a memorandum coauthored by Peter
Smerick, an FBI Criminal Investigative Analyst, and Park Dietz, Clinical
Professor of Psychiatry and Biobehavioral Sciences at the UCLA School of
Medicine, the FBI was advised that ``negotiations coupled with ever
increasing tactical presence . . . could eventually be counter-
productive and could result in loss of life.'' \389\ When tactical
maneuvers were utilized, negotiations were set back. The Davidians were
unable to sleep with sounds of loud music and rabbits being slaughtered.
The Davidians were angered by movements of the armored personnel
carriers. They were angered by the clearing of debris from the
grounds.\390\ As Richard DeGuerin, the lawyer representing Koresh, says,
tactical maneuvers appeared to be ``calculated to discourage anyone from
coming out.'' \391\
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\388\ Memorandum from Criminal Investigative Analyst Peter Smerick
and Dr. Park Dietz, Clinical Professor of Psychiatry and Biobehavioral
Sciences at the UCLA School of Medicine (March 5, 1993).
\389\ Id.
\390\ Hearings Part 2 at 74-75.
\391\ Id.
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The effect that the tactical maneuvers had on negotiations was only
one of the problems resulting from that decision. In fact, some believe
that playing loud music bonded the Davidians closer together.\392\
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\392\ Id. at 195. Captain McClure thought the playing of chants and
rabbit slaughters was unwise.
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f. Tactical maneuvers may have fed into the vision
anticipated by Koresh
Koresh often warned Davidians that they would die in a fire brought
on by ``the Beast.'' \393\ In Smerick's March 8 memo, he recommended
that tactical pressure ``should be the absolute last option we should
consider, and that the FBI might unintentionally make Koresh's vision of
a fiery end come true.'' \394\ When the FBI began to play loud music and
inch closer to the residence in armored vehicles, experts maintained
that those were exactly the wrong tactics.\395\ More than simply bonding
the Davidians together, experts concluded that these actions proved
Koresh right in the minds of the Davidians. The Justice Department
Report notes, ``Some of the experts felt that the aggressive tactical
moves played into Koresh's hands.'' \396\ Even Jamar, who made the
decision to use these tactics, said, ``I did not like it.'' \397\
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\393\ Thomas Robbins & Dick Anthony, Sects and Violence: Factors
Enhancing the Volatility of Marginal Religious Movements, in Armegeddon
in Waco: Critical Perspectives on the Branch Davidian Conflict 236, 240
(Stuart Wright ed., 1996). ``Koresh clearly anticipated a government
assault, and the actual military-style raid that the BATF perpetrated
against the Waco Davidian settlement in late February 1993 `seemed to
those inside to validate at least part of Koresh's prophecy.' '' Id.
\394\ Memorandum from Criminal Investigative Analyst Peter Smerick
(March 8, 1994).
\395\ Justice Department Report at 185.
\396\ Justice Department Report at 185.
\397\ Hearings Part 2 at 317.
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b. negotiation opportunities lost
1. Why the FBI changed negotiators
Soon after the raid, the FBI was called to take command of the
situation at the Davidian residence. Edward Dennis writes that ``ATF
requested assistance from the FBI on February 28, 1993 after ATF agents
had attempted to serve an arrest and search warrant on the Branch
Davidian Compound.'' \398\ Before the FBI took over, negotiations with
the Davidians had begun. Lieutenant Larry Lynch, of the McClennan County
Sheriff's Department, and Branch Davidian Wayne Martin talked over the
Waco 911 Emergency line.\399\ Soon thereafter, ATF Assistant Special
Agent in Charge James Cavanaugh and Davidians Steve Schneider and Koresh
spoke by telephone in an attempt to resolve the initial firefight.\400\
Finally, Cavanaugh successfully negotiated an end to the shooting.
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\398\ Edward S.G. Dennis, Jr., Evaluation of the Handling of the
Branch Davidian Standoff in Waco, TX 5 (1993) [hereinafter Dennis
Report].
\399\ McLennan County Sheriff's Department, 911 Transcripts
(February 28, 1993).
\400\ Id.
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Cavanaugh, with the help of the Texas Department of Public Safety,
made measurable progress toward release of Davidians. Communication was
extremely difficult between Davidians inside and ATF agents outside.
Nonetheless, Cavanaugh manipulated the dialog from the hysterical
screaming during the gun battle to productive conversation leading to a
cease fire.
a. Cavanaugh's rapport with the Davidians
The most difficult task after the raid failed was to establish a
reliable, common sense method for communicating with those inside Mount
Carmel. Communicating the agreed upon cease fire was made difficult by
the size of Mount Carmel and the fragmentation of ATF agents.\401\
Eventually, however, the shooting stopped and negotiations began.
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\401\ Justice Department Report at 105. [E]ven after Schneider and
Cavanaugh had agreed to call a cease-fire, it took several minutes to
achieve one. Schneider for his part had to walk throughout the residence
to tell people inside to stop shooting. Cavanaugh, who had no direct
radio link to each agent, had to advise the team leaders of the cease
fire and the team leaders in turn had to communicate with their agents.
The cease-fire was negotiated for a period of time before the shooting
finally stopped. Id.
