Activities of Federal Law Enforcement Agencies Toward the Branch Davidians/Section 6

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VI. Negotiations To End the Standoff With the Davidians[edit]

Negotiations between the FBI and the Branch Davidians continued for 51 days during which time the negotiators utilized generally accepted negotiation techniques. The FBI was unwilling to engage in a novel approach toward the Davidians.

While American hostage negotiation training, especially FBI training, is thought to be the best in the world, there remains considerable room for reassessment and, based on the Waco record, improvement. The FBI possesses exceptional negotiators, but the Bureau was unwilling to engage outside experts and too eager to ignore the advice given by its own experts. The evolving nature of hostage barricade situations necessitates that in the future the FBI continually strive for the preparedness to confront more emotional and unpredictable barricaded subjects. At Waco, FBI resistance to different negotiation methods may have contributed to a premature decision to end the standoff.

a. the conflict between tactical commanders and negotiators[edit]

1. The problem with two teams: one negotiating team and a tactical team[edit]

At Waco, the FBI Crisis Management Team was deployed. The Crisis Management Team is made up of a variety of law enforcement professionals, among them agents trained as tactical agents and as negotiators. The team was divided into groups with separate leadership and different responsibilities. Each team gave its perspective to Jeffrey Jamar, the Special Agent in Charge, who determined which strategy to employ in negotiations. There often was a conflict between these two approaches.

Although disposed to the active approach, Jamar allowed the proposals of each team to be implemented simultaneously, working against each other.

a. Standard Procedure in Negotiations[edit]

According to the FBI's Chief Negotiator, Gary Noesner, the conflict between tactical and negotiating teams is the one universal element in law enforcement operations of this type.[1] FBI tactical forces are trained to act in stressful, violent situations. Agents are inclined toward the "action imperative," the sense among agents that motivates them to act.[2] Negotiators are more inclined to seek a nonviolent resolution of the standoff simply by virtue of their training.

The FBI has a policy in place that favors a negotiated settlement.[3] Through a type of negotiation called active listening, negotiators attempt to find ways to explain to the barricaded subject why it is in his best interest to seek a nonviolent solution. This FBI policy and training of negotiators conflicts with the "action imperative."

b. Major disagreements between the two teams[edit]

Each team adamantly argued to Jamar on behalf of its perspective and adamantly opposed the other's.[4] Dr. Alan A. Stone [5] chronicled the progression in strategy that occurred among the FBI Commanders at Waco in his Report and Recommendations. At first, according to Stone, "the agents on the ground proceeded with a strategy of conciliatory negotiation, which had the approval and understanding of the entire chain of command. Pushed by the tactical leader, the commander on the ground began to allow tactical pressures to be placed on the residence in addition to negotiation." [6] Stone summarized the feelings of negotiators of this inevitable progression. Stone writes, "This changing strategy at the residence from (1) conciliatory negotiating to (2) negotiation and tactical pressure and then to (3) tactical pressure alone, evolved over the objections of the FBI's own experts and without clear understanding up the chain of command." [7]

The disagreement was called a "fundamental strategy disagreement." [8] The negotiators suggested that tactical maneuvers worked against the negotiation process. The tactical team wanted to employ aggressive tactics. Regarding the conflict with tactical people, McClure says simply, "Tactical people think in tactical terms and negotiators think in negotiation terms." [9] Byron Sage, a Supervisory Special Agent and the lead day-to-day FBI negotiator at Waco, testified before the subcommittees, "[The conflict between tactical and negotiation teams] presented difficulties, for sure, but that is not unusual. These are not matters that we were not prepared to attempt to negotiate through." [10] In the end, however, the tactical team won the endorsement of Jamar.

Jamar decided to constrict the perimeter of the building by moving vehicles closer to the residence. On March 9, 1993 the FBI began to use Bradley Fighting Vehicles to clear debris (including automobiles and boats) from the front of Mount Carmel. On March 14, 1993 the FBI focused bright lights on the residence in an effort to disrupt the sleep of those inside. Four days later, loudspeakers were set up to communicate messages from the FBI to the Davidians inside the residence. Soon thereafter, the FBI began playing recordings of Tibetan chants, rabbits being slaughtered, and other sound effects.[11]

While negotiators were trying to gain the trust of Koresh and the Davidians, the actions of the tactical team gave Davidians reason to distrust FBI's negotiators. At the hearings, Sage explained, "It is not uncommon to, as part of the negotiation process, to actually try to ingratiate yourself a little bit more with Koresh and his followers by saying, look, this is out of our hands, but that is why you need to give us something to work with." [12] It is difficult to imagine that use of tactical force could be a beneficial tool with those whom experts say should be treated with caution and conciliation. Notwithstanding Sage's description of the tactical maneuvers as helpful to negotiations, any consequences of aggressive movements on the part of FBI were not ones it intended. They were predicted, however. Gary Noesner remarked, "I do not awake from nightmares or have trouble sleeping at night . . . because everything that I predicted would happen, did happen." [13]

c. Insufficient communication between the two teams and their commanders[edit]

In testimony before the subcommittees, Jamar described the strategic decisionmaking process. He said, "The supervisors of each component would get together and report and discuss matters. And we would have various meetings." [14] Noesner said the problem was not one of communication. Jamar's office was across from the negotiation room. Noesner communicated the desired approach of negotiators with regularity and often in heated exchanges. Jamar heard opinions from the negotiators and tactical agents given with equal force. He let each strategy go forward as if it was the primary one.[15]

d. Decisions between the options presented by the two teams[edit]

In early 1993, FBI policy was to place the Special Agent in Charge of the FBI's regional office in charge of making operational decisions in a crisis like Waco. Noesner described the role of the SAC saying, "He has to take the information and couple that with the information he receives from other intelligence sources, from the tactical team and he has to weigh all those things, weigh them with his own experiences and his own perceptions and he has to come to a decision." [16]

Noesner emphasized the fact that the real problem in Waco was one of leadership. The situation at Waco required someone to make the decision on what strategy to utilize to confront this "unconventional" group. He characterized Jamar as an action-oriented agent, one who fell prey to the "action imperative." [17]

Stone describes the action imperative in terms of the FBI's "group psychology." The options available to the FBI, according to Stone, fell somewhere between "doing nothing (passivity) and a military assault (the action imperative)." [18] In light of the fact that "the appeal of any tactical initiative to an entrenched, stressed FBI must have been overwhelming," Stone reasons, "the desultory strategy of simultaneous negotiation and tactical pressure was enacted as a compromise." [19] Stone concluded that tactical maneuvers were initiated as a way to relieve agents' desire to act. It is left to the SAC to override the group psychology of the agents on the ground and make the decisions necessary to reach a peaceful conclusion. Stone writes, "The FBI should not be pushed by their group psychology into misguided ad hoc decision making the next time around." [20]

e. The effect on negotiations of the decision to employ tactical maneuvers[edit]

The decision to employ tactical maneuvers had the exact result negotiators and experts predicted. The experts advised against antagonizing the Davidians.[21] In a memorandum coauthored by Peter Smerick, an FBI Criminal Investigative Analyst, and Park Dietz, Clinical Professor of Psychiatry and Biobehavioral Sciences at the UCLA School of Medicine, the FBI was advised that "negotiations coupled with ever increasing tactical presence . . . could eventually be counter- productive and could result in loss of life." [22] When tactical maneuvers were utilized, negotiations were set back. The Davidians were unable to sleep with sounds of loud music and rabbits being slaughtered. The Davidians were angered by movements of the armored personnel carriers. They were angered by the clearing of debris from the grounds.[23] As Richard DeGuerin, the lawyer representing Koresh, says, tactical maneuvers appeared to be "calculated to discourage anyone from coming out." [24]

