Dissenting Views

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


    The text of the majority report entitled ``Investigation into the 
Activities of Federal Law Enforcement Agencies Toward the Branch 
Davidians'' is based on 10 days of hearings (July 19-August 2, 1995) 
jointly held by the Committee on Government Reform and Oversight's 
Subcommittee on National Security, Criminal Justice, and International 
Affairs and the Committee on the Judiciary's Subcommittee on Crime. 
During those hearings, the committees heard testimony from over 90 
witnesses and viewed voluminous photographic, video and documentary 
exhibits concerning the events at Waco.
    Throughout those hearings, the minority repeatedly insisted that no 
new facts or evidence emerged as a result of this extensive 
investigation. The majority report proves that basic point.
    The text of the report agrees with recommendations and positions 
taken as a result of the 1993 Department of Justice and the 1993 
Department of the Treasury investigations of the Waco incident. The 
report agrees that the tragedy at Waco would not have occurred but for 
the criminal conduct and aberrational behavior of David Koresh. The 
report also confirms a number of other important points emphasized by 
the minority during the hearings: that there was probable cause to issue 
warrants to search the premises and arrest David Koresh; that the 
military assistance received by ATF did not violate Posse Comitatus; 
that planning and intelligence operations prior to the raid were 
inadequate; that the Branch Davidians started the fire on April 19, 
1993; that Koresh and his followers had ample time to leave the compound 
after the fire started; and that the amount of tear gas the FBI used was 
far below the quantities that would have been required to cause injury 
or death. These are not new discoveries revealed as a result of the 
majority's investigation, but previously known findings which the 
majority has finally accepted.
    While we accept those findings in the majority report that are 
largely duplicative of the recommendations contained in previous 
Department of Treasury and Department of Justice investigations, we 
reject the false assumptions and unfounded allegations raised by the 
majority's report. The report is fundamentally flawed in a number of 
important areas. In an effort to correct those flaws and provide clarity 
to facts obfuscated by the majority report, we in the minority file 
these Dissenting Views to address basic factual errors, resolve internal 
contradictions, meliorate certain deficiencies and express our 
disagreement with certain original recommendations made by the majority 
report. Additionally, we wish to express strong disagreement with the 
majority's unfair criticism of Treasury Secretary Bentsen and their call 
for the resignation of Attorney General Reno.
    The majority report suffers from several deficiencies. First, the 
findings reached are not supported by the hearing record or other 
evidence. The text of the report states that the Davidians started the 
fire, however the findings conclude that the evidence is not dispositive 
on the question of who started the fire.
    Second, the report is internally inconsistent. For example, while 
critical of the FBI for failing to consult those outside of its control 
during the negotiations, it then commends the FBI for allowing lawyers 
representing the Davidians to enter the compound and conduct several 
hours of discussions with their clients. Clearly, these attorneys were 
not controlled or directed by the FBI. Their efforts to end the standoff 
were discussed by the majority report.
    Third, the report omits important evidence from the hearings. At no 
point does the report discuss the allegations of child physical and 
sexual abuse perpetrated by David Koresh. Additionally, the report fails 
to mention the riveting testimony of Kiri Jewell who testified at the 
hearings concerning Koresh' sexual molestation of her when she was 10 
years old. Instead the report dismisses the criminal conduct of David 
Koresh by summarily stating the Koresh was not subject to congressional 
    Fourth, the report reflects a willingness to believe Koresh over 
Federal law enforcement officers and personnel. For instance, the report 
asserts that Koresh's lawyers negotiated a credible surrender agreement. 
However, Federal law enforcement personnel on the advice of psychiatric 
and linguistic experts determined that the ``agreement'' was a 
continuation of prior manipulative stalling tactics. The report ignores 
no fewer than four prior instances in which Koresh reneged on promises 
that he and his followers would leave the compound. Moreover, the report 
ignores that Koresh did not state a time certain for surrender and had 
not allowed anyone to leave the compound for 3 weeks prior to the 
``agreement'' or 5 days following the agreement.
    The majority report criticizes Secretary Bentsen for failing to take 
an active role in preraid planning but ignores testimony and evidence 
presented at the hearing which conclusively showed that under the 
structure that existed at the time, the ATF exercised independence in 
planning and implementation of enforcement actions. This structure 
existed under several administrations. Secretary Bentsen's post-Waco 
order changed the structure to require additional oversight by main 
    Additionally, the majority report calls for Attorney General Janet 
Reno's resignation because of her decision to allow the insertion of CS 
tear gas. Attorney General Reno stated during the hearings that the 
decision to use tear gas was a difficult one but all those consulted who 
had personal knowledge or professional expertise agreed that the use of 
tear gas was the only way to compel the Branch Davidians to leave the 
compound without use of force or loss of life. Evidence and testimony 
during the hearing clearly indicated that the CS tear gas was not 
direct, or proximate cause of the ignition or acceleration of the fire. 
Evidence conclusively found that the Branch Davidians started the fire. 
Therefore, the deaths of the Davidians who remained in the compound 
should not be laid at Attorney General Reno's feet. This finding of the 
majority squarely contradicts their finding that Koresh was the author 
of the events at Waco.

                     I. Committee Procedural Issues

    During and following the Waco Hearings, certain procedural issues 
arose which need to be addressed and remedied by the majority of this 
    Prior to the hearings, the majority conducted a series of interviews 
in Waco, TX. Apparently, these interviews involved surviving members of 
the Branch Davidians and other residents of Waco. The minority was not 
informed of these interviews, invited to participate or allowed to 
review interview notes. The minority first learned of these interviews 
from the majority report. During this pre-hearing phase, the minority 
was not allowed to participate in the formation of the document request 
to the Federal agencies involved. Moreover, contrary to the implications 
in the majority report, the majority of this committee did not willingly 
grant the witness requests of the minority. In fact, our early witness 
requests were summarily rebuffed. The minority of this committee was 
only able to obtain witnesses by working with the minority staff of the 
Judiciary Committee.
    During the hearing, at least two witnesses acknowledged under oath, 
that they were contacted by representatives of an outside interest group 
prior to their appearance before the panel. One witness testified that 
in at least one instance, an employee of the interest group identified 
herself as a congressional staffer. We believe that this raises serious 
questions of witness tampering by an outside group with congressional 
proceedings. During the hearings, we requested that the majority 
investigate whether this outside group was operating with the knowledge 
or at the behest of the majority staff. To date, the majority has 
refused further investigation of these instances of improper witness 
    After the hearings, these practices of exclusion continued. At the 
conclusion of the hearings, the majority conducted extensive 
investigations and interviews without the knowledge or participation of 
the minority. This fact did not come to light until the release of the 
    Finally, one year after the hearings nothing had changed. On July 
11, 1996, the majority released a summary of this report to the press. 
This press summary was substantially similar if not identical to the 
executive summary contained in the report and contained all 
recommendations made by the majority report. On July 12, 1996, Members 
and staff of the minority obtained a copy of the report.
    This pattern of exclusion of the minority members of this committee 
from the production of something that purports to be a committee 
document should not be allowed. This practice is a serious departure 
from prior practice and from the respect that members of this committee 
have held for each other in the past. It serves as dangerous precedent 
that should not continue.

