[Senate Hearing 106-1019]
[From the U.S. Government Printing Office]


                                                       S. Hrg. 106-1019

                 CONTINUATION OF THE WACO INVESTIGATION

=======================================================================

                                HEARING

                               before the

        SUBCOMMITTEE ON ADMINISTRATIVE OVERSIGHT AND THE COURTS

                                 of the

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE

                       ONE HUNDRED SIXTH CONGRESS

                             SECOND SESSION


                               __________

                             JULY 26, 2000

                               __________

                          Serial No. J-106-99

                               __________

         Printed for the use of the Committee on the Judiciary

                   U.S. GOVERNMENT PRINTING OFFICE
73-366                     WASHINGTON : 2001



                       COMMITTEE ON THE JUDICIARY

                     ORRIN G. HATCH, Utah, Chairman
STROM THURMOND, South Carolina       PATRICK J. LEAHY, Vermont
CHARLES E. GRASSLEY, Iowa            EDWARD M. KENNEDY, Massachusetts
ARLEN SPECTER, Pennsylvania          JOSEPH R. BIDEN, Jr., Delaware
JON KYL, Arizona                     HERBERT KOHL, Wisconsin
MIKE DeWINE, Ohio                    DIANNE FEINSTEIN, California
JOHN ASHCROFT, Missouri              RUSSELL D. FEINGOLD, Wisconsin
SPENCER ABRAHAM, Michigan            ROBERT G. TORRICELLI, New Jersey
JEFF SESSIONS, Alabama               CHARLES E. SCHUMER, New York
BOB SMITH, New Hampshire
             Manus Cooney, Chief Counsel and Staff Director
                  Bruce Cohen, Minority Chief Counsel
                                 ------                                

        Subcommittee on Administrative Oversight and the Courts

                  CHARLES E. GRASSLEY, Iowa, Chairman
JEFF SESSIONS, Alabama               ROBERT G. TORRICELLI, New Jersey
STROM THURMOND, South Carolina       RUSSELL D. FEINGOLD, Wisconsin
SPENCER ABRAHAM, Michigan            CHARLES E. SCHUMER, New York
                       Kolan Davis, Chief Counsel
                 Matt Tanielian, Minority Chief Counsel


                            C O N T E N T S

                              ----------                              

                    STATEMENTS OF COMMITTEE MEMBERS

                                                                   Page

Grassley, Hon. Charles E., a U.S. Senator from the State of Iowa.     4
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont, 
  prepared statement.............................................     5
Schumer, Hon. Charles E., a U.S. Senator from the State of New 
  York...........................................................     3
Specter, Hon. Arlen, a U.S. Senator from the State of 
  Pennsylvania...................................................     1
Thurmond, Hon. Strom, a U.S. Senator from the State of South 
  Carolina, prepared statement...................................     5

                                WITNESS

Danforth, Hon. John C., Special Counsel, U.S. Department of 
  Justice, accompanied by James Martin Director of Investigative 
  Operations.....................................................     7

 
                 CONTINUATION OF THE WACO INVESTIGATION

                              ----------                              - 
- -


                        WEDNESDAY, JULY 26, 2000

                           U.S. Senate,    
                    Committee on the Judiciary,    
               Subcommittee on Administrative Oversight    
                                            and the Courts,
                                                    Washington, DC.
    The subcommittee met, pursuant to notice, at 2:04 p.m., in 
room SD-106, Dirksen Senate Office Building, Hon. Arlen Specter 
presiding.
    Also present: Senators Grassley, Torricelli, and Schumer.

 OPENING STATEMENT OF HON. ARLEN SPECTER, A U.S. SENATOR FROM 
                   THE STATE OF PENNSYLVANIA

    Senator Specter. Good afternoon, ladies and gentlemen. The 
Judiciary subcommittee on Department of Justice oversight will 
now proceed. We have with us today Senator John Danforth, who 
has just completed 95 percent of the investigation on the 
incident involving Waco, accompanied by James Martin, the 
Director of Investigative Operations.
    Senator Danforth has carried forward the investigation as 
Special Counsel under appointment by the Department of Justice, 
and he brings to this job and to this hearing room a very 
distinguished resume. We know him very well. I have known him 
well personally for serving in the Senate with him for 14 of 
his 18 years in this body.
    Before that, he was Attorney General of Missouri, and 
before that he was a Yale Law School graduate. And before, 
during and since, he has many accomplishments on his record. I 
compliment Attorney General Reno for appointing someone of 
Senator Danforth stature to undertake a matter of this 
importance with this sensitivity.
    The subcommittee is going to be inquiring into quite a 
number of issues. One of the items which has been highlighted 
in Senator Danforth's preliminary report was the failure of the 
Federal Government to disclose the firing of pyrotechnics into 
the Davidian compound in Waco.
    Senator Danforth has come to the conclusion that those 
pyrotechnics did not start the fire or contribute to the fire, 
but he has raised some very critical issues as to why the 
Federal Government failed to disclose that for such a long 
period of time, with the FBI making an immediate denial that 
pyrotechnics had been fired right after the incident on April 
19, 1993. Then a report from Robert Scruggs, Esquire, 
commissioned by the Department of Justice to investigate the 
incident, reported that there had been no pyrotechnics fired, 
no incendiaries fired.
    The prosecutor for the Department of Justice, Ray Jahn, 
told Congress the same thing, no pyrotechnics. The FBI 
Headquarters memorandum denied the use of pyrotechnics, and 
that found its way into the Attorney General's briefing book. 
And Attorney General Reno and then FBI Director Sessions 
testified that there were no incendiaries.
    One of the issues which we will be asking Senator Danforth 
to comment on--he already has it in his report--is the presence 
of Richard Rodgers, the head of the Hostage Rescue Team, 
sitting behind the Attorney General and the FBI Director and 
not correcting their testimony when they said no pyrotechnics 
had been fired; a January 1996 filing in the civil case where 
the Government was accused of firing pyrotechnics, and again 
there was a denial.
    Senator Danforth has also documented a litany of situations 
where the Department of Justice had denied him and his office 
certain documents, which is reminiscent of what has happened to 
this subcommittee. And we will be going over that list, where 
the Department of Justice resisted the production of notes and 
records of its attorneys that post-dated the appointment of 
Senator Danforth; that he and his office had numerous 
disagreements with the Department of Justice over the 
production of computer files, hard drives, and e-mail; that he 
had repeatedly received assurances from the Department that 
they had produced all hard-copy documents, but witnesses told 
his office that certain categories of documents had not been 
turned over. And individual witnesses arrived at interviews 
with notes, videos, and diaries that the Department of Justice 
had never asked them to provide.
    The cooperation of the Department is a very important item 
in the consideration of our oversight here today. Of special 
interest to this subcommittee was the effort by the Department, 
as Senator Danforth has particularized it in his report, to 
limit his powers, where the Department claimed control over the 
power to waive attorney-client privilege, where the Department 
demanded that the Department of Justice be consulted before the 
Special Counsel took any actions, such as proposing the flare 
forward-looking infrared test and other matters.
    One of the areas of our inquiry will be whether a special 
counsel is adequate. If you have a man of Senator Danforth's 
stature and persistence, a special counsel may be fine. But is 
the Attorney General's own regulation sufficient to guarantee 
independence if you run out of the short list of people like 
Senator Danforth? Senator Danforth appears on quite a few short 
lists, and as long as someone like Senator Danforth is in 
charge, there is a lot of confidence in what goes on. But I 
don't know that the generalized special counsel would be 
adequate to take on this kind of a tough assignment. We will 
also be inquiring into the withholding of the tapes, into the 
role of the Special Forces, and into the activities of the 
Federal Government on the day in question.
    I thought it useful to spell out in some generalizedopening 
statement the parameters and the areas of the subcommittee's interest.
    I yield now to my distinguished colleague, Senator Schumer.

