Activities of Federal Law Enforcement Agencies Toward the Branch Davidians/Section 1
a. the need for the waco inquiry
On February 28, 1993, four special agents of the Bureau of Alcohol, Tobacco and Firearms (ATF) were tragically killed near Waco, TX, in a shootout with a religious sect known as the Branch Davidians. The group's leader, Vernon Howell, also known as David Koresh, was wounded in the violent confrontation, and several of its members were killed. Then on April 19, 1993, after a 51 day standoff with the Federal Bureau of Investigation (FBI), the episode came to a fiery conclusion when more than 70 Davidians, including 22 children, died inside the group's residence.
From any perspective, Waco ranks among the most significant events in U.S. law enforcement history. For ATF, it was the largest and most deadly raid ever conducted. For the FBI, it was an unprecedented failure to achieve a critical objective--the rescue of dozens of innocent women and children.
The television coverage and news accounts generated by the media at the scene near Waco presented a troubling picture to Americans. On the one hand, it seemed clear enough that a Jonestown-like religious cult led by an irrational leader had brought disaster on itself. On the other hand, images of the tanks and other military vehicles gave the impression that the FBI was using excessive force together with military weapons and tactics against U.S. citizens, contrary to our civilian law enforcement tradition. In the aftermath of the April 19th fire, government officials, Members of Congress, and assorted observers called for a thorough review of the matter. Outside the corridors of power, a mixture of fact, rumor, and suspicion produced a wide variety of lasting impressions and conspiracy theories.
Both the Justice and Treasury Departments issued detailed written reports many months later. The Treasury Department Report criticized ATF personnel, but it exonerated all Department officials. The Justice Department Report found no fault with any actions of the FBI or any Justice Department official.
Several congressional committees conducted hearings in the weeks following the disaster. Unfortunately, little information was available from administration officials at the time. Representative Jack Brooks, chairman of the House Judiciary Committee, promised additional hearings to resolve remaining questions, but none were held.
Several developments in 1994 contributed to the pervasive view that serious questions about Waco remained unanswered. The criminal trial of the surviving Branch Davidians resulted in acquittals on murder charges. The self-defense arguments raised at trial and their obvious effect on the jury encouraged the public's outcry and desire for accountability. Journalists, investigators, and attorneys involved in the case decried the absence of candor and independence in the administration's reports and demanded a more comprehensive and detailed inquiry. In addition, widely distributed video tapes entitled "Waco: The Big Lie" and "Waco: The Big Lie Continues" had a significant impact on public opinion. Also, many policymakers read an article published in First Things, written by Dean Kelly of the National Council of Churches, which stirred up considerable speculation about the ATF's conduct and the FBI's use of CS chemical agent. In short, by the start of the 104th Congress, the need for a sufficient and thorough congressional examination of the Waco tragedy was indisputable.
At the outset of the 104th Congress, both the Committee on the Judiciary and the Committee on Government Reform and Oversight indicated in their formal oversight plans, filed in February 1995, the intention to conduct hearings on the Waco matter. Representative Bill McCollum, chairman of the Subcommittee on Crime of the Committee on the Judiciary and Representative Bill Zeliff, chairman of the Subcommittee on National Security, International Affairs, and Criminal Justice of the Committee on Government Reform and Oversight stated on several occasions that such hearings were a necessary response to the widespread dissatisfaction with the Federal Government's follow-up to what happened at the Branch Davidian residence. The deplorable bombing in Oklahoma City 2 months later revealed the extent to which Waco continued to served as a source of controversy for some Americans. With the concurrence of the Speaker of the House and the chairmen of the Committees on the Judiciary and Government Reform and Oversight, the subcommittee chairmen began to organize comprehensive joint hearings on the Waco matter. As the July timetable was set for the hearings, both chairmen hoped a comprehensive investigation, primarily involving testimony from a wide variety of witnesses presented in public hearings, would lay to rest questions which persisted, assess responsibility for any misconduct, and ultimately restore full confidence in Federal law enforcement.
b. opposition to the inquiry
Opposition to the Waco hearings was to be expected. The Departments of Justice and Treasury believed that their respective reports were forthright and complete and that additional scrutiny would only result in more negative publicity. Clinton administration officials were concerned that the hearings would cause further political damage.
What was not expected was the extent to which the administration tried to control potential damage from the hearings. The White House staff assembled a damage control team and retained the services of John Podesta, a public relations specialist and former White House official who had worked for Handgun Control, Inc. Treasury Secretary Rubin contacted at least one member of the joint subcommittees, Representative Bill Brewster of Oklahoma, and requested that he not ask any questions that might embarrass the administration. Also, the Treasury Department flew to Washington two Texas Rangers who were scheduled to testify before the subcommittees in order to help them prepare their testimony. The Justice Department, in concert with the subcommittees' Democrats, brought firearms recovered from the charred Davidian compound to Washington to be used as props.
