[Congressional Record Volume 141, Number 89 (Friday, May 26, 1995)]
[Senate]
[Pages S7585-S7595]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                 COMPREHENSIVE TERRORISM PREVENTION ACT

  The PRESIDENT pro tempore. The clerk will report the pending 
business.
  The legislative clerk read as follows:

       A bill (S. 735) to prevent and punish acts of terrorism, 
     and for other purposes.

  The Senate resumed consideration of the bill.

       Pending:
       Hatch amendment No. 1199, in the nature of a substitute.

  Mr. SPECTER addressed the Chair.
  The PRESIDENT pro tempore. The distinguished Senator from 
Pennsylvania.
  Mr. SPECTER. I thank the distinguished President pro tempore.
  Mr. President, I have sought recognition this morning to comment on 
the pending legislation, which is obviously a bill of tremendous 
importance in light of the recent bombing of the Federal building in 
Oklahoma City on April 19 and before that the bombing of the World 
Trade Center some 2 years ago.
  Terrorism has been an enormous problem internationally for decades, 
and now terrorism has struck on the shores and in the heartland of the 
United States. In considering legislation to deal with this very 
critical problem, Mr. President, we should ever be mindful that an 
appropriate balance has to be struck between public safety and the 
constitutional rights of the citizens under the Bill of Rights which 
has served our country so well since its adoption in 1791.
  The pending legislation has appended to it the habeas corpus reform 
bill which has been introduced by the distinguished chairman of the 
committee, Senator Hatch, and myself under the caption of the Specter-
Hatch bill, S. 623, and it is legislation which is long overdue to make 
the death penalty a meaningful deterrent.
  Last year, with the passage of the crime bill, Federal legislation 
was enacted which provides for the death penalty for those responsible 
for the bombing of the Federal building in Oklahoma City. The addition 
to this legislation of habeas corpus reform is important because some 
cases have been pending for as long as 20 years. Such delays really 
makes a virtual nullity of the death penalty because, in order to be an 
effective deterrent, the punishment must be swift and the punishment 
must be certain. In most of the [[Page S7586]] cases where these long 
delays have eventuated, the prosecutions characteristically arise in 
the State courts and go through with the judgment of sentence of death 
ultimately affirmed by the highest State court and then habeas corpus 
proceedings in the Federal court.
  The conduct in Oklahoma City, the bombing of the building and the 
murder of the innocent children, women, and men, is prosecutable under 
both Federal and State laws, and there is a slightly different habeas 
corpus procedure with respect to cases that originate under Federal 
jurisdiction. The Specter-Hatch language addresses both types of cases, 
and I think it is very, very important to have it contained in this 
bill.
  There are other measures in the pending legislation, Mr. President, 
which I think require our very calm and deliberate consideration, such 
as the provision which provides for secret proceedings to deport alien 
terrorists. While deportation proceedings are characteristically 
described as a civil proceeding, under the due process clause of law 
has been held to apply, and the due process clause of the 14th 
amendment characteristically incorporates most of the specific 
provisions of the Bill of Rights including the right of confrontation.
  I have grave reservations that any kind of a secret proceeding can 
pass constitutional muster. It is my thought that we may be able to 
solve the problem by deporting people suspected of being terrorists or 
known terrorists because they are in this country illegally. We all 
know that there are many aliens in the United States illegally, but 
there are not sufficient resources to deport all of them. It would be 
entirely possible for us to seek to deport aliens who are here 
illegally where there was cause to believe that they are terrorists but 
to deport them not through secret proceedings because they are 
terrorists but because they are in the United States illegally.
  Toward that end, I think we can abbreviate the procedures for 
deportation, including limiting appellate review. I think it is 
entirely possible to have, constitutionally, a definite period of 
preventive detention, and if there are defenses such as asylum, they 
can be litigated in relatively short order so that deportation of 
illegal aliens may be achieved without a conflict with the 
constitutional right of confrontation.
  Similarly, Mr. President, I am concerned--and I have expressed this 
before in the hearings held in the terrorism subcommittee of the 
Judiciary Committee, which I chair--about the provisions which would 
enable the Attorney General of the United States to classify an 
organization as engaged in terrorist activities and then deprive that 
organization of rights which are characteristically protected under the 
first amendment's freedom of association. While the bill provides for 
de novo review by the court, here again there are provisions for secret 
proceedings which I believe may run afoul of the U.S. Constitution.
  With respect to any wiretapping provisions which may be added to the 
bill, I think they will require our very, very close scrutiny to be 
sure we are preserving the constitutionally protected rights of those 
who are subject to the wiretapping.
  Mr. President, I will also take this opportunity to make some 
comments on the incidents at Ruby Ridge, ID, and Waco. With the Senate 
being fully occupied for the last several days on the budget, I did not 
have an opportunity to do so before, but it fits right in at this 
juncture, and I shall be relatively brief in summarizing some of the 
preliminary findings which I have come to.
  As the Congressional Record will show--and my distinguished 
colleague, the chairman of the Judiciary Committee, is in the Chamber--
it has been my view that we ought to hold hearings on Waco and Ruby 
Ridge promptly. And by that I mean on or before August 4. I am well 
aware of the consideration of not impeding the Federal Bureau of 
Investigation's inquiries into Oklahoma City. But as I said some time 
ago, in conversations with the Director of the FBI, he thought that a 
period by mid-August, 8 to 10 weeks from the time of our conversation 
as I reported it on the Senate floor, would allow ample time for the 
FBI to complete its Oklahoma City investigation without having any 
problems created by a Senate inquiry of the full Judiciary Committee.
  But in the absence of that full inquiry and in the absence of the 
setting of a date, I had said that I was going to make a preliminary 
inquiry myself. I did have occasion to report very briefly on these 
matters last week, but I want to comment a little more extensively this 
morning on my preliminary findings.
  With respect to the incident at Ruby Ridge, ID, which came to a head 
back on August 21, 1992, I have had occasion to talk to a number of the 
people who have knowledge of that matter, including FBI Director Louis 
Freeh; FBI Deputy Director Larry Potts; the Director of the Bureau of 
Alcohol, Tobacco and Firearms, John Magaw; Jerry Spence, the attorney 
for Mr. Weaver; Mr. Weaver, whom I talked to when I was in Des Moines 
earlier this month in the presence of his attorney, Michael Mooma, Esq. 
I have also talked to Randy Day, Esq., the Boundary County attorney in 
Idaho who was considering possible State prosecutions arising out of 
that incident. During the course of my conversations with Mr. Weaver, 
his daughters Sarah, Rachel, and Alicia, ages 19, 13, and 3, were also 
present.
  One of the critical aspects of the matter involving Mr. Weaver 
concerns the issue as to how the entire incident arose. In my meeting 
with Mr. Weaver, he described the incident as starting out when an 
undercover agent associated, as Mr. Weaver thought, with the Bureau of 
Alcohol, Tobacco and Firearms, came to purchase sawed-off shotguns from 
Mr. Weaver. As Mr. Weaver himself recounted the incident, he did 
provide two sawed-off shotguns to the ATF undercover agent.
  In my later conversations with the Director of the Alcohol, Tobacco 
and Firearms unit, John Magaw, he said that, during the course of the 
trial, there was an acquittal of Mr. Weaver on grounds of entrapment. 
Mr. Magaw described it as borderline entrapment, but it raises a 
fundamental question as to the appropriate course of conduct of the 
Bureau of Alcohol, Tobacco and Firearms on initiating such a matter 
through an undercover agent, a confidential informant, where the 
incident has all the preliminary earmarks of entrapment. And that, in 
fact, was the conclusion of the court, and that is the concession made 
by the director of the Alcohol, Tobacco and Firearms unit.
  Mr. President, a more critical aspect of what happened at Ruby Ridge, 
ID, of the tragedy which occurred there--including the killing of a 
deputy U.S. marshal, the killing of Mr. Weaver's son, Sam Weaver, the 
killing of Mr. Weaver's wife, Vicky--is the issue of the change in the 
FBI's rules of engagement from the standard shooting policy. On that 
issue, there is a direct conflict between representations made by Mr. 
Eugene F. Glenn, who is now the special agent in charge at the Salt 
Lake City office of the FBI and Deputy Director Larry Potts of the FBI.
  In my conversation with Mr. Potts on May 17 of this year, Mr. Potts 
advised me that there were never any changes in the rules of engagement 
and that he, Mr. Potts, had no authorization to change the deadly force 
policy.
  We do know, in the course of the incidents there, that Mrs. Weaver 
was killed by the bullet of an FBI sharpshooter. The contention has 
been made by officials of the Federal Bureau of Investigation that that 
was a matter which was necessary to defend other agents who were 
involved in the effort to take Mr. Weaver into custody.
  There is a very significant question as to the circumstances of that 
shooting with respect to a Bureau representation that Mrs. Weaver was 
shot through a door, which raises the inference and suggestion that the 
shooter might not have been able to see Mrs. Weaver, contrasted with 
the representation of others that the door had a glass pane so that, in 
fact, the shooter may have been able to see Mrs. Weaver. That is not 
ascertainable based upon what I know of the facts, because there is a 
possibility of glare, there is a possibility of some obstruction of 
vision even with a pane of glass, but that is certainly something which 
requires inquiry.
  Focusing in specifically on the conflict or at least apparent 
conflict between Mr. Potts and Mr. Glenn--as I have said, Deputy 
Director Potts told me that there were never any changes 
[[Page S7587]] in the rules of engagement and that he had no 
authorization to change the deadly force policy of the FBI.
  In a letter from Special Agent Glenn to Michael A. Shaheen, the 
Director of the Office of Professional Responsibility at the Department 
of Justice, seeking an investigation into what occurred, Mr. Glenn 
refers specifically to adjustments to the Bureau's standard shooting 
policy at Ruby Ridge, and he attributes those to Deputy Director Potts.
  This statement appears at page 6 of the letter from Mr. Glenn to Mr. 
Shaheen:

       On August 22, 1992, then Assistant Director Potts advised 
     during a telephonic conversation with SAC

  That means special agent in charge Glenn.

     that he had approved the rules of engagement, and he 
     articulated his reasons for his adjustments to the Bureau's 
     standard shooting policy. During the ten days of the Ruby 
     Ridge stand-off, there were several occasions when SAC Glenn 
     and AD Potts telephonically communicated with one another, 
     and during these conversations they mutually agreed that the 
     rules of engagement should continue to exist. On Wednesday, 
     August 26, 1992, AD Potts approved the FBI returning to the 
     standard shooting policy. This is reflected in the SIOC Log, 
     page 13, item 7.

  Then it follows to have the specification as to what occurred there.
  When Mr. Glenn requested this special investigation, he draws this 
conclusion at page 1 of the letter:

       * * * investigative deficiencies reveal a purpose to create 
     scapegoats and false impressions, rather than uncovering or 
     reinforcing the reality of what happened at Ruby Ridge.