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In his statement to the Department of Justice, Agent Cavanaugh gave
a compelling description of the first moments after the raid.\402\ The
atmosphere was frenetic and hostile. Cavanaugh's tone was friendly as he
sought to gain the trust of those in the residence.
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\402\ Department of the Treasury Document, statement of James
Cavanaugh:
``I called the compound directly on the phone from the undercover
house. I reached a man named Steve, later identified as Steve Schneider.
I told him I was an ATF agent and I wanted to talk to him about this
situation. As should be expected, the activity inside the compound was
very frantic, people were screaming and yelling, and there was still
shooting going on both sides. Steve was very excited and very hostile.
``I wanted to negotiate a cease fire, and he [Schneider] was
agreeable. I am not going to be good on the time of how long it took,
but it took a little while to negotiate that. He had to go throughout
the compound, which is very large, telling everyone not to shoot. While
he was doing this, there was still shooting going on both sides. I had
to get on the command net frequency and tell the commanders on the
ground there not to shoot, and they had to relay that to all 100 agents,
who were around there, so it took a little time to arrange it.
``Once I returned to the rear command post I called back in on the
telephone to the residence about 2:00 p.m. and I spoke with Steve and
David Koresh about what was going on. We had long conversations about
the warrant and we also had a lot of conversations about Biblical
passages and Mr. Koresh's belief that he was the Lamb of God, who would
open the Seven Seals. As you might assume, he was very hostile, very
angry, and very upset.''
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Cavanaugh gained the Davidians' trust by acknowledging the
Davidians' point of view.\403\ He granted many of their requests.\404\
He talked with them as though they were ``equals'' trying to achieve the
same goals. Cavanaugh assuaged their concerns by promising that they
would be addressed. Most importantly, Cavanaugh established a routine
that produced the release of some Davidians.\405\
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\403\ Hearings Part 2 at 187. ATF agent James Cavanaugh, the initial
negotiator during the standoff, testified before the subcommittees,
``[The FBI] established trust with Koresh. Id. Cavanaugh appears to have
been accomplished at active listening. The FBI, however, did not choose
to retain Cavanaugh.
\404\ A summary of the Davidians' requests can be found in the
Justice Department Report in the Appendix.
\405\ Hearings Part 2 at 74. Representative Peter Blute, when
questioning a witnesses, stated, ``We also know that, after the raid,
when the siege started, the initial negotiator was getting through to
Koresh and they had a kind of relationship intellectually that allowed
numerous people to be released during that period. . . .'' Id.
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Cavanaugh established a rapport with Koresh and other Davidians.
When Cavanaugh left the negotiations, Koresh mentioned that he missed
Cavanaugh. He noted that Cavanaugh promised to be there until the
end.\406\ But on March 4, 1995 Cavanaugh left Waco, only to return
briefly in April. After Cavanaugh's departure, the negotiations were an
FBI operation.
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\406\ Transcripts of the Negotiations Between the FBI and the
Davidians (March 4, 1993) [hereinafter Negotiation Transcripts].
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b. Why the FBI was brought in
The ATF asked for the aid of the FBI and agreed that it would be
best for the FBI to assume operational control of the entire siege.\407\
All of the official reports note that the FBI was asked to take over the
siege.\408\
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\407\ Justice Department Report at 22.
\408\ Treasury Department Report at 114. Justice Department Report
at 1.
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According to the Justice Department Report, the FBI Hostage Rescue
Team was the law enforcement organization best equipped to handle the
standoff.\409\ It is because of its expertise that the FBI is called in
to take control of complex barricade situations throughout the country
and the world. According to the Treasury Department Report on the
incident, ATF knew immediately after the raid began that it would need
the help of the FBI. The apparent unanimity is expressed in the
Department of Treasury Department Report.\410\ Once the decision was
made to turn the operation over to the FBI, the FBI was in charge of the
scene in Waco within a matter of hours.
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\409\ Justice Department Report at 144. At the time, the FBI's HRT
consisted of a 50 person force. It was trained to deal with highly
dangerous missions. The team boasts ``sophisticated armament including
infra-red aiming devices, daytime and nighttime sniper capabilities,
explosive and mechanical breaching abilities, and certain non-lethal
weapons.'' The agents are trained for tactical operations on land and at
sea. The HRT was created in the 1980's to confront a growing number of
unusually dangerous and complicated criminal situations.
\410\ U.S. Dept. of the Treasury, Report of the Department of the
Treasury on the Bureau of Alcohol, Tobacco, and Firearms Investigation
of Vernon Wayne Howell also known as David Koresh at 113-114 (1993)
[hereinafter Treasury Department Report].
Shortly after the shoot-out, Chojnacki spoke with Hartnett, who was
in Washington, DC and recommended that the FBI Hostage Rescue Team be
brought to Waco to handle what had become a siege situation. At roughly
the same time, FBI Director William Sessions learned of the shoot-out,
contacted ATF Director Stephen Higgins and offered his condolences and
his agency's assistance. After Hartnett arrived at the National Command
Center and was fully briefed, he determined that the FBI HRT should be
sent to Waco.