 STATEMENT OF HON. CHARLES E. SCHUMER, A U.S. SENATOR FROM THE 
                       STATE OF NEW YORK

    Senator Schumer. Thank you, Mr. Chairman, and thank you for 
holding this hearing.
    Senator Danforth, I want to thank you and Mr. Martin and 
the rest of your staff for diligent and comprehensive efforts 
in examining a subject that has long troubled the American 
people, and for your willingness to step forth and put your 
considerable reputation on the line to try and make some light 
of all the heat that has accompanied the debate after the 
terrible incident in Waco.
    Mr. Chairman, my theme today is simple on the issue of 
Waco, and that is enough is enough. It is my hope that your 
report will put to rest any remaining uncertainties that have 
surrounded the Waco siege, and I hope when the final report is 
presented to the American people and the Congress, we can put 
this subject to bed once and for all. Enough is enough.
    Attorney General Reno made a wise decision to select 
Senator Danforth to conduct an impartial inquiry into these 
matters. My concern back in September, when new allegations 
concerning the siege surfaced, was that Members of Congress, 
and even the American public, would jump to the wrong 
conclusions based on troubling but incomplete information.
    And as Senator Danforth outlines in his preface, the 
Government's failure to bring complete candor and openness to 
what was essentially an action that they were being blamed for 
in far greater proportion by many than they deserved 
contributed to that blame. We seemed back in September on the 
brink of starting down the road of multiple, roving, wide-
ranging, taxpayer-financed congressional investigations.
    I served as the ranking Member on the first Waco hearing, 
and the issues there seemed to me to be resolved quite clearly. 
Even those who originally felt that the Government was to blame 
had to admit by the end of that first hearing that Mr. Koresh 
set the fire, and all of the discussions since haven't 
disproved that one iota. All sorts of conspiracy theories 
abound, and the blame that the Government faces in this is not 
what they did there, although mistakes were made. In 
retrospect, it could have been handled differently, but the 
mistakes were not made in the way the conspiracists view it.
    But perhaps the greatest mistake was not being open and 
candid. Well, this report puts it all out in the open, and I 
think it should do two things. One, it should be a warning to 
the Justice Department and all Government agencies in the 
future, come clean. The best you can do is reveal all the facts 
right up front, because it will only get worse than the facts 
are if you don't.
    But, second, and to me, at least, Mr. Chairman, more 
importantly, it should finally put to rest the idea that there 
was a Government conspiracy to go after David Koresh. There is 
still a risk even now as Senator Danforth completes his work 
that we will start again and go through a whole new 
investigation of these allegations. I would urge my colleagues 
to resist that temptation. Enough is enough.
    The American people want Congress focused on issues like 
Social Security and Medicare, and education, and fighting 
crime, not immersed in partisan, contentious hearings over an 
event that occurred years ago and which has now been 
extensively examined by congressional committees and an 
impartial Special Counsel whose credibility is above question.
    There are, as I mentioned, a lot of conspiracy theories out 
there on Waco that I hope this report debunks. I also hope that 
we will never lose sight of the fact that the man who was 
principally and ultimately responsible for what happened that 
day was David Koresh.
    I would like to quote myself. Back in 1995, at the 
beginning of the Waco hearings, I said the following. I said, 
``It's unfair to twist the facts, making law enforcement the 
villain and David Koresh, the lawbreaker, the victim. That is 
like saying right is wrong and night is day. Let us be very 
clear. David Koresh was a dangerous, sick man who molested 
children, preached violence, and led his followers into a 
horrible suicide. David Koresh was not a peaceful cleric in an 
ivy-covered chapel, or even an eccentric with strange religious 
views. David Koresh was an armed fanatic who was excoriated in 
his hometown newspaper in a series entitled `The Sinful 
Messiah'. David Koresh sexually abused children and called it 
holy. David Koresh was obsessed with guns because he claimed it 
was commanded by scripture. He horded a military arsenal that 
included at least 48 illegal machine guns and scores of illegal 
hand grenades. Remember, ladies and gentlemen, David Koresh and 
his followers did not greet Federal law enforcement with a 
psalm or scripture. They greeted them with more fire power than 
even the ATF agents themselves had. Nothing excuses that 
ambush. Nothing in American law excuses it, nothing in the 
Bible excuses it.''
    I made that statement on July 19, 1995, at the start of 8 
days of congressional hearings. Today, 5 years later, I stand 
by that statement. There has been a lot of investigating, a lot 
of allegations, a lot of speculating, and a ton of money and 
resources expended. But I don't think that the ultimate 
conclusions of what happened at Waco have changed much, and 
Senator Danforth's report backs that up.
    We have been picking the Waco siege apart for years now. 
Senator Danforth's meticulous report should be the coda. Enough 
is enough.
    Thank you, Mr. Chairman.
    Senator Specter. Thank you, Senator Schumer.
    Senator Grassley.

STATEMENT OF HON. CHARLES E. GRASSLEY, A U.S. SENATOR FROM THE 
                         STATE OF IOWA

    Senator Grassley. I would like to welcome my friend, 
Senator Danforth, and his interim report to the committee. I 
had a chance to see it on C-SPAN almost in toto, as I was in a 
hotel room and didn't have a lot else to do, and was impressed 
with his statements.
    The circumstances surrounding what happened at Waco have 
done much to shake public confidence in Federal law 
enforcement. The fact that the FBI withheld information about 
the use of military devices reinforced that shaken confidence. 
But the respect and credibility that Senator Danforth brings to 
this investigation as Special Counsel obviously goes a long way 
toward restoring the public's confidence.
    So I look forward to the report that he is going to give to 
us and his answers to the many questions the public has had for 
the past seven years about the Waco matter. Hopefully, we can 
learn the lessons we need to learn from this incident and then 
move ahead.
    Senator Specter. Thank you, Senator Grassley.
    At this point, I would like to enter into the record the 
prepared statements of Senators Thurmond and Leahy.
    Senator Danforth, thank you very much for joining us on 
such short notice. Your report came out on Friday and we 
invited you promptly, and even more promptly you accepted, and 
I think it is very timely to hear your testimony before the 
subcommittee and we look forward to that testimony.
    [The prepared statements of Senators Thurmond and Leahy 
follow:]

  Prepared Statement of Hon. Strom Thurmond, a U.S. Senator From the 
                        State of South Carolina

    Mr. Chairman, in 1993, four Federal law enforcement agents and 80 
members of the Branch Davidians lost their lives in a terrible tragedy 
in Waco, Texas. Last year, the Attorney General appointed the 
distinguished former senator John Danforth to conduct an inquiry into 
this matter and answer serious questions about the government's 
actions. I am pleased to have Senator Danforth with us today to discuss 
his interim findings.
    It is reassuring that, after an extensive review, Senator Danforth 
has concluded that fault for tragedy lies squarely with the Branch 
Davidians and their leader, not the U.S. Government. As the Report 
shows, it is clear that the government was not responsible for the 
deadly fire, that F.B.I. agents did not fire shots during the final 
day, that military personnel were not used improperly, and that there 
has been no government conspiracy to cover-up the truth. This Report 
should put an end to the baseless questions that have been raised since 
1993 about the Federal Government and its motives.
    It is important to note that Senator Danforth reached some 
disturbing conclusions regarding efforts by the Department of Justice 
to resist some of his requests to get needed information. This 
subcommittee has faced more than its share of difficulty in obtaining 
documents and information from the Department in the course of our 
investigations. There is no excuse for this. The Executive Branch must 
cooperate fully with Congressional oversight, and certainly with 
special counsels that the Attorney General appoints.
    Indeed, the entire investigation by Senator Danforth could have 
been avoided if the government had fully cooperated regarding Waco from 
the beginning. The review was initiated after it became public last 
year that pyrotechnic rounds were used on the final day, which a few 
government attorneys and others had failed to disclose, even though 
this use had no impact on the fire.
    However, it is now clear that the largest and most serious 
questions have been answered in the government's favor. There is no 
need for extensive Congressional hearings into this matter.
    I hope that this report will help restore the public confidence in 
our government that has been tarnished by Waco. It is time for the 
books to be closed on the Waco tragedy once and for all.
                                 ______
                                 

 Prepared Statement of Hon. Patrick J. Leahy, a U.S. Senator From the 
                            State of Vermont

    Senator Danforth, thank you for being here today. You graciously 
met with me when you began this important project and I am glad to hear 
from you today as you complete this phase of your work.
    In August a year ago, the American public learned for the first 
time that the FBI directed pyrotechnic tear gas rounds at the Branch 
Davidian complex on the final day of the stand-off, which ended in a 
fiery tragedy. The use by the FBI of such pyrotechnic tear gas rounds 
either during or on the final day of the stand-off had been vigorously 
denied by both Attorney General Janet Reno and then-FBI Director 
William Sessions in public statements and testimony before 
congressional committees. Indeed, as documented in your Interim Report, 
Senator Danforth, ``there is no dispute that Attorney General Reno 
expressly prohibited the use of pyrotechnics during her discussions of 
the plan [for the final day] with the FBI.'' (p. 45). Thus, the 
Department of Justice dismissed renewed allegations in August, 1999, 
about the use of such pyrotechnic devices as ``more nonsense.''
    As it turns out, as documented in the Danforth Interim Report, the 
Attorney General was, at best, negligently served or, at worst, 
intentionally misled by subordinates at the FBI about the use of 
pyrotechnic tear gas canisters on the last day of the Waco stand-off.
    In September, 1999, we also learned for the first time of the 
existence of so-called FLIR video recordings from the early morning of 
the final day of the stand-off. This disclosure came after repeated 
denials by the FBI that such tapes existed.
    Americans rightly demanded answers to the serious questions raised 
by these disclosures about abuse of the Federal police power and then 
possible cover-ups. The Congress has a constitutional right and 
obligation to conduct oversight, particularly when such serious 
questions are at stake. At the same time, however, we have a 
responsibility to conduct our oversight duties in a manner that is 
even-handed and non-partisan. Partisan rhetoric and hyperbole in this 
context would only heighten public distrust of our law enforcement 
institutions. When we conduct oversight in this Committee, which has 
jurisdiction over the Department of Justice and the law enforcement 
components of our federal government, we should not allow political 
agendas to take precedence over effective law enforcement. That would 
do all Americans an injustice.
    Unfortunately, the reaction of many Republicans in the Congress in 
August and September, 1999, did not bode well about our ability to 
constructively carry out our oversight responsibilities. On the 
contrary, in the wake of the outcry over the belated disclosures, 
Republican leaders in the Senate and the House of Representatives, 
including the Chairman of this Committee, prejudged the matter by 
calling for the Attorney General to resign or be fired and suggesting 
that the use and non-disclosure of the pyrotechnic devices were her 
fault.
    In the face of this Congress' inability to carry out fair and 
constructive oversight of this matter, the Attorney General did the 
right thing by appointing our former colleague, Senator Danforth, as 
special counsel to evaluate this new evidence and allegations in a 
thorough, independent and non-partisan manner. He accepted the 
assignment in the spirit of public service that has distinguished his 
career.
    Unfortunately, the very next week after Senator Danforth's 
appointment, the Republican Leadership decided that it wanted a piece 
of the action and announced that Senator Specter would lead a task 
force investigation into Waco and two other unrelated matters. Given 
the harsh rhetoric against the Attorney General at the outset, I voiced 
my concerns both privately and publicly about such a task force and 
urged that we allow Senator Danforth to conduct his inquiries without 
further political interference.
    Just two weeks after his appointment, Special Counsel Danforth came 
face to face with interference from this Subcommittee when Republican 
staffers were sent to Waco to interview witnesses. In a September 17, 
1999, letter to Chairman Hatch and myself, Senator Danforth warned that 
it ``undermines the work of the Special Counsel when Judiciary 
Committee personnel attempt to conduct interviews without any 
coordination with [the Office of Special Counsel].'' He went onto to 
say that ``it is not within the spirit of cooperation for the Judiciary 
Committee to dispatch personnel to Waco without even troubling to give 
me a call.'' On September 21, 1999, the Chairman and I received yet 
another letter from Senator Danforth informing us that Republican staff 
had again contacted relevant witnesses. Senator Danforth told us that 
``this activity by the Committee staff interferes with the work of the 
Special Counsel'' and asked the Judiciary Committee to ``forbear.''
    Fortunately, the Committee heeded this reasonable request about 
contacting witnesses but forged ahead in demanding documents from the 
Department of Justice. On November 17, 1999, the Committee approved a 
resolution authorizing the Chairman to issue a subpoena to the Attorney 
General for Waco-related documents if such documents were not 
voluntarily produced. The subpoena was never issued since the Justice 
Department has been voluntarily producing Waco documents on a monthly 
basis for the past eleven months. The Committee now has over half a 
million pages of documents in hundreds of boxes, most of which have 
never even been opened.
    The Danforth Interim Report should put to rest disturbing questions 
that were re-opened by the belated disclosures in August and September, 
1999. Specifically, the United States government and its agents were 
not responsible for the April 19, 1993 tragedy. The report assures the 
American public that the U.S. government did not cause the fire, did 
not direct gunfire at the Branch Davidian complex, and did not 
improperly employ the armed forces of the United States. Responsibility 
for the tragedy of Waco lies with the Branch Davidians, and their 
leader David Koresh.
    I noted with particular interest the information Senator Danforth 
was able to obtain from Graeme Craddock, a former resident of the 
Branch Davidian complex who testified before the Senate Judiciary 
Committee on November 1, 1995. At that time, I questioned him about 
whether the Branch Davidians started the fires on the last day of the 
standoff and he responded that he did not know ``for a fact how the 
fires got started,'' ``did not'' see any fires started and flatly 
denied that he knew how the fires got started. Then his attorney 
directed him not to answer any more questions. (Senate Judiciary 
Committee, Hearing on ``The Aftermath of Waco: Changes in Federal Law 
Enforcement,'' Oct. 31 and Nov. 1, 1995, S. Hrg. 104-824, pp. 180-81). 
In addition, I wanted to know who fired the first shots on February 28, 
1993, but before I could get a final answer to that question, Chairman 
Hatch intervened in accord wth a prior agreement he had reached with 
Mr. Craddock that the witness would not have to respond to certain 
questions. (Id., at pp. 183-84)
    By contrast, the Danforth Interim Report contains admissions by Mr. 
Craddock that he saw other Davidians pouring fuel in the chapel area of 
the complex on April 19, 1993, and that he saw and heard another 
Davidian yelling, ``Light the fire.'' (Interim Report, p. 8)
    Senator Danforth, I understand that you continue to investigate 
whether the failure of subordinate Justice Department and FBI officials 
to reveal the use of pyrotechnic tear gas rounds until August 1999 
rises to the level of a criminal cover-up, gross misconduct, or mere 
negligence. I have confidence that you will complete this investigation 
with the professionalism and independence you have demonstrated over 
the past ten months. This Committee and the American people thank you 
for your diligence.