Perhaps the most disturbing counter-measure was the charge, made by the President himself, that the hearings were an attack on law enforcement. Quite the opposite was the case. All involved in the planning and carrying out of the hearings and the investigation were strong supporters of Federal law enforcement. All believed that through airing and analysis of the Waco events by congressional oversight committees were necessary to the long term credibility and viability of the Federal law enforcement agencies. The assertion that the hearings were anti-law enforcement was contrary to the unambiguous views of Federal law enforcement leaders. Finally, and perhaps the strongest response to the subcommittees' critics, is that the Waco hearings did in fact serve to strengthen public confidence in Federal law enforcement. The public was clearly reminded that we live in a Nation of laws and no power sits above those laws. Americans are far more likely to support law enforcement authorities when they know that such authorities will be held accountable for their actions.
A final issue that arose at the start of the hearings was the extent to which the subcommittees would consider the character of David Koresh. In the minds of some, evidence of Koresh's despicable behavior would provide sufficient justification for not scrutinizing the conduct of Federal law enforcement officials. The subcommittees were prepared to stipulate then and now that Koresh was, on one level, responsible for the death and destruction that occurred at Waco. His actions inside the Davidian's religious community were of the vilest sort. Nevertheless, Koresh was not accountable to the people's elected Representatives in Congress as are Federal law enforcement authorities. Hence the subcommittees' inquiry concerned executive branch conduct, and not that of David Koresh.
c. the nature of the inquiry
Given the extensive and expanding public concern about the Federal Government's actions against the Branch Davidians, and the effect such concerns were having on the credibility of Federal law enforcement, the subcommittees determined, in early 1995, that it would be advisable to hold hearings as soon as practicable. As a result, rather than using the hearings as a forum for presenting the results of a lengthy and completed investigation, it was decided that the hearings would consist of an exhaustive public airing of the issues associated with Waco. These "discovery hearings," rather than "presentation hearings," would afford members of the joint subcommittees, interested attendees, the media, and C-SPAN audiences an opportunity to hear from the people who were directly involved in the Waco matter.
The structure of the inquiry consisted of requests for and review of documents before and during the hearings; a pre-hearing investigation phase, including numerous interviews with many of the persons involved; the hearings themselves; and a post-hearing investigation.
1. Document requests and review
On June 8, 1995, subcommittee Chairmen McCollum and Zeliff delivered document production requests to the Federal agencies involved at Waco. The agencies contacted were the Departments of Defense, Justice, and the Treasury. The White House also received a document request. The subcommittees took the position that virtually every Federal agency document associated with the Waco incident required some level of review. To review the matter any less thoroughly would leave lingering doubt as to whether a complete and comprehensive job had been done.
Despite public commitments and private assurances of cooperation by the relevant departments, the subcommittees experienced a lack of cooperation which clearly frustrated hearing preparations. Throughout the month of June and early July, representatives of the White House, and Departments of Treasury and Justice attempted to narrow the scope of the subcommittees' requests and restrict access to a wide array of information. The first significant documents were delivered only 3 weeks prior to the hearings, some just days before, and tens of thousands of others were received after the hearings had already begun. This "wait- and-dump" strategy rendered meaningful staff review of many key documents virtually impossible prior to commencement of the hearings.
Moreover, the task of reviewing these documents was made more difficult by the manner in which they were presented. The Treasury Department's documents were in no apparent order, making the retrieval of a particular document nearly impossible. In what became symbolic of the administration's uncooperative attitude experienced by the subcommittees, it was discovered that the minority, but not the majority, had been provided an index for locating Treasury documents.
It should be noted that cooperation, particularly from the Department of Justice, improved considerably shortly before the hearings began and continued throughout the course of the public inquiry.
2. Investigation and interviews
The subcommittees engaged in investigative interviews, an examination of physical evidence, and an on-site inspection of the former Branch Davidian residence as a part of the preliminary inquiries. Both majority and minority staff traveled to Austin and Waco, TX for a fact-finding trip. Interviews were conducted with several Branch Davidians both at the former residence and at the home of Sheila Martin, widow of Wayne Martin, who died in the April 19 fire. Former Davidian Clive Doyle provided a tour of the ruins of the Davidian residence. Staff also met with members of the local county sheriff's office and with FBI personnel who, among other things, also took them on a visit to the Davidian residence site.
The staff also had an opportunity to inspect the physical evidence taken from the ruins of the residence after the fire, much of which had been used in the criminal trial of surviving Davidians. By prior agreement with the Justice Department, a potential witness at the hearings, Failure Analysis Associates Inc., was to inspect some of the physical evidence in order to respond to tampering allegations. It was believed that the views of scientists from Failure Analysis, who had often performed scientific evaluations for the Federal Government, including the Justice Department and NASA after the Challenger explosion, would be beneficial given public suspicions about the firearms recovered from the site of the Davidian residence. The inspection would not have damaged the weapons and was to have been conducted in the presence of all parties. It was hoped that the inspection would determine whether the Davidians had attempted to alter legal, semi-automatic weapons by converting them into illegal, automatic weapons as the ATF had alleged, and whether any of this evidence had been altered after it was gathered from the destroyed Davidian residence. When the scientists arrived in Austin, the Department declined to make the firearms available to them. The Department agreed instead to conduct the tests itself and present its findings to the subcommittees. A short time later, the Department urged, for cost considerations, that the tests not be performed. As a result, no tests were performed on the firearms.
