Executive Summary

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

                                                  Union Calendar No. 395
104th Congress                                                    REPORT
                         HOUSE OF REPRESENTATIVES
 2nd Session                                                     104-749

                       TOWARD THE BRANCH DAVIDIANS


 August 2, 1996.--Committed to the Committee of the Whole House on the 
              State of the Union and ordered to be printed


  Mr. Clinger, from the Committee on Government Reform and Oversight, 
                         submitted the following

                            THIRTEENTH REPORT

                              together with


based on a joint investigation by the subcommittee on national security, 
    international affairs, and criminal justice of the committee on 
 government reform and oversight, and the subcommittee on crime of the 
                       committee of the judiciary

  On July 25, 1996, the Committee on Government Reform and Oversight 
approved and adopted a report entitled ``Investigation Into the 
Activities of Federal Law Enforcement Agencies Toward the Branch 
Davidians.'' The report was prepared jointly with the Committee on the 
Judiciary. The chairman was directed to transmit a copy to the Speaker 
of the House.

                            Executive Summary

    From April 1995 to May 1996, the Subcommittee on Crime of the House 
Committee on the Judiciary and the Subcommittee on National Security, 
International Affairs, and Criminal Justice of the House Committee on 
Government Reform and Oversight jointly conducted an investigation into 
the actions of the Federal agencies involved in law enforcement 
activities near Waco, TX in late 1992 and early 1993 toward a group 
known as the Branch Davidians. As part of that investigation, the 
subcommittees held 10 days of public hearings. During the course of 
those hearings, more than 100 witnesses appeared and gave testimony 
concerning all aspects of the government's actions. The subcommittees 
also reviewed thousands of documents requested from and provided by the 
agencies involved in these actions. Additionally, the subcommittees met 
with others who were involved in these actions or who offered additional 
information or opinions concerning them.
    This report is the final product of that investigation. It 
summarizes the most important facts about the key issues of these 
activities considered by the subcommittees. The report also sets forth 
the subcommittees' findings with respect to many disputed issues and to 
new facts uncovered during the investigation. Finally, the report makes 
recommendations in order to prevent the mistakes that occurred at Waco 
from reoccurring in future law enforcement operations.