Soon after the cease-fire Hartnett contacted Douglas Gow, FBI
Associate Deputy of Investigations, and formally requested FBI
assistance. Gow, in turn, contacted FBI SAC Jeffrey Jamar (San Antonio)
and briefed him on the situation. FBI Special Agent James Fossum (Waco)
was informed of the crisis by both AUSA Phinizy and another local FBI
agent. Shortly after [Fossum] arrived, Chojnacki told him the ATF would
welcome whatever assistance the FBI could provide.
* * *
Clark informed [Noble] that a request for the HRT had already been
made by ATF and that the HRT was on its way to the residence to evaluate
the situation.
Jeffrey Jamar (San Antonio), as the SAC of the affected district,
was given command of the FBI operation. He arrived in Waco at about 5:30
p.m. and together with Fossum and several other local FBI agents,
immediately began to establish a command post and assess the situation.
The balance of the HRT members began arriving on March 1. After further
discussions with FBI, ATF and Treasury officials, Noble spoke with ATF
Director Higgins and ADLE Hartnett early March 1. Noble advised them
that if the FBI determined that the HRT was needed for a long term, the
FBI should have operational command to resolve the standoff. Id.
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2. Why the FBI didn't allow others to participate in the negotiations
The FBI was disinclined to allow anyone, other than the FBI's own
negotiators, to participate in negotiations with the Davidians. Many
were offering their assistance, but few were allowed to participate.
McLennan County Sheriff Jack Harwell and the Texas Rangers were
suggested and offered their help. Attorneys for Davidians repeatedly
asked to speak with the Davidians. It was with great hesitance that the
FBI allowed Sheriff Harwell to speak with the Davidians, and with even
greater reluctance that the FBI allowed the attorneys into the
residence.\411\
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\411\ Justice Department Report at 133.
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a. Sheriff Jack Harwell
Early in the negotiations, Koresh and the Davidians told the
negotiators they had a cordial relationship with Sheriff Jack Harwell.
On March 13, Jamar allowed Sheriff Harwell to participate in
negotiations. According to the Justice Department Report, to allow an
untrained negotiator to participate in such operations was a ``departure
from conventional negotiation doctrine.'' \412\ In preparation for these
negotiations, Noesner and the FBI negotiations put Harwell through quick
and intense training in professional negotiations. Harwell was put in
this position only because he was a person whom both sides trusted. And
although the negotiators were worried about Harwell making the situation
worse, negotiators' worries were soon quelled when they discovered,
according to Noesner, ``Harwell was a natural.'' \413\
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\412\ Id.
\413\ Briefing of Gary Noesner to the subcommittees.
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Two days after he began participating in negotiations, Harwell
participated in a face-to-face meeting with Sage and Davidians Martin
and Schneider. The meeting produced no substantial change in the
situation. Harwell and Sage attest to the fact that a ``rapport was
established, particularly with Schneider.'' \414\ Unfortunately,
whatever success may have been brought about by Harwell's participation
was hindered by what Sage called a ``distinct change in negotiation
strategy.'' \415\ From that point on, Harwell's participation in the
negotiations consisted of having his previous conversations broadcast
into the residence via loudspeaker.
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\414\ Justice Department Report at 133.
\415\ Id. at 134.
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b. The Texas Rangers
Another group for which Davidians expressed their trust was the
Texas Rangers. A longstanding and well respected law enforcement entity,
the Texas Rangers were charged with conducting the final investigation
into the raid on the Davidians. The Rangers were never allowed to
participate in negotiations with the Davidians. They often had concerns
about the conduct of the siege and attempted to express these concerns
to Jamar. The Rangers were frustrated by a lack of communication with
Jamar. As Captain Byrnes testified before subcommittees, ``[I]f I went
over there, the door was already closed to where Mr. Jamar was. Several
times I waited a half hour, 45 minutes to see him and never saw him, and
I finally quit going over there. We couldn't even get a phone call
through. It was total lack of communication.'' \416\
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\416\ Hearings Part 2 at 159.
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c. The attorneys for the Davidians
Another concern of the Rangers was the FBI's decision to allow face-
to-face meetings between the Davidians and their attorneys. While it is
common for a client under investigation or prosecution to meet with his
attorney, it is rare for an attorney to meet with his client while his
client is the subject of a ``hostage barricade situation.'' \417\ The
negotiators and the tactical agents had different opinions on the wisdom
of letting the attorneys into the residence.\418\
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\417\ Id. at 23. DeGuerin says it's a frequent practice of attorneys
to meet with their clients before they are arrested. Id. Texas Ranger
Captain Byrnes testified before the subcommittees, ``We went to see Mr.
Jamar and offered a Ranger to help with the negotiations, if that would
be helpful--not one of the captains but one of the Rangers that had been
trained, most of them, by the FBI. He thanked us for that offer, and we
never heard anything else about it.'' Id. at 297.
\418\ Id. at 23.