   STATEMENT OF HON. JOHN C. DANFORTH, SPECIAL COUNSEL, U.S. 
  DEPARTMENT OF JUSTICE, ST. LOUIS, MO; ACCOMPANIED BY JAMES 
  MARTIN, DIRECTOR OF INVESTIGATIVE OPERATIONS, ST. LOUIS, MO

               STATEMENT OF HON. JOHN C. DANFORTH

    Senator Danforth. Mr. Chairman, thank you very much, and 
Senator Schumer, Senator Grassley. I arrived and saw that I was 
billed as the Honorable James C. Danforth, and I thought how 
quickly they forget.
    Senator Specter. Around here, Senator Danforth, you were 
always known as Saint Jack. We are not going to make you Saint 
Jim.
    Senator Danforth. Thank you, Mr. Chairman. I am joined by 
Jim Martin, who is really on loan to the investigation from the 
U.S. Attorney's Office in the Eastern District of Missouri. He 
is the person who really has been, still is, running the 
investigation. Also, Stuart Levy, who has been in charge of our 
Washington office and has been particularly involved in the so-
called cover-up part of the investigation; and also Keith 
Thompson, who is a postal inspector assigned to our Washington 
office.
    I want just before I begin to say a word about the quality 
of the people who have worked on this investigation. They came 
from the public sector, from the private sector--prosecutors, 
criminal defense lawyers, civil lawyers. I think, of the 38 
investigators, 36 came from the U.S. Postal Inspection Service.
    Most people don't hear much about the Postal Inspection 
Service. It is not nearly as high a visibility as other law 
enforcement agencies, but I can tell you that the quality of 
these people, their professionalism, their diligence, their 
good judgment, their values, are just excellent. And anybody 
who doubts the quality of people who work for the Government in 
law enforcement and who want reassurance should look at the 
work that was done for our office, particularly by the Postal 
Inspection Service.
    Mr. Chairman, this was an investigation into whether or not 
there were bad acts by Federal agents, particularly on April 19 
and with respect to the cover-up thereafter, April 19, 1993. It 
was not into questions of judgment. You don't get a group of 
lawyers and former prosecutors and present prosecutors and 
inspectors working on something that is just a matter of 
judgment, in my opinion.
    And from the beginning, when I first talked to the Attorney 
General about the nature of this job, I wanted to make it clear 
that there were parameters on it. I didn't want this to be an 
investigation that got into judgment calls. We can all question 
people's judgment, but the charges that had been made were so 
dark that they had to be explored, and they had to be explored 
very, very thoroughly.
    The dark charges were that Federal agents set a building on 
fire with 80 people in the building, that Federal agents 
directed gunfire at the building in order to pin people into 
the building, that the military was part of this operation, 
that people from the military were involved in doing such 
things as putting shaped charges in the building, and so on, 
and that thereafter there was this broad cover-up conspiracy to 
keep all of this under wraps.
    And we have spent so far 10\1/2\ months looking into this, 
and the fact of the matter is that these allegations are simply 
not true. And it is not a close question. This isn't ``well, 
they are probably not true,'' or ``more likely than not, they 
are not true.'' They are clearly not true. The evidence is 
absolutely overwhelming. The Government did not start a fire, 
the Government did not direct gunfire at the Branch Davidians, 
the Government did not improperly use the military, and there 
wasn't any broad cover-up.
    The Branch Davidians started the fire, spread fuel 
throughout this complex. The Branch Davidians then began 
shooting their own people, including children. People say it 
was a suicide. Well, maybe if people kill themselves, it is 
suicide. If they kill children, it is not. One of the children, 
somewhere around 3\1/2\ to 4\1/2\ years of age, we think, was 
stabbed to death. That is not suicide. It is murder. That is 
what happened.
    So there is no evidence that the Government burned the 
building. There was no evidence that the Government directed 
gunfire into this complex. There is no evidence that the 
military was used in any improper fashion or was actively 
involved in this, and there is no evidence of a broad cover-up. 
The evidence is to the contrary.
    Particularly those FBI agents who were most directly 
involved in the tragedy of April 19, the members of what was 
then called the HRT, were very open and direct in talking about 
everything, including the issue of pyrotechnics. There is no 
evidence that Attorney General Reno or former FBI Director 
Sessions or Director Freeh in any way misled anybody 
intentionally. There is plenty of evidence that they got bad 
information along the way.
    Now, there have been a lot of suspicions that have been 
raised, and the basis for the suspicions has to do with the 
fact that at one point on the morning of April 19, three 
pyrotechnic tear gas rounds were fired, and that was not 
disclosed. It was not known by the Attorney General, it was not 
known by Director Sessions, but it was known by somebody and it 
was not disclosed.
    And we have spent, I would say, most of our time and effort 
trying to figure out why it was that the firing of the three 
pyrotechnic rounds was not disclosed. Well, why is this? What 
happened? But one thing that is absolutelyclear is that the 
fact of their firing was inconsequential. It had nothing to do with the 
disaster.
    The three pyrotechnic rounds were fired 4 hours before the 
fire broke out. They were fired in a direction away from the 
building itself and they caused no damage to anybody. Yet, the 
fact that any pyrotechnics were used was not disclosed, and the 
opposite was told to various people, including Members of the 
Congress. And so the issue is why were they not told, why was 
this something that was withheld.
    The ongoing investigation--and as I said last Friday, about 
5 percent of this investigation remains to be done, but it all 
has to do with the reasons why the fact that these pyrotechnics 
were not used. I want to give one example, and this has to do 
with something we do know; it has to do with the fact that in 
the civil case back in 1996, the information relating to the 
use of pyrotechnics was not made available in that civil case. 
I would like to talk about this for just a few minutes because 
I think that it, in my own mind, helps me to focus on what 
happened here and how it could have happened and how it is 
possible that information can come out or not come out and it 
is not the fault of anybody who is part of any conspiracy. It 
is just more or less a human foible.
    This has to do with a fairly young lawyer, a junior lawyer 
in the FBI. And this junior lawyer back in 1996 in connection 
with the civil case came into information, and the information 
was that pyrotechnics had, in fact, been fired. And this fairly 
junior lawyer did not make that information available to a 
lawyer from the Justice Department, and the fact that the 
information was not made available to the lawyer from the 
Justice Department caused real harm.
    We spent an awful lot of time trying to figure out what 
happened, and in interviewing this lawyer in the FBI we were 
given about four different stories about what happened, various 
kinds of misstatements about whether information was faxed to 
the Justice Department lawyer or read over the phone to the 
Justice Department lawyer or given to the superior of the FBI 
lawyer. And all of these statements were misstatements to us, 
to our investigation. And that is, of course, wrong to say 
something that is wrong to us.
    But I have been thinking about why this was because I don't 
think for a minute that this FBI lawyer was part of any cover-
up conspiracy. I don't think that this person took it upon 
herself to say, well, for the good of the FBI I am going to 
hide this. I believe what happened in this case was that this 
fairly young lawyer simply goofed, simply failed to do an 
adequate job. And then, having goofed, she thought, my gosh, if 
it is found out that I bungled this, if anybody finds out that 
I am the one responsible for not passing on this information, I 
am going to be ruined.
    And in the face of the fear of personal ruin--I think that 
was the cause--she then began to concoct various stories of 
what she had done which were untrue. It is a classic case of 
some little thing--the use of the pyrotechnics itself under 
these circumstances was not a big thing. The fact that she 
blundered in not turning over the information was a little 
thing, it was a human thing. But these little things get blown 
up into bigger and bigger and bigger things because people 
don't come clean with what happened.
    And I think that the problem that she had was she was 
fearful. She was fearful that she would be ruined, that her 
mistake would be found out and that it would hurt her career. 
And if there is a moral to the whole story of Waco and the 
aftermath, and particularly the so-called cover-up aspect, to 
me the moral is that little things can be blown into very big 
things by fear, by people just being afraid for their own 
skins.
    And I am for reducing the level of fear people have, and I 
think that somehow we have totally overblown our willingness to 
just trash people on the basis of mistakes. And we have 
overblown it in a way that sort of honest, even though bad 
mistakes are assumed to be just evil acts, part of something 
that is really terrible. So what turns out to be a flaw ends up 
into some kind of an expose where there is a total blurring of 
the line between bad judgment or human foibles, on one hand, 
and truly bad acts on the other.
    So what I have attempted to do in this investigation is to 
be very clear in saying that there really is a distinction 
between bad judgment or human mistakes and truly bad acts. And 
with respect to the events on April 19, in particular, I want 
to again make it clear that the alleged bad acts just did not 
happen.
    Senator Specter. Thank you very much, Senator Danforth. 
With respect to the firing of the pyrotechnics, was that part 
of the plan authorized by the Attorney General?
    Senator Danforth. No; in fact, the Attorney General was 
quite concerned about the possibility of fire and, as she said, 
she asked for and received assurances that pyrotechnics would 
not be used in the compound. Now, the words that she used were 
``in the compound,'' and, of course, one of the problems is 
that the word ``compound'' is not a precise term. So her 
understanding of what the ``compound'' meant was not 
necessarily what other people understood.
    Senator Specter. When you talk about the compound, we have 
a photograph here which shows the compound. And the 
pyrotechnics, as I understand it, were fired into an areaoff to 
the side. Is that correct?
    Senator Danforth. That is right.
    Senator Specter. How would you describe the area off to the 
side where the pyrotechnics were fired?
    Senator Danforth. Well, we call that the construction pit. 
What it basically is is a foundation, concrete foundation, 
covered with plywood and with tar paper.
    Senator Specter. How was it, Senator Danforth, that 
pyrotechnics were fired when they were not authorized by the 
Attorney General's plan?
    Senator Danforth. The Attorney General takes the position 
that the firing of the pyrotechnics even under these 
circumstances was contrary to her order.
    Senator Specter. Well, did Richard Rodgers, who was in 
charge of the Hostage Rescue Team, know that the firing of 
pyrotechnics was not authorized?