    a. a brief summary of the government's actions toward the branch 

    In June 1992, the Austin, TX Office of the Bureau of Alcohol, 
Tobacco and Firearms (ATF) opened a formal investigation into 
allegations that members of a Waco, TX religious group, known as the 
Branch Davidians, and in particular their leader, Vernon Howell, also 
known as David Koresh, were in possession of illegal firearms and 
explosive devices. In January 1993, ATF agents commenced an undercover 
operation in a small house directly across from the property on which 
the Branch Davidians lived. The ATF agents posed as students attending 
classes at a local technical college to monitor the activities of the 
Davidians. Part of the undercover operation involved one of the agents 
meeting with Koresh and other Davidians several times by expressing an 
interest in their religious beliefs. As a result of the evidence 
gathered by the ATF, and in particular during the undercover operation, 
the ATF sought and received from a Federal judge an arrest warrant for 
Koresh and a warrant to search the Branch Davidian residence.
    Shortly before the ATF planned to serve the search and arrest 
warrants, it contacted Operation Alliance, a government office which 
coordinated military counter drug operations along the southwest border. 
Through that office, the ATF requested that military personnel provide 
training to the ATF agents who would be involved in the raid to serve 
the warrants. The ATF's request for military assistance also would have 
involved the military personnel as participants in the raid itself. 
After military legal advisors cautioned that such activity might violate 
Federal law, the ATF's request was modified so that military personnel 
only provided training to the ATF agents and did not participate in the 
raid. Because the ATF alleged that the Davidians were also involved in 
illegal drug manufacturing, the assistance provided by these counter 
drug military forces was provided to the ATF without reimbursement.
    On February 28, 1993, a force of 76 ATF agents stormed the Davidian 
residence to serve the arrest and search warrants. Prior to the 
commencement of the raid, however, the Davidians had learned of the 
ATF's plans. As the agents arrived at the Davidians' residence, the 
Davidians engaged the ATF agents in a gun battle which continued for 
almost 90 minutes. Four ATF agents were killed in the battle and more 
than 20 agents wounded. At least two Davidians were killed by ATF agents 
and several others, including Koresh, were wounded.
    After a cease-fire was arranged, the Federal Bureau of Investigation 
(FBI) dispatched members of its Hostage Rescue Team (HRT) to Waco to 
take control of the situation at the request of the ATF. At 6 a.m. the 
next morning, the FBI formally took control of the situation and 
commenced a 51 day standoff with the Davidians. During this time, FBI 
officials engaged in daily negotiations with the Davidians in an effort 
to end the standoff peaceably. Between February 18 and March 23, 35 
persons, including 21 children, left the residence and surrendered to 
the FBI. From March 23 to April 18, however, none of the remaining 
Branch Davidians left the residence.
    In addition to the continual negotiations with the Davidians, FBI 
officials took other steps to induce the Davidians to surrender. These 
tactics included tightening the perimeter around the Davidian residence, 
cutting off electricity to the residence, and at one point, shining 
bright lights at the residence and playing loud music and irritating 
sounds over loudspeakers. During the course of the standoff, FBI 
negotiators consulted with several experts routinely retained by the 
FBI. In some cases, the advice of these experts was followed while in 
other cases it was not. Many other persons offered advice to the FBI. 
While a few of these individuals offered credible assistance, the FBI 
chose to ignore the offers of assistance from all of these persons.
    During the week of April 12, senior Justice Department officials 
began considering a plan developed by the FBI to end the standoff. 
Attorney General Janet Reno, other senior Justice Department officials, 
and FBI officials held several meetings concerning the plan. The FBI 
also requested the input of Department of Defense employees and military 
personnel concerning the plan to end the standoff. During these 
deliberations Associate Attorney General Webster Hubbell personally 
discussed the status of the negotiations with the FBI's chief day-to-day 
negotiator in Waco. The proposed plan centered around the use of a 
chemical riot control agent which would be injected through the walls of 
the Davidian residence in order to induce the residents to leave the 
structure. It provided for the methodical insertion of the riot control 
agent into different parts of the building over a 48 hour period. The 
plan also contained a contingency provision to be used if the Davidians 
fired on the FBI agents who were implementing the plan. In that event, 
the FBI proposed to insert the riot control agent into all portions of 
the residence simultaneously. As a result of these deliberations, the 
Attorney General approved the implementation of the plan for April 19, 
    At approximately 6 a.m. on April 19, the FBI's chief negotiator, 
Byron Sage, telephoned the Davidians and informed them that the FBI was 
inserting the riot control agent into the residence. Sage also began 
broadcasting a prepared statement over loudspeakers that the FBI was 
``placing tear gas in the building'' and that all residents should 
leave. As the announcement was being made, FBI agents using unarmed 
military vehicles with booms mounted on them began to insert the riot 
control agent into the compound by ramming holes into the sides of the 
structure and then using devices mounted on the booms to spray the riot 
control agent into the holes in the walls. Almost immediately the 
Davidians began to fire on the vehicles being used by the FBI. At 6:07 
a.m., the commander of the Hostage Rescue Team ordered that the 
contingency provision of the operations plan be implemented and that the 
riot control agent be inserted in all portions of the residence at once. 
During 6 hours of insertion of the riot control agent no residents 
exited the compound.
    At approximately 12:07 p.m., a fire was observed in one portion of 
the residence. Within 2 minutes, two other fires developed. Within a 
period of 8 minutes, the three fires had engulfed the entire structure, 
ultimately destroying it completely.
    During the fire, sounds of gunfire from within the structure were 
heard. Some of these sounds were live rounds exploding in the flames 
inside the compound. However, other sounds were methodical and evenly-
spaced, indicating the deliberate firing of weapons. Nine persons 
escaped from the structure during the course of the fire but more than 
70 other residents remained inside. All of these persons died. Of this 
number, autopsies indicated that 19 died from gunshots at close range. 
Most of the other residents who remained inside the structure died as a 
result of smoke inhalation from the fire or from burns from the fire.