  Mr. President, I ask unanimous consent that the full text of this 
letter from Mr. Glenn to Mr. Shaheen be printed at the conclusion of my 
statement.
  The PRESIDING OFFICER (Mr. Brown). Without objection, it is so 
ordered.
  (See exhibit 1.)
  Mr. SPECTER. Mr. President, I shall abbreviate these comments because 
we are in the middle of the consideration of the broader terrorism 
bill, but these comments are directly relevant to this bill. I know, 
however, that others are waiting to speak. While I will have more to 
say about this at a later time, I will condense these comments at this 
time.
  Relating to the incident at Ruby Ridge, there are questions which 
have already been raised by many as to why Mr. Potts was made the 
Deputy Director of the FBI while this matter was pending and certainly 
before there was a congressional inquiry by the U.S. Senate or the 
House of Representatives. Those are among my reasons for thinking that 
a congressional inquiry into Ruby Ridge should have been held a long 
time ago, but at least ought to be held as promptly as possible.
  Mr. President, turning for a few moments to the incident at Waco, TX, 
which reached its conclusion on April 19, 1993, let me say at the 
outset as emphatically as I can that whatever happened at Waco, TX, 
whatever happened at Ruby Ridge, ID, there is absolutely no 
justification for what happened at the Oklahoma City bombing on April 
19 of this year.
  But I do believe that it is more than coincidence that the incident 
at Waco occurred on April 19 and the incident at Oklahoma City occurred 
on the same day 2 years later. I believe it is vital in our democracy 
that accountability be present at the highest levels of our Government. 
It has always been my view that there should be a Senate inquiry on 
Waco, and I expressed that view back in the middle of the summer of 
1993 shortly after the Waco incident occurred. My comments were 
corroborated on the floor of the Senate by the then-chairman, Senator 
Biden, who confirmed that I had been pressing for an inquiry into Waco 
at that time.
  We live in the greatest democracy in the history of the world, but we 
have to remember, especially those of us in Washington, DC, and within 
the beltway, that we govern by the consent of the governed and that the 
right of the Government to govern depends upon the Government's 
recognizing the rights of individual citizens.
  There is no mere coincidence between the existence of the Bill of 
Rights and the stability of the American Government. The items in the 
Bill of Rights have to be very, very carefully safeguarded in every 
respect. It is a fundamental constitutional duty of the Congress to 
have oversight. That oversight has not been held with respect either to 
Waco or to Ruby Ridge, and I believe that these matters are directly 
related to the pending legislation which we are considering.
  In just a few minutes, I think the briefest way to set some of the 
questions on the record which require answering by our congressional 
hearing would be to refer to the report and recommendations filed by 
Prof. Alan Stone of Harvard with other recommendations submitted to the 
then-Deputy Attorney General of the United States, Philip Heymann.
  Professor Stone was one of a group of panelists who was requested by 
the FBI to prepare a forward-looking report suggesting possible changes 
in Federal law enforcement in light of what happened at Waco. These are 
a few of the comments from Professor Stone.
  At page 1 of his report, he says:

       . . . Neither the official investigation nor the Dennis 
     evaluation has provided a clear and probing account of the 
     FBI tactics during the stand-off and their possible 
     relationship to the tragic outcome at Waco.

  Then going on a few sentences later:

       I have concluded that the FBI command failed to give 
     adequate consideration to their own behavioral science and 
     negotiation experts. They also failed to make use of the 
     agency's own prior successful experience in similar 
     circumstances. They embarked on a misguided and punishing law 
     enforcement strategy that contributed to the tragic ending at 
     Waco.
       As a physician, I have concluded that there are serious 
     unanswered questions about the basis for the decision to 
     deploy toxic CS gas in a closed space where there were 25 
     children, many of them toddlers and infants.

  Skipping ahead to page 24, Professor Stone goes on to say:

       One might think that the highest priority after a tragedy 
     like Waco would be for everyone involved to consider what 
     went wrong and what would they now do differently. I must 
     confess that it has been a frustrating and disappointing 
     experience to discover that the Justice Department's 
     investigation has produced so little in this regard.

  Moving ahead now to page 30 briefly:

       The FBI needs a better knowledge base about the medical 
     consequences of CS gas.
       It is my opinion that the AG--

  The Attorney General.

     --was not properly informed of the risks to infants and small 
     children posed by CS gas.

  Continuing a few sentences later:

       The FBI, the Justice Department, and all of law enforcement 
     that uses CS gas ought to have as clear an understanding of 
     its medical consequences as possible.

  Then on his final page, page 31, under a caption ``Final Word,'' 
there is this statement:

       There is a view within the FBI and in the official reports 
     that suggests the tragedy was unavoidable. This report is a 
     dissenting opinion from that view.

  Then a final sentence:

       It is my considered opinion that the failings of the FBI at 
     Waco involved no intentional misconduct.

  Mr. President, in order to save time, I ask unanimous consent that 
the full text of this report by Professor Stone be printed at the end 
of my statement this morning.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (See exhibit 2.)
  Mr. SPECTER. Mr. President, on the citations which I refer to and in 
the full text of what Professor Stone has raised, which will be 
apparent to those who will see it in the Congressional Record, there 
are many unanswered questions as to what happened at Waco, just as 
there are many unanswered questions as to what happened at Ruby Ridge. 
It is my hope that we will have a Senate inquiry just as promptly as 
possible.
  I think it is vital that there be accountability at the highest 
levels of Government and that the public will be assured that the 
Congress will fully carry out its responsibilities for oversight under 
our constitutional responsibility.
  Yesterday, we had scheduled a hearing involving the militia movement 
in the subcommittee of Judiciary which I chair. That hearing, 
regrettably, had to be postponed because we were voting continuously 
all day long. But yesterday afternoon, I put into the Record the 
prepared statements of some witnesses that came from the militia 
movement. In brief conversation I had with those individuals, they 
expressed their concern about what the Government had done and their 
gratification [[Page S7588]] that at least the subcommittee was making 
an inquiry into what had gone on. If we discharge our duties, Mr. 
President, we can provide a safety valve to let the citizens of America 
know that their constitutional rights are being respected and that 
there will be congressional oversight no matter where the blame may lie 
at the highest level of the Federal Government, if there is any blame.
  I do not prejudge what went on at Ruby Ridge or at Waco, but I am 
absolutely convinced that there are many, very, very serious questions 
as to the governmental action at Ruby Ridge and Waco, and I am 
convinced that the safety valve and venting possible through a Senate 
full inquiry is very vital as we consider these problems of terrorism 
and move ahead to provide better protection to the American people from 
domestic terrorism and at the same time guarantee that the 
constitutional rights are preserved.
  I thank the Chair.
                               Exhibit 1

                                       U.S. Department of Justice,


                              Federal Bureau of Investigation,

                                  Salt Lake City, UT, May 3, 1995.
     Michael E. Shaheen,
     Office of Professional Responsibility,
     U.S. Department of Justice,
     Washington, DC.
       Dear Mr. Shaheen: The purpose of this letter is to request 
     the Office of Professional Responsibility (OPR) conduct an 
     investigation into the conduct of FBI Associate Special Agent 
     in Charge (A-SAC) Charles Mathews, III and possibly others 
     during the period A-SAC Mathews served on special assignment 
     in Washington, D.C. from October through December, 1994, 
     preparing the Administrative Summary Report regarding the 
     conduct of FBI personnel involved in the Ruby Ridge matter.
       As a key participant in the events of Ruby Ridge, I believe 
     I was not adequately or fully interviewed, yet the 
     investigative report was relied upon in proposing discipline 
     against me and other FBI Agents. As is explained below, this 
     and other investigative deficiencies reveal a purpose to 
     create scapegoats and false impressions, rather than 
     uncovering or reinforcing the reality of what happened at 
     Ruby Ridge.
       A-SAC Mathews was provided with the 1994 Ruby Ridge report 
     of Department of Justice (DOJ) Attorney Barbara Berman, along 
     with sixteen issues raised by the DOJ during their review of 
     the Berman Report. These issues concern alleged misconduct by 
     FBI employees. His assignment as preparer of the 
     Administrative Summary Report was: evaluate existing 
     documentation contained in the Berman report for evidence of 
     misconduct, review additional documentation within the FBI 
     that was not a part of the Berman report, and conduct or have 
     conducted appropriate investigation to either substantiate or 
     refute each allegation.
                 investigative procedural requirements

       As is clearly documented in subsequent portions of this 
     letter, A-SAC Mathews conducted his administrative review 
     with little regard to FBI policy and procedure, and as such 
     his Administrative Summary Report is critically flawed.
       For example, A-SAC Mathews did not follow the FBI Manual Of 
     Administrative Operations and Procedures (MAOP) as it 
     pertains to interviews of employees under criminal or 
     administrative inquiry. Section 13-4 of the MAOP is 
     particularly relevant as follows:
       ``13-4 Interviews of Employees Involved
       ``(1) Interviews of employees involved in allegations of 
     criminality or serious misconduct should be conducted at the 
     earliest logical time and in a forthright manner. There 
     should be no evasiveness on the part of the Bureau official 
     conducting the interview.
       ``(2) The employee should be fully and specifically advised 
     of the allegations which have been made against him/her in 
     order that he/she may have an opportunity to fully answer and 
     respond to them. . . .
       ``(3) Such interviews must be complete and thorough with 
     all pertinent information obtained and recorded so that all 
     phases of the allegations may be resolved. . . .
       ``(4) The inquiry shall not be complete until the specific 
     allegations that may justify disciplinary action are made 
     known to the employee who may be disciplined and the employee 
     is afforded reasonable time to answer the specific 
     allegations. The employee's answers, explanations, defenses, 
     etc., should be recorded in the form of a signed, sworn 
     statement which should specifically include the allegations 
     made against the employee in an introductory paragraph. The 
     statement is to be prepared following an in-depth interview 
     of the employee by the division head or designated
      supervisory representative. The employee is not merely to be 
     asked to give a written response to the allegations, but 
     is to be interviewed in an interrogatory fashion, and a 
     signed, sworn statement prepared from the results by the 
     interviewing official. . . .''


                            mathews actions

       I have enclosed and request your review of the following: 
     (1) the form ``Warning and Assurance to Employee Required to 
     Provide Information'' (FD-645) which states, ``This inquiry 
     pertains to Allegations of misconduct relating to the Rules 
     of Engagement established for the Ruby Ridge critical 
     incident and whether the FBI fully and adequately 
     participated in the investigation/prosecution of Weaver/
     Harris,'' and (2) the compelled signed statement of Eugene F. 
     Glenn dated December 8, 1994, provided by A-SAC Mathews and 
     Supervisory Special Agent (SSA) Jerry R. Donahoe, in which 
     paragraph two reads, ``I have been informed that this inquiry 
     pertains to allegations of misconduct relating to the Rules 
     of Engagement (ROE) established for the Ruby Ridge critical 
     incident and whether the FBI fully and adequately 
     participated in the investigation/prosecution of Weaver/
     Harris.''
       It should be noted that my ten-page signed statement dated 
     December 8, 1994, details liaison issues concerning the FBI, 
     Salt Lake City and the United States Attorney's (USA's) 
     Office, Boise, Idaho, for a period of time prior to the Ruby 
     Ridge incident and extending through the Harris/Weaver trial. 
     No questions were asked regarding ``rules of engagement.'' 
     Specifically, I was not asked why I had allegedly approved 
     the rules of engagement or more basically who had approved 
     the rules of engagement. I was never informed that I faced 
     possible disciplinary action for my alleged approval of the 
     rules of engagement. And although contrary to the printed 
     purpose of the inquiry as set forth on the FD-645, supra, A-
     SAC Mathews stated during the beginning of this interview, 
     ``The rules of engagement are considered unconstitutional; 
     therefore, there is no need to further discuss them.'' This 
     is clearly in conflict with the MAOP citation 13-4(2)&(4) 
     above.