                         II. Factual Background

    On February 28, 1993 agents from the Bureau of Alcohol, Tobacco and 
Firearms (ATF) attempted to serve an arrest warrant on David Koresh and 
a search warrant on the Branch Davidian compound outside of Waco, TX. 
While executing these lawful warrants, the agents were met with a hale 
of gunfire. ATF agents Conway C. LeBleu, Todd W. McKeehan, Robert J. 
Williams and Steven D. Willis died as a result of gunshot wounds 
inflicted during the ambush. In addition to those agents who were 
killed, 20 ATF agents were wounded by hostile fire emanating from the 
compound. After negotiating a cease fire with the Branch Davidians, the 
agents were allowed to remove the bodies of their fallen comrades.
    Within hours of the initial shooting, the Bureau of Alcohol, Tobacco 
and Firearms requested assistance from the Federal Bureau of 
Investigation's Hostage Rescue Team. The FBI arrived on the scene of the 
shooting within 24 hours. A 51-day standoff between Federal law 
enforcement agents and the Branch Davidians led by David Koresh 
followed. Between the time of their arrival and the tragic conclusion of 
the events, the FBI conducted several hundred hours of negotiations with 
Koresh and others within the Branch Davidian Compound. Despite these 
efforts, only 14 children and 21 adults left the compound as of March 
    Between March 23 and April 12, negotiations continued but no one 
left the compound. During that period, the FBI held a conversation with 
a 6-year-old girl who identified herself as Melissa Morrison. The FBI 
negotiator asked Melissa whether she would like to leave the compound. 
She replied in the affirmative. The FBI negotiator asked her why she did 
not leave. Her response was that she could not leave because ``David 
won't let me.'' Melissa died in the fire.
    On April 12, the FBI presented its tear gas proposal to Attorney 
General Reno. Between April 12 and April 17, the Attorney General 
conducted no fewer than eight meetings with military and civilian tear 
gas experts to debate the tear gas plan, advantages and disadvantages of 
using tear gas in a barricade situation, the properties of the tear gas 
chosen and the medical and scientific information concerning the 
toxicity and flammability of the type of tear gas proposed and the 
effects of tear gas on vulnerable populations such as children, the 
elderly and pregnant women. On April 17, the Attorney General approved 
the tear gas insertion plan and informed the President of her decision.
    On April 19, 1993 the Federal Bureau of Investigation began to 
insert tear gas via combat engineering vehicles into the Branch Davidian 
compound. However, instead of advising his followers to leave, David 
Koresh and other unknown members of the Branch Davidians spread highly 
flammable liquids throughout the compound and set fire to the entire 
building. Because of the poor construction of the building and the use 
of chemical accelerants, the entire compound was engulfed in flames and 
completely destroyed within 15 minutes.
    In the aftermath of the fire, the bodies of over 70 Branch Davidians 
were recovered. According to autopsy reports by the Tarrant County (TX) 
Coroner, 30 people died of asphyxiation due to smoke inhalation, 2 
people died of injuries resulting from blunt force trauma and 20 people, 
including David Koresh and a 20-month-old infant, died of gunshot wounds 
inflicted at close range by themselves or others within the compound. Of 
the nine Branch Davidians who survived the fire, seven escaped through 
openings in the walls and windows of the compound created by the combat 
engineering vehicles. The shoes and clothing of several of those who 
escaped contained concentrations of gasoline, kerosene and other 
flammable liquids.
    After the siege, the Texas Rangers conducted an extensive search of 
the Branch Davidian compound. They discovered 48 illegal machine guns, 
seven illegal explosives of various types, nine illegal silencers and 
over 200,000 rounds of ammunition.
    A series of indictments were returned against 10 Branch Davidians 
between March 30 and July 20, 1993. The indictments contained charges 
relating to the ambush of ATF officers on February 28 and various 
firearms violations committed between February 1992 and February 1993. 
On August 6, 1993, the U.S. Attorney's office in Waco obtained another 
superseding indictment from the grand jury combining all previous 
indictments into one and added two additional defendants.
    On September 9, 1993, Kathryn Schroeder entered a guilty plea to one 
count of armed resistance of a Federal law enforcement officer. As a 
part of her plea agreement, she agreed to testify against the other 11 
defendants. A Texas jury convicted 8 of the 11 Branch Davidian 
defendants of various firearm offenses. The convicted defendants 
received sentences ranging from 3 to 40 years with 7 of the 8 defendants 
serving sentences of 40 years imprisonment.
    Several congressional hearings were held which solely or 
predominantly addressed the events at the Branch Davidian compound. The 
President instructed the Department of the Treasury to conduct a review 
of the actions of the Bureau of Alcohol, Tobacco and Firearms at Waco. 
That report, entitled ``Report of the ATF Investigation of Vernon Wayne 
Howell, a.k.a. David Koresh'' was released to the public on September 
30, 1993. Additionally, the President ordered the Department of Justice 
to conduct a review of the Federal Bureau of Investigation's actions at 
Waco. That report, entitled ``Report to the Deputy Attorney General on 
the Events at Waco, TX, February 28 to April 19, 1993'' was released to 
the public on October 8, 1993.
    Two years after the conclusion of the events at Waco, the Committee 
on Government Reform and Oversight, Subcommittee on National Security, 
International Affairs, and Criminal Justice and the Committee on 
Judiciary, Subcommittee on Crime held extensive hearings on ``Matters 
involving the Branch Davidians at Waco, TX.'' These hearings began on 
July 19 and ended on August 2, 1995. During those hearings, the 
committees heard testimony from over 90 witnesses and viewed voluminous 
photographic, video and documentary exhibits concerning the events at 
Waco. Despite the comprehensive nature of this examination, we believe 
that no new facts emerged. However, we believe that there are certain 
indisputable conclusions which can be reached by reasonable minds 
regarding the events that transpired at the Branch Davidian complex in 
Waco, TX between February 28, 1993 and April 19, 1993.