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The negotiators were concerned that any third party intermediary was
ill equipped to be thrust into the fragile negotiations that consume
barricade situations. Negotiators were willing to use the attorneys in
ways that would jumpstart the negotiations.\419\ The tactical team,
along with the Texas Rangers, were concerned about the opportunity that
DeGuerin and Jack Zimmerman, the attorney for Steve Schneider, would
have to destroy evidence. But even Texas Ranger Senior Captain Maurice
Cook agreed with the wisdom of letting the attorneys into the residence
by saying, ``[Y]ou got to do what works.'' \420\ Jamar made the decision
because he was ``focused on resolving the standoff peacefully.'' \421\
DeGuerin and Zimmerman entered the residence on several occasions. The
attorneys spent a total of 32 hours with Koresh.\422\
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\419\ FBI Commander Jeffrey Jamar testified before the
subcommittees, ``I was hopeful they could appeal to his self-interest.
Everything Mr. Koresh did was to his self-interest.'' Id. at 312-313.
\420\ Texas Ranger Captain Cook testified before the subcommittees
that when all else fails in negotiations, ``you got to do what works. I
think you can get too formalized.'' Although formal training opposes
this. McClure says it can be used as a last resort. Id. at 146.
\421\ Justice Department Report at 91. ``The proposed face-to-face
meeting between Koresh and DeGuerin caused significant controversy
within law enforcement. SAC Jamar made the decision to permit the
meeting, clearing it with U.S. Attorney Ederer. The AUSA's [Assistant
U.S. Attorney] and the Texas Rangers, who would be responsible for the
eventual prosecutions, strongly opposed the meeting. Jamar was focused
on resolving the standoff safely, while the prosecutors and the Texas
Rangers were focused on the integrity of future court proceedings. The
prosecutors and Texas Rangers were afraid that the defense attorney
would give advice to Koresh which could result in the destruction of
evidence and cause a more difficult prosecution.'' The attorneys met
inside the residence approximately seven times.
\422\ Hearings Part 2 at 79.
Mrs. Thurman: How many total hours did you spend with [Koresh], do
you think, in the period of time that you represented him.
Mr. DeGuerin: About 32 hours.
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(i) Progress was made from the visits.--Negotiators and Jamar had
the sense that the meetings were ``positive.'' \423\ On April 1, when
the attorneys requested extensions of the pre-approved time limits, they
described their progress as ``terrific.'' In that meeting, David Koresh
promised to come out ``after Passover.'' \424\ The actual date of
Passover, however, was a matter of controversy.
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\423\ Id. at 304-306.
\424\ Id. at 47.
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On April 14, a telephone conversation between DeGuerin and Koresh
produced what DeGuerin called a promise to come out.\425\ The FBI called
this promise ``a new precondition for his coming out.'' \426\ The
precondition was the completion of David Koresh's written interpretation
of the ``Seven Seals,'' discussed in the Bible's Book of Revelation.
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\425\ Negotiation Transcripts (April 14, 1993).
\426\ Hearings Part 2 at 304-306.
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A letter attesting to the surrender offer followed the verbal
promise. But the FBI remained skeptical.\427\
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\427\ Jamar testified before the subcommittees, ``They would build
their [DeGuerin and Zimmerman] spirits up. I can remember one instance
when DeGuerin came out and, believe me, he put his best effort in and I
give him all the credit in the world for the effort he made. He would
build him up and then cut his legs out from under him. I remember one
instance where he said he was making a point with him and Koresh feigned
illness. It happened to us all the time.'' Id. at 297-298.
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(ii) Negotiator and lawyers consultation after the first visit.--
After each visit and on occasion when there was no visit, the FBI and
the lawyers had discussions about strategy and about arranging more
visits with Davidians. The agents worked closely with the attorneys
before each visit and attorneys cooperated with the FBI.
Before the trips into the Davidian residence, the agents and
attorneys arranged time limits and topics for discussion while the
attorneys were inside.\428\ On only one occasion did the attorneys ask
to remain in the residence longer than the arranged time.
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\428\ Id.
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c. lack of appreciation of outside information
1. Why the FBI did not rely more on religious advisors to understand
Koresh
Many argue that the reason negotiations failed was that the FBI
failed to grasp the nature and strength of Branch Davidian beliefs.
There exists a conflict among those who believe negotiators should never
become sympathetic with the ``hostage taker'' and others who believe the
only way to negotiate is to understand the subject of the
negotiations.\429\ The FBI became frustrated with endless dissertations
of Branch Davidian beliefs and ignored assertions of religious experts
that Koresh could be negotiated with on a theological level.\430\ The
FBI grew skeptical that Koresh could be convinced that ending the siege
was in his best interest.
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\429\ Noesner Briefing. Noesner maintains that a negotiator should
never become embroiled in a discussion of the beliefs of the subject of
the negotiations; never give the barricaded person the benefit of
believing he has control of the conversation. Dr. Phillip Arnold, of the
Reunion Institute in Houston, TX, and Dr. James Tabor, Associate
Professor of Religious Studies at the University of North Carolina at
Charlotte, suggest that Koresh could have been dealt with through a
discussion of his biblical interpretations. According to the Harvard
Negotiation Project, ``negotiating [with people acting out of religious
conviction] does not require compromising your principles. More often
success is achieved by finding a solution that is arguably consistent
with each side's principles.'' Roger Fisher et al., Getting to Yes
(1991).