The effect that the tactical maneuvers had on negotiations was only one of the problems resulting from that decision. In fact, some believe that playing loud music bonded the Davidians closer together.[25]

f. Tactical maneuvers may have fed into the vision anticipated by Koresh[edit]

Koresh often warned Davidians that they would die in a fire brought on by "the Beast." [26] In Smerick's March 8 memo, he recommended that tactical pressure "should be the absolute last option we should consider, and that the FBI might unintentionally make Koresh's vision of a fiery end come true." [27] When the FBI began to play loud music and inch closer to the residence in armored vehicles, experts maintained that those were exactly the wrong tactics.[28] More than simply bonding the Davidians together, experts concluded that these actions proved Koresh right in the minds of the Davidians. The Justice Department Report notes, "Some of the experts felt that the aggressive tactical moves played into Koresh's hands." [29] Even Jamar, who made the decision to use these tactics, said, "I did not like it." [30]

b. negotiation opportunities lost[edit]

1. Why the FBI changed negotiators[edit]

Soon after the raid, the FBI was called to take command of the situation at the Davidian residence. Edward Dennis writes that "ATF requested assistance from the FBI on February 28, 1993 after ATF agents had attempted to serve an arrest and search warrant on the Branch Davidian Compound." [31] Before the FBI took over, negotiations with the Davidians had begun. Lieutenant Larry Lynch, of the McClennan County Sheriff's Department, and Branch Davidian Wayne Martin talked over the Waco 911 Emergency line.[32] Soon thereafter, ATF Assistant Special Agent in Charge James Cavanaugh and Davidians Steve Schneider and Koresh spoke by telephone in an attempt to resolve the initial firefight.[33] Finally, Cavanaugh successfully negotiated an end to the shooting.

Cavanaugh, with the help of the Texas Department of Public Safety, made measurable progress toward release of Davidians. Communication was extremely difficult between Davidians inside and ATF agents outside. Nonetheless, Cavanaugh manipulated the dialog from the hysterical screaming during the gun battle to productive conversation leading to a cease fire.

a. Cavanaugh's rapport with the Davidians[edit]

The most difficult task after the raid failed was to establish a reliable, common sense method for communicating with those inside Mount Carmel. Communicating the agreed upon cease fire was made difficult by the size of Mount Carmel and the fragmentation of ATF agents.[34] Eventually, however, the shooting stopped and negotiations began.

In his statement to the Department of Justice, Agent Cavanaugh gave a compelling description of the first moments after the raid.[35] The atmosphere was frenetic and hostile. Cavanaugh's tone was friendly as he sought to gain the trust of those in the residence.

Cavanaugh gained the Davidians' trust by acknowledging the Davidians' point of view.[36] He granted many of their requests.[37] He talked with them as though they were "equals" trying to achieve the same goals. Cavanaugh assuaged their concerns by promising that they would be addressed. Most importantly, Cavanaugh established a routine that produced the release of some Davidians.[38]

Cavanaugh established a rapport with Koresh and other Davidians. When Cavanaugh left the negotiations, Koresh mentioned that he missed Cavanaugh. He noted that Cavanaugh promised to be there until the end.[39] But on March 4, 1995 Cavanaugh left Waco, only to return briefly in April. After Cavanaugh's departure, the negotiations were an FBI operation.

b. Why the FBI was brought in[edit]

The ATF asked for the aid of the FBI and agreed that it would be best for the FBI to assume operational control of the entire siege.[40] All of the official reports note that the FBI was asked to take over the siege.[41]

According to the Justice Department Report, the FBI Hostage Rescue Team was the law enforcement organization best equipped to handle the standoff.[42] It is because of its expertise that the FBI is called in to take control of complex barricade situations throughout the country and the world. According to the Treasury Department Report on the incident, ATF knew immediately after the raid began that it would need the help of the FBI. The apparent unanimity is expressed in the Department of Treasury Department Report.[43] Once the decision was made to turn the operation over to the FBI, the FBI was in charge of the scene in Waco within a matter of hours.

2. Why the FBI didn't allow others to participate in the negotiations[edit]

The FBI was disinclined to allow anyone, other than the FBI's own negotiators, to participate in negotiations with the Davidians. Many were offering their assistance, but few were allowed to participate. McLennan County Sheriff Jack Harwell and the Texas Rangers were suggested and offered their help. Attorneys for Davidians repeatedly asked to speak with the Davidians. It was with great hesitance that the FBI allowed Sheriff Harwell to speak with the Davidians, and with even greater reluctance that the FBI allowed the attorneys into the residence.[44]

a. Sheriff Jack Harwell[edit]

Early in the negotiations, Koresh and the Davidians told the negotiators they had a cordial relationship with Sheriff Jack Harwell. On March 13, Jamar allowed Sheriff Harwell to participate in negotiations. According to the Justice Department Report, to allow an untrained negotiator to participate in such operations was a "departure from conventional negotiation doctrine." [45] In preparation for these negotiations, Noesner and the FBI negotiations put Harwell through quick and intense training in professional negotiations. Harwell was put in this position only because he was a person whom both sides trusted. And although the negotiators were worried about Harwell making the situation worse, negotiators' worries were soon quelled when they discovered, according to Noesner, "Harwell was a natural." [46]

Two days after he began participating in negotiations, Harwell participated in a face-to-face meeting with Sage and Davidians Martin and Schneider. The meeting produced no substantial change in the situation. Harwell and Sage attest to the fact that a "rapport was established, particularly with Schneider." [47] Unfortunately, whatever success may have been brought about by Harwell's participation was hindered by what Sage called a "distinct change in negotiation strategy." [48] From that point on, Harwell's participation in the negotiations consisted of having his previous conversations broadcast into the residence via loudspeaker.

b. The Texas Rangers[edit]

Another group for which Davidians expressed their trust was the Texas Rangers. A longstanding and well respected law enforcement entity, the Texas Rangers were charged with conducting the final investigation into the raid on the Davidians. The Rangers were never allowed to participate in negotiations with the Davidians. They often had concerns about the conduct of the siege and attempted to express these concerns to Jamar. The Rangers were frustrated by a lack of communication with Jamar. As Captain Byrnes testified before subcommittees, "[I]f I went over there, the door was already closed to where Mr. Jamar was. Several times I waited a half hour, 45 minutes to see him and never saw him, and I finally quit going over there. We couldn't even get a phone call through. It was total lack of communication." [49]

c. The attorneys for the Davidians[edit]

Another concern of the Rangers was the FBI's decision to allow face- to-face meetings between the Davidians and their attorneys. While it is common for a client under investigation or prosecution to meet with his attorney, it is rare for an attorney to meet with his client while his client is the subject of a "hostage barricade situation." [50] The negotiators and the tactical agents had different opinions on the wisdom of letting the attorneys into the residence.[51]

The negotiators were concerned that any third party intermediary was ill equipped to be thrust into the fragile negotiations that consume barricade situations. Negotiators were willing to use the attorneys in ways that would jumpstart the negotiations.[52] The tactical team, along with the Texas Rangers, were concerned about the opportunity that DeGuerin and Jack Zimmerman, the attorney for Steve Schneider, would have to destroy evidence. But even Texas Ranger Senior Captain Maurice Cook agreed with the wisdom of letting the attorneys into the residence by saying, "[Y]ou got to do what works." [53] Jamar made the decision because he was "focused on resolving the standoff peacefully." [54] DeGuerin and Zimmerman entered the residence on several occasions. The attorneys spent a total of 32 hours with Koresh.[55]

(i) Progress was made from the visits.--Negotiators and Jamar had the sense that the meetings were "positive." [56] On April 1, when the attorneys requested extensions of the pre-approved time limits, they described their progress as "terrific." In that meeting, David Koresh promised to come out "after Passover." [57] The actual date of Passover, however, was a matter of controversy.