                    b. findings of the subcommittees

    As a result of its investigation, the subcommittees make the 
following findings:
The Branch Davidians
    1. But for the criminal conduct and aberrational behavior of David 
Koresh and other Branch Davidians, the tragedies that occurred in Waco 
would not have occurred. The ultimate responsibility for the deaths of 
the Davidians and the four Federal law enforcement agents lies with 
    2. While not dispositive, the evidence presented to the 
subcommittees indicates that some of the Davidians intentionally set the 
fires inside the Davidian residence.
    3. The Davidians could have escaped the residence for a significant 
period of time after the start of the fire. Most of the Davidians either 
did not attempt to escape from the residence or were prevented from 
escaping by other Davidians.
    4. The gunshot wounds which were the cause of death of 19 of the 
Davidians on April 19 were either self-inflicted, inflicted by other 
Davidians, or the result of the remote possibility of accidental 
discharge from rounds exploding in the fire.
The Department of the Treasury
    1. Treasury Secretary Lloyd Bentsen and Deputy Secretary Roger 
Altman acted highly irresponsibly and were derelict in their duties in 
failing to even meet with the Director of the ATF in the month or so 
they were in office prior to the February 28 raid on the Davidians 
residence, in failing to request any briefing on ATF operations during 
this time, and in wholly failing to involve themselves with the 
activities of the ATF.
    2. Senior Treasury Department officials routinely failed in their 
duty to monitor the actions of ATF officials, and as a result were 
uninvolved in the planning of the February 28 raid. This failure 
eliminated a layer of scrutiny of the plan during which flaws in it 
might have been uncovered and corrected.
    3. After the raid failed, Assistant Treasury Secretary Ronald Noble 
attempted to lay the blame entirely on the ATF despite the fact that 
Treasury Department officials, including Noble, failed to properly 
supervise ATF activities leading to the raid. Moreover, Treasury 
Department officials, having approved the raid, failed to clearly and 
concisely communicate the conditions under which it was to be aborted.
The Bureau of Alcohol, Tobacco and Firearms
    1. The ATF's investigation of the Branch Davidians was grossly 
incompetent. It lacked the minimum professionalism expected of a major 
Federal law enforcement agency.
    2. While the ATF had probable cause to obtain the arrest warrant for 
David Koresh and the search warrant for the Branch Davidian residence, 
the affidavit filed in support of the warrants contained an incredible 
number of false statements. The ATF agents responsible for preparing the 
affidavits knew or should have known that many of the statements were 
    3. David Koresh could have been arrested outside the Davidian 
compound. The ATF chose not to arrest Koresh outside the Davidian 
residence and instead were determined to use a dynamic entry approach. 
In making this decision ATF agents exercised extremely poor judgment, 
made erroneous assumptions, and ignored the foreseeable perils of their 
course of action.
    4. ATF agents misrepresented to Defense Department officials that 
the Branch Davidians were involved in illegal drug manufacturing. As a 
result of this deception, the ATF was able to obtain some training from 
forces which would not have otherwise provided it, and likely obtained 
other training within a shorter period of time than might otherwise have 
been available. Because of its deception, the ATF was able to obtain the 
training without having to reimburse the Defense Department, as 
otherwise would have been required had no drug nexus been alleged.
    5. The decision to pursue a military style raid was made more than 2 
months before surveillance, undercover, and infiltration efforts were 
begun. The ATF undercover and surveillance operation lacked the minimum 
professionalism expected of a Federal law enforcement agency. 
Supervisors failed to properly monitor this operation.
    6. The ATF's raid plan for February 28 was significantly flawed. The 
plan was poorly conceived, utilized a high risk tactical approach when 
other tactics could have been successfully used, was drafted and 
commanded by ATF agents who were less qualified than other available 
agents, and used agents who were not sufficiently trained for the 
operation. Additionally, ATF commanders did not take precautions to 
ensure that the plan would not be discovered.
    7. The senior ATF raid commanders, Phillip Chojnacki and Chuck 
Sarabyn, either knew or should have known that the Davidians had become 
aware of the impending raid and were likely to resist with deadly force. 
Nevertheless, they recklessly proceeded with the raid, thereby 
endangering the lives of the ATF agents under their command and the 
lives of those residing in the compound. This, more than any other 
factor, led to the deaths of the four ATF agents killed on February 28.
    8. Former ATF Director Stephen Higgins and former ATF Deputy 
Director Daniel Hartnett bear a portion of the responsibility for the 
failure of the raid. They failed to become significantly involved in the 
planning for the raid and also failed to instill in the senior raid 
commanders an understanding of the need to ensure that secrecy was 
maintained in an operation of this type.
    9. There was no justification for the rehiring of the two senior ATF 
raid commanders after they were fired. The fact that senior Clinton 
administration officials approved their rehiring indicates a lack of 
sound judgment on their part.
The Department of Justice
    1. The decision by Attorney General Janet Reno to approve the FBI's 
plan to end the standoff on April 19 was premature, wrong, and highly 
irresponsible. In authorizing the assault to proceed Attorney General 
Reno was seriously negligent. The Attorney General knew or should have 
