[House Report 106-1037]
[From the U.S. Government Publishing Office]



                                                 Union Calendar No. 599

106th Congress, 2d Session -  -  -  -  -  -  -  -  House Report 106-1037

               THE TRAGEDY AT WACO: NEW EVIDENCE EXAMINED

                               __________

                            ELEVENTH REPORT

                                 by the

                     COMMITTEE ON GOVERNMENT REFORM


                                     


                                     

  Available via the World Wide Web: http://www.gpo.gov/congress/house
                      http://www.house.gov/reform

 December 28, 2000.--Committed to the Committee of the Whole House on 
            the State of the Union and ordered to be printed

                               __________

                    U.S. GOVERNMENT PRINTING OFFICE
67-357                     WASHINGTON : 2000

                     COMMITTEE ON GOVERNMENT REFORM

                     DAN BURTON, Indiana, Chairman
BENJAMIN A. GILMAN, New York         HENRY A. WAXMAN, California
CONSTANCE A. MORELLA, Maryland       TOM LANTOS, California
CHRISTOPHER SHAYS, Connecticut       ROBERT E. WISE, Jr., West Virginia
ILEANA ROS-LEHTINEN, Florida         MAJOR R. OWENS, New York
JOHN M. McHUGH, New York             EDOLPHUS TOWNS, New York
STEPHEN HORN, California             PAUL E. KANJORSKI, Pennsylvania
JOHN L. MICA, Florida                PATSY T. MINK, Hawaii
THOMAS M. DAVIS III, Virginia        CAROLYN B. MALONEY, New York
DAVID M. McINTOSH, Indiana           ELEANOR HOLMES NORTON, District of 
MARK E. SOUDER, Indiana                  Columbia
JOE SCARBOROUGH, Florida             CHAKA FATTAH, Pennsylvania
STEVEN C. LaTOURETTE, Ohio           ELIJAH E. CUMMINGS, Maryland
MARSHALL ``MARK'' SANFORD, South     DENNIS J. KUCINICH, Ohio
    Carolina                         ROD R. BLAGOJEVICH, Illinois
BOB BARR, Georgia                    DANNY K. DAVIS, Illinois
DAN MILLER, Florida                  JOHN F. TIERNEY, Massachusetts
ASA HUTCHINSON, Arkansas             JIM TURNER, Texas
LEE TERRY, Nebraska                  THOMAS H. ALLEN, Maine
JUDY BIGGERT, Illinois               HAROLD E. FORD, Jr., Tennessee
GREG WALDEN, Oregon                  JANICE D. SCHAKOWSKY, Illinois
DOUG OSE, California                             ------
PAUL RYAN, Wisconsin                 BERNARD SANDERS, Vermont 
HELEN CHENOWETH-HAGE, Idaho              (Independent)
DAVID VITTER, Louisiana


                      Kevin Binger, Staff Director
                     James C. Wilson, Chief Counsel
                    Thomas G. Bowman, Senior Counsel
                     Marc Chretien, Senior Counsel
                    Andre D. Hollis, Senior Counsel
                    John F. Callender, Jr., Counsel
                        Robert A. Briggs, Clerk
                Philip Schiliro, Minority Staff Director
               Philip S. Barnett, Miniority Chief Counsel
          Michael J. Yeager, Minority Senior Oversight Counsel
                  Julian A. Haywood, Minority Counsel


                         LETTER OF TRANSMITTAL

                                  House of Representatives,
                                 Washington, DC, December 28, 2000.
Hon. J. Dennis Hastert,
Speaker of the House of Representatives,
Washington, DC.
    Dear Mr. Speaker: By direction of the Committee on 
Government Reform, I submit herewith the committee's eleventh 
report to the 106th Congress.
                                                Dan Burton,
                                                          Chairman.
                            C O N T E N T S

                              ----------                              
                                                                   Page
 I. Why the Committee Conducted This Investigation....................1
II. How the Committee Conducted This Investigation....................3
III.Findings..........................................................4

          A. The Events of April 19, 1993........................     4
          B. Failure To Disclose the Use of Pyrotechnic Tear Gas 
            Rounds...............................................     5
          C. The Justice Department Internal Review..............     6
          D. The Role of the Military............................     6
IV. Further Analysis of the Events of April 19, 1993..................7
          A. Development of the Operational Plan.................     7
          B. The Use of Pyrotechnic Devices on April 19, 1993....    11
          C. Allegations of Government Gunfire on April 19, 1993.    16
 V. Actions and Omissions of the Department of Justice Since 1993....23
          A. Introduction........................................    23
          B. What the American People Were Told Between 1993 and 
            1999.................................................    26
          C. The Attorney General Takes Office in Mid-Crisis.....    37
          D. April 16, 1993--Attorney General Reno Rejects the 
            FBI's Proposed Operations Plan and Then Reverses her 
            Decision.............................................    39
          E. April 19, 1993--Seasoned FBI Officials Within Sight 
            of Attorney General Reno Failed To Warn Her that the 
            FBI's Actions at Waco Deviated From the Operations 
            Plan That She Approved...............................    43
          F. The Department of Justice's Failure To Conduct a 
            ``Thorough and Vigorous Investigation'' in 1993 as 
            Ordered..............................................    46
          G. Conclusions and Recommendations.....................    59
VI. Department of Defense Support....................................61
          A. Introduction........................................    61
          B. Was the Posse Comitatus Act Violated in Providing 
            DOD Support?.........................................    63
          C. The General Accounting Office Report................    75
          D. Inaccurate Accounting of Military Personnel Support 
            Within Department of Justice Internal Review.........    85
          E. The Department of Defense Did Not Conduct a Review 
            and Assessment of Military Assistance Provided.......    87
          F. Recommendations.....................................    89

                                 VIEWS

Minority views of Hon. Henry A. Waxman, Hon. Tom Lantos, Hon. 
  Major R. Owens, Hon. Edolphus Towns, Hon. Paul E. Kanjorski, 
  Hon. Carolyn B. Maloney, Hon. Eleanor Holmes Norton, Hon. Chaka 
  Fattah, Hon. Elijah E. Cummings, Hon. Dennis J. Kucinich, Hon. 
  Rod R. Blagojevich, Hon. Danny K. Davis, Hon. John F. Tierney, 
  Hon. Jim Turner, and Hon. Harold E. Ford, Jr...................  1471

                                                 Union Calendar No. 599
106th Congress                                                   Report
                        HOUSE OF REPRESENTATIVES
 2d Session                                                    106-1037

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



 
               THE TRAGEDY AT WACO: NEW EVIDENCE EXAMINED
                                _______
                                

 December 28, 2000.--Committed to the Committee of the Whole House on 
            the State of the Union and ordered to be printed

                                _______
                                

   Mr. Burton, from the Committee on Government Reform submitted the 
                               following

                            ELEVENTH REPORT

    On October 19, 2000, the Committee on Government Reform 
approved and adopted a report entitled, ``The Tragedy at Waco: 
New Evidence Examined.'' The chairman was directed to transmit 
a copy to the Speaker of the House.
    The Committee on Government Reform has conducted a year-
long investigation of the actions of the Federal Bureau of 
Investigation, the Department of Justice, and the Department of 
Defense with regard to the standoff which occurred at the Mt. 
Carmel Center outside Waco, TX, from February 28, 1993, through 
April 19, 1993, as well as actions taken after the tragic end 
of the standoff.

           I. Why the Committee Conducted This Investigation

    From July 26 through August 1, 1995, this committee's 
Subcommittee on National Security, International Affairs, and 
Criminal Justice and the Committee on the Judiciary's 
Subcommittee on Crime held joint hearings on all aspects of the 
Federal Government's role in the 1993 tragedy at the Mt. Carmel 
Center, a religious community about 10 miles northeast of Waco, 
TX.\1\ On August 2, 1996, the committees released a joint 
report.\2\ Major findings of the report included:
---------------------------------------------------------------------------
    \1\ ``Investigation Into the Activities of Federal Law Enforcement 
Agencies Toward the Branch Davidians (Part 1),'' hearings before the 
Subcommittee on Crime of the House Committee on the Judiciary and the 
Subcommittee on National Security, International Affairs, and Criminal 
Justice of the House Committee on Government Reform and Oversight, 
104th Cong., 163 (1995).
    \2\ H. Rept. No. 104-749.

 LThe BATF's investigation of the Branch Davidians was 
---------------------------------------------------------------------------
incompetent.

 LThe affidavit filed in support of the ATF's arrest 
and search warrants included knowingly false statements.

 LThe BATF fraudulently claimed that the Branch 
Davidians were producing methamphetamine, in order to obtain 
non-reimbursable and prompt military support.

 LThe BATF's military-style raid was deeply flawed, in 
concept, in planning, and in execution.

 LThe decision to end the standoff on April 19, 1993, 
was ``premature, wrong, and highly irresponsible.'' \3\ The 
possibility of a negotiated end should have been further 
pursued.
---------------------------------------------------------------------------
    \3\ Id. at 4.

 LPresident Clinton should have accepted Attorney 
---------------------------------------------------------------------------
General Reno's resignation.

 LThe committees found no evidence that the FBI 
discharged firearms or set the fires, either intentionally or 
inadvertently, on April 19, 1993.

 LThe actions of the military, including the National 
Guard, did not violate the Posse Comitatus Act.

    It was the committees' understanding that on April 19, 
1993, the FBI's Hostage Rescue Team used only two means to 
insert CS gas into the Branch Davidians' residence: spraying 
devices attached to the booms of M-728 Combat Engineering 
Vehicles \4\ and plastic, non-pyrotechnic ferret rounds fired 
from 40mm M-79 grenade launchers.\5\ This understanding was 
consistent with the public statements of Attorney General Janet 
Reno in 1993 and with the position of the Department of Justice 
until 1999.
---------------------------------------------------------------------------
    \4\ Id. at 68.
    \5\ Id. at 69.
---------------------------------------------------------------------------
    Attorney General Reno, along with other Department of 
Justice and FBI officials, had been emphatic in their public 
statements about the means by which the HRT inserted gas into 
the Branch Davidian residence. Before the House Committee on 
the Judiciary, on April 28, 1993, Reno stated in a prepared 
statement that, ``I wanted, and received assurances that the 
gas and its means of delivery were not pyrotechnic'' \6\ At the 
same hearing, FBI Director William Sessions' prepared testimony 
stated that ``[o]ne critical factor [in formulating the plan] 
was that CS gas could be used without pyrotechnics. It will not 
start or contribute to a fire.'' \7\
---------------------------------------------------------------------------
    \6\ ``Events Surrounding the Branch Davidian Cult Standoff in Waco, 
Texas,'' hearing before the Committee on the Judiciary, 103d Cong., 16 
(Apr. 28, 1993) (statement of Attorney General Janet Reno).
    \7\ ``Events Surrounding the Branch Davidian Cult Standoff in Waco, 
Texas,'' hearing before the Committee on the Judiciary, 103d Cong., 85 
(Apr. 28, 1993) (statement of William Sessions, former FBI Director).
---------------------------------------------------------------------------
    Sometime in 1998, an independent filmmaker, Michael 
McNulty,\8\ obtained permission to review the physical evidence 
collected at the scene of the tragedy, which was then in the 
custody of the Texas Rangers Division of the Texas Department 
of Public Safety. McNulty found pictures taken by the Texas 
Rangers during the week after the April 19, 1993, fire which 
portrayed at least one expended M-651 projectile, a military CS 
gas projectile that uses pyrotechnic means to expel gas. On 
June 14, 1999, Senior Captain Bruce Casteel, Chief of the Texas 
Rangers, directed Ranger Sergeant Joey Gordon to review the 
evidence, particularly any evidence that pyrotechnic rounds may 
have been used.\9\ The chairman of the Texas Public Safety 
Commission, James B. Francis, first raised questions in public 
about the use of pyrotechnic rounds to the Dallas Morning News 
in an article published July 28, 1999.\10\ A retired senior FBI 
agent, Danny Coulson (who also founded the FBI Hostage Rescue 
Team) confirmed to the Dallas Morning News on August 24, 1999, 
that pyrotechnic rounds had been used.\11\ Committee staff also 
traveled to Texas, interviewed Texas Rangers, and examined the 
physical evidence in attempt to ascertain whether the 
pyrotechnic rounds had been used.
---------------------------------------------------------------------------
    \8\ McNulty was a producer of ``Waco: The Rules of Engagement'' 
(Fifth Estate Productions, 1997) and ``Waco: A New Revelation'' (MGA 
Films, 1999).
    \9\ ``Texas Rangers Division of the Texas Department of Public 
Safety, Investigative Report Branch Davidian Evidence'' (September 
1999) (exhibit 1).
    \10\ Lee Hancock, ``DPS Head Raises Questions About Davidian 
Fire,'' the Dallas Morning News, July 28, 1999 (exhibit 2).
    \11\ Lee Hancock, ``2 Pyrotechnic Devices Fired at Davidians, Ex-
official Says,'' the Dallas Morning News, Aug. 24, 1999 at A1 (exhibit 
3).
---------------------------------------------------------------------------
    In addition to the newly-revealed possibility that FBI use 
of pyrotechnic rounds may have contributed to the fire, 
allegations surfaced regarding the active participation of the 
military in the April 19, 1993, assault and regarding the 
possibility that videotapes filmed on April 19, 1993, using 
aerial Forward-Looking Infrared (FLIR) technology, depicted 
government agents firing weapons. Also, a report issued by the 
General Accounting Office on August 26, 1999, called into 
question certain findings of the 1996 committee report with 
respect to the military's support of the Bureau of Alcohol, 
Tobacco and Firearms prior to their February 28, 1993, 
raid.\12\
---------------------------------------------------------------------------
    \12\ ``U.S. General Accounting Office, Department of Defense: 
Military Assistance Provided at the Branch Davidian Incident'' (GAO/
NSIAD/OSI-99-133, Aug. 26, 1999) (exhibit 4).
---------------------------------------------------------------------------
    The 1996 joint report concluded that the BATF misled the 
Defense Department as to the existence of a drug nexus in order 
to obtain non-reimbursable support in a prompt manner from the 
Defense Department. While there had been allegations that a 
drug manufacturing operation was located at the Davidian 
residence at some point in the mid to late 1980's before Koresh 
took control of the group, there was no evidence that the drug 
operation continued into late 1992.
    The committee's investigation was limited to resolving 
these new allegations, thereby building on, but not replacing, 
the report issued in 1996. We have found no reason to revise 
the major findings of the 1996 report.

           II. How the Committee Conducted This Investigation

    In September 1999, the committee issued document subpoenas 
to the Department of Justice, the Department of Defense, and 
the White House. Over the course of the committee's 
investigation, committee investigators reviewed and analyzed 
over 1 million pages of documents. Committee attorneys 
interviewed 20 representative members of the FBI Hostage Rescue 
Team who were involved in the standoff, along with military 
personnel, numerous senior Justice Department and FBI 
officials, and surviving Branch Davidians.
    In September 1999, the committee retained a FLIR analyst, 
Carlos Ghigliotty, to analyze flashes that appeared on the FLIR 
tapes taken on April 19, 1993, that were alleged to be gunfire. 
On October 6, 1999, the Washington Post published an article in 
which Ghigliotty was quoted stating that he ``conclude[d] that 
the FBI fired shots on that day.'' \13\ According to the 
article, Ghigliotty's conclusion was based on his review of 
both visual-range and FLIR videotapes.\14\ On October 12, 1999, 
Ghigliotty examined the original FLIR tapes at an FBI lab and 
supervised the creation of first generation copies. Beginning 
in December 1999, Ghigliotty prepared a list of all of the 
questionable thermal flashes he detected on the four FLIR tapes 
taken on April 19, 1993.\15\ Ghigliotty died in the spring of 
2000 without having submitted to the committee a scientific 
report on the flashes. The Maryland Medical Examiner reported 
that his death was caused by cardiac arrhythmia and 
atherosclerotic cardiovascular disease.\16\
---------------------------------------------------------------------------
    \13\ David A. Vise and Richard Leiby, ``Expert Concludes FBI Fired 
Shots During Waco Siege,'' the Washington Post, Oct. 6, 1999 at A6 
(exhibit 5).
    \14\ Id.
    \15\ The final version of the list Carlos Ghigliotty provided the 
committee is attached as exhibit 6.
    \16\ ``Office of the Chief Medical Examiner, State of Maryland, 
Post Mortem Examiantion Report No. 00-2354-027 on Carlos Ghigliotty'' 
(Apr. 28, 2000) (exhibit 7 on file with the committee).
---------------------------------------------------------------------------
    In December 1999, the committee retained a second FLIR 
analyst, Dr. Don Frankel of Photon Research Associates, Inc. On 
September 11, 2000, Frankel submitted a report to the committee 
concluding that the flashes analyzed by him on behalf of the 
committee do not depict gunfire.\17\ His report is discussed in 
detail in Section IV of this report.
---------------------------------------------------------------------------
    \17\ Donald S. Frankel, Photon Research Associates, ``Assessment of 
Waco, Texas FLIR Videotape'' (Sept. 11, 2000) (exhibit 8).
---------------------------------------------------------------------------

                             III. Findings

    The committee has reached the following conclusions as a 
result of its investigation:

                    A. THE EVENTS OF APRIL 19, 1993

 LAerial Forward-Looking Infrared videos filmed on 
April 19, 1993, include flashes around the Mt. Carmel Center 
that at first blush resemble muzzle blasts. Careful scientific 
analysis of the flashes does not, however, appear to support 
allegations that these flashes are the result of gunfire. 
Analysts who submitted reports to both this committee and the 
Office of Special Counsel reached similar conclusions: that the 
flashes they were asked to examine appeared to be solar or 
other thermal reflections emanating from debris. However, the 
analyst retained by this committee reported that an overhead 
FLIR camera of the type used by the FBI on April 19, 1993, 
would not record every muzzle flash occurring within its field 
of view. Therefore, while the flashes that have generated such 
controversy do not appear to represent gunshots, it is within 
the range of possibility that gunshots may have occurred that 
were not captured by the FLIR camera. This conclusion is 
bolstered by the March 21, 2000, FLIR reenactment performed at 
Ft. Hood, TX.

 LEvery FBI agent interviewed by the committee has 
denied discharging any weapons (other than for the delivery of 
CS gas) on April 19, 1993, or knowing of any gunfire from 
government sources. This committee has uncovered no evidence to 
contradict these claims.

 LThere is no evidence that HRT snipers stationed at a 
house (designated the Sierra One sniper position) across the 
Double EE Ranch Road from the compound fired shots on April 19, 
1993. Shell casings recovered at the house by the Texas Rangers 
have been tested by the Office of Special Counsel and matched 
weapons used by the Bureau of Alcohol, Tobacco and Firearms on 
February 28, 1993.

 LThe operations plan approved by Attorney General 
Janet Reno called for a gradual, section-by-section, insertion 
of CS gas over the course of 2 days, followed by 
``deconstruction'' of the building if the Branch Davidians had 
not surrendered after 48 hours. Nonetheless, on the morning of 
April 19, 1993, the HRT punched large holes in the walls of the 
building, drove M-728 Combat Engineering Vehicles deep into the 
building, and destroyed one-half of the gymnasium on the Black 
side of the building.

 LAt approximately 8 a.m. on April 19, 1993, HRT member 
David Corderman, after obtaining authorization from HRT 
commander Richard Rogers, fired either two or three pyrotechnic 
M-651 rounds in an attempt to insert gas in an underground 
tornado shelter on the Green side of the Center.\18\ Corderman 
had fired non-pyrotechnic ferret rounds at the shelter's 
tarpaper and plywood roof, but they had failed to penetrate it. 
Although HRT leadership was aware of the possibility that HRT 
personnel might need to use M-651 rounds, they failed to 
include the contingent use of M-651 rounds in the operations 
plan they sent for approval to the Attorney General. They also 
failed on April 19, 1993, to obtain authorization for this 
deviation from higher up the chain of command.
---------------------------------------------------------------------------
    \18\ The FBI designated the front of the Center, which faced 
southwest toward the Double EE Ranch Road, the ``White side,'' the side 
of the Center facing roughly southeast toward Elk Road the ``Red 
side,'' the side of the Center facing roughly northwest toward the 
Perry Ranch and beyond towards Old Mexia Road the ``Green side,'' and 
the rear of the Center the ``Black side.'' These designations are used 
throughout this report.

 LA Texas Department of Public Safety photographer took 
pictures of an expended M-651 projectile during the crime scene 
investigation after the fire. The projectile was never logged 
into evidence by the Texas Rangers or FBI, and numerous 
searches have failed to locate this expended projectile.

     b. failure to disclose the use of pyrotechnic tear gas rounds

 LDepartment of Justice attorneys William ``Ray'' Jahn, 
LeRoy Jahn, and William Johnston, who were responsible for 
prosecuting the surviving Davidians, learned in 1993 that HRT 
personnel had sought and received approval to fire the M-651s. 
They did not disclose these facts to the criminal defendants, 
to the Congress in 1995, or by her account, to Justice 
Department civil trial defense attorney Marie Hagen. The Jahns 
and Johnston arguably had a legal and ethical duty to disclose 
these facts. Had they done so, the considerable time and 
resources that have been devoted to uncovering these facts now 
would not have been expended.

 LFormer HRT Commander Richard Rogers approved the use 
of pyrotechnic M-651 rounds on April 19, 1993. He sat silently 
behind Attorney General Reno and former FBI Director William 
Sessions during the 1993 House Judiciary Committee hearings as 
they stated under oath that no pyrotechnic device had been used 
by FBI personnel on April 19, 1993. Rogers claims that he was 
distracted at the time.

               c. the justice department internal review

 LAttorney General Reno failed to ensure that the 
``vigorous and thorough investigation'' ordered by the 
President and promised by Reno occurred. The Scruggs 
investigation was negligent and was improperly rushed to its 
conclusion solely for political purposes. A thorough 
investigation in 1993 would have saved time and resources later 
incurred to discover the truth.

 LHad Scruggs and his colleagues conducted a ``vigorous 
and thorough investigation,'' they would have discovered the 
truth regarding: (a) the use of the pyrotechnic M-651 rounds; 
(b) the role of active duty Army special operations personnel 
during the 51-day standoff; and (c) FBI Special Agent Riley's 
statement regarding gunfire from an HRT sniper position.

 LPressure from senior Justice Department officials, 
including then-Deputy Attorney General Phil Heymann, caused the 
Scruggs team to rush to conclude their investigation and to 
publish their report, thus failing to uncover and disclose 
facts which could have fully accounted for the allegations made 
in the civil trial and disclosed in the fall of 1999.

 LAll of the actions taken by the Justice Department 
were consistent with an organization that was not eager to 
learn the full truth about what happened on April 19, 1993. 
This is made clear by the fact that the original FLIR tapes 
made on that day sat unanalyzed in an FBI office for 6 years.

 LThe committee recommends that in the case of future 
tragedies of the scale and importance of Waco, an outside and 
independent investigation should be commissioned to preclude 
the kind of negligence that occurred in 1993 and to obviate the 
need for subsequent congressional and other investigations.

                      d. the role of the military

 LThe committee uncovered no evidence that any member 
of the armed services present at Waco, including the National 
Guard, violated the Posse Comitatus Act. Representatives from 
the U.S. Special Operations Command were present, but the 
available evidence indicates that they acted only as observers 
and technicians.

 LRelations between civilian officials and the military 
with regard to Waco were characterized by disregard of the 
Posse Comitatus Act on the part of the civilians, and by 
diligence on the part of the military. Two senior Army officers 
were asked to evaluate the FBI's proposed operations plan for 
April 19, and consistently refused to do so, as such support 
would have made them direct participants in planning the arrest 
of the Branch Davidians, and would have therefore violated the 
Posse Comitatus Act.

 LTwo senior Army officers were asked to review the 
FBI's proposed operations plan and attend a briefing with 
Attorney General Reno on April 14, 1993. While Attorney General 
Reno has stated that these officers told her the FBI's plan was 
``excellent'' in one case, and ``sound'' in another, both 
officers have clearly stated they were careful not to evaluate 
the plan during the meeting. President Clinton and Attorney 
General Reno have deceived the American people for over 7 years 
by misrepresenting that the military endorsed, sanctioned or 
otherwise approvingly evaluated the plan.

          IV. Further Analysis of the Events of April 19, 1993

                 a. development of the operational plan

1. Emergency Plans During the 51-Day Standoff
    On February 28, 1993, the Bureau of Alcohol, Tobacco and 
Firearms (BATF) attempted to serve a search warrant on the 
Branch Davidian religious community near Waco, TX, and an 
arrest warrant on the community's leader, David Koresh. That 
raid ended in tragedy, as four BATF Special Agents and six 
Branch Davidians were killed in an ensuing gunfight. The flaws 
in the conception, planning and execution of the BATF raid are 
well documented in the 1996 joint report of the Committee on 
the Judiciary's Subcommittee on Crime and this committee's 
Subcommittee on National Security, International Affairs, and 
Criminal Justice.\19\
---------------------------------------------------------------------------
    \19\ H. Rept. No. 104-749.
---------------------------------------------------------------------------
    In the aftermath of that failed raid, the Treasury 
Department requested that the Federal Bureau of Investigation 
(FBI) assume command of the situation. The FBI deployed its 
Hostage Rescue Team (HRT), a full-time counterterrorist unit 
based at the FBI Academy at Quantico, VA, along with part-time 
Special Weapons and Tactics (SWAT) teams from various FBI Field 
Offices and hundreds of other Special Agents and support 
personnel. HRT assumed tactical command of the site on March 1, 
1993, and began deploying its members to various positions 
around the compound.
    Upon arrival at an incident site, HRT commanders, as 
standard procedure, formulate an emergency plan for approval by 
the Special Agent in Charge (SAC) in overall command of an 
incident.\20\ Soon after arriving in Waco, HRT commanders 
developed emergency plans to deal with various contingencies, 
including the possibility that the Davidians would attempt 
suicide. The first such plans were oral, and were later 
committed to writing.
---------------------------------------------------------------------------
    \20\ Interview with Richard Rogers, former Assistant Special Agent 
in Charge and Commander, HRT, FBI, in Phoenix, AZ (Aug. 9, 2000). In 
1993, the SAC of the FBI Field Office within which a critical incident 
occurred was in overall command of the incident. In 1995, the FBI 
created the Critical Incident Response Group, which assumed 
responsibility for management of critical incidents.
---------------------------------------------------------------------------
    Under the early versions of HRT's emergency plans, in the 
event of a mass suicide attempt by the Davidians or under 
similar circumstances, HRT personnel would have attempted to 
disable those inside by firing non-pyrotechnic ``ferret'' 
rounds from M-79 40 millimeter grenade launchers \21\ through 
the doors and windows. Ferret rounds are plastic projectiles 
with stabilizing fins containing 25 grams of CS, a type of tear 
agent, suspended in a liquid solvent.\22\ Upon impact, the 
front of the round ruptures, releasing its contents. Ferret 
rounds are often used to deploy CS gas indoors or in areas 
where flammable materials are present, because there is little 
risk of fire from the round. Another type of CS gas round in 
HRT's inventory at Waco was the M-651, or ``military'' round. 
Inside the M-651's metal projectile, a fuse ignites a chemical 
mixture a short time after the round is fired, propelling CS 
gas from its base.\23\ The pyrotechnic M-651 round is the 
preferred round for use when flammability is not a concern, as 
it expels a large cloud of visible CS gas and can be used to 
deny large areas to threats.
---------------------------------------------------------------------------
    \21\ The M-79 is a Vietnam War-era shotgun-like weapon that fires 
40-milimeter, spin-stabilized rounds such as tear gas, buckshot, high 
explosive, illumination and smoke.
    \22\ A discussion of CS gas generally, and ferret rounds in 
particular, can be found at H. Rept. No. 104-749 at 69-75.
    \23\ ``Texas Rangers Division of the Texas Department of Public 
Safety, Investigative Report Branch Davidian Evidence'' (September 
1999) (exhibit 1).
---------------------------------------------------------------------------
    The emergency plans evolved over the course of the 51-day 
standoff. The written plan was lengthened, and incorporated the 
use of M728 Combat Engineering Vehicles (CEVs) on loan from the 
Texas National Guard. The CEVs were equipped with mounted CS 
gas spraying devices, which were to be used to insert CS gas 
directly in the building through windows and through holes 
punched in the walls. The plan continued to include the use of 
M-79 grenade launchers to launch ferret rounds through the 
doors and windows.
2. The Proposed Operations Plan
    As it became clear that the standoff with the Davidians 
could be a protracted one, a formal, written operations plan 
was drafted under the direction of FBI SAC Jeff Jamar and HRT 
Commander Richard Rogers.\24\ As was the case with the 
emergency plan, the operations plan was sent up the FBI's chain 
of command, except this time it was presented to Attorney 
General Janet Reno.
---------------------------------------------------------------------------
    \24\ Interview with Richard Rogers, former Assistant Special Agent 
in Charge and Commander, HRT, FBI in Phoenix, AZ (Aug. 9, 2000).
---------------------------------------------------------------------------
    Several earlier versions had been drafted and proposed, and 
these earlier versions provided for immediate insertion of tear 
gas by the combined use of CEVs with boom-mounted gas cylinders 
along with ferret rounds shot into every opening into the 
compound. These earlier versions were not approved.
    The FBI's proposed operations plan, as submitted and 
approved by Attorney General Janet Reno, described what was to 
occur on April 19, 1993, in the following manner:

        On order, two CEVs will enter the compound inside the 
        concertina wire prior to sunrise. One CEV will 
        penetrate the structure on the 1st floor, at the White/
        Green corner utilizing the boom and project tear gas 
        via the Mark 5 delivery system secured to the boom. 
        After delivery, the CEV will retreat from the structure 
        and stand-by. The second CEV will stand by and upon 
        retreat by the 1st CEV, will insert additional tear gas 
        into the 2nd floor of the White/Green corner. Prior to 
        the entry of the CEVs, the BVs [Bradley Fighting 
        Vehicle, a type of armored personnel carrier] will be 
        engaged in routine spotlight maintenance. Upon delivery 
        of the tear gas by the CEV, a BV on the Green side will 
        deliver Ferret liquid tear gas rounds into the top of 
        the black covering on the unfinished and unoccupied 
        construction in order to deny access in this area. If 
        firing commences from the Compound, the BVs will be 
        prepared to deliver Ferret liquid tear gas rounds into 
        all windows/openings in the compound structure. If all 
        subjects fail to exit the compound structure after 48 
        hours of tear gas, then, on order, a modified CEV will 
        proceed to open up/disassemble the structure at the 
        location where the structure was least gassed until all 
        subjects are located.\25\
---------------------------------------------------------------------------
    \25\ ``WACMUR: Major Case #80--Assault on a Federal Officer,'' 
briefing for the Attorney General at Bates Stamp No. WWC142-0441, 26 
(Apr. 12, 1993) (exhibit 9).

The operations plan clearly outlines the tactics to be 
employed. That is, the two CEVs would ``penetrate the structure 
. . . utilizing the boom and project tear gas via the Mark 5 
delivery system secured to the boom.'' The CEVs would insert 
tear gas incrementally, and only one CEV would insert gas at a 
time. Right after the CEVs first began inserting tear gas, a 
Bradley would approach the ``unfinished and unoccupied'' 
tornado shelter and fire ferret rounds through the top. If the 
Davidians fired at the HRT, then the HRT would shoot ferret 
rounds into all openings in the compound.
    The plan also details the type of tear gas to be used; the 
CEVs would discharge tear gas from the cylinders mounted on 
their booms and the HRT would be firing liquid ferret rounds. 
There is no mention in the operations plan of the possibility 
of using any pyrotechnic types of tear gas rounds.
3. Deviation in the Execution of the Plan
    This plan, as approved by the Attorney General, bears 
little resemblance to what actually occurred on April 19, 1993. 
The plan antiseptically describes ``[o]ne CEV will penetrate 
the structure . . . utilizing the boom and project tear gas.'' 
On April 19, 1993, HRT members operating the CEVs repeatedly 
entered the structure at different points, causing damage to 
the building far exceeding what one would expect from reviewing 
the plan. One photograph shows holes in the compound walls that 
exceeded the width of a CEV.\26\ The photograph also shows that 
the gymnasium in the rear of the compound has collapsed and 
entire sections of the first floor walls on the compound are 
missing.
---------------------------------------------------------------------------
    \26\ Exhibit 10.
---------------------------------------------------------------------------
    At mid-morning on April 19, 1993, the CEV that was tasked 
to insert gas into the Black side of the compound, designated 
CEV-2, became disabled as it attempted to return to the T-
intersection to reload its CS cylinders. The driver and the 
vehicle commander exited CEV-2 and entered a reserve CEV that 
did not have the capability to inject CS gas. This CEV returned 
to the Black side, and was ordered to open up a path to the 
area around the base of the tower for CEV-1.\27\ This was an 
area that the HRT commander believed had not had any tear gas 
inserted.\28\ The path to the tower between the swimming pool 
and the gymnasium was not much wider than a CEV, so CEV-2's 
commander opted to push through the walls of the gymnasium 
rather than risk collapsing the side of the pool with the 
weight of his vehicle. CEV-2 repeatedly entered the gymnasium 
until the structure collapsed a short time before noon. During 
their interviews with committee staff, the tank commander and 
the on-site commander both claimed that this collapse was an 
accidental result of their attempts to insert tear gas in the 
tower area, and not a deliberate attempt to demolish the 
building.\29\
---------------------------------------------------------------------------
    \27\ Interview with Jim Walden, Special Agent, FBI, in Washington, 
DC (Dec. 10, 1999).
    \28\ Interview with Richard Rogers, former Assistant Special Agent 
in Charge and Commander, HRT, FBI, in Phoenix, AZ (Aug. 9, 2000).
    \29\ Interview with Jim Walden, Special Agent, FBI, in Washington, 
DC (Dec. 10, 1999); interview with Jeff Jamar, former Special Agent in 
Charge, FBI, in Austin, TX (Feb. 16, 2000).
---------------------------------------------------------------------------
    The operations plan did include a provision for the 
demolition of the compound, but only after 48 hours of 
deliberate gas insertion. Nonetheless, the gymnasium was 
demolished less than 6 hours after the HRT implemented their 
operations plan.
4. Foreknowledge of Need to Deviate from the Plan
    Of concern to the committee is why the possibility of 
early, serious structural damage to the compound was not put 
forth in the operational plan. The shoddy nature of the 
construction of the compound was well known to the FBI, and 
concerns had previously been noted concerning its fragility, 
especially the gymnasium's:

        HRT has talked to military engineers and have developed 
        information regarding the construction of the compound. 
        It is not of good quality. Information has been 
        obtained from individuals who have worked in the 
        compound regarding construction. They believe that if 
        they use the rail on the CEV to penetrate into the 
        white side, the result will be a peeling away of the 
        siding exposing the rooms on that side. They anticipate 
        the roof will remain intact [sic] The construction of 
        the black side (gym) is not of good quality. It is 
        believed that the same type of activity directed toward 
        the gym will result in the collapse of the roof. HRT 
        advised that they have on occasion ``bumped'' the 
        compound using the CEVs and it is not very stable.\30\
---------------------------------------------------------------------------
    \30\ Memorandum from Danny Coulson, former Deputy Assistant 
Director, FBI, undated, 2, at Bates Stamp No. WWC130-0247 (exhibit 11).

Despite the foreknowledge of the poor quality of the 
construction, and despite the fact that the operational plan 
did not call for a systematic ``disassembly'' of the compound 
until after 48 hours had elapsed, the gymnasium was demolished 
within 6 hours of the implementation of the plan.
    Jeff Jamar, the on-scene commander at Waco, claimed in his 
deposition taken in preparation for the civil trial that he had 
the discretion to allow deviations from the operational plan:

        Q. My question is, is it your testimony that there was 
        a specific reference contained in the plan of 
        operations, the written plan of operations that was 
        approved for April 19, 1993, that permitted you the 
        authority to order penetration of the building with 
        more than simply the tear gas insertion booms?

        A. . . . Yes, that was part of my discretion as--in 
        implementing plan was to do that, yes.\31\
---------------------------------------------------------------------------
    \31\ Transcript of Deposition of Jeffrey Jamar, former Special 
Agent in Charge, FBI, at 6-10:48, Andrade v. Chojnacki (W.D. Tex. Mar. 
15, 2000) (No. W-96-CA-139) (exhibit 12).

The court, in the civil litigation arising from the issues 
centering on the FBI's deviation from its operational plan, 
---------------------------------------------------------------------------
agreed:

        FBI agents operating the military vehicles inserted 
        tear gas in accordance with the approved Plan of 
        Operations on April 19, 1993. Because the plan could 
        not provide for every contingency, it necessarily 
        afforded discretion to the FBI agents on the scene to 
        adapt to the evolving conditions, including, among 
        other things, the failure of the Davidians to leave the 
        building, the relative ineffectiveness of the tear gas 
        due to the wind and the Davidians' gas masks, and the 
        possibility that certain individuals were prevented 
        from leaving because the exits were barricaded. Any 
        deviation from the written plan was within the 
        authority delegated to the agents on the scene.\32\
---------------------------------------------------------------------------
    \32\ Findings of facts and conclusions of law at 9, Andrade v. 
Chojnacki (W.D. Tex. Sept. 20, 2000) (No. W-86-CA-138) (exhibit 13).

The on-scene commander clearly felt he had the implied, if not 
explicit, authority to deviate from the operational plan, and 
the court ultimately came to the same conclusion.
    Of interest to the committee, however, is that earlier, 
more aggressive proposed operational plans which allowed for 
immediate and total tear gas bombardment from M-79 grenade 
launchers along with CEVs were not approved by FBI headquarters 
personnel from Washington, DC.\33\ The plan as approved for 
April 19, 1993, allowed only incremental increases in tear-
gassing. Only if the Davidians fired at the HRT was the gassing 
to be accelerated, and the M-79s employed.
---------------------------------------------------------------------------
    \33\ Transcript of Deposition of Jeffrey Jamar, former Special 
Agent in Charge, FBI, at 2-10:31, Andrade v. Chojnacki (W.D. Tex. Mar. 
15, 2000) (No. W-86-CA-138) (exhibit 12).
---------------------------------------------------------------------------
    This appears to have been a self-fulfilling prophecy, as 
Jamar told committee staff he believed the Davidians would 
start shooting as soon as the HRT approached the compound with 
the CEVs. It is an issue of serious concern that the plan, as 
executed, was more aggressive and destructive than the plan 
that was approved, and resembled closely earlier plans which 
had not been approved.

          B. The Use of Pyrotechnic Devices on April 19, 1993

1. No Contingency for Use of Pyrotechnic Rounds
    The FBI's operations plan did not include as a contingency 
the use of pyrotechnic M-651 rounds against the Branch 
Davidians. The plan only referred to the use of ferret tear gas 
rounds and the use of CEVs modified to insert tear gas from 
boom-mounted cylinders.\34\ No mention was made concerning the 
possible use of M-651s in the proposed operation plan given to 
the Attorney General.\35\ Further, the plan mentioned the need 
to insert tear gas into the outdoor tornado shelter, but only 
with ferret rounds:
---------------------------------------------------------------------------
    \34\ ``WACMUR: Major Case #80--Assault on a Federal Officer,'' 
briefing for the Attorney General at Bates Stamp No. WWC142-0441 (Apr. 
12, 1993) (exhibit 9).
    \35\ Id.

        Four Bradley Vehicles (BV) will be positioned around 
        the compound ready to supplement the CEV in gas 
        delivery, if needed. One of the four BV's will insert 
        Ferret liquid tear gas rounds into the black covering 
        of the new unoccupied construction on the green side 
        immediately after the introduction of tear gas into the 
        previously referenced white/green section of the 
        compound structure.\36\
---------------------------------------------------------------------------
    \36\ Id. at Bates Stamp No. WWC142-0440.

Moreover, HRT personnel were aware that the use of ferret 
rounds against the unfinished tornado shelter would likely 
---------------------------------------------------------------------------
prove ineffective:

        THE UNFINISHED AREA OF THE COMPOUND ON THE GREEN SIDE 
        WILL BE THE TARGET OF CS INTRODUCTION USING THE M-79 
        GRENADE LAUNCHERS. IT DOES NOT APPEAR TO BE POSSIBLE TO 
        USE HAND HELD CANISTERS TO ENGAGE THIS PART OF THE 
        COMPOUND. THERE IS SOME QUESTION AS TO WHETHER THE 
        FERRET WILL PENETRATE THE TARPAPER-COVERED PORTION OF 
        THE UNFINISHED AREA. (DUE TO THE ANGLE), SOME OR ALL 
        FERRETS MAY NOT PENETRATE. THE INTRODUCTION OF CS INTO 
        THE WHITE GREEN COVER SHOULD GIVE SOME COVERAGE OF THE 
        TRAP DOOR ENTRANCE TO THE TUNNEL, THUS DENYING SUBJECTS 
        ACCESS TO THE TUNNEL AND THE UNDERGROUND BUS. THERE IS 
        SOME INDICATION THAT THIS PORTION OF THE COMPOUND IS 
        FLOODED.\37\
---------------------------------------------------------------------------
    \37\ See memorandum from Danny Coulson, former Deputy Assistant 
Director, FBI, undated, at Bates Stamp No. WWC130-0247 (exhibit 11).

It is obvious that there was prior awareness on the part of the 
HRT that ferret rounds were likely to be ineffective against 
the roof of this structure. Why the operations plan failed to 
describe the possible need to use a more dangerous round 
remains a troubling question.
2. Use of Pyrotechnic Rounds
    On April 19, 1993, HRT member David Corderman fired ferret 
rounds from a Bradley Fighting Vehicle using an M-79 grenade 
launcher at the shelter from the White/Green corner. Since he 
was shooting at a downward and shallow angle, the ferret 
projectiles merely bounced off the roof.\38\
---------------------------------------------------------------------------
    \38\ Interview with David Corderman, Special Agent, FBI, 
Washington, DC (Nov. 4, 1999).
---------------------------------------------------------------------------
    At approximately 8 a.m., Corderman asked for approval to 
use M-651 tear gas rounds on the shelter's roof. The request 
went up the HRT's chain of command to HRT commander Richard 
Rogers, who granted permission.\39\ Portions of these 
conversations are clearly audible on the overhead FLIR tapes:
---------------------------------------------------------------------------
    \39\ Interview with Richard Rogers, former Assistant Special Agent 
in Charge and Commander, HRT, FBI in Phoenix, AZ (Aug. 9, 2000).

        [``HR 1'' is Richard Rogers, Commander of the HRT. ``HR 
        2'' is Stephen McGavin, Supervisory Special Agent, 
---------------------------------------------------------------------------
        HRT.]

        7:48:55 a.m. (4/19/93)

        HR 2. HR 2 to HR 1.

        HR 1. Go ahead, it's HR 1.

        HR 2. [unintelligible] supplying Charlie 1 
        [unintelligible] with relative safety utilizing the 
        vehicle for cover and attempt to get [unintelligible] 
        penetrate the construction project.

        HR 1. You're talking about the block over top the 
        construction?

        HR 2. Say again, HR 1.

        HR 1. Are you saying he can penetrate the block 
        covering over the construction on the green side?

        HR 2. Ten-four. He thinks he can get into position with 
        relative safety utilizing the track for cover and 
        attempt to penetrate it with military rounds.

        HR 1. Roger. Of course, if there's water underneath 
        that's just going to extinguish them but you can try 
        it.

        HR 2. Ten-four. Copy. He can try it?

        HR 1. Yeah, that's affirmative.

        8:08 a.m. (4/19/93)

        Charlie 1. Charlie TOC to HR 1.

        [Pause]

        CHARLIE 1. YEAH, THE MILITARY GAS DID NOT PENETRATE 
        THAT, UH, BUNKER WHERE THE BUS WAS. COPY.

        [Pause]

        CHARLIE 1. IT BOUNCED OFF.\40\
---------------------------------------------------------------------------
    \40\ Transcript of FBI FLIR Tape (Apr. 19, 1993) (exhibit 14).