On April 14, a telephone conversation between DeGuerin and Koresh produced what DeGuerin called a promise to come out.[58] The FBI called this promise "a new precondition for his coming out." [59] The precondition was the completion of David Koresh's written interpretation of the "Seven Seals," discussed in the Bible's Book of Revelation.

A letter attesting to the surrender offer followed the verbal promise. But the FBI remained skeptical.[60]

(ii) Negotiator and lawyers consultation after the first visit.-- After each visit and on occasion when there was no visit, the FBI and the lawyers had discussions about strategy and about arranging more visits with Davidians. The agents worked closely with the attorneys before each visit and attorneys cooperated with the FBI.

Before the trips into the Davidian residence, the agents and attorneys arranged time limits and topics for discussion while the attorneys were inside.[61] On only one occasion did the attorneys ask to remain in the residence longer than the arranged time.

c. lack of appreciation of outside information[edit]

1. Why the FBI did not rely more on religious advisors to understand Koresh[edit]

Many argue that the reason negotiations failed was that the FBI failed to grasp the nature and strength of Branch Davidian beliefs. There exists a conflict among those who believe negotiators should never become sympathetic with the "hostage taker" and others who believe the only way to negotiate is to understand the subject of the negotiations.[62] The FBI became frustrated with endless dissertations of Branch Davidian beliefs and ignored assertions of religious experts that Koresh could be negotiated with on a theological level.[63] The FBI grew skeptical that Koresh could be convinced that ending the siege was in his best interest.

a. The FBI standard in negotiations[edit]

Mainstream negotiation tactics call for the negotiator to remain aloof from the subject of the negotiations, to pursue crisis management team goals, and never become embroiled in the message of the hostage taker.[64] The focus of negotiation training is "active listening." The negotiator is supposed to find out what the subject wants or demands.

Negotiation training gives preference to those with a social science background. The FBI negotiation curriculum includes abnormal psychology and the social sciences. Time after time, David Koresh, and Davidians Wayne Martin and Steve Schneider, sought to speak with someone who could understand the Branch Davidian interpretation of the Seven Seals. The FBI resisted the desire to engage Koresh in such a discussion, saying that it was sure to be fruitless.[65] McClure testified at the hearings that he had been involved in a similar situation when religious discussions of a barricaded group had proved fruitless. He said, "In 1987, I was involved in a situation in Atlanta where 1,400 Cubans were holding 121 hostages. Their religious belief was very important to them during that period of time. Those hostages were held for 12 days. Every time that we gave a negotiations and responded to their religious questions and got in their head or tried to get into their head and they tried to get into our about religion, no progress was made. When we talked about secular issues, we got people out." [66] This experience appears to have led the FBI to avoid religious discussions with the Davidians.

b. Experts consulted[edit]

When the FBI first arrived in Waco, it had little information about David Koresh and the Davidians. Negotiators sought as much information as possible about the group. It was left to the experts hired by the FBI to create a profile of David Koresh and develop a plan to negotiate with the Davidians.

Dr. Eugene Gallagher, professor of Religion at Connecticut College, calls Glenn Hillburn, Dean of the Baylor University Department of Religion, "the one expert with a firm grasp of the history of the Davidians within the framework of the Seventh Day Adventists." [67] According to the Justice Department Report, Glenn Hillburn, Dean of the Baylor University Department of Religion, "provided information on the Book of Revelations, the Seven Seals, and other Biblical matters." [68] The report makes no mention of special insight Hillburn provided into the peculiar habits of the Davidians or David Koresh. Other than Dr. Hillburn, Dr. Gallagher concludes, the FBI consulted few religious experts with knowledge of Branch Davidians and what they believed. Indeed, Stone says in his Report and Recommendations, "One of my fellow panelists believes--and I am convinced--that the FBI never actually consulted with a religious expert familiar with the unconventional beliefs of the Davidians." [69]

c. The failure to consult outside experts[edit]

The FBI relied on experts with whom it was familiar. But, there were individuals who embraced the peaceful resolution of the situation in Waco as their personal crusade. Among those who made serious efforts to help were Philip Arnold, Associate Professor of Religious Studies at the University of North Carolina at Charlotte, and Gene Tabor of the Reunion Institute in Houston, TX. It was difficult for Arnold and Tabor to intercede. The Justice Department Report mentions that "[t]he FBI refused to permit a live telephone conversation" between Arnold and Schneider although Schneider requested Arnold by name.[70]

d. What communications did they have with Koresh?[edit]

Tabor and Arnold saw a video sent out by Koresh and thought effective negotiation was possible if the FBI dealt with Koresh within a framework of the Bible, particularly the Seven Seals.[71] Koresh had heard Arnold giving his interpretation of the Seven Seals and offering assistance on the KJBS radio.[72]

Neither Arnold nor Tabor ever spoke with Koresh. Koresh and Schneider repeatedly asked to speak with Philip Arnold. Arnold and Tabor were allowed to send in tapes of their interpretations at the request of DeGuerin, Zimmerman and Koresh, himself. But at no time were they allowed to participate in the negotiations.

e. Did the FBI take any of this advice?[edit]

It goes against standard negotiation policy to allow outsiders to participate in serious and dangerous "hostage" negotiations. Consistent with the advice of FBI experts, the negotiators in Waco did not allow outsiders to participate in negotiations out of fear that something they said might inflame David Koresh. Arnold and Tabor were no exception, they were ignored.

From the very beginning, negotiators failed to take seriously the point of view of the Davidians.[73] According to the Justice Department Report, "There were certain areas of activity in which the FBI did not seek outside help. The FBI did not request assistance . . . with negotiations, since the FBI's best negotiators were assigned to Waco throughout the fifty-one day standoff." [74] It appears that the FBI paid no attention to those experts who believed Koresh could have been reasoned with within the proper religious and biblical context.