known that the plan to end the stand-off would endanger the lives of the 
Davidians inside the residence, including the children. The Attorney 
General knew or should have known that there was little risk to the FBI 
agents, society as a whole, or to the Davidians from continuing this 
standoff and that the possibility of a peaceful resolution continued to 
    2. The Attorney General knew or should have known that the reasons 
cited for ending the stand-off on April 19 lacked merit. The 
negotiations had not reached an impasse. There was no threat of a 
Davidian breakout. The FBI Hostage Rescue Team did not need to stand 
down for rest and retraining for at least 2 more weeks after April 19, 
and if and when it did stand down FBI and local law enforcement SWAT 
teams could have been brought in to maintain the perimeter. Sanitary and 
other living conditions inside the Davidian residence had not 
deteriorated during the standoff and there was no evidence that they 
were likely to deteriorate in the near future. And while physical and 
sexual abuse of minors had occurred, there was no basis to conclude that 
minors were being subjected to any greater risk of physical or sexual 
abuse during the stand-off than prior to February 28. The final assault 
put the children at the greatest risk.
    3. The CS riot control agent insertion and assault plan was fatally 
flawed. The Attorney General believed that it was highly likely that the 
Davidians would open fire, and she knew or should have known that the 
rapid insertion contingency would be activated, that the Davidians would 
not react in the manner suggested by the FBI, and that there was a 
possibility that a violent and perhaps suicidal reaction would occur 
within the residence. The planning to end the stand-off was further 
flawed in that no provision had been made for alternative action to be 
taken in the event the plan was not successful.
    4. Following the FBI's April 19 assault on the Branch Davidian 
compound, Attorney General Reno offered her resignation. In light of her 
ultimate responsibility for the disastrous assault and its resulting 
deaths the President should have accepted it.
The Federal Bureau of Investigation
    1. The CS riot control agent assault of April 19 should not have 
taken place. The possibility of a negotiated end to the standoff 
presented by Koresh should have been pursued even if it had taken 
several more weeks.
    2. After Koresh and the Davidians broke a promise to come out on 
March 2 FBI tactical commander Jeffrey Jamar viewed all statements of 
Koresh with extreme skepticism and thought the chances of a negotiated 
surrender remote. While chief negotiator Byron Sage may have held out 
hope longer, FBI officials on the ground had effectively ruled out a 
negotiated end long before April 19 and had closed minds when presented 
with evidence of a possible negotiated end following completion of 
Koresh's work on interpreting the Seven Seals of the Bible.
    3. The FBI should have sought and accepted more expert advice on the 
Branch Davidians and their religious views and been more open-minded to 
the advice of the FBI's own experts.
    4. FBI tactical commander Jeffrey Jamar and senior FBI and Justice 
Department officials advising the Attorney General knew or should have 
known that none of the reasons given to end negotiations and go forward 
with the plan to end the stand-off on April 19 had merit. To urge these 
as an excuse to act was wrong and highly irresponsible.
    5. CS riot control agent is capable of causing immediate, acute and 
severe physical distress to exposed individuals, especially young 
children, pregnant women, the elderly, and those with respiratory 
conditions. In some cases, severe or extended exposure can lead to 
incapacitation. Evidence presented to the subcommittees show that use of 
CS riot control agent in enclosed spaces, such as the bunker, 
significantly increases the possibility that lethal levels will be 
reached, and the possibility of harm significantly increases. In view of 
the risks posed by insertion of CS into enclosed spaces, particularly 
the bunker, the FBI failed to demonstrate sufficient concern for the 
presence of young children, pregnant women, the elderly, and those with 
respiratory conditions. While it cannot be concluded with certainty, it 
is unlikely that the CS riot control agent, in the quantities used by 
the FBI, reached lethal toxic levels. However, the presented evidence 
does indicate that CS insertion into the enclosed bunker, at a time when 
women and children were assembled inside that enclosed space, could have 
been a proximate cause of or directly resulted in some or all of the 
deaths attributed to asphyxiation in the autopsy reports.
    6. There is no evidence that the FBI discharged firearms on April 
    7. There is no evidence that the FBI intentionally or inadvertently 
set the fires on April 19.
    8. The FBI's refusal to ask for or accept the assistance of other 
law enforcement agencies during the stand-off demonstrated an 
institutional bias at the FBI against accepting and utilizing such 
The Department of Defense
    1. The activities of active duty military personnel in training the 
ATF and in supporting the FBI's activities during the standoff did not 
violate the Posse Comitatus Act because their actions did not constitute 
direct participation in the government's law enforcement activities.
    2. The activities of National Guard personnel in training the ATF, 
in participating in the ATF raid on the Davidian residence, and in 
supporting the FBI's activities during the standoff did not violate the 
Posse Comitatus Act because the personnel were not subject to the 
prohibitions in the act.
    3. No foreign military personnel or other foreign persons took part 
in any of the government's actions toward the Branch Davidians. Some 
foreign military personnel were present near the Davidian residence as 
observers at the invitation of the FBI.