    Corderman told committee staff that he fired two or three 
M-651 rounds. These rounds also bounced off the roof. A 
photograph from an FBI surveillance plane shows a small cloud 
of white smoke near the outdoor structure.\41\ Corderman 
identified this photograph to committee staff as depicting the 
effects of the military round that he fired.\42\ Corderman 
stated that he used the M-651 round because he thought this 
heavier metal projectile would be more likely to penetrate the 
shelter roof than the lighter, plastic ferret projectile.
---------------------------------------------------------------------------
    \41\ Exhibit 15.
    \42\ Interview with David Corderman, Special Agent, FBI, in 
Washington, DC (Nov. 4, 1999); interview with David Corderman, Special 
Agent, FBI, in Washington, DC (Apr. 13, 2000).
---------------------------------------------------------------------------
    The HRT personnel at Waco did not consider the fact that 
Corderman fired military tear gas rounds extraordinary. All HRT 
personnel were interviewed by the FBI soon after the fire and 
none of them mentioned the use of M-651 rounds because none of 
them had been asked if such rounds had been used. In November 
1993, when HRT members were again interviewed, this time by 
Department of Justice prosecutors preparing for trial, Rogers 
and other HRT members readily admitted that M-651s had been 
used.\43\ By their accounts, none thought it significant and 
they did not recall any response from the Justice Department 
prosecutors at that time.\44\
---------------------------------------------------------------------------
    \43\ Interview with Richard Rogers, former commander, HRT, FBI, in 
Phoenix, AZ (Aug. 9, 2000).
    \44\ Id.
---------------------------------------------------------------------------
    Curiously enough, in addition to the fact that the 
possession and eventual use of M-651 rounds were never 
mentioned in the operational plan, neither was the fact that 
the Bradleys also contained high explosive (HE) rounds for the 
M-79 grenade launchers. Although no evidence whatsoever has 
been found that these rounds were fired on April 19, 1993, 
their existence for use as a contingency should have been 
explicit in the operational plan.
3. Disappearance of the Pyrotechnic Rounds
    An issue that has long plagued the Waco civil litigants as 
well as law enforcement officials concerns the whereabouts of 
the expended M-651 projectiles. The rounds were known to have 
been fired, one was photographed, another was seen on the 
ground shortly after the fire, but none were ever logged in as 
evidence by the Texas Rangers or the FBI.
    Shortly after the end of the fire, evidence technicians 
from both the FBI and the Texas Department of Public Safety 
took over the crime scene to collect and inventory all 
evidence. A few days after April 19, 1993, a photographer for 
the Texas Department of Public Safety took photographs of an 
expended M-651 projectile.\45\ Adjacent to the round in the 
photograph is what appears to be the wire shaft of a flag used 
to mark objects to be inventoried into evidence.\46\ However, 
the evidence log maintained by the Texas Rangers shows no entry 
for this projectile.\47\
---------------------------------------------------------------------------
    \45\ Interview with Joey Gordon, Sergeant, Texas Rangers Division, 
Texas Department of Public Safety, in Ft. Hood, TX (Mar. 19, 2000).
    \46\ See ``Texas Rangers Division of the Texas Department of Public 
Safety, Investigative Report Branch Davidian Evidence,'' attachment I 
(September 1999) (exhibit 1).
    \47\ ``Texas Rangers Division of the Texas Department of Public 
Safety Investigative Report #2 Branch Davidian Evidence'' (January 
2000) (exhibit 16).
---------------------------------------------------------------------------
    Wallace Higgins, an FBI Hazardous Devices and Explosives 
Examiner for the FBI's Explosives Unit, told committee staff 
that he observed two M-651 projectiles at the crime scene 
following the fire. One was in water and he couldn't see the 
end of it in order to determine whether or not it was live. 
Borrowing a .45 pistol from a Texas Ranger, he shot at it 
twice, hitting it and denting the projectile. According to 
Higgins, this was a ``render safe'' action that was done in 
order to determine if the round was still live. The round did 
not initiate; indicating it had been fired and activated 
previously. This round was found between the silo and the 
outdoor tornado shelter.\48\
---------------------------------------------------------------------------
    \48\ Telephone interview with Wallace Higgins, former Special 
Agent, FBI (Oct. 2, 2000).
---------------------------------------------------------------------------
    Higgins found a second round in the dirt near the 
underground walkway, which abutted the tornado shelter. Higgins 
determined that the round had been expended and he left it in 
place. Higgins recalled that he told someone on the FBI 
evidence collection team about the rounds. However, he wasn't 
certain whether it was Rick Crum, an FBI firearms expert, or 
James Cadigan, the on-scene leader of the FBI's evidence 
collection team. Higgins further recalled that he didn't 
believe the rounds were still present on the ground by the time 
that the evidence collection was finished. Higgins stated he 
did not know what became of the rounds. He acknowledged that 
the FBI laboratory subsequently erred in labeling certain 40 
millimeter flashbang rounds at the crime scene as M-651s, but 
the rounds he saw near the compound were M-651s and not 
flashbang rounds.\49\
---------------------------------------------------------------------------
    \49\ Id.
---------------------------------------------------------------------------
    FBI Special Agent James Cadigan, who led the on-scene 
evidence collection for the FBI, stated to committee staff that 
he arrived at Waco on April 19, 1993. Cadigan stated that his 
expertise is in small arms identification, up to and including 
.50 caliber weapons, but not larger ordinance such as 40mm 
rounds. When Cadigan arrived at the crime scene, the rubble 
from the compound was still smoldering. Within 24 hours he met 
with members of the ATF, Texas Rangers, and Federal prosecutors 
Ray and LeRoy Jahn. They established a protocol to divide the 
crime scene into grids. The Jahns told him the Texas Rangers 
were in charge of the evidence search. Cadigan became the 
administrative person on the site. He was primarily located at 
a mobile home brought to the compound, where he was responsible 
for locating equipment to be used by the evidence collection 
teams. Cadigan stated that he never observed any M-651s at the 
site. Cadigan recalled that some time after the fire, the Texas 
Rangers shipped a truckload of evidence to the FBI lab in 
Washington, DC. Federal prosecutors Ray and LeRoy Jahn, along 
with John Lancaster and, possibly, John Phinizy, reviewed each 
item at the lab for its probative value. The prosecutors logged 
probative value items, or those that might be used at trial, 
and sent the non-probative items back to the Texas Rangers. 
Cadigan also acknowledged that the FBI laboratory had 
misidentified certain 40mm flashbang rounds as M-651s.\50\
---------------------------------------------------------------------------
    \50\ Interview with James Cadigan, Supervisory Special Agent, FBI, 
in Washington, DC (Oct. 3, 2000).
---------------------------------------------------------------------------
    The Texas Rangers collected and stored the evidence from 
the compound at two primary sites. Items that might be used at 
the criminal trial in 1994 were stored at a large locker at the 
Texas Department of Public Safety in Austin, TX. In 1999, the 
Texas Rangers searched this area and found no military tear gas 
projectile. The other site was a warehouse in Waco, TX. This 
site contained many large, locked Conex containers. These 
containers were filled with hundreds of five gallon sealed 
drums; most of which contained hundreds of thousands of rounds 
of ammunition from the Branch Davidian compound, many of which 
had ``cooked off'' in the fire.
    On November 17 and 18, 1999, the Texas Rangers and U.S. 
Postal Inspectors working for the Office of Special Counsel 
conducted an exhaustive hand search of the many tons of 
physical evidence stored at the warehouse in Waco.\51\ The 
search failed to produce any military tear gas rounds. Only the 
photograph of the projectile was found in the inventory.\52\
---------------------------------------------------------------------------
    \51\ Committee staff were present and participated in this search.
    \52\ The search did produce the remains of 40mm illumination 
rounds, presumably fired over the compound to illuminate the area prior 
to the installation of search lights.
---------------------------------------------------------------------------

         C. Allegations of government gunfire on April 19, 1993

    The tragic outcome of the FBI's attempt to end their 
standoff with the Branch Davidians has been understandably 
difficult for most, if not all, Americans to comprehend. The 
fact that approximately 80 men, women and children did not flee 
tear gas and flames, and instead met gruesome deaths, has led a 
large cross section of the American public to suspect that the 
government somehow prevented the Davidians from escaping their 
residence on April 19, 1993. These suspicions have centered on 
the allegation that HRT or military personnel fired upon the 
Davidians both before and during the fire.
    These suspicions have been further raised by troubling 
evidence brought to light during the discovery process in a 
wrongful death lawsuit and by independent investigators, 
Freedom of Information Act plaintiffs, and other private 
parties. This evidence includes:

 LAn FBI witness statement given by an HRT member that 
states that the agent ``heard shots fired from sniper position 
#1.'' \53\
---------------------------------------------------------------------------
    \53\ FBI telephone interview with Charles Riley, Special Agent, 
FBI, 2 (June 2, 1993) (exhibit 17).

 LSpent shell casings recovered from the FBI sniper 
---------------------------------------------------------------------------
position.

 LInfrared footage taken by an FBI surveillance 
airplane on April 19, 1993, which to many viewers appears to 
include images of muzzle blasts directed at the rear of the 
compound.

One example of such an image on the FLIR tape, pointed out by 
documentary filmmaker Michael McNulty, concerned what appeared 
to be dark forms located directly behind CEV-2, which was 
making repeated entries into the gymnasium located on the back 
side of the compound. Flashes appeared on the FLIR tape from 
the edges of the forms, which McNulty alleged represented 
automatic gunfire from government agents located immediately 
behind CEV-2.\54\ Dr. Allard, a FLIR expert retained by the 
plaintiffs in the civil case, described this event:
---------------------------------------------------------------------------
    \54\ See ``Waco: The Rules of Engagement'' (Fifth Estate 
Productions, 1997) and ``Waco: A New Revelation'' (MGA Films, 1999).

        A tank (CEV) was used to smash into a building before 
        the complex fire. As the tank approached the building, 
        two appeared on the videotape behind the tank. They 
        rolled over and began shooting into the building with 
        automatic gunfire. (The airborne FLIR recorded only 
        part of the operation). A short time later, the tank 
        backed out of the building. Standing behind the tank 
        were three men. The tank appeared to roll over the men, 
        as they disappeared under the tank. It stopped for a 
        few seconds, turned, and left the scene. No men were 
        observed after the tank left the scene. The men had to 
        enter and leave the tank through its bottom escape 
        hatch.\55\
---------------------------------------------------------------------------
    \55\ Edward Allard, ``Preliminary Analysis of the Waco FLIR Tapes'' 
5 (Aug. 30, 1999) (exhibit 18).
---------------------------------------------------------------------------
1. Sites Manned by the FBI
    By April 19, 1993, the HRT had occupied various 
outbuildings and other sites around the compound for nearly 51 
days. Immediately following the failed BATF raid on February 
28, 1993, HRT personnel had taken over two pre-existing 
observation and sniper sites that had been used by the BATF on 
February 28, 1993. These sites provided cover for the agents 
while affording them a fairly unobstructed view of the 
compound. Both of these sites were fortified by the HRT. These 
sites were designated by the HRT as ``Sierra One'' and ``Sierra 
Two.'' Sierra One was a house across the Double EE Ranch Road 
from the compound. The driveway leading from the compound 
entered the road almost directly in front of the house. Sierra 
One, and the house next to it (designated ``Sierra One Alpha'') 
were less than 300 yards from the compound and allowed full 
observation of the entire front or ``white'' side.
    Sierra Two was a cinderblock garage located several hundred 
yards behind or on the black side of the compound. Between the 
two locations, HRT personnel had direct views of the white and 
black sides of the compound, with peripheral views of the red 
and green sides. These locations were provided with spotting 
scopes, rifle scopes and night vision equipment.
    By early March 1993, HRT had heavily fortified both Sierra 
One and Sierra Two with sandbags and metal plates. Both sites 
had machine-gun emplacements as well as sniper/observer 
positions. As additional protection from attack, these sites 
had seismic sensors, on loan from the U.S. Special Operations 
Command (USSOCOM), placed around them.\56\ These proved of 
little value, however, as cattle and deer often set the sensors 
off.
---------------------------------------------------------------------------
    \56\ Interviews with 10 current and former USSOCOM Army Special 
Forces personnel at Ft. Bragg, NC; Raleigh, NC; and Washington, DC. The 
identities of these individuals remain classified by the Department of 
Defense.
---------------------------------------------------------------------------
    In order to more effectively monitor the right, or red side 
of the compound, HRT members constructed a new sniper position, 
designated ``Sierra Three,'' up the driveway approximately 180 
yards from the white/red corner. This position consisted of a 
trench fortified by metal plates and sandbags. It was occupied 
only part-time when HRT members needed to monitor special 
events. The HRT also constructed dummy sites on the red side to 
deceive the Davidians as to the snipers' true location.\57\ 
Three HRT snipers manned Sierra Three on April 19, 1993.\58\
---------------------------------------------------------------------------
    \57\ Interview with Kenneth G. Vincent, Special Agent, FBI, 
Washington, DC (Apr. 12, 2000).
    \58\ Id.
---------------------------------------------------------------------------
    FBI agents from various FBI field office SWAT teams were 
also located on the left, or green side of the compound along a 
driveway that ran roughly parallel to the green side, on the 
neighboring Perry ranch. Personnel were stationed along this 
road, approximately 550 yards from the green side. This 
location was designated ``Sierra Four.'' There was also an 
outer perimeter, consisting of roadblocks and other positions 
manned by various Federal, State and local law enforcement 
agents, including the BATF and FBI SWAT. This outer perimeter 
had been manned since the early days of the standoff.
    In addition to manned sites, HRT personnel observed the 
Davidians through various technical devices, which the HRT 
obtained from U.S. Special Operations Command. Two remotely 
operated closed circuit TV cameras were placed; one on the 
green side and one on the red.\59\ In addition, a thermal 
imager, also on loan from U.S. Special Operations Command, was 
placed on top of a water tower at an intersection of the Double 
EE Ranch Road and Elk Road, situated on the red side of the 
compound.\60\ These devices, coupled with transmissions from 
several bugging devices inside the compound, allowed fairly 
close observation of the compound as well as intelligence from 
inside the compound.
---------------------------------------------------------------------------
    \59\ Interviews with 10 current and former USSOCOM Army Special 
Forces personnel at Ft. Bragg, NC; Raleigh, NC; and Washington, DC. The 
identities of these individuals remain classified by the Department of 
Defense.
    \60\ Id.
---------------------------------------------------------------------------
    In spite of the HRT's 360-degree coverage, and in spite of 
the hundreds of other law enforcement officers surrounding the 
Davidians, two individuals had been able to enter the compound 
undetected during the standoff.\61\ In addition, the FBI had 
prohibited the Davidians from exiting their building without 
first obtaining permission. However, several times during the 
standoff, Davidians went outside unannounced and HRT members 
fired 40mm ``flashbang grenades'' over the Davidians' 
heads.\62\
---------------------------------------------------------------------------
    \61\ ``WACMUR: Major Case #80--Assault on a Federal Officer,'' 
briefing for the Attorney General at Bates Stamp No. WWC142-0433. (Apr. 
12, 1993) (exhibit 9).
    \62\ Although these rounds are pyrotechnic in nature, none are 
known to have been fired on Apr. 19, 1993.
---------------------------------------------------------------------------
    In order to prevent continued unauthorized entries and 
exits, HRT members had erected a concertina (razor wire) fence 
on April 10, 1993,\63\ which encircled the compound except for 
an opening on the driveway off the white/red corner of the 
compound. The fence, remnants of which remain at Mt. Carmel 
today, consisted of two stacked rolls of concertina wire, 
supported by metal posts. It was constructed by the HRT 
utilizing various armored vehicles as cover from potential 
gunfire from the compound. The fence was approximately 5 to 6 
feet high and followed the contours of the compound, at a 
distance anywhere from 15 to 25 yards.\64\
---------------------------------------------------------------------------
    \63\ ``WACMUR: Major Case #80--Assault on a Federal Officer,'' 
briefing for the Attorney General at Bates Stamp No. WWC142-0437 (Apr. 
12, 1993) (exhibit 9).
    \64\ FBI aerial photograph with outline of fence as described to 
committee staff by Steve McGavin, former Deputy Commander, HRT, FBI 
(exhibit 19).
---------------------------------------------------------------------------
    During the operation of April 19, 1993, all HRT sites were 
manned, allowing close observation of the compound from all 
sides. Committee staff interviewed individuals from all 
positions. All consistently stated that not one government 
agent fired any gunshots at the compound. Numerous photographs 
and numerous videotapes taken of the compound from all angles 
were examined. None showed any government personnel on foot in 
close proximity to the compound, except for those that were 
involved in rescuing Davidians from the burning structure.
2. Gunfire from HRT Sniper Position
    Two houses across the Double EE Ranch Road from the Mt. 
Carmel Center were manned both by BATF snipers on February 28, 
1993, and by HRT snipers (who designated the two houses Sierra 
One and Sierra One Alpha, as described above) throughout the 
51-day standoff. The BATF snipers had been armed with .308 
caliber sniper rifles as well as .223 caliber assault rifles, 
and admitted firing both during the February 28, 1993 shoot-
out. The HRT snipers who manned the same positions throughout 
the standoff were armed with the same types of weapons, but 
denied ever firing them.
    On April 20, 1993, an HRT member who had been stationed at 
the Sierra One sniper position handed over to the Texas Rangers 
11 .308 caliber shell casings and 24 .223 caliber shell casings 
which the HRT member stated he had found at Sierra One.\65\ On 
April 22, 1993, Texas Rangers searched the houses. Pursuant to 
this search, the Rangers sifted through sand found throughout 
the house (which had apparently leaked from sandbags used to 
fortify the sniper position) and found an additional .308 
caliber shell casing.\66\ The presence of spent shell casings 
at the sniper position as late as April 22, 1993, raised the 
disturbing possibility that the FBI had fired from the position 
on April 19, 1993, or sometime during the standoff.
---------------------------------------------------------------------------
    \65\ ``Criminal Law Enforcement Division of the Texas Department of 
Public Safety, Report of Investigation,'' RF093021-U.12, at 3 (May 
1993) (exhibit 20).
    \66\ ``Texas Rangers Division of the Texas Department of Public 
Safety, Investigative Report #2 Brance Davidian Evidence'' at 3, 4 
(January 2000) (exhibit 16). (Pages are not numbered in text).
---------------------------------------------------------------------------
    Despite this possibility, firing pin and ejector 
impressions on the shell casings were not compared with test 
firings of BATF weapons until this year, by the Office of 
Special Counsel. The Special Counsel found that the shell 
casings found on April 20 and 22, 1993, matched BATF weapons 
used on February 28.\67\ In light of this evidence, a claim in 
the civil suit was withdrawn by the plaintiffs.\68\
---------------------------------------------------------------------------
    \67\ John C. Danforth, Special Counsel, U.S. Department of Justice, 
``Interim Report to the Deputy Attorney General Concerning the 1993 
Confrontation at the Mt. Carmel Complex,'' 15 (July 21, 2000).
    \68\ Id. See also Andrade Plaintiffs' motion to dismiss claims with 
prejudice against Lon Horiuchi. (W.D. Tex., Mar. 30, 2000) (No. W-86-
CA-138) (exhibit 21).
---------------------------------------------------------------------------
    Another indication that HRT personnel may have fired from 
Sierra One on April 19, 1993, was the notes of an FBI interview 
with Charles Riley, a former HRT member who was positioned at 
Sierra Three on April 19, 1993. Supervisory Special Agent Gail 
Seavey, who conducted the interview, wrote that, on April 19, 
1993, Riley ``heard shots fired from sniper position #1.'' \69\ 
Riley stated that he did not review this statement prior to its 
final draft, but that he had been misunderstood. Riley later 
clarified that he had heard a radio report from Sierra One that 
someone at that position had witnessed gunfire from within the 
compound.\70\
---------------------------------------------------------------------------
    \69\ FBI telephone interview with Charles Riley, Special Agent, 
FBI, 2 (June 2, 1993) (exhibit 17).
    \70\ FBI telephone interview with Charles Riley, Special Agent, 
FBI, 1 (Nov. 19, 1996) (exhibit 22).
---------------------------------------------------------------------------
3. Allegations that FLIR Tape Depicted Muzzle Flash
    During the standoff, the FBI employed various aircraft for 
observation purposes. In addition to small fixed wing aircraft 
and helicopters, the FBI utilized their primary observation 
plane known as the Nightstalker. This plane was equipped with a 
Forward Looking Infrared imager or ``FLIR,'' essentially a 
video camera which films in the infrared range. Since it 
measures in this range, the plane is useful in low light and 
nighttime conditions.
    At Waco, the Nightstalker was often employed to circle the 
compound during the evening hours in order to detect 
unauthorized entries or exits. Since the FLIR operators had 
video monitors as well as recorders onboard, FLIR operators 
could make real-time observations and communicate with the HRT 
commanders. The FLIR recorders on the plane recorded on two 
tapes, allowing the operator to switch to another tape when the 
first tape ran out, without ceasing to record. This created 
some overlap at times.\71\ On April 19, 1993, the plane also 
provided daytime overhead surveillance to monitor the execution 
of the HRT's tear gassing plan. On April 19, 1993, the plane 
circled the compound for periods of time, landed and refueled 
at a nearby airport, then returned to the compound. As a 
result, several FLIR videotapes were made, some of which 
overlapped. Certain portions of FLIR tapes, one starting at 
10:41 a.m. and ending at 12:16 p.m., and one starting at 12:16 
p.m. and ending at 1:39 p.m., were analyzed by experts hired by 
the committee.
---------------------------------------------------------------------------
    \71\ Interview with Isaac Nakimoto, Special Agent, FBI, in 
Washington, DC (Dec. 15, 1999).
---------------------------------------------------------------------------
    The committee retained Dr. Donald Frankel, of Photon 
Research Associates in Newton, MA, to perform an analysis of 
the FLIR tapes from April 19, 1993, and from the planned March 
19, 2000, FLIR test at Ft. Hood, TX. His report, attached as 
exhibit 8, focused on analyzing four segments of FLIR tape from 
April 19, 1993. The four segments that Dr. Frankel analyzed 
were selected because three out of the four contained footage 
that the plaintiffs in the civil litigation had asserted 
represented muzzle flashes.\72\ The first segment, as discussed 
earlier in this report, contained the FLIR footage that 
depicted flashes from directly behind the CEV that was 
penetrating the gymnasium at the rear of the compound.\73\ The 
second segment contained what appeared to be bright flashes at 
the corner of the gymnasium.\74\ The third segment contained 
flashes appearing to the left of the CEV.\75\ The fourth 
segment contained a flash located in the center of the 
courtyard.\76\
---------------------------------------------------------------------------
    \72\ Edward Allard, ``Preliminary Analysis of the Waco FLIR Tapes'' 
(Aug. 30, 1999) (exhibit 18).
    \73\ FLIR tape #3, local time 11:24:11, tape counter 00:37:36.
    \74\ FLIR tape #3, local time 12:08:31, tape counter 01:21:54.
    \75\ FLIR tape #3, local time 12:08:51, tape counter 01:22:13.
    \76\ FLIR tape #3, local time 12:10:55, tape counter 01:24:14.
---------------------------------------------------------------------------
    In addition, on March 19, 2000, Special Counsel Danforth, 
pursuant to an order of the civil trial court and with the 
concurrence of the civil litigants, conducted a FLIR test at 
Ft. Hood, TX, in an attempt to shed light on what, if any, 
muzzle flashes were observable by the type of FLIR in use in 
1993. The Department of Justice was initially reluctant, but 
eventually consented to the test.\77\ The test protocols, 
agreed to by all the parties in the civil suit, provided for 
flying FLIR-equipped aircraft over a group of individuals 
firing weapons of different calibers and firing rates. It also 
provided for the creation of a ``rubble field'' which was 
believed to approximate the construction debris found at the 
compound late in the morning of April 19, 1993, when the FBI's 
CEVs were forcibly penetrating the compound walls to insert 
tear gas. The committee sent observers to this test. Both the 
FLIR videotapes taken by the FBI's Nightstalker surveillance 
airplane (utilizing a more advanced, digital version of the 
FLIR camera in use in 1993) and a British Lynx helicopter 
(utilizing the same model FLIR camera as used by the FBI in 
1993) were obtained and analyzed by Dr. Frankel. These tapes 
were then compared with the four segments of FLIR tape from 
April 19, 1993.
---------------------------------------------------------------------------
    \77\ Lee Hancock, ``Government Rejects Attorney's Effort to Test if 
Agents Used Guns at Waco,'' the Dallas Morning News, Oct. 27, 1999 
(exhibit 23).
---------------------------------------------------------------------------
    In his 34-page report submitted to the committee on 
September 11, 2000, Dr. Frankel concluded that the flashes 
exhibited in the four tape segments referenced above could not 
depict gunfire.\78\ Dr. Frankel drew three conclusions from his 
analysis of the FLIR tapes. He first concludes:
---------------------------------------------------------------------------
    \78\ Dr. Donald S. Frankel, Photon Research Associates, 
``Assessment of Waco, Texas FLIR Videotape,'' 1 (Sept. 11, 2000) 
(exhibit 8).

        (1) The flashes seen on the tape during the four 
        critical time periods cannot be weapons muzzle flash. 
        Their duration is far too long and their spatial extent 
        is far too great. They are almost certainly the result 
        of solar energy or heat energy from nearby vehicles 
        reflected toward the FLIR by debris or puddles.\79\
---------------------------------------------------------------------------
    \79\ Id.

    Dr. Frankel's report breaks down the elements involved in 
detecting muzzle flashes. Muzzle flashes have distinct spatial 
and temporal characteristics.\80\ Frankel measured the spatial 
proportions and the durations of the flashes found on the FLIR 
tapes and compared the results with standard reference works in 
the field.\81\ For example, a rifle firing the .308 caliber 
NATO round (7.62mm) leaves a muzzle flash that is 0.4 meters 
long and lasts for approximately 2 milliseconds.\82\ By 
contrast, Dr. Frankel reported that the flashes seen on the 
April 19, 1993 FLIR tape ranged from one tenth of a second to 
over 1 second long.\83\
---------------------------------------------------------------------------
    \80\ Id.
    \81\ Id. at 5, 6.
    \82\ Id. at 6.
    \83\ Id. at 13-20.

        (2) The FLIR video technology has a very low 
        probability of detecting small arms muzzle flash.\84\
---------------------------------------------------------------------------
    \84\ Id. at 1.

    Due to the limitations of the FLIR camera, events such as 
muzzle flashes are of such short duration as to limit the 
camera's chances of depicting muzzle flash. Since the FLIR 
camera uses a scanning apparatus which scans the field of view 
60 times per second, or any given point in the field of view 
once every 16.67 milliseconds, shorter duration events such as 
---------------------------------------------------------------------------
muzzle flash may not appear on the FLIR tape:

        The FLIR video scanning arrangement described in the 
        previous section implies that the detector is observing 
        only a small part of the scene at any given instant. 
        For ordinary objects that persist for long periods of 
        time, the effect is not noticeable. For fast motion, it 
        results in blurring. For very brief events, such as 
        muzzle flash, it can result in the event being missed 
        entirely. . . . The FLIR camera scans a field in 1/60 s 
        [1/60 of one second]. During the 1 ms that a muzzle 
        flash is observable, the camera therefore scans only 6% 
        of the scene. This figure may be taken as a first order 
        approximation of the probability that the FLIR can 
        detect a small arms muzzle flash that occurs within its 
        field of view. This estimate does not take into account 
        the sensitivity of the camera, which may prevent muzzle 
        flash from ever being detected at useful ranges.\85\
---------------------------------------------------------------------------
    \85\ Id. at 3.

    Dr. Frankel's third conclusion concerns the possibility 
that muzzle flash may have occurred, but wouldn't necessarily 
---------------------------------------------------------------------------
be picked up on the FLIR:

        (3) As a consequence of (2) above, the absence of 
        muzzle flash detection on the FLIR tape does not prove 
        that weapons were not actually fired during the final 
        assault. Indeed, there is ample evidence (not presented 
        here) that the Davidians were firing at the federal 
        agents throughout this period, but none of their muzzle 
        flashes are detectable on the videotape.\86\
---------------------------------------------------------------------------
    \86\ Id. at 1.

    Dr. Frankel then examines the four specific segments of 
FLIR tape. The first segment, containing the purported flashes 
---------------------------------------------------------------------------
behind the CEV, are measured temporally:

        As Figure 7 shows, the ``rhythmic flashes last for 
        several tenths of a second (several hundred ms). Since 
        this is 50 to 100 times longer than the muzzle flash 
        from small arms lasts, these flashes cannot be muzzle 
        flash. They are most likely a reflection of the CEV 
        engine's hot parts, which themselves are clearly 
        visible in the videotape.\87\
---------------------------------------------------------------------------
    \87\ Id. at 13.

    The other three segments also contain flashes with duration 
---------------------------------------------------------------------------
times that preclude them from being muzzle flashes:

        [I]t is possible to state with 100% confidence that the 
        bright flashes that occur at the four 1993 time periods 
        covered by this report are not muzzle flash. They are 
        all far too long in duration to be muzzle flash. 
        Comparison with the re-enactment videos also indicates 
        that they are too bright compared to their 
        surroundings, and too great in spatial extent. The most 
        plausible sources for these flashes varies from case to 
        case, but include sunlight reflected from debris, 
        puddles of water, or window glass, and CEV engine hot 
        parts thermal radiation reflected from debris or 
        puddles of water. After the compound catches fire, it 
        is hard to discount burning construction material as 
        the source of flashes.\88\
---------------------------------------------------------------------------
    \88\ Id. at 32, 33.

    Although Dr. Frankel rules out that any of the four 
segments depicted muzzle flash, that does not rule out the 
possibility that muzzle flashes were present, but not recorded 
---------------------------------------------------------------------------
by the FLIR:

        Examination of the FLIR videotape of the last day of 
        the siege of the Branch Davidian compound fails to 
        identify any events that resemble the muzzle flashes 
        observed during the re-enactment. One might have hoped 
        that the apparent lack of muzzle flash would prove that 
        the FBI agents did not fire their weapons. But because 
        of the FLIR's low probability of muzzle flash 
        detection, it is not possible to make such a statement 
        with much confidence.\89\
---------------------------------------------------------------------------
    \89\ Id. at 32.

    It is extremely unlikely that anyone will ever be able to 
prove, scientifically, that no government agent ever fired a 
shot at the Davidians on April 19, 1993. The committee, 
however, has not found sufficient evidence to support the 
allegations that law enforcement or military personnel directed 
gunfire toward the Branch Davidians on April 19, 1993.

    V. Actions and Omissions of The Department of Justice Since 1993

                            A. Introduction

    There is a stark contrast between what should have occurred 
after the April 19, 1993, tragedy and what, in fact, did occur. 
On April 20, 1993, President Clinton made the following clear 
pronouncement:

        I have directed the United States Departments of 
        Justice and Treasury to undertake a vigorous and 
        thorough investigation to uncover what happened and 
        why, and whether anything could have been done 
        differently. . . . Finally, I have directed the 
        departments to cooperate fully with all congressional 
        inquiries so that we can continue to be fully 
        accountable to the American people.\90\
---------------------------------------------------------------------------
     \90\President William Clinton, remarks by the President in 
question and answer session with the press in Washington, DC at 2 (Apr. 
20, 1993) (exhibit 24).

Seven years later, Special Counsel Danforth explained what he 
---------------------------------------------------------------------------
thought of the Justice Department investigation:

        The failure of the Scruggs team to discover and report 
        that the FBI used pyrotechnic tear gas rounds was the 
        result of initiating the investigation with the 
        assumption that the FBI had done nothing wrong, was 
        inconsistent with the responsibility to conduct a 
        thorough and complete investigation, and was clearly 
        negligent.\91\
---------------------------------------------------------------------------
    \91\ John C. Danforth, Special Counsel, U.S. Department of Justice, 
``Interim Report to the Deputy Attorney General Concerning the 1993 
Confrontation at the Mt. Carmel Complex, Waco, Texas'' 52 (2000).

    Special Counsel Danforth's conclusions, and the conclusions 
of this committee, show how empty the President's promise has 
been.
    Following the tragic deaths of the Branch Davidians on 
April 19, 1993, Attorney General Reno asked her assistant, 
former Federal prosecutor Richard Scruggs, to conduct an 
investigation into the facts surrounding the tragedy.\92\ 
Justice Department officials later asked former Justice 
Department official Edward Dennis, Jr.,\93\ to conduct an 
analysis of those facts. The Department of Justice published 
their respective findings on October 8, 1993.\94\ Both Scruggs 
and Dennis stated publicly and during their interviews with 
committee staff that their findings were based upon a complete 
review of all relevant documents and interviews with numerous 
Justice Department, Federal and State law enforcement 
officials. Neither report, however, constituted a substantial 
review of the evidence. The Justice Department investigations 
were not as thorough as required by a tragedy of this 
magnitude.
---------------------------------------------------------------------------
    \92\ Interview with Richard Scruggs, Assistant U.S. Attorney, 
Department of Justice, in Miami, FL (Jan. 5, 2000).
    \93\ Dennis is a former U.S. Attorney and served as the Justice 
Department's Assistant Attorney General (Criminal Division) during the 
Bush administration. Dennis now practices law as a partner with the law 
firm of Morgan, Lewis & Bockius.
    \94\ Richard Scruggs, U.S. Department of Justice, ``Report to the 
Deputy Attorney General on the Events at Waco, Texas, Feb. 28-Apr. 19, 
1993,'' (Oct. 8, 1993) (unredacted version); Edward S.G. Dennis, Jr., 
U.S. Department of Justice, ``Evaluation of the Handling of the Branch 
Davidian Stand-off in Waco, Texas'' (Oct. 8, 1993) (redacted version).
---------------------------------------------------------------------------
    Critical Justice Department errors include failures to:

 LConduct an outside, objective, independent analysis 
of FLIR tapes to determine if Federal law enforcement officers 
fired weapons other than M-79 grenade launchers on April 19, 
1993--even after the plaintiffs in the tragedy-related civil 
litigation challenged the actions of the FBI at the scene on 
April 19, 1993,\95\ and despite the fact that line attorneys 
within the Department of Justice argued for such an independent 
analysis in 1997; \96\
---------------------------------------------------------------------------
    \95\ Andrade v. Chojnacki, (No. W-96-CA-139) (W.D. Tex. 1994) 
(civil litigation).
    \96\ See memorandum from Phyllis Pyles, Assistant Director, Torts 
Branch, Federal Torts Claim Act Section, (FTCA), Civil Division, 
Department of Justice, to Thomas Kelley, Inspector--Deputy General 
Counsel, Office of the General Counsel, FBI (Apr. 25, 1997); memorandum 
from Helene Goldberg, Director, Torts Branch, Constitutional and 
Specialized Torts Section, Civil Division, Department of Justice, to 
Jeffrey Axelrad, Director, Torts Branch, FTCA, Civil Division, 
Department of Justice (May 14, 1997); memorandum from Marie Hagen, 
Trial Attorney, Torts Branch, FTCA, Civil Division, Department of 
Justice, to Jeffrey Axelrad, Director, Torts Branch, FTCA, Civil 
Division, Department of Justice and Pyles (May 29, 1997); memorandum 
from Jeffrey Axelrad, Director, Torts Branch, FTCA, Civil Division, 
Department of Justice, to Helene Goldberg, Director, Torts Branch, 
Constitutional and Specialized Torts Section, Civil Division, 
Department of Justice (May 29, 1997); memorandum from Jeffrey Axelrad, 
Director, Torts Branch, FTCA, Civil Division, Department of Justice, to 
Thomas Kelley, Inspector--Deputy General Counsel, Office of the General 
Counsel, FBI (May 29, 1997) (exhibit 29); memorandum from Helene 
Goldberg, Director, Torts Branch, Constitutional and Specialized Torts 
Section, Civil Division, Department of Justice to Jeffrey Axelrad, 
Director, Torts Branch, FTCA, Civil Division, Department of Justice, 
(June 4, 1997); outline for June 5, 1997 meeting between staff of FTCA 
and CSTL [sic] Branches, author unknown (exhibit 31); memorandum from 
Jeffrey Axelrad, Director, Torts Branch, FTCA, Civil Division, 
Department of Justice, to Thomas Kelley, Inspector--Deputy General 
Counsel, Office of the General Counsel, FBI (Sept. 5, 1997).

 LDisclose and explain the authorized use of 
pyrotechnic devices by HRT next to the compound on the morning 
---------------------------------------------------------------------------
of April 19, 1993;

 LMention the HRT's possession of 40-millimeter high 
explosive rounds during the siege;

 LDetermine whether Attorney General Reno knew that 
pyrotechnic devices were used on April 19, 1993;

 LDetermine whether Attorney General Reno had knowledge 
of the possible use of high explosive devices;

 LDiscuss Attorney General Reno's rejection of the 
FBI's proposed operations plans days before the fire and later 
reversal;

 LProvide a full accounting of the use of military 
personnel and equipment;

 LProduce final and complete reports of the events on 
April 19, 1993; and

 LProvide Congress with relevant information in a 
timely manner.

    Scruggs alleged that he conducted a thorough review of all 
relevant documents and interviewed all Justice Department, 
Federal and State law enforcement officials with knowledge of 
the events on April 19, 1993:

        What follows is an attempt to explain what actually 
        happened at the Branch Davidian compound between the 
        arrival of the FBI on February 28, and the aftermath of 
        the fire that occurred on April 19. . . . [W]e believe 
        this report to be accurate and based upon solid 
        evidentiary grounds; we expect additional details to be 
        revealed at trial. This report has been prepared with 
        the cooperation of literally hundreds of individuals. 
        Approximately 950 interviews were conducted, and tens 
        of thousands of pages of documents and transcripts were 
        read and analyzed.\97\
---------------------------------------------------------------------------
    \97\Richard Scruggs, U.S. Department of Justice, ``Report to the 
Deputy Attorney General on the Events at Waco, Texas, Feb. 28-Apr. 19, 
1993,'' (Oct. 8, 1993) (unredacted version) at 12-14 (emphases added).

    Dennis stated that he largely relied upon the facts 
discovered and interviews conducted by Scruggs in order to 
---------------------------------------------------------------------------
prepare his report:

        To make this evaluation, I have reviewed the procedures 
        followed by the Department and the FBI, giving 
        particular attention to the means employed, the 
        alternatives considered and the decisions made in 
        attempting to resolve the stand-off.

        I have not been called upon to conduct a de novo 
        factual inquiry. A comprehensive factual report is 
        being prepared by the Department and the FBI. I have 
        primarily relied upon the record gathered by the 
        Department as the basis for the conclusions in this 
        Report, supplemented by a number of follow-up 
        interviews. However, I am satisfied that the factual 
        inquiry by the Department was conducted in a thorough 
        and objective manner. . . . I have been afforded access 
        to documents gathered in that effort and to the reports 
        of interviews conducted for factual investigation. In 
        addition, since my appointment I participated in a 
        number of Department interviews. I have also conducted 
        independent interviews of some witnesses.\98\
---------------------------------------------------------------------------
    \98\ Edward S.G. Dennis, Jr., U.S. Department of Justice, 
``Evaluation of the Handling of the Branch Davidian Stand-off in Waco, 
Texas'' (Oct. 8, 1993) (redacted version) at 1-2 (emphasis added). 
Commenting in the fall of 1999 on the scope of his investigation, 
however, Dennis stated that his report ``was not intended to be a 
comprehensive, all-encompassing report.'' Stephen Labaton, ``Reno 
Admits Credibility Loss in Waco Case,'' the New York Times, Aug. 27, 
1999 at A18, col. 4 (exhibit 33).

    It is troubling that the Waco tragedy did not seem to merit 
a ``vigorous and thorough investigation.'' President Clinton 
called for such an inquiry. Attorney General Reno promised that 
such an inquiry would take place. Neither took the steps 
necessary to make sure it would happen. Congress and the 
American people demanded a ``vigorous and thorough'' analysis 
of the events leading up to the tragedy. While Scruggs admitted 
to committee staff that, at first, he believed that the FBI had 
in fact committed some sort of error on April 19, 1993, he 
changed his mind early in the investigation.\99\ An objective, 
thorough analysis should have been the Justice Department's top 
priority.
---------------------------------------------------------------------------
    \99\ Interview with Richard Scruggs, Assistant U.S. Attorney, 
Department of Justice, in Miami, FL (June 22, 2000).
---------------------------------------------------------------------------

      B. What the American People Were Told Between 1993 and 1999

1. 1993-1994--the Department of Justice Conducts the Post-Tragedy 
        Investigation and the Criminal Trial
    Congress and members of the media expressed concern with 
regard to the thoroughness of the Justice Department's 
investigations of BATF's and the FBI's handling of the Waco 
tragedy. In 1993, the Committee on the Judiciary requested 
documents from several agencies, including the Departments of 
Justice and Defense, the FBI and Bureau of Alcohol, Tobacco and 
Firearms, regarding the planning and execution of the initial 
BATF raid on February 28, 1993, and the subsequent FBI assault 
on April 19, 1993.
    On April 28, 1993, Justice Department and FBI officials, 
including Attorney General Reno, then-HRT Commander Richard 
Rogers and then-FBI Director William Sessions, testified before 
the House Committee on the Judiciary regarding Attorney General 
Reno's decisionmaking prior to, and HRT's actions on, April 19, 
1993. Attorney General Reno testified that HRT personnel did 
not employ pyrotechnic devices on the day of the fire:

        I wanted, and received, assurances that the gas and its 
        means of use were not pyrotechnic.\100\
---------------------------------------------------------------------------
    \100\ ``Events Surrounding the Branch Davidian Cult Standoff in 
Waco, Texas,'' hearing before the Committee on the Judiciary, 103d 
Cong., 13, 16 (Apr. 28, 1993) (emphasis added) (statement of Janet 
Reno, U.S. Attorney General).

Sessions likewise stated that the tear gas that HRT personnel 
---------------------------------------------------------------------------
employed was in itself non-pyrotechnic:

        CS gas, which is actually a powder, was selected 
        because it was best suited to be used in the 
        circumstances we faced. . . . One critical factor was 
        that CS gas can be used without pyrotechnics. It will 
        not start or contribute to a fire.\101\
---------------------------------------------------------------------------
    \101\ Id. at 83, 85 (emphasis added) (statement of William 
Sessions, former FBI Director).

    No Justice Department or FBI official present at that 
hearing--most significantly, HRT Commander Richard Rogers--
corrected Attorney General Reno or Sessions or advised them 
that their testimony was misleading or inaccurate. According to 
Rogers, moreover, other portions of Attorney General Reno's 
testimony earlier that afternoon so bothered him that he failed 
to listen to the remainder of her testimony and, therefore, did 
not take note of her misstatements with regard to HRT's use of 
pyrotechnic tear gas on April 19, 1993.\102\ In any case, 
Rogers told committee staff that he would not have corrected 
Attorney General Reno because, in his opinion, her statement 
was technically correct in light of the fact that he deemed the 
tornado shelter, into which HRT personnel fired pyrotechnic 
tear gas rounds, to be separate from the main Branch Davidian 
compound.\103\ Roger's opinion on this matter defies logic and 
credulity.
---------------------------------------------------------------------------
    \102\ Reno disclosed classified information regarding an Army 
special operations unit. That information remains classified.
    \103\ Interview with Richard Rogers, former Assistant Special Agent 
in Charge and Commander, Hostage Rescue Team, FBI, in Phoenix, AZ (Aug. 
9, 2000). Rogers' statement, however, as discussed in ch. IV, above, is 
flatly contradicted by the language within the FBI's proposed 
operations plan which suggests that HRT personnel considered everything 
within the concertina wire surrounding the Branch Davidian residence as 
the ``compound.'' ``WACMUR: Major Case #80--Assault on a Federal 
Officer,'' briefing for the Attorney General at Bates Stamp No. WWC142-
0441 (Apr. 12, 1993) (exhibit 9).
---------------------------------------------------------------------------
    Later in 1993, Scruggs reported to the American people 
that, after receiving adequate briefings from Justice 
Department, FBI, military and scientific advisors, the Attorney 
General approved the dissemination of tear gas into the 
compound on April 19, 1993:

        On April 12, 1993, the FBI presented the tear gas plan 
        to the Attorney General for her approval. Over the next 
        several days the Attorney General and senior Justice 
        Department and FBI officials discussed, debated and 
        dissected, every aspect of the plan . . . After 
        becoming convinced that some action was needed, the 
        Attorney General vigorously questioned every aspect of 
        the proposed plan, and the FBI provided her the answers 
        to all her questions.