                      department of justice report

       I direct your attention to an excerpt from an article that 
     appeared in ``Legal Times,'' on March 6, 1995, captioned, 
     ``DOJ Report May halt FBI Official's Rise.'' This article is 
     based on a review of the DOJ Ruby Ridge report prepared by 
     Barbara Berman. Apparently this report was leaked to the 
     media during late February, 1995. The ``Legal Times'' article 
     states:
       ``In the Reno inquiry, Potts had told investigators that he 
     never approved the final rules of engagement, the guidelines 
     governing a particular operation. Reno has refused to release 
     the 542-page report, saying that she would wait until the 
     local district attorney in Boundary County, Idaho, completes 
     an investigation into whether agents should be charged with 
     murder.
       ``But according to testimony contained in the report, which 
     was obtained by Legal Times, Potts did approve the shoot-on-
     sight rule.
       ``The task force found that FBI operatives on the ground in 
     Idaho faxed an operational plan, including the proposed rules 
     of engagement, to headquarters for approval by Potts and his 
     then deputy, Danny Coulson. But according to Freeh, Coulson 
     had questions about other facets of the operation discussed 
     and did not notice, let alone read, the rules of engagement. 
     Potts, who had been working on the matter for 36 straight 
     hours, was not on duty at the time and, hence, did not see 
     the written rules.
       ``But Eugene Glenn, the on-site commander of the FBI 
     operation, says in a January 1994 declaration that he 
     believes he had already obtained Potts' approval by telephone 
     before the shooting.
       ``The Reno task force also seemed to give credence to 
     Glenn's account. `(I)t is inconceivable to us that FBI 
     Headquarters remained ignorant of the exact wording of the 
     Rules of Engagement during the entire period,' the report 
     says.
       ``But FBI officials dispute Glenn's account and criticize 
     the Justice Department's report as flawed.
       ```When you piece together the evidence as best as possible 
     after the fact, we reached our best judgment, and that's 
     reflected in the discipline that the director announced or 
     proposed,' says FBI General Counsel Howard Shapiro, who was 
     directly involved in the FBI's inquiry.
       ``Freeh and Potts both declined comment.
       ```I can't speak for the director personally,' Shapiro 
     says, `but a lot turned on the fact that Potts had not 
     approved the final form of the rules of engagement, which are 
     admittedly problematic. Had we found otherwise, it surely 
     would have been grounds for further sanction,' the general 
     counsel adds.
       ``Shapiro declined to elaborate, saying that the FBI's 
     conclusions about what happened are based on information that 
     Reno has said the bureau must not release pending the outcome 
     of the local investigation.''
       I have never been interviewed/interrogated regarding the 
     rules of engagement. I was not made aware of the charge that 
     I had approved the rules of engagement. Additionally, HRT 
     Commander Dick Rogers, SAC Bill Gore, and SAC Robin 
     Montgomery were not interviewed/interrogated regarding the 
     rules of engagement during A-SAC Mathews' preparation of the 
     Administrative Summary Report.


                 fbihq approval of rules of engagement

       I had been interviewed previously on two occasions: during 
     September, 1992 as part of the Shooting Incident Report, and 
     again on January 12, 1994, as part of the Berman DOJ inquiry. 
     It is specifically detailed in the Shooting Incident Report 
     that the rules of engagement were approved at FBI 
     Headquarters. I call your attention to the following pages: 
     Administrative Section, Cover Page #, Paragraph 1; Report 
     Synopsis, Page 2, Lines 3 through 7; the body of the report, 
     Page 3, Paragraph 2; Dick Rogers signed statement, Page 2, 
     Paragraph 2 through Page 3, Paragraph 2; and signed statement 
     of Eugene F. Glenn, Page 5, Paragraph 2 through 
     [[Page S7589]] Page 6, Paragraph 1; and also to then 
     Assistant Director Potts' signed statement where he 
     articulates as part of this report that he approved the rules 
     of engagement. The DOJ inquiry covered a broad period of time 
     and touched only briefly on rules of engagement. Questioning 
     concerning who approved the rules of engagement was not 
     addressed in detail by interviewing officials during the 
     preparation of my signed statement. Questions concerning who 
     approved the rules of engagement did not appear to be a 
     critical issue to be developed at the time of the Berman 
     report.
       It should be noted that on September 30, 1992, the date of 
     the Shooting Report, there was no discussion regarding who 
     approved the rules of engagement. The report simply states 
     that
      the rules of engagement were approved at FBI Headquarters. 
     It is also noted that the Shooting Review Committee 
     Report, dated November 9, 1992, once again concurred that 
     FBI Headquarters approved the rules of engagement. 
     According to the ``Legal Times'' article dated March 6, 
     1995, the DOJ findings were, ``(I)t is inconceivable to us 
     that FBI Headquarters remained ignorant of the exact 
     wording of the Rules of Engagement during the entire 
     period.''
       There was no indication that the rules of engagement 
     presented to field command at Ruby Ridge on Saturday, August 
     22, 1992, differed in any way from the rules of engagement 
     Larry Potts advised he approved during his signed, sworn 
     statement taken during the creation of the Shooting Review 
     Report. It was only after the interviewing began that 
     pertained to the DOJ inquiry headed up by Barbara Berman 
     (over one year after the incident) that statements began to 
     waiver with regard to responsibility for approval of the 
     rules of engagement.
       In the absence of approved and recognized investigative 
     methods and techniques, A-SAC Mathews managed to take a 
     quantum leap from the factual basis documented in three 
     previous reports to a position of placing the blame for 
     approval of the rules of engagement on SAC Eugene F. Glenn. 
     It should be noted that this remarkable conclusionary quantum 
     leap by A-SAC Mathews was accomplished without the benefit of 
     any additional pertinent interviews of the logical parties 
     who were aware of the rules of engagement approval process.
       With regard to then Assistant Director Potts, his signed 
     statement taken on September 24, 1992, (a part of the 
     Shooting Review Report), advised that he jointly prepared the 
     rules of engagement with HRT Commander Dick Rogers while 
     Rogers was flying from Washington, D.C. to Northern Idaho to 
     carry out his assigned task as HRT Commander on-scene during 
     Ruby Ridge. On Saturday morning, August 22, 1992, HRT 
     Commander Rogers presented SACs Glenn and Gore with the OPS 
     Plan that included the rules of engagement; he advised how 
     these rules had been prepared during the flight from 
     Washington, D.C. to Northern Idaho and that then Assistant 
     Director Potts was involved in the preparation of these rules 
     of engagement and that Potts had approved them. On August 22, 
     1992, then Assistant Director Potts advised during a 
     telephonic conversation with SAC Glenn that he had approved 
     the rules of engagement, and he articulated his reasons for 
     these adjustments to the Bureau's standard shooting policy. 
     During the ten days of the Ruby Ridge stand-off there were 
     several occasions when SAC Glenn and AD Potts telephonically 
     communicated with one another, and during these conversations 
     they mutually agreed that the rules of engagement should 
     continue to exist. On Wednesday, August 26, 1992, AD Potts 
     approved the
      FBI returning to the standard shooting policy. This is 
     reflected in the SIOC Log, page 31, item 7, as follows: 
     ``7) AD Potts and SAC Glenn agreed effective 1:00 p.m. 
     EDT, 8/26/92, that the rules of engagement have changed 
     and that they are now that we should fire only in 
     accordance with current FBI shooting policy. . . .''


                  fbihq oversight of crisis situations

       During the January 6, 1995, press conference given by 
     Director Freeh concerning discipline of FBI Agents involved 
     in Ruby Ridge, the Director stated that Deputy Assistant 
     Director (DAD) Coulson had not read the rules of engagement. 
     If this, in fact, were true, I do not understand how such a 
     dereliction could be accepted from an individual whose sole 
     purpose for being in SIOC during this crisis was to be in 
     command of FBI operations at Ruby Ridge. It is a long-
     standing FBI procedure that any time SIOC is in operation, 
     all investigative plans, operations plans, and tactical 
     initiatives are approved by the individual in charge of SIOC. 
     This point can be testified to by any SAC present or former 
     who has ever served during a crisis with SIOC in operation. 
     Additionally, it can be testified to by any local, state, or 
     county law enforcement officer who has worked jointly with 
     the FBI during a crisis incident with SIOC in operation. I 
     have had several local and state officers come forward who 
     will testify that they witnessed this above-described 
     procedure during the Singer-Swapp crisis in Utah in 1988. 
     Additionally, officials of the U.S. Marshal's Service (USMS) 
     were present at Ruby Ridge in 1992 and witnessed the 
     procedure when the operations plan, which on page two 
     contained the rules of engagement, was sent via facsimile to 
     FBI Headquarters on Saturday, August 22, 1992, at 12:15 PM 
     PST, and to the USMS Headquarters simultaneously. At 12:30 
     PM, PST, the USMS Headquarters responded they had no 
     objections to the operations plan. Bureau approval was not 
     obtained for the operations plan until the negotiation annex 
     was faxed back to FBI Headquarters. At that time DAD Coulson 
     advised he approved the operations plan.
       DAD Coulson relieved AD Potts on Saturday, August 22, 1992. 
     It is reasonable to assume that AD Potts fully briefed DAD 
     Coulson regarding the activities surrounding the Ruby Ridge 
     matter, including rules of engagement, prior to turning over 
     command responsibilities to him. I call your attention to the 
     SIOC Log, page 8, time 18:04, which reads as follows: ``DAD 
     Coulson sent a facsimile to SAC Glenn re questions regarding 
     the Operations Plan submitted by SAC Salt Lake. 1. No mention 
     is made of Sniper Observer deployment as of 5:30 p.m. EST--
     (2:30 PST)
      2. What intelligence has been gathered from the crisis 
     point? 3. There is no mention of a Negotiation Strategy to 
     secure release of individuals at the crisis point. 4. 
     There is no mention of any attempt to negotiate at all. 5. 
     SAC Salt Lake is requested to consider negotiation 
     strategy and advise FBIHQ. FBIHQ is not prepared to 
     approve the plan as submitted at this time.''


                    fbihq actions on operations plan

       When DAD Coulson received the operations plan on Saturday, 
     August 22, 1992, he telephonically advised SAC Glenn he could 
     not approve the operations plan because it contained nothing 
     about negotiation strategy. DAD Coulson and SAC Glenn had a 
     lengthy telephone conversation concerning the points 1 
     through 5 set forth in the previous paragraph. Item 1 which 
     deals with sniper observer deployment was discussed at 
     length. It should be noted there were over 200 members of 
     HRT, FBI SWAT team members, and other tactical and 
     investigative units who were all held in camp and were not 
     deployed, including sniper observers, until after DAD Coulson 
     had received the crisis negotiation annex to the operations 
     plan and at that time the field command was free to move 
     sniper observer teams into forward positions. The sniper log 
     verifies that snipers were in position at 5:07 PM, Pacific 
     Daylight Time (8:07 PM, Eastern Daylight Time), which is 
     after DAD Coulson had approved the operations plan containing 
     the rules of engagement. There is no logic to the assumption 
     that FBI leadership responsible for field command at Ruby 
     Ridge would fax the operations plan containing the rules of 
     engagement to FBI Headquarters and USMS Headquarters 
     (receiving approval from the latter) and then deploy FBI 
     resources prior to receiving approval from SIOC, FBI 
     Headquarters. Is it logical to conclude that the two FBI SACs 
     and the FBI HRT Commander on the scene would have mutually 
     concurred to deploy FBI resources absent prior SIOC approval?
       The question must asked how did DAD Coulson avoid reviewing 
     the rules of engagement which are located on page 2 of the 
     Operation Plan inasmuch as he obviously had reviewed the 
     Operations Plan to come up with the questions as set forth in 
     the SIOC Log, supra.
       Page 8 of the SIOC Log at 18;30 reads as follows: ``SAC 
     Glenn advised DAD Coulson that Portland SWAT team had contact 
     with who they believe was subject approximately \1/4\ mile 
     `up canyon' from home. He used profanity and told them to get 
     off property. SAC was reminded of rules of engagement and to 
     treat subject as threat if confronted outside home. SAC is 
     working on negotiation plan.''
       It is noted that DAD Coulson's reminder to SAC Glenn 
     regarding how to handle Weaver if confronted outside his home 
     is in keeping with the rules of engagement that appeared in 
     the Operations Plan and is not in keeping with the standard 
     Bureau shooting policy.
       Additionally, there exist two witnesses--one an individual 
     who had a high-level position in SIOC during the operation 
     who advised it was common knowledge that FBI Headquarters 
     approved the rules of engagement; and the second witness is a 
     Bureau Supervisor who served in SIOC on Saturday with DAD 
     Coulson and overheard him discussing the rules of engagement 
     with Bureau Supervisor Tony Betz.