         III. David Koresh was the Author of the Events at WACO

    We agree with the majority's conclusion that the criminal conduct 
and aberrational behavior of David Koresh and other Branch Davidians led 
to the tragedies that occurred in Waco. We share their judgment that 
David Koresh bore the ultimate responsibility for the deaths of 4 
Federal law enforcement agents and 80 of his Branch Davidian followers. 
Additionally, we note that Koresh should also be held responsible for 
the serious gunshot and shrapnel wounds of 20 Federal law enforcement 
officers and the nonfirearm associated injuries suffered by 11 Federal 

       IV. The Arrest and Search Warrants Were Legally Sufficient

    We agree with the majority's finding that the ATF had probable cause 
to obtain an arrest warrant for David Koresh and search warrants for the 
Branch Davidian compound and the facility known as the ``Mag Bag.'' 
However, we disagree with the majority's assertion that the affidavit 
filed in support of the warrant contained false statements.
    The ATF began its investigation of Koresh after receiving complaints 
from the McLennan County (TX) Sheriff's Department in May 1992. A deputy 
sheriff asked ATF to investigate following a report from a concerned 
United Parcel Service driver. The driver relayed his concern about a 
recent delivery. In delivering the package, the container in which it 
was shipped broke open and revealed suspicious materials including 
grenade casings and a substantial quantity of black powder. The driver 
relayed that this was not the first package he had delivered to the 
compound that caused him concern. Following this conversation, the 
deputy learned from neighbors of the compound and other members of the 
community that the residents of the compound were constructing what 
appeared to be a barracks-type cinder block structure; had buried a 
school bus to serve as both a firing range and a bunker; and apparently 
were stockpiling arms and other weapons.
    Before opening a formal investigation, the ATF agent spoke with 
local officials, interviewed gun dealers and searched national firearms 
registries to determine if any resident of the compound was licensed as 
a firearms manufacturer or dealer. Additionally, the agent searched the 
national registry to determine if any resident of the compound was 
licensed to own a fully automatic weapon. These searches revealed that 
no resident of the compound had registered to manufacture or sell 
weapons. Moreover, no resident of the compound was licensed to own a 
fully automatic weapon. During these discussions, the ATF agent learned 
of the delivery of grenade casings, black powder and large shipments of 
    While initially focusing on the paper trail generated by the weapons 
and explosives purchased by Koresh and his followers, the agent 
determined that an Arms company had recently shipped a substantial 
quantity of AR-15 parts to the ``Mag Bag.'' Although not within the 
compound, the ``Mag Bag'' was an automotive repair facility operated by 
the Branch Davidians which was situated less than a mile away from the 
compound, on the grounds owned by the Branch Davidians. He also learned 
that a gun dealer had sold more than a dozen AR-15 lower receivers to 
Koresh a few months earlier. As the agent knew from previous 
investigations, someone with access to metal milling machines and lathes 
and the knowledge to use them could readily convert AR-15 semiautomatic 
rifles into fully automatic machine guns (similar to M-16 machine guns), 
by obtaining legally available parts. Additionally, the agent learned 
that 36 weapons had been sold to Vernon Howell (a.k.a. David Koresh) and 
additional weapons had been sold to other persons the agent knew to 
reside on the Branch Davidian compound. Moreover, the agent learned that 
approximately 65 AR-15 lower receivers reflected in a local gun dealers 
records were not present in the inventory. When questioned about this 
discrepancy, the dealer claimed that the firearms were being stored at 
the house of David Koresh.
    The agent obtained further evidence by speaking with one of Koresh's 
neighbors who had served in an army artillery unit. The neighbor 
reported that since 1992 he had frequently heard spurts of weapons fire 
coming from the compound at night, including .50 caliber and automatic 
weapons fire. In mid-November a deputy sheriff reported that while on 
patrol a few days earlier he had heard a loud explosion at the compound 
accompanied by large clouds of gray smoke.
    In an attempt to gain additional information about the manufacture 
and possession of illegal weapons at the compound, the agent spoke with 
several former followers. They confirmed seeing numerous weapons 
including grenades, pump shotguns, and AK-47 machine guns. Additionally, 
they provided information on the extent that Koresh dominated the lives 
of the residents of the compound. Branch Davidians had not only 
surrendered monetary assets to Koresh but allowed him to administer 
corporal punishment to children as young as 8 months old which often led 
to bleeding and severe bruising; permitted him to dictate the 
dissolution of marriages; empowered him to forbid married couples to 
engage in sexual relations; and authorized him to engage in sexual 
relations with all female members of the Davidians including girls as 
young as 10 years old.
    In January 1993, the agent spoke with David Block, who had been a 
Branch Davidian from 1981 through 1992. Block relayed that he had seen 
two other Branch Davidians using a metal milling machine and metal lathe 
to produce weapons and which can be used to convert legal weapons to 
illegal automatic weapons. Block described an arsenal that included .50 
caliber rifles, AR-15s AK-47s, several 9mm pistols and three 
    \1\ A ``streetsweeper'' is a 12 gauge, 12 shot, shotgun with a 
spring driven drum magazine and folding buttstock. Each time the trigger 
is released after firing a shot, the magazine rotates to position the 
next shot for firing.
    The findings of this extensive investigation formed the basis of the 
agent's statements contained in the affidavit in support of an arrest 
warrant for Koresh and a search warrant for the compound and the ``Mag 
Bag.'' This affidavit was presented by an Assistant U.S. Attorney to a 
Federal Magistrate who determined that the information contained therein 
was credible and sufficiently current to issue warrants.
    Therefore, while assertions contained in the underlying affidavits 
concerning the physical and sexual abuse of children may have been 
beyond the scope of the ATF's jurisdiction, it is abundantly clear that 
probable cause existed to obtain an arrest warrant for David Koresh and 
search warrants for the Mount Carmel compound and the facility known as 
the ``Mag Bag.''
    Any doubts Koresh or others may have had about the validity of the 
warrants should have been expressed through lawful means. However, 
instead of challenging the validity of the warrants through the judicial 
system, Koresh chose to instruct his followers to open fire on Federal 
agents in the lawful execution of their duties
    It should be remembered that at the criminal trial of the 11 Branch 
Davidians, none of the defense lawyers challenged the validity of the 
warrants. A successful challenge by any of the defense attorneys at 
trial would have excluded evidence of the firearms and would have been a 
major step in acquitting the defendants of the firearms violations. 
Therefore, it seems incomprehensible that had such a challenge been 
possible, it would not have been mounted by one of the many able 
attorneys representing the 11 Branch Davidians. However, no attorney 
questioned the validity of the warrants.
    Additionally, it should be noted that evidence obtained from the 
scene after the fire, conclusively proved that Koresh amassed a huge 
cache of weapons and materials to manufacture illegal weapons. Although 
much evidence may have been destroyed by the April 19 fire set by the 
Davidians, at least 47 fully automatic weapons, which are illegal under 
Federal law, were recovered along with seven illegal explosives, several 
grenade casings, nine illegal silencers and 200,000 rounds of 
    In its attack on the validity of the warrants, the majority does not 
present any facts that would undermine the integrity of the core 
paragraphs of the ATF affidavits establishing probable cause. Instead of 
providing testimonial or documentary evidence to challenge the validity 
of the warrants, the majority raises the unsupportable implication that 
a Federal law enforcement officer made false statements in securing the 
warrants. Such an unwarranted and unsupported attack on the credibility 
of a Federal law enforcement officer is simply irresponsible.