           *         *         *         *         *

        In addition, a nationally recognized team of arson 
        experts. . . . has also concluded that the Davidians 
        started the fire, that the fire could not have been 
        started by accident at a single point of origin, and 
        that the gas delivery systems the FBI used were 
        completely nonincendiary.\104\
---------------------------------------------------------------------------
    \104\ Richard Scruggs, U.S. Department of Justice, ``Report to the 
Deputy Attorney General on the Events at Waco, Texas, February-Apr. 19, 
1993,'' (Oct. 8, 1993) (unredacted version) at 278-279, 324 (emphases 
added) (footnotes omitted).

    As was discovered in 1999 and will be discussed below, 
Scruggs' investigation was incomplete and his conclusion was 
wrong with respect to the means by which HRT personnel 
delivered tear gas on April 19, 1993.
    In 1995, the subcommittees of the Committee on the 
Judiciary and this committee (committees) convened joint 
hearings to review the Waco tragedy. Among others, the 
subcommittees subpoenaed William ``Ray'' Jahn, the Assistant 
U.S. Attorney who, with his wife, LeRoy, prosecuted the 
surviving Davidians in the criminal trial, to testify. Mr. Jahn 
told the subcommittees that no HRT member fired ammunition 
other than the non-pyrotechnic tear gas: ``On the 19th of 
April, though repeatedly fired upon by the occupants of [the 
Branch Davidian compound], the FBI did not fire a shot, other 
than non-lethal ferret rounds which carried the CS gas.'' \105\ 
This was not true.
---------------------------------------------------------------------------
    \105\ ``Activities of Federal Law Enforcement Agencies Toward the 
Branch Davidians (Part I),'' hearing before the Subcommittee on Crime 
of the Committee on the Judiciary and the Subcommittee on National 
Security, International Affairs, and Criminal Justice of the Committee 
on Government Reform and Oversight, 104th Cong., 100, 107 (July 19, 
1995) (statement of Ray Jahn, Assistant U.S. Attorney) (emphasis 
added).
---------------------------------------------------------------------------
    In preparation for those hearings, the subcommittees 
requested documents from the Justice Department, FBI and 
BATF.\106\ Many of those documents likewise indicated that HRT 
personnel did not use weapons or devices capable of fire 
ignition. For example, an after-action report drafted by the 
BATF Special Agent who logged the FBI's tactical communications 
on April 19, 1993, and spoke with various FBI agents regarding 
the FBI's proposed operations plan indicated that the FBI 
decided not to use devices or weapons capable of fire ignition 
due to the risk of loss of life: ``[n]on-military rounds were 
utilized because they do not have a pyrotechnic deployment 
system which burns and creates a fire hazard.'' \107\ Other 
documents also indicate that, once HRT agents heard the code 
phrase ``compromise'' via radio, they delivered tear gas via 
non-pyrotechnic ferret projectiles.\108\
---------------------------------------------------------------------------
    \106\ Sadly, the Justice Department did not produce the requested 
documents until 3 days before the start of the hearings. As Special 
Counsel Danforth noted, Justice Department officials were more 
concerned in 1995 with their own political self-preservation than their 
duty of full disclosure to the American people and the Congress. John 
C. Danforth, Special Counsel, U.S. Department of Justice, ``Interim 
Report to the Deputy Attorney General Concerning the 1993 Confrontation 
at the Mt. Carmel Complex, Waco, Texas'' iii (2000). Justice Department 
officials refused to produce documents requested by the subcommittees 
until 3 days prior to the first day of the hearings in 1995 and then 
produced disorganized collections of documents that were heavily 
redacted. While it may not have been possible to have reviewed and 
analyzed every document prior to the hearings, a thorough analysis 
might have found several documents that now raise questions about the 
truthfulness of prior Justice Department and FBI testimony and/or the 
completeness of the Justice Department-sponsored post-tragedy 
investigations. A reasonable amount of time for congressional review of 
the documents would also have allowed the subcommittees to more 
substantively question law enforcement witnesses, such as FBI 
negotiator Byron Sage and HRT Commander Rogers, regarding the specific 
use of M-651s in the FBI's proposed operations plan. A reasonable 
period for such a review would also have allowed staff to ask whether 
the use of those projectiles was expressly approved by Reno. The 
actions of those within the Department of Justice responsible for it's 
response to the subcommittees' requests does not stand as an 
endorsement of the Department's professionalism.
    \107\ Randy Haight, BATF Special Agent, ``FBI Waco Detail After 
Action Report'' 4 (Aug. 24, 1993) (exhibit 34).
    \108\ FBI interview with Mark Tilton, Special Agent, FBI at 1 (Apr. 
20, 1993) (exhibit 35); FBI telephone interview with Cort Traylor, 
Special Agent, FBI at 1-2, (June 21, 1993) (exhibit 36); FBI telephone 
interview with David Corderman, Special Agent, FBI at 1-2 (June 8, 
1993) (exhibit 37); FBI interview with Richard Intellini, Special 
Agent, FBI at 1, Waco, Texas (Apr. 21, 1993) (exhibit 38).
---------------------------------------------------------------------------
    However, several documents gave cryptic indications that 
HRT personnel had delivered tear gas by firing pyrotechnic, M-
651 tear gas rounds via M-79 grenade launchers:

 L[Special Agent] Smith recalls one conversation, 
relative to the utilization of some sort of military round to 
be used on a concrete bunker and additional traffic pertaining 
to the need for additional gas rounds for the M-79 grenade 
launchers; \109\
---------------------------------------------------------------------------
    \109\ FBI interview with R. Wayne Smith, Special Agent, FBI, in 
Richmond, VA at 5 (June 9, 1993) (exhibit 39).

 L1 military tear gas round--goal--to deny that area 
and to channel exit.--did not want to send men into tunnel to 
flush out.--rounds bounced off; \110\
---------------------------------------------------------------------------
    \110\ Handwritten notes of interview with unidentified HRT 
personnel, Quantico, VA, date unknown, author unknown, at Bates Stamp 
No. WACO 004164 (emphasis added) (exhibit 40).

 LCorderman . . . Fired 1-4 incendiary rounds . . . 1 
military round at cement underground. . . . [Special Agent] 
Mohr--loaded military. . . . Hit front door; \111\
---------------------------------------------------------------------------
    \111\ Id. at Bates Stamp Nos. H090899 018-H090899 019 (emphases 
added) (exhibit 41).

 LBunker--Firing cupcake round--[black] roof . . . 
tried to penetrate--to open it up . . . CS bounced off; 
Beginning operation--to deny them access; \112\
---------------------------------------------------------------------------
    \112\ Id. at Bates Stamp No. H090899 023 (exhibit 42).

 L[Special Agent] Bob Hickey . . . says [HRT Charlie 
Team personnel's] unsuccessful attempt to put gas in the 
bunker--smoke in big lie film; \113\
---------------------------------------------------------------------------
    \113\ WACMUR--F.B.I. H.R.T. interview schedule, 11/9/93, author 
unknown, at Bates Stamp No. H090899 031 (exhibit 43).

 L[Special Agent] Dave Corderman . . . Smoke on film 
came from a attempt to penetrate bunker w/1 military and 2 
ferret rounds; military [projectile] was grey [sic] bubblehead 
w/green base; Dave fires 3 rounds into kitchen and less than 30 
sec[onds] later sees smok [sic]; \114\
---------------------------------------------------------------------------
    \114\ Id. at H090899 033 (exhibit 44).

 LMilitary [green] ring--outdoor pyrotechnic; \115\ and
---------------------------------------------------------------------------
    \115\ Handwritten notes of Interview with unidentified HRT 
personnel, Quantico, VA, date unknown, author unknown, at Bates Stamp 
No. H090899 037 (emphasis added) (exhibit 45).

 LRebuttle [sic] Smoke from Bunker--came when these 
guys tried to shoot gas into the Bunker. (Military gas round)--
dark grey bubblehead w/green base. 1 military round--2 others 
ferret. . . . 1st target ferret into Bunker . . . military 
bounced off also.\116\
---------------------------------------------------------------------------
    \116\ Handwritten notes of interview with unidentified HRT 
personnel, Quantico, VA, date unknown, author unknown, at Bates Stamp 
No. WACO 004134 (exhibit 46).

    Justice Department and FBI officials failed to inform the 
Congress in 1995 of these facts however, in an apparent hope 
that, 3 days before the hearings convened, no one would have 
the opportunity to find these documents and ask relevant 
questions. Their failure raises serious concerns regarding why 
these officials did not simply tell the Congress and the 
American people what they did and why.
2. 1995-1996--The Civil Litigation Plaintiffs Allege that HRT Personnel 
        Started the Fire
    In 1994, the civil litigation plaintiffs \117\ filed 
lawsuits that sought compensation for the loss and damage that 
occurred.\118\ The plaintiffs alleged, among other things, that 
the FBI and specific HRT members violated the plaintiffs' civil 
rights. The Department of Justice assigned the defense of the 
case to an experienced Washington, DC-based, Justice Department 
attorney, Marie Hagen.\119\ Hagen filed a Motion for Summary 
Judgment to dismiss the action.\120\ The trial court took the 
matter under advisement.
---------------------------------------------------------------------------
    \117\ The plaintiffs included several of the surviving Branch 
Davidians and the estates of Davidians who died on Apr. 19, 1993.
    \118\ Lawsuits were filed in several jurisdictions and were later 
transferred and consolidated into the civil litigation heard by Judge 
Walter Smith, Jr., in the Federal district court for western Texas.
    \119\ Hagen has served as a line attorney within the Justice 
Department's Civil Litigation Branch for several years and led the 
U.S.' defense in the lawsuit concerning the U.S.S. Iowa's 16-inch gun 
turret explosion, which, coincidentally, occurred on Apr. 19, 1986.
    \120\ Under Federal and State law, it is proper to file a motion 
for summary judgment when: (a) there is no material issue of genuine 
fact--i.e., no factual dispute exists; or (b) as a matter of law, the 
action must be dismissed. See e.g., Fed. R. Civ. Pro. 56.
---------------------------------------------------------------------------
    As part of pre-trial discovery, the civil litigation 
plaintiffs obtained copies of handwritten notes created by 
Justice Department attorneys and staff during November 1993 
interviews of HRT personnel.\121\ The plaintiffs' expert, Dr. 
Richard Sherrow, claimed in support of the plaintiffs' 
opposition to the government's motion for summary judgment and 
dismissal that the material collected and stored by the Texas 
Department of Public Safety's Texas Rangers included at least 
one expended pyrotechnic tear gas grenade which could have 
started the April 19, 1993, fire:
---------------------------------------------------------------------------
    \121\ See e.g., exhibits 40-46.

        Besides the . . . Ferret cartridges, information from 
        documents obtained from the FBI through the United 
        States Department of Justice indicates that military 
        pyrotechnic munitions may have been fired into [the 
        Branch Davidian compound]. Documents disclosed indicate 
        that agents could not penetrate either the underground 
        shelter roof or the top of the rear four-story tower 
        with Ferrets. Therefore, they fired at least one 
        ``military'' round and referred to this munition as a 
        ``bubblehead''. . . . The exact identity of a 
        ``bubblehead'' would have to be determined before any 
        possible contribution to the fire could be 
        established.\122\
---------------------------------------------------------------------------
    \122\ Declaration of Richard L. Sherrow, president, Richard L. 
Sherrow and Associates, at 6, Andrade v. Chojnacki (S.D. Tex. Jan. 16, 
1996) (No. H-94-0923) (Sherrow declaration) (exhibit 47).

    Upon receipt of the plaintiffs' opposition and, 
particularly, the Sherrow Declaration, Hagen asked FBI 
Assistant General Counsel Jacqueline Brown to discover the 
basis for Sherrow's allegation. In response, Brown sent HRT 
Supervisory Special Agent Robert Hickey, an HRT member present 
at the Branch Davidian compound on April 19, 1993, a copy of 
the Sherrow declaration.\123\ Brown also spoke with an FBI tear 
gas expert, Monty Jett, to seek his assistance regarding the 
Sherrow Declaration allegations and asked his help in 
responding to those allegations.\124\
---------------------------------------------------------------------------
    \123\ Interview with Jacqueline Brown, Assistant General Counsel, 
Office of the General Counsel, FBI, in Washington, DC (Jan. 7, 2000).
    \124\ See facsimile from Jacqueline Brown, former Assistant General 
Counsel, Civil Litigation Unit, Office of the General Counsel, FBI, to 
Monty Jett, Instructor, Firearms Training Unit, FBI 1 (Feb. 9, 1996) 
(exhibit 48).
---------------------------------------------------------------------------
    Almost 1 year after the conclusion of the joint committee 
hearings in 1995, Hickey sent Brown a memorandum in February 
1996 that analyzed the Sherrow declaration. Hickey did not 
refute the Sherrow declaration charges but, in fact, 
corroborated the fact that HRT personnel had employed 
pyrotechnic tear gas during the early morning hours of April 
19, 1993:

        All chemical agents purchased and used at Waco were 
        non-flammable with the exception of two (2) or three 
        (3) military 40mm CS round [sic] as detailed later 
        under the ``Tactical Considerations'' portion of this 
        communication.

           *         *         *         *         *

        Shortly after the operation commenced on 4/19/93, the 
        HRT (Charlie Team) determined, after two (2) or three 
        (3) ferret rounds, that they were unable to penetrate 
        the underground shelter roof which was their first 
        target. Charlie Team then requested to use 40mm 
        military CS rounds in an effort to penetrate the roof. 
        Charlie Team was granted authority to fire the military 
        CS rounds. A total of two (2) or three (3) rounds were 
        fired at the underground shelter roof.\125\
---------------------------------------------------------------------------
    \125\ Memorandum from Robert Hickey, Supervisory Special Agent, FBI 
to Jacqueline Brown, Assistant General Counsel, Civil Litigation Unit, 
Office of the General Counsel, FBI at 2-3 (Feb. 15, 1996) (Hickey 
memorandum) (emphasis added) (exhibit 49). As will be discussed, below, 
documents indicate that Brown spoke with both her supervisor, FBI Civil 
Litigation Unit Chief Virginia Buckles, and Hagen regarding the 
substance of the Hickey memorandum.

    Brown received the Hickey memorandum. Brown's diary 
indicates that she intended to speak with Hagen regarding the 
Hickey memorandum but it is unclear as to whether Brown sent a 
copy of the Hickey memorandum to Hagen or anyone else within 
the FBI or the Justice Department.\126\
---------------------------------------------------------------------------
    \126\ Interview with Jacqueline Brown, Assistant General Counsel, 
Office of the General Counsel, FBI, in Washington, DC (Jan. 7, 2000); 
interview with Marie Hagen, Trial Attorney, Torts Branch, FTCA, Civil 
Division, Department of Justice in Washington, DC (Nov. 16, 1999); 
interview with Marie Hagen, Trial Attorney, Torts Branch, FTCA, Civil 
Division, Department of Justice, in Washington, DC (Nov. 23, 1999); see 
also e-mail from James Touhey, Jr., Trial Attorney, Torts Branch, FTCA, 
Civil Division, Department of Justice to Marie Hagen, Trial Attorney, 
Torts Branch, FTCA, Civil Division, Department of Justice, et al., 
(Aug. 19, 1999) (``[Brown] has no recollection of having seen the memo. 
. . .''). (Exhibit 50).
---------------------------------------------------------------------------
    Rather than find the answer to the question that she asked 
Brown, Hagen, instead, argued in 1996 to the trial court that 
Sherrow's allegation was baseless and unworthy of 
consideration. Hagen made this representation even though 
Hickey had disclosed the truth of the allegation to Brown:

        Similarly, plaintiffs' statement that the projectiles 
        used to insert tear gas ``could have hit'' persons 
        inside the compound and ``could'' have started a fire 
        is mere speculation as to causation; there is no 
        evidence that such incidents actually occurred.\127\
---------------------------------------------------------------------------
    \127\ See e.g., defendants' reply memorandum at fn. 4, Andrade v. 
Chojnacki (W.D. Tex. Apr. 1, 1996) (No. W-96-CA-139) (emphasis added) 
(citations omitted) (due to the large size of this memorandum, it will 
not be included as an exhibit to this report).

           *         *         *         *         *

---------------------------------------------------------------------------
        The degree to which plaintiffs' expert testimony is 
        based on speculation is demonstrated by Mr. Sherrow's 
        conclusion that the 40mm ordinance found within the 
        compound ``probably was fired by the U.S.'' because it 
        ``could be fired only from a military weapon and 
        civilian possession of these weapons is severely 
        restricted.'' This statement is extraordinary in that 
        it ignores the virtual arsenal gathered by the 
        Davidians. . . . [Plaintiffs' military munitions expert 
        Rick] Stauber's claim that these same munitions are 
        ``not of standard military issue,'' . . . and therefore 
        ``only a military organization probably would possess 
        them'' . . . even if true, does not warrant plaintiffs' 
        inference that the United States must have fired 
        them.\128\
---------------------------------------------------------------------------
    \128\ Id. at fn. 53, (citations omitted) (emphasis added).

    Hagen continued to argue in 1997 that Sherrow's declaration 
was meritless and undeserving of consideration, even though 
Brown had received the Hickey memorandum over a year 
---------------------------------------------------------------------------
beforehand:

        3. Supplemental Declarations of Richard Sherrow.

        Likewise, plaintiffs' supplemental evidence concerning 
        the start of the fire on April 19, 1993, is legally 
        inadequate to avoid summary judgment. Testimony as to 
        what could have occurred amount to mere speculation 
        which is insufficient to create a genuine issue of 
        material fact. . . . Sherrow's declarations offer 
        nothing but conclusory opinions.

           *         *         *         *         *

        Sherrow fails to explain how the mere presence of a 40 
        mm ordnance at the site justifies an opinion that, more 
        likely than not, conduct of the United States led to 
        the fire.\129\
---------------------------------------------------------------------------
    \129\ Defendants' reply to plaintiffs' supplemental response to 
U.S.' motions for summary judgment and supplemental declaration of 
Ramsey Clark at 5-6, Andrade v. Chojnacki (W.D. Tex. Apr. 3, 1997) (No. 
W-96-CA-139) (emphasis in original) (citations omitted) (exhibit 51).

    On March 20, 1998, 2 years after Hickey wrote his 
memorandum alerting, at a minimum, FBI officials that HRT 
personnel employed pyrotechnic tear gas rounds on April 19, 
1993, Hagen filed a reply to the plaintiffs' opposition and re-
requested that the trial court dismiss the lawsuit as 
meritless. With respect to Sherrow's allegation about the use 
of pyrotechnic tear gas grenades, Hagen denied that the 
---------------------------------------------------------------------------
allegation had any basis:

        Plaintiffs also argue that the fire may have been 
        started by ``munitions fired by the U.S.'' . . . Like 
        the testimony regarding the start of the fire, however, 
        this theory is mere speculation which simply ignores 
        the recorded words of the Davidians who spread the fuel 
        and lit the fires. Such speculation dissolves in the 
        face of the recording made on April 19.\130\
---------------------------------------------------------------------------
    \130\ Defendants' reply memorandum of law at 66-67, Andrade v. 
Chojnacki (W.D. Tex. Mar. 19, 1998) (No. W-96-CA-139) (citations 
omitted) (emphases added) (exhibit 52).

    As late as 1999, Hagen and the Department of Justice failed 
to ascertain whether Sherrow's declaration was based upon any 
fact. A telephone call to the HRT personnel located 30 miles 
from Justice Department Headquarters would have likely led to 
the discovery of the Hickey memorandum. Instead, Hagen 
continued to argue to the trial court that the allegations that 
HRT personnel fired pyrotechnic rounds on April 19, 1993 were 
unworthy of, at a minimum, an internal review within the 
---------------------------------------------------------------------------
Justice Department and the FBI:

        . . . [P]laintiffs have submitted nothing other than 
        vague generalizations and speculation about the 
        existence of evidence that they claim was somehow 
        missed by the prosecutors and defense attorneys in [the 
        criminal prosecution], as well as by congressional 
        investigators. Such unsworn, unsupported speculation is 
        insufficient to warrant discovery at this juncture. 
        Plaintiffs have had ample opportunity to make their 
        case for discovery in their prior submission to the 
        Court. After almost four years of litigation and 
        submissions by the parties, the Court has more than 
        enough information on which to base a ruling as to 
        whether further discovery is necessary on any of the 
        factual issues.\131\
---------------------------------------------------------------------------
    \131\ Defendants' opposition to plaintiffs' motion for leave to 
file supplemental evidence and briefing at 2, Andrade v. Chojnacki 
(W.D. Tex. May 14, 1999) (No. W-96-CA-139) (emphases added) (exhibit 
53).

    Again, Justice Department officials failed to take 
advantage of numerous opportunities to find and disclose the 
truth surrounding the events of April 19, 1993. In failing to 
do so, those officials created the circumstances where dark 
suspicions regarding the actions of Federal law enforcement on 
that day could grow.
3. What the American People Learned in 1999
    Documentary filmmaker Michael McNulty followed the civil 
litigation and found the plaintiffs' allegation that FBI 
personnel started the fire to be of interest. McNulty contacted 
then-Assistant U.S. Attorney William Johnston, the Assistant 
U.S. Attorney for Waco, TX, and asked permission to inspect the 
material within the Rangers' custody.\132\ Johnston contacted 
Department of Justice Director of Public Affairs Bert 
Brandenberg, who authorized the request.\133\ Johnston 
authorized the Rangers to escort McNulty during his inspection. 
During six inspections, McNulty found a picture taken by the 
Rangers during the week after the April 19, 1993, fire that 
portrayed at least one expended M-651 projectile.\134\
---------------------------------------------------------------------------
    \132\ See letter from William Johnston, Assistant U.S. Attorney, 
Department of Justice, to Janet Reno, U.S. Attorney General, at 1 (Aug. 
30, 1999) (exhibit 54).
    \133\ Id.
    \134\ ``Texas Rangers Division of the Texas Department of Public 
Safety, Investigative Report Branch Davidian Evidence'' 6 (Sept. 9, 
1999) (exhibit 1).
---------------------------------------------------------------------------
    On April 30, 1999, Hagen learned from reading a McNulty-
signed declaration filed by the plaintiffs that McNulty had 
reviewed the Waco-related evidence after receiving permission 
to do so from Johnston.\135\ Hagen telephoned Johnston who told 
her that Brandenberg had authorized McNulty's review. Hagen 
contacted Brandenberg to confirm Johnston's statement.\136\ 
Brandenberg confirmed Johnston's statement.\137\ Hagen wrote 
Johnston and ordered him to permit no further inspections.\138\ 
Justice Department Torts Branch Director James Axelrad likewise 
wrote Johnston's supervisor, U.S. Attorney for the Western 
District of Texas, James Blagg, and ordered that no further 
inspections take place.\139\
---------------------------------------------------------------------------
    \135\ See memorandum from Marie Hagen, Trial Attorney, Torts 
Branch, FTCA, Civil Division, Department of Justice, to Donald Remy, 
Deputy Assistant Attorney General, Department of Justice at 1 (Sept. 2, 
1999) (exhibit 55).
    \136\ See e-mail from Marie Hagen, Trial Attorney, Torts Branch, 
FTCA, Civil Division, Department of Justice to Bert Brandenberg, former 
Director, Office of Public Affairs, Department of Justice (Apr. 30, 
1999) (exhibit 56).
    \137\ See e-mail from Bert Brandenberg, former Director, Office of 
Public Affairs, Department of Justice to Marie Hagen, Trial Attorney, 
Torts Branch, FTCA, Civil Division, Department of Justice (May 1, 1999) 
(exhibit 57).
    \138\ See letter from Marie Hagen, Trial Attorney, Torts Branch, 
FTCA, Civil Division, Department of Justice to William Johnston, 
Assistant U.S. Attorney, Department of Justice (May 3, 1999) (exhibit 
58).
    \139\ See letter from Jeffrey Axelrad, Director, Torts Branch, 
FTCA, Civil Division, Department of Justice, to James Blagg, U.S. 
Attorney for the Western District of Texas, Department of Justice (May 
3, 1999) (exhibit 59).
---------------------------------------------------------------------------
    Johnston concluded that the existence of evidence regarding 
the use of potentially pyrotechnic tear gas grenades required 
further study. Johnston repeatedly notified Blagg and other 
Justice Department officials about what the Rangers were 
discovering as the Rangers continued their investigation.\140\
---------------------------------------------------------------------------
    \140\ E-mail from William Johnston, Assistant U.S. Attorney, 
Department of Justice to James Blagg, U.S. Attorney for the Western 
District of Texas, Department of Justice (Aug. 2, 1999) (exhibit 60); 
e-mail from William Johnston, Assistant U.S. Attorney, Department of 
Justice, to James Blagg, U.S. Attorney for the Western District of 
Texas, Department of Justice (Aug. 17, 1999) (exhibit 61); e-mail from 
William Johnston, Assistant U.S. Attorney, Department of Justice, to 
William ``Ray'' Jahn, Assistant U.S. Attorney, Department of Justice 
(Aug. 19, 1999) (exhibit 62) (``[t]he casing is labelled [sic] M-118 
and it is said to fire the M-651 tear gas round. . . . [A]t least that 
was the original information that I recall from [Texas Ranger] Joey 
Gordon.''); e-mail from William Johnston, Assistant U.S. Attorney, 
Department of Justice, to Myron Marlin, Director, Office of Public 
Affairs, Department of Justice (Aug. 26, 1999) (exhibit 63).
---------------------------------------------------------------------------
    On July 27, 1999, Texas Department of Public Safety 
Chairman James Francis announced that McNulty and the Texas 
Rangers had discovered at least one 40 millimeter pyrotechnic 
round within the evidence maintained by the Rangers.\141\ Lee 
Hancock, a reporter for the Dallas Morning News who had 
reported on the Branch Davidian tragedy since 1993, contacted 
retired FBI Deputy Assistant Director Danny Coulson regarding 
the Rangers and McNulty's findings.\142\
---------------------------------------------------------------------------
    \141\ Lee Hancock, ``2 Pyrotechnic Devices Fired at Davidians, Ex-
Official Says Government Denies Former FBI Agent's Statements,'' the 
Dallas Morning News, Aug. 24, 1999 at 1A (exhibit 3).
    \142\ Coulson participated in the 1993 standoff as a Washington, 
DC-based, FBI manager. Coulson, as the founder and first commander of 
HRT, possessed knowledge regarding the tactics and equipment available 
to HRT personnel. Coulson also spoke often with Rogers, assisted in the 
draft of the FBI's proposed operations plan, attended briefings for 
Attorney General Reno and Sessions and watched the tragedy on CNN from 
within the FBI's Strategic Incident Operations Center (SIOC) on Apr. 
19, 1993. See FBI interview with Danny Coulson, former Deputy Assistant 
Director, FBI at 3-7 (July 13, 1993) (exhibit 64); see also Transcript 
of Coulson Deposition at 27:9-28:19, Andrade v. Chojnacki (W.D. Tex. 
Feb. 22, 2000) (No. W-96-CA-139) (exhibit 65).
---------------------------------------------------------------------------
    Hancock explained to Coulson that Sherrow had alleged that 
HRT personnel fired pyrotechnic tear gas grenades on April 19, 
1993, and that those rounds may have started or exacerbated the 
fire. Hancock also told Coulson of McNulty's discovery of the 
pictures of the expended rounds. Coulson told Hancock that the 
use of those rounds had been a well-known fact among HRT 
personnel. The Dallas Morning News highlighted Coulson's 
statements in its article:

        The former official, Danny O. Coulson, said in an 
        interview that two devices known as M-651 CS tear gas 
        grenades were fired from FBI grenade launchers hours 
        before the compound erupted in flames April 19, 1993. 
        He said they were used with permission from FBI 
        supervisors and that they played no role in starting 
        the fire.

           *         *         *         *         *

        But Mr. Coulson, then a deputy assistant director for 
        the FBI's criminal investigative division, said he 
        learned . . . that two M-651 CS cartridges were fired 
        at an area known as ``the pit,'' an underground 
        structure that led to tunnels that opened into the 
        compound.

        ``There were at least two pyrotechnic devices used that 
        day,'' said Mr. Coulson, who helped supervise the 
        government's handling of the siege.

           *         *         *         *         *

        Mr. Coulson said two devices were fired after the 
        request was approved by FBI supervisors, including 
        rescue unit Commander Richard Rogers.

           *         *         *         *         *

        Mr. Coulson said he had no idea why FBI officials did 
        not acknowledge the use of the pyrotechnic devices in 
        their statements to Congress and to investigators who 
        conducted a lengthy Justice Department review of FBI 
        actions at Waco.

        ``The first thing they should've said, if we knew, they 
        should've said we fired,'' said Mr. Coulson. . . . 
        ``That's a problem.'' \143\
---------------------------------------------------------------------------
    \143\ Lee Hancock, ``2 Pyrotechnic Devices Fired at Davidians, Ex-
Official Says Government Denies Former FBI Agent's Statements,'' the 
Dallas Morning News, Aug. 24, 1999 at 1A (exhibit 3).

    In response to Coulson's statements, Justice Department 
officials flatly denied that FBI agents had fired any such 
device: `` We are aware of no evidence to support the notion 
that any pyrotechnic devices were used by the federal 
government on April 19. . . . We've said that all along.'' 
\144\ FBI officials, however, prepared another internal 
investigation into what incendiary or pyrotechnic rounds HRT 
personnel possessed on April 19, 1993.\145\
---------------------------------------------------------------------------
    \144\ Id. (citing statement of Justice Department Director of 
Public Affairs Myron Marlin).
    \145\ See memorandum from the Office of Inspections, Inspection 
Division, FBI, to Inspection Division, FBI (Aug. 26, 1999) (exhibit 
66).
---------------------------------------------------------------------------
    In support of Coulson's revelation, Texas Public Safety 
Commission Chairman James Francis stated that the Rangers 
possessed ``overwhelming'' evidence that confirmed that HRT 
personnel had in fact fired pyrotechnic tear gas grenades on 
April 19, 1993:

        There are written reports by Rangers, there is 
        photographic evidence, there is physical evidence, all 
        three of which are problematic.

           *         *         *         *         *

        I would suggest that Janet Reno get a full briefing of 
        the facts. She's not getting the facts,'' he said. ``I 
        can't understand for the life of me why a senior FBI 
        official's statement was flatly contradicted by the 
        Department of Justice without even checking the 
        facts.'' \146\
---------------------------------------------------------------------------
    \146\ Lee Hancock, ``FBI to Acknowledge Use of Pyrotechnic Devices; 
New Account on Branch Davidian Fire Expected,'' the Dallas Morning 
News, Aug. 25, 1999 at 1A, (citing statement by Francis) (exhibit 67).

    Two days later and in reaction to public and congressional 
outrage, Attorney General Reno stated that, prior to April 19, 
1993, she had directed FBI officials not to use pyrotechnic 
devices during the assault: ``I did not want those used. I 
asked for and received assurances that [the tear gas 
projectiles used on April 19, 1993] were not incendiary. . . 
.'' \147\ Unfortunately, a ``thorough and vigorous 
investigation'' had not been done to learn if those assurances 
were, in fact, true.
---------------------------------------------------------------------------
    \147\ Lee Hancock, ``Reno Says FBI Had Assured Her on Raid; She 
Says Pyrotechnics Not Part of Plan,'' the Dallas Morning News, Aug. 27, 
1999 at 1A (exhibit 68).
---------------------------------------------------------------------------
    Further controversy erupted in the press on August 30, 
1999, when the Dallas Morning News obtained a copy of a five 
page letter from the Waco-based Assistant U.S. Attorney, 
William Johnston, to Attorney General Reno. In his letter, 
Johnston detailed his efforts to resolve the mystery of the 
pyrotechnic devices, accused Justice Department officials of 
trying to intimidate him, and asserted that individuals within 
the Justice Department were trying to keep the truth hidden:

        Last week, a fax originated with the Department of 
        Justice came to me. The fax was in three pages. . . . 
        It has been suggested to me that these documents were 
        sent to me to ``hang over my head,'' or to say that I'd 
        better look out stirring this matter up, as I may have 
        to explain [these documents]. So long as it is the 
        truth ``hanging over my head,'' I am not afraid. I will 
        not be intimidated by anyone with the Department of 
        Justice.\148\
---------------------------------------------------------------------------
    \148\ Letter from William Johnston, Assistant U.S. Attorney, 
Department of Justice, to Janet Reno, Attorney General 3-4 (Aug. 30, 
1999) (emphases added) (exhibit 69). Committee staff contacted Johnston 
and asked him to speak to staff and produce relevant documents. To 
avoid conflict with Justice Department regulations with respect to the 
production of material to outside sources, Johnston asked for and 
received a committee subpoena that ordered him to produce this 
information.

    On September 8, 1999 in response to this committee's 
subpoena, the Department of Justice produced documents to this 
committee which indicated that FBI personnel informed superiors 
within the FBI that HRT agents employed M-651 rounds to deploy 
tear gas onto the compound on April 19, 1993.\149\ One of these 
documents, a 49 page report prepared by the FBI crime 
laboratory on December 6, 1993, (FBI lab report) further 
indicated that, among the objects found in the remains of the 
compound after April 19, 1993, the Rangers had located at least 
one and possibly three spent 40 millimeter projectiles.\150\ On 
August 19, 1999, Justice Department Torts Branch trial attorney 
James Touhey, Jr. conducted a search of documents via computer 
and not only located the missing 49th page but, furthermore, 
located additional documents that Justice Department officials 
failed to produce to the committee after the 1995 hearings. 
Touhey found that the Department of Justice could account for 
63 copies of the FBI lab report. The Justice Department: (1) 
produced at least one and possibly three full, 49 page copies 
of the FBI lab report to plaintiffs in the civil litigation; 
(2) produced a 48 page copy of the FBI lab report (missing the 
final page that identified the spent rounds as M-651s) and at 
least two, forty-nine pages of the Lab Report to the Committee 
on the Judiciary in 1995 in response to their requests; and (3) 
possessed as many as 56, full copies and at least three 48 page 
copies of the FBI lab report within Justice Department, FBI or 
U.S. Attorney files.\151\
---------------------------------------------------------------------------
    \149\ Exhibits 40-46.
    \150\ Report from the FBI Laboratory to James Miller, Sergeant, 
Texas Rangers, Texas Department of Public Safety at 49 (Dec. 6, 1993) 
(exhibit 70). The committee became concerned in September 1999 that 
Justice Department officials had failed to produce a complete copy of 
the 49 page lab report to the committees in 1995. Committee staff found 
that the committee had received the first 48 pages of the lab report 
but had not received the last page that identified the expended, 
military tear gas projectile. At least two additional complete copies 
of the lab report were located in the mass of documents produced to the 
committees after lengthy delays, and just 3 days before the hearings 
convened in 1995. As noted earlier, the documents were produced at a 
time and in a fashion that made it difficult, if not impossible, to 
review them in a systematic way and make use of them. It remains a 
mystery as to why the Justice Department produced to the committees a 
version of the lab report that omitted the page that mentioned a 
pyrotechnic device. Similar tactics have been employed time and time 
again by the Justice Department and the White House in other 
investigations. On Oct. 10, 2000, the day that this committee delivered 
copies of this report to its members for their preliminary 
consideration, the Justice Department delivered additional documents 
responsive to the committee's Sept. 1, 1999 subpoena.
    \151\ See memorandum from James Touhey, Jr., Trial Attorney, Torts 
Branch, FTCA, Civil Division, Department of Justice, to Jeffrey 
Axelrad, Director, Torts Branch, FTCA, Civil Division, Department of 
Justice (Sept. 2, 1999) (exhibit 71).
---------------------------------------------------------------------------
    The need for this committee, therefore, to commence its 
investigation into the actions and omissions of Federal law 
enforcement, Justice Department and the military was both 
manifest and timely. Until Attorney General Reno was forced to 
appoint Special Counsel Danforth to investigate this matter, 
only this committee possessed the necessary jurisdiction and 
interest in finding true and complete answers that the American 
people demanded for the last 6 years.

           c. the attorney general takes office in mid-crisis

    On February 28, 1993, the Department of the Treasury 
requested FBI assistance in response to the murder of four BATF 
agents that day. Republican holdover and Acting Attorney 
General Stuart Gerson managed the Justice Department and the 
Branch Davidian crisis with the assistance of Acting-Deputy 
Attorney General Mark Richard, Deputy Assistant Attorney 
General John Keeney, others within the Justice Department, 
Judge Sessions and the FBI. Gerson approved the request and 
authorized the deployment of HRT advance personnel and 
equipment, including HRT Commander Richard Rogers to Waco. 
Justice Department and FBI officials based in Washington, DC 
received briefings from Jamar and Rogers and visited the FBI 
positions near the compound to witness FBI efforts. These 
officials also received briefings on contingency plans that the 
FBI would employ if the Branch Davidians attempted to escape or 
assault FBI positions before full HRT deployment on site could 
be accomplished.
    Janet Reno was confirmed as Attorney General on March 12, 
1993 and received her first detailed briefing on the standoff 
during the week of March 15, 1993.\152\ In response to a 
suggestion from President Clinton through Hubbell and 
Presidential Advisor Bruce Lindsey, Attorney General Reno asked 
if the military had been consulted with respect to the merits 
of the FBI's proposed operations plan.\153\ A briefing in 
response to Attorney General Reno's query was scheduled for 
April 14, 1993.
---------------------------------------------------------------------------
    \152\ FBI interview with Janet Reno, U.S. Attorney General, in 
Washington, DC 1 (Aug. 2, 1993) (exhibit 72).
    \153\ FBI interview with Bruce Lindsey, Advisor to the President 
and Director of the Office of Presidential Personnel, in Washington, DC 
(Sept. 1, 1993) (exhibit 73).
---------------------------------------------------------------------------
    On April 12, 1993, the FBI representatives briefed Attorney 
General Reno for the first time on their proposed operations 
plan designed to resolve the standoff at the Branch Davidian 
compound. FBI representatives presented Attorney General Reno 
with a briefing book that contained, among other things: (1) a 
summary of events to that date; (2) the FBI's strategy to 
resolve the standoff; (3) the proposed operations plan; (4) the 
FBI's method of gas delivery; and (5) other key facts.\154\
---------------------------------------------------------------------------
    \154\ See ``WACMUR: Major Case #80--Assault on a Federal Officer,'' 
briefing for the Attorney General at Bates Stamp Nos. WWC142-0440--0441 
(Apr. 12, 1993) (emphases added) (exhibit 9).
---------------------------------------------------------------------------
    The April 12, 1993, briefing book identified Jamar and 
Rogers as in charge of the tactical situation surrounding the 
Branch Davidian compound.\155\ The April 12, 1993, briefing 
book also enclosed the FBI's proposed operations plan that 
described the means by which HRT personnel hoped to resolve the 
standoff:
---------------------------------------------------------------------------
    \155\ Id. Neither individual, however, attended the Apr. 12, 1993, 
briefing and Attorney General Reno never met Jamar until well after the 
end of the standoff.

        II. Mission

           *         *         *         *         *

        On order, utilize two Combat Engineer Vehicles (CEVs) 
        to deliver tear gas (CS) into White/Green section of 
        the compound structure. Four Bradley Vehicles (BV) will 
        be positioned around the compound ready to supplement 
        the CEV [sic] in gas delivery, if needed. One of the 
        four BVs will insert Ferret liquid tear gas rounds into 
        the black covering of the new unoccupied construction 
        on the green side immediately after the introduction of 
        tear gas into the previously referenced white/green 
        section of the compound structure.

           *         *         *         *         *

        Wait a period of time, which will depend on the 
        subjects [sic] response to the initial gas delivery and 
        subsequent negotiations if any are possible, and 
        deliver additional tear gas utilizing a CEV into the 
        Black/Red corner. Again, demand surrender by the 
        occupants. Continue delivery of tear gas into different 
        parts of the compound structure at regular intervals 
        for 48 hours or until all subjects have exited compound 
        and surrendered.\156\
---------------------------------------------------------------------------
    \156\ ``WACMUR: Major Case #80--Assault on a Federal Officer,'' 
briefing for the Attorney General at Bates Stamp Nos. WWC142-0440 (Apr. 
12, 1993) (emphases added) (exhibit 9).

    The FBI's proposed operations plan identified the two 
---------------------------------------------------------------------------
methods by which it intended to insert the tear gas:

        CS Gas Delivery methods (Tear Gas)

        A. M79, grenade launcher uses a 40 mm liquid-filled 
        ferret round which delivers 25 grams of CS liquid on 
        impact. In Waco there are approximately 400 rounds of 
        the 40mm liquid-filled gas ferret rounds available for 
        HRT and SWAT use. These rounds when fired from 20 yards 
        or less are capable of penetrating a hollow core door.

           *         *         *         *         *

        B. M60 CEV with cylinder delivery system. One cylinder 
        has 15 one-second bursts per charge. Each burst will 
        extend out approximately 55 feet from the cylinder 
        creating a fog or gas mist in the area. Each cylinder 
        can be recharged 20 times. There are six cylinders on 
        hand in Waco with enough raw materials to recharge all 
        6 cylinders 20 times each.\157\
---------------------------------------------------------------------------
    \157\ Id. at Bates Stamp No. WWC142-0448.

    Nowhere in the FBI's proposed operations plan or in the 
April 12, 1993, briefing book did the FBI indicate that the 
black covering of the new unoccupied construction on the green 
side was considered by FBI on-site personnel as separate and 
apart from the Branch Davidian compound. FBI officials also did 
not indicate to Attorney General Reno that the FBI might, 
should the need arise, utilize pyrotechnic devices more capable 
of penetrating that structure. The FBI's proposed operations 
plan also did not indicate to Attorney General Reno that HRT 
personnel, as a contingency, intended to use M-651 pyrotechnic 
tear gas rounds, automatic machine guns or high explosive 
grenades, if the need arose. Finally, no FBI representative 
told Attorney General Reno during the week prior to April 19, 
1993, that HRT personnel might employ pyrotechnic or high 
explosive ammunition if they believed that the circumstances 
warranted their use.
    Rogers telephoned personal friends, the then-current and 
then-former Army special operations unit commanders\158\ on the 
evening of April 13, 1993, and asked them to travel to 
Washington, DC for the purpose of briefing Attorney General 
Reno. As will be discussed in detail below, the officers were 
reluctant to do so, in light of the Posse Comitatus Act 
proscriptions, without the express authorization from their 
respective chains of command.
---------------------------------------------------------------------------
    \158\ In 1993, the former unit commander, then-Brigadier General 
Peter Schoomaker, served as an Assistant Division Commander at Ft. 
Hood, TX. In response to a request from then-Texas Governor Ann 
Richards, General Schoomaker's superior asked him to travel to Waco and 
report to the Governor on the situation. The then-unit commander, an 
Army Colonel, served at Fort Bragg, NC.
---------------------------------------------------------------------------
    On April 14, 1993, Attorney General Reno attended a meeting 
at FBI Headquarters to speak with FBI and military 
representatives regarding the FBI's proposed operations plan. 
During that meeting, Attorney General Reno asked Schoomacher 
and the Colonel their thoughts on the FBI's proposed operations 
plan. Both officers, to their credit, declined to offer a 
critique of the plan because of their orders not to do so and 
their awareness of the Posse Comitatus Act proscription. Both 
spoke generally about: (1) the effects of tear gas on humans; 
(2) the eventual need to rest and retrain on-site HRT personnel 
who, at that time, had been on duty for up to 42 days; and (3) 
the fact that, if it were a military situation, they might 
order an immediate, inclusive application of tear gas rather 
than employing an incremental approach.