    Senator Danforth. Well, his story is that he knew that, but 
that he did not understand this so-called construction pit, 
which is about 75 feet away from the building and which is--he 
did not feel was the fire hazard, that the building was. His 
belief was that the order did not cover that construction pit. 
Now, we asked Attorney General Reno what her understanding was 
and she said that her understanding was that her order did 
cover the construction pit.
    Senator Specter. The missiles on the pyrotechnics were not 
found, correct, the three missiles which were fired?
    Senator Danforth. That is right. Three of them are missing 
and two of the shells are missing. There is a photograph of one 
of the projectiles, but all three projectiles are missing and 
two of the three shells are missing.
    Senator Specter. Senator Danforth, you concluded that those 
were the only three projectiles which were fired.
    Senator Danforth. Yes.
    Senator Specter. In a context where you haven't been able 
to find the three projectiles which were fired and two of the 
casings of the projectiles, how can you be so sure that there 
were not other projectiles fired which might not be discovered 
in the main part of the compound, where they might have caused 
a fire had they, in fact, been fired?
    Senator Danforth. Well, first, we have questioned all of 
the FBI agents who were present and there is no evidence that 
has been presented of any other projectiles being fired. We 
particularly questioned the FBI agent who did fire the 
pyrotechnic projectiles and asked him if he fired into the 
building as well as firing these three projectiles, and his 
answer was no. And he was questioned by maybe six people in our 
office at different times, including myself, and we believed 
him. We found him to be very credible.
    After I talked to him, I said to him, look, I am not even 
going to ask you to do this, but I can tell you that it would 
help the weight of our report if you would take a polygraph, 
but I am not going to ask you. And his response was, well, I 
will be happy to do that if it would help. And so he did and he 
passed the polygraph with flying colors. So for those reasons, 
I don't think that there was any firing of pyrotechnics into 
the building.
    Finally, it is not just that we know that this didn't cause 
the fire, we know how the fire did start. The fire started 
because accelerants were spread throughout the building and the 
fire broke out relatively simultaneously in three different 
places. So it is absolutely clear that this was an intentional 
act. Burning down the building was an intentional act. It was 
also an act that was consistent with the religious beliefs of 
the Branch Davidians, who believed, our experts tell us, that 
they would be transcended, as they put it, into heaven if they 
died in a fire during a battle with what they considered to be 
Babylon, namely the U.S. Government.
    So for all of those reasons, I am a hundred percent 
confident of how this fire started, and that the FBI did not 
have anything to do with starting the fire.
    Senator Specter. My red light is on, but with Senator 
Grassley's permission I am going to pursue two more questions 
before I yield to Senator Grassley.
    You just commented about the fire starting in three places, 
and I think it would be useful for the record if you could 
indicate where the fire did start on the photograph.
    Senator Danforth. Well, I am going to ask Jim Martin to 
correct me if I am wrong.
    Senator Specter. Well, let's ask Jim Martin to join you on 
the identification, if you wish.
    Senator Danforth. All right. It started in three places. It 
started right in there, correct?
    Senator Specter. Indicating on the photograph--let's mark 
it, Senator Danforth with an ``A,'' if you would.
    Senator Danforth. I am not sure about the time sequence.
    Mr. Martin. They are all within a minute of each other.
    Senator Danforth. They are all within a minute. A. B, right 
about there?
    Mr. Martin. Yes.
    Senator Danforth. C.
    Mr. Martin. C is to the top end of the chapel area right 
where you have got your--where you had your--right there, 
right.
    Senator Specter. How were you able to pinpoint through your 
investigation that the fire started in those spots?
    Senator Danforth. We had experts on arson and the 
development of fires examine the flare tapes.
    Senator Specter. Senator Danforth, in my opening statement 
I went through some of the items where the Government had 
denied the firing of pyrotechnics. When there is a concealment 
and such a pattern of concealment, it raises a question, if not 
an inference, of some purpose of concealment that the 
disclosure would constitute an admission that something wrong 
was done.
    You have studied this case in great detail in your report. 
It particularizes the many places where the Government not only 
failed to disclose, but made affirmative representations to the 
contrary--right after the incident, the FBI spokesman; the 
Scruggs report, Scruggs telling congressional investigators.
    The prosecuting attorney, Ray Jahn, told Congress that 
there had been no incendiary. There was a failure to disclose 
the incendiary in the Brady submissions; that is, the 
obligation of the Government to tell the defendants any 
exculpatory information, a very critical and serious part. You 
have the testimony of the Attorney General and the FBI 
Director. It is pretty hard to find any higher level 
representation. In fact, you can't. She is the chief law 
enforcement officer of the country. He, in a sense, is the 
chief investigator.
    Then you had Richard Rodgers, head of the Hostage Rescue 
Team, sitting right behind. You had the filing in the civil 
case accusing the Government of using incendiaries, which the 
Government denied, then after the issue broke in August of last 
year, the press reports, again denied by the FBI.
    How can you account--or how do you account, or maybe it is 
only speculation, as to such a series of denials if it is all 
innocent?
    Senator Danforth. Well, first, let me, Mr. Chairman, say 
that there is a distinction between the word ``incendiary'' and 
``pyrotechnics.'' What we are talking about is pyrotechnics. 
Incendiary devices are intended to start fires. With 
pyrotechnics, it is incidental to the detonation of the tear 
gas.
    Senator Specter. A pyrotechnic can start a fire, but it is 
not intended to do so.
    Senator Danforth. Right.
    Senator Specter. Contrasted with an incendiary.
    Senator Danforth. On four aspects of the list that you went 
through, these are four of the remaining issues in the 
investigation. All of the issues in the investigation pertain 
to the broader question you have asked: how does it happen that 
the use of pyrotechnics was not generally known until the 
summer of 1999. What happened? How did all this get somehow 
lost?
    And with respect to four components of your question, they 
remain under investigation. And because they remain under 
investigation, I really couldn't tell you because I don't know 
yet, but we have not ruled out anything in examining those four 
areas. It could be that there are nefarious reasons, or it 
could be that they are more in the nature of human error.
    When I explained the civil case and the junior lawyer in 
the FBI, my own view of that was that a person in the FBI came 
into information, negligently probably did not pass it on, and 
then became very embarrassed that she would be criticized and 
that her job would be imperiled. And then she began doing what 
she should not have done, which was tell a series of different 
stories to our investigation.
    With respect to the Scruggs report, what is my opinion of 
that? My opinion of the Scruggs report is that they reached an 
assumption, and their assumption was that the Davidians burned 
this building down. And because they reached that assumption, 
they really didn't dig very deeply into this whole issue of 
pyrotechnics. They should have; they should have gotten into it 
much more carefully than they did. They just did not do it.
    I think that they did a sloppy job in their investigation, 
but I do not think that the Scruggs report--I don't think there 
is any indication that the Scruggs report was intentionally 
trying to hide things. I just think it was not well done.
    With respect to Richard Rodgers, it is true that he was 
sitting in the hearing room. He was sitting behind Janet Reno, 
he was sitting behind William Sessions when they testified. He 
did not correct them. He should have. That is why he was there. 
That is why I have Jim Martin here and Stuart Levy here 
because, you know, a lot of this is pretty detailed stuff and 
if I say anything wrong, I want them to interrupt me.
    Janet Reno said that at her hearing. She said that she has 
people in the room to correct her if she says anything wrong. 
He should have corrected her. He didn't. He claims that he 
wasn't paying any attention. I don't know. Who knows if 
somebody is paying attention or not? I know that it is not a 
crime not to correct somebody; at least I don't think it is. 
And it is certainly not provable whether he was listening or 
not.
    Also, he says that he viewed--he was the one who gave the 
order for the firing of the pyrotechnics. He did not view the 
construction pit as being part of the compound. His view is 
that the prohibition on firing of pyrotechnics was designed to 
prevent a fire from starting. If pyrotechnics were directed 
into the residential quarters, that obviously would have 
created the problem of fire. But firing pyrotechnics aimed away 
from the building intosomething that is made out of concrete 
and filled with water, in his view, is a different matter. Now, that is 
his explanation.
    I think it is important to look at all of the various 
pieces of your question and address them one at a time. And as 
I say, there are four pieces of your question that we are now 
in the process of addressing.
    Senator Specter. Thank you very much, Senator Danforth. I 
will come back to that.
    Let's add to the clock time to Senator Grassley, as much 
time as you want.
    Senator Grassley. OK, but I won't need much time. Thank 
you.
    I understand that your report at the end of the year will 
address the issue of why the use of the military tear gas 
rounds was withheld by the FBI; that is, whether or not it was 
deliberate. And I am not asking you right now to get into the 
issue of whether or not it was deliberate. But in your 
judgment, how big of an impact would you say that the mere 
withholding of that information and the later discovery of it 
had on the public's confidence in their Government and in 
Federal law enforcement?
    Senator Danforth. Well, it was disaster. I mean, this is 
why I am here. This is why I have spent now 10\1/2\ months at 
this. This is why we have had 74 people working on it, why it 
has already cost the taxpayer about $12 million to investigate 
something that really never happened.
    I mean, when you get to the substance of it, whether the 
Government caused the fire, whether the Government shot at 
people, that is something that shouldn't have taken very long 
at all because there is no evidence on the other side. Now, 
proving a negative is hard, which is what we have been trying 
to do. But while it is hard to prove a negative, it is possible 
to prove a negative, and we have proven a negative.
    But what happened was that as far as the public is 
concerned, this information came out last summer that 
pyrotechnics were used and people had been told the opposite. 
And so people started saying, well, we are not paying any 
attention to whether it was 4 hours in advance or in a 