                 V. Accelerated Service of the Warrants

    We disagree with the majority's assertion that there was no 
compelling reason to serve warrants on February 28. After a year long 
investigation the ATF had probable cause to believe that Koresh had 
amassed a substantial cache of illegal weapons and materials necessary 
to manufacture additional illegal weapons. While the particular date is 
not significant, it would have been extremely imprudent to wait long 
enough for him to amass, manufacture and potentially distribute 
additional illegal weapons. Additionally, we should note that the 
original raid was planned for March 1. However, on February 27, a local 
newspaper began a highly critical seven-part series of articles focusing 
on Koresh and the Branch Davidians. The series detailed several 
allegations against Koresh of child physical and sexual abuse which 
could have potentially exposed him to serious State criminal charges. 
Therefore, there was reason to believe that Koresh would expect a 
heightened interest from State or Federal authorities following the 
conclusion of the series and may have destroyed evidence of the illegal 
weapons in anticipation of a search. The date of the raid was moved from 
March 1 to February 28.

         VI. Military Assistance Did Not Violate Posse Comitatus

    We agree with the majority's conclusion that Posse Comitatus was not 
violated and share their concerns over the implementation of formal 
guidelines and criteria in the nonreimbursable use of Department of 
Defense resources in drug cases. However, we are concerned that the 
implementation of such a litmus test could result in the denial of 
needed assistance in the fight against the importation, production, 
distribution and use of illegal drugs. Therefore, although we understand 
this concern, we cannot support a recommendation for such guidelines and 
criteria when there is no objective evidence to believe that the 
military has failed in its role to accurately and appropriately gage the 
need of domestic law enforcement agencies for nonreimbursable 
assistance. However, it would be appropriate and would not hamper the 
fight against illegal drugs if the Department of Defense, the National 
Guard and Federal law enforcement agencies developed operational 
parameters for determining when a drug nexus is sufficient to justify 
nonreimbursable assistance.
    Posse comitatus is the statute that limits military participation in 
civilian law enforcement. Military personnel may provide training to 
Federal, State and local civilians law enforcement officials, as long as 
it is not ``large scale or elaborate.'' Such assistance may not involve 
DOD personnel in a direct role in law enforcement operations, except in 
specific and narrowly drawn circumstances.
    The Department of Defense provided minor nonreimbursable assistance 
to the ATF in connection with the events at Waco. Under 10 U.S.C. 371 
and 32 U.S.C. 112, the Secretary of Defense is authorized to provide 
military support to law enforcement agencies engaged in counter drug 
operations. The Secretary of Defense is authorized to pay for the 
support pursuant to Section 1004 of P.L. 101-510, Section 1088 of P.L. 
102-190, and Section 1041 of P.L. 102-484. If a drug nexus does not 
exist, the Economy Act requires that as a general matter, reimbursement 
is required when equipment or services are provided to agencies outside 
the Department of Defense. An exception may be made if there is some 
training value to the DOD personnel involved.
    In the planning stages of the raid, the ATF requested Special Forces 
assistance from the Department of Defense. This request was forwarded 
through Operation Alliance and Joint Task Force 6. The initial request 
raised legal questions with Special Forces attorneys regarding the 
permissible scope of assistance. Specifically, Special Forces Attorneys 
were concerned with the proposal for DoD to review the ATF raid plan and 
perform on-site medical emergency services. Acceding to such a request 
would have clearly violated the Posse Comitatus Act's mandate 
prohibiting the military's ``participation'' in civilian law enforcement 
activities. Therefore, the initial request was significantly scaled back 
and limited to the facilitation of ATF training. The military did not 
offer any training involving the specific details of the raid plan or 
any advice concerning the accomplishment of the mission. Special forces 
provided assistance limited to facilitating ATF training at Fort Hood. 
This included helping to construct models of the doors and windows of 
the compound; creating a schematic prototype of the compound's exterior; 
operating firing ranges for weapons practice and providing limited 
training in emergency medial assistance. Additionally, it should be 
noted that there is no evidence to suggest that Department of Defense 
personnel were present at the time of the raid or at any time during the 
    Federal courts have concluded that the National Guard is a State 
force which is not subject to the restrictions of the Posse Comitatus 
Act, except when called into Federal service, (United States v. Benish, 
5 F.3d 20 (1993). While in State militia status, the range of 
permissible activities are governed by the laws and constitutions of the 
respective States. However, it is possible for a National Guard unit to 
become a Federal law enforcement entity. A State National Guard Unit is 
``federalized'' when it is called into service by the President to 
suppress domestic violence or insurrection against a State government or 
the authority of the United States (10 U.S.C. 331-333). When a State 
guard unit is ``federalized,'' law enforcement actions taken pursuant to 
that status are governed by the provisions of the Posse Comitatus Act.
    The Texas and Alabama Air National Guard units provided pre-raid 
assistance by conducting aerial reconnaissance to photograph the 
compound. They conducted six flights over the compound and the facility 
known as the ``Mag Bag'' from January 6 through February 25, 1993. In 
addition to the reconnaissance flights, the Texas National Guard 
supplied three helicopters for training exercises on February 27 and for 
the raid on the following day.
    In sum, there is no evidence to suggest that the Posse Comitatus Act 
was violated by the Department of Defense. Additionally, the National 
Guard units utilized by the ATF were not in a ``federalized'' status and 
therefore were not subject to the proscriptions of the act.