  D. April 16, 1993--Attorney General Reno Rejects the FBI's Proposed 
             Operations Plan and then Reverses her Decision

    April 16, 1993, is a key date in the Branch Davidian 
tragedy timeline. On this date, Attorney General Reno 
disapproved execution of the FBI's proposed operations plan at 
that time.\159\ Later that morning, FBI Director Sessions 
requested an opportunity to ask that the Attorney General 
reconsider her disapproval. After meeting with Associate 
Attorney General Webster Hubbell, Attorney General Reno decided 
to reconsider her decision and the next day she approved 
execution of the FBI's proposed operations plan. While Richard 
Scruggs, in 1993, and Special Counsel Danforth, in 2000, did 
find that Attorney General Reno in fact disapproved the FBI's 
proposed operations plan on this date, they did not discuss why 
she reconsidered her decision.\160\ Attorney General Reno 
wields substantial discretion to approve or disapprove the 
actions of Federal law enforcement personnel. Concurrent with 
that responsibility, however, is the duty to account fully for 
the bases of her actions. Attorney General Reno has never fully 
explained what led her to reverse her decision.
---------------------------------------------------------------------------
    \159\ Transcript of interview with Janet Reno, U.S. Attorney 
General, in Washington, DC at 78:13-80:12 (Oct. 5, 2000) (exhibit 74 on 
file with the committee).
    \160\In light of Special Counsel Danforth's charter--to investigate 
``bad acts,'' rather than ``bad judgment,'' this omission from his 
report is not of concern. John C. Danforth, Special Counsel, U.S. 
Department of Justice, ``Interim Report to the Deputy Attorney General 
Concerning the 1993 Confrontation at the Mt. Carmel Complex, Waco, 
Texas'' 2 (2000) (footnote omitted).
---------------------------------------------------------------------------
    As Special Counsel Danforth's interim report noted, Hubbell 
called Deputy Assistant Attorney General Mark Richard into his 
office the morning of April 16, 1993.\161\ Richard recalled 
that then Justice Department Director of Public Affairs Carl 
Stern was already present in Hubbell's office. Hubbell told 
Richard that Attorney General Reno had ``disapproved'' the 
FBI's proposed operations plan.\162\ Richard told committee 
staff that he was surprised at Hubbell's pronouncement.\163\
---------------------------------------------------------------------------
    \161\ John C. Danforth, Special Counsel, U.S. Department of 
Justice, ``Interim Report to the Deputy Attorney General Concerning the 
1993 Confrontation at the Mt. Carmel Complex, Waco, Texas'' 108 (2000).
    \162\ FBI interview with Mark Richard, Deputy Assistant Attorney 
General, Department of Justice in Washington, DC at 5 (July 15, 1993) 
(exhibit 75).
    \163\ Interview with Mark Richard, senior counsel for the European 
Union and International Criminal Matters and former Deputy Assistant 
Attorney General, Department of Justice in Washington, DC (Apr. 20, 
2000).
---------------------------------------------------------------------------
    Hubbell asked Richard what Richard thought would be the 
FBI's reaction to this news. Richard responded that the FBI 
would be upset. Hubbell asked Richard if Richard thought that 
the FBI should be told and offered the opportunity to discuss 
the matter. Richard agreed and Hubbell telephoned FBI Director 
William Sessions and, without telling him the reason, asked 
Sessions to come to his office.\164\
---------------------------------------------------------------------------
    \164\ Id.; telephone interview with William Sessions, former FBI 
Director (Oct. 9, 2000).
---------------------------------------------------------------------------
    Sessions left FBI Headquarters, accompanied by then-FBI 
Deputy Director Floyd Clarke and, shortly, arrived at Hubbell's 
office. When Hubbell reiterated to the gathered individuals 
that Attorney General Reno had ``disapproved'' the FBI's 
proposed operations plan, Sessions requested an opportunity to 
speak directly to the Attorney General.\165\ Hubbell responded 
by telling Sessions to wait while Hubbell went to her office. 
Hubbell was gone, according to Richard, for approximately 10 
minutes.\166\
---------------------------------------------------------------------------
    \165\ Director Sessions' 1993 statement to the post-fire 
investigators indicates that he argued to Attorney General Reno for 
approval of the FBI's proposed operations plan on Apr. 16, 1993. FBI 
interview with William Sessions, FBI Director, in Washington, DC at 7 
(July 14, 1993) (exhibit 76). This statement seemed inconsistent with 
other statements and committee staff interviews with the Apr. 16, 1993, 
meeting participants. See e.g., FBI interview with Mark Richard, Deputy 
Assistant Attorney General, Department of Justice in Washington, DC at 
5 (July 15, 1993) (exhibit 75); interview with Mark Richard, senior 
counsel for the European Union and International Criminal Matters and 
former Deputy Assistant Attorney General, Department of Justice, in 
Washington, DC (Apr. 20, 2000); telephone interview with Carl Stern, 
former Director, Office of Public Affairs, Department of Justice, in 
Washington, DC (May 11, 2000); interview with Floyd Clarke, former FBI 
Deputy Director, in Washington, DC (May 4, 2000). Committee staff 
interviewed Sessions regarding this matter. During that interview, 
Sessions corrected his 1993 statement and stated that while he 
certainly wanted the Attorney General to approve the proposed 
operations plan, he could not recall any conversation with the Attorney 
General during which he argued for reconsideration of the FBI's 
proposed operations plan. Telephone interview with William Sessions, 
former FBI Director (Oct. 9, 2000). Sessions recalled no discussions 
during the Apr. 16, 1993, meeting after the Attorney General asked the 
FBI to prepare the additional materials. Id. Finally, Sessions recalled 
no conversations with the Attorney General after the Apr. 16, 1993, 
meeting and prior to the Apr. 17, 1993, meeting during which the 
Attorney General approved the FBI's proposed operations plan. Id.
    \166\ FBI interview with Mark Richard, Deputy Assistant Director, 
Department of Justice, in Washington, DC at 5 (July 15, 1993) (exhibit 
75); see also interview with Mark Richard, senior counsel for the 
European Union and International Criminal Matters and former Deputy 
Assistant Attorney General, Department of Justice, in Washington, DC 
(Apr. 20, 2000).
---------------------------------------------------------------------------
    Hubbell reappeared with Attorney General Reno and, almost 
immediately, she told the attendees that she wanted the FBI to 
prepare a statement \167\ for her that would include all facts 
in support of the FBI's proposed operations plan.\168\ Several 
of the attendees were surprised at Attorney General Reno's 
directive, since, based upon Hubbell's information, she had 
``disapproved'' the plan.\169\ In hopes of satisfying her 
request, however, Sessions and Clarke returned to FBI 
Headquarters and directed subordinates to prepare the requested 
materials.\170\ FBI representatives gave this second briefing 
book to Attorney General Reno sometime on April 17. After 
reconsidering her earlier disapproval, Attorney General Reno 
approved the FBI's proposed operations plan during the evening 
of April 17, 1993.\171\ Attorney General Reno has stated that 
she did not carefully review the materials from the FBI prior 
to approving the FBI's proposed operations plan.\172\
---------------------------------------------------------------------------
    \167\ The ``statement'' that the FBI prepared for the Attorney 
General became a second, detailed briefing book. ``WACO INVESTIGATION--
Second Attorney General Briefing Book'' at Bates Stamp WWC425-0892-
WWC425-2044, undated (due to the large size of these materials, it will 
not be included as an exhibit to this report); see also FBI interview 
with Janet Reno, U.S. Attorney General, in Washington, DC at 5 (Aug. 2, 
1993) (exhibit 72); FBI interview with Mary Incontro, Deputy Chief, 
Terrorism and Violent Crimes Section, Criminal Division, Department of 
Justice, in Washington, DC at 3-4 (July 22, 1993) (exhibit 77); Edward 
S.G. Dennis, Jr., U.S. Department of Justice, ``Evaluation of the 
Handling of the Branch Davidian Stand-off in Waco, Texas'' (Oct. 8, 
1993) (redacted version) at 57-58.
    \168\ FBI interview with Janet Reno, U.S. Attorney General, in 
Washington, DC at 5 (Aug. 2, 1993) (exhibit 72); FBI interview with 
Webster Hubbell, Associate Attorney General, Department of Justice, in 
Washington, DC at 5 (Aug. 3, 1993) (exhibit 78); telephone interview 
with Carl Stern, former Director, Office of Public Affairs, Department 
of Justice, in Washington, DC (May 11, 2000); interview with Floyd 
Clarke, former FBI Deputy Director, in Washington, DC (May 4, 2000).
    \169\ See e.g., interview with Mark Richard, senior counsel for the 
European Union and International Criminal Matters and former Deputy 
Assistant Attorney General, Department of Justice, in Washington, DC 
(Apr. 20, 2000).
    \170\ ``Waco Investigation--Second Attorney General Briefing Book'' 
at Bates Stamp WWC425-0892-WWC425-2044, undated; Richard Scruggs, U.S. 
Department of Justice, ``Report to the Deputy Attorney General on the 
Events at Waco, Texas, Feb. 28-Apr. 19, 1993,'' (Oct. 8, 1993) 
(unredacted version) at 287-288; see also interview with Floyd Clarke, 
former FBI Deputy Director, in Washington, DC (May 4, 2000); interview 
with Mary Incontro, former Deputy Chief, Terrorism and Violent Crimes 
Section, Criminal Division, Department of Justice, in Washington, DC 
(Apr. 14, 2000).
    \171\ John C. Danforth, Special Counsel, U.S. Department of 
Justice, ``Interim Report to the Deputy Attorney General Concerning the 
1993 Confrontation at the Mt. Carmel Complex, Waco, Texas'' 108-109 
(2000); Richard Scruggs, U.S. Department of Justice, ``Report to the 
Deputy Attorney General on the Events at Waco, Texas, Feb. 28-Apr. 19, 
1993,'' (Oct. 8, 1993) (unredacted version) at 287-289 (``On April 17, 
the Attorney General met in her conference room with Hubbell [and other 
Justice Department and FBI officials] to review the statement she had 
requested the previous day. . . . The AG approved the plan with an 
execution date of Monday, April 19. . . . [On April 18, 1993] The FBI 
provided her with the remainder of the supporting documentation for the 
statement, which Richard subsequently gave to the Attorney General'') 
(footnotes omitted).
    \172\ FBI interview with Janet Reno, U.S. Attorney General, in 
Washington, DC at 5 (Aug. 2, 1993) (exhibit 72) (``She read only the 
chronology, gave the rest a cursory review, and satisfied herself that 
the documentation was there.''); Richard Scruggs, U.S. Department of 
Justice, ``Report to the Deputy Attorney General on the Events at Waco, 
Texas, Feb. 28-Apr. 19, 1993,'' (Oct. 8, 1993) (unredacted version) at 
287, fn. 36. The Attorney General's statement during the 2000 interview 
with committee staff that, in fact, she did review this second briefing 
book is consistent only with the fact that she read the ``chronology.'' 
Transcript of Interview with Janet Reno, U.S. Attorney General, in 
Washington, DC at 85:23-25 (Oct. 5, 2000) (exhibit 74 on file with the 
committee).
---------------------------------------------------------------------------
    Scruggs learned of Attorney General Reno's unexplained 
reversal during the course of his investigation. Richard and 
others, at a minimum, told the investigators of these events 
and Richard, in particular, expressed to them his surprise at 
her change of heart:

        RICHARD related that on Friday, April 16, 1993, he was 
        called to HUBBELL's office where he met with HUBBELL 
        and CARL STERN. HUBBELL advised that the Attorney 
        General had disapproved the FBI plan to end the siege. 
        RICHARD related he was asked by HUBBELL what the 
        reaction of the FBI might be. RICHARD stated he related 
        that the FBI would not be pleased, but would accept it 
        however, may talk in terms of withdrawal. RICHARD 
        related that HUBBELL further asked if RICHARD would 
        like to speak with the Attorney General, but RICHARD 
        advised he had nothing more to tell her then [sic] what 
        she already knew.

           *         *         *         *         *

        HUBBELL stated that he was going to contact Director 
        SESSIONS and shortly thereafter, the Director, [FBI 
        Deputy Director Floyd] CLARKE and [then-FBI Assistant 
        Director for Criminal Investigations Larry] POTTS 
        arrived. RICHARD related that HUBBELL advised of the 
        Attorney General's disapproval of the plan to end the 
        siege and Director SESSIONS acknowledged that he would 
        like to speak to the Attorney General.\173\
---------------------------------------------------------------------------
    \173\ FBI interview with Mark Richard, Deputy Assistant Attorney 
General, Department of Justice, in Washington, DC at 5 (July 15, 1993) 
(exhibit 75).

Scruggs attached no particular significance to this event. 
Dennis, moreover, failed to even mention this reversal and 
discuss its import.\174\
---------------------------------------------------------------------------
    \174\ Richard Scruggs, U.S. Department of Justice, ``Report to the 
Deputy Attorney General on the Events at Waco, Texas, Feb. 28-Apr. 19, 
1993,'' (Oct. 8, 1993) (unredacted version) at 286-287; Edward S.G. 
Dennis, Jr., U.S. Department of Justice, ``Evaluation of the Handling 
of the Branch Davidian Stand-Off in Waco, Texas'' (Oct. 8, 1993) 
(redacted version) at 57-58.
---------------------------------------------------------------------------
    Committee staff questioned several of the April 16, 1993, 
meeting participants with respect to Attorney General Reno's 
decision to disapprove, reconsider and, finally, approve the 
FBI's proposed operations plan.\175\ It seemed curious that, in 
light of her numerous public statements that she considered all 
facts carefully before approving the FBI's proposed operations 
plan, in fact, she disapproved the plan, reconsidered her 
decision on April 16, 1993, and, finally, approved the plan on 
April 17, 1993. Attorney General Reno has yet to account fully 
for this decisionmaking process and the facts that she 
considered during this forty-eight hour period.
---------------------------------------------------------------------------
    \175\ See e.g., Transcript of Interview with Janet Reno, U.S. 
Attorney General, in Washington, DC at 78:13-85:25 (Oct. 5, 2000) 
(exhibit 74 on file with the committee); interview with Mark Richard, 
senior counsel for the European Union and International Criminal 
Matters and former Deputy Assistant Attorney General, Department of 
Justice, in Washington, DC (Apr. 20, 2000); interview with Floyd 
Clarke, former FBI Deputy Director, in Washington, DC (May 4, 2000); 
telephone interview with Carl Stern, former Director, Office of Public 
Affairs, Department of Justice, in Washington, DC (May 11, 2000); 
interview with Larry Potts, former FBI Assistant Director, in 
Washington, DC (May 30, 2000).
---------------------------------------------------------------------------
    Prior to her April 16, 1993, decision to disapprove the 
FBI's proposed operations plan, Attorney General Reno received 
all the information relating to: (1) the tactical situation; 
(2) HRT personnel fatigue; (3) the potential for harm if tear 
gas were employed; (4) the status of water and food supplies 
within the Branch Davidian compound; (5) the safety and well 
being of the children that resided within the compound; and (6) 
the timing of the execution of the plan--the factors that she 
publicly has stated she relied upon to reach her decision.\176\ 
Based upon this information, in fact, she disapproved the FBI's 
proposed operations plan on April 16, 1993. The Attorney 
General did not carefully review all the requested additional 
information from the FBI prior to her later reversal. Attorney 
General Reno has yet to explain what information caused her to 
reconsider and, later, approve the FBI's proposed operations 
plan.\177\
---------------------------------------------------------------------------
    \176\ See generally, FBI interview with Janet Reno, U.S. Attorney 
General, in Washington, DC (Aug. 2, 1993) (exhibit 72); ``WACMUR: Major 
Case #80--Assault on a Federal Officer,'' briefing for the Attorney 
General (Apr. 12, 1993) (exhibit 9). See ``Activities of Federal Law 
Enforcement Agencies Toward the Branch Davidians (Part 3),'' hearings 
before the Subcommittee on Crime of the Committee on the Judiciary and 
the Subcommittee on National Security, International Affairs, and 
Criminal Justice of the Committee on Government Reform and Oversight, 
104th Cong., 357, 357-359, 370-372 (Aug. 1, 1995); see also Transcript 
of Interview with Janet Reno, U.S. Attorney General, in Washington, DC 
at 78:13-79:10 (Oct. 5, 2000) (exhibit 74 on file with the committee).
    \177\ Judiciary Committee Chairman Henry Hyde asked the Attorney 
General in 1995 to explain the basis for this reversal and to disclose 
what Hubbell told her during the 10-15 minutes on Apr. 16, 1993, when 
Hubbell left Sessions, Clarke, Richard and Stern in his office to bring 
Attorney General Reno back to discuss her disapproval with those 
officials. The Attorney General, instead, discussed the information 
that she had learned prior to Apr. 16, 1993--information which led her 
to ``disapprove'' the FBI's proposed operations plan. ``Activities of 
Federal Law Enforcement Agencies Toward the Branch Davidians (Part 
3),'' hearings before the Subcommittee on Crime of the Committee on the 
Judiciary and the Subcommittee on National Security, International 
Affairs, and Criminal Justice of the Committee on Government Reform and 
Oversight, 104th Cong., 357, 370-372 (Aug. 1, 1995).
---------------------------------------------------------------------------
    As stated earlier, the Attorney General, like any senior 
government official, must use discretion with respect to 
decisionmaking. The concurrent duty to account for that 
discretionary decisionmaking authority, however, also exists. 
The Attorney General's failure to disclose fully her reasons 
for reversing her decision is inconsistent with the President's 
directive to make all of the facts public.

  E. April 19, 1993--Seasoned FBI Officials Within Sight of Attorney 
General Reno Failed to Warn Her that the FBI's Actions at Waco Deviated 
               from the Operations Plan that She Approved

    The FBI maintained a Significant Incident Operations Center 
(SIOC) within FBI Headquarters from which senior, Washington, 
DC-based Justice Department and FBI officials were able to send 
and receive communications pertaining to the Waco stand-off. 
The SIOC was the location within FBI Headquarters from which 
Attorney General Reno, Hubbell, Sessions, Clarke, Stern and 
other senior and mid-level Justice Department and FBI officials 
were able to witness the unfolding developments of Waco.\178\
---------------------------------------------------------------------------
    \178\ Even though in 1993 the SIOC was advanced in its ability to 
communicate in a secure fashion with on-site crisis managers, it lacked 
access to real-time, tactical information, such as the tactical radio 
frequencies and forward-looking infrared (FLIR) camera images that were 
available to on-site FBI personnel. Consequently, those within the SIOC 
on Apr. 19, 1993, gathered around several large television screens to 
watch CNN's coverage of the unfolding tragedy.
---------------------------------------------------------------------------
    An understanding of the SIOC's layout is important to 
understanding how the tragic events of April 19, 1993, 
occurred.\179\ The SIOC contained three rooms. In one was a 
large, main room in which mid-level FBI personnel maintained 
communications with on-site crisis personnel and had several 
large television screens. The second, smaller room contained 
technical equipment used to secure communications with on-site 
tactical personnel and was manned at all times by technical 
personnel. The final room was a small conference room used by 
senior Justice Department and FBI personnel. All three rooms 
were connected \180\ and the conference room included three 
glass windows looking into the main room. On April 19, 1993, 
personnel moved freely from one room to another in response to 
requests for information or other tasks.
---------------------------------------------------------------------------
    \179\ Since 1993, the FBI has significantly expanded and improved 
the size and capability of its SIOC.
    \180\ A door normally kept closed, however, separated each room.
---------------------------------------------------------------------------
    FBI Deputy Assistant Director Danny Coulson and Michael 
Kahoe, Chief of the FBI's Violent Crimes and Major Offenders 
Section, sat in the main SIOC room and, in addition to 
traversing the rooms when requested to perform tasks, watched 
the operation unfold on one of the television screens. Attorney 
General Reno, Hubbell, Clarke, Stern, Sessions and others \181\ 
watched the events from within the conference room.
---------------------------------------------------------------------------
    \181\The participants all recalled that many people moved in and 
out of the conference room that morning.
---------------------------------------------------------------------------
    HRT personnel commenced execution of the FBI's proposed 
operations plan at 5:55 a.m.\182\ Approximately 5 hours later, 
Rogers directed an HRT-manned CEV to drive into the walls of 
the compound. Both Kahoe and Coulson expressed surprise at the 
action. Coulson and Kahoe, based upon their personal experience 
and training, participated in the initial drafting and editing 
of the FBI's proposed operations plan and briefed senior 
Justice Department and FBI personnel regarding the stand-
off.\183\ Both men had participated in numerous meetings during 
the previous week during which she was briefed. Both men had 
also communicated extensively with Rogers since February 28, 
1993, on the specifics of the FBI's proposed operations 
plan.\184\ In sum, both men knew the details, intent and 
specific orders of the plan that Attorney General Reno had 
approved.
---------------------------------------------------------------------------
    \182\ Central Standard Time.
    \183\ See FBI interview with Danny Coulson, former Deputy Assistant 
Director and Special Agent in Charge, FBI in Washington, DC at 4-8 
(July 13, 1993) (exhibit 64); FBI interview with E. Michael Kahoe, 
former Section Chief, Violent Crimes and Major Offenders Section, 
Criminal Investigation Division, FBI in Washington, DC at 1-2 (July 14, 
1993) (exhibit 80); Transcript of Coulson Deposition at 11:24-12:4; 
34:22-42:6, Andrade v. Chojnacki (W.D. Tex. Feb. 22, 2000) (No. W-96-
CA-139) (exhibit 64).
    \184\ Id.
---------------------------------------------------------------------------
    When Coulson and Kahoe noticed the actions of the CEV, they 
expressed surprise at the actions. Coulson and Kahoe knew that 
any penetration of the Branch Davidian compound was not 
supposed to have occurred until 2 days later--after attempts to 
force the Davidians out of the compound through tear gas 
insertion had failed. As Coulson stated during his deposition, 
both verbally communicated their surprise:

        Q. Okay, Okay. Where were you located on April 19, 
        1993, within SIOC?

        A. I was in the main SIOC area, but not in the 
        [conference room]

        Q. And who were you in close proximity to? And I 
        realize we're talking about a period of several hours, 
        so----

        A. Mr. Kahoe was out in that main part of the SIOC 
        area. I believe that Mr. Evans was. Mr. Betz, probably 
        Mr. Lovin and Mr. Glasser, and various agents and 
        support staff.

        Q. Now, at some point, during the day on April 19, 
        1993, you were able to see, from the television 
        broadcasts from [the Branch Davidian compound], the 
        tanks penetrating the building, not with a boom and not 
        just at a window, but, actually, you saw CEV-1 go fully 
        into the building on the front side, correct?

           *         *         *         *         *

        A. I don't know if it was CEV-1, CEV-2, C--I have no 
        idea of the nomenclature for----

        Q. All right, sir.

        A. The CEV. I did see a tracked vehicle go, penetrate 
        further into the building that I'd seen them earlier.

        Q. And we've had testimony that there was some 
        surprise, when that happened, within SIOC, and people 
        made comments and that sort of thing. Who were you with 
        or seated next to, for example, when that CEV went into 
        the building, fully penetrated the building?

        A. Mike Kahoe.

        Q. Did you say anything, or did Mr. Kahoe say anything 
        at that time?

        A. Yes. He said something, and I said something.

        Q. What did he say?

        A. ``Holy shit.''

        Q. Did he say anything else other than ``Holy shit?''

        A. That's all I recall.

        Q. All right, sir. What did you say?

        A. I said, ``I hope that's a bad camera angle.''

        Q. Meaning that you hoped it looked worse on television 
        than it was?

           *         *         *         *         *

        A. I had hoped that it didn't penetrate as far as it 
        appeared on television, which is often the case.

           *         *         *         *         *

        Q. All right, sir. Now, do you recall the [FBI's 
        proposed operations plan] contemplating the penetration 
        of the tanks, the body of the tanks fully into the 
        building on the front of [the Branch Davidian compound] 
        on April 19, 1993?

        A. No.

        Q. And that's when Mr. Kahoe said ``Holy shit'' and 
        that's why you said ``I hope that's a bad camera 
        angle?''

           *         *         *         *         *

        A. I can't speak for Mr. Kahoe. I can speak for myself, 
        in that my first reaction is, we're going to lose that 
        tank, that the tank could be disabled and trapped 
        inside the building. That was my very first thing 0when 
        I saw it. And I did--I was surprised to see the 
        activity.

        Q. And it was not something that you had contemplated, 
        based on your understanding of the plan, would occur on 
        April 19, 1993; correct ?

        A. No, I did not contemplate that.\185\
---------------------------------------------------------------------------
    \185\ Transcript of Coulson Deposition at 59:5-60:22; 150:9-151:5, 
Andrade v. Chojnacki (W.D. Tex. Feb. 22, 2000) (No. W-96-CA-139) 
(exhibit 65).

    The statements of surprise from both Coulson and Kahoe--
seasoned FBI officials who participated in the draft of the 
FBI's proposed operations plan is disturbing for two reasons. 
First, the fact that these two men were alarmed by the HRT 
Commander Richard Rogers' orders and the actions of HRT 
personnel in response reflects the fact that Rogers deviated 
from the plan as approved by the Attorney General. Second, the 
fact that these individuals did not communicate their concerns 
to the Attorney General and other senior, Justice Department 
and FBI officials sitting 10 to 20 feet away from them is of 
great concern. In light of the fact that both possessed 
practical experience in situations such as Waco and direct 
knowledge relating to the specific tactics to be employed that 
morning, Attorney General Reno, FBI Director Sessions and other 
senior officials should have been requested that they make 
themselves directly available for consultation during the 
morning of April 19, 1993. At a minimum, they should have felt 
free or been directed to offer their advice to the Attorney 
General and Director Sessions if they had concerns or felt that 
they possessed information necessary for the Attorney General 
to possess. This failure of communication among seasoned 
tactical professionals and the political leadership within the 
Department of Justice and the FBI may lead to future tragedy if 
not corrected.

  F. The Department of Justice's Failure to Conduct a ``Thorough and 
              Vigorous Investigation'' in 1993 as Ordered

    On April 20, 1993, one day after the tragic resolution of 
the stand-off at the Branch Davidian compound, President 
Clinton stated that the Department of Justice would begin a 
``vigorous and thorough investigation'' into the responsibility 
for the deaths at Waco.\186\ Attorney General Reno supported 
this command. As the American people now realize, however, a 
``vigorous and thorough'' investigation was not done by the 
Justice Department. The Justice Department's failure to conduct 
a ``vigorous and thorough investigation'' has resulted in a 
loss of confidence on the part of the public in their 
government and in millions of dollars spent to examine 
legitimate concerns that the entire story about Waco had not 
been disclosed.
---------------------------------------------------------------------------
    \186\ President William Clinton, remarks by the President in 
question and answer session with the press in Washington, DC at 2 (Apr. 
20, 1993) (exhibit 24).
---------------------------------------------------------------------------
1. The Failure to Disclose the Use of Pyrotechnic Tear Gas Grenades
    During the early morning hours of April 19, 1993, HRT 
member David Corderman requested and received approval from 
Rogers to fire pyrotechnic tear gas grenades into the 
underground structure located adjacent to the main Branch 
Davidian compound.\187\ The use of these rounds was neither 
contemplated in the FBI's proposed operations plan nor approved 
by the Attorney General. Rogers granted his permission in 
deviation from his express orders not to use any pyrotechnic 
device. While this deviation is of great concern, it is 
unlikely that the use of these devices caused or exacerbated 
the fire that began around noon on April 19, 1993. The rounds 
were fired almost 4 hours prior to the start of the fire and 
there is no indication that the use of these pyrotechnic rounds 
had any relevance to the fire that began around noon on April 
19, 1993.
---------------------------------------------------------------------------
    \187\ Corderman radioed McGavin who contacted and received 
authorization from Rogers. Interview with David Corderman, Special 
Agent, FBI, in Washington, DC (Nov. 4, 1999); interview with Steven 
McGavin, Special Agent and former Deputy Commander, Hostage Rescue 
Team, FBI, in Washington, DC (June 5, 2000); interview with Richard 
Rogers, former Assistant Special Agent in Charge and Commander, HRT, 
FBI, in Phoenix, AZ (Aug. 9, 2000).
---------------------------------------------------------------------------
    Of more concern, however, is the fact that Federal law 
required that the prosecutors disclose to the criminal 
defendants evidence that would either: (1) tend to prove their 
innocence; (2) challenge the prosecution witnesses' statements 
regarding the start of the April 19, 1993, fire; (3) impeach 
the prosecution witnesses' credibility; or (4) support an 
alternative theory as to how the fire began.\188\
---------------------------------------------------------------------------
    \188\ Brady v. Maryland, 373 U.S. 83 (1963); United States v. 
Augurs, 427 U.S. 97 (1976).
---------------------------------------------------------------------------
    On August 6, 1993, lead criminal Justice Department 
prosecutors Ray and LeRoy Jahn sought and received a criminal 
indictment of several of the surviving Branch Davidians for, 
among other things, conspiracy to murder HRT personnel on April 
19, 1993. In doing so, the Jahns alleged that the surviving 
Branch Davidians had started the April 19, 1993, fire:

        It was a part of the conspiracy that, on April 19, 1993 
        Vernon K. Howell, also known as David Koresh, would 
        give instructions to spread flammable fuel within the 
        [Branch Davidian] Compound upon learning that the FBI 
        was to introduce tear gas into the Compound to end the 
        siege. It was part of the conspiracy that a 
        coconspirator would and did give instructions at about 
        noon on April 19, 1993, to start the fires with [the 
        Branch Davidian Compound].\189\
---------------------------------------------------------------------------
    \189\ Superseding indictment at 6-7, United States v. Schroeder, 
(W.D. Tex. Aug. 6, 1993) (Criminal No. W-93-CR-046) (exhibit 81).

    In order to prove this allegation, the Jahns, Bill Johnston 
and a paralegal named Reneau Longoria interviewed several HRT 
personnel regarding their recollections.\190\
---------------------------------------------------------------------------
    \190\ The Jahns, as co-lead counsel for the criminal trial, were 
responsible for collecting all relevant information regarding the 
events on Apr. 19, 1993, and the conduct of the prosecution of the 
surviving Branch Davidian defendants. Justice Department officials 
relieved Johnston of his responsibilities prior to Apr. 19, 1993, 
although he did assist in the conduct of the criminal trial. As will be 
discussed below, Johnston interviewed Corderman and, like the Jahns, 
recognized the value of Corderman's potential testimony.
---------------------------------------------------------------------------
    Rogers and McGavin told the Jahns on or about November 9, 
1993, that, in addition to employing non-pyrotechnic tear gas 
rounds and tear gas deployed via the M-728 CEVs, HRT personnel 
had sought and obtained authorization to fire pyrotechnic M-651 
rounds during the morning of April 19, 1993. Rogers and McGavin 
described in detail the rounds' characteristics--such as the 
shape and color of the rounds--and the reasons for their 
use.\191\ Rogers, McGavin and other HRT personnel did not 
withhold from the Jahns or the other criminal prosecutors 
information relating to the use of these rounds. In fact, the 
prosecutors found this information pertinent to their efforts 
to prosecute the criminal defendants, but planned to disclose 
the use of these rounds but only if necessary to rebut the 
defendants' defense:
---------------------------------------------------------------------------
    \191\ Exhibits 40-45.

         ``Rebuttle [sic] Smoke from Bunker--came when 
        these guys tried to shoot gas into the Bunker. 
        (Military gas round)--dark grey bubblehead w/green 
        base. 1 military round--2 other ferret. 1st target 
        ferret into Bunker . . . military bounced off also.'' 
        \192\
---------------------------------------------------------------------------
    \192\ Exhibit 46.

    Similarly, Johnston also learned that Corderman's 
employment of ``military'' incendiary rounds on the morning of 
April 19, 1993, could explain issues that might arise during 
the trial: ``one green military (incind) . . . smoke . . . 
[s]hot bunker before compromise . . . then military round. . . 
. [c]an explain smoke.'' \193\
---------------------------------------------------------------------------
    \193\ Handwritten interview notes by Johnston with unidentified HRT 
personnel, date unknown, location unknown at 1 (emphasis added) 
(exhibit 82). Johnston was the subject of much controversy during the 
summer and fall of 2000, after the media reported that Special Counsel 
Danforth intended to seek an indictment of Johnston for, among other 
things, obstruction of justice and perjury. After the trial court 
ordered all Federal agencies to produce all relevant Waco-related 
documents, Johnston found these three pages among his personal notes. 
According to those press accounts, Johnston withheld these documents 
from production and thereafter lied to Special Counsel Danforth's 
investigators about his actions. As will be discussed below, Johnston 
also had a legal and ethical duty to comply with subpoenas issued by 
this committee on Aug. 30, 1999, and Oct. 1, 1999, to produce these 
documents to Congress. He failed to do so.
---------------------------------------------------------------------------
    These prosecutors failed to ascertain whether they had to 
disclose these facts to the criminal trial defendants--although 
they may have been required to do so.\194\ The prosecutors also 
failed to disclose these facts to senior Justice Department 
personnel. The prosecutors may contend that these facts were 
not exculpatory because they were irrelevant to the defense. 
Such an assertion, however, fails to justify their actions. If 
the use of the pyrotechnic rounds on April 19, 1993, was 
irrelevant or otherwise immaterial to the case, then it should 
not have had rebuttal value. If the information had impeachment 
value or was otherwise material to the defendants, Brady, its 
progeny and the 5th Circuit Court of Appeals' interpretation of 
Brady required its disclosure.\195\ As Justice Department 
Associate Deputy Attorney General David Margolis \196\ told 
committee staff, Brady required the Jahns, as co-lead counsel, 
to refer any question with respect to the disclosure of even 
potentially relevant material to the U.S. Attorney for the 
Western District of Texas, William Blagg, or to Washington, DC-
based, Justice Department officials for a Brady analysis. The 
criminal prosecutors failed to do so.
---------------------------------------------------------------------------
    \194\ Brady, Augurs; see also Fed. R. Crim. Pro. 16.
    \195\ e.g., Garrison v. Maggio, 540 F.2d 1271 (5th Cir. 1976); 
United States v. Herberman, 583 F.2d 222 (5th Cir. 1978). The 5th 
Circuit Court of Appeals is the appellate court to which the criminal 
defendants sought review of their convictions. In 1999, Justice 
Department Assistant Attorney General and Criminal Division Chief 
Richard Durbin wrote the U.S. Attorney for the Western District of 
Texas, William Blagg, and recommended that the information within the 
Jahns' possession in 1993--the fact that HRT personnel fired 
pyrotechnic tear gas grenades on Apr. 19, 1993--be disclosed, pursuant 
to Brady to the plaintiffs in the civil litigation. E-mail from Richard 
Durbin, Jr., Assistant Attorney General, Criminal Division, Department 
of Justice, to William Blagg, U.S. Attorney for the Western District of 
Texas, Department of Justice (Sept. 8, 1999) (exhibit 83).
    \196\ Margolis served as the Associate Deputy Attorney General 
under then-Deputy Attorney General Heymann and continues to do so. As 
he explained to committee staff, he possesses substantial experience, 
as a former Organized Crime Task Force Chief and Criminal Division 
Chief, in determining Brady disclosure requirements. Interview with 
David Margolis, Associate Deputy Attorney General, Department of 
Justice, in Washington, DC (Aug. 18, 2000).
---------------------------------------------------------------------------
    In 1999, senior Justice Department officials reviewed Mrs. 
Jahn's 1993 notes and the November 19, 1993, HRT interview 
schedule that revealed the fact that Corderman had attempted to 
penetrate the Branch Davidian's underground bunker with 
pyrotechnic rounds. The officials concluded that the 
information: (1) was potentially Brady material that the Jahns 
and Johnston should have disclosed; and (2) that the Justice 
Department should produce the material to the civil litigation 
plaintiffs.\197\
---------------------------------------------------------------------------
    \197\ See e.g., e-mail from Richard Durbin, Jr., Assistant Attorney 
General, Criminal Division, Department of Justice, to William Blagg, 
U.S. Attorney for the Western District of Texas, Department of Justice, 
et al. (Aug. 8, 1999) (exhibit 84); e-mail from William Blagg, U.S. 
Attorney for the Western District of Texas, Department of Justice, to 
Richard Durbin, Jr., Assistant Attorney General, Criminal Division, 
Department of Justice (Aug. 8, 1999) (exhibit 85); memorandum from 
Richard Durbin, Jr., Assistant Attorney General, Criminal Division, 
Department of Justice, to David Margolis, Associate Deputy Attorney 
General 1 (Sept. 9, 1999) (exhibit 86).
---------------------------------------------------------------------------
    Ray Jahn, as co-lead counsel and a participant in the 
November 1993 briefings with HRT personnel, knew that HRT 
personnel had employed pyrotechnic rounds on April 19, 1993, 
and likewise planned to introduce that fact as rebuttal 
evidence during the criminal trial. Ray Jahn swore to the 
Congress in 1995, however, that, ``. . . the FBI did not fire a 
shot, other than the non-lethal ferret rounds. . . .'' \198\ 
The Jahn's decision to withhold from the defendants and the 
Congress the fact that HRT personnel employed these rounds on 
April 19, 1993, arguably constitutes a significant and material 
ethical lapse.
---------------------------------------------------------------------------
    \198\ ``Activities of Federal Law Enforcement Agencies Toward the 
Branch Davidians (Part I),'' hearing before the Subcommittee on Crime 
of the Committee on the Judiciary and the Subcommittee on National 
Security, International Affairs, and Criminal Justice of the Committee 
on Government Reform and Oversight, 104th Cong., 100, 107 (July 19, 
1995) (statement of Ray Jahn, Assistant U.S. Attorney) (emphasis 
added).
---------------------------------------------------------------------------
    Johnston's recognition of the value of Corderman's 
testimony also made him responsible for asking the Jahns or 
other Justice Department superiors for a Brady analysis. Either 
the Jahns and Johnston asked for such an analysis and were 
rebuffed, or they failed to do so. The Jahns refused to meet 
with committee staff to explain this possible lapse.\199\
---------------------------------------------------------------------------
    \199\ Letter from Andre Hollis, senior counsel, Committee on 
Government Reform, U.S. House of Representatives, to Gerald Goldstein, 
partner, Goldstein, Goldstein and Hilley, and counsel for William 
``Ray'' Jahn and LeRoy Jahn (Sept. 12, 2000) (exhibit 87); letter from 
Gerald Goldstein, partner, Goldstein, Goldstein and Hilley, and counsel 
for William ``Ray'' Jahn and LeRoy Jahn, to Andre Hollis, senior 
counsel, Committee on Government Reform, U.S. House of Representatives 
(Sept. 21, 2000) (exhibit 88).
---------------------------------------------------------------------------
    Additional concerns are raised by the fact that Johnston, 
after sending his August 30, 1999, letter to Attorney General 
Reno, spoke to the press and further accused Washington, DC-
based Justice Department officials of withholding information 
related to Corderman's actions:

        Assistant U.S. Attorney Bill Johnston said he felt 
        compelled to warn Ms. Reno after he was given a 5-year-
        old document that discusses the use of ``military gas'' 
        by the FBI on April 19, 1993. He said he was concerned 
        because the document, a three page set of notes 
        detailing an interview with members of the FBI's 
        hostage rescue team, included handwritten notations 
        suggesting that it be kept from anyone outside the 
        department's legal staff.

        ``There are handwritten notes on the documents 
        discussing whether or not they should be disclosed, 
        and, obviously, they have not been,'' said Mr. 
        Johnston. . . . There was discussion about whether they 
        should be turned over,'' he said. ``Obviously, the 
        decision was made somewhere in Washington that they 
        ought not to be.'' \200\ 
---------------------------------------------------------------------------
    \200\ Lee Hancock, ``Waco Prosecutor Warns Reno Evidence Possibly 
Withheld; Notations About File on Pyrotechnics Use Raised His 
Concerns,'' the Dallas Morning News, Aug. 31, 1999 at 1A (emphasis 
added) (exhibit 89).

    As mentioned above, Johnston searched his own records in 
1999 or 2000 and discovered his Corderman interview notes that 
also described Corderman's employment of the pyrotechnic tear 
gas rounds.\201\ Even after finding these notes, Johnston 
failed to correct his statements. Johnston could have produced 
the notes to the trial court for a private review. Johnston 
should have produced them to the committee in response to its 
August 30, 1999, or October 1, 1999, subpoenas. The committee's 
August 30, 1999, subpoena to Johnston, personally, ordered 
Johnston to produce documents related to the use of pyrotechnic 
tear gas rounds employed by HRT personnel. The request was 
continuing in nature, and, even if he had discovered the 
documents long after the subpoena was issued, he had a legal 
obligation to produce them to the committee. The terms of the 
subpoena received by Johnston were as follows:
---------------------------------------------------------------------------
    \201\ David Vise, ``Waco Whistleblower Faces Indictment,'' the 
Washington Post, Sept. 1, 2000 at A1 (exhibit 90).

        This subpoena is continuing in nature. Any record, 
        document, compilation of data or information, not 
        produced because it has not been located or discovered 
        by the return date shall be provided immediately upon 
        location or discovery subsequent thereto.

           *         *         *         *         *

        Please provide the Committee with all records relating 
        to CS pyrotechnic tear gas rounds employed at the Waco 
        standoff.\202\
---------------------------------------------------------------------------
    \202\ Subpoena duces tecum from the Honorable Dan Burton, chairman, 
Committee on Government Reform, U.S. House of Representatives, to 
William Johnston, Assistant U.S. Attorney, Department of Justice 3 
(Aug. 30, 1999) (emphasis added) (exhibit 91).

There is no ambiguity regarding the terms of this subpoena.
    While Johnston deserves credit for his role in bringing to 
light the use of pyrotechnic devices on April 19, 1993, a 
secret that lasted for 7 years, his record in this matter is a 
mixed one. Had Johnston not taken the initiative, the American 
people might have remained badly misinformed about the entire 
tragedy. In this respect, Johnston performed a public service 
for which he suffered undeserved reprisals from the Department 
of Justice. On the other hand, Johnston's apparent decision to 
withhold his handwritten notes on the subject from Special 
Counsel Danforth and to this committee cannot be overlooked or 
excused.
    As mentioned earlier, Justice Department civil litigation 
lead attorney Marie Hagen asked FBI Assistant General Counsel 
Jacqueline Brown in 1996 to ascertain the basis for Sherrow's 
assertion. Brown told committee staff that, after receiving 
Hickey's memorandum confirming the use of these rounds, she 
communicated these facts, orally or otherwise, to Hagen. Hagen 
disagreed with Brown's assertion and told committee staff that 
she never had such a communication with Brown.\203\
---------------------------------------------------------------------------
    \203\ Interview with Marie Hagen, Trial Attorney, Torts Branch, 
FTCA, Civil Division, Department of Justice, in Washington, DC (Nov. 
23, 1999).
---------------------------------------------------------------------------
    Documents made available to committee staff indicate that 
Brown did in fact share the Hickey memorandum with her 
supervisor, Virginia Buckles, and Hagen. For example, Brown, 
who maintained a daily checklist of action items, recorded on 
February 19, 1996, the fact that she spoke with Hagen and other 
Justice Department officials regarding the Hickey memorandum 
and showed them the document: ``meet w/DOJ re dec[laration] . . 
. Sherrow Dec[laration] memo to M[arie] H[agen].'' \204\ 
Second, Buckles' own memoranda to then-FBI General Counsel 
Howard Shapiro detailing the status of then-ongoing FBI civil 
litigation referenced Buckles' and Brown's involvement in 
assisting Hagen and the Justice Department to clarify the 
Sherrow declaration statements.\205\
---------------------------------------------------------------------------
    \204\ Jacqueline Brown, Assistant General Counsel, Civil Litigation 
Unit, Office of the General Counsel, FBI, Dayplanner task list (Feb. 
19, 1996) (exhibit 92).
    \205\ Matters of interest memorandum from Virginia Buckles, Unit 
Chief, Civil Litigation Unit, Office of the General Counsel, FBI to 
Howard Shapiro, General Counsel, FBI 1-2 (Feb. 12, 1996) (exhibit 93); 
see also matters of interest memorandum from Virginia Buckles, Unit 
Chief, Civil Litigation Unit, Office of the General Counsel, FBI to 
Howard Shapiro, General Counsel, FBI 4-5 (Nov. 12, 1996) (Exhibit 94).
---------------------------------------------------------------------------
    When the use of pyrotechnic tear gas rounds became public 
in 1999, Justice Department attorneys spoke with Brown 
specifically about the statements within the Hickey memorandum. 
Those Justice Department attorneys concluded that Brown had not 
knowingly withheld the Hickey memorandum:

        I spoke to Lyn Brown about the document I found . . ., 
        2/15/96 memo by Robert A. Hickey to attn. of Jacqueline 
        F. Brown. Lynn said that the first she heard of this 
        memo was during her conversation with Greg Parsons, her 
        HRT liaison [sic], which she related to Marie this 
        morning. She had no recollection of having seen the 
        memo. . . . She asked me to fax her a copy, which I 
        did, as she has been trying unsuccessfully to track 
        down a copy. She bristled a bit when I said that 
        finding the memo this late in the day had caused 
        concern over here, in that we have been trying to learn 
        about the accusations of the use of military munitions 
        for several weeks. . . . I tried to defuse the 
        situation by stating that I was not accusing Lynn of 
        having hidden anything (I do believe she's telling the 
        truth when she states that she can't recall having seen 
        the memo before).\206\
---------------------------------------------------------------------------
    \206\ E-mail from James Touhey, Jr., Trial Attorney, Torts Branch, 
FTCA, Civil Division, Department of Justice, to Marie Hagen, Trial 
Attorney, Torts Branch, Civil Division, FTCA, Department of Justice et 
al., (Aug. 19, 1999) (exhibit 50).

