Additional Views of Hon. Steven Schiff

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 JUDICIARY

    The hearings into the 1993 Waco tragedy, conducted jointly in June 
1995 by the Crime Subcommittee 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, was a painful expose of perhaps the greatest law enforcement 
tragedy in American history. Yet, it was a necessary exercise, because 
it gave those of us on the subcommittees, and all Americans, the 
opportunity to examine why it happened and to at least begin to 
implement steps to avoid a recurrence of the tragedy. It would not be a 
significant overstatement to describe the Waco operation from the 
Government's standpoint, as one in which if something could go wrong, it 
did. The true tragedy is, virtually all of those mistakes could have 
been avoided.
    After nearly 2 weeks of hearings, the subcommittees closed down the 
proceedings, and moved on to other business. Now, over a year later, we 
have a report. While the report contains many conclusions that I believe 
are accurate and appropriate, along with several important 
recommendations, it fails to address several extremely important matters 
that came to light during the hearings and which deserve far more 
scrutiny than accorded heretofore.
    I would hope that in the next Congress, followup hearings are held, 
and legislative measures introduced and passed. Avoiding tragedies such 
as Waco ought to be a top priority for the Congress and the 
    Rather than repeat all the conclusions and recommendations of the 
report, many of which I agree with (especially those concerning the ATF, 
the Treasury Department failure to monitor, and the decisionmaking at 
the FBI and the top levels of the Justice Department), I will note those 
with which I have serious disagreement, from my perspective as a Crime 
Subcommittee member, as a former U.S. attorney, and as a citizen deeply 
concerned with the militarization of domestic law enforcement and the 
lack of accountability by Federal law enforcement.

                    Militarization of Law Enforcement

    Law enforcement officials have long been required to abide by the 
Bill of Rights, enshrined in our Constitution. These principles underlie 
virtually everything they do in their capacity as officers sworn to 
protect our citizens; and they limit what they can do in fulfilling 
their specific responsibilities.
    However, with the phenomenal growth in the power of the Federal 
Government, touching virtually every facet of our lives--personal, 
business, educational, government, religious, recreational, etc.--there 
has developed a mentality on the part of law enforcement that they can 
do anything and not be held accountable for it. Along with this we have 
witnessed the development of a militaristic approach to domestic law 
enforcement, in everything from dress (black military uniforms and 
helmets), to equipment (armored vehicles and military surplus 
helicopters), to outlook, to execution.
    Our armed forces, in carrying out their mission to protect and 
project our national interests abroad, are not bound by the 
constitutional restraints placed on domestic law enforcement. This 
reflects the significant differences between conducting domestic law 
enforcement operations, and conducting warfare overseas. In a war 
situation, our armed forces do not and should not have to give 
``Miranda'' warnings before shooting the enemy; they need not have 
``probable cause'' before an attack. Domestically, our law enforcement 
officers must do these things.
    Unfortunately, we saw in the Waco tragedy one logical result of the 
blurring of lines between domestic law enforcement and military 
operations: an operation carried out pursuant to a strategy designed to 
demolish an ``enemy,'' utilizing tactics designed to cut off avenues of 
escape, drive an enemy out, and run roughshod over the ``niceties'' of 
caring for the rights of those involved. The protestations of the 
Attorney General to the contrary, that she authorized the injection of 
debilitating CS gas into closed interior quarters with no ventilation 
where dozens of women and children were concentrated, out of concern for 
the children do not match the Government's actions. While the report 
reflects this view to some extent, I believe very firm steps must be 
taken to ``demilitarize'' Federal domestic law enforcement, through 
substantive legislation and funding restrictions.

                Posse Comitatus and Military Involvement

    While the report touches on the issue of military involvement in 
this operation, focusing primarily on disingenuous steps taken by the 
civilian law enforcement agencies in order to obtain military assistance 
without paying for it, my concerns go deeper.
    I seriously question the role of military officers being involved in 
strategy sessions, on sight ``observers'' and the presence of foreign 
military personnel, and the use of military equipment such as armored 
vehicles. Contrary to the conclusion of the report, I am not convinced 
that the separation between military operations and domestic law 
enforcement, codified in the U.S. Code's ``Posse Comitatus'' provisions, 
was not violated in the Waco operation.