VII. Despite Inadequate Intelligence Operations, ATF did not Prematurely 
                         Reject the Siege Option

    We disagree with the majority's findings that the primary reason 
that the dynamic entry route was chosen was because ATF did not have the 
experience, negotiators or capability to conduct a siege of any 
significant duration.
    Once ATF agents concluded that there was probable cause to obtain 
warrants to search the premises and arrest Koresh, attention turned to 
the execution of those warrants. Three options were considered (1) 
arrest Koresh away from the compound and then serve the warrants; (2) 
place the compound under siege and (3) serve the warrants by ``dynamic 
entry or raid.''
    The first option to arrest Koresh away from the compound followed by 
a subsequent service of warrants was rejected after careful 
consideration. Contrary to the majority's assertion, the ATF explored 
the possibility of arresting Koresh away from the compound. However, 
there are two problems with this assertion. The first problem is that it 
ignores the fact that a lawful search warrant had to be served for the 
premises. There is no reason to believe that the Davidians in the 
compound would not have reacted in the same manner had the search 
warrant been served without Koresh on the premises or attempted to 
destroy evidence if time elapsed between Koresh's arrest and the 
execution of the search warrant. Second, as of February 1993 the ATF had 
conducted several hundred raids of this kind. There had only been one 
case involving prolonged armed resistance. Moreover, Koresh had previous 
encounters with the State officials, police authorities and the judicial 
system. During these previous encounters, Koresh did not react violently 
to searches or service of process. Therefore, neither the agency's 
history nor Koresh's personal history yielded any information that would 
tend to indicate a violent reaction. It is pure speculation for the 
majority to argue that Koresh could have been arrested away from the 
    As acknowledged in the Treasury report, ATF failed to collect 
sufficient information to determine whether an off-premises arrest of 
Koresh could have been achieved. The ATF raid planners made serious 
mistakes in the intelligence gathering operations conducted prior to the 
raid. Successful intelligence operations require the development of 
adequate and accurate information. That information must be distributed 
to persons in the organizational hierarchy who are able to recognize the 
meaning and limitations of that information.
    On January 11, 1993, the ATF began an undercover operation in a 
house across the road from the Branch Davidian compound. The agents 
involved were given the cover of being students at a local technical 
college. However, from the beginning several neighbors became suspicious 
of the their activities because the agents appeared too old to attend 
the college and the cars they drove were too new to belong to students. 
However, even if the ``cover stories'' used by the agents had been 
successful, the operations of the undercover investigation itself were 
abysmal. They failed to keep accurate logs and failed to turn over the 
available logs to raid planners. However, it should be noted that the 
agents were given little if any meaningful direction from the raid 
planners (Sarabyn and Chojnacki). Therefore, without adequate guidance 
from their superiors, the agents were almost destined to fail. Although 
Agent Rodrigues obtained a good deal of relevant and reliable 
information about Koresh and the Davidians, those agents charged with 
the responsibility of surveillance were poorly served by raid planners 
Sarabyn and Chojanacki.
    Because of this inadequate supervision, the surveillance operation 
was not able to determine the frequency of Koresh's departures from the 
compound, the routine activities within the compound or other 
information that might have been useful in deciding the optimal time, 
place and manner to effect service of the warrants.
    However, based on the scant information possessed at the time, the 
agents concluded that such an arrest was not a viable alternative. They 
knew that Koresh's infrequent departures from the compound were 
unpredictable. A social worker who had visited the compound to 
investigate the health and safety of children present, had informed the 
case agent that she thought Koresh did not leave the compound very 
often. On February 17, Koresh told the undercover agent that he did not 
often leave the compound. Further, it should be noted that after April 
19, all reports of Koresh having been seen off the compound were 
thoroughly investigated by the Treasury Review. The reviewers were able 
to document only isolated trips off the compound, most occurring long 
before the time of the raid.
    Additionally, it should be noted that prior to the hearing, majority 
subcommittee staff spent several days in Waco to gather facts and 
interview prospective witnesses. It should be noted that in hearings 
that lasted 10 days and had over 90 witnesses, no witnesses who were not 
members of the Branch Davidians or lawyers for the Branch Davidians were 
produced to testify supporting the majority's present contention that 
Koresh left the compound with sufficient frequency to affect an arrest 
away from the premises.
    As noted in the Treasury report and by several witnesses, a siege 
was rejected because of a belief that any protracted encounter with a 
heavily armed and philosophically isolated and insular group would not 
be likely to produce an optimal result. The majority incorrectly 
concludes that the dynamic entry approach was prematurely abandoned. The 
decision to pursue a dynamic entry was made during a meeting that took 
place between January 27-29, 1993 after surveillance and undercover 
operations had begun. Prior to that meeting a siege option was under 
active consideration as was the possibility of luring Koresh off the 
compound. The Treasury report noted that the surveillance operations 
could have been better coordinated and intelligence better utilized in 
making this tactical decision. While the Treasury report concluded that 
the process used to decide that a dynamic entry should be undertaken was 
flawed, a siege option presented its own risks of failure. Four of the 
five independent reviewers who addressed the issue found that the 
dynamic entry plan could have been successful if surprise had not been 

VIII. Treasury Department Officials Should Have Taken a More Active Role 
                            in Raid Planning

    We disagree with the majority's assertion that officials at the 
Treasury Department should have taken a more active role in pre-raid 
planning. The majority seems to forget that prior to President Clinton 
and Secretary Bentsen's order, the Bureau of Alcohol, Tobacco and 
Firearms exercised independence in planning and implementation of 
enforcement actions. Prior to this failed raid, there was no practice, 
history or reason to believe that additional oversight was necessary.
    The Treasury Secretary is responsible for the actions of over 
165,000 people and numerous bureaus and offices. During his first month 
in office, Secretary Bentsen relied on the Department's existing 
organizational and operational structure. This structure had been used 
by the previous Republican and Democratic administrations. In the 
enforcement area, this organizational structure included a chain of 
command from the law enforcement bureau head through the Assistant 
Secretary of the Treasury for Enforcement to the Deputy Secretary and 
then to the Secretary of the Treasury. This structure placed 
responsibility on the law enforcement bureau head for bringing 
significant matters to the attention of his or her immediate supervisor. 
It is unfair, inaccurate and irresponsible to castigate Secretary 
Bentsen for the adoption of an organizational structure and operational 
approach that had been in place for years.
    Under the structure that existed at that time, then ATF Director 
Steven Higgins' immediate supervisor was Deputy Assistant Secretary John 
Simpson, a career civil servant who had served at Treasury for many 
years. Mr. Simpson was carrying out the duties of the Assistant 
Secretary for Enforcement, pending the confirmation of an Assistant 
Secretary for Enforcement designee Ronald Noble. Having been ATF's 
Director for approximately 10 years, Mr. Higgins was very familiar with 
the reporting process.
    The suggestion that a meeting between Secretary Bentsen and ATF 
Director Higgins would have led to earlier notification of ATF's planned 
raid of the Branch Davidian compound is pure conjecture. In fact 
Director Higgins did not tell his immediate supervisor in Treasury of 
the planned raid until 2 days before its planned execution.