different direction or at a concrete foundation that it was 
shot; the fact of the matter is here is new information and we 
weren't told this 7 years ago when we should have been told it, 
and if the Government lies about a little thing, the Government 
lies about a big thing.
    So everything then came under a cloud and it caused 
enormous damage. A Time magazine poll showed that 61 percent of 
the American people last August believed that the Government 
started the fire. Now, that is a serious problem for our 
country. If 61 percent of the people believe the Government 
started a fire, it is a big problem, and it is a problem that 
is created with no supporting evidence, none. All the evidence 
is in the other direction.
    But all of this was brought about because people just did 
not come clean and they made misrepresentations. Some of them 
were innocent. Attorney General Reno's representations were 
innocent, the same with Director Sessions, same with Special-
Agent-in-Charge Ricks right after the fire, the same with the 
Scruggs report. It wasn't carefully done, but it was not 
something, in my opinion, that was intentional.
    But for one reason or another, the wrong information was 
presented to the American people and it caused a real shaking 
of confidence of people in their Government, and that is what 
this investigation has been all about.
    Senator Grassley. Well, is there anything that we can do to 
repair the damage, or what should Congress or even the 
executive branch of Government do to restore confidence?
    Senator Danforth. Well, Senator Grassley, thank you for 
asking because I have a double answer to that question and I 
think both things are important to say. I think, first of all, 
when people make dark charges, I mean really serious charges, 
the people who make those charges should bear some kind of 
burden of proof before we all buy into them, and I don't think 
that happened here.
    I think that, in fact, in my investigation, had there been 
any burden of proof on people saying that the Government 
started the fire, this would have been over in days. But we had 
to operate without any burdens operating in anybody's favor. So 
I think that the first thing is that all of us should be 
reluctant to give credence to allegations of totally terrible 
things being done simply on the basis that somebody has got 
just some sort of passing charge to make.
    And I think, second, the Government, and especially 
Government lawyers, have an obligation to be open and an 
obligation to be candid. And in this case, there were certainly 
instances when the Government and its people--and this is what 
we continue to investigate--were not candid.
    Now, you know, when I talked about the young FBI lawyer--
and you think why would anybody not be candid. Is it 
necessarily because that person is part of a cover-up 
conspiracy? I don't think so. I think one of the reasons people 
aren't candid--one reason people lie is that they are afraid, 
they are afraid of ruin. And I think this is something we 
should also think about. I mean, what causes this kind of fear? 
Why are people afraid that if they make a mistake, which may be 
a big mistake but is an innocent mistake, they will just be 
ruined?
    You know, one of the problems back in 1995 during 
thecongressional hearings is that the people in the Justice Department 
believed Congress was trying to get them. And if people think people 
are trying to get you, they are going to be hard to deal with. I 
believe myself that in dealing with the Justice Department in this 
case, they believed I was trying to get them, and that is why I think 
it was so difficult to deal with the Justice Department. They thought 
that I was the adversary.
    So I think what I have said in the preface to my report, to 
me, is what this story is all about, and I have sort of 
outlined what my thoughts are.
    Senator Specter. If I may interrupt my colleague for just 
one question, Senator Danforth, are you saying that the Justice 
Department thought you, as Special Counsel appointed by the 
Attorney General to do an impartial investigation, were out to 
get them?
    Senator Danforth. I think that when people start 
investigating anybody, they begin to get their defenses up. I 
think that that is a very, very natural reaction. And here you 
had somebody who was technically part of the Justice 
Department, and they could not therefore claim any privilege to 
withhold anything from me. And they thought here was this guy 
who is conducting an investigation and he has absolutely free 
rein. You know, there is no control over this person at all. 
And I believe that caused concern. I can't put myself in the 
minds of other people, other than to say this is what I think 
is an explanation.
    Senator Grassley. Could I follow up on your reference to 
this FBI attorney that bungled this thing? Is it possible that 
she knew of the Attorney General's order not to use 
pyrotechnics and withheld that information from the Justice 
Department so that it wouldn't embarrass the FBI?
    Senator Danforth. You know, I am speculating as to what was 
on her mind, but I don't think that was what was on her mind 
because what happened was there was this so-called Cheroux 
declaration, and it was filed by the plaintiffs in the civil 
suit and it speculated that pyrotechnics were used. And this 
FBI lawyer inquired of the FBI--in fact, of the Hostage Rescue 
Team--well, what is your response to this?
    And the FBI's response to the inquiry by the FBI lawyer 
was, yes, pyrotechnics were used. They just came absolutely 
clean with it. They always have; they have with us and they 
have with everybody else. So as far as the FBI agents were 
concerned, they told everybody. They told the civil lawyers, 
they told the prosecuting lawyers in the criminal case, they 
told us. They have never made any bones about it. So I don't 
think that they were trying to cover anything up.
    I think what happened was that they fully presented the 
information to this junior lawyer in the FBI, and the junior 
lawyer should have, in turn, as part of her job, turned that 
information over to the Justice Department lawyer. And for one 
reason or another, she didn't do it. In fact, she had it on a 
``to do'' list and she never checked it off on the ``to do'' 
list. The rest of her ``to do'' list had checkmarks. She never 
checked this off. So I think she just blew it. And then having 
blown it--some people say, my gosh, if my boss discovers I blew 
something, I am in big trouble. So they start hiding it, and I 
believe that is what happened.
    Senator Grassley. Let me follow up in my next question on 
something you discussed with Senator Specter, and that is about 
Mr. Rodgers, whether or not you feel that Mr. Rodgers 
intentionally kept his silence.
    Senator Danforth. I don't know.
    Senator Grassley. Did you recommend any action with respect 
to Mr. Rodgers?
    Senator Danforth. No; I will be happy to tell you why. 
First of all, with respect to any kind of prosecution, I don't 
think that there is any crime in simply not correcting 
somebody. If there was, the statute of limitations, I am sure, 
would have run on it. It would be very difficult--impossible, I 
think--to prove that he is wrong in saying that he just wasn't 
paying attention when this was said. So I didn't think there 
was any case there.
    Senator Grassley. In reviewing documents recently, it 
caught my attention very closely about the use of flash bangs 
by the FBI in and around the compound. It seems that on several 
occasions, when a member of the Davidians would run out of the 
compound perhaps to escape, a flash bang was fired at them and 
then that would scare them back into the compound.
    This is what puzzles me: if the goal of the FBI was to get 
the Branch Davidians to come out of the compound, why were 
flash bangs used to scare them back in? And did you look into 
this issue, and if so, what are your thoughts about the 
propriety of using them in that way?
    Senator Danforth. Well, this is something that was really 
not central to any of the issues in our investigation, but what 
they did not want was an uncontrolled movement. If there had 
been an exodus--that was something they were trying to get for 
51 days, but what they didn't want was people just leaving to 
do things, to get things out of the cars that were surrounding 
the complex, and so on. So they wanted to control their 
movements and they shot these flash bangs at them.
    This was not on April 19. I don't think any--correct me if 
I am wrong, but no flash bangs were fired on April 19. But they 
are in the nature of, as I understand it, firecrackers. They 
make a flash and they make a bang, andthey don't cause injury 
as a general rule, but they are designed to scare people back into the 
building.
    Senator Grassley. Thank you, Mr. Chairman.
    Senator Specter. Thank you very much, Senator Grassley.
    Senator Torricelli.
    Senator Torricelli. Thank you, Mr. Chairman, very much.
    Senator Danforth, first, as I think any member of the 
committee would attest, we are all in your debt for having 
taken on this assignment and giving your own considerable 
credibility to these conclusions. This is the kind of issue 
that should not go unanswered, and people should not want for a 
reliable reference point in something that is as traumatic in 
the life of our country as this.
    I wanted to bring your attention not to your conclusions 
but the process by which you were actually brought to those 
conclusions. It is my understanding that since you are the 
first special counsel appointed under the Department of Justice 
regulations issued by the Attorney General, you are in a unique 
position to offer some commentary on the process and how it 
worked within the Department of Justice.
    I am told that you have some thoughts on this subject of 
how the Attorney General might, by regulation or, if this 
Congress would ever address it, by legislation, adjust these 
procedures. Could you give me your commentary generally on how 
you think this functioned?
    Senator Danforth. Yes; Senator, it is a very unusual 
situation to have a special counsel who is technically part of 
the Department of Justice carry on an investigation of the 
Department of Justice. And because I am technically part of the 
Department of Justice, there is no privilege that can be used 
against me. So I have just full access to all of the files, the 
e-mails, and everything else in the Department of Justice, and 
we have availed ourselves of that. And that has caused a 
working problem with the Department of Justice, and I can 
understand that problem from their standpoint. But there was no 
legal protection that they had against my having access to all 
of their information.
    At the same time, you know, when you are just asking 
people, please give us all of your mail or all of your e-mail 
or whatever, even though there is no privilege to protect them 
against what I want, you are still relying more or less on 
their good graces to turn over everything.
    We could have used grand jury power, theoretically, to 
subpoena information from the Department of Justice, but the 
problem with using grand jury power is that once you do that, 
you are under a rule of secrecy. And the purpose of this 
investigation was to find out as much as we could, as openly as 
we could, so that we could make the evidence available to the 
American people.
    So I said from day one that I wanted to do this in a way 
that could make information available. So if the only subpoena 
power you have is through a grand jury and the evidence you 
subpoena through a grand jury cannot be made publicly 
accessible, then I would have been defeating my own purpose.