\430\ Justice Department Report at 26-28. The Department of Justice
report recounts Koresh's attempt to tell his side of the situation.
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a. The FBI standard in negotiations
Mainstream negotiation tactics call for the negotiator to remain
aloof from the subject of the negotiations, to pursue crisis management
team goals, and never become embroiled in the message of the hostage
taker.\431\ The focus of negotiation training is ``active listening.''
The negotiator is supposed to find out what the subject wants or
demands.
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\431\ Noesner Briefing.
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Negotiation training gives preference to those with a social science
background. The FBI negotiation curriculum includes abnormal psychology
and the social sciences. Time after time, David Koresh, and Davidians
Wayne Martin and Steve Schneider, sought to speak with someone who could
understand the Branch Davidian interpretation of the Seven Seals. The
FBI resisted the desire to engage Koresh in such a discussion, saying
that it was sure to be fruitless.\432\ McClure testified at the hearings
that he had been involved in a similar situation when religious
discussions of a barricaded group had proved fruitless. He said, ``In
1987, I was involved in a situation in Atlanta where 1,400 Cubans were
holding 121 hostages. Their religious belief was very important to them
during that period of time. Those hostages were held for 12 days. Every
time that we gave a negotiations and responded to their religious
questions and got in their head or tried to get into their head and they
tried to get into our about religion, no progress was made. When we
talked about secular issues, we got people out.'' \433\ This experience
appears to have led the FBI to avoid religious discussions with the
Davidians.
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\432\ Hearings Part 2 at 181.
\433\ Id.
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b. Experts consulted
When the FBI first arrived in Waco, it had little information about
David Koresh and the Davidians. Negotiators sought as much information
as possible about the group. It was left to the experts hired by the FBI
to create a profile of David Koresh and develop a plan to negotiate with
the Davidians.
Dr. Eugene Gallagher, professor of Religion at Connecticut College,
calls Glenn Hillburn, Dean of the Baylor University Department of
Religion, ``the one expert with a firm grasp of the history of the
Davidians within the framework of the Seventh Day Adventists.'' \434\
According to the Justice Department Report, Glenn Hillburn, Dean of the
Baylor University Department of Religion, ``provided information on the
Book of Revelations, the Seven Seals, and other Biblical matters.''
\435\ The report makes no mention of special insight Hillburn provided
into the peculiar habits of the Davidians or David Koresh. Other than
Dr. Hillburn, Dr. Gallagher concludes, the FBI consulted few religious
experts with knowledge of Branch Davidians and what they believed.
Indeed, Stone says in his Report and Recommendations, ``One of my fellow
panelists believes--and I am convinced--that the FBI never actually
consulted with a religious expert familiar with the unconventional
beliefs of the Davidians.'' \436\
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\434\ Interview of Dr. Eugene Gallagher by Robert J. Shea, Special
Assistant to the Subcommittee on National Security, International
Affairs, and Criminal Justice, in New London, CT (October 23, 1995).
\435\ Justice Department Report at 189.
\436\ Stone Report at 43, 44.
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c. The failure to consult outside experts
The FBI relied on experts with whom it was familiar. But, there were
individuals who embraced the peaceful resolution of the situation in
Waco as their personal crusade. Among those who made serious efforts to
help were Philip Arnold, Associate Professor of Religious Studies at the
University of North Carolina at Charlotte, and Gene Tabor of the Reunion
Institute in Houston, TX. It was difficult for Arnold and Tabor to
intercede. The Justice Department Report mentions that ``[t]he FBI
refused to permit a live telephone conversation'' between Arnold and
Schneider although Schneider requested Arnold by name.\437\
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\437\ Justice Department Report at 186. ``On March 17, Schneider
told the FBI that he and some of the other residence members had heard
of Dr. Arnold as someone with expertise about the Book of Revelations
and the Seven Seals, and that they wanted to speak with him. The FBI
refused to permit a live telephone conversation, but offered an exchange
of audiotapes instead. On March 19, the FBI sent an audiotape that Dr.
Arnold had made into the compound.'' Id.
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d. What communications did they have with Koresh?
Tabor and Arnold saw a video sent out by Koresh and thought
effective negotiation was possible if the FBI dealt with Koresh within a
framework of the Bible, particularly the Seven Seals.\438\ Koresh had
heard Arnold giving his interpretation of the Seven Seals and offering
assistance on the KJBS radio.\439\
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\438\ Hearings Part 2 at 46-47.
\439\ Id.
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Neither Arnold nor Tabor ever spoke with Koresh. Koresh and
Schneider repeatedly asked to speak with Philip Arnold. Arnold and Tabor
were allowed to send in tapes of their interpretations at the request of
DeGuerin, Zimmerman and Koresh, himself. But at no time were they
allowed to participate in the negotiations.
e. Did the FBI take any of this advice?
It goes against standard negotiation policy to allow outsiders to
participate in serious and dangerous ``hostage'' negotiations.
Consistent with the advice of FBI experts, the negotiators in Waco did
not allow outsiders to participate in negotiations out of fear that
something they said might inflame David Koresh. Arnold and Tabor were no
exception, they were ignored.