               conflicts on rules of engagement approval

       I am aware that there exist conflicting statements 
     regarding approval of the rules of engagement. Had A-SAC 
     Mathews conducted his administrative review with the ethical 
     standards and integrity normally associated with any FBI 
     Agent, each of the individuals involved (Potts, Coulson, 
     Rogers, Glenn, Gore, and Montgomery) would have been 
     interrogated to resolve any conflicts that appear in their 
     statements regarding rules of engagement. Had interrogation 
     not resolved these conflicts, polygraph examinations should 
     have been mandated as the next logical step. This type of in-
     depth investigation should have been mandated by A-SAC 
     Mathews prior to any conclusions being drawn concerning who 
     approved the rules of engagement.


           deficiencies on u.s. attorney liaison conclusions

       Instead of being interrogated concerning charges placed 
     against me, I was afforded a telephonic ``soft'' fact-finding 
     chronology-type review interview concerning liaison with the 
     USA's Office in Boise, Idaho. I was never confronted with the 
     allegations made by former U.S. Attorney Maurice Ellsworth 
     and/or others. Individuals I suggested to A-SAC Mathews that 
     should be contacted to provide additional insight regarding 
     liaison problems that existed with the USA's Office in Boise 
     under Ellsworth's leadership were [[Page S7590]] not 
     contacted, and the current U.S. Attorney in Boise and former 
     Acting U.S. Attorney for the District of Idaho were never 
     contacted to verify the current excellent liaison that exists 
     between the FBI and USA's Office in Boise. It should be noted 
     that U.S. Attorney for the District of Idaho Betty Richardson 
     and former Acting U.S. Attorney Pat Malloy of that office 
     wrote unsolicited letters to both Attorney General Janet Reno 
     and FBI Director Louis J. Freeh describing the current high 
     quality of liaison that exists between the FBI and the USA's 
     Office in Idaho. It is important to note that according to 
     the DOJ report leaked to the media concerning the Ruby Ridge 
     matter.
      the criticism leveled in the DOJ investigation focused on 
     liaison discrepancies by Headquarters Units of the FBI and 
     their interaction with the USA's Office in Boise, Idaho. 
     Yet, the Mathews report turned the responsibility for 
     deficiencies in liaison with the USA's Office in Boise, 
     Idaho, to the Salt Lake City Field Division without 
     conducting logical investigative steps and without 
     advising those to be charged with these derelictions of 
     the specific allegations they would be facing.


                     deficiencies in mathews report

       I have not yet been given access to the Mathews 
     Administrative Summary Report; however, I am aware of other 
     areas that were covered within the scope of this inquiry 
     where A-SAC Mathews: (1) failed to develop/gather all 
     evidence regarding liaison between the FBI, Salt Lake City 
     and the USA's Office in Boise; (2) demonstrated unethical 
     conduct by selectively choosing FBI Field Agents for 
     discipline and omitting others involved jointly with those 
     selected for discipline; (3) selectively choosing ASAC Thomas 
     Miller and SAC Michael Kahoe for discipline regarding the 
     Shooting Review Report for ``inaccurately and incompletely 
     analyzing the report'' while omitting discipline of others 
     who had to have reviewed the report (then Chief Inspector of 
     the Inspection Division, then Assistant Director of the 
     Inspection Division, then Deputy Assistant Director Danny 
     Coulson, CID; then Assistant Director Larry Potts, CID), all 
     of whom had to have read, analyzed, and approved this 
     Shooting Report prior to it being sent to then Deputy 
     Director Doug Gow; (4) and finally, other FBI Agents were 
     interviewed by A-SAC Mathews and were subsequently censured, 
     yet were not advised they were the subjects of an 
     administrative inquiry nor were they given the standard 
     waiver form to sign (FD-645).
       A-SAC Mathews, a close associate of then DAD Danny Coulson, 
     served as Coulson's ASAC in the Portland Office of the FBI 
     when Coulson was SAC from August 24, 1988, to December 29, 
     1991. The only logical conclusion that can be drawn to 
     explain the deception and lack of completeness in this 
     investigation is that A-SAC Mathews' relationship with 
     Coulson caused him to avoid the development of the necessary 
     facts, and caused him to cover up facts germane to the 
     central issues. It is beyond conceivability that any FBI 
     Agent with 25 years of experience could have inadvertently 
     presented such an incomplete, inaccurate document as the 
     Administrative Summary Report prepared by A-SAC Mathews. Had 
     A-SAC Mathews demonstrated the ethical standards normally 
     associated with someone in the FBI of his position, he would 
     have recused himself from this assignment because of an 
     obvious conflict of interest.
                 status of proposed disciplinary action

       More than 115 days have passed since I was publicly 
     castigated by Director Freeh during his infamous January 6, 
     1995, national press conference. To date I have not been 
     given copies of the Administrative Summary Report prepared by 
     A-SAC Mathews, the Department of Justice Report concerning 
     Ruby Ridge prepared in 1994 by Barbara Berman (leaked to the 
     media in February, 1995), the FBI report concerning the Ruby 
     Ridge matter prepared by then Inspector Robert E. Walsh in 
     1994 (which report parallels the Berman report but presents 
     findings that differ), and other internal documents I have 
     gone on record requesting under the provisions of FOIPA.
       Since January 6, 1995, the FBI in concert with the DOJ has 
     moved forward to have affirmed the correctness of the 
     discipline handed out to then Assistant Director Potts, and 
     on May 2, 1995, finalized his promotion to Deputy Director of 
     the FBI.
       This action was taken while my appeal sits unaddressed in 
     the office of Deputy Attorney General Jamie Gorelick. The 
     DOJ, aware that there are unresolved issues concerning 
     responsibility for authorization of the rules of engagement 
     at Ruby Ridge, chose to ignore the opportunity to hear from 
     SAC Glenn and instead took a course of action which further 
     exasperates an already flawed Administrative Review Process.


                               conclusion

       I request that a thorough OPR inquiry be initiated. There 
     are numerous administrative guidelines and procedures that 
     have been violated, and it is conceivable that federal 
     statutes have been violated. The lack of professionalism 
     demonstrated in the handling of the Administrative Summary 
     Report in connection with the Ruby Ridge matter casts a dark 
     cloud over the integrity of the FBI and the DOJ.
       I would welcome the opportunity to be interrogated 
     regarding this matter, and would likewise welcome the 
     opportunity to submit to a polygraph examination afforded to 
     me by a professional, nationally-recognized operator with a 
     total independent bearing in this matter.
       This letter has not been referred directly to OPR, 
     Inspection Division, FBI Headquarters, since it would create 
     a conflict of interest for Assistant Director Gore, who was 
     present and intricately involved in discussions involving the 
     Operations Plan (including rules of engagement) utilized 
     during the Ruby Ridge crisis in Idaho.
           Respectfully yours,

                                              Eugene F. Glenn,

                                          Special Agent in Charge,
                                          Salt Lake City Division.
                               Exhibit 2

Report and Recommendations Concerning the Handling of Incidents Such as 
                the Branch Davidian Standoff in Waco, TX

(Submitted to Deputy Attorney General Philip Heymann, by Panelist Alan 
A. Stone, M.D., Touroff-Glueck Professor of Psychiatry and Law, Faculty 
 of Law and Faculty of Medicine, Harvard University, November 10, 1993)


                              i. preamble

       The Justice Department's official investigation published 
     on October 8th together with other information made available 
     to the panelists present convincing evidence that David 
     Koresh ordered his followers to set the fire in which they 
     perished. However, neither the official investigation nor the 
     Dennis evaluation has provided a clear and probing account of 
     the FBI tactics during the stand-off and their possible 
     relationship to the tragic outcome at Waco. This report 
     therefore contains an account based on my own further review 
     and interpretation of the facts.
       I have concluded that the FBI command failed to give 
     adequate consideration to their own behavioral science and 
     negotiation experts. They also failed to make use of the 
     Agency's own prior successful experience in similar 
     circumstances. They embarked on a misguided and punishing law 
     enforcement strategy that contributed to the tragic ending at 
     Waco.
       As a physician, I have concluded that there are serious 
     unanswered questions about the basis for the decision to 
     deploy toxic C.S. gas in a closed space where there were 25 
     children, many of them toddlers and infants.
       This report makes several recommendations, first among them 
     is that further inquiry will be necessary to resolve the many 
     unanswered questions. Even with that major caveat, I believe 
     the Deputy Attorney General's suggestions for forward looking 
     changes are excellent and endorse them. This report makes 
     further specific recommendations for change building on his 
     proposal.


                            ii. introduction

     A: Explanation for the delay in the submission of this report

       This past summer, the Justice and Treasury Departments 
     appointed a group of panelists, each of whom was to prepare a 
     forward-looking report
      suggesting possible changes in federal law enforcement in 
     light of Waco. For reasons set forth below, I decided that 
     before submitting a report based on my particular 
     professional expertise, it was necessary to have a 
     complete understanding of the factual investigation by the 
     Justice Department. Having now had the opportunity to read 
     and study that report and the Dennis Evaluation, I 
     concluded that I did not yet have the kind of clear and 
     probing view of events that is a necessary prerequisite 
     for making suggestions for constructive change. Deputy 
     Attorney General (DAG) Philip Heymann therefore made it 
     possible for me to pursue every further question I had 
     with those directly responsible for the Justice 
     Department's factual investigation and with the FBI agents 
     whose participation at Waco was relevant to my inquiry. 
     Their cooperation allowed me to obtain the information 
     necessary for this report.
       The Justice Department has sifted through a mountain of 
     information, some of which, in accordance with Federal 
     Statute, can not be publicly revealed. This evidence 
     overwhelmingly proves that David Koresh and the Branch 
     Davidians set the fire and killed themselves in the 
     conflagration at Waco, which fulfilled their apocalyptic 
     prophecy. This report does not question that conclusion; 
     instead, my concern as a member of the Behavioral Science 
     Panel is whether the FBI strategy pursued at Waco in some way 
     contributed to the tragedy which resulted in the death of 
     twenty-five innocent children along with the adults. The 
     Justice Department Investigation and the Dennis Evaluation 
     seem to agree with the FBI commander on the ground, who is 
     convinced that nothing the FBI did or could have done would 
     have changed the outcome. That is not my impression.
       I therefore decided it was necessary to include in this 
     report my own account of the events I considered critical. I 
     have attempted to confirm every factual assertion of this 
     account with the FBI or the Justice Department. Although, in 
     my discussions with the Justice Department, I encountered a 
     certain skepticism
      about what I shall report here, I was quite reassured by 
     interviews with the FBI's behavioral scientists and 
     negotiators, who confirmed some of my impressions and 
     encouraged my efforts. Because they share my belief that 
     mistakes were made, they expressed their determination to 
     have the truth come out, regardless of the consequences. I 
     hope that this report will bolster the FBI and its new 
     Director's efforts to conduct their forthcoming review of 
     Waco, which has not yet begun. I also [[Page S7591]] hope 
     that my report and suggestions for change will in some 
     measure enable the FBI to work more effectively with the 
     Justice Department, the Attorney General, and other law 
     enforcement agencies.