    So I think that the lack of subpoena power, except through 
a grand jury, is a problem with the current special counsel. 
And I would recommend that future special counsels be given by 
Congress the power to subpoena without having to use the grand 
jury to get the subpoenas.
    Senator Torricelli. Did you share this recommendation with 
the Attorney General?
    Senator Danforth. No.
    Senator Torricelli. Let me return, as my colleagues did, to 
the question of Ray Jahn, the U.S. attorney in the 1993 case 
against the Davidians, and then to FBI Special Agent Richard 
Rodgers.
    I listened to your answer and I am sympathetic that indeed 
it is probably impossible as a matter of law to build a case 
against someone who is sitting silent while an incorrect answer 
is being given under oath if they are claiming they simply did 
not hear or did not listen, although I have actually found very 
little sympathy for that point of view when it comes to the 
Vice President of the United States sitting in campaign finance 
meetings. But, nevertheless, even if it is being selectively 
applied, I think as a matter of law you are undoubtedly right.
    It does, however, raise a question about the performance of 
one's duties. To be an agent of the FBI or to be a U.S. 
attorney and to, while in the employment of this Government, 
listen to congressional testimony by the Attorney General or by 
others and know that the Congress is being given inaccurate 
information, but claim that they were negligent or claim that 
they did not hear or were not paying attention--while that may 
not be a crime, as you have stated, it does not say much about 
the performance of one's duties.
    Has any communication been made to the Justice Department 
or the FBI given these explanations so that in these 
individuals' cases something is in their personnel files or it 
is otherwise noted that this Congress was misled because of 
this negligence or this failure to be attentive? Misleading 
this Congress, as I am sure you would attest, Senator Danforth, 
is a serious matter. It may be short of a crime, but it is more 
than a personal negligence of a witness; it is negligence inthe 
performance of duties.
    Senator Danforth. The reason that Richard Rodgers was in 
the hearing room, according to the Attorney General, at the 
time was to correct her if she made a misstatement or a 
misleading statement. She made a misleading statement. It 
wasn't technically wrong, it was simply misleading. She didn't 
know it was misleading, and he did if he had been listening. 
And when I talked to Attorney General Reno, right at the end of 
the conversation she said, I just wish he had said something.
    Senator Torricelli. Was he seated at the witness table or 
in the audience?
    Senator Danforth. He was in the audience. And, yes, that 
was his purpose of being there. He wasn't there because he 
enjoyed sitting in on a hearing. He was there because he was 
supposed to be a resource to correct the Attorney General if 
she said something wrong, and he did not. He is now retired. 
Now, she knew at the time when I interviewed her that, you 
know, he should have done this and he didn't, and we certainly 
said that in our report.
    Senator Torricelli. Well, if good is to come of this, then 
I hope for those in such positions who will find themselves in 
the future being relied upon by senior Government officials 
that these responsibilities are taken seriously enough to know 
that even if they fall short of a criminal act, it will be 
noted and it will have a career impact. This Congress relies 
upon its witnesses, who in turn are relying on these other 
individuals, and it is a serious matter.
    Finally, I wanted to raise with you the question of 
involvement by the U.S. armed forces. I read that section of 
your report, which I thought was very thorough, and I am in 
sympathy with it as a matter of law. But quoting from it, in 
your Equipment Support section B on page 33, ``The equipment 
included, among other things, two tanks, a transport aircraft, 
helicopters, ammunition, surveillance robots, classified 
television jamming equipment, classified thermal imagers, 
classified ground sensing systems, classified remote 
observation cameras, mine detectors, search lights, gas masks, 
night vision goggles, wire, tents, cots, generators, medical 
supplies.''
    I have read your definition of the law of when the line is 
crossed from operations to equipment, but when the statute was 
written, I doubt it was contemplated that this kind of 
equipment would ever exist or would ever be used in law 
enforcement involving the American people. I am not quarreling 
with your conclusion. I am simply saying that the statute as 
written may not be sufficient.
    The Branch Davidians are not a sympathetic group of people, 
but we don't write laws based on the people involved. We write 
them on the circumstances, and the circumstances remain the 
question, should the U.S. military be involved, given its role 
in our society and its power and the divisiveness of its 
involvement for national unity and the armed forces' 
credibility, in operations against the American people 
themselves. As a matter of law, I expect you are correct. As a 
matter of policy, I find this very troubling.
    Senator Danforth. Well, Senator, I have thought about this 
and it really is beyond the scope of our report because we were 
asked whether there was any unlawful use of the military, and 
the answer to that is clearly no. The Posse Comitatus Act was 
passed by Congress after the Civil War in response to the use 
of the military in the South and there has never been a 
prosecution under it. So, you know, I mean it is not what you 
would call a live one as far as the statutes are concerned.
    Senator Torricelli. But it is a question that the Congress 
should debate.
    Senator Danforth. Yes, I agree, and I have thought about 
that and, you know, I mean there was no illegal use of the 
military. The military was not involved in the actual 
operation. It was involved principally through providing 
equipment, and the National Guard also, which is not covered by 
posse comitatus. It was used in certain training facilities, 
and so forth, but not what most people imagine, namely the 
military storming the complex.
    But it was a huge commitment of military equipment to this, 
and the equipment was operated by FBI agents who, if you looked 
at them, looked pretty much like the military. And so, you 
know, you could say, well, what is the underlying policy behind 
posse comitatus, what are we trying to really get at. I think 
it is worth thinking about.
    In my own mind, you don't want the military storming some 
building somewhere. On the other hand, you certainly want law 
enforcement people who are not going to be sitting ducks, and 
if law enforcement is faced with a case where there is a 
heavily armed fortress with people with very high-powered 
weapons, including .50-caliber weapons that could destroy, you 
know, big pieces of equipment, and you say, well, just use 
conventional law enforcement, have people in blue suits with 
sidearms try to deal with that, you can't do it.
    So if you hadn't had the CEV's and you hadn't had the 
Bradley vehicles and you hadn't had the military equipment, it 
would have been an exceedingly dangerous situation for law 
enforcement.
    Senator Torricelli. That is a legitimate, practical point. 
Let me just respond with why I asked the question, however. If 
the line is between equipment and operations bypersonnel, 
theoretically, as a tank was loaned by the Army, if an F-16 had been 
flown by an experienced FBI pilot with previous military background, 
this could have been bombed by an F-16. Had the Branch Davidians had a 
compound along the shore, the Navy could have loaned a cruiser and put 
an FBI agent in the turret of the gun.
    There is a reason for the policy. Our armed forces are a 
symbol of national unity. It is important that they not become 
divisive. Now, this is less of an issue because we are talking 
about the Branch Davidians, for whom there is very little 
sympathy generally and none with me. But if this had been 40 
years ago and these had been civil marchers, and rather than 
the local National Guard being called out the U.S. army was 
sent into States or into cities against our own people in a 
legitimate cause, one can imagine the reputation of our armed 
forces and the divisiveness it would cause.
    My point is not to quarrel with your report, but to suggest 
that the Congress should consider that line between operations 
and equipment may no longer be sufficient now that the hardware 
and the equipment is such a dominant part of military 
operations.
    Senator Danforth. I think it is a very worthwhile thing to 
consider. I would simply counsel Congress when you look at 
this, if you do look at it, to bear in mind that there are 
exigencies that exist under this kind of circumstance that you 
should bear in mind because I mean if there are a number of 
people and they are very heavily armed----
    Senator Torricelli. It is a real problem----
    Senator Danforth [continuing]. And they are holed up, you 
don't want to pass some set of prohibitions against the use of 
equipment that leaves law enforcement in a highly vulnerable 
position.
    Senator Torricelli. It might just require the authorization 
of the President or the Attorney General at an extraordinary 
level, to an extraordinary threshold, to get the armed forces 
of the United States involved in those circumstances. And 
hopefully, in the overwhelming number of cases, we have enough 
equipment in the direct ownership of law enforcement to deal 
with most of these. But it is a disconcerting issue that the 
Nation has not faced in a long time, and I was very pleased 
that you addressed it in the report.
    In any case, Senator Danforth, thank you very much for your 
contributions and your work and your bringing this very 
troubling matter to, I believe, a conclusion.
    Senator Specter. Senator Danforth, would you care to 
venture a judgment as to a repetition of this incident, whether 
it would be preferable to find an alternative way of addressing 
the problem contrasted with bringing in the special forces from 
DoD?
    Senator Danforth. Well, the special forces for DoD were 
there for a very limited reason. It had to do with the 
furnishing and maintenance of certain equipment relating to 
detection and movement. It did not have to do with an assault.
    Senator Specter. Are you making a distinction between the 
term ``special forces'' and other military personnel?
    Senator Danforth. No; I mean, in other words, I think that 
it is important to say it was the military brought in or 
special forces brought in. They were not brought in to be part 
of any kind of assault or attempt to arrest people or anything 
like that. That would be clearly a violation of posse 
comitatus, and they were very aware of the law.
    In fact, various lawyers at DoD were involved in this, 
giving legal opinions to what was appropriate and what wasn't. 
And in at least a couple of circumstances, the DoD Army lawyers 
said that the requested assistance was not appropriate under 
the law.
    Senator Specter. Well, I ask the question because it is 
troubling, as has already been discussed at some length. And I 
shall not pursue it beyond an observation as to the 
desirability of someone in your position or someone in our 
position making a value judgment and a recommendation that even 
though the statute has not been breached--and there was a lot 
of care going into an analysis as to how far they could go 
under the statute--whether as a matter of choice or preference 
it would be a better idea to do it some other way. But I think 