IX. The Raid Should Have Been Aborted When the Undercover Agent Reported 
              That Koresh Knew the Raid Was About to Occur

    The majority report errs in concluding that Treasury officials 
failed to clearly communicate the conditions under which the raid was to 
be aborted. In fact, the Treasury Report and ATF Director Higgins' 
testimony before Congress on several occasions made it clear that the 
ATF knew it was supposed to call off the raid if Koresh learned that the 
ATF had planned a law enforcement operation against them. Director 
Higgins never questioned the clarity of his message from the Treasury 
Department. He testified that he told his subordinates if anything 
looked unusual, the raid should be called off. Consistent with the ATF's 
plan, Agent Rodrigues clearly communicated Koresh's awareness of an 
impending ATF law enforcement operation to his field supervisors. 
Unfortunately, Mr. Sarabyn and Chojnacki failed to heed this clearly 
communicated warning. All six of the independent tactical operations 
experts who analyzed the ATF's failed raid concluded that based on Mr. 
Rodrigues' information, the raid commanders should have called off the 
    We concur with the majority's finding that despite their contrary 
testimony before this committee, evidence clearly shows that Agents-in-
Charge Sarabyn and Chojnacki understood yet consciously chose to 
disregard warnings by Undercover Agent Rodrigues on the morning of the 
raid. Rodrigues advised Sarabyn and Chojnacki that the ATF's operations 
had been compromised and the element of surprise had been lost. The most 
significant mistake was the decision of the on-site raid commander to 
proceed after he had been informed by an undercover agent that Koresh 
was aware that a raid was about to occur. This error in judgment allowed 
Koresh to have an estimated 30-45 minute preparation time prior to the 
arrival of the agents. Koresh used this opportunity to arm himself and 
his followers. Despite the majority's assertions to the contrary, 
Treasury acknowledged in its report that the raid commander was 
questioned by the Washington commanders and knew or should have known 
that the raid should not have proceeded if secrecy or surprise had been 
lost or compromised.

     X. The FBI Negotiations and Tactical Operations Were Sometimes 

    The Department of Justice has acknowledged that there could have 
been better coordination and communication between the officials 
responsible for tactical decision and the negotiators. Alternating 
tactics of negotiating, granting demands and then using tactical 
operations such as cutting off electricity to punish Koresh for reneging 
on agreements, may have allowed Koresh to increase his hold on his 
    In an effort to improve coordination and communication between 
negotiators and tactical command in the future, the Department of 
Justice has created that Critical Incident Response Group. As a part of 
this team, negotiators and tactical personnel train together to 
facilitate improved coordination of operations.
    However, the majority's main criticism of the FBI involves its 
alleged reluctance to use outside experts. This criticism is not valid. 
Following the suggestions of behavioral experts, FBI negotiators 
repeatedly stressed to Koresh that if he left the compound, he would 
have every opportunity to spread his message to a worldwide audience, 
that he would be presumed innocent of any wrongdoing with respect to the 
ATF raid, and that the judicial process would provide him with an 
opportunity to tell his side of the conflict. The FBI negotiated with 
Koresh for 51 days. During that course of time, over 36 demands by the 
Davidians were documented and granted by the FBI. Contrary to the 
majority's assertion, there is no indication that FBI negotiators were 
adversely affected by physical or emotional fatigue.
    We disagree with the majority's assertions that on the 46th day of 
the siege, the FBI should have believed the representations of Koresh's 
attorney who relayed Koresh's representation that he and his followers 
would leave the compound if Koresh were allowed to write his exposition 
on the Seven Seals of the Biblical Book of Revelations. Early in the 
siege, Koresh was allowed to speak to religious scholars concerning his 
interpretation. In response to a promise to surrender, an audiotape 
containing his interpretation of the First Seal was played on a radio 
broadcast. However, Koresh did not surrender at that time. FBI 
behavioralist Murray Miron believed that this latest attempt was merely 
another stalling tactic. Therefore, based on his prior behavior and 
manipulative personality, it was not unreasonable for negotiators to 
conclude that Koresh would not honor this latest promise. We would note 
that had Koresh been interested in surrendering to authorities, he could 
have done so at any time during the 51-day siege. During the same 
period, 37 of his followers surrendered and called into the compound to 
inform Koresh and others that they were being treated well and had not 
been hurt. Therefore, whatever compelled Koresh to remain in the 
compound and prevented other followers from leaving was not something 
that a deal involving Koresh's composition of the written exposition of 
his religious tenets would have resolved.

 XI. Law Enforcement Officers Could Benefit From Future Use of Outside 
                  Behavioral and Psychological Experts

    We disagree with the majority's assertion that the FBI should have 
developed a thorough understanding of the religious tenets of the 
Davidians. During the course of the negotiations, the FBI attempted this 
approach and abandoned it because it became clear that the tenets were 
based on Koresh's personal thoughts and rapidly changed to suit the 
occasion. Therefore, this would not only have been futile but would have 
pushed back the time of the service of the warrants thereby allowing 
Koresh to amass even more illegal weapons.
    We disagree with the majority assertion that the FBI negotiators did 
not appear to recognize the potential benefit of using religious experts 
in working with Koresh. We refer the majority to the Department of 
Justice report which listed the opinions of independent religious 
experts and FBI behavioral experts consulted during the siege. The FBI 
solicited and received input from various experts in many fields 
including psychology, psychiatry, psycho linguistics, religion and 
theology, cult theory and negotiation techniques. Religious experts and 
theologians consulted by the FBI included Dr. Philip Arnold of the 
Reunion Institute; Dr. Bill Austin, chaplain, Baylor University; Jeriel 
Bingham, vice president, Davidian Seventh Day Adventist Association; 
Reverend Trevor Delafield, Seventh Day Adventist Church; Dr. Robert 
Wallace and Dr. John Fredericks, Lighthouse Mission; Dr. Michael Haynes, 
Doctor of Theology and Psychology and Dr. Glenn Hilburn, Dean, 
Department of Religion, Baylor University. Additionally, the majority of 
those experts concluded that Koresh was manipulative and likely to 
deceive. All the experts agreed that Koresh would not leave the compound 
voluntarily. Therefore the FBI negotiators tactics which focused on 
Koresh as a manipulative and deceitful individual were precisely in 
accord with the viewpoint of the religious experts and psychological 
experts and with the experience of those negotiators who spent over 400 
hours talking to Koresh and his followers.