From the very beginning, negotiators failed to take seriously the
point of view of the Davidians.\440\ According to the Justice Department
Report, ``There were certain areas of activity in which the FBI did not
seek outside help. The FBI did not request assistance . . . with
negotiations, since the FBI's best negotiators were assigned to Waco
throughout the fifty-one day standoff.'' \441\ It appears that the FBI
paid no attention to those experts who believed Koresh could have been
reasoned with within the proper religious and biblical context.
---------------------------------------------------------------------------
\440\ Id. at 362. Cavanaugh testified before the subcommittees, ``I
fully respected their religious beliefs. I think all the other
negotiators did, also. I do not mean to be sarcastic, but my feeling was
they can worship a golden chicken if they want to, but they cannot have
submachine guns and hand grenades and shoot Federal agents. I played the
role as policeman. I did not try to fool the Davidians that I was
something else. I think that is one reason that Koresh certainly trusted
me from the beginning.'' Id.
\441\ Justice Department Report at 157.
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Koresh and Davidians talked frequently in religious terms. In their
book, Tabor and Gallagher quote the following passage from the
negotiation tapes to point out frustration with the FBI's lack of
familiarity with theology:
HENRY: Let's not talk in those terms, please.
KORESH: No. Then you don't understand my doctrine. You don't
want to hear the word of my God.
HENRY: I have listened to you and listened to you, and I
believe in what you say, as do a lot of other people, but the,
but the bottom line is everybody now considers you David who is
going to either run away from the giant or is going to come out
and try to slay the giant. For God's sake, you know, give me an
answer, David. I need to have an answer. Are you going to come
out?
KORESH: Right now, listen.
HENRY: Right now you're coming. . .
KORESH: ``He that dasheth in pieces is come up before thy
face: keep the munition.'' What's the munition? ``Watch the
way.''
HENRY: One of the things, one of the things is I don't
understand the scriptures like you, I just don't.
KORESH: Okay, if you would just listen, then I would show you.
It says here--it says here, ``The Chariots shall be with flaming
torches.'' That's what you've got out there [referring to the
tanks].\442\
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\442\ James Tabor and Eugene Gallagher, Why Waco? 110 (1995).
FBI negotiators maintain that they never discounted Branch Davidian
beliefs. However, in one conversation with Koresh, Byron Sage responds
to another long dissertation by Koresh. Sage says, ``That's garbage.''
Later in that same conversation, Sage says, ``No one in the FBI has ever
scoffed at your beliefs.'' \443\
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\443\ Negotiation transcripts, March 17, 1993.
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In their book about Waco, Tabor and Gallagher are critical of the
negotiations. They write, ``Koresh's interpretations went completely
over the heads of the FBI negotiators, who were understandably put off
by this approach.'' \444\ Despite the fact that the overwhelming
majority of David Koresh's communications involved intense and lengthy
dissertations on biblical text, the FBI refused to allow a religious
expert to engage David Koresh or to consult in negotiations.
---------------------------------------------------------------------------
\444\ Id.
---------------------------------------------------------------------------
Much of the criticism of negotiations centered on the fact that the
FBI never engaged Koresh or the Davidians in a discussion of theology.
Noesner said ``there are two consistent themes that you will hear from
every mental health expert that knows anything about crisis
intervention, crisis negotiation, and that is that you neither embrace
someone's belief system nor do you discount it.'' \445\ Some are
convinced that a prerequisite to successful negotiations with the
Davidians is a firm grasp of the religious doctrine on which they base
their beliefs.\446\ In hearings before the subcommittees, Arnold
testified that the FBI negotiators were ill prepared for productive
discourse with the Davidians, ``[The negotiators] were not able to
perceive the meaning of the religious language the Davidians were using.
They were not able to understand the actions the Davidians took. Had
they had knowledge of the religious faith of the Davidians, this story
could have ended in a much better and happier way.'' \447\ Others simply
suggested that negotiators should search out experts to grasp better the
subjects of the negotiations. As Representative Henry Hyde, chairman of
the Committee on the Judiciary, said, ``There is an unwillingness to
understand or believe that there are people in the world who are persons
of belief and they believe strange things by our standards. [H]ad the
understanding been these weren't hostages, these were willing members of
a religious group, and to get in there and to dissipate them would take
persuasion, argumentation from their frame of reference, not tear gas
and tanks.'' \448\ With at least a good background on the subject of
religion, particularly the religious dogma professed by the Davidians,
the negotiators could have better manipulated the conversations.
---------------------------------------------------------------------------
\445\ Hearings Part 2 at 325.
\446\ Nancy T. Ammerman, Waco, Federal Law Enforcement and Scholars
of Religion, in Armegeddon in Waco: Critical Perspectives on the Branch
Davidian Conflict 282, 282-283 (Stuart Wright ed., 1996). Ammerman
writes, ``Did [the FBI] not know that apocalyptic beliefs should be
taken seriously, that they were playing the role of the enemies of
Christ? Did they not know that any course of action that did not seem to
come from the Bible would be unacceptable to these students of
Scripture? I have yet to encounter a single sociologist or religious
studies scholar who has the slightest doubt that the strategies adopted
by the FBI were destined for tragic failure.'' Id.