you have explored it at some length and I thank you for that.
    Senator Danforth, coming back to a question where I 
deferred to Senator Grassley, and going through this long 
litany of failures to disclose and concealment, is there any 
reason to think that they concealed the use of pyrotechnics 
because they thought the disclosure would show some fault or 
some contribution to the starting of the fire or some other bad 
act, as you characterize it?
    Senator Danforth. I don't think anybody ever thought that 
the use of the--I can't say ``anybody'' because there have been 
filmmakers who have presented that possibility, but I don't 
think that there has been anybody that I know of connected with 
the Government who has ever believed that the use of 
pyrotechnics in this case had anything to do with the fire.
    Senator Specter. There was withholding of the videotapes. 
They were available from 9 o'clock to noon, but there was an 
earlier video at 8:08 a.m. on April 19 which contained a 
discussion of the use of rounds. And the tape was not available 
for some 6 years, and that was what led the Attorney General to 
take the rather remarkable action onSeptember 1 of last year in 
going to the FBI to seize the tapes.
    What, if anything, did your investigation disclose as to 
the unavailability of those tapes for such a long period of 
time?
    Senator Danforth. Mr. Chairman, that is one of the subjects 
still under investigation. As I said earlier, what remains in 
this investigation all has to do with the question of why 
information was not known about the use of pyrotechnics, even 
though the use of pyrotechnics was not related to the fire.
    And one of the sub-questions under that has to do with the 
fact that, as you point out, flare tapes taken earlier in the 
morning--the existence of them was denied, and it turned out 
that they did, in fact, exist and we are trying to find out 
why.
    Senator Specter. Well, that poses, as is evident, a big 
question on the credibility of the Government action. You have 
already outlined the evidentiary basis for your concluding that 
the pyrotechnics did not cause the fire and the fire was caused 
somewhere else. But there is an inevitable suspicion that when 
you deny the use of pyrotechnics and then you add to that the 
disappearance of the tape, especially in a context where the 
tape is available from 9 o'clock on, but not available from 8 
o'clock to 9 o'clock and it has, if not incriminating evidence, 
evidence which ought to be available to evaluate--it is pretty 
hard to put speculation or a conspiracy theorists at bay when 
they have that much to say, why was all this concealed. But I 
respect your answer that you say you are continuing the 
investigation.
    Senator Danforth. Well, as I say, the word that I used in 
the preface, Mr. Chairman, to the report is ``puzzling.'' It is 
puzzling why there wasn't just total disclosure of everything 
relating to pyrotechnics because the use of pyrotechnics didn't 
do any harm. It was four hours before the fire.
    Senator Specter. Well, it doesn't take conspiratorial 
theorists or people who question the Government very much to go 
on. And when they are left with concealment, affirmative 
representations about the pyrotechnics, and then the absence of 
the tapes, it is hard to remove the question mark.
    Senator Danforth, what was the purpose in filing the report 
before you had concluded your investigation on those two 
subjects? I know you have said you are 95-percent finished, but 
what was your thinking on doing it in these two stages?
    Senator Danforth. We were very confident months ago that 
the dark issues were being resolved, the darkest of the dark 
issues, namely whether the Government started the fire, whether 
Government agents shot weapons, whether the military was 
wrongly used. And I was considering the advisability of filing 
an interim report a number of months ago to cover those big 
issues, and then something happened to me in the spring, around 
late May, in that there was a question of whether or not I 
would be a vice presidential candidate.
    And I knew as soon as that was raised that if that would 
come to pass--and I, you know, was hopeful that it wouldn't, 
but if it did, I would have to resign as Special Counsel. And I 
wanted before I did that to be able to--if I had to do that, to 
take responsibility for the work of the Special Counsel's 
office. And if we had already learned 95 percent of the answer, 
I wanted my fingerprints to be on that answer.
    And then also I thought that various people had been under 
a cloud, the Attorney General among them, and people have 
suspected that people in Government were just doing very bad 
things. If a cloud exists over somebody and you know that the 
cloud should not exist, it is best to dispel the cloud. So for 
those reasons, I thought that it was important to come out with 
the interim report.
    And I think that since last Friday, when we issued the 
interim report, it really has increasingly been apparent that 
it was the right thing to do because I think most people have 
said when they read it, when they have looked at it, this is 
dispositive, that this really does put to rest the worst fears 
that people have had about Government. And I think that it is 
important to do that sooner rather than later.
    Senator Specter. Senator Danforth, on the issue of the 
adequacy of special counsel, you have responded with a 
recommendation that Congress legislative subpoena power for 
special counsel under the Attorney General's regulations. Is 
there anything to stop special counsel from using a grand jury 
to investigate some matter if it is not the Department of 
Justice, because special counsel could go to a grand jury on 
matters generally? Could special counsel not go to a grand jury 
because the Department of Justice itself was under 
investigation?
    Senator Danforth. Well, there is one practical reason why a 
special counsel just as a general principle would not want to 
use a grand jury just as a general rule. I mean, you might sort 
of in a very confined way, but----
    Senator Specter. A secrecy matter?
    Senator Danforth [continuing]. The problem is once you use 
a grand jury, then that is secret. You can't even discuss 
whether you have used one, much less what you have gotten out 
of it. And I think that the important thing, certainly, about 
this job for a special counsel, but probably as a general rule, 
is that you really want to satisfy the public.
    I mean, the big issue here is public confidence in 
Government, and he only way to deal with issues of public 
confidence in Government is to find the truth in a way that you 
can tell people. And if you find the truth in a way that you 
can't tell people, you haven't really solved the problem. So, 
that is why I think to have subpoena power without having to 
use a grand jury so that the information is usable publicly is 
an important tool.
    Senator Specter. The Congress and the Judiciary Committee 
and the Governmental Affairs Committee are all looking at the 
issue of independent counsel and reauthorizing the statute. And 
the Attorney General has used her own regulations to appoint 
special counsel.
    As I look through the difficulties which you have had which 
you surmounted, at page 79 of your report you give examples. 
For example, the Department of Justice, attempted to deny the 
Office of Special Counsel access to internal documents post-
dating the appointment of Senator Danforth, and resisted the 
production of important e-mail as being too burdensome; claimed 
to control the power to waive the Department of Justice's 
attorney-client privilege; and, demanded that the Department of 
Justice be consulted before the Office of Special Counsel took 
any action, such as proposing the flare forward-looking 
infrared tests that might affect the results of the civil 
litigation.
    Let me ask you the first question that I am pretty sure I 
know the answer to, and that is did you ultimately have any 
problem in getting what you needed through your own 
investigation?
    Senator Danforth. No, we didn't, and the Attorney General 
recused herself when she appointed me, and therefore Eric 
Holder, the Deputy Attorney General, became the person with 
whom we dealt and to whom the report was submitted. And I 
sometimes had to talk to him on the phone about these various 
problems, but always they were resolved to our satisfaction. It 
was just that along the way it was sort of a tug of war, but 
ultimately they were all resolved.
    Senator Specter. Well, we know from the Watergate 
experience when special prosecutor, they called Archibad Cox at 
that time, ran afoul of the executive branch, he got fired, and 
you had the Richardson to Ruckelshaus to Bork sequence.
    There are strong arguments to be made for special counsel 
as long as you are prepared to do it, Senator Danforth, or we 
find ex-Senators or ex-somebody or other with your credentials. 
And I have a judgment on the matter, but I would be interested 
in your thinking as to whether this role of special counsel is 
one which can survive the inherent conflicts in the Department 
of Justice, which you weathered but surpassed because of who 
you are, or whether the person who is undertaking this kind of 
an investigation of perhaps people more important than those 
whom you investigated, like the Vice President or the 
President, can do so if the person's authority is limited to 
being within the Department of Justice as special counsel as 
opposed to being an independent counsel under statutory 
authority.
    Senator Danforth. I have a philosophical preference here 
and I am not a fan of the idea of an independent counsel 
totally separated from the three branches of Government. I 
think in our case we were able to get all the information that 
we needed. I do think it would be helpful to have subpoena 
power, short of a grand jury.
    I think, further--and this is really not responsive to your 
question, but I think it is important for any special counsel, 
or if you want to reinstate the independent counsel, to have a 
very clear definition of what the job is, what the task at hand 
is, because the easiest thing in the world--and there were 
various temptations along the road to do this--is to let 
control of the special counsel morph from one thing to another.
    We insisted at the beginning on a very clear definition. I 
spent the first 3 or 4 days after I was appointed being 
available to the media before I went underground to try to 
explain what the parameters were, that we were involved in bad 
acts, not bad judgment. But I think whatever is done in the 
future, it is important to say to special counsel or 
independent counsel, your mission is to do A, B, and C, and not 
let that evolve into D, E, and F.
    Senator Specter. Senator Danforth, I agree with you 
totally. The statute which has been introduced for 
reauthorization, cosponsored by Senator Levin, Senator 
Lieberman, Senator Collins, and myself, seeks to do just that, 
to limit the number of people subject to investigation by 
independent counsel, a time limit, profiting by the mistakes 
which we have seen on independent counsel. But you are in a 
unique position, having gone through special counsel, perhaps 
not as unique as somebody would be who wasn't Senator Danforth, 
as I have already suggested.
    Senator Danforth, let me come back to a couple of questions 
about the raid itself. An issue was raised as to whether one of 
the exits was blocked, as I understand it, indicating right 
about point D, and I would be subject to correction by Mr. 
Martin as well. And your report dealt with the conclusion that 
there were other ways for people to get out of the building.