    Attorney General Reno also wondered whether Justice 
Department officials had attempted to confirm or deny the 
Sherrow declaration allegations and, if so, how Hagen 
responded. At first, those officials told Reno that Hagen had 
not responded to the Sherrow declaration allegations. Later, 
however, Justice Department officials admitted to the Attorney 
General that Hagen had in fact dismissed the Sherrow 
---------------------------------------------------------------------------
declaration allegations without first discovering the truth:

        At our recent meeting, you asked whether we had 
        responded in any way to Mr. Sherrow's January 17, 1996, 
        declaration in support of the plaintiffs' opposition to 
        the defendants' motion to dismiss in the civil case. 
        While it was indicated to you that we had not responded 
        because the allegations were not germane to the main 
        issues in the case, our exhaustive search of all United 
        States' pleadings after the meeting has resulted in the 
        discovery of many instances where Mr. Sherrow's 
        declaration was mentioned or argument was in reaction 
        to it.\207\
---------------------------------------------------------------------------
    \207\ Memorandum from Donald Remy, Deputy Assistant Attorney 
General, Civil Division, Department of Justice, to Janet Reno, U.S. 
Attorney General (Aug. 30, 1999) (exhibit 95 on file with the 
committee).

    Whether or not Brown in fact told Hagen of the contents of 
Hickey's memorandum, Hagen specifically asked Brown for this 
information.\208\ As the civil litigation lead counsel, Hagen 
had the duty to follow up on her query prior to denying the use 
of these rounds in response to the plaintiff's assertion. 
Instead of simply ignoring the allegation, moreover, Justice 
Department officials informed the Attorney General that Hagen 
had, in fact, attacked the Sherrow Declaration allegations as 
baseless without first asking whether they were true. The 
recklessness of Hagen's conduct cannot be downplayed. The fact 
that she has not been reprimanded as a result of her actions 
similarly remains curious.
---------------------------------------------------------------------------
    \208\ Interview with Jacqueline Brown, Assistant General Counsel, 
Office of the General Counsel, FBI, in Washington, DC (Jan. 7, 2000); 
interview with Marie Hagen, Trial Attorney, Torts Branch, FTCA, Civil 
Division, Department of Justice, in Washington, DC (Nov. 23, 1996); see 
also John C. Danforth, Special Counsel, U.S. Department of Justice, 
``Interim Report to the Deputy Attorney General Concerning the 1993 
Confrontation at the Mt. Carmel Complex, Waco, Texas'' 56 (2000).
---------------------------------------------------------------------------
    Had Hagen acted as required in accordance with her 
responsibilities, the fact that Corderman requested and 
received permission to fire these rounds almost 4 hours prior 
to the start of the fire--and therefore not likely to be 
material to the cause of the fire on April 19, 1993--would have 
been disclosed in 1996. The startling revelations in 1999 
regarding the use of these rounds would have been moot. The 
time-consuming investigations started in 1999 would not have 
been necessary.
2. The ``Negligent'' Scruggs Investigation
    During the afternoon of April 19, 1993, Attorney General 
Reno asked her Special Assistant Richard Scruggs to conduct a 
post-fire investigation.\209\ While Scruggs was an experienced 
Federal prosecutor,\210\ the rushed and incomplete efforts that 
he made to investigate the tragedy caused substantial harm. Had 
Attorney General Reno ordered an investigation similar to that 
conducted by then-Treasury Secretary Lloyd Bentsen--an 
investigation by experienced, outside investigators free of 
arbitrary time limits--it is hard to believe that the facts now 
available would have taken so long to come to public light.
---------------------------------------------------------------------------
    \209\ Interview with Richard Scruggs, Assistant U.S. Attorney, 
Department of Justice, in Miami, FL (Jan. 4, 2000); interview with 
Richard Scruggs, Assistant U.S. Attorney, Department of Justice, in 
Miami, FL (June 22, 2000).
    \210\ Scruggs served as an Assistant U.S. Attorney in Miami where 
he met and worked often with Attorney General Reno who was then a State 
prosecutor for Dade County, FL.
---------------------------------------------------------------------------
    Attorney General Reno asked Scruggs early in April 1993, to 
serve as her assistant at Justice Department Headquarters. When 
Scruggs arrived on April 5, 1993, he had no portfolio of 
specific responsibilities. Attorney General Reno told Scruggs, 
however, to remain uninvolved in the then-ongoing Branch 
Davidian standoff.\211\ Ultimately, the fact that Attorney 
General Reno later placed Scruggs in such a position of 
responsibility in light of her role in the tragedy and his 
personal relationship with her also is puzzling.\212\
---------------------------------------------------------------------------
    \211\ Interview with Richard Scruggs, Assistant U.S. Attorney, 
Department of Justice, in Miami, FL (Jan. 4, 2000).
    \212\ The Department of Justice also assigned two additional young 
attorneys, Steven Zipperstein and Rob Lyon, to assist Scruggs. 
Interview with Steven Zipperstein, former Special Counsel to the 
Assistant Attorney General, Criminal Division, Department of Justice, 
in Los Angeles, CA (June 14, 2000). The FBI assigned a senior FBI 
Inspector, Victor Gonzalez, and two additional Inspectors, Herb Cousins 
and Roderick Beverly, to assist in the investigation. Interview with 
Victor Gonzalez, former Inspector, Inspection Division, FBI, in 
Washington, DC (Apr. 18, 2000); telephone interview with Victor 
Gonzalez, former Inspector, Inspection Division (Apr. 27, 2000); 
interview with Herbert Cousins, former Inspector, Inspection Division, 
FBI, in Washington, DC (May 5, 2000); telephone interview with Roderick 
Beverly, former Inspector, Inspection Division, FBI, (May 18, 2000). 
Cousins told committee staff that he worked with Scruggs and Reno while 
assigned to the FBI's Miami field offices. Interview with Herbert 
Cousins, former Inspector, FBI, in Washington, DC (May 5, 2000). 
Scruggs told committee staff that he may have in fact asked the FBI to 
assign Cousins to the investigation. Interview with Richard Scruggs, 
former Special Assistant to the Attorney General and current Assistant 
U.S. Attorney, Department of Justice, in Miami, FL (Jan. 4, 2000). Both 
Cousins and Beverly lacked substantive experience as FBI Inspectors. 
Cousins and Beverly became Inspectors in March 1993 after attending 
several hours of classes and working on one or two field audits. 
Interview with Herbert Cousins, former Inspector, FBI, in Washington, 
DC (May 5, 2000); telephone interview with Roderick Beverly, former 
Inspector, FBI, (May 18, 2000).
---------------------------------------------------------------------------
    Scruggs began the investigation with the belief that the 
FBI had in fact committed some error on April 19, 1993.\213\ 
Scruggs employed FBI Inspectors and Washington, DC-based agents 
from various field offices to interview witnesses or 
participants in the tragedy.\214\ He also drafted an outline of 
tasks for which one of several FBI Inspectors were assigned the 
responsibility of completion. The tasks included gathering and 
reviewing: (1) all witness statements, including those of 
military personnel involved in the tragedy; (2) copies of all 
video and audio tapes; and (3) all FLIR tapes made or within 
the possession of the FBI in conjunction with the Branch 
Davidian standoff. Scruggs' failure to ensure that these tasks 
were in fact completed is the major evidence of the 
``negligent'' manner by which he oversaw the post-fire 
investigation:
---------------------------------------------------------------------------
    \213\ Interview with Richard Scruggs, former Special Assistant to 
the Attorney General and current Assistant U.S. Attorney, Department of 
Justice, in Miami, FL (June 22, 2000).
    \214\ Id.

---------------------------------------------------------------------------
        Recommended Investigative Steps in Waco Inquiry

        (1) Obtain and correlate all chronologies from all 
        relevant parties and agencies. Check with Assistant 
        Attorney General Mark Richard, FBI Assistant Director 
        Larry Potts, and Waco on-sight [sic] supervisors. 
        Complete chronology needed from first call to FBI to 
        FBI's clearing of crime scene. Chronology should 
        include all activities on site, all meetings and 
        briefings in [Washington, D.C.], etc. [Special Agent] 
        Cousins

        (2) Develop full witness list. . . . Create and 
        maintain a ``Witness file'' for each individual, 
        reports of interviews, grand jury transcripts, etc. 
        This includes all law enforcement, military, civilian, 
        and material witnesses. [Special Agent] Beverly/Schenck

           *         *         *         *         *

        (4) Obtain or create full listing of all physical 
        evidence, including audiotapes (T[itle] III and 
        consensual), videotapes, correspondence, crime scene 
        evidence, etc. obtain copies of all audiotapes, 
        videotapes, transcripts, correspondence, etc. and 
        maintain in evidence files. [Special Agent] 
        Prouty.\215\
---------------------------------------------------------------------------
    \215\ Richard Scruggs, Assistant to the Attorney General, 
Department of Justice, ``Recommended Investigative Steps in Waco 
Inquiry'' 1-2 (May 7, 1993) (exhibit 96).

    The fact that Scruggs decided to employ FBI personnel to 
investigate whether the FBI had caused or exacerbated the April 
19, 1993, tragedy remains puzzling. Indeed, during the early 
stages of his investigation, the Washington Post published an 
article that raised concerns as to whether the FBI's Inspection 
Division could conduct an independent investigation of the 
tragedy.\216\ On May 20, 1993, Scruggs and his colleagues 
discussed this issue and the Washington Post article but, in 
response to arguments from Gonzalez in support of the 
involvement of the Inspection Division, Scruggs decided that 
their involvement would not create an appearance of conflict: 
``Mr. Gonzalez discussed the Washington Post [sic] article re 
this inquiry. The article addresses some questions regarding 
the independence of the Inspection staff in conducting the 
inquiry. Gonzalez gave Scruggs examples of other inquiries that 
FBI [sic] conducted with independence despite controversies.'' 
\217\ The fact that the FBI was a part of the largest domestic 
law enforcement tragedy in American history should have been 
the reason for an outside investigation into the FBI's 
activities.\218\
---------------------------------------------------------------------------
    \216\ The FBI Inspection Division conducts audits of field offices 
and units within FBI Headquarters. Interview with Victor Gonzalez, 
former Inspector, Inspection Division, FBI, in Washington, DC (Apr. 18, 
2000).
    \217\ Handwritten notes of meeting, author unknown, 1 (May 19, 
1993) (exhibit 97).
    \218\ In contrast, the Department of Treasury's employment of the 
Secret Service, with the assistance of that Department's Office of the 
Inspector General, minimized the risk of conflict of interest and, 
therefore, enhanced the substance of its conclusions. Special Counsel 
Danforth, likewise, employed Postal Service investigators, not FBI 
personnel, to conduct its investigation.
---------------------------------------------------------------------------
    To ensure that the Inspectors and agents asked the same 
questions, Scruggs prepared questions and sent them to the FBI 
personnel questions for use during these interviews.\219\ These 
questions included a request as to whether the witness had, if 
they were FBI employees, discharged their weapon. All witnesses 
were asked if they witnessed any FBI employee firing any weapon 
during the 51-day standoff. The questions failed, however, to 
direct FBI personnel to ask about other FBI actions, such as 
the possible use of pyrotechnic tear gas grenades or other 
ammunition. Had Scruggs and his colleagues thoroughly reviewed 
all the documents available to them, they would have found 
references to ``military'' rounds. Scruggs and his colleagues, 
however, failed to do so. The failure of the Scruggs team to 
come to an understanding that pyrotechnic rounds were used was, 
as discovered in 1999, a significant shortcoming.
---------------------------------------------------------------------------
    \219\ Interview questions/instructions at Bates Stamp Nos. WWC429-
2012-WWC429-2022, undated, author unknown (exhibit 98).
---------------------------------------------------------------------------
    Before he and his colleagues completed the fact-finding 
process, Scruggs changed his belief that the FBI was at fault 
for the Waco tragedy.\220\ Scruggs thereafter presumed that the 
FBI had done nothing to create or exacerbate the April 19, 
1993, fire. In doing so, Scruggs did not consider directing the 
FBI Inspectors and agents to ask the necessary additional 
questions, such as whether HRT personnel had employed any 
device capable of starting the April 19, 1993 fire. For 
example, on June 2, 1993, FBI Supervising Special Agent Gail 
Seavey interviewed FBI Special Agent and former HRT member 
Charles Riley \221\ regarding his involvement in the Branch 
Davidian standoff. Seavey wrote that, on April 19, 1993, Riley 
witnessed gunfire from the Sierra One position commanded by 
Horiuchi.\222\ Riley did not review this statement prior to its 
final draft. Seavey, moreover, failed to ask follow-up 
questions regarding this stunning statement, such as whether 
the gunfire might have, in fact, been directed at Sierra One or 
whether any other HRT personnel likewise noticed this gunfire. 
Seavey transmitted the statement to FBI Headquarters.
---------------------------------------------------------------------------
    \220\ Interview with Richard Scruggs, Assistant U.S. Attorney, 
Department of Justice, in Miami, FL (Jan. 4, 2000).
    \221\ Riley was called to Waco to assist his former colleagues on 
HRT. Before Apr. 19, 1993, Riley served as a sniper/observer at the 
Sierra Two and Three positions. On Apr. 19, 1993, Riley served as an 
observer at the Sierra Three sniper position, approximately 180 yards 
from the Branch Davidian compound. The civil litigation plaintiffs 
named Mr. Horiuchi as a defendant in the case as a result of what 
Seavey wrote.
    \222\ FBI telephone interview with Charles Riley, Special Agent, 
FBI at 1 (June 2, 1993) (exhibit 17).
---------------------------------------------------------------------------
    Similarly, on June 9, 1993, FBI Special Agent and aircraft 
pilot Wayne Smith told an FBI Inspector working with Scruggs 
that he overheard FBI personnel radio Rogers and ask for his 
permission to employ ``military'' tear gas rounds. Had Scruggs 
performed even a cursory review of Smith's statement, he would 
have, or should have, known that HRT personnel fired non-ferret 
pyrotechnic tear gas rounds--an issue worthy of investigation 
and disclosure:

        Regarding radio transmissions heard on April 19, 1993, 
        [Special Agent] Smith advised that there was a high 
        volume of HRT traffic and Sniper [Tactical Operations 
        Center] instructions regarding requests for the 
        insertion of gas by ground units. [Special Agent] Smith 
        recalls one conversation, relative to the utilization 
        of some sort of military round to be used on a concrete 
        bunker[.] * * * \223\
---------------------------------------------------------------------------
    \223\ FBI interview with R. Wayne Smith, Special Agent, FBI in 
Richmond, VA at 5 (June 9, 1993) (exhibit 39).

    It is surprising that this statement went unnoticed and 
that Scruggs' investigators failed to ask Smith what he meant 
by ``military'' rounds. If Smith could not answer the question, 
one would expect investigators to interview--or, in all 
likelihood re-interviewed--Rogers or Jamar and asked whether 
the ``military'' rounds to which Smith referred were ferret 
rounds. A minimal investigatory effort would have led to the 
timely disclosure that HRT personnel employed these pyrotechnic 
rounds.
    Scruggs and his colleagues also interviewed the senior 
Justice Department and FBI officials who attended the April 14, 
1993, briefing for Attorney General Reno.\224\ She stated that 
she relied upon the statements of Schoomaker, the Army Colonel 
and a Dr. Harry Salem, an Army civilian tear gas expert, to 
satisfy her concerns regarding the introduction of tear gas 
into the Branch Davidian compound on April 19, 1993. In 
addition, an Army major stationed at the Pentagon attended the 
briefing and took notes of the conversations. Hubbell, 
furthermore, stated in response to questions during his 
interview that the Army representatives commented extensively 
to Attorney General Reno on the FBI's plan to introduce tear 
gas into the compound:
---------------------------------------------------------------------------
    \224\ Richard Scruggs, U.S. Department of Justice, ``Report to the 
Deputy Attorney General on the Events at Waco, Texas, Feb. 28-Apr. 19, 
1993,'' (Oct. 8, 1993) (unredacted version) at 266-270.

        The military representatives stated that the FBI plan 
        to introduce tear gas into the compound was reasonable 
        and practical. The only aspect of the plan that the 
        military would do differently concerned the timing of 
        the gas insertion.

           *         *         *         *         *

        Hubbell recalls [that] the military representatives 
        indicated [that] they believed [that] the FBI plan as 
        presented would work and that after the gas was 
        inserted people in the [Branch Davidian compound] would 
        come out.\225\
---------------------------------------------------------------------------
    \225\ FBI interview with Webster Hubbell, Associate Attorney 
General, Department of Justice, in Washington, DC, 3 (Sept. 9, 1993) 
(exhibit 78). Hubbell was the only person to make such statements that, 
if believed, would indicate a violation of the posse comitatus 
proscriptions. His statements to the Scruggs report investigators were 
not challenged then or during the subsequent investigation. Scruggs' 
colleagues also failed to corroborate Hubbell's statements by 
interviewing Schoomaker, the Colonel, the Major or Dr. Salem. No other 
attendee made similar statements. Records that documented that meeting 
likewise contradict Hubbell's statement. Hubbell refused to cooperate 
in the committee's investigation and be interviewed by its staff. 
Letter from John Nields, Jr., partner, Howrey, Simon, Arnold & White, 
and counsel for former Associate Attorney General Webster Hubbell, to 
James Wilson, chief counsel, Committee on Government Reform, U.S. House 
of Representatives (July 26, 2000) (exhibit 79).

    Even though Scruggs and his colleagues knew that a 
``vigorous and thorough investigation'' required that they 
collect statements from ``all law enforcement, military, 
civilian, and material witnesses''--especially those of 
individuals upon whom Attorney General Reno so greatly relied--
no Justice Department or FBI investigator contacted any 
military representative to interview them as to their 
recollection of the meeting. Scruggs likewise failed to collect 
contemporaneous notes of that meeting made by the Army Colonel, 
the Army Major and Dr. Salem.\226\ Had they done so, they would 
have discovered that the Army officers who attended the April 
14, 1993, meeting had a far different recollection of events.
---------------------------------------------------------------------------
    \226\ As will be discussed below, Scruggs and his colleagues failed 
to interview the Apr. 14, 1993, meeting military participants and the 
special operations personnel who traveled to Waco to observe and assist 
the FBI with equipment. This failure, and the resulting rumors about 
the actions of special operations personnel during the 51 day standoff, 
are additional examples of harm caused by the failure to conduct a 
thorough investigation.
---------------------------------------------------------------------------
    Scruggs and his colleagues collected over 900 witness 
statements during the course of their efforts. Surprisingly, 
however, they failed to review these statements for potential 
follow up investigation, or, even worse, reviewed the documents 
but failed to realize their importance. For example, Scruggs, 
Zipperstein, Cousins, Beverly and Gonzalez \227\ all told 
committee staff that they were certain that someone on their 
team interviewed and recorded statements from the April 14, 
1993, Army attendees. No statements exist, however and, when 
challenged, they had no explanation for their omissions.
---------------------------------------------------------------------------
    \227\ The Department of Justice refused to make its Office of 
Professional Responsibility Assistant Counsel Robert Lyon available for 
interview with committee staff because, as its representatives 
contended, Lyon served as a line attorney and, to do so, would violate 
the Justice Department's long-standing policy of making line attorneys 
available for congressional investigations. This argument lacks merit. 
Scruggs returned to Miami on or about Dec. 10, 1995, where he resumed 
his service as an Assistant U.S. Attorney. The Department of Justice 
made Scruggs available for two interviews with committee staff. It also 
made Hagen, Brown and other Justice Department attorneys available for 
interview. Special Counsel Danforth's investigators interviewed all of 
the attorneys. In any case, Justice Department documents make clear 
that Reno possesses the authority to make line attorneys available for 
congressional questioning in limited situations. See ``Talking Points 
for the Attorney General--Production of Line Prosecutors,'' author 
unknown (July 13, 1995) (exhibit 99). The Justice Department also 
failed to make the Jahns available for an interview by committee staff 
and, instead, referred the committee to their attorneys. The Jahns, 
through their attorney, refused to cooperate. Letter from Andre Hollis, 
senior counsel, Committee on Government Reform, U.S. House of 
Representatives, to Gerald Goldstein, partner, Goldstein, Goldstein and 
Hilley, and counsel for William ``Ray'' Jahn and LeRoy Jahn (Sept. 12, 
2000) (exhibit 87); letter from Gerald Goldstein, partner, Goldstein, 
Goldstein and Hilley, and counsel for William ``Ray'' Jahn and LeRoy 
Jahn, to Andre Hollis, senior counsel, Committee on Government Reform, 
U.S. House of Representatives (Sept. 21, 2000) (exhibit 88). In light 
of President Clinton's and Attorney General Reno's numerous public 
statements that the Justice Department would ``fully cooperate'' with 
the ``all Congressional inquiries,'' these refusals to cooperate 
further damage the Department and Reno's credibility with the American 
people and the Congress. In contrast, the committee received full 
cooperation from the FBI and, in particular, from: (1) the FBI Civil 
Discovery Review Unit, ably led by Unit Chief Paul Cignoli; (2) FBI 
Office of Public and Congressional Affairs Supervisory Special Agent 
Ann Todd; and (3) former Special Counsel to the Assistant Director and 
current FBI Office of Public and Congressional Affairs Section Chief 
Eleni Kalisch.
---------------------------------------------------------------------------
    Scruggs would have learned or should have realized from 
even a cursory review of, for example, Riley's witness 
statement, that evidence contradicting the FBI and Attorney 
General Reno's statements that ``no FBI agent fired their 
weapon on April 19, 1993'' might exist. Had Scruggs or his 
colleagues reviewed the document, they could have further 
questioned Riley and resolved the issue. In fact, Riley was not 
contacted until November 1996, when the FBI's attorney, 
Jacqueline Brown, contacted him. The civil litigation 
plaintiffs also asserted in the response to the motion for 
summary judgment that Riley's witness statement created a 
material fact in dispute since it purported to record his 
recollection of witnessing gunfire from the Sierra One 
position. Once contacted, Riley offered a supplemental 
statement stating that: (1) he had witnessed gunfire directed 
towards the Sierra One position, not from Sierra One; and (2) 
that Seavey had mis-recorded his statement.\228\ Again, had 
this error been identified in 1993, the correction could have 
been made in a timely fashion, included in Scruggs' 1993 Report 
and deemed a non-issue by the American people, the civil 
litigation trial court, Special Counsel Danforth and the 
Congress.
---------------------------------------------------------------------------
    \228\ FBI telephone interview with Charles Riley, Special Agent, 
FBI (Nov. 19, 1996) (exhibit 22); John C. Danforth, Special Counsel, 
U.S. Department of Justice, ``Interim Report to the Deputy Attorney 
General Concerning the 1993 Confrontation at the Mt. Carmel Complex, 
Waco, Texas'' 19, fn. 22 (2000).
---------------------------------------------------------------------------
    Even more astounding, however, is the fact that Scruggs 
failed to interview HRT Commander Richard Rogers personally 
regarding the implementation of the FBI's proposed operations 
plan. FBI Inspectors, as part of the FBI's standard operating 
procedure, interview personnel when a shooting occurs. They 
interviewed Rogers on April 21, 1993, and, again as a follow-
up, on June 7, 1993. It appears astounding, in hindsight, that 
Scruggs, as the lead Justice Department attorney investigating 
the events leading up to and including April 19, 1993, did not 
speak with Rogers, who: (1) was the HRT commander and the 
primary tactical advisor to Jamar; (2) selected the Army 
officers who briefed Attorney General Reno on April 14, 1993; 
and (3) was responsible for the creation and execution of the 
FBI's proposed operations plan.\229\ Had Scruggs interviewed 
Rogers regarding these issues, he would have learned, as 
committee staff learned, that Rogers granted Corderman 
permission to employ the pyrotechnic tear gas grenades because 
he believed that Attorney General Reno had not proscribed the 
use of those rounds. In addition, Scruggs would have learned 
that active duty Army special operations personnel were present 
inside the outer, State law enforcement-maintained perimeter on 
April 19, 1993, and that HRT personnel possessed high explosive 
grenades in case the Branch Davidians located within their 
compound attempted to overrun FBI positions. All of these facts 
surfaced in 1999 and led to committee and Special Counsel 
Danforth's investigations.
---------------------------------------------------------------------------
    \229\ Rogers told committee staff that he never spoke with Scruggs 
until at least 1995. Interview with Richard Rogers, former Assistant 
Special Agent in Charge and Commander, HRT, FBI, in Phoenix, AZ (Aug. 
9, 2000).
---------------------------------------------------------------------------
    Finally, had Scruggs asked HRT members, particularly Rogers 
and Corderman, to detail what they did and when, they could 
have, at least, learned of the use of the pyrotechnic tear gas 
grenades. If Scruggs had collected all the audio and videotapes 
as he contemplated, he would have learned of Corderman's 
request for permission to fire the pyrotechnic rounds. In light 
of Scruggs' statement that ``the gas delivery systems the FBI 
used were completely non-incendiary,'' \230\ it is clear that a 
``vigorous and thorough investigation'' did not take place in 
1993.
---------------------------------------------------------------------------
    \230\ Richard Scruggs, U.S. Department of Justice, ``Report to the 
Deputy Attorney General on the Events at Waco, Texas, Feb. 28-Apr. 19, 
1993,'' 324 (Oct. 8, 1993) (unredacted version) (Scruggs agrees with 
the arson team conclusion that the FBI's methods of gas delivery was 
``non-incendiary''); John C. Danforth, Special Counsel, U.S. Department 
of Justice, ``Interim Report to the Deputy Attorney General Concerning 
the 1993 Confrontation at the Mt. Carmel Complex, Waco, Texas'' 48 
(2000).
---------------------------------------------------------------------------
    In addition to its failure to conduct a thorough 
investigation, the Scruggs team also encountered pressure from 
senior Justice Department officials to conclude the 
investigation as quickly as possible. Deputy Attorney General 
Philip Heymann told committee staff that he wanted Scruggs to 
complete the investigation in order to release their findings 
at the same time as the Department of Treasury released its 
report regarding the actions of Bureau of Alcohol, Tobacco and 
Firearms.\231\ To presume that an investigation relating to a 
51 day standoff that resulted in the deaths of 80 men, women 
and children could be conducted, concluded and published at the 
same time as the BATF investigation--an investigation that 
concerned the actions of a horrible, but a less fatal prelude, 
is incredible.
---------------------------------------------------------------------------
    \231\ Interview with Professor Philip Heymann, former Deputy 
Attorney General, Department of Justice, and current professor of law, 
Harvard Law School, in Boston, MA (July 19, 2000).
---------------------------------------------------------------------------
    In addition to the appearance of impropriety that this type 
of pressure creates, it is fair to question whether Scruggs and 
his colleagues might have in fact conducted a more thorough 
investigation had they not been pressured to finish the Scruggs 
report in a politically expedient fashion.\232\ Scruggs, former 
Special Counsel to Assistant Attorney General Steve 
Zipperstein, Heymann and others told committee staff that 
Heymann often questioned Scruggs regarding when the 
investigation would be concluded.\233\ Attorney General Reno's 
sensitivity to these appearances of impropriety was 
obvious.\234\ The Attorney General did not assign to Heymann 
oversight responsibility for Scruggs' efforts. Scruggs did not 
report his interim findings to the Attorney General, since she 
was a subject of the investigation. In order to avoid 
additional appearances of impropriety, moreover, Scruggs should 
not have reported to the Attorney General's subordinates. The 
fact that Heymann was allowed to pressure Scruggs to complete 
the investigation remains disturbing.
---------------------------------------------------------------------------
    \232\ To their credit, Scruggs and his colleagues did resist 
perceived pressure from senior Justice Department officials including 
David Margolis, Associate Deputy Attorney General, Department of 
Justice and Carl Stern, Director, Office of Public Affairs, Department 
of Justice to amend their draft findings to reflect more favorably upon 
the Attorney General. See e.g., handwritten notes of September 20, 
1993, meeting (author unknown) 1 (exhibit 100) (``[Steve Zipperstein] 
objects to [this] meeting, [because] [Mark] Richard + [Carl] Stern are 
precipient witnesses. . . . Objects again--that kind of input is not 
supposed to occur in this process.'').
    \233\ Interview with Professor Philip Heymann, former Deputy 
Attorney General, Department of Justice, and current professor of law, 
Harvard Law School, in Boston, MA (July 19, 2000); interview with 
Richard Scruggs, Assistant U.S. Attorney, Department of Justice, in 
Miami, FL (Jan. 4, 2000); interview with Steven Zipperstein, former 
Special Counsel to the Assistant Attorney General, Criminal Division, 
Department of Justice, in Los Angeles, CA (June 14, 2000).
    \234\ When she and other Justice Department officials concluded 
that an outside, analytical review of Scruggs' findings was necessary, 
Attorney General Reno considered requesting former Attorney General 
Benjamin Civiletti to conduct the review. According to Heymann, 
however, she decided against Civiletti because Civiletti had written to 
her to express his support of her in the aftermath of the fire. 
Interview with Professor Philip Heymann, former Deputy Attorney 
General, Department of Justice, and current professor of law, Harvard 
Law School, in Boston, MA (July 19, 2000).
---------------------------------------------------------------------------

                   G. Conclusions and Recommendations

    The committee does not suggest that, when tragedy strikes a 
law enforcement effort to resolve a crisis, senior Justice 
Department officials are always wrong or inexperienced. In this 
case, however, the Department of Justice's failure to exercise 
the level of oversight that is expected during crises such as 
Waco is of great concern. It is clear that no one within the 
Department of Justice or the FBI's leadership knew prior to 
April 19, 1993, that HRT was prepared to use pyrotechnic and 
high explosive ammunition against the Branch Davidians. 
Attorney General Reno and other officials within the Department 
of Justice were concerned about the risk of fire and repeatedly 
asked Rogers to minimize this risk. Rogers was aware of these 
concerns but authorized use of pyrotechnic devices. Rogers was 
duty-bound to notify his superiors of these plans so that 
Attorney General Reno might fully understand the FBI's proposed 
operations plan and, based upon that full understanding, grant 
her approval. Had Rogers fulfilled his responsibility, it is 
doubtful that Attorney General Reno would have approved their 
use without specific, express limitations. It was also 
incumbent upon Rogers to correct the Attorney General when she 
testified to the Congress in 1995 that HRT personnel used no 
device which could have caused or exacerbated the April 19, 
1993, fire. Justice Department officials directed Rogers to sit 
behind Attorney General Reno during the hearings in order to 
ensure that she relied upon accurate information and that she 
testified truthfully. Rogers' claims that: (1) he did not hear 
Attorney General Reno testify inaccurately; and (2) even if he 
had heard the Attorney General make the statement, in his mind 
the statement was technically correct because he had believed 
that the underground bunker was separate from the main Branch 
Davidian compound, may or may not be true. The fact, however, 
that Rogers failed to communicate this important distinction to 
Attorney General Reno or the Congress, in 1993 or 1995, is 
troublesome.
    Justice Department attorneys William ``Ray'' Jahn, his 
wife, LeRoy Jahn and Bill Johnston, the criminal trial 
prosecutors, learned in November 1993 that HRT personnel fired 
pyrotechnic tear gas rounds on April 19, 1993, but failed to 
disclose this fact to their Justice Department superiors, to 
the criminal trial defendants or to Marie Hagen. The Jahns and 
Johnston recognized the importance of this information but 
decided to disclose it during the criminal trials only if 
necessary. The Jahns and Johnston's failure to disclose this 
information was irresponsible, possibly unethical, an 
additional reason for this committee's investigation, and a 
reason for the appointment of the Special Counsel. Ray Jahn, 
furthermore, told the Congress and the American people that, 
``[o]n the 19th of April, though repeatedly fired upon by the 
occupants of [the Branch Davidian compound], the FBI did not 
fire a shot, other than non-lethal ferret rounds which carried 
the CS gas.'' \235\ Jahn cannot now state that his testimony 
was merely negligent when he and other members of the criminal 
prosecution team knew in 1993 that Corderman had requested and 
received authorization to fire pyrotechnic tear gas grenades.
---------------------------------------------------------------------------
    \235\ ``Activities of Federal Law Enforcement Agencies Toward the 
Branch Davidians (Part I),'' hearing before the Subcommittee on Crime 
of the Committee on the Judiciary and the Subcommittee on National 
Security, International Affairs, and Criminal Justice of the Committee 
on Government Reform and Oversight, 104th Cong., 100, 107 (July 19, 
1995) (statement of Ray Jahn, Assistant U.S. Attorney) (emphasis 
added).
---------------------------------------------------------------------------
    Likewise, Johnston also learned of Corderman's actions and 
likewise did not ask for a Brady analysis. Johnston, 
furthermore, requested and received the August 30, 1999, 
subpoena that commanded the production of all documents to this 
committee. In addition to the legal requirements of the 
committee's September 8, 1999, subpoena to the Department of 
Justice, to which Johnston also had to comply, the committee 
provided Johnston ample opportunity to produce the documents 
that he later found and withheld from Special Counsel Danforth 
and this committee. His actions, while mitigated by his 
assistance to and cooperation with the committee's 
investigation in other respects, should be thoroughly 
investigated.
    In response to a request from Hagen, FBI Assistant General 
Counsel Jacqueline Brown likewise learned in February 1996, 
that HRT personnel fired pyrotechnic tear gas grenades on April 
19, 1993. Unlike the Jahns, however, Brown did not recognize 
the importance of this information. It is probable, however, 
that Brown did discuss the information that she received with 
her FBI supervisor and Hagen. In any case, Hagen, as the 
Justice Department's lead civil litigation attorney had a duty, 
once she asked Brown to research the issue, to ensure that 
Brown provided her with the results of her research. Hagen is 
responsible for the belated disclosure of this information to 
the civil trial court and the plaintiffs.
    Similarly, it is also clear that Scruggs failed to conduct 
a ``vigorous and thorough investigation.'' Beset by time 
limitations enforced by then-Deputy Attorney General Philip 
Heymann, Scruggs and his colleagues failed to ask basic 
questions, review evidence and conduct an agnostic 
investigation. Information relating to the actions of HRT 
personnel, consequently, was not disclosed. While the belated 
disclosure of this information does not lead to the conclusion 
that law enforcement or military personnel were responsible for 
the April 19, 1993, fire, it did cause substantial damage to 
the trust that the American people had in, and should expect 
from, Federal law enforcement. The investigations conducted by 
Special Counsel Danforth and this committee, therefore, became 
necessary.
    The disclosure of these facts by this committee and Special 
Counsel Danforth's investigation could have been avoided had 
the Department of Justice conducted a thorough investigation in 
1993, as had been promised. Had Attorney General Reno appointed 
an outside, objective investigator, as the Department of 
Treasury had and as became necessary in 1999, the American 
people could have learned the complete truth behind the 
tragedy. Public confidence in the Department of Justice and 
Federal law enforcement would have been greater and, perhaps, 
61 percent of the American people would not have had the 
grounds to believe that Federal law enforcement murdered over 
80 Branch Davidian men, women and children.\236\
---------------------------------------------------------------------------
    \236\ John C. Danforth, Special Counsel, U.S. Department of 
Justice, ``Interim Report to the Deputy Attorney General Concerning the 
1993 Confrontation at the Mt. Carmel Complex, Waco, Texas'' i (2000).
---------------------------------------------------------------------------
    If similar tragedies occur in the future, the committee 
recommends that future Attorneys General recognize the need for 
objective, independent investigations to determine the complete 
truth regarding the event. The conduct of an investigation that 
is not thorough and supervised by an independent analyst 
creates the real possibility of negligence.

                   VI. Department of Defense Support

                            A. Introduction

    On August 2, 1996, subcommittees of the Committee on 
Government Reform and Oversight and the Committee on the 
Judiciary published a report on their joint investigation into 
the activities of Federal law enforcement agencies toward the 
Branch Davidians at Waco, TX.\237\ The subcommittee report 
opens its discussion concerning the military's involvement as 
follows:
---------------------------------------------------------------------------
    \237\ See H. Rept. No. 104-749 (1996).

        U.S. military involvement is one of the least explored 
        and most misunderstood elements of the events that took 
        place near Waco, Texas in 1993. The Treasury Department 
        report dedicated only 3\1/2\ of 220 pages to explaining 
        the military's involvement, and the Department of 
        Defense and National Guard Bureau have only recently 
        taken an interest in addressing some of the military 
        issues that Waco raised.\238\
---------------------------------------------------------------------------
    \238\ Id. at 3.

    The committee's current inquiry involved a review of 
recently subpoenaed Department of Defense (DOD) documents, as 
well as reports and other information associated with the 
subcommittees' investigation in 1995. Committee staff also 
interviewed, where necessary, military personnel and other 
officials who were involved with the Waco operation to ensure 
an enhanced understanding of the involvement of the military at 
the time.\239\ The committee found four areas worthy of comment 
regarding DOD's involvement with assistance to the BATF and FBI 
during the Waco incident, and afterward when the American 
people looked to the White House, the Department of Justice, 
Treasury and DOD for an accounting of what happened at Waco, 
and why.
---------------------------------------------------------------------------
    \239\ The term ``military'' as used within this report includes 
units, personnel and equipment of the Active and Reserve Components, to 
inlcude the National Guard, unless otherwise indicated.
---------------------------------------------------------------------------
    The committee investigated whether any actions of the 
military during the Waco incident would constitute a law 
enforcement use of the military prohibited by the Posse 
Comitatus Act.\240\ The documents and information reviewed 
during the committee's inquiry support the same finding of the 
subcommittees in 1996 that no violation of the Posse Comitatus 
Act occurred as a result of the military's support to the BATF 
and the FBI at Waco. However, information developed during the 
committee's current inquiry revealed that the Attorney General 
and other senior Federal law enforcement officials unwittingly 
attempted to involve two senior active duty Army officers in 
activity that would have violated the Posse Comitatus Act.\241\ 
This occurred on April 14, 1993, when an Army general officer 
and a colonel were asked to review and comment upon the 
tactical details discussed within the FBI's proposed operations 
plan to insert tear gas into the Branch Davidian compound. The 
committee found that it was the active vigilance of these 
officers that precluded a violation of the Posse Comitatus Act 
when they declined to critique the details of the FBI's 
proposed operations plan.
---------------------------------------------------------------------------
    \240\ See 18 U.S.C. Sec. 1385 (1988), as amended.
    \241\ See 10 U.S.C Sec. 101(d)(1), codified as amended by Public 
Law 102-484. The term ``active duty'' means full-time duty in the 
active military service of the United States. This does not include 
full-time National Guard duty. See also 32 U.S.C. Sec. 101(12).
---------------------------------------------------------------------------
    Throughout their investigation, the subcommittees 
endeavored to elicit as much information as possible regarding 
the scope, equipment, expenditures and justification for the 
military support provided to the BATF and the FBI. Although the 
subcommittees developed a significant amount of information, 
they identified a need for more detailed accounting of the 
military equipment and material associated with DOD's support; 
the legal authority for providing the assistance; and, what 
costs were incurred by the American people.\242\ To address 
these concerns, the subcommittees asked the General Accounting 
Office, the investigative arm of Congress, to audit the 
military assistance provided to both the BATF and FBI, as well 
as investigate the military counter-drug program through which 
DOD's support was provided. Upon review of the GAO inquiry, the 
committee discovered two notable omissions in the information 
DOD provided to the GAO. The discrepancies concerned a failure 
to account fully for military aerial reconnaissance support 
provided to the BATF, and an unsatisfactory resolution of 
questions surrounding the status of 250 high explosive 40-mm 
grenades that Army documents indicate were issued to the FBI at 
Ft. Hood, TX, during the Waco incident. Although the committee 
found no evidence that high explosive grenades were used at 
Waco, the status of these munitions has not been formally 
resolved by DOD.
---------------------------------------------------------------------------
    \242\ See H. Rept. No. 104-749 (1996) at 53-55.
---------------------------------------------------------------------------
    The Justice and Defense Departments have had a continuing 
duty over the last 7 years to clarify the public record with a 
comprehensive and accurate accounting regarding the military's 
involvement at Waco. Unfortunately, the Justice Department's 
efforts have fallen short. Appendix B of the Scruggs report was 
intended to be a comprehensive accounting of the military 
personnel and equipment that supported the 51-day standoff at 
the Branch Davidian compound.\243\ However, appendix B 
significantly understated the number of military personnel who 
supported the FBI during the standoff. The Scruggs report 
indicated that a total of 28 military personnel supported the 
FBI throughout the standoff, when in actuality, the number was 
approximately 330 active duty and National Guard personnel who 
intermittently provided assistance both on and off-site. The 
regular duties of off-site military personnel were not 
exclusively Waco-related.
---------------------------------------------------------------------------
    \243\ See Richard Scruggs, U.S. Department of Justice, ``Report to 
the Deputy Attorney General on the Events at Waco Texas, Feb. 28-Apr. 
19, 1993,'' (Oct. 8, 1993) (unredacted version).
---------------------------------------------------------------------------
    Although President Clinton directed the Departments of 
Justice and Treasury to conduct an examination and assessment 
of what occurred involving their personnel at Waco, DOD was not 
similarly tasked to assess its involvement.\244\ The failure of 
DOD to conduct its own internal review and prepare a 
comprehensive report over the last 7 years has complicated 
congressional inquiries and contributed to simmering skepticism 
among the American people about the military's involvement at 
Waco. A DOD assessment of support it provided would have been 
of immeasurable assistance to both the Departments of Justice 
and Treasury in their efforts to provide an accurate and 
complete accounting of what occurred at Waco involving their 
personnel.
---------------------------------------------------------------------------
    \244\ See President William Clinton, remarks by the President in 
question and answer session with the press in Washington, DC (Apr. 20, 
1993) at 2 (exhibit 24).
---------------------------------------------------------------------------
    The actions and decisions of officials from three cabinet-
level departments--Justice, Treasury and Defense--were 
inextricably intertwined with the tragic events at Waco. All 
three are accountable to the American people for their 
involvement and the American people should have heard from each 
of them. DOD's failure of judgment in not conducting an 
assessment and preparing a report of its involvement 
concurrently with the Justice Department and Treasury 
investigations in 1993, has contributed to a persistent public 
belief over the last 7 years that DOD engaged in wrongful 
actions at Waco.

   B. Was the Posse Comitatus Act Violated in Providing DOD Support?

    During the subcommittee hearings in 1995, the actions of 
military personnel and the use of military equipment at Waco 
was of significant interest. Documents provided to the 
subcommittees by DOD and the testimony of witnesses described 
the military actions in support of both the ATF and FBI. During 
its current inquiry, the committee reviewed the 1995 
subcommittee material, as well as documents produced by DOD in 
response to the committee's current subpoena. Committee staff 
also conducted interviews of military personnel who were 
involved with the Waco incident.
    The committee found no evidence of any violation of the 
Posse Comitatus Act by the military regarding the assistance 
provided to the BATF and FBI during the Waco incident. The 
committee's inquiry, however, revealed that the active 
vigilance of two senior active duty Army officers precluded a 
Posse Comitatus Act violation from occurring on April 14, 1993, 
when these officers declined to actively critique the details 
of the FBI's tactical operations plan for inserting tear gas 
into the Branch Davidian compound.
1. Overview of the Posse Comitatus Act
    Historically, there has been a generally accepted principle 
that in the United States the military should not be involved 
in civilian law enforcement.\245\ The clear separation between 
civilian and military authority is embodied in the Declaration 
of Independence and the U.S. Constitution. Congress codified 
the principle by enacting the Posse Comitatus Act in 1878 in 
response to the improper use of military troops in the South 
during the post-Civil War reconstruction period. The statute 
provides:
---------------------------------------------------------------------------
    \245\ See H. Rept. No. 104-749 (1996) at 30-34. A more detailed 
discussion of the Posse Comitatus Act and its application to events at 
Waco is contained within the subcommittees' report. The discussion here 
is a distillation of that overview and focuses on its application to 
the participation by two senior Army officers in a meeting with 
Attorney General Reno on Apr. 14, 1993.