Koresh and Davidians talked frequently in religious terms. In their book, Tabor and Gallagher quote the following passage from the negotiation tapes to point out frustration with the FBI's lack of familiarity with theology:

HENRY: Let's not talk in those terms, please.
KORESH: No. Then you don't understand my doctrine. You don't want to hear the word of my God.
HENRY: I have listened to you and listened to you, and I believe in what you say, as do a lot of other people, but the, but the bottom line is everybody now considers you David who is going to either run away from the giant or is going to come out and try to slay the giant. For God's sake, you know, give me an answer, David. I need to have an answer. Are you going to come out?
KORESH: Right now, listen.
HENRY: Right now you're coming. . .
KORESH: "He that dasheth in pieces is come up before thy face: keep the munition." What's the munition? "Watch the way."
HENRY: One of the things, one of the things is I don't understand the scriptures like you, I just don't.
KORESH: Okay, if you would just listen, then I would show you. It says here--it says here, "The Chariots shall be with flaming torches." That's what you've got out there [referring to the tanks].[75]

FBI negotiators maintain that they never discounted Branch Davidian beliefs. However, in one conversation with Koresh, Byron Sage responds to another long dissertation by Koresh. Sage says, "That's garbage." Later in that same conversation, Sage says, "No one in the FBI has ever scoffed at your beliefs." [76]

In their book about Waco, Tabor and Gallagher are critical of the negotiations. They write, "Koresh's interpretations went completely over the heads of the FBI negotiators, who were understandably put off by this approach." [77] Despite the fact that the overwhelming majority of David Koresh's communications involved intense and lengthy dissertations on biblical text, the FBI refused to allow a religious expert to engage David Koresh or to consult in negotiations.

Much of the criticism of negotiations centered on the fact that the FBI never engaged Koresh or the Davidians in a discussion of theology. Noesner said "there are two consistent themes that you will hear from every mental health expert that knows anything about crisis intervention, crisis negotiation, and that is that you neither embrace someone's belief system nor do you discount it." [78] Some are convinced that a prerequisite to successful negotiations with the Davidians is a firm grasp of the religious doctrine on which they base their beliefs.[79] In hearings before the subcommittees, Arnold testified that the FBI negotiators were ill prepared for productive discourse with the Davidians, "[The negotiators] were not able to perceive the meaning of the religious language the Davidians were using. They were not able to understand the actions the Davidians took. Had they had knowledge of the religious faith of the Davidians, this story could have ended in a much better and happier way." [80] Others simply suggested that negotiators should search out experts to grasp better the subjects of the negotiations. As Representative Henry Hyde, chairman of the Committee on the Judiciary, said, "There is an unwillingness to understand or believe that there are people in the world who are persons of belief and they believe strange things by our standards. [H]ad the understanding been these weren't hostages, these were willing members of a religious group, and to get in there and to dissipate them would take persuasion, argumentation from their frame of reference, not tear gas and tanks." [81] With at least a good background on the subject of religion, particularly the religious dogma professed by the Davidians, the negotiators could have better manipulated the conversations.

2. Others who contributed information[edit]

It is clear that all of the attention focused on Waco and the standoff at Mount Carmel encouraged many people to contribute their ideas to the negotiations. The method for processing this information is central to discerning whether any valuable advice or data was omitted or, inadvertently or intentionally, ignored. In this case, as in others, the actions taken by the FBI depended largely upon the information used, and to whom it was made available when key decisions were being made.

a. How much information was coming in?[edit]

It is clear that a great deal of unsolicited information was being sent to Waco. In addition to people honestly offering assistance, a variety of people came to Waco to express a variety of sentiments to officials on site.[82] This was in addition to the experts retained by the FBI. As the Justice Department report suggests, "The FBI also received unsolicited advice and offers of assistance from many individuals; not surprisingly, this input was rarely useful." The report continues, "A smaller number of offers came from individuals lacking a firm grip on reality, such as people claiming to be God or Jesus offering to 'order' Koresh to leave the compound."

Negotiator Byron Sage recounted in a Justice Department interview that "an incredible number of people called the negotiators offering help.[83] [I] tried to field these offers early on, but then [I] farmed it out to the behavioral science people to weed out the good stuff." [84] Others indicate that information was indiscriminately delivered to negotiators.[85] According to Dr. Stone, "all kinds of experts . . . allegedly were consulted . . . and took it upon themselves to offer unsolicited advice." Stone continues, "the prevailing pattern in the information flow during the crisis was for each separate expert to offer the FBI an opinion." The problem, it seems, was too much information.[86]

b. The method set up to communicate with people calling to help[edit]

Many people called who were deemed "lacking a firm grip on reality." When asked about such contacts with agents and officials in Waco, Chief Negotiator Gary Noesner said he knew nothing about them. Offers for help, however, were referred to the consulting experts. The experts analyzed the information provided or the assistance offered and passed it along to the negotiators in the form of memoranda.[87] Rarely did these people talk to negotiators, themselves, and never were they allowed to speak to the Davidians.

Sage maintains that the theologian on whom he depended the most was Glenn Hillburn, the chairman of the Baylor School of Religion. In addition to his role as religious advisor to Sage, Hillburn "provided . . . his feeling as to the credibility and bona fides of people who called in offering their help." [88] In one instance, an offer of assistance was made by the Harvard Negotiation Project.[89] The letter sent to Waco was written by Roger Fisher, director of the Harvard Negotiation Project, and was based on an analysis of the situation that was underway at the project and utilized the principles of negotiation that the project taught every day. The proposal made in the letter to Jamar included putting together "a small team . . . as familiar as possible with Koresh and the situation inside the residence" that would "find a potential `third party' and work urgently on putting together a package that would be attractive to Koresh." The letter suggested that the government allow "the third party to come to Waco and make the offer, which will inherently expire if not accepted before the third party leaves Waco in two or three days." [90] The advice that the Harvard Negotiation Project offered was disregarded. Although the letter is mentioned in the Justice Department report, there is little evidence that the negotiators took any of that advice.

Despite a steady flow of information and advice, the FBI did not make any serious attempt to evaluate and disseminate the suggestions that came to its attention. The Justice Department maintains that it kept "meticulous" [91] track of the offers of assistance. It also concedes that it did not need or accept help in many areas.[92] Yet it is difficult to understand why the offers of help from respected, credible religious experts and experts in negotiations were rejected.

d. the fbi's failure to follow its own expert's recommendations[edit]
1. What the FBI's own experts recommended[edit]

According to Stone, "the FBI investigative support unit and trained negotiators possessed the psychological/behavioral science expertise they needed to deal with David Koresh and an unconventional group like the Davidians." [93] Among the many experts, the talent was extraordinary and the amount of information they had to use was enormous. It was not difficult for the experts to come to a consensus.

The clearest consensus among the FBI experts and others was not to provoke the Davidians. The experts feared that any provocation could lead Koresh to initiate the fiery end he predicted. FBI experts agreed with this approach.[94] As Stone writes in his separate evaluation, "I believe the FBI behavioral science experts had worked out a good psychological understanding of Koresh's psychopathology. They knew it would be a mistake to deal with him as though he were a con-man pretending to religious beliefs so that he could exploit his followers." [95]

Smerick coauthored six memoranda on David Koresh based on Koresh's past behavior and listening to negotiations. In each of the early memoranda, Smerick proposed that the FBI approach the Davidians with caution and avoid provocation. Smerick said that the cautionary memoranda were written expressly because "the FBI commanders were moving too rapidly toward a tactical solution, and were not allowing adequate time for negotiations to work." [96] In his final memorandum, Smerick proposed "'other measures' . . . because negotiations had met with only limited success." [97] As the Justice Department Report maintains, "those other measures included sporadically terminating and reinstating of utilities; moving equipment and manpower suddenly; downplaying the importance of Koresh in the daily press conferences; controlling television and radio reception inside the compound; and cutting off negotiations with Koresh." [98] Although these suggested measures are exactly the tactics the FBI used in Waco, Smerick suggests that while the "negotiators were building bonds . . . the tactical group was undermining everything." [99] Smerick continued, "[e]very time the negotiators were making progress the tactical people would undo it." [100]