\447\ Hearings Part 2 at 144-145.
\448\ Id. at 47-48.
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2. Others who contributed information
It is clear that all of the attention focused on Waco and the
standoff at Mount Carmel encouraged many people to contribute their
ideas to the negotiations. The method for processing this information is
central to discerning whether any valuable advice or data was omitted
or, inadvertently or intentionally, ignored. In this case, as in others,
the actions taken by the FBI depended largely upon the information used,
and to whom it was made available when key decisions were being made.
a. How much information was coming in?
It is clear that a great deal of unsolicited information was being
sent to Waco. In addition to people honestly offering assistance, a
variety of people came to Waco to express a variety of sentiments to
officials on site.\449\ This was in addition to the experts retained by
the FBI. As the Justice Department report suggests, ``The FBI also
received unsolicited advice and offers of assistance from many
individuals; not surprisingly, this input was rarely useful.'' The
report continues, ``A smaller number of offers came from individuals
lacking a firm grip on reality, such as people claiming to be God or
Jesus offering to `order' Koresh to leave the compound.''
---------------------------------------------------------------------------
\449\ Justice Department Report at 156. The report discusses the
among and type of information coming into Waco. ``The FBI also received
unsolicited advice and offers of assistance from many individuals; not
surprisingly, this input was rarely useful.'' For example, on March 16,
1993 a well-known rock band contacted the FBI and offered to perform
outside the Mount Carmel Residence, and to play a song that U.S.
helicopters broadcast at enemy troops to demoralize them during the
Vietnam war. On the other hand, the FBI received an unsolicited letter
from the Harvard Negotiation Project containing thoughtful and specific
suggestions to assist the negotiators in formulating a framework for
further negotiations with Koresh. A smaller number of offers came from
individuals lacking a firm grip on reality, such as people claiming to
be God or Jesus offering to ``order'' Koresh to leave the compound. One
person was arrested on his way to the compound brandishing a samurai
sword, which he said ``God had told him to deliver to Koresh.'' Id.
---------------------------------------------------------------------------
Negotiator Byron Sage recounted in a Justice Department interview
that ``an incredible number of people called the negotiators offering
help.\450\ [I] tried to field these offers early on, but then [I] farmed
it out to the behavioral science people to weed out the good stuff.''
\451\ Others indicate that information was indiscriminately delivered to
negotiators.\452\ According to Dr. Stone, ``all kinds of experts . . .
allegedly were consulted . . . and took it upon themselves to offer
unsolicited advice.'' Stone continues, ``the prevailing pattern in the
information flow during the crisis was for each separate expert to offer
the FBI an opinion.'' The problem, it seems, was too much
information.\453\
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\450\ All incidents investigated by the Department of Justice
contain interviews of those involved in the incident. This interview was
conducted in conjunction with the investigation of the incident at Waco.
\451\ U.S. Dept. of Justice, record of interview of Byron Sage by
Susan DeBusk (August 26, 1993).
\452\ Stone Report at 43.
\453\ Hearings Part 2 at 145. Tabor registers his sympathy for the
FBI in the fact that they were on information overload. He also suggest
some procedural way of compiling information and discerning the ``nuts
from the bolts.'' Id.
---------------------------------------------------------------------------
b. The method set up to communicate with people calling to
help
Many people called who were deemed ``lacking a firm grip on
reality.'' When asked about such contacts with agents and officials in
Waco, Chief Negotiator Gary Noesner said he knew nothing about them.
Offers for help, however, were referred to the consulting experts. The
experts analyzed the information provided or the assistance offered and
passed it along to the negotiators in the form of memoranda.\454\ Rarely
did these people talk to negotiators, themselves, and never were they
allowed to speak to the Davidians.
---------------------------------------------------------------------------
\454\ U.S. Dept. of Justice, record of interview with Byron Sage by
Susan DeBusk (August 26, 1993). In this interview, Sage recounted how he
got information from those offering assistance. In that interview, Sage
says, ``Many of the contacts with experts would be through the
behavioral science people rather than through the negotiators. The
negotiators would get the end result of their input from people like
Smerick, Young and Van Zandt.''
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Sage maintains that the theologian on whom he depended the most was
Glenn Hillburn, the chairman of the Baylor School of Religion. In
addition to his role as religious advisor to Sage, Hillburn ``provided .
. . his feeling as to the credibility and bona fides of people who
called in offering their help.'' \455\ In one instance, an offer of
assistance was made by the Harvard Negotiation Project.\456\ The letter
sent to Waco was written by Roger Fisher, director of the Harvard
Negotiation Project, and was based on an analysis of the situation that
was underway at the project and utilized the principles of negotiation
that the project taught every day. The proposal made in the letter to
Jamar included putting together ``a small team . . . as familiar as
possible with Koresh and the situation inside the residence'' that would
``find a potential `third party' and work urgently on putting together a
package that would be attractive to Koresh.'' The letter suggested that
the government allow ``the third party to come to Waco and make the
offer, which will inherently expire if not accepted before the third
party leaves Waco in two or three days.'' \457\ The advice that the
Harvard Negotiation Project offered was disregarded. Although the letter
is mentioned in the Justice Department report, there is little evidence
that the negotiators took any of that advice.