Pre-hearing interviews were held with senior officers of the Texas Rangers, authors of books about the Waco disaster, personnel in the McLennan County Sheriff's office, and officials from the Departments of the Treasury, Justice, and Defense, ATF, Drug Enforcement Administration, and the FBI. Also, thousands of pages of materials submitted by outside groups and individuals interested in Waco were reviewed. Regrettably, the Treasury Department balked at making ATF agents available for interviews. The Department steadfastly refused to allow the subcommittee staff to meet with ATF agents who participated in the raid. Only the threat of subpoenas secured the appearance of ATF agents at the hearings. The inability to interview these individuals before public hearings was a significant investigative roadblock.
Finally, the subcommittees' staff traveled to Fort Bragg, NC to interview the Army personnel involved with the training of ATF agents in preparation for the raid. Several of the military personnel involved with the training were not available prior to the hearings due to duty assignments, however, other military personnel whom the staff sought to interview, and who were stationed at Fort Bragg, were not made available to the subcommittees' staff for interviews. Disturbingly, all of the military personnel interviewed by the subcommittees' staff were counseled about the interviews prior to them by senior commanders, despite requests to the contrary.
The plan for the Waco hearings was to receive testimony under oath from as many persons material to the matter as possible. Thus, nearly 100 witnesses appeared before the joint subcommittees over a period of 10 days. The hearings included individuals from ATF and the Treasury Department who played critical roles in the investigation of David Koresh, and the planning, approval and execution of the February 28 raid. They also included the key participants from the FBI and the Justice Department with regard to the 51 day standoff and the planning, approval, and execution on April 19 of the plan to end the standoff. More than a dozen experts on issues associated with Waco, such as fire, riot control agents, and tactical operations testified. The attorneys who represented Koresh, Davidian Steve Schneider, and several Davidian survivors of Waco also were among the witnesses.
The minority was afforded an opportunity to add witnesses to the panels. Every effort was made to accommodate the requests received; more than 90 percent of the names submitted by the minority were added to the witness lists. The administration also requested witnesses to be included. On a few occasions, these requests conflicted with the minority's requests. Again, these desires were accommodated to the greatest extent practicable.
The transcripts of these hearings will serve as a valuable tool for years to come. Many of the most significant documents were incorporated into the record. Many others are gathered in the appendix to this report. Additionally, the appendix contains a complete listing of hearing witnesses.
4. Post-hearing investigation
Additional document requests were made after the hearings to the Departments of the Treasury, Justice, and Defense. Unfortunately, the lack of cooperation from the Treasury and Defense Departments which existed prior to the hearings continued, delaying release of the subcommittees' report.
Other investigative activities which occurred after the hearings included inspection of photographs at the FBI laboratories and interviews with munitions experts, experts on riot control agents, and National Guard officials. Numerous written questions were posed to the Justice, Treasury, and Defense Departments. For the most part, they were answered. Legal experts on the Posse Comitatus Act were consulted. Subcommittee staff also met with the FBI agent who drove one of the armored vehicles involved in the destruction of the backside of the Davidian residence and other FBI officials involved at Waco. Finally, several investigative reporters shared information they have gathered regarding the Waco matter.
d. the structure and scope of the report
The report does not attempt to restate a chronological summary of what happened at Waco. The administration's reports, supplemented by several commercial publications, tell the story fairly well. Instead, to avoid duplication the report consists of review, analysis, and, where appropriate, recommendations concerning the major issues raised. It is structured in the same chronological pattern as the hearings.
e. additional comments
If Federal law enforcement actions since the Waco hearings are a fair indication, then the inquiry has already had a considerably positive effect. The apparently increasing presence of separatist religious or anti-government groups had created a significant new challenge for Federal law enforcement agencies. Finding the proper balance between the need to enforce Federal law with the responsibility to avoid violent confrontations will continue to be difficult. It is complicated by the fact that innocent people, especially children, are so often in harm's way. Yet, over the past several months, Federal law enforcement, and the FBI in particular, has demonstrated an increased level of tactical patience. This change in policy, combined with other important reforms instituted by Director Louis Freeh at the FBI and Director John Magaw at ATF, is to be commended.
- Dean M. Kelley, Waco: A Massacre and Its Aftermath, First Things, May 1995, at 22.
- Ann Devroy, Clinton Team Focuses Damage Control on Waco, Wash. Post, July 19, 1995, at A12.
- Sue Ann Pressley, Witnesses Say Waco Warnings Went Unheeded, Wash. Post, July 22, 1995, at A11.