During the hearings before the subcommittees, Smerick was questioned about this abrupt change in his advice; and whether senior Justice Department officials pressured him to change his advice to match the course of action preferred by the on-scene commanders. Smerick testified that he felt "no overt pressure" [101] to alter his memoranda. But he said that he was aware that the FBI wanted different advice. Smerick told the subcommittees:

I had received information from FBI headquarters that FBI officials were not happy with the tone of my memos. From the standpoint that they felt it was tying their hands, meaning they were not going to be able to increase any type of pressure within that compound and instead were going to have to rely on strictly negotiations.[102]

Smerick developed profiles and memoranda that corroborated the opinions of qualified experts both in and outside the FBI. Smerick's opinion on this matter is the only expert opinion that changed as the crisis continued.

e. the decision to dismiss the surrender plan[edit]

On March 2, everyone in the residence was lined up, ready to exit, when Koresh was "told by God to wait." [103] As far as the FBI was concerned, Koresh's credibility was broken. After a trip into the residence, DeGuerin and Zimmerman told Jamar of a new surrender plan based on the writing of the Seven Seals. The FBI did not believe it. But there was evidence that pointed to a genuine change in attitude.[104]

1. "Kids lined up with their jackets on"[edit]

The surrender plan on March 2 was marked by evidence that everyone but Koresh was prepared to exit the residence. After making much of his promise to come out, Koresh maintained that God told him to wait. In preparation for the surrender, the FBI and the Davidians worked out a complicated plan that involved everything from buses that would carry the Davidians to the order in which everyone would stand. A proposal to involve the Texas Rangers in a surrender "wasn't rejected, but it wasn't greeted with a lot of enthusiasm." [105]

In connection with the DeGuerin and Zimmerman visits to the residence, Jamar negotiated a similar surrender plan with the attorneys. The only change that the attorneys and the Davidians suggested was that the children come out with their parents, rather than separately.[106]

2. Breakthrough with Koresh's letter[edit]

Following one visit to the residence by DeGuerin and Zimmerman, Koresh sent out a letter attesting to the fact that he was working on the Seven Seals.[107] On April 13 and 14, Koresh said that he had "received his mission" from God and that he would be out of the residence soon. According to DeGuerin, "everyone was relieved they did not have to die." [108] Koresh had written letters before. Most had been rambling biblical dissertations. The final letter was different, because it mentioned a deadline by which to determine when Koresh would surrender. That deadline was the writing of Koresh's interpretation of the Seven Seals.

There were other reasons that some saw the letter as a true breakthrough. The April 14 letter was written in a prosaic form different from the other letters. Koresh's letter expressed the desire to come out of the residence and to "stand before man to answer any and all questions regarding my actions." [109] More important to some religious scholars and observers than a professed desire to surrender, however, was the fact that the letter indicated Koresh had found a basis for surrender in his own religious doctrine.[110] Tabor and Arnold had been attempting to persuade Koresh that adequate reason for surrendering could be found in the Bible. The major change in the April 14 letter, according to Tabor, was that "Koresh used the religious arguments in this letter for why he had now seen that the scriptures told him to come out." [111] Arnold and Tabor, among others, found affirmative evidence that Koresh would surrender in the fact that "[Koresh] could come out and preach his message." [112] Tabor told the subcommittees that "[t]hat was the positive end. And court was negative. But DeGuerin convinced [Koresh] that court would end positively." [113] Tabor, Arnold, DeGuerin and Zimmerman believed that a surrender was eminent.

Further evidence of the fact that Koresh's letter was a genuine breakthrough was the reaction of those in the residence to the news of the surrender. Upon discovery that Koresh had given a deadline for surrender, there was obvious "jubilation" at the prospect of ending the siege.[114] In the background of the tapes, cheering can be heard. As Tabor told the subcommittees, "You can exactly see the mental state of the people inside. It is buoyant. They are talking about coming out. They are excited about it." [115] And in interviews on the subject, Tabor quotes surviving Davidians as saying, "We were so joyful that weekend because we knew we were coming out, that finally David had got his word of how to do this legally, the lawyers, and theologically in terms of his system." [116] The Davidians believed that they were coming out.

3. The breakthrough communicated to Jamar[edit]

On April 14, DeGuerin gave Koresh's letter to Jamar. Jamar testified that he knew of the "breakthrough." Upon reading the letter and talking with DeGuerin and Zimmerman, Jamar told them "that there was plenty of time." [117] In his testimony before the subcommittees, Jamar recalled, "What I said was, if there is writing of a manuscript, if there is progress, we will take the time." [118] Jamar gave DeGuerin and Zimmerman the impression that he believed the offer to surrender was serious. DeGuerin and Zimmerman were so confident that Koresh was writing the seals and would soon surrender, that they returned to Houston. Jamar, however, never took the surrender offer seriously. He told the subcommittees, "It was serious in [DeGuerin's and Zimmerman's] minds. I think they were earnest and really hopeful but in Koresh's mind, never a chance. I'm sorry." [119]

4. The failure to communicate this breakthrough up the chain of command[edit]

In the final days of the standoff, no one communicated to the Attorney General or anyone senior to Jamar that there might be a genuine attempt to end the siege by Koresh. No one put forth the possibility that a surrender was in the future. When asked by the subcommittees whether the Attorney General had been notified of the surrender plan, Jamar said, "I doubt it because it was not, from our understanding . . . a serious plan." [120] In an April 15 conversation, Sage told Associate Attorney General Webster Hubbell that there was little use in negotiating further.[121] Sage, Jamar, and Ricks all acted as though nothing out of the ordinary had occurred in Waco on April 14. They did not give the Department of Justice all of the information they had about the situation in Waco and misled them about the previous success of some negotiators.

It appears that DeGuerin and Zimmerman were the only people involved in the negotiations who took Koresh's promise seriously. SAC Jamar and the FBI negotiators saw this as another attempt at delay by Koresh. As a result, they did not give this new surrender offer a chance to work.

5. Evidence that Koresh was writing his interpretation of the Seven Seals[edit]

The FBI had no concrete evidence that the Seals were being written.[122] Even negotiation transcripts give conflicting indications as to whether the work was in progress. Only after physical evidence was removed from the destroyed residence did the FBI find proof that the Seals were being written. Surviving Branch Davidian Ruth Riddle said that the Seals were being written.[123] Judy Schneider was transcribing the Seals and Riddle had the computer disc containing that writing.[124] It is clear that some work was being done on Koresh's interpretation of the Seven Seals.