                          Hostage Rescue Teams

    During the questioning of Attorney General Reno on the last day of 
the hearings, I asked her what specific steps had been taken by the 
Government to ensure that another Waco would not recur. The only 
specific step the Attorney General cited to me in response to my 
question, was that the ``Hostage Rescue Teams'' (HRT's) had been 
expanded. The report agrees that HRT's should be expanded. I disagree.
    In my view, based on the Waco incident (and others), part of the 
problem is the HRT's themselves; they are relied on too heavily, and are 
used in circumstances in which no hostages are present, or which do not 
lend themselves to HRT tactics. Rather than expanding the size and use 
of HRT's, I believe they ought to be more carefully circumscribed, 
controlled and scaled back.

                      FLIR Tapes and What They Show

    Forward Looking Infrared Radar (FLIR) was used by the Government, in 
cameras aboard helicopters and planes flying over the Branch Davidian 
compound on the day of the final assault. Portions of the FLIR tapes 
were shown at the hearings; these were under the control of the 
Government. Of course, the Government used the tapes to buttress its 
arguments that no shots were fired on April 19 (the day of the assault 
on the compound) from outside the compound into the compound, and that 
the fire that destroyed the compound was not started from the outside or 
by the Government vehicles.
    Given the severe limitations on questioning by subcommittee members, 
and the inability to truly review and analyze the Government's evidence, 
I do not agree with the conclusions in the report that the evidence 
clearly establishes the Government's position on these issues.
    On further examination of FLIR tapes, after the hearings, and in 
discussions with private parties who have reviewed the tapes, I believe 
sufficient questions have been raised to warrant further study of these 
two issues: were there shots fired from outside the compound into the 
compound on April 19th, and were the fires started--intentionally or 
unintentionally--by the armored military vehicles or personnel therein?
    Unlike the report, I do not dismiss out of hand the civilian 
analyses of these tapes and other evidence. (On a related issue, I also 
believe further study ought to be made, and additional evidence 
examined, concerning the cause of the explosion that occurred during the 
fire on April 19.)

                              Use of CS Gas

    The Government's use of CS gas in the manner it did, that is, 
clearly designed to incapacitate men, women and children in a confined, 
unventilated space, after avenues of escape had been deliberately cut 
off, was unconscionable; as was the cursory manner in which the 
Government, and especially Attorney General Reno ``bought into'' the 
conclusory and simplistic analyses that the use of CS gas posed an 
``acceptable'' level of risk.
    The fact is, while experts may--and did--differ over the precise 
effects of CS gas on children, or how and in what ways the use of CS gas 
might act as a catalyst for a fire, no rational person can conclude that 
the use of CS gas under any circumstances against children, would do 
anything other than cause extreme physical problems and possibly death.
    For the Government of this country to consciously use CS gas in the 
way it did on April 19, 1993 in Waco is utterly indefensible and should 
never be allowed to be repeated. I believe the deaths of dozens of men, 
women and children can be directly and indirectly attributable to the 
use of this gas in the way it was injected by the FBI.
    I would go further than the report, and call for a prohibition on 
the use of CS gas in situations in which children or the elderly are 
present or are the targets.

                                The Fire

    While the report concludes that the evidence clearly establishes 
that the fire that eventually consumed the Branch Davidian structure was 
started inside by the Davidians, I think that the most that can be said 
is that the fire may have been started inside, and even if it did, the 
evidence that it was deliberately set is inconclusive. I believe there 
is also the possibility that the fire, or at least some of the fires, 
may have been caused as a result of the demolishing efforts of the 
armored military vehicles. While there is no direct evidence that the 
fire was started from the outside, further study (of the FLIR tapes, for 
example) ought to be conducted.


    The report concludes that there was opportunity for the Davidians to 
escape. While obviously this is true--a handful did escape the 
maelstrom--I conclude there was no opportunity for the vast majority of 
the Davidians to have any hope of escape, because of the Government's 
tactics the morning of the 19th of April.
    Essentially, the use of the armored vehicles, methodically smashing 
down portions of the building, cutting off avenues of escape (for 
example, smashing the walls down to cover the ``escape'' hatch to the 
tunnel out of the main building), intimidated the inhabitants into 
seeking ``safety'' in the one secure part of the structure (the concrete 
``bunker'' in the center). With massive quantities of CS gas pumped into 
this area, it virtually guaranteed that most inhabitants would be 
incapacitated; which they were, and they died in the ensuing fire 
because of the incapacitating effects of the CS gas and the cutting off 
of escape routes.