               B. Mandate to the panel as I understood it

       The mandate to the panelists was ``to assist in addressing 
     issues that Federal Law Enforcement confronts in barricade/
     hostage situations such as the stand-off that occurred near 
     Waco, Texas. . . .'' Specifically, my sub-group (Ammerman, 
     Cancro, Stone, Sullivan) was directed to explore: ``Dealing 
     with persons whose motivations and thought processes are 
     unconventional. How should law enforcement agencies deal with 
     persons or groups which thought processes or motivations 
     depart substantially from ordinary familiar behavior in 
     barricade situations such as Waco? How should the motivations 
     of the persons affect the law enforcement response? What 
     assistance can be provided by experts in such fields as 
     psychology, psychiatry, sociology, and theology?''\1\
     \1\Memorandum of June 25, 1993.
---------------------------------------------------------------------------
       These seemed to be two premises in this request by the 
     Deputy Attorney General (DAG). The first premise was that 
     Waco had been a tragic event, so it was important for the 
     agencies and the people involved to examine the evidence, 
     evaluate their actions, and initiate change based on those 
     conclusions. Second, although there were questions about the 
     psychiatric status of David Koresh, the
      DAG's use of the term, ``unconventional,'' indicated that we 
     were also broadly to consider groups with ``belief 
     systems'' that might cause them to think and behave 
     differently than ordinary criminals and therefore to be 
     more difficult for law enforcement to deal with and 
     understand. As I understood it, the Branch Davidians' 
     religious beliefs were considered unconventional,'' which 
     was not intended to be a pejorative term, but rather a 
     descriptive one. The panelists were also told that there 
     was concern among federal law enforcement officials that 
     more such ``unconventional'' groups might, in the near 
     future, pose problems for which law enforcement's standard 
     operating procedures might not be suitable.
       Given this important responsibility and the fact that we 
     were asked to make recommendations ``[c]oncerning the 
     handling of incidents such as the Branch Davidian Standoff in 
     Waco, Texas'' (emphasis added), I felt unprepared to go 
     forward without a thorough grasp of the events and decisions 
     that led to the tragedy. However, the Justice Department was 
     still in the preliminary stage of their own fact-gathering 
     investigation at our panel briefings in early July. Hoping to 
     convey the particular issues of concern to me, I prepared a 
     preliminary report based on the initial briefings. Since the 
     factual information I wanted and needed was still being 
     gathered by the Justice Department, I did not attend the 
     subsequent special briefings arranged for the panel at 
     Quantico, Virginia. Because of my reticence to furnish a 
     report based on incomplete information, the DAG and I 
     resolved that I would submit my report subsequent to the 
     completion of the Justice Department's factual inquiry. I 
     have now had the opportunity to review the following 
     documents:
       1. Report of the Department of the Treasury on the Bureau 
     of Alcohol, Tobacco, and Firearms. Investigation of Vernon 
     Wayne Howell Also Known As David Koresh, September, 1993;
       2. Report to the Deputy Attorney General on the Events at 
     Waco, Texas,
      February 28 to April 19, 1993 (Redacted Version), October 8, 
     1993;
       3. Edward S.G. Dennis, Jr., Evaluation of the Handling of 
     the Branch Davidian Stand-off in Waco, Texas, February 28 to 
     April 19, 1993 (Redacted version), October 8, 1993;
       4. Deputy Attorney General Philip B. Heymann, Lessons of 
     Waco: Proposed Changes in Federal Law Enforcement October 8, 
     1993;
       5. Recommendations of Experts for Improvements in Federal 
     Law Enforcement After Waco.
       As previously mentioned, the Justice Department and the FBI 
     have answered my further questions, supplied me with 
     documents, and helped me explore issues of greatest relevance 
     to my inquiry.


                   iii. account of the events at waco

       The FBI replaced the BATF at the Branch Davidian compound 
     on the evening of February 28 and the morning of March 1. 
     There had been casualties on both sides during the BATF's 
     attempted dynamic entry. David Koresh, the leader of the 
     Branch Davidians, had been shot through the hip, and the 
     situation was in flux. It would become, as we have been told, 
     the longest stand-off in law enforcement history. The FBI, 
     with agents in place who were trained for rapid intervention, 
     was locked into a prolonged siege. The perimeter was 
     difficult to control, the conditions were extreme, and the 
     stress was intense. Furthermore, the FBI's people had 
     inherited a disaster that was not of their own making. 
     ``Under the circumstances, the FBI exhibited extraordinary 
     restraint and handled this crisis with great 
     professionalism'' the Dennis Evaluation concludes. While this 
     may be true from the perspective of experts in law 
     enforcement, it does not contribute to establishing a clear 
     explanation of what happened at Waco from a psychiatric and 
     behavioral science perspective. The commander on the ground
      believes that the FBI's actions had no impact on David 
     Koresh. He and others who share his opinion will likely 
     disagree with the account that follows, which is the 
     product of my own current understanding of the events.

                                Phase I

       During the first phase of the FBI's engagement at Waco, a 
     period of a few days, the agents on the ground proceeded with 
     a strategy of conciliatory negotiation, which had the 
     approval and understanding of the entire chain of command. 
     They also took measures to ensure their own safety and to 
     secure the perimeter. In the view of the negotiating team, 
     considerable progress was made--for example, some adults and 
     children came out of the compound; but David Koresh and the 
     Branch Davidians made many promises to the negotiators they 
     did not keep. Pushed by the tactical leader, the commander on 
     the ground began to allow tactical pressures to be placed on 
     the compound in addition to negotiation; e.g., turning off 
     the electricity, so that those in the compound would be as 
     cold as the agents outside during the twenty-degree night.

                                Phase II

       As documented in the published reports and memoranda, this 
     tactical pressure began at the operational level over the 
     objections of the FBI's own experts in negotiation and 
     behavioral science, who specifically advised against it. 
     These experts warned the FBI command about the potentially 
     fatal consequences of such measures in dealing with an 
     ``unconventional'' group. Their advice is documented in 
     memoranda. Nonetheless tactical pressure was added. Without a 
     clear command decision, what evolved was a carrot-and-stick, 
     ``mixed-message'' strategy. This happened without outside 
     consultation and without taking into account that the FBI was 
     dealing with an ``unconventional'' group.
       Although this carrot-and-stick approach is presented in the 
     factual investigation as though it were standard operating 
     procedure for law enforcement and accepted by the entire 
     chain of command, it was instead, apparently, the result of 
     poor coordination and management in the field. Negotiators 
     and tactical units were at times operating independently in 
     an uncoordinated and counterproductive fashion.

                               Phase III

       During the third phase of the stand-off, the FBI took a 
     more aggressive approach to negotiation and, when that 
     failed, gave up on the process of negotiation, except as a 
     means of maintaining communication with the compound. By 
     March 21, the FBI was concentrating on tactical pressure 
     alone: first, by using all-out psycho-physiological warfare 
     intended to stress and intimidate the Branch Davidians; and 
     second, by ``tightening the noose'' with a circle of armored 
     vehicles. The FBI considered these efforts a success because 
     no shots were fired at them by the Branch Davidians.
       This changing strategy at the compound from (1) 
     conciliatory negotiating to (2) negotiation and tactical 
     pressure and then to (3) tactical pressure alone, evolved 
     over the objections of the FBI's own experts and without 
     clear understanding up the chain of command. When the fourth 
     and ultimate strategy, the insertion of C.S. gas, was 
     presented to Attorney General Reno, the FBI had abandoned any 
     serious effort to reach a negotiated solution and was well 
     along in its strategy of all-out tactical pressure, thereby 
     leaving little choice as to how to end the Waco stand-off. It 
     is unclear from the reports whether the FBI ever explained to 
     the AG that the agency had rejected the advice of their own 
     experts in behavioral science and negotiation, or whether the 
     AG was told that FBI negotiators believed they could get more 
     people out of the compound by negotiation. By the time the AG 
     made her decision, the noose was closed and, as one agent 
     told me, the FBI believed they had ``three options--gas, gas, 
     and gas.''
       This account of the FBI's approach at Waco may not be 
     correct in every detail. It is certainly oversimplified, but 
     it has been confirmed in its general outline by FBI 
     behavioral scientists and negotiators who were participants 
     at Waco. This account with their assistance brings into focus 
     for me the critical issues about law enforcement response to 
     persons and a group whose beliefs, motivations, and behavior 
     are unconventional.
                              iv. analysis

                A. The FBI's behavioral science capacity

1. FBI Expertise in Dealing With Persons Whose Motivations and Thought 
                      Processes Are Unconventional

       The evidence now available to me indicates that, contrary 
     to my previous understanding and that of the other panelists, 
     the FBI's Investigative Support Unit and trained negotiators 
     possessed the psychological/behavioral science expertise they 
     needed to deal with David Koresh and an unconventional group 
     like the Branch Davidians. The FBI has excellent in-house 
     behavioral science capacity and also consulted with reputable 
     experts outside the agency. Panelists may have been misled, 
     as I was, by FBI officials at the original briefings who 
     conveyed the impression that they considered David Koresh a 
     typical criminal mentality and dealt with him as such. They 
     also conveyed the impression that they believed his followers 
     were dupes and he had ``conned'' them. Based on reports and 
     interviews, the FBI's behavioral science experts who were 
     actually on the scene at Waco had an excellent understanding 
     of Koresh's psychology and appreciated the group's intense 
     religious convictions. [[Page S7592]] 
       My preliminary report of August 3 emphasized at some length 
     those aspects of David Koresh's clinical history and 
     psychopathology that contradicted the simplistic and 
     misleading impression given at the first briefings. Much more 
     information has been made available about his mental 
     condition, his behavioral abnormalities, his sexual 
     activities, and his responses under stress. All of this 
     evidence is incompatible with the notion that Koresh can be 
     understood and should have been dealt with as a conventional 
     criminal type with an antisocial personality disorder. 
     However, the evidence available does not lead directly to 
     some other clear and obvious psychiatric diagnosis used by 
     contemporary psychiatry. Nonetheless, based on the FBI's in-
     house behavioral science memoranda and other
      information from outside consultants, I believe the FBI 
     behavioral science experts had worked out a good 
     psychological understanding of Koresh's psychopathology. 
     They knew it would be a mistake to deal with him as though 
     he were a con-man pretending to religious beliefs so that 
     he could exploit his followers.
       This is not to suggest that David Koresh did not dominate 
     and exploit other people. He was able to convince husbands 
     and wives among his followers that only he should have sex 
     with the women and propagate children. He convinced parents 
     on the same religious grounds to permit him to have sex with 
     their young teen-age daughters. He studied, memorized, and 
     was preoccupied with Biblical texts and made much better 
     educated people believe that he had an enlightened 
     understanding of scripture and that he was the Lamb of God. 
     His followers took David Koresch's teachings as their faith. 
     He exacted strict discipline from adults and children alike 
     while indulging himself.
       Whatever else all this adds up to, it and other information 
     clearly demonstrate as a psychological matter that Koresh had 
     an absolute need for control and domination of his followers 
     that amounted to a mania. He also had the ability to control 
     them. The intensity and depth of his ability and need to 
     control is attested to by everyone in the FBI who dealt with 
     him, from negotiators and behavioral scientists to tactical 
     agents and the commander on the ground.
       Unfortunately, those responsible for ultimate decision-
     making at Waco did not listen to those who understood the 
     meaning and psychological significance of David Koresh's 
     ``mania.'' Instead they tried to show him who was the 
     ``boss.''
       What went wrong at Waco was not that the FBI lacked 
     expertise in behavioral science or in the understanding of 
     unconventional religious groups. Rather the commander on the 
     ground and others committed to tactical-aggressive, 
     traditional law enforcement practices disregarded those 
     experts and tried to asset control and demonstrate to Koresh 
     that they were in charge. There is nothing
      surprising or esoteric in this explanation, nor does it 
     arise only from the clear wisdom of hindsight. As detailed 
     below, the FBI's own experts recognized and predicted in 
     memoranda that there was the risk that the active 
     aggressive law enforcement mentality of the FBI--the so-
     called ``action imperative'' would prevail in the face of 
     frustration and delay. They warned that, in these 
     circumstances, there might be tragic consequences from the 
     FBI's ``action imperative,'' and they were correct.