6. Why the FBI disregarded the evidence that the Seven Seals were being written[edit]

Although Koresh indicated he was writing his interpretation of the Seven Seals, the FBI was not willing to give the surrender plan an opportunity to work. The FBI was frustrated and appeared to give to Justice Department officials only one option. Of the breakthrough to write the Seals, Sage testified before the subcommittees that "this first of all was not a new revelation to us as far as the Seven Seals." [125] From early in the standoff it appeared that the FBI had made up its mind that the Davidians weren't coming out of the residence of their own free will. Of the possibility of surrender, Jamar testified, "From [Koresh's] conduct from February 28th until April 19th, I would have every reason to believe he would not [surrender]." [126] The FBI was convinced Koresh would never surrender.

f. findings concerning the negotiations to end the standoff with the davidians[edit]

  1. The FBI allowed negotiators to remain in position at the Branch Davidian residence for too long, resulting in the physical and emotional fatigue, affecting the course of the negotiations. The negotiators were in place for 51 days. Negotiations occurred almost constantly 24 hours a day. Despite a steady rotation of negotiators, it is clear from the transcripts that negotiators allowed their emotions to influence the discussions.
  2. The FBI did not take appropriate steps to understand the mindset of the subjects of the negotiations. Numerous experts offered their advice on the specific beliefs of Koresh and the Davidians. Throughout the process, it is clear that the negotiators did not engage the Davidians in meaningful negotiations by ignoring the Davidian point of view. The subcommittees believe that the course of the negotiations could have been better directed by an increased understanding of the Davidians' religious perspective.
  3. The FBI leadership failed to make crucial decisions about which strategy to employ. Two separate strategies were enacted simultaneously. The tactical pressure constantly worked against the strategy of negotiation. FBI leadership engaged these two strategies in a way that bonded the Davidians together and perpetuated the standoff.

g. recommendations[edit]

  1. Federal law enforcement agencies should redesign negotiation policies and training so that physical and emotional fatigue will not influence the course of negotiations. In anticipation of future negotiations involving unusually emotional subjects, such as Koresh, or those which may involve prolonged periods of time during which negotiators may become physically or emotionally fatigued, law enforcement agencies should implement procedures to ensure that these factors do not influence the recommendations of negotiators to senior commanders. Such procedures may involve using additional negotiators in a team approach, limiting the amount of time a particular negotiator remains on duty, limiting the amount of interaction between law enforcement officials and the subject of the negotiations until satisfactory behavior is elicited from the subject, or applying other "rewards" and "punishments" in order to elicit positive responses from the subject during negotiators.
  2. Federal law enforcement agencies must 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 training, policies and procedures of Federal agencies should be revised to emphasize the importance of developing an understanding of their investigative targets.
  3. Federal law enforcement agencies should implement changes in operational procedures and training to provide better leadership in future negotiations. The subcommittees believe that senior commanders should be given additional training in critical decisionmaking and that operational procedures be modified in accordance with this training. The subcommittees believe that the result of these changes should be that commanders will be better equipped to make necessary decisions from limited options with limited information during critical incidents. The benefits of these changes will protect not only the targets of government action but, by making it more likely that Federal law enforcement officials will carry out their mission in the manner most likely to succeed, but will help to protect the safety of the law enforcement officers as well.
  4. Federal law enforcement agencies should take steps to increase the willingness of its agents to consider the advice of outside experts. The subcommittees recommend that Federal law enforcement officials expand their capacity to obtain behavioral analyses of the targets of their investigations. This could be done through an expansion of those parts of the agencies in which behavioral analyses is performed. Additionally, this capacity could be enhanced through more formal arrangements with reputable outside consultants. The Nation's universities contain a wealth of experts whose expertise cuts across all fields of human behavior. Federal law enforcement should consider a more formal process for identifying qualified experts and entering into arrangements with them whereby they would be available when called upon.
  5. Federal law enforcement agencies should modify standard negotiation policies to allow senior commanders to seek outside expert participation in negotiations when warranted by special and extenuating circumstances and the absence of in-house expertise. The immense number of people seeking to assist in the negotiations at Waco provided a good pool of resources from which to choose experts. Some of those people offering their assistance could have proven useful in the negotiations. The FBI should encourage agents to reach out for creative solutions to barricade situations in the future.

  1. Briefing by Federal Bureau of Investigation Supervisory Special Agent Gary Noesner to the subcommittees, November 1995.
  2. Id.
  3. Id.
  4. U.S. Dept. of Justice, Report to the Deputy Attorney General on the Events at Waco, TX 75 (1993) [hereinafter Justice Department Report]. "The guiding principle in negotiation and tactical employment is to minimize the risk to all persons involved--hostages, bystanders, subjects, and law enforcement officers." But the Justice Department report states that the negotiating components of the FBI strategies were "more often contradictory than complimentary."
  5. Alan A. Stone, M.D., Touroff/Glueck Professor of Psychiatry and Law at Harvard University, originally was asked to participate in the Department of Justice Waco review team. For a variety of reasons, including time constraints, Dr. Stone submitted an individual report apart from the Justice Department Report. See infra note 373.
  6. Alan A. Stone, Report: To Deputy Attorney General Philip Heymann, Report and Recommendations Concerning the Handling of Incidents Such as the Branch Davidian Standoff in Waco, TX, Panelist, Alan A. Stone, M.D., (November 8, 1993) [hereinafter Stone Report].
  7. Id.
  8. Hearings Part 2 at 316. Gary Noesner testified before the subcommittees, "At Waco, there was a fundamental strategy disagreement on what was the best way to proceed. In Waco, the negotiation team wanted to have a lower-keyed approach and the tactical team's approach was more to apply pressure." Id.
  9. Id. at 147.
  10. Id. at 321.
  11. Justice Department Report at 78.
  12. Id.
  13. Briefing by Gary Noesner to the subcommittees.
  14. Hearings Part 2 at 300.
  15. Briefing by Gary Noesner to the subcommittees.
  16. Hearings Part 2 at 311.
  17. Briefing by Gary Noesner to the subcommittees.
  18. Stone Report at 23.
  19. Id.
  20. Id. at 24.
  21. Memorandum from Criminal Investigative Analyst Peter Smerick and Dr. Park Dietz, Clinical Professor of Psychiatry and Biobehavioral Sciences at the UCLA School of Medicine (March 5, 1993).
  22. Id.
  23. Hearings Part 2 at 74-75.
  24. Id.
  25. Id. at 195. Captain McClure thought the playing of chants and rabbit slaughters was unwise.
  26. Thomas Robbins & Dick Anthony, Sects and Violence: Factors Enhancing the Volatility of Marginal Religious Movements, in Armegeddon in Waco: Critical Perspectives on the Branch Davidian Conflict 236, 240 (Stuart Wright ed., 1996). "Koresh clearly anticipated a government assault, and the actual military-style raid that the BATF perpetrated against the Waco Davidian settlement in late February 1993 'seemed to those inside to validate at least part of Koresh's prophecy.' " Id.
  27. Memorandum from Criminal Investigative Analyst Peter Smerick (March 8, 1994).
  28. Justice Department Report at 185.
  29. Justice Department Report at 185.
  30. Hearings Part 2 at 317.
  31. Edward S.G. Dennis, Jr., Evaluation of the Handling of the Branch Davidian Standoff in Waco, TX 5 (1993) [hereinafter Dennis Report].
  32. McLennan County Sheriff's Department, 911 Transcripts (February 28, 1993).
  33. Id.
  34. Justice Department Report at 105. [E]ven after Schneider and Cavanaugh had agreed to call a cease-fire, it took several minutes to achieve one. Schneider for his part had to walk throughout the residence to tell people inside to stop shooting. Cavanaugh, who had no direct radio link to each agent, had to advise the team leaders of the cease fire and the team leaders in turn had to communicate with their agents. The cease-fire was negotiated for a period of time before the shooting finally stopped. Id.
  35. Department of the Treasury Document, statement of James Cavanaugh:
    "I called the compound directly on the phone from the undercover house. I reached a man named Steve, later identified as Steve Schneider. I told him I was an ATF agent and I wanted to talk to him about this situation. As should be expected, the activity inside the compound was very frantic, people were screaming and yelling, and there was still shooting going on both sides. Steve was very excited and very hostile.
    "I wanted to negotiate a cease fire, and he [Schneider] was agreeable. I am not going to be good on the time of how long it took, but it took a little while to negotiate that. He had to go throughout the compound, which is very large, telling everyone not to shoot. While he was doing this, there was still shooting going on both sides. I had to get on the command net frequency and tell the commanders on the ground there not to shoot, and they had to relay that to all 100 agents, who were around there, so it took a little time to arrange it.
    "Once I returned to the rear command post I called back in on the telephone to the residence about 2:00 p.m. and I spoke with Steve and David Koresh about what was going on. We had long conversations about the warrant and we also had a lot of conversations about Biblical passages and Mr. Koresh's belief that he was the Lamb of God, who would open the Seven Seals. As you might assume, he was very hostile, very angry, and very upset."
  36. Hearings Part 2 at 187. ATF agent James Cavanaugh, the initial negotiator during the standoff, testified before the subcommittees, "[The FBI] established trust with Koresh. Id. Cavanaugh appears to have been accomplished at active listening. The FBI, however, did not choose to retain Cavanaugh.
  37. A summary of the Davidians' requests can be found in the Justice Department Report in the Appendix.
  38. Hearings Part 2 at 74. Representative Peter Blute, when questioning a witnesses, stated, "We also know that, after the raid, when the siege started, the initial negotiator was getting through to Koresh and they had a kind of relationship intellectually that allowed numerous people to be released during that period. . . ." Id.
  39. Transcripts of the Negotiations Between the FBI and the Davidians (March 4, 1993) [hereinafter Negotiation Transcripts].
  40. Justice Department Report at 22.
  41. Treasury Department Report at 114. Justice Department Report at 1.
  42. Justice Department Report at 144. At the time, the FBI's HRT consisted of a 50 person force. It was trained to deal with highly dangerous missions. The team boasts "sophisticated armament including infra-red aiming devices, daytime and nighttime sniper capabilities, explosive and mechanical breaching abilities, and certain non-lethal weapons." The agents are trained for tactical operations on land and at sea. The HRT was created in the 1980's to confront a growing number of unusually dangerous and complicated criminal situations.
  43. U.S. Dept. of the Treasury, Report of the Department of the Treasury on the Bureau of Alcohol, Tobacco, and Firearms Investigation of Vernon Wayne Howell also known as David Koresh at 113-114 (1993) [hereinafter Treasury Department Report].