         XII. The Use of Tear Gas Was Unfortunate But Necessary

    The majority report suggests that the decision to use gas was not 
the only option available to compel the Branch Davidians to leave the 
compound. In support of their theory that additional time would have 
yielded a nonviolent surrender, the majority report points to the 
release of 21 children between February 28 and March 3 as an indication 
that continued negotiations would have eventually secured the release of 
the remaining 80 adults and children within the compound. They argue 
that other options including expansion of and continuation of the 
negotiation strategy, waiting for the depletion of food and water 
supplies, or waiting for Koresh to complete his written exposition on 
the meaning of the Biblical Seven Seals prophesy were prematurely 
rejected in an effort to end the confrontation.
    However, after March 23, additional releases had not been obtained. 
Koresh repeatedly reneged following the FBI's performance of agreed upon 
terms. Repeatedly, Koresh would explain his decision to remain in the 
compound by saying that God had not yet told him it was time to leave. 
Additionally, it should be noted that the ``regular'' conditions within 
the compounds were austere (no running water or plumbing) and there was 
a vast supply of military style MRE's (meals-ready to eat) and an 
artesian well with water storage tank housed within the compound.
    Because the FBI decided not to fire any shots during the standoff, 
the Davidians walked outside of the building on several occasions to 
smoke cigarettes, empty chamber pots, feed chickens and gather water 
from rain water runoff. Finally, the large amount of firearms and 
ammunition (200,000 rounds) found within the compound, and the gathering 
of other interested and potentially dangerous individuals (para-military 
and Militia groups) contributed to their concern about the continued 
degradation of the situation and their ability to adequately secure the 
perimeter of the compound.
    In fact, during the standoff two people, not people previously 
affiliated with the Davidians, infiltrated the perimeter and entered the 
compound. The FBI was concerned that failing to end the standoff would 
allow others (particularly para-military militia groups) who had begun 
to descend upon the compound to enter the perimeter. Threats posed by 
gathering militia and para-military groups in the area increased 
security problems and underscored the need for a quick resolution to the 
situation. There was a genuine concern as to whether these groups had 
gathered as observers or sought to engage in the standoff.
    On April 12, the FBI presented its tear gas plan to Attorney General 
Reno. Over the ensuing days, several meetings were held to debate the 
tear gas plan, the properties of the gas chosen and the effects of gas 
on vulnerable populations such as pregnant women and children. Between 
the initial presentation of the plan on April 12 and the Attorney 
General's April 17 decision to use tear gas, Reno attended no fewer than 
eight meetings to discuss the tear gas option. Those meetings were 
attended by military and tactical experts who briefed the Attorney 
General on the advantages and disadvantages of the use of tear gas in a 
barricade situation as well as the available medical and scientific 
information concerning the toxicity and flammability of CS tear gas.
    CS tear gas is a common riot control agent used in the United States 
and Europe. The purpose of tear gas is to cause irritation of the eyes, 
skin and respiratory system sufficient to encourage an individual to 
leave the premises or any open area. CS is considered the least toxic 
agent in the family of chemical tear gas irritants. In order to reach a 
level which would be lethal to fifty per cent of the population, CS must 
be in concentrations of 25-150 thousand milligrams per minute, cubed. 
The CS gas used at the Davidian compound was significantly less 
concentrated than the lethal level. The CS gas used was in a 
concentration which would only reach 16,000 milligrams per minute 
(cubed) if all of the gas used had been released at the same time, in a 
single closed room and the residents of that room had been exposed 
continuously for 10 minutes. At Waco, CS tear gas was released 
throughout different areas of the building while openings were created 
in the windows and walls. The CS gas was inserted for a total of 5 
minutes over a 6-hour period. A total of twenty CS canisters were 
deployed on April 19. Additionally, several commentators discuss the 
fact that the wind velocity reached 35 knots during the tear gas 
delivery. Therefore, given the amount of tear gas used, the presence of 
high winds, building ventilation and the delivery of gas to different 
areas of the compound, it is highly unlikely that anything close to the 
fifty percent lethality rate was reached.
    There are no documented cases in which the use of CS gas caused 
death. Reports that Amnesty International linked use of the gas to 
deaths of Palestinians in the occupied territories, is an extremely 
biased reading of the report. Released in June 1988, the report 
discussed the use of two kinds of tear gas, CS and CN. CN gas has proven 
to be lethal in closed quarters. The overwhelming majority of evidence 
on ill-effects of CS was anecdotal. Medical care had not been sought or 
documented. Moreover, because of religious prohibitions autopsies had 
not been performed. Therefore, there is no reliable scientific data 
which would lead to the conclusion that CS alone was implicated in any 
of the deaths. As Physicians for Human Rights found when visiting the 
occupied territories ``we could not confirm the reports of deaths from 
tear gas inhalations.''
    The Himsworth Report, issued by the British Government, found that 
there is no evidence of any special sensitivity of the elderly, children 
or pregnant women. Additionally, the Himsworth Commission chronicled the 
effect of CS gas exposure on one infant and found that the child 
recovered rapidly after removal from the area affected by CS tear gas. 
This report was supported by a report which appeared in a Medical 
journal. The author not only set forth a treatment protocol for children 
exposed to CS tear gas but noted that full recovery was highly likely.
    Moreover, the majority report contends that the presence of CS gas 
may have acted as an accelerant during the fire. That is unlikely. While 
CS is combustible (it will burn if ignited, much like paper), it is not 
a chemical accelerant or a flammable agent. Additionally, the method of 
delivery or the compounds in which the CS particulate was contained 
(methylene chloride and carbon dioxide) will not burn and will actually 
inhibit fire ignition.
    The original CS. insertion plan required that the tear gas be 
inserted by CEV's over a course of 2 to 3 days. The theory was that the 
gas insertion over several days and in different parts of the compound 
would gradually render the entire compound uninhabitable. However, 
within 5 minutes of the initiation of the original plan, the insertion 
of tear gas was dramatically escalated.
    The original gas insertion plan provided that in the event that the 
CEV's or others were fired upon during the insertion of gas, that the 
insertion would be escalated. The plan vested authority with the SAC 
Jamar to make the escalation decision. Therefore, when reports of 
shooting coming from the compound were confirmed and it became clear 
that the CEV's were being fired upon by the Davidians, Jamar decided to 
escalate insertion of the tear gas delivery schedule.
    We agree with the majority report that it should have been obvious 
to all concerned that the insertion of CS tear gas would have prompted 
Koresh to order the vehicles fired upon and that this would have 
resulted in the acceleration of tear gas insertion. However, the 
majority fails to recognize that if the vehicles were fired upon, the 
parties at risk would be the FBI. Following the conclusion of the 
insertion of tear gas, the building would be uninhabitable and the 
occupants would have evacuated. Therefore, it seems that this 
underscores the FBI's determination to compel the occupants to leave 
without any loss of life inside the compound, despite potential harm to 