                           c. recommendations

    In order to prevent the errors in judgment and consequent tragic 
results that occurred at Waco from occurring in the future, the 
subcommittees' make the following recommendations:
    1. Congress should conduct further oversight of the Bureau of 
Alcohol, Tobacco and Firearms, the oversight of the agency provided by 
the Treasury Department, and whether jurisdiction over the agency should 
be transferred to the Department of Justice. Congress should consider 
whether the lack of Treasury Department oversight of ATF activities in 
connection with the investigation of the Davidians, and the failures by 
ATF leadership during that investigation, indicate that jurisdiction 
over the ATF should be transferred to the Department of Justice.
    2. If the false statement in the affidavits filed in support of the 
search and arrest warrants were made with knowledge of their falsity, 
criminal charges should be brought against the persons making the 
    3. Federal law enforcement agencies should verify the credibility 
and the timeliness of the information on which it relies in obtaining 
warrants to arrest or search the property of an American citizen. The 
affidavits on which the arrest and search warrants of Koresh were 
ordered contained information provided to the ATF by informants with 
obvious bias toward Koresh and the Davidians and information that was 
stale in that it was based on experiences years before the 
investigation. The ATF should obtain fresh and unbiased information when 
relying on that information to arrest or search the premises of the 
subjects of investigations.
    4. The ATF should revise its National Response Plan to ensure that 
its best qualified agents are placed in command and control positions in 
all operations. Doing so will help to avoid situations like that which 
occurred at Waco where lesser qualified agents were placed in positions 
for which they were, at best, only partially qualified while other, more 
experienced agents were available whose involvement might have prevented 
the failure of the raid.
    5. Senior officials at ATF headquarters should assert greater 
command and control over significant operations. The ATF's most senior 
officials should be directly involved in the planning and oversight of 
every significant operation.
    6. The ATF should be constrained from independently investigating 
drug-related crimes. Given that the ATF based part of its investigation 
of the Branch Davidians on unfounded allegations that the Davidians were 
manufacturing illegal drugs, and as a result improperly obtained 
military support at no cost, the subcommittees recommend that Congress 
restrict the jurisdiction of the ATF to investigate cases involving 
illegal drugs unless such investigations are conducted jointly with the 
Drug Enforcement Administration as the lead agency.
    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. The fact that National 
Guard troops were legally allowed to be involved directly in Federal law 
enforcement actions against the Davidians, while active duty forces were 
not, is inconsistent with the spirit of the Posse Comitatus Act.
    8. The Department of Defense should streamline the approval process 
for military support so that Posse Comitatus Act conflicts and drug 
nexus controversies are avoided in the future. The process should make 
clear to law enforcement agencies requesting Defense Department support 
the grounds upon which support will be given. Such requests should be 
assigned to a single office to ensure that support will be provided only 
in legitimate circumstances and in a manner consistent with the Posse 
Comitatus Act.
    9. The General Accounting Office should audit the military 
assistance provided to the ATF and to the FBI in connection with their 
law enforcement activities toward the Branch Davidians. Given that the 
subcommittees have been unable to obtain detailed information concerning 
the value of the military support provided to the ATF and the FBI, the 
subcommittees recommend that the General Accounting Office conduct an 
audit of these agencies to ascertain the value of the military support 
provided to them and to ensure that complete reimbursement has been made 
by both agencies.
    10. The General Accounting Office should investigate the activities 
of Operation Alliance in light of the Waco incident. The subcommittees 