    Shortly after the shoot-out, Chojnacki spoke with Hartnett, who was in Washington, DC and recommended that the FBI Hostage Rescue Team be brought to Waco to handle what had become a siege situation. At roughly the same time, FBI Director William Sessions learned of the shoot-out, contacted ATF Director Stephen Higgins and offered his condolences and his agency's assistance. After Hartnett arrived at the National Command Center and was fully briefed, he determined that the FBI HRT should be sent to Waco.
    Soon after the cease-fire Hartnett contacted Douglas Gow, FBI Associate Deputy of Investigations, and formally requested FBI assistance. Gow, in turn, contacted FBI SAC Jeffrey Jamar (San Antonio) and briefed him on the situation. FBI Special Agent James Fossum (Waco) was informed of the crisis by both AUSA Phinizy and another local FBI agent. Shortly after [Fossum] arrived, Chojnacki told him the ATF would welcome whatever assistance the FBI could provide.
    * * *
    Clark informed [Noble] that a request for the HRT had already been made by ATF and that the HRT was on its way to the residence to evaluate the situation.
    Jeffrey Jamar (San Antonio), as the SAC of the affected district, was given command of the FBI operation. He arrived in Waco at about 5:30 p.m. and together with Fossum and several other local FBI agents, immediately began to establish a command post and assess the situation. The balance of the HRT members began arriving on March 1. After urther discussions with FBI, ATF and Treasury officials, Noble spoke with ATF Director Higgins and ADLE Hartnett early March 1. Noble advised them that if the FBI determined that the HRT was needed for a long term, the FBI should have operational command to resolve the standoff. Id.
  44. Justice Department Report at 133.
  45. Id.
  46. Briefing of Gary Noesner to the subcommittees.
  47. Justice Department Report at 133.
  48. Id. at 134.
  49. Hearings Part 2 at 159.
  50. Id. at 23. DeGuerin says it's a frequent practice of attorneys to meet with their clients before they are arrested. Id. Texas Ranger Captain Byrnes testified before the subcommittees, "We went to see Mr. Jamar and offered a Ranger to help with the negotiations, if that would be helpful--not one of the captains but one of the Rangers that had been trained, most of them, by the FBI. He thanked us for that offer, and we never heard anything else about it." Id. at 297.
  51. Id. at 23.
  52. FBI Commander Jeffrey Jamar testified before the subcommittees, "I was hopeful they could appeal to his self-interest. Everything Mr. Koresh did was to his self-interest." Id. at 312-313.
  53. Texas Ranger Captain Cook testified before the subcommittees that when all else fails in negotiations, "you got to do what works. I think you can get too formalized." Although formal training opposes this. McClure says it can be used as a last resort. Id. at 146.
  54. Justice Department Report at 91. "The proposed face-to-face meeting between Koresh and DeGuerin caused significant controversy within law enforcement. SAC Jamar made the decision to permit the meeting, clearing it with U.S. Attorney Ederer. The AUSA's [Assistant U.S. Attorney] and the Texas Rangers, who would be responsible for the eventual prosecutions, strongly opposed the meeting. Jamar was focused on resolving the standoff safely, while the prosecutors and the Texas Rangers were focused on the integrity of future court proceedings. The prosecutors and Texas Rangers were afraid that the defense attorney would give advice to Koresh which could result in the destruction of evidence and cause a more difficult prosecution." The attorneys met inside the residence approximately seven times.
  55. Hearings Part 2 at 79.
    Mrs. Thurman: How many total hours did you spend with [Koresh], do you think, in the period of time that you represented him.
    Mr. DeGuerin: About 32 hours.
  56. Id. at 304-306.
  57. Id. at 47.
  58. Negotiation Transcripts (April 14, 1993).
  59. Hearings Part 2 at 304-306.
  60. Jamar testified before the subcommittees, "They would build their [DeGuerin and Zimmerman] spirits up. I can remember one instance when DeGuerin came out and, believe me, he put his best effort in and I give him all the credit in the world for the effort he made. He would build him up and then cut his legs out from under him. I remember one instance where he said he was making a point with him and Koresh feigned illness. It happened to us all the time." Id. at 297-298.
  61. Id.
  62. Noesner Briefing. Noesner maintains that a negotiator should never become embroiled in a discussion of the beliefs of the subject of the negotiations; never give the barricaded person the benefit of believing he has control of the conversation. Dr. Phillip Arnold, of the Reunion Institute in Houston, TX, and Dr. James Tabor, Associate Professor of Religious Studies at the University of North Carolina at Charlotte, suggest that Koresh could have been dealt with through a discussion of his biblical interpretations. According to the Harvard Negotiation Project, "negotiating [with people acting out of religious conviction] does not require compromising your principles. More often success is achieved by finding a solution that is arguably consistent with each side's principles." Roger Fisher et al., Getting to Yes (1991).
  63. Justice Department Report at 26-28. The Department of Justice report recounts Koresh's attempt to tell his side of the situation.
  64. Noesner Briefing.
  65. Hearings Part 2 at 181.
  66. Id.
  67. Interview of Dr. Eugene Gallagher by Robert J. Shea, Special Assistant to the Subcommittee on National Security, International Affairs, and Criminal Justice, in New London, CT (October 23, 1995).
  68. Justice Department Report at 189.
  69. Stone Report at 43, 44.
  70. Justice Department Report at 186. "On March 17, Schneider told the FBI that he and some of the other residence members had heard of Dr. Arnold as someone with expertise about the Book of Revelations and the Seven Seals, and that they wanted to speak with him. The FBI refused to permit a live telephone conversation, but offered an exchange of audiotapes instead. On March 19, the FBI sent an audiotape that Dr. Arnold had made into the compound." Id.
  71. Hearings Part 2 at 46-47.
  72. Id.
  73. Id. at 362. Cavanaugh testified before the subcommittees, "I fully respected their religious beliefs. I think all the other negotiators did, also. I do not mean to be sarcastic, but my feeling was they can worship a golden chicken if they want to, but they cannot have submachine guns and hand grenades and shoot Federal agents. I played the role as policeman. I did not try to fool the Davidians that I was something else. I think that is one reason that Koresh certainly trusted me from the beginning." Id.