        Whosoever, except in cases and under circumstances 
        expressly authorized by the Constitution or Act of 
        Congress, willfully uses any part of the Army or Air 
        Forces as a posse comitatus or otherwise to execute the 
        laws shall 0be fined not more than $10,000 or 
        imprisoned not more than 2 years, or both.\246\
---------------------------------------------------------------------------
    \246\ 18 U.S.C. Sec. 1385 (1988), as amended. A post-Waco amendment 
changed the penalty portion to read ``shall be fined under this title 
or imprisoned not more than two years, or both.'' Violent Crime Control 
and Law Enforcement Act of 1994 Sec. 330016(L), Public Law 103-322, 108 
Stat. 2147.

    No one has ever been prosecuted for violating the Posse 
Comitatus Act.\247\ Due in part to a creeping acceptance of 
military involvement in law enforcement action, the Posse 
Comitatus Act has been invoked very rarely.\248\ Until the 
criminal cases arising from the 1973 uprising at Wounded 
Knee,\249\ civilian law enforcement apparently relied upon 
military support without fear of recourse.\250\
---------------------------------------------------------------------------
    \247\ Clarence I. Meeks II, ``Illegal Law Enforcement: Aiding Civil 
Authorities in Violation of the Posse Comitatus Act,'' 70 Mil. L. Rev. 
83, 128 (1975).
    \248\ Id.
    \249\ In 1973, a dissident Indian group forcibly took control of 
the Wounded Knee Village on Pine Ridge Indian Reservation, South 
Dakota. In support of Federal law enforcement agents, military 
personnel provided an array of assistance, closely resembling the 
military assistance provided to Federal law enforcement agents during 
the Waco incident.
    \250\ Peter M. Sanchez, ``The `Drug War': The U.S. Military and 
National Security,'' 34 A.F.L. Rev. 1, 109 (1991).
---------------------------------------------------------------------------
    Two active duty regular Army colonels were present at 
Wounded Knee as DOD observers; however, these military 
personnel also provided ``advice, urging, and counsel . . . to 
Department of Justice personnel on the subjects of 
negotiations, logistics, and rules of engagement.'' \251\ Four 
criminal cases resulted from the Wounded Knee incident. In 
each, defendants raised similar challenges to the military's 
involvement.\252\ The diverse rulings on these challenges 
raised questions about the legality of much of the military 
assistance being broadly and regularly provided to law 
enforcement agencies at the time.
---------------------------------------------------------------------------
    \251\ Clarence I. Meeks II, ``Illegal Law Enforcement: Aiding Civil 
Authorities in Violation of the Posse Comitatus Act,'' 70 Mil. L. Rev. 
121 (1975). Similarly, during the Waco incident, two senior Army 
officers were present when the Attorney General was briefed on the 
FBI's plan to end the standoff and were asked to review the details of 
the plan. They discussed other general matters, but declined to comment 
on tactical details within the plan citing Posse Comitatus Act 
concerns.
    \252\ United States v. Jaramillo, 380 F. Supp. 1375 (D.Neb. 1975), 
appeal dismissed, 510 F.2d. 808 (8th Cir. 1975); United States v. 
Banks, 383 F. Supp. 368 (D.S.D. 1974); United States v. Red Feather, 
392 F. Supp. 916 (D.S.D. 1975); United States v. McArthur, 419 F. Supp. 
186 (D.N.D. 1976), aff'd sub nom., United States v. Casper, 541 F.2d 
1275 (8th Cir. 1976), cert. denied, 430 U.S. 970 (1977).
---------------------------------------------------------------------------
    In order to resolve questions raised by the Wounded Knee 
cases, and at the urging of DOD and the Justice Department, 
Congress enacted a number of general exceptions to the Posse 
Comitatus Act in 1981.\253\ In general, the 1981 exceptions 
authorized the military to make available to civilian law 
enforcement agencies information collected during military 
operations, training and advice, the use of military equipment 
and facilities, and the use of some DOD personnel.\254\ 
However, direct involvement in activities that are 
fundamentally law enforcement functions such as search, 
seizure, and arrest are prohibited.\255\
---------------------------------------------------------------------------
    \253\ See 10 U.S.C. Sec. 371-377; Defense Department Authorization 
Act of 1982 Sec. 905, Public Law No. 97-86, 95 Stat. 1114, as amended 
by National Defense Authorization Act Fiscal Year 1989 Sec. 1004, 
Public Law No. 100-456, 102 Stat. 2043 (codified as amended at 10 
U.S.C. Sec. 377).
    \254\ 10 U.S.C., ch. 18.
    \255\ Id.
---------------------------------------------------------------------------
    The National Guard is not subject to the same legal 
restrictions placed upon active duty and reserve military 
personnel with regard to civilian law enforcement. \256\ Having 
evolved from the State militia concept, the National Guard 
holds the unique position as both a State and a national 
military force. When acting as members of the State militia, 
National Guardsmen are under the command and control of their 
Governor, who is their Commander-in-Chief. When acting as a 
part of the national military force, the President of the 
United States is their Commander-in-Chief.
---------------------------------------------------------------------------
    \256\ Steven B. Rich, ``The National Guard, Drug Interdiction and 
Counterdrug Activities, and Posse Comitatus: the Meanings and 
Implications of `in Federal Service,' '' 35 Army Law. 1 (1994). Active 
and Reserve military personnel are both subject to the proscriptions 
found in the Posse Comitatus Act, while the act only applies to 
National Guard personnel when they have been called ``into federal 
service.''
---------------------------------------------------------------------------
    The National Guard has three different ``statuses'' under 
current law. The first two are a Title 32 status (also called 
``state active duty'' status), and a pure ``State status.'' 
\257\ Under either a Title 32 status or pure State status, the 
Posse Comitatus Act does not apply. The third status is called 
``Title 10 status,'' or ``Federal active duty'' status. Title 
10 status occurs when the President or Congress takes 
affirmative action to ``federalize'' a National Guard unit, as 
in the case of a natural disaster or civil disturbance. Only in 
a federalized status are National Guard personnel under the 
command and control of the President of the United States, and 
subject to the restrictions under the Posse Comitatus Act. The 
Texas and Alabama National Guards were in a Title 32 status at 
the time they provided support and assistance to the BATF and 
FBI during the Waco incident.\258\
---------------------------------------------------------------------------
    \257\ In pure State status, no Federal funding occurs.
    \258\ See ``Investigation into the Activities of Federal Law 
Enforcement Agencies Toward the Branch Davidians,'' Committee on 
Government Reform and Oversight in Conjunction with the Committee on 
the Judiciary, House of Representatives, H. Rept. No. 104-749 (1996) at 
52.
---------------------------------------------------------------------------
2. FBI Briefing to the Attorney General on April 14, 1993, Regarding 
        the Proposed FBI Operations Plan
            a. Involvement of DOD Representatives
    On April 14, 1993, Attorney General Reno, Associate 
Attorney General Hubbell, FBI Director Sessions and several 
other Justice Department and FBI officials met at FBI 
headquarters. Also in attendance were four DOD officials: then-
Brigadier General Peter Schoomaker, Assistant Division 
Commander, First Cavalry Division at Ft. Hood, TX; an Army 
colonel assigned within the U.S. Special Operations Command; 
then-Major Scott Wells, assigned to the Pentagon; and Dr. Harry 
Salem, Chief Scientist for Life Sciences, U.S. Army Chemical 
Biological Defense Command, Aberdeen Proving Ground, MD. Each 
of these DOD representatives was interviewed by committee staff 
during this inquiry.\259\
---------------------------------------------------------------------------
    \259\ Interview with General Peter Schoomaker, U.S. Army, in McDill 
AFB, Florida (Jan. 13, 2000). At the time of the interview with 
committee staff, General Schoomaker was on active duty as the Commander 
of the U.S. Special Operations Command, McDill AFB, Florida; interview 
with an Army general currently assigned to a unit within USSOCOM, in 
McDill AFB, Florida (Jan. 13, 2000). At the time of the Waco incident, 
this Army general was a colonel assigned to a unit within USSOCOM, and 
he is referred to as ``an Army colonel'' throughout this report; 
interview with LTC Scott Wells, U.S. Army, (Ret.) in Washington, DC 
(July 14, 2000). LTC Wells was a major at the time of the Waco 
incident; interview with Dr. Harry Salem, Department of the Army, in 
Aberdeen Proving Grounds, Maryland (July 26, 2000).
---------------------------------------------------------------------------
    On or about April 13, 1993, Assistant to the President and 
Deputy Counsel to the President Bruce Lindsey advised Associate 
Attorney General Webster Hubbell that the military should be 
consulted regarding the FBI's proposed operations plan. Lindsey 
indicated that President Clinton would want to know that the 
military had an opportunity to review it.\260\ Lindsey 
indicated to Hubbell that President Clinton mentioned that the 
military had some involvement in the Ft. Chafee incident in 
Arkansas while he was Governor. At the meeting, Hubbell 
indicated to Lindsey that plans were under way to meet with the 
military.\261\ Hubbell reported these developments to the 
Attorney General. The FBI was tasked to have military 
representatives review the plan and attend the meeting with 
Attorney General Reno scheduled for the next day.\262\ Based 
upon his professional interaction and personal regard for them, 
Rogers contacted Brigadier General Schoomaker and the Army 
colonel on April 13, 1993 and asked them to attend.\263\ DOD 
approved the FBI's request for the attendance of both senior 
Army officers.\264\
---------------------------------------------------------------------------
    \260\ See Richard Scruggs, U.S. Department of Justice, ``Report to 
the Deputy Attorney General on the Events at Waco, Texas, Feb. 28-Apr. 
19, 1993,'' appendix B at 258 (Oct. 8, 1993) (unredacted version).
    \261\ Id. at 279. Attorney General Reno received her first briefing 
on the proposed FBI operations plan on Monday, Apr. 12, 1993. At that 
meeting Associate Attorney General Hubbell suggested that they consult 
with the military about the effects of gas.
    \262\ The committee found no evidence that Justice Department or 
FBI personnel consulted with the military regarding the HRT operations 
plan prior to Apr. 14, 1993.
    \263\ Interview with General Peter Schoomaker, U.S. Army, in McDill 
AFB, Florida (Jan. 13, 2000); interview with an Army general currently 
assigned to a unit within USSOCOM, at McDill AFB, Florida (Jan. 13, 
2000).
    \264\ Department of Defense document production Z0033619(U), 
Z0041496(U), Z0035388(U), Z0036114(U), Z0041511(U)-Z004512(U), 
Z0041508(U)-Z0041509(U), Z0041506(U)-Z0041507(U), Z0041510(U), 
Z0030706(U)-Z0030709(U) (exhibit 101).
---------------------------------------------------------------------------
    The FBI flew Brigadier General Schoomaker and the Army 
colonel to Washington, DC, on FBI aircraft on the morning of 
April 14, 1993. On the aircraft, HRT commander Rogers briefed 
them regarding the proposed operations plan and provided them a 
copy for their review. Brigadier General Schoomaker recalled 
Rogers asking him for his opinion of the plan, and he indicated 
it was not appropriate for him to comment; he ``couldn't grade 
your paper.'' \265\ Both officers believed Rogers wanted their 
support for the plan. Brigadier General Schoomaker indicated 
that the FBI viewed the Army colonel and him as experts and 
wanted them to review the CS plan and offer their opinion and 
support. The Army colonel indicated that Rogers never asked him 
directly for his opinion concerning the plan. However, the Army 
colonel indicated that it seemed understood that Rogers wanted 
``feedback and input'' from Brigadier General Schoomaker and 
himself. The Army colonel further indicated that his superiors 
told him not to support or oppose the FBI's plan and not to 
give tactical advice.\266\
---------------------------------------------------------------------------
    \265\ Interview with General Peter Schoomaker, U.S. Army, in McDill 
AFB, Florida (Jan. 13, 2000).
    \266\ Id.
---------------------------------------------------------------------------
    During the afternoon briefing, Attorney General Reno asked 
why they ``would not grade the plan.'' Brigadier General 
Schoomaker responded that the Posse Comitatus Act prevented him 
from doing so, as well as the fundamental differences in 
purpose and function between the military and law enforcement. 
Brigadier General Schoomaker further indicated that Attorney 
General Reno appeared to have a good grasp of the plan being 
briefed, and did not appear too surprised at their refusal to 
``grade the paper.'' \267\ The Army colonel recalled that at 
some point during the discussion of the operations plan, 
Hubbell asked: ``[I]s this legal?'' The Army colonel did not 
answer when Hubbell looked at him, but stated during his 
interview with committee staff that his private thought at the 
time was: ``[t]hat's your job, not mine.'' \268\
---------------------------------------------------------------------------
    \267\ Id.
    \268\ Interview with an Army general currently assigned to a unit 
within USSOCOM, in McDill AFB, Florida (Jan. 13, 2000).
---------------------------------------------------------------------------
    According to the Army colonel, both officers were in an 
``uncomfortable'' situation.\269\ They had high regard for HRT 
commander Rogers and the HRT. However, they did not like the 
plan because of its incremental approach to inserting tear gas, 
but were not in a position to say so. They both indicated it 
was a law enforcement plan, not a military operation. The Army 
colonel indicated that Brigadier General Schoomaker made it 
very clear they were not going to assess the plan one way or 
the other.\270\
---------------------------------------------------------------------------
    \269\ Id.
    \270\ Id.
---------------------------------------------------------------------------
    Brigadier General Schoomaker and the Army colonel told 
committee staff that when they left the April 14, 1993, 
meeting, they were convinced the FBI would never execute the 
proposed operations plan as it was briefed at the meeting. The 
Army colonel stated he believed the Attorney General ``didn't 
buy the plan being proposed by the FBI.'' \271\ Brigadier 
General Schoomaker stated that Attorney General Reno made no 
decision regarding the plan at the meeting, but his impression 
from the meeting was that no one thought it was a smart way to 
proceed.\272\ He went on to state that he was astonished when 
he saw the fire on TV on April 19, 1993. According to Brigadier 
General Schoomaker, he wondered why anyone would make the 
decision to follow through with the FBI's proposed operations 
plan as it had been described at the meeting.\273\
---------------------------------------------------------------------------
    \271\ Id.
    \272\ Interview with General Peter Schoomaker, U.S. Army, in McDill 
AFB, Florida (Jan.13, 2000).
    \273\ Id.
---------------------------------------------------------------------------
    Brigadier General Schoomaker told committee staff that his 
thought at the time of the meeting with Attorney General Reno 
was that HRT should have put a fence around the compound and 
waited until the Branch Davidians came out from hunger, but he 
did not state this thought openly at the meeting. He further 
stated that he was surprised that, given the efforts taken by 
the FBI to have the Army colonel and himself present for the 
meeting, there was little consultation with them.\274\
---------------------------------------------------------------------------
    \274\ Id.
---------------------------------------------------------------------------
    During the meeting, Brigadier General Schoomaker and the 
Army colonel offered general comments about the possible need 
for HRT personnel, at some point, to be pulled away from the 
compound for rest and refresher training. They also indicated 
that in a military operation, they would concentrate their 
action on ``taking out the leadership'' of a target 
organization. They also discussed their experiences with tear 
gas, as well as their knowledge of potential effects and 
reactions of people once exposed to tear gas.\275\
---------------------------------------------------------------------------
    \275\ Interview with General Peter Schoomaker, U.S. Army, in McDill 
AFB, Flordia (Jan. 13, 2000); interview with an Army general currently 
assigned to a unit within USSOCOM, in McDill AFB, Florida (Jan. 13, 
2000).
---------------------------------------------------------------------------
    On May 13, 1993, approximately 1 month after the meeting 
with Attorney General Reno, the Army colonel prepared a 
memorandum for his commander providing a synopsis of what was 
discussed at the meeting.\276\ Brigadier General Schoomaker and 
the Army colonel reviewed the memorandum during their 
interviews. Brigadier General Schoomaker indicated that to the 
best of his recollection, it was a ``pretty accurate'' synopsis 
of the meeting. The Army colonel indicated in his memorandum 
that he did not believe the FBI or the Attorney General was 
trying to force them to support or defend the plan. He further 
stated it was his belief that they simply wanted any 
observations that Brigadier General Schoomaker and he felt 
comfortable in providing.\277\ Both officers indicated they 
were never contacted or interviewed by anyone associated with 
the Department of Justice's after-action inquiry. Neither 
officer has ever been asked to provide a written statement 
regarding their involvement with any Waco events, except for 
the memorandum prepared by the Army colonel for his 
commander.\278\
---------------------------------------------------------------------------
    \276\ See memorandum from Commander, [Army unit], to Commander, 
U.S. Army Special Operations Command, (May 13, 1993) Department of 
Defense document production Z0040342-0040345 (exhibit 102).
    \277\ Id at 4.
    \278\ Interview with General Peter Schoomaker, U.S. Army, in McDill 
AFB, Florida (Jan. 13, 2000); interview with an Army general currently 
assigned to a unit within USSOCOM, in McDill AFB, Florida (Jan. 13, 
2000).
---------------------------------------------------------------------------
    During his interview with committee staff, Major Wells 
indicated his present memory was unclear regarding what exactly 
occurred or was said at the meeting with Attorney General Reno. 
He did, however, vaguely recall that one of the senior Army 
officers indicated something to the effect that they ``could 
not grade their paper'' which, to him, referred to the FBI's 
proposed operations plan.\279\
---------------------------------------------------------------------------
    \279\ Interview with LTC Scott Wells, U.S. Army, in Washington, DC 
(July 14, 2000). On Apr. 14, 1993, LTC Wells was a major.
---------------------------------------------------------------------------
    Major Wells did not know he was to attend the meeting on 
April 14, 1993, as a DOD representative until that morning. He 
was not informed who else was going to attend. Major Wells 
stated that if it was known that the Attorney General and other 
senior Justice Department officials would be attending, an 
officer more senior than he would have been sent. Major Wells 
did know the topic for the meeting related to Waco, but did not 
know that Brigadier General Schoomaker, the senior Army 
colonel, or Dr. Salem would be there. In sum, he had no idea 
what was to occur or what his role would be other than to 
attend and take notes. Major Wells did not offer any comments 
at the meeting and was not asked any questions.\280\ He 
prepared very sketchy handwritten notes as the meeting 
progressed. Major Wells reviewed his notes with committee staff 
during his interview.\281\
---------------------------------------------------------------------------
    \280\ Id.
    \281\ See Department of Defense document production Z0003945-
0003949 (exhibit 103). These undated notes were prepared by Major Wells 
during the Apr. 14, 1993, meeting with Attorney General Reno.
---------------------------------------------------------------------------
    Dr. Salem was present at the April 14, 1993, meeting as an 
expert on the effects of CS tear gas. As with Major Wells, his 
recollection of what individuals said at the meeting was 
unclear at best. After Dr. Salem attended the meeting, he 
returned to his command and prepared notes to assist him when 
he discussed details of the meeting with his superiors. In 
addition, he discussed the meeting in an e-mail message, and 
prepared an information paper on CS Riot Control Agent.\282\
---------------------------------------------------------------------------
    \282\ See Department of Defense document production Z0013112-
0013115, Z0023557-Z0023558 (exhibit 104). These documents were prepared 
by Dr. Salem shortly after the Apr. 14, 1993, meeting with Attorney 
General Reno.
---------------------------------------------------------------------------
            b. Military Representatives Never Endorsed the FBI 
                    Operations Plan
    Since April 19, 1993, there have been a number of 
statements by or attributed to the Attorney General regarding 
the involvement and comments of Brigadier General Schoomaker 
and the Army colonel during the April 14, 1993, meeting. These 
comments and remarks give the clear impression that according 
to Attorney General Reno, Brigadier General Schoomaker and the 
Army colonel endorsed or otherwise offered their approval of 
the FBI's proposed operations plan on April 14, 1993. Both 
officers stated to committee staff during their interviews that 
they made it clear to HRT Commander Rogers on the plane 
traveling to Washington, DC, and to Attorney General Reno at 
the meeting, that they could not offer any such endorsement. 
Examples of misleading statements concerning the involvement of 
these two officers include the following:
 Remarks by President Clinton on April 20, 1993
    On April 20, 1993, President Clinton spoke to the American 
people regarding the tragic ending of the standoff at the 
Branch Davidian compound. During his remarks he discussed the 
questions he asked Attorney General Reno during their telephone 
conversation on April 18, 1993, in which she discussed her 
decision to approve the FBI proposed operations plan. President 
Clinton remarked:

        The third question I asked was, has the military been 
        consulted? As soon as the initial tragedy came to light 
        in Waco, that's the first thing I asked to be done, 
        because it was obvious this was not a typical law 
        enforcement situation. Military people were then 
        brought in, helped to analyze the situation and some of 
        the problems that were presented by it. And so I asked 
        if the military had been consulted. The Attorney 
        General said that they had, and that they were in basic 
        agreement that there was only one minor tactical 
        difference of opinion between the FBI and the 
        military--something that both sides thought was not of 
        overwhelming significance.\283\
---------------------------------------------------------------------------
    \283\ President William Jefferson Clinton, remarks by the President 
in a question and answer session with the press, Washington, DC, at 3 
(Apr. 20, 1993) (exhibit 24).
---------------------------------------------------------------------------
 The Attorney General's Testimony Before Congress
    The Attorney General testified before the House Committee 
on the Judiciary on April 28, 1993, regarding the Waco incident 
and the tragic ending of the standoff. During her testimony she 
commented upon the remarks made by Brigadier General Schoomaker 
and the Army colonel. Attorney General Reno testified as 
follows:

        But we continued to deliberate; and in the course of 
        our deliberations, we met with Gen. Peter Schoomaker 
        and [Army colonel], former and present commanders of 
        [Army unit], respectively, the Army's equivalent to the 
        FBI's HRT, to review the plan. Their comments were 
        instructive.

        While indicating the plan appeared to be sound, one 
        suggestion was that rather than an incremental approach 
        for the use of the gas as proposed by the FBI, gas 
        should be inserted into all portions of the compound 
        simultaneously. I preferred the FBI approach which 
        called for a gradual increase in pressure over time. It 
        seemed to me that that would be best to ensure the 
        safety of those inside.

           *         *         *         *         *

        We had explored other possible alternatives. As I 
        suggested to you, the FBI, before I had been sworn in, 
        and then I concurred totally with them, rejected any 
        direct assault on the compound as being far too 
        dangerous for the agents and for those inside the 
        compound.

        We asked to meet with military officials. The general 
        who was the former commander of [Army unit] and the 
        colonel presently commanding the [Army unit] came to 
        Washington and met with us and FBI officials after they 
        reviewed the plan and we consulted very carefully about 
        that.

        One of the points raised for the first time by the 
        [Army unit] commander and previous commander was that 
        the HRT had to be at a constant state of readiness and 
        that to keep them on a scene for the length of time 
        that these agents had been on the scene began to raise 
        questions that they could not remain there much longer 
        and still be in the state of readiness which should be 
        expected of an HRT team.

        I asked, ``Well, isn't there another team,'' and was 
        advised no, except for [Army unit], and then I believe 
        the Navy has a force for marine disasters. We explored 
        the provisions of posse comitatus and became convinced 
        that you could not use the [Army unit] in a civil 
        situation.

           *         *         *         *         *

        Q. Once the decision was made to force the issue, then 
        it became a situation of how best to accomplish that 
        tactically. It appears from your testimony that there 
        was uniform consensus that tear gas would be an 
        effective means of doing that. I note in your testimony 
        that [Army unit] advisors, General Schoomaker and [Army 
        colonel], suggested it be introduced in overwhelming 
        amounts quickly. Rapidly. I would presume to not only 
        upset physically but to, just the shock value of such 
        an event.

        That recommendation was rejected for a more phased 
        approach, which started at 6 a.m. in the morning until 
        12 noon when the fire began giving 6 hours in which 
        plans could have been hatched to incinerate the 
        compound or prearranged plans could have been put into 
        effect.

        In retrospect, and not in the sense to assess 
        responsibility but to look forward, could you elaborate 
        on the advice you received from [Army unit] and why 
        that advice was not followed for a more comprehensive 
        approach?

        A.G. Reno. We discussed it at length, and both the head 
        of the Hostage Rescue Team was there, the FBI, and it 
        was a good and frank discussion with the [Army unit] on 
        what would be the appropriate way to proceed.

        The more measured approach, again, went to the fact 
        that we hoped they would not panic and would come out 
        in an orderly way. That is what precipitated our 
        decision. Ironically, once they fired, the FBI did not 
        return the fire but the FBI then began to insert the 
        gas almost immediately and so in effect, [Army unit's] 
        recommendation was carried out.\284\
---------------------------------------------------------------------------
    \284\ ``Events Surrounding the Branch Davidian Cult Standoff in 
Waco, Texas,'' hearings before the House Committee on the Judiciary, 
103d Cong., (1993) at 15-16, 19, 64.
---------------------------------------------------------------------------
 The Attorney General's 60 Minute Interview
    On May 12, 1995, Attorney General Reno participated in a 
``60 Minutes'' interview with Leslie Stahl. During the 
interview, Stahl questioned Attorney General Reno regarding 
what factor finally enabled her to make the decision to approve 
the FBI's proposed operations plan:

        Q. Now key question. What did they tell you that 
        finally tipped the scales so that you said, OK, let's 
        do the tear gas?

        A.G. Reno. I can't say there was one particular point 
        that finally tipped it. I think it was probably 
        Saturday afternoon, April the 17th, which is the day I 
        finally gave the go-ahead. And as of Friday night I 
        didn't feel comfortable enough with proceeding. But I 
        think it was the culmination of all the factors, that 
        the situation in the compound was deteriorating, that 
        we were concerned about people in the compound and the 
        fact that he could do what he did at any time and we 
        would be in the less favorable position to control it. 
        That the HR? I was influenced by the fact that I had 
        met with the United [----]

        Q. Did you say HRI? I'm sorry, who was influenced, I 
        didn't understand what you said?

        A.G. Reno. I'm sorry.

        Q. OK, Go ahead, I'm sorry.

        A.G. Reno. I was influenced by the fact that I had had 
        the opportunity to meet with the two military 
        commanders who had commanded the HRT forces for the 
        military.

        Q. Oh, hostage rescue team?

        A.G. Reno. Yes. They were concerned as they reviewed 
        our plan, they said it was an excellent plan but they 
        were concerned that the HRT team after having been on 
        the scene for 51 days was getting so exhausted that it 
        was not going to be effective and that that was 
        creating a dangerous situation[.] \285\
---------------------------------------------------------------------------
    \285\ Leslie Stahl, ``60 Minutes'' interview with Janet Reno, U.S. 
Attorney General and Leslie Stahl, at 4 (May 12, 1995).
---------------------------------------------------------------------------
 Attorney General Reno's Interview with Members and Staff of 
        the Committee on Government Reform on October 5, 2000
    On October 5, 2000, committee staff interviewed Attorney 
General Reno regarding, among other issues, her actions and 
decisions concerning the Waco matter:

        Q. It is 263 of the Scruggs Report. It says, I asked 
        that the military be consulted. Attorney General Reno 
        stated the military had been consulted and that they 
        were in basic agreement with the FBI recommendation. 
        She explained that there was a minor technical 
        difference of opinion, but both the FBI and the 
        military agreed that it was not of overwhelming 
        significance. Is this, to the best of your knowledge, a 
        correct statement?

           *         *         *         *         *

        A.G. Reno. I wouldn't have called it a technical [----
        ].

        Q. That actually was going to be my next question. What 
        is that which was referred to as the minor technical 
        difference of opinion?

        A.G. Reno. The difference of opinion was whether, as I 
        recall, they were fired on. The military indicated that 
        it would insert tear gas throughout the building and 
        the Bureau wanted to do it in a more measured way.

        Q. Okay. Shortly after the Waco tragedy on May 12, 
        1995, you appeared with Leslie Stahl on 60 Minutes and 
        during that interview Ms. Stahl asked about your final 
        decision to approve the FBI plan to proceed. And if we 
        could, let's provide a copy of this.

           *         *         *         *         *

        The question is did the military commanders indicate to 
        you that the FBI's plan was excellent?

        A.G. Reno. That was my impression.

        Q. What did they say to you about the plan to the 
        extent you recall?

        A.G. Reno. My remembrance--and this was--I need the--
        here it is. The best information I have, and I will 
        check to see if there are others, actually of what was 
        said at the time from Hubbell's 302 of August the 9th, 
        1993: The military representatives stated the plan to 
        introduce tear gas into the compound was reasonable and 
        practical. The only aspect of the plan that the 
        military would do differently concerned the timing of 
        the gas insertion.

        Q. Was there any reticence on behalf of the military 
        personnel present to provide commentary on the plan?

        A.G. Reno. I don't recall any reticence, but none was 
        expressed to me as I remember.

        Q. Do you recall any comment to the effect that they 
        could not grade the paper?

        A.G. Reno. They couldn't grade the paper in terms of it 
        being a law enforcement initiative as opposed to a law 
        enforcement initiative as opposed to a military 
        initiative. In a military initiative issues with 
        respect to loss of life and the use of force would be a 
        different situation.

        Q. Do you recall that comment being made?

        A.G. Reno. I don't recall the ``grade your paper'' 
        comment, but I recall the fact that whether they--and I 
        recall it and we'd have to double-check. My sense was 
        that they thought it was a reasonable and practical 
        plan, but they couldn't be the judge and nobody was 
        asking them to be the judge of a law enforcement 
        initiative where rules of engagement would apply that 
        would be different than the military.

        Q. We have--through the interviews that we have 
        conducted we have been told that the General that was 
        present told you that neither he nor the Army colonel 
        could approve or disapprove or offer you any opinion 
        about the plan thus there appears to be a slight 
        divergence.

        A.G. Reno. I don't think so because they couldn't 
        approve the plan. It was going to be me.

           *         *         *         *         *

        Q. Thank you very much. They did indicate to you though 
        that they were not able to offer an opinion about the 
        plan? Not just an approval or disapproval of the plan, 
        but an opinion.

        A.G. Reno. I think they could not offer an opinion 
        about the plan from the law enforcement perspective.

        Q. But that leads to a divergence between your 
        indication that they thought it was an excellent plan--
        I mean, if you are telling the 60 Minutes individual [  
          ]

        A.G. Reno. My impression, after this passage of time, 
        is based on what I see here and that statement is that 
        they made clear that they couldn't approve a plan that 
        was a law enforcement plan as opposed to a military 
        plan that provided for the insertion of gas in a 
        gradual way, even if they were fired upon. As I 
        indicated to you, they said that if they were fired 
        upon, they would go right back at them and fully gas. 
        And I think that was clear.\286\
---------------------------------------------------------------------------
    \286\ Preliminary Transcript of Interview with Janet Reno, U.S. 
Attorney General, in Washington, DC at 96:5-101:4 (Oct. 5, 2000) (on 
file with the committee).
---------------------------------------------------------------------------
            c. The Statements of the Attorney General and the President 
                    Stand in Stark Contrast to Those of the two Senior 
                    Army Officers
    The evidence developed during this inquiry clearly 
demonstrates that the intent of having Brigadier General 
Schoomaker and the Army colonel attend the April 14, 1993, 
meeting with Attorney General Reno was to have them review and 
provide comments and opinions regarding the merits of the FBI's 
proposed operations plan to end the standoff. The plan was 
specifically intended to force the Branch Davidians out of the 
compound so law enforcement agents could execute search and 
arrest warrants. While Attorney General Reno says that General 
Schoomaker and the Army colonel indicated to her that the FBI's 
proposed operations plan was ``excellent,'' in one case and 
``sound'' in another, both officers in separate interviews 
stated they were careful not to evaluate the plan--``not grade 
the paper'' in any manner.
    Brigadier General Schoomaker and the Army colonel should be 
complimented for their vigilance in avoiding a violation of the 
Posse Comitatus Act by refusing to give Attorney General Reno 
and the FBI advice on the tactical details or merits of the 
plan. Without their caution and concern, they would have become 
active and direct participants in planning the FBI's flawed 
operation.\287\
---------------------------------------------------------------------------
    \287\ See H. Rept. No. 104-749, 39-40 (1996). A somewhat similar 
event occurred when the BATF sought certain types of military 
assistance. Prior to the BATF raid on the Branch Davidian compound on 
Feb. 28, 1993, BATF requested assistance be provided from an Army 
Special Forces unit attached to JTF-6 at Ft. Bliss, TX. The request 
asked that the military assist in a ``review and scrub'' of the BATF 
operation, provide medical support close to the scene of the raid, and 
assistance in constructing and developing rehearsal sites. The 
commander of the unit, Major Mark Petree, U.S. Army, and Major Brent 
Ballard, U.S. Army, special operations representative to JTF-6, El 
Paso, TX, discussed their concern about the request with LTC Phil 
Lindley, U.S. Army, legal advisor at Army Special Operations Command 
Headquarters at Ft. Bragg, NC. LTC Lindley expressed serious concerns 
and objections to JTF-6 that the scope of support involved possible 
Posse Comitatus Act violations and it was scaled back. Active vigilance 
of the military officers involved resulted in a reduction in the scope 
of support and precluded any Posse Comitatus Act violations.
---------------------------------------------------------------------------
    It is troublesome that Brigadier General Schoomaker and the 
Army colonel were never interviewed by anyone during the 
Scruggs inquiry. The committee finds it very disturbing that 
senior White House officials and other senior law enforcement 
officials unwittingly or not, placed senior military officers 
in a situation where the discussions at the meeting confronted 
them with violating the Posse Comitatus Act. The committee 
finds it most disturbing that President Clinton and Attorney 
General Reno have mischaracterized what the military officers 
told her, and deceived the American people for the last 7 years 
by indicating that the military endorsed or otherwise approved 
the details of the FBI's proposed operations plan.

                C. The General Accounting Office Report

    During the subcommittees' hearings in 1995, interest was 
expressed regarding the military support, especially material 
and equipment, provided to the BATF and FBI in connection with 
their law enforcement activities at the Branch Davidian 
Compound.\288\ On July 20, 1995, Assistant Secretary of Defense 
for Special Operations/Low Intensity Conflict, H. Allen Holmes, 
testified and agreed to provide the subcommittees a complete 
accounting of military support provided to the BATF and FBI at 
Waco.\289\
---------------------------------------------------------------------------
    \288\ ``See Investigation Into the Activities of Federal Law 
Enforcement Agencies Toward the Branch Davidians (Part 1),'' hearings 
before the Subcommittee on Crime of the House Committee on the 
Judiciary and the Subcommittee on National Security, International 
Affairs, and Criminal Justice of the House Committee on Government 
Reform and Oversight, 104th Cong., 163 (1995).
    \289\ Id. at 406.
---------------------------------------------------------------------------
    On January 23, 1996, Secretary Holmes provided the 
subcommittees with an incomplete accounting.\290\ Troubled by 
the lack of available detail concerning the scope and cost of 
military assistance, the subcommittees requested that the GAO 
audit the military assistance provided at Waco and investigate 
the activities of Operation Alliance \291\ in light of the Waco 
incident.\292\
---------------------------------------------------------------------------
    \290\ See letter from the Honorable H. Allen Holmes, Assistant 
Secretary of Defense for Special Operations/Low Intensity Conflict, 
Department of Defense, to the Honorable William H. Zeliff, chairman, 
Subcommittee on National Security, International Affairs, and Criminal 
Justice, Committee on Government Reform and Oversight, Department of 
Defense document production Z0032599(U)-Z0032608(U), (Jan. 23, 1996) 
(exhibit 105).
    \291\ Operation Alliance is a government office which coordinates 
joint military and civilian counter drug operations along the southwest 
border of the United States.
    \292\ See H. Rept. No. 104-749, 55 (1996) at 55.
---------------------------------------------------------------------------
      GAO's specific objectives were to:

 LDetermine whether the BATF's requests for support 
from military counterdrug programs met requirements for 
authorizing that support;

 LIdentify the measures the BATF took to deal with any 
drug activity it might find during its warrant service, and 
determine whether those measures were appropriate for such 
operations where a methamphetamine laboratory might be 
encountered; and,

 LAccount for the type, costs, and reimbursements of 
all military support, including that from counterdrug programs, 
provided to the BATF and the FBI.\293\
---------------------------------------------------------------------------
    \293\ See ``Department of Defense: Military Assistance Provided at 
Branch Davidian Incident,'' 1-2, (GAO/NSIAD/OSI-99-133, Aug. 26, 1999) 
(exhibit 4).

    On August 26, 1999, GAO concluded its inquiry and issued 
---------------------------------------------------------------------------
its report. It concluded:

        The ATF requests for assistance from military 
        counterdrug programs met the requirements of the 
        relevant statutes for authorizing such support. In 
        these written requests, ATF cited its suspicions of 
        drug activity. In both cases, the military reasonably 
        exercised its discretion in providing that support as 
        authorized under the relevant statutes.

        In planning how it would serve warrants at the 
        compound, ATF planned for the possibility of 
        encountering a methamphetamine laboratory or other 
        hazardous drug materials. As required by agency policy, 
        ATF agents in the operation were made aware of the 
        suspected laboratory and of the appropriate 
        precautions. Moreover, DEA agents were at the command 
        post to handle any drug-related materials.\294\
---------------------------------------------------------------------------
    \294\ Id. at 17.

    BATF officials submitted two requests for military 
assistance as they prepared for their dynamic entry upon the 
Branch Davidian compound to serve arrest and search warrants 
upon David Koresh during the January-February 1993 period. In 
order to receive non-reimbursable military assistance at Waco, 
BATF was required to demonstrate a ``drug nexus'' within their 
investigation. The adequacy of the BATF's evidence supporting a 
drug nexus was disputed by the subcommittees.\295\ In this 
current oversight investigation, the committee has not sought 
to reopen that issue. Rather, it continues to hold to the 
conclusions reached in 1995, that the BATF had insufficient 
evidence of a drug nexus to seek either a search warrant or 
non-reimbursable military support.
---------------------------------------------------------------------------
    \295\ See H. Rept. No. 104-749, 53 (1996). The subcommittees 
concluded that the BATF intentionally misled DOD and military personnel 
as to whether the Branch Davidians were operating an illegal 
methamphetamine lab at the Branch Davidian compound.
---------------------------------------------------------------------------
1. Unresolved Issues Concerning Accounting for the Type, Costs, and 
        Reimbursements of All Military Support within the GAO Report
    After reviewing the GAO report, committee staff found the 
summary of military assistance provided by Assistant Secretary 
Holmes in January 1996 to be inaccurate and incomplete. It 
failed to address two support issues. First, there was no 
discussion of the aerial reconnaissance support provided by the 
Alabama National Guard.\296\ Second, as GAO investigators 
discovered, the Army did not bill the FBI for 500 rounds of 40-
mm grenade launcher ammunition and cannot say definitively to 
this day whether the rounds were actually provided. The 
munitions in question included 200 target-practice rounds, 50 
illumination rounds, and 250 high explosive (HE) rounds.\297\
---------------------------------------------------------------------------
    \296\ See letter from the Honorable H. Allen Holmes, Assistant 
Secretary of Defense for Special Operations/Low Intensity Conflict, 
Department of Defense, to the Honorable William H. Zeliff, chairman, 
Subcommittee on National Security, International Affairs, and Criminal 
Justice, Committee on Government Reform and Oversight, U.S. House of 
Representatives, at 9 (Jan. 23, 1996) (exhibit 105).
    \297\ See ``Department of Defense: Military Assistance Provided at 
Branch Davidian Incident,'' 28 (GAO/NSIAD/OSI-99-133, Aug. 26, 1999) 
(exhibit 4).
---------------------------------------------------------------------------
    Documents and other evidence provided to the subcommittees 
in 1995, and later, to committee staff during this recent 
inquiry, indicate that HRT agents employed the target practice 
munitions at Ft. Hood, TX, to gain firing familiarization in 
preparation for the FBI's plan to insert 40-mm ferret CS gas 
grenades into the Branch Davidian compound.\298\ There was no 
discussion in the FBI's proposed operations plan, however, that 
explained the need for high-explosive rounds to be issued to 
the FBI for their use at Waco. DOD has failed to formally 
resolve the status of the 250 high explosive (HE) rounds 
purportedly issued to the FBI.
---------------------------------------------------------------------------
    \298\ See Department of Defense document production Z0022040, D635, 
D1822, D712, D1857-1858, DTG 111550Z MAR93, DTG 121323Z MAR93, Z0010339 
(exhibit 106).
---------------------------------------------------------------------------
    DOD considers the discrepancies between the GAO report and 
the summary provided by Secretary Holmes to be minor. The 
committee disagrees. An accurate accounting of the use of 
military combat aircraft and high explosive munitions provided 
by the military to support civilian law enforcement operations 
is an issue of significance. This is especially true in the 
case of high explosive grenades because ammunition of this 
nature does not have a routine law enforcement purpose.
            a. DOD's Failure to Account for the Participation of the 
                    Alabama National Guard in Support of Waco 
                    Operations in Response to a Congressional Request
    Secretary Holmes' response to the subcommittees did not 
contain any reference to the support provided by the Alabama 
National Guard between January and April 1993. The fact of 
their participation was well known to DOD, especially the 
National Guard Bureau. The assistance provided by the Alabama 
National Guard was requested by the Texas National Guard as a 
part of their ongoing support to BATF during the Waco incident. 
The Texas National Guard briefly commented upon the Alabama 
National Guard assistance in their April 29, 1993, after-action 
report on their counter-drug support in Waco, TX. This report 
was addressed to the Chief of the National Guard Bureau at the 
Pentagon.\299\
---------------------------------------------------------------------------
    \299\ See ``After Action Report of Texas National Guard Counterdrug 
Support in Waco, Texas,'' 3 (Apr. 29, 1993), DOD document production 
Z000465-Z000473 (exhibit 107). The report indicated that on Jan. 14, 
1993, aerial photographs were taken by RF4-C aircraft from the Alabama 
National Guard.
---------------------------------------------------------------------------
    After reviewing GAO's report, Committee Chairman Dan Burton 
wrote to William Cohen, Secretary of Defense, to express his 
concern regarding not only this discrepancy, but also the 
broader issue of DOD's inability to provide a definitive, 
single-source document cataloging in detail the military 
personnel, equipment, and material involved in the Waco 
incident. On November 16, 1999, Chairman Burton wrote:

        The critical first step in understanding the military's 
        involvement during the Waco incident is to obtain a 
        complete and accurate listing of the military units and 
        personnel from any branch of the Armed Forces--Active 
        Duty, National Guard or Reserve--who were engaged in 
        any manner, means, or method of support to the BATF or 
        FBI at Waco; the dates, locations, and descriptions of 
        the duties and responsibilities of military members 
        providing that support; and a complete listing and 
        description of the equipment and material, to include 
        all munitions, supplied to the BATF and FBI for their 
        use during the Waco incident.

        DOD is the only entity that possesses that information 
        and only DOD can produce such a document of record. The 
        Committee on Government Reform and the American people 
        should not have to engage in a documentary shell game 
        to understand once and for all exactly what their 
        military forces did in support of law enforcement 
        operations at Waco.\300\
---------------------------------------------------------------------------
    \300\ Letter from the Honorable Dan Burton, chairman, Committee on 
Government Reform, to the Honorable William Cohen, Secretary of 
Defense, Department of Defense (Nov. 16, 1999) (exhibit 108).

    On December 6, 1999, DOD's Deputy General Counsel, Harold 
Kwalwasser, responded on behalf of the Secretary of Defense. He 
---------------------------------------------------------------------------
wrote:

        While there are minor discrepancies between the matrix 
        we created following the 1995 hearings and the GAO 
        report, we believe that these documents provide a 
        generally accurate picture of the support DOD provided 
        to the federal law enforcement agencies.