   XIII. White House Officials Were Informed But Not Involved in the 
                        Decision to Use Tear Gas

    White House officials were informed but not consulted about the use 
of tear gas.
    On April 18, Web Hubbell, Justice Department White House Liaison, 
and Attorney General Reno informed the President about the plan to 
gradually insert tear gas into the compound over a 2 to 3 day period in 
an effort to render the compound uninhabitable and compel the occupants 
to leave. During that conversation, Reno told the President that April 
19 was not envisioned as ``D-Day'' and that the use of the tear gas 
would not be the beginning of an assault on the compound.
    Critics maintain that the White House pressured Reno to end the 
standoff by any means necessary. They contend that this directive led to 
the lack of clear decisionmaking and a less than objective examination 
of the potential hazards concerning the use of CS gas. The majority 
report implies that had expediency not been a factor, Reno would have 
continued to wait for the Davidians to surrender. This contention is 
pure speculation that is not supported by the facts. As noted earlier, 
Attorney General Reno held eight meetings to discuss various aspects of 
the tear gas plan with tear gas experts. If speed had been her concern, 
she would not have consulted with various experts and waited a week 
between the first proposal of the plan and its implementation.

 XIV. The Branch Davidians Started the Fire and Chose to Remain Within 
                      the Compound While It Burned

    On April 19, approximately 20 minutes after the last tear gas 
insertion, the Davidian compound erupted in flames. The first indication 
of fire was seen and noted at 12:07 p.m. By 12:11 p.m., the entire 
compound was substantially involved.
    There is no doubt that the Branch Davidians started the fire. We 
disagree with the conclusion of the majority report which states that 
the evidence concerning the origin of the fire is not dispositive. The 
majority report ignores evidence contained in the arson report which 
proved three separate ignition points within the compound and 
conclusively found that chemical accelerants were placed throughout the 
compound. Additionally, there was eyewitness testimony as well as film 
footage which chronicled the rapid spreading of the blaze. Moreover, the 
clothes of surviving Davidians who escaped the compound were laced with 
gasoline and other flammable materials. Finally, and most poignantly, 
several surviving Davidians admitted that those within the compound had 
started the blaze. These statements are supported by recorded statements 
in which voices are heard asking about the location and timing of fuel 
pouring and lighting activities. Additionally, it should be noted that 
an examination of the vehicles involved inserting tear gas was 
conducted. These vehicles did not have flame throwing equipment and were 
not of the type that could have been equipped with flamethrowing 
equipment. All evidence clearly indicates that the fire which destroyed 
the Branch Davidian compound on April 19 was ignited by individuals 
inside the compound.
    It should be noted that the fire department was called after the 
blaze began. However, they did not attempt to put out the fire because 
during the blaze gun shots were heard coming from and within the 
compound. The safety of any firefighter who approached the compound 
could not be assured. Therefore, the FBI determined that the local 
firefighters should not be allowed to approach the compound. However, it 
should be noted that after the fire began nine survivors exited the 
    There has been some speculation that the tear gas used may have 
contributed to the fire. The CS tear gas did not act as an accelerant 
for the fire. CS is a powdery particulate. When used in a tear gas 
canister or other tear gas delivery system, CS particulate is suspended 
in methylchloride and carbon dioxide. Neither CS particulate, 
methylchloride or carbon dioxide are flammable. They actually inhibit 
the outbreak of fire. We agree with the majority's conclusion that the 
use of CS tear gas prior was not a direct, proximate cause or 
contributing factor to the rapid ignition and expansion of the blaze. 
The audiotape and forensic evidence clearly indicate that the rapid 
ignition and spread of the blaze was due to the use of chemical 
accelerants (including gasoline, kerosene and camp fuel oil) distributed 
throughout the compound by individuals within the compound. 
Additionally, the materials used in the construction of the building 
itself (largely plywood) in conjunction with storage of materials such 
as hay and propane gas containers and high winds combined to 
significantly contribute to the rapid combustion of the building.

                           XV. Recommendations

    Finally, the report makes 17 recommendations that are largely 
duplicative of recommendations made by the extensive internal reviews 
undertaken by the Department of Treasury and the Department of Justice. 
Those recommendations and our responses are as follows:
    1. Congress should conduct further oversight of the Bureau of 
Alcohol, Tobacco and Firearms and jurisdiction should be transferred to 
the Department of Justice. While additional oversight is always proper, 
it should be noted that the proposal to transfer jurisdiction of ATF 
first surfaced in the Carter administration and has been rejected 
several times. Rejections have been based on concerns about placing 
total enforcement of the firearms laws in one agency. A separation of 
investigative and prosecutorial functions in separate agencies maintains 
an important check and balance system.
    2. If false statements were made in the affidavit filed in support 
of the search and arrest warrants, criminal charges should be pursued. 
There is absolutely no evidence to suggest that the agent in question 
made false statements. This recommendation is an example of a 
willingness to disbelieve Federal law enforcement personnel which is 
manifest throughout this report.
    3. Federal law enforcement should verify the credibility and 
timeliness of the information used in obtaining warrants. An assistant 
U.S. attorney and a Federal Magistrate reviewed the affidavit and found 
the information sufficiently fresh to issue warrants. Additionally, in 
finding that probable cause existed, the majority report implicitly 
agrees with the determination that the information was not stale.
    4. The ATF should revise it National Response Plan to ensure that 
its best qualified agents are placed in command and control positions. 
The Treasury Department made this finding in its internal review. The 
ATF has implemented procedures to comply.
    5. Senior officials at ATF should assert greater command and control 
over significant operations. The Treasury Department made this finding 
it its internal review. The ATF has implemented procedures to comply.
    6. The ATF should be constrained from independently investigating 
drug-related crimes. This recommendation may lack administrative and 
operational feasibility.
    7. Congress should consider applying the Posse Comitatus Act to the 
National Guard with respect to situations where a Federal law 
enforcement entity serves as the lead agency. This recommendation may 
lack administrative and operational feasibility and may unduly hamper 
the State's 

operations (e.g. drug trafficking patrols, civil disturbance).
    8. The Department of Defense should streamline the approval process 
for military support so that drug nexus controversies are avoided in the 
future. This recommendation may deprive the Department of Defense of the 
operational flexibility necessary to provide assistance. The inability 
to pass a ``litmus test'' should not preclude the provision of otherwise 
justifiable assistance.
    9. The GAO should audit the military assistance provided to the ATF 
and to the FBI in connection with their law enforcement activities 
toward the Br

Educational DVDs and Videos