                2. Evaluating the Risks of Mass Suicide

       As I have previously stated, there is, to my mind, 
     unequivocal evidence in the report and briefings that the 
     Branch Davidians set the compound on fire themselves and 
     ended their lives on David Koresh's order. However, I am also 
     now convinced that the FBI's noose-tightening tactics may 
     well have precipitated Koresh's decision to commit himself 
     and his followers to this course of mass suicide.
       The official reports have shied away from directly 
     confronting and examining the possible causal relationship 
     between the FBI's pressure tactics and David Koresh's order 
     to the Branch Davidians. I believe that this omission is 
     critical because, if that tactical strategy increased the 
     likelihood of the conflagration in which twenty-five innocent 
     children died, then that must be a matter of utmost concern 
     for the future management of such stand-offs.
       Based on the available evidence and my own professional 
     expertise, I believe that the responsible FBI decision makers 
     did not adequately or correctly evaluate the risk of mass 
     suicide. The Dennis Evaluation's executive summary concludes 
     that ``the risk of suicide was taken into account during the 
     negotiations and in the development of the gas plan.'' It is 
     unclear what ``taken into account'' means. The questions that 
     now need to be explored are: how was the risk of suicide 
     taken into
      account, and how did the FBI assess the impact of their show 
     of-force pressure tactics on that risk?

                          Gambling with death

       There is a criminology, behavioral science, and psychiatric 
     literature on the subject of murder followed by suicide, 
     which indicates that these behaviors and the mental states 
     that motivate them have very important and complicated links. 
     Family violence often takes the form of murder followed by 
     suicide. Multiple killers motivated by paranoid ideas often 
     provoke law enforcement at the scene to kill them and often 
     commit suicide. Even more important is what has been called 
     ``the gamble with death.'' Inner-city youths often provoke a 
     shoot-out, ``gambling'' with death (suicide) by provoking 
     police into killing them. The FBI's behavioral science unit, 
     aware of this literature, realized that Koresh and his 
     followers were in a desperate kill-or-be-killed mode. They 
     were also well aware of the significance and meaning of the 
     Branch Davidians' apocalyptic faith. They understood that 
     David Koresh interpreted law enforcement attacks as related 
     to the prophesied apocalyptic ending.
       In moving to the show of force tactical strategy, the FBI's 
     critical assumption, was that David Koresh and the Branch 
     Davidians, like ordinary persons, would respond to pressure 
     in the form of a closing circle of armed vehicles and 
     conclude that survival was in their self-interest, and 
     surrender. This ill-fated assumption runs contrary to all of 
     the relevant behavioral science and psychiatric literature 
     and the understanding it offered of Koresh and the Branch 
     Davidians.
       Furthermore, there was direct empirical evidence supporting 
     the assumption that the Branch Davidians, because of their 
     own unconventional beliefs, were in the ``gamble with death'' 
     mode. The direct evidence for this was their response to the 
     ATF's misguided assault. They engaged in a desperate
      shootout with federal law enforcement, which resulted in 
     deaths and casualties on both sides. The AFT claims 
     gunfire came from forty different locations. If true, this 
     means that at least forty Branch Davidians were willing to 
     shoot at federal agents and kill or be killed as martyr-
     suicide victims defending their ``faith.'' The idea that 
     people with those beliefs expecting the apocalypse would 
     submit to tactical pressure is a conclusion that flies in 
     the face of their past behavior in the ATF crisis. Past 
     behavior is generally considered the best predictor of 
     future behavior.

              Willing to kill but not cold-blooded killers

       The BATF investigation reports that the so-called ``dynamic 
     entry'' turned into what is described as being ``ambushed''. 
     As I tried to get a sense of the state of mind and behavior 
     of the people in the compound the idea that the Branch 
     Davidians' actions were considered an ``ambush'' troubled me. 
     If they were militants determined to ambush and kill as many 
     AFT agents as possible, it seemed to me that given their 
     firepower, the devastation would have been even worse. The 
     agents were in a very vulnerable position from the moment 
     they arrived. Yet, as ordered, they tried to gain entry into 
     the compound in the face of the hail of fire. Although there 
     is disagreement, a senior FBI tactical person and other 
     experts confirmed my impression of this matter. The ATF 
     agents brought to the compound in cattle cars could have been 
     cattle going to slaughter if the Branch Davidians had taken 
     full advantage of their tactical superiority. They apparently 
     did not maximize the kill of ATF agents. This comports with 
     all of the state-of-mind evidence and suggests that the 
     Branch Davidians were not determined, cold-blooded killers; 
     rather, they were desperate religious fanatics expecting an 
     apocalyptic ending, in which they were destined to die 
     defending their sacred ground and destined to achieve 
     salvation.
       The tactical arm of federal law enforcement may 
     conventionally think of the other side as a band of criminals 
     or as a military force or, generically, as the aggressor. But 
     the Branch Davidians were an unconventional group in an 
     exalted, disturbed, and desperate state of mind. They were 
     devoted to David Koresh as the Lamb of God. They were willing 
     to die defending themselves in an apocalyptic ending and, in 
     the alternative, to kill themselves and their children. 
     However, these were neither psychiatrically depressed, 
     suicidal people nor cold-blooded killers. They were ready to 
     risk death as a test of their faith. The psychology of such 
     behavior-together with its religious significance for the 
     Branch Davidians was mistakenly evaluated if, not simply 
     ignored, by those responsible for the FBI strategy of 
     ``tightening the noose.'' The overwhelming show of force was 
     not working in the way the tacticians supposed. It did not 
     provoke the Branch Davidians to surrender, but it may have 
     provoked David Koresh to order the mass-suicide. That, at 
     least, is my considered opinion.
       The factual investigation reports in detail the many time 
     negotiators asked Koresh and others in the compound whether 
     they planned suicide. Also documented are Koresh's assurances 
     that they would not kill themselves. Such questions and 
     answers are certainly important from a psychiatric 
     perspective in evaluating a patient's suicidal tendency. But 
     the significance of such communication depends on the 
     context, the relationship established, and the state of mind 
     of the person being interviewed. The FBI had no basis for 
     relying on David Koresh's answers to these questions. 
     Furthermore, his responses provided no guidance to the more 
     pertinent question?--`What will you do if we tighten the 
     noose around the compound in a show of overwhelming power, 
     and using CS gas, force you to come out?'

                       The psychology of control
       The most salient feature of David Koresh's psychology was 
     his need for control. Every meaningful glimpse of his 
     personality and of day-to-day life in the compound 
     demonstrates his control and domination. The tactic of 
     tightening-the-noose around the compound was intended to 
     convey to David Koresh the realization that he was losing 
     control of his ``territory,'' and that the FBI 
     [[Page S7593]] was taking control. The FBI apparently assumed 
     that this tactic and the war of stress would establish that 
     they were in control but would not convey hostile intent. 
     They themselves truly believed these tactics were ``not an 
     assault,'' and because the Davidians failed to respond with 
     gunfire, the FBI considered their tactics effective and 
     appropriate. The commander on the ground now acknowledges 
     that they never really gained control of David Koresh. But, 
     in fact, my analysis is that they pushed him to the ultimate 
     act of control--destruction of himself and his group.
       The FBI's tactics were ill considered in light of David 
     Koresh's psychology and the group psychology of the people in 
     the compound. The FBI was dealing with a religious group, 
     with shared and reinforced beliefs and a charismatic leader. 
     If one takes seriously the psychological syndrome of murder/
     suicide gamble with death and the group's unconventional 
     belief system in the Seven Seals and the apocalypse, then you 
     may conclude, as I have, that the FBI's control tactics 
     convinced David Koresh that, in this situation, he was 
     becoming hopeless and helpless--that he was losing control. 
     In his desperate state of mind, he chose death rather than 
     submission. When the FBI thought they were at last taking 
     control, they had in fact totally lost control of the stand-
     off.

    3. The Waco Tactics in Light of the Group Psychology of the FBI

       If this had been a military operation, the Waco conclusion 
     would have been a victory. The enemy was destroyed without a 
     single loss of life for the FBI. This situation, however, was 
     not a military operation. The question is; did a ``military''
      mentality overtake the FBI? We were told that the FBI 
     considers a conflict which results in any casualties on 
     either side a failure. The law enforcement experts on the 
     panel agreed.
       There is little doubt that the FBI inherited a terrible 
     situation. Federal agents had been killed and wounded, and 
     there were killed and wounded Branch Davidians in and around 
     the compound. The FBI knew that they were in a dangerous 
     situation, and that they confronted a group of religious 
     fanatics who were willing to kill or be killed. The FBI's 
     initial decision to mount a stand-off and negotiate was a 
     remarkable exhibition of restraint under the circumstances. 
     In retrospect, tactical units will wonder whether an 
     immediate full-scale dynamic entry by an overwhelming force 
     would have produced less loss of life.
       The FBI stand-off, we were repeatedly told, was the longest 
     in law enforcement history. The costs in money and manpower 
     were mounting and, Waco had the media impact of the Iran 
     Hostage taking as the days mounted. The FBI was under 
     enormous pressure to do something. Given what I believe the 
     FBI's group psychology to have been, the desultory strategy 
     of simultaneous negotiation and tactical pressure was enacted 
     as a compromise between doing nothing (passivity) and 
     military assault (the action imperative). The appeal of any 
     tactical initiative to an entrenched, stressed FBI must have 
     been overwhelming. It may have better suited their group 
     psychology than the group psychology of the unconventional 
     people in the compound they wanted to affect. Given the 
     escalating pressure to act, the final tightening-the-noose'' 
     and C.S. gas strategy must have seemed to the tacticians a 
     reasonable compromise between doing nothing and overreacting.
       This analysis of the FBI's group psychology is not intended 
     as a matter of placing blame. If it is accurate, it at least 
     points to what might be done differently in the future. The 
     FBI should not be pushed by their group psychology into
      misguided ad hoc decision making the next time around.