           *         *         *         *         *

        With respect to your requests for information about the 
        activities of the Texas and Alabama National Guards, we 
        suggest that those requests be directed to state 
        authorities since these Guard units were in a state, 
        not federal, capacity during the Waco events. Although 
        in 1995 we forwarded to Congress documents provided by 
        the Texas and Alabama National Guards concerning the 
        support they provided to federal law enforcement 
        agencies, we are not in a position to provide the 
        comprehensive information the Committee has requested 
        about their activities, which would require interviews 
        with numerous Guard personnel who are not federal 
        employees. Such information should be requested from 
        the appropriate state officials.\301\
---------------------------------------------------------------------------
    \301\ Letter from Harold Kwalwasser, Deputy General Counsel, 
Department of Defense, to the Honorable Dan Burton, chairman, Committee 
on Government Reform (Dec. 6, 1999) (exhibit 109).

    DOD's Acting General Counsel, Douglas Dworkin, also 
corresponded with Chairman Burton on December 6, 1999, and 
provided some of the information requested in the chairman's 
initial letter of November 16, 1999.\302\ The reply was 
entirely unsatisfactory. Although some information was 
provided, DOD continued to reiterate its opinion that the 
discrepancies between the GAO report and Secretary Holmes' 1996 
response were generally minor. In addition, DOD continued to 
refer the committee to appropriate State officials from Texas 
and Alabama for information regarding their respective National 
Guard personnel and equipment.
---------------------------------------------------------------------------
    \302\ See letter from Douglas Dworkin, Acting General Counsel, 
Department of Defense, to the Honorable Dan Burton, chairman, Committee 
on Government Reform, (Dec. 6, 1999) (exhibit 110).
---------------------------------------------------------------------------
    On January 20, 2000, Chairman Burton again wrote to 
Secretary Cohen regarding the issue of DOD's obligation to 
provide a complete accounting of its support during the Waco 
standoff. Chairman Burton wrote that when Secretary Holmes 
agreed during the subcommittee hearings to provide an 
accounting, Secretary Holmes' obligation included providing 
information regarding the Texas and Alabama National Guard 
involvement:

        Although I do understand this position, the Honorable 
        H. Allen Holmes, Assistant Secretary of Defense 
        (Special Operations and Low Intensity Conflict) 
        testified as DOD's senior representative during the 
        1995 hearings and offered to provide a complete 
        accounting of DOD support provided to both the BATF and 
        the FBI during the Waco incident. There were no 
        qualifications discussed regarding which military 
        branch or component support would be provided, and the 
        committee does not accept any being imposed at this 
        time. Additionally, the funds used to support the 
        National Guard personnel at Waco were congressionally 
        appropriated Federal funds. If there is a need to query 
        The Adjutants General or other state official from 
        Texas or Alabama, the Committee believes DOD has the 
        responsibility to obtain the information and provide it 
        to the Committee.\303\
---------------------------------------------------------------------------
    \303\ Letter from the Honorable Dan Burton, chairman, Committee on 
Government Reform, to the Honorable William Cohen, Secretary of 
Defense, Washington, DC (Jan. 20, 2000) (exhibit 111).

    On February 15, 2000, John Hamre, Deputy Secretary of 
Defense, responded to Chairman Burton and again reiterated 
DOD's continuing reticence to take the steps necessary to 
provide the committee the requested information regarding 
---------------------------------------------------------------------------
support provided by the Alabama and Texas National Guard:

        We are not, however, able legally or practically to 
        provide the specific information you have requested for 
        the National Guard. National Guard units are not 
        actually part of the Department of Defense. Congress 
        has designated them as ``part of the organized militia 
        of the several states.'' With limited exceptions, 
        National Guard personnel are under the command and 
        control of the Governors unless they are called into 
        active duty in their status as members of the National 
        Guard of the United States, a reserve component of the 
        United States Armed Forces. The Texas and Alabama 
        National Guard units involved at Waco were operating in 
        a state, not federal, status. Consequently, the 
        Department of Defense has no direct control over their 
        relevant documents or individuals with first hand 
        knowledge of the National Guard's activities.\304\
---------------------------------------------------------------------------
    \304\ Letter from the Honorable John Hamre, Deputy Secretary of 
Defense, to the Honorable Dan Burton, chairman, Committee on Government 
Reform (Feb. 15, 2000) (exhibit 112).

    It became clear at this point that DOD was not going to 
follow through with its responsibilities to obtain the 
requested information. DOD's position that they were not 
``legally or practically'' able to provide the requested 
information rings hollow. While technically true that Texas and 
Alabama National Guard personnel were in a ``state status'' and 
under the ``command and control'' of their respective 
Governors, in reality, Federal regulations, Federal funding, 
---------------------------------------------------------------------------
and Federal equipment enabled all their actions:

 LThe Texas and Alabama National Guards were providing 
support to Federal, not State, law enforcement agencies;

 LThe funds used by National Guards to support their 
activities were from Federal appropriations provided to the 
State of Texas for counter-drug missions approved by the 
Secretary of Defense;

 LThe National Guard military equipment (fixed wing 
aircraft and helicopters, Armored Personnel Carriers, trucks 
and utility vehicles, Bradley Fighting Vehicles, Combat 
Engineer Vehicles, etc.) used in support of the operations was 
provided by the Federal Government to the States principally 
for their Federal, not State, mission;

 LThe terms and conditions governing the loan of 
National Guard military equipment to the ATF and the FBI were 
Federal (NGB), not State, regulations; and

 LDOD (National Guard Bureau Headquarters) asked the 
Texas National Guard to keep them informed of all their actions 
in support of the Waco operation; and,

    To the American people, the convenient nuances and 
distinctions concerning the National Guard's ``State'' and 
``Federal status'' were meaningless at the time of the Waco 
incident, and probably remain so today. They witnessed tanks, 
military vehicles, and uniformed military personnel actively 
engaged in Federal law enforcement operations for 51 days. It 
is to DOD that they would and should look for an explanation 
and accounting of their military's involvement at Waco. For the 
last 7 years, only Congress has attempted to fully inform the 
American people concerning this issue. In the interest of 
moving the committee's inquiry forward, Chairman Burton wrote 
directly to the Adjutants General of Texas and Alabama.\305\ 
Both Adjutants General promptly provided the requested 
information. Given the magnitude of the Waco tragedy, the 
committee simply does not understand why DOD would not attempt 
to live up to Secretary Holmes' promises to Congress in 1995.
---------------------------------------------------------------------------
    \305\ See letter from the Honorable Dan Burton, chairman, Committee 
on Government Reform, to Major General Daniel James III, Air National 
Guard, Adjutant General, Texas National Guard (Feb. 8, 2000) (exhibit 
113). See also letter from the Honorable Dan Burton, chairman, 
Committee on Government Reform, to Major General Willie A. Alexander, 
Army National Guard, Alabama National Guard (Feb. 8, 2000) (exhibit 
114); memorandum from Lt. Col. Michael Sanderson, staff judge advocate, 
Alabama National Guard, to Thomas Bowman, senior counsel, Committee on 
Government Reform (Sept. 13, 2000) (exhibit 115). This was follow-up 
correspondence regarding the dates of the Alabama National Guard 
flights in support of Federal law enforcement in Waco.
---------------------------------------------------------------------------
    The information provided to the committee from GAO, and the 
Texas and Alabama National Guards, indicate that high altitude 
aerial reconnaissance support was provided using camera-
equipped RF-4C aircraft from the 117th Tactical Reconnaissance 
Wing located at Birmingham, AL.\306\ There is disagreement, 
however, regarding how many missions were actually flown. The 
Texas National Guard indicated in its after-action report that 
one flight was flown on January 14, 1993.\307\ The Alabama 
National Guard indicated that missions were flown on January 
14th and 31st, March 4th, and April 7th, 1993.\308\ The GAO 
indicated that missions were flown on January 6th and 
14th.\309\ While all agree that a mission was flown on January 
14th, the total number of missions flown by the Alabama 
National Guard remains unclear. A timely DOD review would have, 
in all probability, resolved this issue.
---------------------------------------------------------------------------
    \306\ See memorandum from MG Willie A. Alexander, ARNG, Adjutant 
General, Alabama National Guard, to the Honorable Dan Burton, chairman, 
Committee on Government Reform (Feb. 17, 2000) (exhibit 116). See also 
memorandum from Lt. Col. Michael Sanderson, staff judge advocate, 
Alabama National Guard, to Thomas Bowman, senior counsel, Committee on 
Government Reform (Sept. 13, 2000) (exhibit 115).
    \307\ See ``After Action Report of Texas National Guard Counterdrug 
Support in Waco, Texas,'' 3 (Apr. 29, 1993) at 3 (exhibit 107); DOD 
document production Z000465-Z000473.
    \308\ See letter from LTC Michael Sanderson, staff judge advocate, 
Alabama National Guard, to Thomas Bowman, senior counsel, Committee on 
Government Reform (Sept. 13, 2000) (exhibit 115).
    \309\ See ``Department of Defense: Military Assistance Provided at 
Branch Davidian Incident,'' 29 (GAO/NSIAD/OSI-99-133, Aug. 26, 1999) 
(exhibit 4).
---------------------------------------------------------------------------
            b. Discrepancy Surrounding the Alleged Transfer of 250 High 
                    Explosive (HE) 40-MM Grenades from the Army to the 
                    FBI at Fort Hood During March 1993
    On March 1, 1993, HRT personnel began to arrive at Waco to 
assume control of the law enforcement operation from the BATF. 
HRT personnel were flown to Waco by military aircraft from 
Andrews Air Force Base, MD.\310\ When they departed, HRT 
personnel brought with them various weapons, munitions, 
communications, and other operational safety and security 
equipment. Some of this material was carried in two specially 
configured vehicles for HRT use on operational commitments. The 
ammunition included 40-mm high explosive grenades that were 
provided to the FBI by the ammunition storage facility at 
Marine Corps Base, Quantico, VA.\311\ At this time, the FBI is 
uncertain of the exact number of HE grenades brought to Waco. 
However, they believed it would have been no more than 
approximately 12-18 grenades divided equally between the two 
vehicles. During the Waco standoff, HRT personnel who were 
assigned to carry M-79 grenade launchers, were issued a small 
number of HE grenades.\312\
---------------------------------------------------------------------------
    \310\ See Richard Scruggs, U.S. Department of Justice, ``Report to 
the Deputy Attorney General on the Events at Waco, Texas, Feb. 28-Apr. 
19, 1993,'' 9-11 (Oct. 8, 1993); see ``Department of Defense: Military 
Assistance Provided at Branch Davidian Incident'' 27 (GAO/NSIAD/OSI-99-
133, Aug. 26, 1999) (exhibit 4).
    \311\ Letter from Eleni P. Kalisch, Unit Chief, Office of Public 
and Congressional Affairs, FBI to Thomas G. Bowman, senior counsel, 
Committee on Government Reform (Oct. 9, 2000) (exhibit 117).
    \312\ Id.
---------------------------------------------------------------------------
    Two documents on their face indicate that the Army issued 
250 HE rounds to the FBI. Those documents were created by a 
Program Budget Analyst in the G-3 Budget Office at Ft. Hood, 
TX. However, according to DOD, that person had no first-hand 
knowledge as to whether any of the munitions were actually 
provided to the FBI.\313\ DOD further indicated that the 
analyst prepared these two documents based upon information 
provided to her by the Deputy Range Officer for Ft. Hood and 
the Deputy G-3, for Headquarters, III Corps.\314\
---------------------------------------------------------------------------
    \313\ Letter from Harold Kwalwasser, Deputy General Counsel, 
Department of Defense, to Thomas Bowman, senior counsel, Committee on 
Government Reform, tab 2 (July 26, 2000) (exhibit 118).
    \314\ Id.
---------------------------------------------------------------------------
    The first document is an inventory attached to a loan 
agreement between the FBI and the Commanding General, of III 
Corps and Ft. Hood, dated July 30, 1993.\315\ It was created a 
number of months after the Waco operation ended, and 
represented a preliminary effort to create a master list of the 
equipment and material believed to have been provided to the 
FBI at Ft. Hood, TX. That inventory reflected 250 HE rounds 
valued at $3,477.50; 200 target practice rounds valued at 
$346.00; and, 50 illumination rounds valued at $1,242.00.
---------------------------------------------------------------------------
    \315\ Id. at tab 1.
---------------------------------------------------------------------------
    During the GAO investigation years later, GAO asked the 
Program Budget Analyst at Ft. Hood, TX to account for the 
equipment, material, and ammunition listed on the equipment 
inventory.\316\ The Program Budget Analyst was asked to 
annotate the inventory to assist the GAO, by writing 
``recovered'' for items that were returned by the FBI, and 
``consumed'' for items used or not returned.\317\ The Program 
Budget Analyst annotated ``consumed'' for the HE rounds based 
on information provided to her by the Deputy Range Officer that 
the FBI had been authorized to take any unexpended ammunition 
with them.\318\
---------------------------------------------------------------------------
    \316\ Id. at 3.
    \317\ Id.
    \318\ Id. at 1.
---------------------------------------------------------------------------
    The second document is a computer generated spreadsheet 
dated August 31, 1993, that contains the items for which the 
Army sought reimbursement from the FBI. The munition entries 
and values were the same as those indicated in the loan 
agreement.\319\
---------------------------------------------------------------------------
    \319\ Id. at tab 1.
---------------------------------------------------------------------------
    Upon review of Appendix IV of the GAO report, the committee 
became aware that the Army did not bill the FBI for 500 rounds 
of 40-mm grenade ammunition that were reportedly issued to the 
HRT personnel at Ft. Hood, TX. This ammunition included 200 
target-practice rounds, 50 illumination rounds, and 250 HE 
rounds.\320\ The ammunition of specific concern to the 
committee was the 250 HE rounds. Given the generally understood 
law enforcement objectives of HRT on April 19, 1993, it was 
unclear why HRT would need 250 HE rounds in addition to the HE 
grenades they transported to Waco, or how that ammunition may 
have been factored into the FBI's proposed operations plan. It 
should be noted, however, that the committee is not aware of 
any evidence indicating that FBI personnel, or any other 
persons, fired any HE rounds on April 19, 1993, or at any other 
time during the Waco incident.
---------------------------------------------------------------------------
    \320\ See ``Department of Defense: Military Assistance Provided at 
Branch Davidian Incident,'' 28 (GAO/NSIAD/OSI-99-133, Aug. 26, 1999) 
(exhibit 4).
---------------------------------------------------------------------------
    On March 11, 1993, the FBI requested that DOD provide 100 
40-mm practice rounds and 50 40-mm illumination grenades.\321\ 
On March 12, 1993, the FBI increased its request for practice 
rounds to 200.\322\ DOD approved the amended request.\323\ 
Additionally, the FBI requested, and DOD approved, the use of 
an appropriate range at Ft. Hood, TX on which to use the 
target-practice rounds for familiarization firing. The training 
occurred on March 13, 1993.\324\ There was no written request 
by the FBI for HE rounds. A hand-written note on the initial 
request authorized the FBI to depart the practice range with 
any unfired ammunition.\325\
---------------------------------------------------------------------------
    \321\ See letter from Harold Kwalwasser, Deputy General Counsel, 
Department of Defense, to Thomas Bowman, senior counsel, Committee on 
Government Reform, (July 26, 2000) at tab 2 (exhibit 118).
    \322\ Id.
    \323\ Id.
    \324\ Id.
    \325\ Id.
---------------------------------------------------------------------------
    The personnel and equipment summary attached to Secretary 
Holmes' letter indicated that the Army provided the FBI 50 
illumination rounds and only 100 rounds of target-practice 
ammunition.\326\ As stated above, the GAO investigators found 
that DOD issued 200 target-practice rounds to FBI personnel. 
The summary also indicated that the cost of the target-practice 
and illumination rounds was $5,065.00, when the correct total 
should have been $1,588.00.\327\ The summary reflected a total 
of $5,065.00 which can only be explained if 250 HE rounds, 
which cost $3,477.50, are included.\328\
---------------------------------------------------------------------------
    \326\ See letter from the Honorable H. Allen Holmes, Assistant 
Secretary of Defense for Special Operations/Low Intensity Conflict, 
Department of Defense, to the Honorable William H. Zeliff, chairman, 
Subcommittee on National Security, International Affairs, and Criminal 
Justice, Committee on Government Reform and Oversight (Jan. 23, 1996) 
(exhibit 105).
    \327\ See letter from Harold Kwalwasser, Deputy General Counsel, 
Department of Defense, to Thomas Bowman, senior counsel, Committee on 
Government Reform (July 26, 2000) (exhibit 118).
    \328\ Id.
---------------------------------------------------------------------------
    Chairman Burton wrote Secretary Cohen and requested an 
accounting of support and assistance provided by DOD, to 
include an accounting of all munitions supplied to the BATF and 
the FBI for their use during the Waco standoff.\329\ On July 
26, 2000, Harold Kwalwasser, DOD's Deputy General Counsel, 
wrote the committee regarding the results of DOD's inquiry and 
stated:
---------------------------------------------------------------------------
    \329\ See letter from the Honorable Dan Burton, chairman, Committee 
on Government Reform, to the Honorable William Cohen, Secretary of 
Defense, Department of Defense, (Nov. 16, 1999) (exhibit 108).

        Based on our review of documents and interviews with 
        relevant personnel, we have not been able to confirm 
        that the 250 HE rounds were, in fact, ever provided by 
        the Army to the FBI.\330\
---------------------------------------------------------------------------
    \330\ Letter from Harold Kwalwasser, Deputy General Counsel, 
Department of Defense, to Thomas Bowman, senior counsel, Committee on 
Government Reform, 3 (July 26, 2000) (exhibit 118).

    DOD's response goes on to indicate that the Deputy Range 
Officer does not remember advising the Budget Office to seek 
reimbursement for the HE rounds. He recalls that FBI personnel 
were prohibited from using HE rounds on the range assigned to 
them for their training. Additionally, he believes that FBI 
personnel only used training-practice rounds.\331\ The Deputy 
G-3 for the Army's III Corps Headquarters at Ft. Hood, also did 
not recall informing the Budget Office that the FBI should be 
charged for the HE rounds. The G-3 office was generally 
responsible for overseeing the day-to-day operational 
activities at Ft. Hood. The Deputy G-3 was responsible for 
processing all FBI requests for support during the Branch 
Davidian operation.\332\
---------------------------------------------------------------------------
    \331\ Id. at 2
    \332\ Id.
---------------------------------------------------------------------------
    After reviewing DOD's response, committee staff forwarded 
copies of the correspondence with its enclosures to the GAO 
\333\ and FBI \334\ to give them an opportunity to review and 
comment.
---------------------------------------------------------------------------
    \333\ See letter from the Honorable Dan Burton, chairman, Committee 
on Government Reform, to Henry L. Hinton, Assistant Comptroller 
General, General Accounting Office (Aug. 8, 2000) (exhibit 119).
    \334\ See letter from the Honorable Dan Burton, chairman, Committee 
on Government Reform, to the Honorable Louis Freeh, FBI Director, (Aug. 
8, 2000) (exhibit 120).
---------------------------------------------------------------------------
    With respect to GAO, committee staff was interested in 
finding out if the information provided by DOD would change the 
finding contained within the GAO report that 250 HE rounds were 
issued to the FBI. GAO investigators concluded DOD's response 
did not warrant any changes and stated:

        In closing, we see no need to change any of the 
        information in our report on the military assistance 
        provided during the Branch Davidian incident. As noted 
        in our 1999 report, DOD officials indicated that they 
        accepted our findings on the matters as presented. 
        Moreover, the Department of Justice and the FBI 
        indicated that they agreed with the substance of our 
        report.\335\
---------------------------------------------------------------------------
    \335\ Letter from Carol Schuster, Associate Director, National 
Security Preparedness Issues, General Accounting Office, to the 
Honorable Dan Burton, chairman, Committee on Government Reform, at 3 
(Aug. 21, 2000) (exhibit 121).

    Committee staff also asked the FBI to review the DOD 
response and inform the committee whether the FBI received any 
HE rounds in connection with the Branch Davidian operation from 
---------------------------------------------------------------------------
any munitions source within DOD. In response, the FBI stated:

        The FBI has not identified any documentation or 
        information which confirms that the FBI requested or 
        received HE rounds from any munitions source within DOD 
        in connection with the Waco-related events. Numerous 
        interviews of the individuals deployed to Waco reflect 
        no recollection of the FBI requesting or receiving HE 
        rounds from DOD for any purpose, including training/
        target practice. The FBI defers to the lengthy record 
        submitted to you by DOD on July 26, 2000, which 
        suggests that HE rounds were not provided to the FBI 
        during the Branch Davidian operation. Despite the best 
        efforts of DOD and the FBI to ``prove a negative,'' we 
        recognize that the record before the Committee is 
        inconclusive. As mentioned by DOD, however, the 
        critical point to remember is that the FBI did not fire 
        any HE rounds during the Branch Davidian 
        operation.\336\
---------------------------------------------------------------------------
    \336\ Letter from John E. Collingwood, Assistant Director, Office 
of Public and Congressional Affairs, to the Honorable Dan Burton, 
chairman, Committee on Government Reform (Aug. 21, 2000) (exhibit 122).

    Distilled to its essence, the evidence presented to the 
committee is one of documents versus inferences and dated 
recollections. DOD's response and the GAO report indicate the 
Army provided the FBI with 250 rounds of HE ammunition. At the 
time GAO investigators finalized their report, both DOD and the 
FBI were allowed to review, take issue, and comment on the 
report prior to publication. Neither DOD nor the FBI disputed 
the entries demonstrating that the Army issued the 250 HE 
rounds until the committee began its inquiry.\337\
---------------------------------------------------------------------------
    \337\ See ``Department of Defense: Military Assistance Provided at 
Branch Davidian Incident'' 17 (GAO/NSIAD/OSI-99-133, Aug. 26, 1999) 
(exhibit 4).
---------------------------------------------------------------------------
    DOD's response seems to dispute the validity and accuracy 
of the Army's documents. DOD appears to rely on the statements 
of two Army officers who indicated they have no recollection of 
providing any information regarding the use of HE ammunition by 
the FBI to the Program Budget Analyst who prepared the 
documents. The analyst recalled that she obtained the 
information used to produce the two documents from these two 
officers. DOD's position that no HE rounds were issued is 
bolstered, in their opinion, by the fact there was no evidence 
that any HE rounds were fired on the range at Ft. Hood.\338\ 
Additionally, DOD relies on the fact there are no statements or 
other evidence from any source indicating HE rounds were used 
during the Waco incident. In their response, the FBI adopted 
the general findings and opinions of DOD regarding this matter.
---------------------------------------------------------------------------
    \338\ Letter from Harold Kwalwasser, Deputy General Counsel, 
Department of Defense, to Thomas Bowman, senior counsel, Committee on 
Government Reform, at 2-3 (July 26, 2000) (exhibit 118).
---------------------------------------------------------------------------
    This issue involves properly accounting for the status of 
250 rounds of lethal munitions. DOD's own regulations require 
military commanders, in similar situations, to conduct an 
inquiry.\339\ This committee is concerned that the DOD and 
FBI's procedures regarding ammunition accountability were so 
lax during a matter as significant as the Waco standoff, that 
250 rounds of lethal ammunition which are not designed for 
routine civilian law enforcement activity have remained 
unaccounted for. There is no information available to the 
committee that an appropriate military commander conducted an 
inquiry as required by DOD's own regulations. This issue, 
although it does not go to the actual events of April 19, 1993, 
deserves a formal examination and resolution by appropriate 
military authorities, and the committee urges the Secretary of 
Defense to direct that such action take place. The results of 
this inquiry should be provided to the Congress and GAO.
---------------------------------------------------------------------------
    \339\ See Army Regulation 190-11, ``Physical Security of Arms, 
Ammunition, and Explosives'' (Apr. 30, 1986) at 2-9, 6, (exhibit 123). 
This Army directive was in effect at the time of the Waco events in 
1993. See also Army Regulation 190-11, ``Physical Security of Arms, 
Ammunition, and Explosives'' (Sept. 30, 1993) at 2-9, 5, (exhibit 124). 
The requirement for a military commander to direct that an inquiry be 
conducted regarding missing, lost, stolen or otherwise unaccountable 
ammunition is essentially the same.
---------------------------------------------------------------------------

     D. Inaccurate Accounting of Military Personnel Support Within 
                 Department of Justice Internal Review

1. Overview of Military Support Provided to the FBI
    Almost immediately after the failed February 28, 1993, 
raid, the limited training and light equipment support that had 
defined the role of the Texas National Guard was dramatically 
transformed into one involving armored personnel carriers, 
tanks, and combat engineer vehicles. These items of equipment 
were deemed necessary for the safety and protection of law 
enforcement personnel against the arsenal of weapons suspected 
to be within the compound.
    On March 1, 1993, HRT personnel assumed control of law 
enforcement activity at the compound from the BATF. The 
transfer of authority from BATF to the FBI was done at the 
request of the Secretary of the Treasury and with the approval 
of Acting Attorney General Stuart Gerson. Over the 51-day 
standoff, the scope of military support expanded from the Texas 
National Guard to include military personnel and equipment 
assets from active duty military units.\340\
---------------------------------------------------------------------------
    \340\ See Richard Scruggs, U.S. Department of Justice, ``Report to 
the Deputy Attorney General on the Events at Waco, Texas, Feb. 28-Apr. 
19, 1993,'' at 9-11 (Oct. 8, 1993) (unredacted version).
---------------------------------------------------------------------------
    A limited number of active duty military personnel were 
present at the Branch Davidian compound at any one time during 
the standoff. Most of these troops were dressed in uniforms 
indicating their ranks and service, and were from units 
assigned at Ft. Hood, TX. The type of support provided by these 
troops consisted primarily of performing repairs and 
maintenance on military equipment that had been provided to the 
FBI. The committee found no evidence that the military 
personnel operated any of the equipment during any law 
enforcement operation.\341\
---------------------------------------------------------------------------
    \341\ H. Rept. No. 104-749 at 50.
---------------------------------------------------------------------------
    The active duty Army also provided three observers and 
seven technical equipment specialists from Army Special Forces 
units of the U.S. Special Operations Command over the 51-day 
period of the standoff.\342\ The technical equipment specialist 
and their equipment were provided at the request of the FBI and 
with the approval of the Secretary of Defense.\343\ Committee 
staff interviewed all 10 of these personnel.\344\ The technical 
equipment specialists trained HRT personnel in the operation of 
a small amount of classified electronics and observation 
equipment, and provided necessary maintenance for these items. 
As indicated above, the Commander of U.S. Special Operations 
Command also provided an individual to observe HRT's actions 
and glean beneficial experiences that may be helpful to the 
military.\345\ The decision to provide the observers was made 
by the Commander of the U.S. Special Operations Command with 
the concurrence of the chairman of the Joint Chiefs of 
Staff.\346\
---------------------------------------------------------------------------
    \342\ Department of Defense document production Z0033619(U), 
Z0041496(U), Z0035388(U), Z0036114(U), Z0041511(U)-Z004512(U), 
Z0041508(U)-Z0041509(U), Z0041506(U)-Z0041507(U), Z0041510(U), 
Z0030706(U)-Z0030709(U) (exhibit 101).
    \343\ Id.
    \344\ Interviews with 10 current and former USSOCOM Army Special 
Forces personnel in Ft. Bragg, NC; Raleigh, NC; and Washington, DC. The 
identities of these individuals remain classified by the Department of 
Defense.
    \345\ Id.
    \346\ Department of Defense document production Z0033619(U), 
Z0041496(U), Z0035388(U), Z0036114(U), Z0041511(U)-Z004512(U), 
Z0041508(U)-Z0041509(U), Z0041506(U)-Z0041507(U), Z0041510(U), 
Z0030706(U)-Z0030709(U) (exhibit 101).
---------------------------------------------------------------------------
    As a general rule, there were no more than two technical 
equipment specialists and one observer from the U.S. Special 
Operations Command at Waco at any one time.\347\ These 
personnel each stated during their interviews that they did not 
participate in any of the FBI's law enforcement operations at 
Waco, nor did they possess any weapons while there. They stated 
that, because of the classified nature of their normal duties, 
they wore civilian clothes and did not identify themselves as 
being in the military. They further stated that they did not 
assist in the planning or reviewing of any HRT operational 
plans, and at no time did they enter the Branch Davidian 
compound or its immediate area during the 51-day standoff.\348\ 
While at Waco, they indicated they were restricted to a support 
trailer approximately 1,000 yards from the compound. When 
equipment maintenance was necessary, they stated that they were 
accompanied and transported by HRT personnel to the equipment 
location. When repairs were completed, they returned to their 
support trailer. They stated that they socialized very little 
with HRT or other personnel when off duty away from operations 
at the Waco compound.\349\
---------------------------------------------------------------------------
    \347\ Interviews with 10 current and former USSOCOM Army Special 
Forces personnel in Ft. Bragg, NC; Raleigh, NC; and Washington, DC. The 
identities of these individuals remain classified by the Department of 
Defense.
    \348\ Id.
    \349\ Id.
---------------------------------------------------------------------------
2. Inaccurate Accounting of Military Personnel
    Appendix B of the Scruggs report was intended to reflect 
the scope of military support and assistance provided to the 
FBI during the 51-day standoff.\350\ FBI officials working with 
Scruggs provided him the personnel and equipment figures. 
Scruggs indicated that he could not recall who within the FBI 
provided the information, but he accepted the accounting as 
accurate and included it within his report to reflect the 
military's support throughout the standoff. Scruggs also stated 
that he did not seek DOD's review of a draft of his report to 
ensure the accuracy of his discussion of the military's 
involvement prior to its release, although he did provide 
Treasury officials with a draft.\351\
---------------------------------------------------------------------------
    \350\ See Richard Scruggs, U.S. Department of Justice, ``Report to 
the Deputy Attorney General on the Events at Waco, Texas, Feb. 28-Apr. 
19, 1993,'' at appendix B (Oct. 8, 1993) (exhibit 125) (unredacted 
version).
    \351\ Interview with Richard Scruggs, Assistant U.S. Attorney, 
Department of Justice, in Miami, FL (June 22, 2000).
---------------------------------------------------------------------------
    When appendix B of the Scruggs report is compared with 
information developed during the committee's current inquiry, 
the personnel figures are grossly understated. Appendix B of 
the Scruggs report reflects that a total of 28 active duty and 
National Guard personnel supported the efforts of the FBI 
during the standoff. During an interview with Richard Scruggs 
on June 5, 2000, he confirmed to committee staff his belief 
that the FBI was supported by only 28 military personnel. 
Information provided to the committee by the Texas National 
Guard indicates there were approximately 130 National Guardsmen 
intermittently involved, and they provided both on and off-site 
support to the FBI during the standoff.\352\ The personnel 
support on-site at Waco varied on a day-to-day basis, ranging 
from a minimum of 5 to a maximum of 35.\353\ According to 
information provided to the committee by DOD, there were 
approximately 200 active duty military personnel intermittently 
providing support.\354\ As with the Texas National Guard, this 
support was both on and off-site, with totals varying day-to-
day.\355\ Taken together, the committee's inquiry revealed 
that, approximately 330 active duty and National Guard military 
personnel were involved in providing both on and off-site 
support to the FBI's law enforcement efforts at Waco. As 
discussed in section III, the Scruggs investigation fell 
woefully short of a thorough accounting.
---------------------------------------------------------------------------
    \352\ See memorandum from LTC Bill Reimer, TXARNG, STARC JAG, Texas 
National Guard, to Thomas G. Bowman, senior counsel, Committee on 
Government Reform (Feb. 9, 2000) (exhibit 126).
    \353\ See memorandum from Director, Operations, Readiness and 
Mobilization, Office of the Deputy Chief of Staff for Operations and 
Plans, Department of the Army, to Deputy Chief of Staff for Operations 
and Plans, Director of the Army Staff, and Assistant Secretary of the 
Army (Installations, Logistics, and Environment) (July 14, 1995) 
(exhibit 127).
    \354\ See letter from Douglas Dworkin, Acting General Counsel, 
Department of Defense, to the Honorable Dan Burton, chairman, Committee 
on Government Reform (Dec. 6, 1999) (exhibit 110).
    \355\ Some of the off-site military personnel associated with 
providing or monitoring DOD's assistance were not exclusively involved 
with Waco support.
---------------------------------------------------------------------------

E. The Department of Defense Did Not Conduct a Review and Assessment of 
                      Military Assistance Provided

    On April 20, 1993, President Clinton spoke to the American 
people from the Rose Garden regarding the tragic end of the 51-
day standoff at the Branch Davidian compound.\356\ Although he 
ordered the Departments of Justice and Treasury to conduct ``a 
vigorous and thorough investigation'' into what happened and 
why, he failed to include DOD in this tasking. The committee 
believes President Clinton's omission of DOD was both 
unfortunate and shortsighted. As the last 7 years have shown, 
the Departments of Justice and Treasury inquiries fell short of 
presenting a complete accounting of the military's support role 
to their respective operations at Waco. It is unfortunate that 
DOD has been content over the same period to conduct no 
internal inquiry whatsoever.
---------------------------------------------------------------------------
    \356\ President William Jefferson Clinton, remarks by the President 
in a question and answer session with the press, Washington, DC (Apr. 
20, 1993).
---------------------------------------------------------------------------
    President Clinton wanted Attorney General Reno to ensure 
that the military had been consulted regarding the FBI's 
proposed operations plan prior to its implementation. He was 
assured by Attorney General Reno during their telephone 
conversation on April 18, 1993, that the military had been 
consulted.\357\ In connection with the Scruggs inquiry, 
President Clinton provided a statement regarding this telephone 
conversation which in part dealt with his questioning of 
Attorney General Reno regarding consultation with the military. 
The President stated in part:
---------------------------------------------------------------------------
    \357\ Richard Scruggs, U.S. Department of Justice, ``Report to the 
Deputy Attorney General on the Events at Waco, Texas, Feb. 28-Apr. 19, 
1993,'' at 262-263 (Oct. 8, 1993) (unredacted version).

        I asked whether the military had been consulted. I had 
        previously asked that the military be consulted 
        because, based upon my experience as Governor of 
        Arkansas in dealing with a similar type situation in 
        northwest Arkansas, I found that the military had a 
        valuable perspective on how to deal with situations of 
        this type. Attorney General Reno stated that the 
        military had been consulted and that they were in basic 
        agreement with the FBI recommendation. She explained 
        that there was a minor technical difference of opinion, 
        that both the FBI and the military agreed that it was 
        not of overwhelming significance.\358\
---------------------------------------------------------------------------
    \358\ Id. at 263.

    Since April 19, 1993, the Department of Defense has been 
reactive, not proactive, in accounting for the military's 
support during the Waco incident. Whenever asked to provide 
information, briefings or witnesses, for inquiries, interviews 
or investigations, DOD has complied, except when this committee 
requested assistance with obtaining information concerning 
support provided by the Texas and Alabama National Guards.
    DOD is an organization that will, without hesitation, 
collect information and prepare reports regarding a myriad of 
incidents, issues or allegations that involved their personnel 
or equipment. DOD's military and civilian leadership know that 
it is important to find out what happened and whether there are 
any lessons to be learned from events involving their 
personnel. These situations include vehicle accidents, plane 
crashes, ship collisions, military training accidents involving 
injury or death, damage to military equipment, and allegations 
of misconduct, fraud, waste or abuse. In addition, DOD has 
provided military personnel and equipment in support of 
significant national or international events like the 1992 Los 
Angeles riots; the 1996 Olympics; recent natural disaster 
assistance to State and local governments battling floods and 
fire; and international humanitarian relief as we have seen 
throughout the last decade in South America, the Caribbean, the 
Far East and Africa.
    In each case, whether it is a single vehicle involved in a 
training accident, or a prolonged humanitarian assistance 
effort, DOD ensures that some level of after-action assessment 
and report is accomplished for lessons-learned and historical 
record purposes. An overall review of such events assists in 
evaluating whether current practice, policy or procedures are 
appropriate. What is troubling to the committee is that DOD did 
not independently exercise the same wisdom, judgment, and 
leadership with regard to an overall after-action accounting 
for their involvement and assistance at such a significant 
domestic law enforcement event as Waco.
    What exacerbates DOD's failure in this regard even more, is 
that the Secretary of Defense promulgated a regulation in 1986 
requiring that the Secretaries of the Military Departments and 
the Directors of the Defense Agencies prepare a quarterly 
report of all requests for assistance from civilian law 
enforcement officials.\359\ The reports were to be forwarded to 
various offices within the Office of the Secretary of Defense. 
The reports were to outline the details of assistance provided 
(approved, denied, or pending), and any other information 
deemed appropriate. A sample report form was provided within 
the directive to assist in preparing the reports.\360\ Support 
involving the use of classified information or techniques could 
be exempted from the reporting requirement if it was 
impractical to prepare an unclassified summary.
---------------------------------------------------------------------------
    \359\ See DOD Directive 5525.5, DOD Cooperation with Civilian Law 
Enforcement 4 (Jan. 15, 1986) (exhibit 128). The reporting requirements 
in this DOD directive were valid at the time DOD was providing 
assistance at Waco in 1993 and remains valid as of the date of the 
committee's report. DOD has indicated that this directive is currently 
under review.
    \360\ Id. at 26. The directive requests information on various 
categories of support including facilities, information, equipment, 
aviation, explosives and ordinance, sensor equipment, personnel and 
training.
---------------------------------------------------------------------------
    DOD has produced no documents indicating that any quarterly 
reports were prepared as required by their directive regarding 
the support provided by the military to the law enforcement 
agencies concerning the Waco incident. At this late date, no 
explanation can excuse DOD's failure in this regard.

                           F. RECOMMENDATIONS

    The committee recommends the following:
1. Legislative Recommendations
    The Congress should enact legislation requiring the 
following actions by DOD when providing military assistance to 
Federal, State, or local law enforcement agencies:
            a. Notification to Congressional Leadership and Appropriate 
                    Congressional Committees When any Special Mission 
                    Unit, Personnel or Equipment, of the U.S. Special 
                    Operations Command, or Other Commands of the Armed 
                    Forces of the United States, Will Provide 
                    Assistance in Support of Domestic Federal, State or 
                    Local Law Enforcement Operations
    The mission of the Armed Forces of the United States is to 
be ready to confront and prevail in any national security 
challenge that confronts the United States. Our Armed Forces 
must be the most precise, most lethal, most versatile, best 
equipped, and best trained forces in the world. The American 
people expect and demand no less. Congress directed the 
establishment of the U.S. Special Operations Command in 1987 to 
correct serious deficiencies in the ability of the United 
States to conduct special operations activities. Their usual 
focus is to provide a full range of activities in support of 
our national security objective outside our country's 
boundaries.
    Because of their unique capabilities and equipment, special 
mission units are, at times, called upon to support law 
enforcement activities within the United States. Congress has 
recognized the importance of allowing law enforcement to have 
access to this unique expertise and has authorized certain 
exceptions to the Posse Comitatus Act to enable such support. 
When such support occurs, it is generally withheld from the 
public because of the classified nature of special mission 
units, personnel and equipment within the special operations 
community. When the public does become aware that such support 
has been provided domestically, it is generally after the law 
enforcement event has ended. The public is not only surprised, 
but to an increasing number of Americans, it is an issue of 
concern. When law enforcement events have tragic conclusions, 
as occurred at Waco, the American people expect and deserve a 
full, complete and accurate accounting of what occurred, 
especially when our country's special mission units have been 
used domestically.
    Congressional leadership and committees of appropriate 
jurisdiction need to be made aware in advance whenever special 
mission units, personnel or associated equipment will be used 
in support of domestic law enforcement activities. Congress has 
an oversight responsibility on behalf of the American people 
that can only be accomplished with advance awareness of when 
this type of support will occur. Prior notification to Congress 
will also enable DOD to conduct such support with the knowledge 
that the elected representatives of the American people have 
been consulted in the decision scenario that led to the use of 
these very specialized military units in domestic law 
enforcement operations.
            b. Annual Report to Congress by DOD Providing an Accounting 
                    of all Events in Which Active Duty, National Guard 
                    or Reserve Units, Personnel, or Equipment Have Been 
                    Provided in Support of Federal, State or Local Law 
                    Enforcement Operations
    At the present time, DOD does have a requirement to collect 
a certain level of law enforcement support information. The 
Secretary of Defense has directed that a quarterly report of 
all such assistance (approved, denied, or pending) shall be 
submitted by the Secretaries of the Military Departments and 
the Directors of Defense Agencies to the Office of the 
Secretary of Defense. However, there is no concurrent 
requirement to provide Congress with this information. This 
same information would be of immeasurable benefit to the 
Congress as they accomplish their oversight responsibilities.
2. Oversight Hearing Recommendation
    Appropriate congressional committees should conduct 
oversight hearings regarding: (1) the appropriateness of 
applying the Posse Comitatus Act to the National Guard with 
respect to support situations where a Federal law enforcement 
agency serves as the lead agency; and (2) the legal status of 
memoranda of agreements for the interstate use of National 
Guard personnel and equipment for civilian law enforcement 
purposes.
    Within the 1996 subcommittee report, it was recommended 
these hearings occur. Our current inquiry reconfirms the need 
for such congressional action for the reasons presented within 
the 1996 report.\361\
---------------------------------------------------------------------------
    \361\ See H. Rept. No. 104-749 (1996) at 53-55.
---------------------------------------------------------------------------
    [The exhibits referred to follow:]
    
    

MINORITY VIEWS OF HON. HENRY A. WAXMAN, HON. TOM LANTOS, HON. MAJOR R. 
  OWENS, HON. EDOLPHUS TOWNS, HON. PAUL E. KANJORSKI, HON. CAROLYN B. 
  MALONEY, HON. ELEANOR HOLMES NORTON, HON. CHAKA FATTAH, HON. ELIJAH E. 
  CUMMINGS, HON. DENNIS J. KUCINICH, HON. ROD R. BLAGOJEVICH, HON. DANNY 
  K. DAVIS, HON. JOHN F. TIERNEY, HON. JIM TURNER, AND HON. HAROLD E. 
  FORD, Jr.