    What was your thinking as to having anything done to block 
that potential exit, if you know what I am referring to?
    Senator Danforth. Yes, I do. Well, Mr. Chairman, what 
happened was at the beginning of the operation, there was 
aneffort to insert tear gas into that so-called light green corner of 
the complex, because there was a trap door underneath and then there 
was a tunnel and the tunnel led to a school bus and then to the 
construction site.
    And the strategy of the FBI was to try to prevent people 
from getting into that construction pit. That is why the effort 
was made to put the pyrotechnic rounds in there. They were 
trying to shoot ferret rounds. They just bounced off, they 
didn't do any good. And they wanted to get gas into that 
construction pit so that people wouldn't go out through the 
tunnel into the construction pit and be a further danger there, 
more or less escape.
    So at the beginning of the operation, they attempted to 
insert tear gas. They started the tear gas operation in that 
corner where you marked the letter D. And incidental to that, 
some debris fell on the trap door and did block the trap door.
    At the same time, however, you know, the very use of the 
CEV's in various places created exit holes. That was, in fact, 
part of the strategy to create places where people could exit. 
So they clearly did not want them to exit into that 
construction pit, but part of the operation was to create holes 
in the building so that people could exit.
    Senator Specter. Was the blocking of the trap door then not 
deliberate?
    Senator Danforth. It was not deliberate. The blocking of 
the trap door was not deliberate. The insertion of gas at that 
place so that people would be less likely to use the trap door 
and get into the construction pit was part of the plan.
    Senator Specter. Senator Danforth, did your investigation 
take up the issue of who started the firing back on February 
28, 1993, where the Alcohol, Firearms, and Tobacco unit was 
principally involved?
    Senator Danforth. No.
    Senator Specter. Did your investigation take up the issue 
of why there was a deviation from the plan not to knock down 
the principal building?
    Senator Danforth. Yes.
    Senator Specter. Why was----
    Senator Danforth. I would say ``whether,'' not ``why.''
    Senator Specter. OK, I rephrase the question and I will 
look forward to your answer.
    Senator Danforth. Yes; we looked into the question of 
whether there was any misleading representation made with 
respect to the purpose of using the CEVs to punch holes into 
the building and whether, instead of the stated purpose, which 
was to insert gas and to provide exit holes, the purpose was to 
destroy the building. And it is our opinion that the purpose 
was as stated, to create the exit holes and to insert gas, not 
to destroy the building.
    The principal focus of that has to do with the so-called 
black side, which is on the top of the picture, which was a 
gymnasium, but it was used for storage. It was basically a 
storage area. It was not an area where there were people. But 
that was, in fact, demolished, but the reason for the 
demolition of that was to create a pathway--at least that was 
the effort--so that a CEV could then insert gas closer to that 
tower, which was where most of the people were congregated. The 
effort was to get gas from both the front and the back of the 
building into that tower area.
    Senator Specter. Did your inquiry take up the issue of why 
there was not alternative firefighting equipment? The 
firefighters were not permitted to approach the building 
because it was very dangerous, but there could have been 
alternative firefighting--helicopters, water cannons, have been 
used in oil field firefighting in Kuwait. There were very 
sophisticated ways of dealing with fighting the fire. Was that 
subject taken up by your inquiry?
    Senator Danforth. Yes; first of all, this building was 
really a fire trap, and accelerants were spread throughout the 
building. And the entire time that it took between the time 
that the fire was ignited to the building being really engulfed 
in flames was something like 18 minutes, a very, very short 
period of time.
    I don't think that the existence of any amount of fire 
equipment would have done much, particularly given the fact 
that the Davidians seemed intent on having a fire and on dying 
in the fire. One of the people who fled the building attempted 
to go back into the building and was rescued, in fact, by one 
of the FBI agents. But she wanted to go back into that building 
to die in the fire.
    So I think when you have a fire that spreads in an 18-
minute period of time which is set by igniting accelerants, in 
my own view no amount of firefighting equipment would have done 
any good at all. There were discussions, contacts, made by the 
FBI with the fire departments in the area to alert them to the 
fact that this raid was taking place.
    Some people speculate that, you know, there is in the world 
firefighting equipment that is, as I understand it, essentially 
tanks with water inside of them. But I don't think there are 
any in the United States, at least were at that time. I am told 
that there was one in Czechoslovakia, or some in 
Czechoslovakia. Or maybe they were made in Czechoslovakia, but 
they were certainly not readily available. So I think that when 
people are intent on burning themselves up, it is pretty hard 
to do much about it.
    Also, one of the things--and this was not known at the time 
because the enhancement has taken place after the fact, but 
there were electronic eavesdropping devices that were inside 
the complex, so that we know some of the discussion that was 
going on, including discussion about lighting the fire. And two 
days before the fire, there was a conversation involving David 
Koresh and the thrust of the conversation was when the fire 
trucks come--he is already talking about a fire--when the fire 
trucks come, we are going to shoot at the fire trucks.
    So I think that, you know, the fire trucks would have 
been--first of all, I don't think they would have done any 
good, or much good. And, secondly, they would have been 
targets.
    Senator Specter. Was a judgment made by Mr. Rodgers not to 
fight the fire?
    Senator Danforth. There was a judgment made that it was too 
dangerous to have fire trucks approach the building until it 
was too late because there was still gunfire coming out of the 
building.
    Senator Specter. Well, I can understand the point on the 
fire trucks. I just raise the issue as to whether there were 
some alternative ways it could have been found. It was 
anticipatable that there would be a fire, given what was known 
about Koresh and the Davidians.
    Senator Danforth. Well, Mr. Chairman, I don't think it was 
anticipated that there was going to be a fire. I think that in 
the planning and in the general caution, there was anticipation 
that that was a possibility, but it was certainly not a known 
fact that there would be a fire.
    Senator Specter. Senator Danforth, one final line of 
questioning, and that is with respect to the criminal process. 
And this is something you have to decide and the Department of 
Justice has to decide, but when you take up the issue of 
Richard Rodgers, who is in the hearing room and hears a very 
significant--never mind that it is a material misrepresentation 
of fact; it is a big point, what the Attorney General is 
testifying to, and the FBI Director, no pyrotechnics.
    I had David Brog, my chief counsel, go take a look at a 
statute when we were talking here today, and there is a fairly 
famous provision, 18 U.S. Code 1001, which covers false 
official statements. But it covers somebody who knowingly and 
willfully falsifies, conceals, or covers up by any trick, 
scheme, or device a material fact. And the focus would be 
whether Mr. Rodgers concealed a fact, where you have someone 
saying I didn't pay any attention to it.
    You can get convictions for perjury where somebody says ``I 
don't know.'' It is hard to prove somebody knows when he says 
``I don't know.'' But if there is evidence as to the person 
having access to the knowledge, you can get a conviction.
    You talk about the young woman--this is philosophical, and 
put them together--that you think she goofed, made a mistake. 
But then when it comes to concealment, a mistake is not a crime 
because it is not deliberate, because there is no mens rea, as 
you and I well know. But when there are four different stories 
concocted, as you said, then it comes to a little different 
level of conduct or what we call culpability.
    In a context where the American people have been denied 
access to this information for so long--and part of what we are 
trying to do is set a pattern and a road map for future 
conduct--I would like to hear a little more of your thinking. 
You are a former attorney general, prosecutor. What is your 
thinking on bypassing the criminal process as a way to set down 
a marker to tell people we are not going to look at your 
mistakes, we are not going to look at your errors of judgment, 
but if you sit there and your job is to listen and you miss a 
point that big, or if you goof, okay, but if you concoct four 
stories, that is perhaps crossing the culpability line?
    Senator Danforth. Well, I think there are two different 
cases. I think, one, in the case of Richard Rodgers, it is not 
prosecutable. In other words, I don't think that--just talking 
with the people with very great prosecutorial experience in my 
office, they think that there is just no chance of a successful 
prosecution because, among other things, you would have to 
prove that somebody was lying to you when he said he wasn't 
listening.
    And, you know, that is different from saying you were lying 
if you said you didn't know. You can show sometimes that people 
knew something, but how can you tell if somebody had just tuned 
out? Also, I am told that simply sitting there and not 
correcting somebody for a misleading statement, not even an 
inaccurate statement, but a statement that was unintentionally 
misleading, that that is not an offense. And then, finally, 
there would be the period of limitations.
    Senator Specter. Has the statute run from five years? When 
did the Attorney General testify before the congressional 
committee?
    Senator Danforth. 1993.
    Senator Specter. Not 1995? 1993?
    Senator Danforth. This was 1993.
    With respect to the FBI lawyer, I think that misstatements 
to our office would be prosecutable. I think that it is like 
hitting a gnat with a sledge hammer. I mean, I think that if 
this Special Counsel, after a year and employing 74 people and 
spending $12 million, ended up prosecuting a junior lawyer in 
the FBI for statements that, in my opinion or my guess, are 
simply covering up judgment as opposed to misdeeds by the FBI, 
I think that that is just overkill. And it would be, to me, a 
matter of prosecutorial discretion not to proceed.
    Senator Specter. Senator Danforth, thank you very much. 
Thank you for coming on such short notice.
    Senator Danforth. It is interesting to be on this side of 
the table, Senator Specter. Thank you very much.
    Senator Specter. Senator Danforth, we would rather have you 
on this side of the table.
    Senator Danforth. Thank you.
    Senator Specter. Your departure was lamented by many, many 
of your colleagues, none more than I. We need centrists like 
Senator Danforth in the Senate. You made a great contribution, 
but then you are still making great contributions.
    Senator Danforth. Thank you very much.
    Senator Specter. That concludes the hearing.
    [Whereupon, at 3:52 p.m., the subcommittee was adjourned.]