             B. Failure To Use Behavioral Science Capacity

1. Failure of coordination between tactical and negotiating arms of the 
                                  FBI

       Throughout the official factual investigation, there are 
     references to the failure of communication between the 
     tactical and negotiation arms of the FBI. The commander on 
     the ground thinks that the official investigation and 
     evaluation exaggerate the extent and significance of that 
     failure. I disagree. The situation can only be fully 
     appreciated by a thoroughgoing review of the documents. 
     Consider the Memo of 3/5/93 from Special Agents Peter Smerick 
     and Mark Young on the subject, ``Negotiation Strategy and 
     Considerations.'' The memorandum not only defines the basic 
     law enforcement priorities at Waco in the identical fashion 
     as the after-the-fact panel of law enforcement experts, also 
     anticipates most of the panel's own behavioral science 
     expertise and retrospective wisdom. Agents Smerick and Young 
     were not Monday morning quarterbacks as we panelists are; 
     they were members of the F.B.I. team on the field of play. 
     The basic premise of their overall strategy was:
       1. Insure safety of children [emphasis in original], who 
     are truly victims in this situation.
       2. Facilitate the peaceful surrender of David Koresh and 
     his followers.
       The agents went on to emphasize that the strategy of 
     negotiations, coupled with ever-increasing tactical presence 
     was inapplicable. They wrote, ``In this situation, however, 
     it is believed this strategy, if carried to excess, could 
     eventually be counter-productive and could result in loss of 
     life.'' p. 2, Memo of 3/5/93. The agents also were fully 
     aware that Koresh's followers believed in his teachings and 
     would ``die for his cause.'' They were fully aware, 
     therefore, of the religious significance of the Branch 
     Davidians' conduct and attitudes and were sensitive to all of 
     the concerns emphasized by the religious experts on the panel 
     in their
      reports. They suggested that the F.B.I. should consider 
     ``offering to pull back, only if they release more 
     children'' (emphasis in original). The agents further 
     recommended that, ``since these people fear law 
     enforcement, offer them the opportunity of surrendering to 
     a neutral party of their choosing accompanied by 
     appropriate law enforcement personnel.''
       These agents recognized that although some in the F.B.I. 
     might believe the Davidians were ``bizarre and cult-like,'' 
     the followers of Koresh ``will fight back to the death, to 
     defend their property [described elsewhere by the agents as 
     sacred ground, the equivalent of a cathedral to Catholics, 
     etc.] and their faith'' (emphasis added). Memo of Smerick and 
     Young 3/7/93.
       My reading of these memos indicates that these agents had 
     placed the safety of the children first, exactly as did AG 
     Reno. They recognized that it was not a traditional hostage 
     situation, as the British law enforcement expert on the 
     panel, C.E. Birt, repeatedly emphasized during our briefings 
     of July 1 and 2, when he found it necessary to correct the 
     misrepresentation of the briefer. They warned against the 
     carrot-and-stick approach, which was employed and has been 
     criticized by several of the panelists in their reports. 
     Professor Cancro speaks of it as a ``double bind,'' a term 
     used by behavioral scientists to describe a mixed message for 
     which their is no correct response and which, as a result, 
     creates anxiety and agitation in the recipient of the 
     message.
       The factual investigation does not explain how or why these 
     expert opinions of behavioral scientists and negotiations 
     within the FBI were overridden. The Justice Department 
     emphasized that these same agents whose views I have 
     described gave quite contradictory views the very next day. 
     When I asked whether the Justice Department's fact-finders 
     had questioned these agents as to why they had changed their 
     views, no adequate answer was given. I therefore pursued that 
     inquiry with the agent who authored the two reports. He made 
     it quite clear that
      the contradictory suggestions were offered only in response 
     to an expression of dissatisfaction with the previous 
     recommendations. Although the commander on the ground and 
     the official investigation disagree with my view, I have 
     concluded that decision-making at Waco failed to give due 
     regard to the FBI experts who had the proper understanding 
     of how to deal with an unconventional group like the 
     Branch Davidians.

   2. Was tactical strategy appropriate with so many children in the 
                               compound?

       The pressure strategy as we now know it consisted of 
     shutting off the compound's electricity, putting search 
     lights on the compound all night, playing constant loud noise 
     (including Tibetan prayer chants, the screaming sounds of 
     rabbits being slaughtered, etc.), tightening the perimeter 
     into a smaller and smaller circle in an overwhelming show of 
     advancing armored force, and using CS gas. The constant 
     stress overload is intended to lead to sleep-deprivation and 
     psychological disorientation. In predisposed individuals the 
     combination of physiological disruption and psychological 
     stress can also lead to mood disturbances, transient 
     hallucinations and paranoid ideation. If the constant noise 
     exceeds 105 decibels, it can produce nerve deafness in 
     children as well as in adults. Presumably, the tactical 
     intent was to cause disruption and emotional chaos within the 
     compound. The FBI hoped to break Koresh's hold over his 
     followers. However, it may have solidified this 
     unconventional group's unity in their common misery, a 
     phenomenon familiar to victimology and group psychology.
       When asked, the Justice Department was unaware whether the 
     FBI had even questioned whether these intentional stresses 
     would be particularly harmful to the many infants and 
     children in the compound. Apparently, no one asked whether 
     such deleterious measures were appropriate, either as a 
     matter of law enforcement ethics or as a matter of morality, 
     when innocent children were
      involved. This is not to suggest that the FBI decisionmakers 
     were cold-blooded tacticians who took no account of the 
     children; in fact, there are repeated examples showing the 
     concern of the agents, including the commander on the 
     ground. Nevertheless, my opinion is that regardless of 
     their apparent concern the FBI agents did not adequately 
     consider the effects of these tactical actions on the 
     children.

                      3. The plan to insert CS gas

       During U.S. military training, trainees are required to 
     wear a gas mask when entering a tent containing CS gas. They 
     then remove the mask and, after a few seconds in that 
     atmosphere, are allowed to leave. I can testify from personal 
     experience to the power of C.S. gas to quickly inflame eyes, 
     nose, and throat; to produce choking, chest pain, gagging, 
     and nausea in healthy adult males. It is difficult to believe 
     that the U.S. Government would deliberately plan to expose 
     twenty-five children, most of them infants and toddlers, to 
     C.S. gas for forty-eight hours. Although it is not discussed 
     in the published reports, I have been told that the FBI 
     believed that the Branch Davidians had gas masks and that 
     this was one of the reasons for the plan of prolonged 
     exposure. I [[Page S7594]] have also been told that there was 
     some protection available to the children, i.e., covering 
     places where the seal is incomplete with cold wet towels can 
     adapt gas masks for children and perhaps for toddlers though 
     not for infants. The official reports are silent about these 
     issues and do not reveal what the FBI told the AG about this 
     matter, and whether she knew there might be unprotected 
     children and infants in the compound.
       The written information about the effects of C.S. gas which 
     was presented to the AG has been shared with the panelists. 
     We do not know whether she had time to read it. Based on my 
     own medical knowledge and review of the scientific 
     literature, the information supplied to the AG seems to 
     minimize the potential
      harmful consequences for infants and children.
       Scientific literature on C.S. gas is, however, surprisingly 
     limited. In the sixties, the British Home Office, 
     commissioned the Himsworth Report, after complaints about the 
     use of C.S. gas by British troops in Londonderry, Ireland. 
     The report is said by its critics to understate the medical 
     consequences. The published animal research on which the 
     report is based acknowledged that at very high exposure, 
     which the authors deemed unlikely, lethal effects were 
     produced. The researchers assumed (as did the Himsworth 
     report) that C.S. gas would be used primarily in open spaces, 
     to disperse crowds, and not in closed areas.
       The AG's information emphasized the British experience and 
     understated the potential health consequences in closed 
     spaces. The AG also had a consultation with a physician; but 
     the exact content of that discussion has not been reported, 
     and the available summary is uninformative. The FBI commander 
     on the ground assures me that the agency has detailed, 
     ongoing expertise on C.S. gas and its medical consequences. 
     If so, no such FBI information was supplied in the written 
     material to the AG or subsequently to this panelist.
       Based on my review, the American scientific literature on 
     the toxic effects of C.S. gas on adults and children is also 
     limited. Of course, there has, been no deliberate 
     experimentation on infants. The Journal of the American 
     Medical Association published two articles in recent years in 
     which physicians expressed concern about the use of C.S. gas 
     on civilians, including children in South Korea and Israel. 
     Anecdotal reports of the serious consequences of tear gas, 
     however, approved as early as 1956. Case reports indicate 
     that prolonged exposure to tear gas in closed quarters causes 
     chemical pneumonia and lethal pulmonary edema. (Gonzalez, 
     T.A., et al, Legal Medicine Pathology and Toxicology East 
     Norwalk, Conn: Appleton Century Crofts, 1957). According to a 
     1978 report, a disturbed adult died after only a half-hour 
     exposure to C.S. gas in closed quarters. Chapman,
      A.J. and White C. ``Case Report: Death Resulting from 
     Lacrimatory Agents,'' J. Forensic Sci., 23 (1978): 527-30) 
     The clinical pathology found at autopsy in these cases is 
     exactly what common medical understanding and ordinary 
     pulmonary physiology predicts would follow prolonged 
     exposure in closed quarters.
       The potential effects of C.S. gas are easily explained. 
     C.S. gas causes among other things, irritation and 
     inflammation of mucus membrane. The lung is a sack full of 
     membranes. The inhalation of C.S. gas would eventually cause 
     inflammation, and fluid would move across the membranes and 
     collect in the alveoli, the tiny air sacks in the lungs that 
     are necessary for breathing. The result is like pneumonia and 
     can be lethal. Animal studies are available to confirm that 
     C.S. gas has this effect on lung tissue. Ballantyne, B. and 
     Callaway, S., ``Inhalation toxicology and pathology of 
     animals exposed to omicron-chlorobenzylidene malonitrile 
     (CS),'' Med. Sci. Law, 12 (1972): 43-65. The Special 
     Communication published in J.A.M.A. 220 (1993): 616-20 by 
     Physicians for Human Rights reported that its teams, 
     investigating the use of C.S. gas in South Korea and Panama, 
     found ``skin burns, eye injuries and exacerbations of 
     underlying heart and lung disease . . . on civilians at sites 
     far removed from crowd gatherings.'' Dermatologists have 
     reported blistering rashes on skin exposed to self-defense 
     sprays, which use the same C.S. gas. Parneix-Spake, A. et al, 
     ``Severe Cutaneous Reactions to Self-Defense Sprays, Arch. 
     Dermatol 129 (1993): 913.
       The medical literature does contain a clinical case history 
     of a situation that closely approximates the expected Waco 
     conditions. Park, S. and Giammona, S.T.m, ``Toxic Effects of 
     Tear Gas on an Infant Following Prolonged Exposure,'' Amer. 
     J. Dis. Child 123,3 (1972). A normal four month-old infant 
     male was in a house into which police officers, in order to 
     subdue a disturbed adult, fired canisters of C.S. gas. The 
     unprotected child's exposure lasted two to three hours. 
     Thereafter, he was immediately taken to an emergency room. 
     His symptoms during the first
      twenty-four hours were upper respiratory; but, within forty-
     eight hours his face showed evidence of first degree 
     burns, and he was in severe respiratory distress typical 
     of chemical pneumonia. The infant had cyanosis, required 
     urgent positive pressure pulmonary care, and was 
     hospitalized for twenty-eight days. Other signs of 
     toxicity appeared, including an enlarged liver. The 
     infant's delayed onset of serious, life-threatening 
     symptoms parallels the experience of animal studies done 
     by Ballantyne and Calloway for the Hinsworth Report. The 
     infant's reactions reported in this case history were of a 
     vastly different dimension than the information given the 
     AG suggested.
       Of course, most people without gas masks would be driven by 
     their instinct for survival from a C.S. gas-filled structure. 
     But infants cannot run or even walk out of such an 
     environment; and young children (many were toddlers) may be 
     frightened or disoriented by this traumatic experience. The 
     C.S. gas tactics, planned by the FBI, and approved by the AG, 
     would seem to give parents no choice. If they wanted to spare 
     their inadequately protected children the intense and 
     immediate suffering expectably caused by the C.S. gas, they 
     would have had to take them out of the compound. Ironically, 
     while the most compelling factor used to justify the Waco 
     plan was the safety of the children, the insertion of the 
     C.S. gas, in my opinion, actually threatened the safety of 
     the children.
       The Justice Department has informed me that because of the 
     high winds at Waco, the C.S. gas was dispersed; they believe 
     it played no part in the death by suffocation, revealed at 
     autopsy, of most of the infants, toddlers, and children. The 
     commander on the ground, however, is of the opinion that the 
     C.S. gas did have some effect, because the wind did not begin 
     to blow strongly until two hours after he ordered the 
     operations to begin. As yet, there has been no report as to 
     whether the children whose bodies were found in the bunker 
     were equipped with gas masks. Whatever the actual effects may 
     have been, I find it hard to accept a deliberate
      plan to insert C.S. gas for forty-eight hours in a building 
     with so many children. It certainly makes it more 
     difficult to believe that the health and safety of the 
     children was our primary concern.
       The commander on the ground has informed me that careful 
     consideration was given to the safety of the children, and 
     that the initial plan was to direct the gas at an area of the 
     compound not occupied by them. We will never know whether 
     that plan would have worked: the Branch Davidians began to 
     shoot at the tank like vehicles inserting the gas canisters, 
     and C.S. gas was then directed at all parts of the compound, 
     as previously decided in a fall back plan recommended by 
     military advisers.