  74. Justice Department Report at 157.
  75. James Tabor and Eugene Gallagher, Why Waco? 110 (1995).
  76. Negotiation transcripts, March 17, 1993.
  77. Id.
  78. Hearings Part 2 at 325.
  79. Nancy T. Ammerman, Waco, Federal Law Enforcement and Scholars of Religion, in Armegeddon in Waco: Critical Perspectives on the Branch Davidian Conflict 282, 282-283 (Stuart Wright ed., 1996). Ammerman writes, "Did [the FBI] not know that apocalyptic beliefs should be taken seriously, that they were playing the role of the enemies of Christ? Did they not know that any course of action that did not seem to come from the Bible would be unacceptable to these students of Scripture? I have yet to encounter a single sociologist or religious studies scholar who has the slightest doubt that the strategies adopted by the FBI were destined for tragic failure." Id.
  80. Hearings Part 2 at 144-145.
  81. Id. at 47-48.
  82. Justice Department Report at 156. The report discusses the among and type of information coming into Waco. "The FBI also received unsolicited advice and offers of assistance from many individuals; not surprisingly, this input was rarely useful." For example, on March 16, 1993 a well-known rock band contacted the FBI and offered to perform outside the Mount Carmel Residence, and to play a song that U.S. helicopters broadcast at enemy troops to demoralize them during the Vietnam war. On the other hand, the FBI received an unsolicited letter from the Harvard Negotiation Project containing thoughtful and specific suggestions to assist the negotiators in formulating a framework for further negotiations with Koresh. A smaller number of offers came from individuals lacking a firm grip on reality, such as people claiming to be God or Jesus offering to "order" Koresh to leave the compound. One person was arrested on his way to the compound brandishing a samurai sword, which he said "God had told him to deliver to Koresh." Id.
  83. All incidents investigated by the Department of Justice contain interviews of those involved in the incident. This interview was conducted in conjunction with the investigation of the incident at Waco.
  84. U.S. Dept. of Justice, record of interview of Byron Sage by Susan DeBusk (August 26, 1993).
  85. Stone Report at 43.
  86. Hearings Part 2 at 145. Tabor registers his sympathy for the FBI in the fact that they were on information overload. He also suggest some procedural way of compiling information and discerning the "nuts from the bolts." Id.
  87. U.S. Dept. of Justice, record of interview with Byron Sage by Susan DeBusk (August 26, 1993). In this interview, Sage recounted how he got information from those offering assistance. In that interview, Sage says, "Many of the contacts with experts would be through the behavioral science people rather than through the negotiators. The negotiators would get the end result of their input from people like Smerick, Young and Van Zandt."
  88. Id.
  89. The Harvard Negotiation Project is an enterprise of Harvard Law School that attempts to present alternatives to traditional negotiation techniques.
  90. Letter from the Harvard Negotiation Project to Jeffrey Jamar (March 29, 1993).
  91. Justice Department Report at 156.
  92. Id. at 156 "Throughout the Waco standoff, the FBI meticulously kept track of all unsolicited offers of assistance, and followed up on those that seemed to promise any reasonable chance of producing helpful information. There were certain areas of activity in which the FBI did not seek outside help. For example, the FBI did not request assistance from any outside law enforcement agencies in performing any of its tactical operations; it did not request assistance with negotiations, since the FBI's best negotiators were assigned to Waco throughout the 51-day standoff, and it did not consult with outside experts regarding the decision to play loud music and Tibetan Monk chants over the loudspeakers to irritate those inside the residence." Id.
  93. Stone Report at 12.
  94. Edward Dennis summarized the opinions of the experts as follows:
    On March 3, 1993 the behavioral experts wrote a joint memo recommending a strategy of trying to work within the Davidians own belief system to talk them out. They recommended acknowledging the conspiracy against the Davidians and their right to defend themselves, and creating an illusion that Koresh could win in court and in the press and would not go to jail. On March 5 behavioral experts wrote a memo advising that the negotiation strategy focus on insuring the safety of the children and facilitating the peaceful surrender of the Davidians. This memo recommended a de-escalation of tactical pressure because movement of tactical personnel would validate Koresh's prophesy that his followers must die defending their faith. As an alternative tactic, the memo recommends that efforts be made to drive a wedge between Koresh and his followers by convincing them that a battle is not inevitable.
    Dennis Report at 49.
  95. Stone Report at 13.
  96. Justice Department Report at 182.
  97. Id.
  98. Id.
  99. 466
  100. U.S. Dept. of Justice, record of interview of Peter Smerick (August 24, 1993).
  101. Hearings Part 2 at 238.
  102. Id.
  103. Justice Department Report at 35.
  104. Hearings Part 2 at 68-69.
  105. Id. at 49.
  106. Id. at 77.
  107. Letter from David Koresh to Dick DeGuerin (April 4, 1993).
  108. Hearings Part 2 at 77.
  109. Letter from David Koresh to Dick DeGuerin (April 14, 1993).
  110. Hearings Part 2 at 68-69.
  111. Id.
  112. Id. at 199-200.
  113. Id.
  114. Negotiation transcripts April 14, 1993.
  115. Hearings Part 2 at 172.
  116. Id.
  117. Id. at 42.
  118. Id. at 305.
  119. Id. at 323.
  120. Id. at 305.
  121. Justice Department Report at 270. "Hubbell recalls that Sage said further negotiations with the subjects in the residence would be fruitless. The only people Koresh had released were older, or people who had given him problems during the time they were in the residence, or children who he had not fathered." Sage further advised Hubbell that Koresh had been disingenuous in his discussions with Sage about the "Seven Seals." He was also convinced that the FBI had not succeeded in getting anyone released from the residence through negotiation. Sage indicated that he had never been in any previous situation in which he had experienced such an impasse. Id.
  122. Hearings Part 2 at 323.
  123. Id.
  124. Id. at 69.
  125. Id. at 357.
  126. Id. at 306.