                Breach of Ethics and Possible Obstruction

    One area of inquiry which I pursued during the hearings involved 
what clearly are breaches of ethics, and possible obstruction of justice 
by Government attorneys and investigators. This aspect of the hearings 
is completely overlooked by the report. Government documents clearly 
show deliberate efforts by Government attorneys to stop the collection 
of evidence and possibly cover up evidence the Government did not want 
to be available later on. While the Department of Justice went so far as 
to issue a news release during the hearings, to refute my conclusions, I 
consider it extremely serious; especially when considered with evidence 
that two of the ATF agents first disciplined and fired and then later 
reinstated and records sealed, to raise very troubling questions of 
ethical violations at best and obstruction at worst. Attorneys who 
testified at the hearings also raised serious concerns about the 
attitude and policies reflected in these documents.
    Documents explicitly showed that ``DOJ [Department of Justice] does 
not want Treasury to conduct any interviews . . . [that might] generate 
. . . material or oral statements which could be used for impeachment'' 
of Government witnesses, and that hopefully if such material is not 
gathered, ``the passage of time will dim memories.'' (Memorandum from 
Treasury Assistant General Counsel for Enforcement, dated April 14, 
    Earlier, on March 1, 1993, in interview notes, the ATF's initial 
``shooting review'' of the February 28, 1993 initial assault at which 
time ATF agents fired their weapons, the ATF is advised to ``stop the 
ATF shooting review because ATF was creating Brady material.'' (Note: 
``Brady'' material is evidence that would tend to establish innocence or 
which could be used in mitigation of guilt.)
    In handwritten notes, taken at some point during the siege, 
Government attorney Ray Jahn directs that interviews are to stop because 
exculpatory statements may be generated.
    This pattern of activity to deliberately avoid collection of 
relevant evidence, because it might tend to establish a person's 
innocence, or, as is apparent from other documents, might embarrass the 
ATF, raises very troubling questions to say the least, about the 
interests of the Government in establishing the truth and in seeing that 
justice is done. Neither goal would be met under the circumstances 
evidenced by these documents. That the Department of Justice casually 
dismisses these concerns should be of concern to the Congress and to the 
people of this country.

                    Committee Rules and Restrictions

    The procedures under which these hearings were conducted did not 
lend themselves to adequate inquiry. Important evidence was not 
available because of tactics by the Government and minority members of 
the subcommittees to keep evidence out of our hands; such as the weapons 
taken by the Government from the burned Davidian compound. We were never 
able to test the weapons to establish whether they were in fact unlawful 
weapons as the Government charged (which provided a primary 
justification for the Government's initial action against Koresh and the 
Branch Davidians).
    The method of questioning employed--in 5-minute increments, 
alternating back and forth between majority and minority--with no comity 
from the minority to provide both sides with longer periods within which 
to question, lent itself to a scenario whereby savvy witness (most 
Government witnesses are very familiar with how to answer questions and 
stall so as to use up large segments of the questioner's time) were 
able, time and again, to minimize or completely neutralize the member's 
ability to obtain answers to questions.
    Starting out at the mercy of the minority to control and minimize 
the majority's ability to effectively question and elicit timely, 
forthcoming and nondilatory responses, set the stage for hearings much 
less productive than these could have been. Some exploration of 
instituting other methods of conducting investigative hearings ought to 
be explored. Moreover, many witnesses who simply did not answer members' 
questions, were allowed to escape with dilatory or nonresponsive 
tactics; which again limited the productivity of the hearings.


    Despite the severe limitations in procedure, and the other matters 
noted above, these hearings were extremely valuable; perhaps historic. 
They resulted in very important evidence which, if properly followed-up, 
can help establish, through laws, regulations, and procedures, more 
effective and more accountable Federal law enforcement. However, that 
follow up has not yet occurred, and many troubling questions, some going 
to the very integrity of the Government's actions and personnel, remain. 
These hearings in June 1995 should be viewed not as the conclusion of 
the efforts by the Congress to get to the bottom of the Waco tragedy, 
but the beginning of that process.

                                                 Hon. Steven Schiff.    

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