                           v. recommendations

    A. The Deputy Attorney General's formulation and recommendations

       The DAG has, in his overview, outlined the critical 
     elements to be considered in dealing with a situation like 
     Waco in the future. This is an excellent formulation. Based 
     on what I have learned and what I have described above, I 
     strongly endorse his formulation and the recommendations 
     which follow. However, unlike the other panelists in my 
     group, I am impressed that the FBI has adequate in-house 
     expertise to deal with unconventional groups like the Branch 
     Davidians. Furthermore, it seems clear that at Waco, the FBI 
     was suffering from information overload, if from anything. 
     Thus, I believe that the crisis management capacity (see DAG 
     recommendations) and what I would describe as information 
     management have to be the particular focus for future change.

                  B. Recommendations of this panelist

                 1. Further investigation is necessary

       On might think that the highest priority after a tragedy 
     like Waco would be for everyone involved to consider what 
     went wrong and what would they now do
      differently. I must confess that it has been a frustrating 
     and disappointing experience to discover that the Justice 
     Department's investigation has produced so little in this 
     regard. The investigators have assured me that everyone 
     involved was asked these questions and that few useful 
     responses were given. An undercurrent of opinion holds 
     that everything depends and will depend in the future on 
     the commander on the ground. SAC Jamar, the commander on 
     the ground, knows that he is on the spot and that there 
     are those who point to his position as the weak link at 
     Waco. When I asked him what went wrong and what should be 
     done differently, he candidly acknowledged his difficult 
     position; but he emphasized how much was still unknown 
     about what happened, and that he still had not met with 
     the FBI Waco negotiators to discuss their view of what 
     happened. His basic conclusion in retrospect, however, was 
     that nothing the FBI had done at Waco made any real 
     impact. His opinion is that Koresh sent people out because 
     he didn't want them, and not because of the FBI's 
     conciliatory negotiation strategy. His opinion is that 
     Koresh ended it all in mass suicide not because of the FBI 
     tactical strategy, but because that was always his 
     intention. His deep and serious concern about his 
     responsibilities was impressive and he made it 
     convincingly clear how much more I and the other experts 
     needed to know about the acts. On this, he was preaching 
     to the converted. There is no doubt in my mind that much 
     more needs to be known about Waco. In my opinion, it is 
     now time for the FBI itself, with the help and 
     participation of outside experts, to take on that 
     responsibility. Indeed, that is my first recommendation. I 
     agree with the FBI's commander on the ground that we still 
     do not know enough about what happened at Waco. We need to 
     know more, not in the spirit of who is to blame, but in 
     the spirit of what went wrong that can be made right. What 
     can we learn from a careful study of David Koresh and the 
     Branch Davidians that will help us in learning about other 
     unconventional groups? [[Page S7595]] What can the FBI 
     learn about its own behavior at Waco that will help in the 
     future?
       Just as I believe the FBI has more work to do, I believe 
     the Justice Department has work to do as well. No clear 
     pictures has emerged of how and on what basis the AG made her 
     decision. Given on my current information about C.S. gas, it 
     is difficult to understand why a person whose primary concern 
     was the safety of the children would agree to the FBI's plan. 
     It is critical that in the future, the AG have accurate 
     information, so that she can make an informed decision. If 
     the only information she was given about C.S. gas is what has 
     been shown to the panelists then, given my current 
     understanding, she was ill advised and made an ill-advised 
     decision. None of these matters have been clarified. 
     Certainly for its own effective functioning, the Justice 
     Department needs to sort this out for the future.
       The sequence of decision making set out in the earlier 
     account indicates that the FBI had already moved very far 
     down the branch of the decision tree before consulting the 
     AG. This made it difficult for her to make any other choice. 
     Presumably, others in the Justice Department had been 
     involved every step of the way. Like the FBI, they need to 
     re-examine their own behavior, the channels of communication, 
     the processing of information, and what went wrong or needs 
     to be done differently in the future. I assume that the DAG's 
     recommendation of a ``senior career official'' within the 
     Justice Department, who maintains ``a familiarity with the 
     resources available to the FBI,'' is a forward looking 
     solution to some of these problems.

  2. The FBI Needs To Make Better Use of Past Experience and Existing 
                      Behavioral Science Capacity

       As we have been told, the commander on the ground was not 
     selected because of his past experience in standoffs or 
     because of his knowledge of unconventional groups. He was the 
     special agent in charge of the geographical area
      in which the action took place. The DAG has recommended a 
     different command structure. Nonetheless, the FBI had a 
     situation room in Washington and a command structure in 
     place at Waco which could have brought the agency's past 
     experience to bear. At the first briefings, when asked to 
     describe their most successful resolution of a standoff 
     with an unconventional group, an FBI official reported the 
     successful use of a third party intermediary (negotiator). 
     When I subsequently inquired about the FBI's previous 
     experience with the successful use of CS gas, the example 
     given was a prison riot.
       These examples speak for themselves and suggest to me that 
     in making decisions at Waco, the FBI did not make the best 
     use of its own past experience. The commander on the ground 
     believes his decision to allow lawyers and the local sheriff 
     to meet with Koresh is an example of using a third-party 
     intermediary. However, in their own highly successful 
     resolution of a stand-off with an armed unconventional group, 
     the FBI used a fellow member of the religious faith as the 
     intermediary. This option was apparently rejected at Waco for 
     reasons that I find unconvincing.
       The DAG has recommended that a computer database of past 
     stand-offs be developed. The critical importance of this is 
     to insure that the FBI makes better use of its own 
     experience. It will be important for the FBI to distinguish 
     between unconventional groups and prison populations in 
     deciding which tactical measures are strategically and 
     ethically appropriate.

      3. The FBI Needs a Clear Policy on Third Party Negotiators/
                             Intermediaries

       The FBI has well-trained negotiators whose skills are 
     impressive. Nonetheless, there came a time at Waco when the 
     FBI's frustration led them to introduce a new negotiating 
     approach. They changed from a conciliatory, trust-building 
     negotiator to a more demanding and intimidating negotiator. 
     The change
      had no effect and may have been counterproductive. The 
     negotiators also tried, at times, to talk religion with 
     Koresh but concluded that this was not productive.
       Some FBI negotiators are convinced that they could have 
     gotten more people out of the compound if the FBI had stayed 
     the course of conciliatory negotiation. Whether or not that 
     is true, the FBI reached a point where tactical strategy 
     became the priority and negotiation under those circumstances 
     became ineffective.
       It is my recommendation that this point of change be 
     defined as a red light, a time when the decision makers in 
     future standoffs should consider the use of a third party 
     negotiator/intermediary. The red light should go on when the 
     commander on the ground or the chain of command begins to 
     feel that FBI negotiation is at a stand still.
       The FBI negotiation and behavioral science experts should, 
     at the least, develop a policy in consultation with experts 
     on when they might consider the use of third party 
     negotiators/intermediaries. The current working policy seems 
     to be that third party negotiators are counterproductive. The 
     experience justifying that policy needs to be reviewed in 
     light of Waco. It was a significant omission at Waco not to 
     involve as a third-party negotiator/intermediary a person of 
     religious stature familiar with the unconventional belief 
     system of the Branch Davidians.

  4. The FBI and the Justice Department Need a Systematic Policy for 
             Dealing With Information Overload in a Crisis

       A critical element of crisis management based on my 
     analysis of what happened at Waco is information management. 
     Information overload allows decision-makers to discount all 
     of the expert advice they are given and revert to their own 
     gut instincts. Alternatively--as I believe we learn from 
     Waco--the decision-makers can insist on being given advice 
     compatible with their gut instinct. In my opinion, the gut 
     instinct that prevailed at Waco was the law enforcement mind-
     set, the action-control imperative.
       If, as the DAG recommends, the FBI develops a network of 
     academic experts in behavioral science, religion, sociology, 
     and psychiatry, the FBI can certainly expect an information 
     overload in the next crisis. The problem will be how to 
     manage the expert information overload. This is a complex 
     problem that requires careful consideration by appropriate 
     experts. However, one pattern that emerged from my 
     understanding of Waco needs to be changed. The official 
     investigation lists all kinds of experts who allegedly were 
     consulted or who took it upon themselves to offer unsolicited 
     advice. It is almost impossible to determine what all this 
     adds up to. One of my fellow panelists believes--and I am 
     convinced--that the FBI never actually consulted with a 
     religious expert familiar with the unconventional beliefs of 
     Branch Davidians. The investigators at the Justice Department 
     disagree with this conclusion. My concern about this is not a 
     matter of fault-finding: it is critical to my concern about 
     information management in a crisis. The question is: what 
     counts as a consultation with the FBI? One has the impression 
     from the Waco experience that a variety of agents were 
     talking to a variety of experts, and that some of these 
     contacts were listed as consultations. We are not told how 
     those contacts or consultations were sorted through. Who in 
     the process would decide what was relevant and important and 
     what irrelevant and unimportant.
       In any event, the prevailing pattern in the information 
     flow during the crisis was for each separate expert to offer 
     the FBI an opinion. As a preliminary matter, it seems to me 
     important for the FBI to establish who the relevant experts 
     are and then arrange through conference calls or more high-
     tech arrangements for sustained dialogue among them, to 
     understand and clarify the dimensions of their disagreements 
     and, when possible, to achieve consensus. Information should 
     be exchanged and differences directly confronted in the 
     circle of consultants; they should not vanish in the 
     information overload.
5. The FBI Needs a Better Knowledge Base About the Medical Consequences 
                               of CS Gas

       As discussed above, is my opinion that the AG was not 
     properly informed of the risks to infants and small children 
     posed by CS gas. This is not to imply that the FBI 
     intentionally misled her. Indeed, the FBI may not have had 
     the proper medical information. The use of CS gas is, in any 
     event, a controversial matter, and although it is 
     understandable that the Justice Department investigation did 
     not explore medical considerations, a careful evaluation is 
     clearly indicated. The FBI, the Justice Department, and all 
     of law enforcement that uses CS gas ought to have as clear an 
     understanding of its medical consequences as possible. The 
     hasty survey of the medical and scientific literature done 
     for this report is hardly definitive. These matters should be 
     sorted out so that the AG clearly understands what the use of 
     CS gas entails.

  6. The FBI Needs a Specific Policy for Dealing With Unconventional 
                                 Groups

       The basic conclusion of my account and analysis is that the 
     standard law enforcement mentality asserted itself at Waco in 
     the tactical show of force. The FBI should be aware of its 
     own group psychology and of the tendency to carry out the 
     action imperative. Doubtless, that imperative is appropriate 
     in dealing with conventional criminals; it may be necessary 
     even in dealing with unconventional groups. However, the 
     lesson of Waco is that once the FBI recognizes that it is 
     dealing with an unconventional group, those who urge 
     punishing tactical measures should have to meet a heavy 
     burden of persuasion. When children are involved, the burden 
     should be even heavier and ethical considerations, which need 
     to be formulated, would come into play.


                             vi. final word

       The events at Waco culminated in a tragic loss of life--on 
     that everyone involved in law enforcement and in the official 
     inquiry agree. There is a view within the FBI and in the 
     official reports that suggests the tragedy was unavoidable. 
     This report is a dissenting opinion from that view. There is 
     obviously no definitive answer; but my account and analysis 
     tries to emphasize what might have been done differently at 
     Waco, and what I believe should be done differently in the 
     FBI's future dealings with unconventional groups. I endorse 
     the DAG's recommendations for change and offer additional 
     suggestions. Although such a determination falls outside my 
     province, it is my considered opinion that the failings of 
     the FBI at Waco involve no intentional misconduct.
  The PRESIDING OFFICER. The pending question is amendment No. 1199. Is 
there further debate?
  Mr. LEAHY addressed the Chair.
  The PRESIDING OFFICER. The Senator from Vermont.

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