conclude that Operation Alliance personnel knew or should have known 
that ATF did not have a sufficient drug nexus to warrant the military 
support provided on a non-reimbursable basis. Furthermore, given that 
the provision of assistance under such dubious circumstances appears to 
not have been an anomaly and the expansion of Operation Alliance's 
jurisdiction since Waco, the subcommittees recommend that the General 
Accounting Office conduct an investigation of Operation Alliance.
    11. Federal law enforcement agencies should redesign their 
negotiation policies and training to avoid the influence of physical and 
emotional fatigue on the course of future negotiations. In anticipation 
of future negotiations involving unusually emotional subjects or those 
which may involve prolonged periods of time during which negotiators may 
become physically or emotionally fatigued, Federal law enforcement 
agencies should implement procedures to ensure that these factors do not 
influence the recommendations of negotiators to senior commanders.
    12. Federal law enforcement agencies should take steps to foster 
greater understanding of the target under investigation. The 
subcommittees believe that had the government officials involved at Waco 
taken steps to understand better the philosophy of the Davidians, they 
might have been able to negotiate more effectively with them, perhaps 
accomplishing a peaceful end to the standoff. The subcommittees believe 
that had the ATF and FBI been better informed about the religious 
philosophy of the Davidians and the Davidians' likely response to the 
government's actions against them, these agencies could have made better 
choices in planning to deal with the Branch Davidians.
    13. Federal law enforcement agencies should implement changes in 
operational procedures and training to provide better leadership in 
future negotiations. The subcommittees believe that placing greater 
emphasis on leadership in critical situations will not only protect the 
targets of government action, but also will help to protect the safety 
of the law enforcement officers.
    14. Federal law enforcement agencies should revise policies and 
training to increase the willingness of their agents to consider the 
advice of outside experts. The subcommittees note that the expertise of 
recognized negotiation experts, particularly those experienced with 
religiously-motivated groups, might have proved invaluable in assisting 
FBI negotiations with the Branch Davidians. Accordingly, the 
subcommittees recommend that Federal law enforcement agencies revise 
their policies and training so that their agents are open to the advice 
such experts might provide.
    15. Federal law enforcement agencies should revise policies and 
training to encourage the acceptance of outside law enforcement 
assistance, where possible. The unwillingness of the FBI to accept 
support from State, local, or other Federal law enforcement agencies in 
connection with the standoff increased the pressure on the Attorney 
General to end the standoff precipitously. To avoid this type of 
pressure in the future, Federal law enforcement agencies should be open 
to the assistance that State and local law enforcement agencies may be 
able to provide.
    16. The FBI should expand the size of the Hostage Rescue Team. The 
FBI should increase the size of the Hostage Rescue Team so that there 
are sufficient numbers of team members to participate in an operation 
and to relieve those involved when necessary. The FBI should also 
develop plans to utilize FBI and local law enforcement SWAT teams when 
extenuating circumstances exist.
    17. The government should further study and analyze the effects of 
CS riot control agent on children, persons with respiratory problems, 
pregnant women, and the elderly. The subcommittees note that only 
limited scientific literature exists concerning the effects of CS riot 
control agent, especially with regard to the effects of long-term 
exposure in a closed area. Until such time as more is known about the 
actual effects of exposure to this agent, the subcommittees recommend 
that CS not be used when children, persons with respiratory problems, 
pregnant women, and the elderly are present. Federal law enforcement 
agencies should develop guidelines for the use of riot control agents in 
light of this further study and analysis.

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