---------------------------------------------------------------------------
\455\ Id.
\456\ The Harvard Negotiation Project is an enterprise of Harvard
Law School that attempts to present alternatives to traditional
negotiation techniques.
\457\ Letter from the Harvard Negotiation Project to Jeffrey Jamar
(March 29, 1993).
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Despite a steady flow of information and advice, the FBI did not
make any serious attempt to evaluate and disseminate the suggestions
that came to its attention. The Justice Department maintains that it
kept ``meticulous'' \458\ track of the offers of assistance. It also
concedes that it did not need or accept help in many areas.\459\ Yet it
is difficult to understand why the offers of help from respected,
credible religious experts and experts in negotiations were rejected.
---------------------------------------------------------------------------
\458\ Justice Department Report at 156.
\459\ Id. at 156 ``Throughout the Waco standoff, the FBI
meticulously kept track of all unsolicited offers of assistance, and
followed up on those that seemed to promise any reasonable chance of
producing helpful information. There were certain areas of activity in
which the FBI did not seek outside help. For example, the FBI did not
request assistance from any outside law enforcement agencies in
performing any of its tactical operations; it did not request assistance
with negotiations, since the FBI's best negotiators were assigned to
Waco throughout the 51-day standoff, and it did not consult with outside
experts regarding the decision to play loud music and Tibetan Monk
chants over the loudspeakers to irritate those inside the residence.''
Id.
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d. the fbi's failure to follow its own expert's recommendations
1. What the FBI's own experts recommended
According to Stone, ``the FBI investigative support unit and trained
negotiators possessed the psychological/behavioral science expertise
they needed to deal with David Koresh and an unconventional group like
the Davidians.'' \460\ Among the many experts, the talent was
extraordinary and the amount of information they had to use was
enormous. It was not difficult for the experts to come to a consensus.
---------------------------------------------------------------------------
\460\ Stone Report at 12.
---------------------------------------------------------------------------
The clearest consensus among the FBI experts and others was not to
provoke the Davidians. The experts feared that any provocation could
lead Koresh to initiate the fiery end he predicted. FBI experts agreed
with this approach.\461\ As Stone writes in his separate evaluation, ``I
believe the FBI behavioral science experts had worked out a good
psychological understanding of Koresh's psychopathology. They knew it
would be a mistake to deal with him as though he were a con-man
pretending to religious beliefs so that he could exploit his
followers.'' \462\
---------------------------------------------------------------------------
\461\ Edward Dennis summarized the opinions of the experts as
follows:
On March 3, 1993 the behavioral experts wrote a joint memo
recommending a strategy of trying to work within the Davidians own
belief system to talk them out. They recommended acknowledging the
conspiracy against the Davidians and their right to defend themselves,
and creating an illusion that Koresh could win in court and in the press
and would not go to jail. On March 5 behavioral experts wrote a memo
advising that the negotiation strategy focus on insuring the safety of
the children and facilitating the peaceful surrender of the Davidians.
This memo recommended a de-escalation of tactical pressure because
movement of tactical personnel would validate Koresh's prophesy that his
followers must die defending their faith. As an alternative tactic, the
memo recommends that efforts be made to drive a wedge between Koresh and
his followers by convincing them that a battle is not inevitable.
Dennis Report at 49.
\462\ Stone Report at 13.
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Smerick coauthored six memoranda on David Koresh based on Koresh's
past behavior and listening to negotiations. In each of the early
memoranda, Smerick proposed that the FBI approach the Davidians with
caution and avoid provocation. Smerick said that the cautionary
memoranda were written expressly because ``the FBI commanders were
moving too rapidly toward a tactical solution, and were not allowing
adequate time for negotiations to work.'' \463\ In his final memorandum,
Smerick proposed ``'other measures' . . . because negotiations had met
with only limited success.'' \464\ As the Justice Department Report
maintains, ``those other measures included sporadically terminating and
reinstating of utilities; moving equipment and manpower suddenly;
downplaying the importance of Koresh in the daily press conferences;
controlling television and radio reception inside the compound; and
cutting off negotiations with Koresh.'' \465\ Although these suggested
measures are exactly the tactics the FBI used in Waco, Smerick suggests
that while the ``negotiators were building bonds . . . the tactical
group was undermining everything.'' \466\ Smerick continued, ``[e]very
time the negotiators were making progress the tactical people would undo
it.'' \467\
---------------------------------------------------------------------------
\463\ Justice Department Report at 182.
\464\ Id.
\465\ Id.
\466\ U.S. Dept. of Justice, record of interview of Peter Smerick
(August 24, 1993).
---------------------------------------------------------------------------
During the hearings before the subcommittees, Smerick was questioned
about this abrupt change in his advice; and whether senior Justice
Department officials pressured him to change his advice to match the
course of action preferred by the on-scene commanders. Smerick testified
that he felt ``no overt pressure'' \468\ to alter his memoranda. But he
said that he was aware that the FBI wanted different advice. Smerick
told the subcommittees:
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\468\ Hearings Part