                            I. Introduction

    The committee's Waco investigation began as many of the 
committee's other investigations have begun: with a false 
accusation. In August 1999, after the media reported that the 
FBI had used pyrotechnic tear gas rounds at Waco, 
Representative Dan Burton accused Attorney General Janet Reno 
of covering up key facts and said that she should be removed 
from office. On one nationally broadcast radio program, Mr. 
Burton said that Attorney General Reno ``should be summarily 
removed, either because she's incompetent, number one, or, 
number two, she's blocking for the President and covering 
things up, which is what I believe.'' \1\
---------------------------------------------------------------------------
    \1\ ``Morning Edition,'' NPR (Aug. 31, 1999).
---------------------------------------------------------------------------
    In September 1999, Mr. Burton renewed his accusations of a 
cover-up by asserting that the Justice Department did not 
provide Congress with documents detailing the FBI's use of 
military tear gas rounds near the Branch Davidian compound on 
April 19, 1993. In particular, he accused the Justice 
Department of deliberately concealing the 49th page of an FBI 
lab report, which contained a reference to a spent military 
tear gas round. Prior to conducting any meaningful 
investigation, Mr. Burton said on national television, ``With 
the 49th page of this report not given to Congress, when we 
were having oversight hearings into the tragedy at Waco, and 
that was the very definitive piece of paper that could have 
given us some information, it sure looks like they were 
withholding information. And she's responsible.'' \2\
---------------------------------------------------------------------------
    \2\ ``Fox News Sunday,'' Fox News (Sept. 12, 1999).
---------------------------------------------------------------------------
    Mr. Burton's allegations turned out to be untrue. 
Representative Henry A. Waxman pointed out that the Justice 
Department had produced documents to the committee in 1995 that 
contained numerous explicit references to military tear gas 
rounds.\3\ Former Senator John C. Danforth then thoroughly 
investigated the matter as Special Counsel. He found that there 
was no cover-up by the Attorney General. In fact, Senator 
Danforth found that the 49th page had never been missing at 
all. According to Senator Danforth's report: ``[T]he Committees 
were provided with at least two copies of the lab report in 
1995 which did contain the 49th page. The Office of Special 
Counsel easily located these complete copies of the lab report 
at the Committees' offices.'' \4\
---------------------------------------------------------------------------
    \3\ Letter from Representative Henry A. Waxman to Senator John C. 
Danforth (Sept. 13, 1999) (attached as exhibit 1).
    \4\ John C. Danforth, Special Counsel, ``Interim Report to the 
Deputy Attorney General Concerning the 1993 Confrontation at the Mt. 
Carmel Complex, Waco, Texas'' (July 21, 2000) (hereinafter ``Danforth 
report'') (attached as exhibit 2).
---------------------------------------------------------------------------
    This committee's investigation into Waco should have ended 
on September 9, 1999, when Attorney General Reno appointed 
Senator Danforth to serve as Special Counsel to investigate 
lingering questions related to the Branch Davidian standoff in 
1993. Since that date, Mr. Burton's investigation has been 
unnecessary, expensive, and fruitless. He has required Federal 
agencies to produce nearly 800,000 pages of documents, called 
more than 80 witnesses to appear for interviews, and dispatched 
committee staff across the country from Puerto Rico to Texas. 
And despite the duration and cost to the Federal Treasury, his 
investigation has contributed virtually nothing to the public's 
understanding of the Waco tragedy.
    On the substance of this investigation, we concur with the 
major findings of Senator Danforth and with the findings of 
fact issued by Judge Walter S. Smith, Jr., of the U.S. District 
Court for the Western District of Texas.\5\ Senator Danforth 
and Judge Smith both concluded that the government did not 
cause the fire at the Branch Davidian complex and did not 
direct gunfire at the Branch Davidian complex on April 19, 
1993. We also concur with Senator Danforth's conclusion that 
the government did not improperly employ U.S. armed forces 
during the Waco standoff and that senior Justice Department and 
FBI officials--including Attorney General Janet Reno and FBI 
Director William Sessions--did not knowingly make false 
statements about the FBI's use of pyrotechnic tear gas rounds 
on April 19, 1993.\6\
---------------------------------------------------------------------------
    \5\ Amended findings of fact and conclusions of law, Andrade v. 
United States, No. W-96-CA-139 (W.D. Tex. filed Sept. 27, 2000) 
(hereinafter ``findings of fact and conclusions of law'') (attached as 
exhibit 3).
    \6\ Danforth report at 51. The minority has no information to 
substantiate or refute Senator Danforth's interim findings that a staff 
attorney for the FBI failed to disclose that an FBI agent used 
pyrotechnic tear gas rounds and gave conflicting information to Senator 
Danforth's investigators. Committee staff interviewed this individual, 
Jacqueline Brown, on Jan. 7, 2000. The minority staff found her to be 
cooperative and truthful in her responses to the questions posed by 
committee staff.
---------------------------------------------------------------------------
    Although one can with hindsight second guess decisions made 
at virtually all levels of the FBI and Justice Department, the 
fact remains that the Federal officials involved in the Waco 
standoff acted lawfully and with great restraint under 
difficult circumstances. As both Senator Danforth and Judge 
Smith concluded, the responsibility for the Waco tragedy lies 
with certain Branch Davidians and particularly their leader, 
David Koresh.\7\
---------------------------------------------------------------------------
    \7\ Danforth report at 5; findings of fact and conclusions of law 
at 10.
---------------------------------------------------------------------------

     II. Mr. Burton Began His Investigation With Erroneous Charges

    Mr. Burton, in a pattern that has become typical of this 
committee, first alleged wrongdoing by a Clinton administration 
official and then proceeded to investigate.\8\ In August 1999, 
the press reported that pyrotechnic tear gas rounds had been 
used at Waco, contrary to statements made by Attorney General 
Reno and other officials that the FBI had only used 
nonpyrotechnic tear gas rounds.\9\ Mr. Burton immediately 
attacked the Attorney General, stating on one nationally 
broadcast television program, ``I think she either misled 
Congress and covered this up or she was totally incompetent. . 
. . [S]he should be removed because she's just not doing her 
job.'' \10\
---------------------------------------------------------------------------
    \8\ A report recently released by Representative Waxman describes 
many similar allegations that have occurred over the last 6 years. See 
``Unsubstantiated Allegations of Wrongdoing Involving the Clinton 
Administration,'' Minority Staff Report, Committee on Government Reform 
(Oct. 2000) (attached as exhibit 4).
    \9\ ``FBI Reverses Its Stand on Waco,'' Washington Post (Aug. 26, 
1999).
    \10\ ``Hannity & Colmes,'' Fox News (Aug. 30, 1999).
---------------------------------------------------------------------------
    Mr. Burton soon renewed his accusations of a cover-up, 
alleging that the Justice Department failed to provide Congress 
documents describing the FBI's use of pyrotechnic tear gas 
rounds. In particular, Mr. Burton accused the Justice 
Department of concealing from Congress the 49th page of an FBI 
lab report. This page, the last in the document, contained the 
following reference to the FBI's use of a military-style tear 
gas round: ``Specimen Q1237 (B160) is a fired U.S. Military 40 
mm shell casing which originally contained a CS gas round.'' 
\11\ To a person with specialized knowledge of tear gas 
projectiles, this would indicate the use of a pyrotechnic 
projectile, capable of igniting a fire.
---------------------------------------------------------------------------
    \11\ Memorandum from FBI Laboratory to Sergeant James Miller, Texas 
Rangers (Dec. 6, 1993).
---------------------------------------------------------------------------
    Mr. Burton charged that Justice Department officials, 
including the Attorney General of the United States, were 
involved in a cover-up. Mr. Burton wrote in a September 10, 
1999, letter to Attorney General Reno:

        It is difficult for me to believe that the Department 
        had multiple copies of a document, produced only one 
        copy of the document to Congress, and then managed to 
        lose the one critical page of the document mentioning 
        the use of pyrotechnic tear gas. Had page 49 of the FBI 
        report been produced to Congress when it was originally 
        requested years ago, it would have cast doubt onto the 
        testimony of a number of Department officials. The 
        Department's failure to produce this document when it 
        was originally requested raises more questions about 
        whether this Committee was intentionally misled during 
        the original Waco investigation.\12\
---------------------------------------------------------------------------
    \12\ Letter from Representative Dan Burton to Attorney General 
Janet Reno (Sept. 10, 1999).

    Over the following weekend, Mr. Burton repeated his 
accusation of a cover-up by the Attorney General, stating on 
one nationally broadcast television program, ``that was the 
very definitive piece of paper that could have given us some 
information, it sure looks like they were withholding 
information. And she's responsible.'' \13\
---------------------------------------------------------------------------
    \13\ ``Fox News Sunday,'' Fox News (Sept. 12, 1999).
---------------------------------------------------------------------------
    Mr. Burton's allegations were not only unsupported by the 
evidence, they were directly contradicted by information in his 
own files.
    In 1995, a subcommittee of the Government Reform and 
Oversight Committee and a subcommittee of the House Judiciary 
Committee conducted an investigation into the activities of 
Federal law enforcement agencies toward the Branch Davidians. 
As part of that inquiry, the subcommittees issued document 
requests to the White House and the Departments of Justice, 
Treasury, and Defense. The records produced in response to 
these requests were stored in over 40 boxes in congressional 
archives until August 1999, when they were recalled by Mr. 
Burton.
    At the time Mr. Burton alleged that the Attorney General 
had withheld information on the use of military-style tear gas 
rounds, he had documents in his own possession that explicitly 
discuss the use of military-style tear gas rounds at Waco. Many 
of these documents were located by Representative Waxman's 
staff in boxes in Mr. Burton's offices within a few days of Mr. 
Burton's allegations.\14\ One document provided to Congress in 
1995, for example, was a report of an interview of the FBI 
agent who co-piloted the surveillance aircraft flying above the 
Branch Davidian compound on the morning of April 19, 1993. 
According to this document, the pilot reported hearing ``a high 
volume of [Hostage Rescue Team] traffic and Sniper [Tactical 
Operations Center] instructions regarding . . . the insertion 
of gas by ground units,'' including ``one conversation relative 
to utilization of some sort of military round to be used on a 
concrete bunker.'' \15\
---------------------------------------------------------------------------
    \14\ Letter from Representative Henry A. Waxman to Senator John C. 
Danforth (Sept. 13, 1999).
    \15\ Interview of Special Agent R. Wayne Smith, Federal Bureau of 
Investigation FD-302 (June 9, 1993).
---------------------------------------------------------------------------
    Another document produced to Congress in 1995 was a 
typewritten chart prepared by Justice Department prosecutors in 
connection with the criminal trial of surviving Branch 
Davidians. The chart, which summarizes interviews with 
potential witnesses for the prosecution, identifies each 
Hostage Rescue Team member interviewed, the name of the 
interviewer, a summary of significant observations made by the 
witness, and whether each witness would be placed on the 
prosecution's witness list for trial. According to the chart, 
one witness, who was later identified as Special Agent Dave 
Corderman, was expected to testify that ``smoke on film came 
from attempt to penetrate bunker w/1 military and 2 ferret 
rounds.'' \16\ In addition, the document indicates that the 
witness described the appearance of the military round, 
stating: ``Military was grey bubblehead w/green base.'' \17\
---------------------------------------------------------------------------
    \16\ Unidentified handwritten notes.
    \17\ Id.
---------------------------------------------------------------------------
    Also among the documents produced by the Justice Department 
to House investigators in 1995 were handwritten notes clearly 
describing the use of military rounds in the Waco operation and 
describing that such rounds were ``incendiary.'' One set of 
notes read, ``Smoke from bunker--came when these guys tried to 
shoot gas into the bunker. (Military gas round) . . . grey 
bubblehead w/green base.'' The term ``military'' or ``military 
round'' appears twice again in the same paragraph, and an arrow 
points from the word ``military'' to the word ``incendiary.'' 
\18\ Notes on the following page read, ``Obj[ective]: to keep 
people from fleeing into bunker.'' \19\
---------------------------------------------------------------------------
    \18\ Unidentified handwritten notes.
    \19\ Id.
---------------------------------------------------------------------------
    Not only were there numerous references to the use of 
military tear gas at Waco in Mr. Burton's own files, but those 
files also contained the 49th page of the FBI lab report that 
Mr. Burton alleged had never been produced to Congress. After 
thoroughly investigating this issue, Senator Danforth found:

        Attorneys from the Department of Justice who produced 
        documents to the United States House of Representatives 
        Committee on Government Reform and Oversight and the 
        Committee on the Judiciary in advance of the 1995 
        hearings have come under public scrutiny for producing 
        the FBI laboratory report containing the reference to 
        the military tear gas round without the 49th page, 
        which contains the relevant reference. In fact, 
        however, while one copy of the report did not contain 
        the 49th page, the Committees were provided with at 
        least two copies of the lab report in 1995 which did 
        contain the 49th page. The Office of Special Counsel 
        easily located these complete copies of the lab report 
        at the Committees' offices when it reviewed the 
        Committees' copy of the 1995 Department of Justice 
        document production. . . . The Special Counsel has 
        concluded that the missing page on one copy of the lab 
        report provided to the Committees is attributable to an 
        innocent photocopying error and the Office of Special 
        Counsel will not pursue the matter further.\20\
---------------------------------------------------------------------------
    \20\ Danforth report at 54.

    Mr. Burton has never apologized for making these 
unsubstantiated allegations of a government cover-up. To the 
contrary, in the majority's report, he renews the false 
accusation, suggesting that Justice Department and FBI 
officials deliberately delayed production of these documents to 
this committee in 1995 in order to conceal the truth.\21\ The 
majority writes, ``Sadly, the Justice Department did not 
produce the requested documents until three days before the 
start of the hearings.'' \22\ In fact, however, the Justice 
Department received broad document requests 6 weeks before this 
committee held joint hearings with the Judiciary Committee in 
1995 and, by agreement with the committee, produced 250,000 
pages on a prioritized basis.\23\ The Justice Department 
produced two complete copies of the FBI lab report to the 
committees on July 6, 1995.\24\ The committees thus received 
the FBI lab report not 3 days ahead of the 1995 hearings, but 
13 days before the start of the hearings, 26 days before the 
conclusion of the hearings, and 392 days before the committees 
issued their joint report on August 2, 1996.
---------------------------------------------------------------------------
    \21\ See majority report at 30 n. 106, 31.
    \22\ Id. at 30 n. 106.
    \23\ See letter from Kent Marcus, Acting Assistant Attorney General 
for Legislative Affairs, to Chairman William H. Zeliff, Jr., and 
Chairman William McCollum (July 6, 1995).
    \24\ See id.; letter from Jon P. Jennings, Principal Deputy 
Assistant Attorney General, to Chairman Dan Burton (Oct. 22, 1999).
---------------------------------------------------------------------------

      III. Mr. Burton's Investigation Was Unnecessary and Wasteful

    Since September 1999, the committee has conducted an 
unnecessary and wasteful investigation of Waco. Virtually every 
document the committee has obtained and virtually every witness 
interviewed by committee staff was examined by Senator Danforth 
in the course of his detailed Waco investigation.

            a. senator danforth thoroughly investigated waco

    Despite a voluminous public record that had been developed 
on the Waco tragedy between 1993 and 1997, three developments 
occurring in August and September 1999 generated public 
interest in whether the government caused or contributed to the 
deaths of Branch Davidians at Waco and whether government 
officials had engaged in a cover-up. First, the FBI 
acknowledged on August 25, 2000, that it used a limited number 
of pyrotechnic tear gas projectiles on April 19, 1993.\25\ 
Second, on September 2 and 3, 1999, the FBI released videotapes 
taken the morning of April 19, 1993, by an FBI surveillance 
aircraft using Forward Looking Infrared Radar (FLIR).\26\ Prior 
to that time, the FBI and Justice Department had maintained 
that they only had FLIR tapes beginning later in the 
morning.\27\ Third, news stories around the country reported 
that the Justice Department had evidence of the use of 
pyrotechnic tear gas rounds but failed to produce it to 
Congress in 1995.\28\
---------------------------------------------------------------------------
    \25\ ``Branch Davidian Compound--Waco, Texas,'' press release, U.S. 
Department of Justice, Federal Bureau of Investigation (Aug. 25, 1999) 
(on line at http://www.fbi.gov/pressrm/pressrel/pressre199/
presswaco2.htm).
    \26\ ``FBI Releases Waco Videotape,'' press release, U.S. 
Department of Justice, Federal Bureau of Investigation (Sept. 2, 1999) 
(on line at http://www.fbi.gov/pressrm/pressrel/pressre199/
wacorel.htm); ``FBI Releases Second Waco Videotape,'' press release, 
U.S. Department of Justice, Federal Bureau of Investigation (Sept. 3, 
1999) (on line at http://www.fbi.gov/pressrm/pressrel/pressrel199/
wacorel2.htm).
    \27\ Danforth report at 141.
    \28\ E.g. ``Burton Opens Investigation of Waco Tactics,'' CNN.com 
(Aug. 30, 1999) (on line at: http://www.cnn.com/allpolitics/stories/
1999/08/30/tbi.waco); ``FBI Suggests Outside Probe of Waco Siege,'' 
Washington Times (Sept. 1, 1999); ``Marshals Acting on Reno's Orders 
Seize FBI Tape,'' New York Times (Sept. 2, 1999).
---------------------------------------------------------------------------
    These developments caused a number of Republican leaders in 
the House and Senate to call for investigations, including 
Representative Henry Hyde, Representative Dan Burton, Senator 
Orrin Hatch, and Senator Arlen Specter.\29\
---------------------------------------------------------------------------
    \29\ ``FBI Admits Using Tear Gas at Waco,'' Associated Press (Aug. 
25, 1999).
---------------------------------------------------------------------------
    Attorney General Reno quickly responded to concerns raised 
by Members of Congress and by the media. On September 9, 1999, 
she appointed John Danforth, a highly respected former 
Republican U.S. Senator, as Special Counsel. As part of his 
mandate, Senator Danforth agreed to investigate five principal 
issues: (1) whether the government caused or contributed to the 
fire on April 19, 1993; (2) whether the government directed 
gunfire at the Branch Davidians on April 19, 1993; (3) whether 
the government used any incendiary or pyrotechnic device on 
April 19, 1993; (4) whether the government illegally employed 
the armed forces at Waco; and (5) whether government officials 
made false statements or concealed information about the events 
on April 19, 1993.\30\ After receiving his appointment, Senator 
Danforth said that he planned to conduct an aggressive inquiry 
into whether there were ``bad acts, not whether there was bad 
judgment.'' \31\
---------------------------------------------------------------------------
    \30\ Danforth report at 2-3.
    \31\ ``Aggressive Waco Probe Is Promised: Danforth Takes Over, Reno 
Recuses Herself,'' Washington Post, (Sept. 10, 1999).
---------------------------------------------------------------------------
    Attorney General Reno's appointment of Senator Danforth 
received wide praise. Republican Senator Fred Thompson said 
that Senator Danforth ``has an excellent reputation and the 
highest integrity.'' \32\ House Majority Leader Dick Armey 
questioned the need for any congressional hearings and 
expressed confidence in Senator Danforth, calling him ``a man 
of impeccable integrity.'' \33\ Mr. Burton said, ``He's a fine 
man, and I think Senator Danforth is going to do a commendable 
job.'' \34\
---------------------------------------------------------------------------
    \32\ ``Reno Picks Waco Head,'' Baltimore Sun (Sept. 9, 1999).
    \33\ ``Armey Questions Need for New Hearings On Davidian Siege,'' 
Dallas Morning News (Oct. 8, 1999).
    \34\ ``Hannity & Colmes,'' Fox News (Oct. 19, 1999).
---------------------------------------------------------------------------
    Senator Danforth proceeded to conduct a thorough and 
professional investigation of Waco. He hired over 70 staff to 
assist him in the investigation. As of July 2000, the Office of 
Special Counsel had interviewed 849 witnesses, reviewed over 2 
million pages of documents, and examined thousands of pounds of 
physical evidence.\35\
---------------------------------------------------------------------------
    \35\ Danforth report at 4.
---------------------------------------------------------------------------
    Senator Danforth released an interim report on his 
investigation on July 21, 2000.\36\ The report found, among 
other things, that government agents did not start or spread 
the fire that consumed the Branch Davidian compound, did not 
direct gunfire at the Branch Davidians, and did not unlawfully 
employ U.S. armed forces at Waco. The report was widely 
regarded as thorough and accurate. An editorial in the 
Washington Post called it ``a welcome clarification of the 
record on this seemingly endless saga'' and concluded that it 
was ``time, finally, for Waco to recede into history.'' \37\
---------------------------------------------------------------------------
    \36\ Although Senator Danforth released his principal findings in 
his interim report, his investigation of certain issues is ongoing to 
date.
    \37\ ``Waco: Case Closed,'' Washington Post (July 23, 2000).
---------------------------------------------------------------------------

      b. chairman burton's investigation duplicated the danforth 
                             investigation

    Despite the appointment of Senator Danforth as Special 
Counsel, Representative Burton persisted in conducting his own 
investigation. This investigation was substantial. It involved 
considerable staff resources, required Federal agencies to 
produce hundreds of thousands of pages of documents, resulted 
in extensive staff travel, and included many witness 
interviews. And in almost every respect, it duplicated the work 
of Senator Danforth and his staff.
    As part of the investigation, Mr. Burton issued subpoenas 
to the Department of Justice, the FBI, the White House, and the 
Defense Department. Among the categories of documents required 
by committee subpoenas, Mr. Burton demanded all documents 
related to munitions issued to the Hostage Rescue Team; the 
various forms of tear gas used at Waco; all briefings given by 
the FBI during the siege; audio surveillance devices at Waco; 
contacts between the Department of Justice and the White House; 
contacts between the FBI and the Department of Defense; 
infrared imagery and analysis; the use of aircraft, 
helicopters, or armored vehicles; all photographs of the Branch 
Davidian compound; military involvement at Waco; military 
personnel at Waco; and ``military personnel who provided advice 
or assistance of any sort'' to the Justice Department, the FBI, 
or the White House.\38\
---------------------------------------------------------------------------
    \38\ See subpoena duces tecum to Director Louis Freeh, Federal 
Bureau of Investigation (Sept. 1, 1999); subpoena duces tecum to 
Attorney General Janet Reno, U.S. Department of Justice (Sept. 1, 
1999); subpoena duces tecum to the Executive Office of the President 
(Sept. 1, 1999); subpoena duces tecum to William S. Cohen, Secretary of 
Defense (Sept. 1, 1999); subpoena duces tecum to Federal Bureau of 
Investigation (Sept. 15, 1999); subpoena duces tecum to U.S. Department 
of Justice (Feb. 16, 2000).
---------------------------------------------------------------------------
    To comply with these subpoenas, Federal agencies have 
produced over 795,000 pages of documents. According to Attorney 
General Janet Reno:

        Just on Waco alone we provided 724,169 pages of 
        documents, 12 looseleaf binders of FBI lab reports, 18 
        diskettes of documents, 101 videotapes, 729 audio 
        tapes, 2,161 photographs, slides, charts, drawings, 8 
        CD ROMs of color photographs.\39\
---------------------------------------------------------------------------
    \39\ Interview of Attorney General Reno at 29 (Oct. 5, 2000). By 
October 19, the number of documents the Justice Department had produced 
increased to 730,000. Letter from Robert Raben, Assistant Attorney 
General for Legislative Affairs, to Chairman Dan Burton (Oct. 19, 
2000).

    This extensive document production was costly and 
redundant. According to representatives of the Justice 
Department, the FBI, and the Defense Department familiar with 
both investigations, the committee received few, if any, 
documents that were not also provided to Senator Danforth and 
his staff. In an October 19, 2000, letter to Representative 
Burton, Assistant Attorney General Robert Raben noted that the 
Justice Department had made over 80 separate productions of 
materials to the committee. He estimated that the cost of 
producing Waco-related materials to this committee and other 
congressional committees exceeded $800,000.\40\
---------------------------------------------------------------------------
    \40\ Letter from Robert Raben, Assistant Attorney General for 
Legislative Affairs, to Chairman Dan Burton (Oct. 19, 2000).
---------------------------------------------------------------------------
    The committee's witness interviews were also duplicative of 
Senator Danforth's efforts. Despite the ongoing efforts of 
Senator Danforth, this committee conducted more than 80 
interviews of government employees and private citizens with 
knowledge on various aspects of the Waco standoff. The majority 
conducted 77 interviews jointly with the minority staff. Five 
witnesses appeared for interview twice before the minority and 
majority staff. Two other known witnesses were interviewed 
outside the presence of minority staff. Most of these 
interviews lasted 2 or more hours and required the subject of 
the interview to leave work and appear at the committee's 
offices. On several occasions, committee staff traveled to 
conduct interviews outside the District of Columbia, including 
trips to Florida, New York, North Carolina, Pennsylvania, 
Puerto Rico, and Texas.
    In a September 22, 2000, letter, Representative Waxman 
provided a list of joint interviews to Senator Danforth and 
asked how many witnesses interviewed by the committee had been 
interviewed by the Office of Special Counsel.\41\ Senator 
Danforth responded on September 26, 2000, and identified only 
six individuals who were not interviewed by the Office of 
Special Counsel.\42\ These six individuals provided no 
significant information that is not addressed in Senator 
Danforth's report.\43\
---------------------------------------------------------------------------
    \41\ Letter from Representative Henry Waxman to Senator John 
Danforth (Sept. 22, 2000).
    \42\ These individuals were David Binney, Gregory Johnson, James 
Lockner, David Margolis, Peter Proach, and Rod Rosenstein.
    \43\ The six witnesses provided information about the adequacy of 
the Justice Department's internal investigation and the provision of 
military assistance at Waco. Both subjects were extensively discussed 
by Senator Danforth. See Danforth report at 51-52, 29-41.
---------------------------------------------------------------------------

 III. The Investigation Contributed Virtually Nothing to the Public's 
                   Understanding of the Waco Tragedy

    Although the majority report spans 100 pages and includes 
approximately 1,390 pages of exhibits, it contributes virtually 
nothing to the public's understanding of Waco. To the extent 
that the majority's conclusions differ from those of the Office 
of Special Counsel, they consist largely of unsupported 
allegations of wrongdoing.

   a. the majority report repeats many of the conclusions of senator 
                                danforth

    Many of the majority report's findings mimic those of 
Senator Danforth's report. The Office of Special Counsel 
concluded that government agents did not direct gunfire at the 
Branch Davidian compound; \44\ that a Hostage Rescue Team (HRT) 
member fired three pyrotechnic tear gas rounds on April 19, 
1993, but those rounds had nothing to do with the fire that 
consumed the compound; \45\ that certain government attorneys 
and the former commander of the HRT had reason to know about 
the use of pyrotechnic tear gas rounds on April 19, 1993, but 
failed to correct an inaccurate public record; \46\ that the 
Justice Department's internal review failed adequately to 
investigate evidence that pyrotechnic rounds had been fired on 
April 19, 1993; \47\ and that the government did not improperly 
or unlawfully employ the U.S. military as part of its law 
enforcement operation at Waco.\48\
---------------------------------------------------------------------------
    \44\ Id. at 4.
    \45\ Id. at 4-5.
    \46\ Id. at 47, 52-53, 56.
    \47\ Id. at 52.
    \48\ Id. at 29.
---------------------------------------------------------------------------
    All these findings are echoed in the majority report. This 
committee's recitation of similar facts and conclusions does 
not make a meaningful contribution to the public record.

 b. the majority report makes unsubstantiated allegations of wrongdoing

    The majority report departs from Senator Danforth's report 
primarily in its conclusions that Attorney General Reno and 
certain current and former Justice Department employees engaged 
in wrongdoing. But, as is discussed below, these conclusions 
are nothing more than unsupported allegations.
1. Allegations Involving Attorney General Reno
    In its report, the majority makes several unsubstantiated 
allegations regarding the Attorney General. The majority 
concludes that Attorney General Reno was uninterested in 
learning or disclosing the true facts about Waco, that she 
``reversed'' her decision disapproving of the FBI's tear gas 
plan without any basis, and that she misrepresented that the 
military approved or endorsed the FBI's tear gas plan. These 
allegations are unsupported by the facts and have no merit.
            a. Allegation That the Attorney General Was Not Interested 
                    in Disclosing the Truth about Waco
    The majority unfairly concludes that the Attorney General 
and the Justice Department had no interest in learning or 
disclosing the facts surrounding Waco. The majority writes that 
``[a]ll of the actions taken by the Justice Department were 
consistent with an organization that was not eager to learn the 
full truth about what happened on April 19, 1993.'' \49\ The 
majority also states:
---------------------------------------------------------------------------
    \49\ Majority report at 6.

        It is troubling that the Waco tragedy did not seem to 
        merit a ``vigorous and thorough investigation.'' 
        President Clinton called for such an inquiry. Attorney 
        General Reno promised such an inquiry would take place. 
        Neither took the steps necessary to make sure it would 
        happen again.\50\
---------------------------------------------------------------------------
    \50\ Id. at 27.

    In fact, the Attorney General tried hard to investigate the 
events at Waco. After the Waco fire on April 19, 1993, Attorney 
General Reno directed her assistant Richard Scruggs, a career 
Federal prosecutor, to begin an investigation to find out what 
happened in order to avoid a similar tragedy in the future. 
According to Mr. Scruggs, the Attorney General did not limit 
the scope of the inquiry in any way.\51\ Moreover, Mr. Scruggs 
received significant Justice Department resources in conducting 
this investigation. Mr. Scruggs was assisted by senior Justice 
Department attorneys and the Assistant Director of the FBI's 
Inspection Division. According to Mr. Scruggs, the Inspection 
Division made use of an army of FBI agents from several offices 
around the country.\52\
---------------------------------------------------------------------------
    \51\ Interview of Richard Scruggs (Jan. 5, 2000).
    \52\ Id.
---------------------------------------------------------------------------
    In addition, Attorney General Reno asked a distinguished 
outside attorney, Edward Dennis, Jr., to conduct an independent 
evaluation of the Justice Department's and FBI's conduct at 
Waco.\53\ Mr. Dennis had served in several senior Justice 
Department positions, including Acting Deputy Attorney General 
and Assistant Attorney General for the Criminal Division during 
the Bush administration, and, during the Reagan administration, 
U.S. Attorney for the Eastern District of Pennsylvania.\54\
---------------------------------------------------------------------------
    \53\ See Edward S.G. Dennis, Jr., ``Evaluation of the Handling of 
the Branch Davidian Stand-Off in Waco, Texas By the United States 
Department of Justice and the Federal Bureau of Investigation'' (Sept. 
24, 1993); interview of Edward S.G. Dennis, Jr. (Jan. 14, 2000).
    \54\ Interview of Edward S.G. Dennis, Jr. (Jan. 14, 2000).
---------------------------------------------------------------------------
    It is true that there were deficiencies in these 
investigations. For example, the investigations should have 
discovered and disclosed the FBI's use of pyrotechnic tear gas 
rounds and indicated that the pyrotechnic tear gas rounds did 
not contribute to the fire in the Branch Davidian compound. But 
these deficiencies cannot be fairly attributed to the Attorney 
General. The Attorney General was not involved in the details 
of either investigation. In fact, Mr. Scruggs, who was 
primarily responsible for developing the factual record, made a 
conscious decision not to report to the Attorney General 
because she was a fact witness.\55\
---------------------------------------------------------------------------
    \55\ Interview of Richard Scruggs (Jan. 5, 2000).
---------------------------------------------------------------------------
    Senator Danforth specifically addressed whether the 
Attorney General made knowing misstatements about the use of 
pyrotechnic tear gas rounds and whether she took adequate steps 
to determine the true facts. He concluded that Attorney General 
Reno was without fault and that she made diligent efforts to 
learn the truth. In his report, he writes:

        The Office of Special Counsel has concluded that 
        Attorney General Reno did not knowingly cover up the 
        use of pyrotechnic tear gas rounds by the FBI. The 
        evidence is overwhelming that, prior to the execution 
        of the gassing plan, she sought and received assurances 
        from the FBI that it would not use pyrotechnic tear gas 
        rounds. The evidence is equally conclusive that the 
        briefing materials and other information she received 
        after the fact stated that the FBI had not used 
        pyrotechnic tear gas rounds at Waco. Any misstatement 
        that she made was inadvertent and occurred after 
        diligent efforts on her part to learn the truth. The 
        Office of Special Counsel has completed its 
        investigation of Attorney General Reno, [and] found her 
        to be without direct fault for any false statements 
        that she may have made.\56\
---------------------------------------------------------------------------
    \56\ Danforth report at 51.
---------------------------------------------------------------------------
    Attorney General Reno first learned about the use of 
pyrotechnic tear gas rounds in August 1999. She reacted with 
surprise and anger to the revelation and acted quickly to 
determine the facts.\57\ By September 9, she had completed a 
search for an impartial outside investigator and appointed John 
Danforth, a respected Republican former Senator, as Special 
Counsel. As is detailed in the Danforth report, the Attorney 
General gave Senator Danforth extensive resources and 
prosecutorial power to determine the truth.\58\
---------------------------------------------------------------------------
    \57\ See, e.g, ``Waco's New Question: Who Knew? Two Days After 
Blaze, Information on Grenades Was Withheld or Overlooked,'' Washington 
Post (Sept. 3, 1999).
    \58\ See Danforth report at 2-3.
---------------------------------------------------------------------------
            b. Allegation that the Attorney General Failed to Disclose 
                    Her Reasons for Approving the FBI's Tear Gas Plan
    As part of the efforts to end the siege at Waco, the 
Attorney General approved an FBI plan to insert tear gas into 
the Branch Davidian compound after initially withholding her 
approval of the use of tear gas.\59\ In another unsubstantiated 
allegation, the majority asserts that the Attorney General has 
failed to disclose her reasons for ``reversing'' herself and 
allowing the use of the tear gas. The majority states that her 
purported failure to explain her actions is inconsistent with 
President Clinton's directive to make all of the facts 
public.\60\
---------------------------------------------------------------------------
    \59\ The tear gas approved by the Attorney General and used inside 
the Branch Davidian residence was not delivered by means of a 
pyrotechnic projectile. Rather, the tear gas used in the residence was 
sprayed from the nozzle of Model V Projecto-Jet canisters installed on 
combat engineering vehicles or fired from M-79 grenade launchers in 
``ferret rounds.'' Ferret rounds disperse the CS gas on impact, without 
using a pyrotechnic mixture. See interview of Monty Jett (Feb. 1, 
2000).
    \60\ Majority report at 47.
---------------------------------------------------------------------------
    In fact, however, Attorney General Reno has explained on 
numerous occasions why she decided to approve the FBI's plan to 
use tear gas.\61\ Indeed, the Attorney General has explained 
her decision at least twice to members of this committee.\62\ 
As recently as October 5, 2000, Attorney General Reno repeated 
to committee members why she decided to approve the FBI's plan. 
She said:
---------------------------------------------------------------------------
    \61\ E.g. ``Press Conference on Branch Davidian April 19, 1993 
Crisis'' (Apr. 19, 1993) (Bates Stamp No. CNG 3691272-300); House 
Committee on the Judiciary, ``Events Surrounding the Branch Davidian 
Cult Standoff in Waco, Texas,'' 103d Cong., 21-39, 48-51, 80-82 (Apr. 
28, 1993); interview of Attorney General Janet Reno, Federal Bureau of 
Investigation FD-302 (Aug. 2, 1993); deposition of Attorney General 
Janet Reno, Andrade v. Chojnacki, No. H-94-0923, 89-96 (W.D. Tex).
    \62\ See House Committee on Government Reform and Oversight and 
House Committee on the Judiciary, hearings on ``Activities of Federal 
Law Enforcement Agencies Toward the Branch Davidians,'' 104th Cong., 
vol. 3, 371-72 (Aug. 1, 1995) (hereinafter ``joint hearings''); 
interview of Attorney General Janet Reno at 78-83.

        We were faced with a dangerous situation that was 
        becoming more dangerous . . . Branch Davidians who had 
        killed four Federal agents had refused to yield to 
        lawful authority for 51 days. The Branch Davidians held 
        children in conditions that were clearly unhealthful 
        and deteriorating. I had reviewed the gas plan 
        carefully and received the advice of the experts that 
        the gas, although uncomfortable, would cause no lasting 
        harmful effects for children or adults. Koresh's 
        repeated failures to abide by his promises led the 
        negotiators, and ultimately me, to conclude that he 
        would not come out. This conclusion was buttressed by 
        the fact that none of the occupants had come out since 
        March 21st and the fact that the Davidians had food and 
        water sufficient to last at least a year. I think this 
        was one of the deciding factors. The HRT was in 
        immediate need of retraining. This need for retraining 
        was so severe that it did not appear that they could 
        continue to control the perimeter for significant time. 
        They then, that day that I gave the authority to go 
        forward, said that . . . the threat of cataclysmic end 
        was there. He had talked about Armageddon, and the 
        conclusion of the FBI was that he could do it at any 
        time, with or without us, . . . and that they were in 
        the best position to control it at this point that they 
        would be [in] for some foreseeable future.\63\
---------------------------------------------------------------------------
    \63\ Interview of Attorney General Reno at 81-82 (Oct. 5, 2000).

    Despite the mystery that the majority attempts to ascribe 
to the Attorney General's decisionmaking process, it appears 
that she decided to approve the plan after senior FBI officials 
persuaded her that the chances for a successful resolution 
would only diminish with the passage of time.\64\ The facts 
recited by Senator Danforth support this conclusion. He writes:
---------------------------------------------------------------------------
    \64\ Joint hearings at 372.

        After further considering the issue, Attorney General 
        Reno changed her mind. She indicated that she was 
        inclined to approve the plan, but wanted to see an even 
        more detailed discussion of the plan and substantial 
        supporting documentation setting out the conditions 
        inside the complex, the status of negotiations, and the 
        reasoning behind the plan. According to Attorney 
        General Reno, she ultimately changed her mind because 
        she was convinced that the Davidians would not come out 
        voluntarily. She felt that the FBI would eventually 
        have to go forward with some plan, and that it was 
        better to proceed when the FBI was ready and best able 
        to control the situation.\65\
---------------------------------------------------------------------------
    \65\ Danforth report at 108.
---------------------------------------------------------------------------
            c. Allegation That the Attorney General and President 
                    Clinton Deceived the American Public by 
                    Representing That the Military Endorsed the FBI's 
                    Tear Gas Plan
    In another unsupported allegation, the majority writes that 
``President Clinton and Attorney General Reno have deceived the 
American people for over seven years by misrepresenting that 
the military endorsed, sanctioned or otherwise approvingly 
evaluated the [FBI's tear gas] plan.'' \66\ According to the 
majority, the Attorney General's and President Clinton's 
statements about the military's opinions stand in ``stark 
contrast'' to the recollections of two senior Army 
officers.\67\
---------------------------------------------------------------------------
    \66\ Majority report at 6-7.
    \67\ Id. at 81.
---------------------------------------------------------------------------
    The ``stark'' differences cited by the majority are largely 
semantic, however. They reflect a range of subjective 
impressions of the same meeting. The statements made by the 
Attorney General are consistent with those of at least three 
other civilian participants at the meeting and do not differ in 
any significant factual detail from the recollections of the 
military officers involved.
    After the FBI had proposed the use of tear gas to end the 
standoff, FBI Director Sessions convened a meeting on April 14, 
1993, to address Attorney General Reno's concerns. Among others 
present were two senior Army officers, who were asked a number 
of questions about the proposed plan.\68\ In statements made 
after Waco, the Attorney General recalled that the Army 
officers present at the meeting had viewed the FBI's plan as 
``excellent'' or ``sound.'' \69\ In her October 5, 2000, 
interview, the Attorney General reiterated:
---------------------------------------------------------------------------
    \68\ Danforth report at 105.
    \69\ ``60 Minutes'' (May 12, 1995); House Committee on the 
Judiciary, ``Events Surrounding the Branch Davidian Cult Standoff in 
Waco, Texas,'' 103d Cong., 15-16 (Apr. 28, 1993).

        The military representatives stated the plan to 
        introduce tear gas into the compound was reasonable and 
        practical. . . . My sense was that they thought it was 
        a reasonable and practical plan, but they couldn't be 
        the judge and nobody was asking them to be the judge of 
        a law enforcement initiative where rules of engagement 
        would apply that would be different than the 
        military.\70\
---------------------------------------------------------------------------
    \70\ Interview of Attorney General Janet Reno at 79, 80 (Oct. 5, 
2000).

---------------------------------------------------------------------------
    President Clinton also made similar comments, stating:

        And so I asked if the military had been consulted. The 
        Attorney General said that they had, and that they were 
        in basic agreement that there was only one minor 
        tactical difference of opinion between the FBI and the 
        military--something both sides thought was not of 
        overwhelming significance.\71\
---------------------------------------------------------------------------
    \71\ Majority report at 76 (quoting remarks by President Clinton on 
Apr. 20, 1993).

    These statements are entirely consistent with the 
recollections of others who attended the same meeting on April 
14, 1993. For example, Mary Incontro, a career Justice 
---------------------------------------------------------------------------
Department prosecutor, told the FBI in 1993:

        [The Army unit commander] outlined his views of the 
        plan and an overall assessment of the plan appeared to 
        be that it had been carefully and wisely reviewed. The 
        military personnel advised that although the plan 
        utilizing a specialized gas was not similar to any type 
        of military attack, it appeared to be carefully 
        constructed and the highest degree of confidence was 
        given to the Hostage Rescue Team.\72\
---------------------------------------------------------------------------
    \72\ Interview of Mary Incontro, Deputy Chief, Terrorism and 
Violent Crimes Section, Criminal Division, U.S. Department of Justice, 
Federal Bureau of Investigation FD-302 (July 22, 1993).

    Ms. Incontro confirmed this recollection to committee staff 
on April 14, 2000. She said that the senior Army officers at 
the meeting viewed the plan as militarily sound and well 
conceived. She said that while the military representatives may 
have said that the military would do it differently, she heard 
no dissent from the military representatives.\73\
---------------------------------------------------------------------------
    \73\ Interview of Mary Incontro, Assistant U.S. Attorney (Apr. 14, 
2000).
---------------------------------------------------------------------------
    A second individual present at the April 14, 1993, meeting 
gave an account that is also similar to the account given by 
Attorney General Reno. Jack Keeney, who was acting Assistant 
Attorney General for the Criminal Division in 1993, told 
committee staff that the military officers present at the 
meeting said they would do the plan differently if it were a 
military operation, but the two military officers seemed 
generally to endorse the FBI plan.\74\
---------------------------------------------------------------------------
    \74\ Interview of Jack Keeney, Principal Deputy Assistant Attorney 
General, Criminal Division, U.S. Department of Justice (Apr. 26, 2000).
---------------------------------------------------------------------------
    A third Justice Department official had a similar 
impression that the military officers present at the April 14 
meeting had given a positive review of the proposed plan. 
According to the FBI's record of the interview of Webster 
Hubbell, then Associate Attorney General, Mr. Hubbell said:

        The military representatives stated that the FBI plan 
        to introduce tear gas into the compound was reasonable 
        and practical. The only aspect of the plan that the 
        military would do differently concerned the timing of 
        the gas insertion. . . . Hubbell recalls the military 
        representatives indicated they believed the FBI plan as 
        presented would work and that after the gas was 
        inserted people in the [Branch Davidian Compound] would 
        come out.\75\
---------------------------------------------------------------------------
    \75\ Interview of Webster Hubbell, Associate Attorney General, 
Federal Bureau of Investigation FD-302 (Aug. 3, 1993).

    The majority's allegation that the Attorney General and the 
President misrepresented the military's role is based on the 
majority's interpretation of the comments of the two senior 
Army officers who attended the April 14 meeting. It is true 
that both recall that they never expressed support for or 
endorsed the proposed tear gas plan.\76\ But the underlying 
facts described by these Army officers closely resemble the 
accounts given by Attorney General Reno, Ms. Incontro, Mr. 
Keeney, and Mr. Hubbell.
---------------------------------------------------------------------------
    \76\ Interview of General Peter Schoomaker, Commander in Chief, 
U.S. Special Operations Command (Jan. 13, 2000); interview of Special 
Operations General Officer No. 1 (Jan. 13, 2000).
---------------------------------------------------------------------------
    In a 1993 memorandum written to his commander, one of the 
military participants described the meeting. He wrote that he 
and the other senior Army officer told the group that the 
proposed FBI operation was not and could not be assessed as a 
military operation.\77\ In the same memorandum, he further 
stated:
---------------------------------------------------------------------------
    \77\ Memorandum from Army Colonel to Commander, U.S. Army Special 
Operations Command (May 13, 1993).

        The plan which was executed at Waco was an FBI plan 
        which neither [Army officers] helped prepare. At the 
        same time, I did believe that they had a reasonable 
        chance of accomplishing their objective of forcing the 
        occupants out of the building. Their approach was 
        substantially different than anything that I have 
        encountered. . . . I did not believe that the FBI and 
        the Attorney General were trying to force us to support 
        or defend the plan. It was my belief that they simply 
        wanted any observations that we felt comfortable 
        providing.\78\
---------------------------------------------------------------------------
    \78\ Id.

    In short, the majority grossly exaggerates the significance 
of what is largely a difference in semantics and subjective 
impressions. Attorney General Reno's impressions of the April 
14 meeting were shared by at least three others who attended 
the same meeting. The majority's assertion that she or 
President Clinton deceived the American public is without any 
merit.
2. Allegations Regarding the Internal Justice Department Review
    The majority criticizes as negligent the internal Justice 
Department investigation led by Richard Scruggs.\79\ Mr. 
Scruggs was the leader of a team of Justice Department 
attorneys and FBI inspectors who conducted approximately 950 
interviews in the aftermath of Waco and drafted a 368-page 
report to the Deputy Attorney General.\80\ The primary basis 
for the majority's criticism is that the Justice Department 
investigation did not discuss the use of pyrotechnic tear gas 
rounds at Waco.
---------------------------------------------------------------------------
    \79\ Id. at 57.
    \80\ Richard Scruggs, ``Report to the Deputy Attorney General on 
the Events at Waco, Texas,'' Feb. 28-Apr. 19, 1993, 14 (Oct. 8, 1993) 
(unredacted version) (hereinafter ``Scruggs report'').
---------------------------------------------------------------------------
    In hindsight, it is clear that the Justice Department 
investigation should have disclosed the use of the pyrotechnic 
tear gas rounds, as well as the fact that the use of these 
rounds did not contribute to the fatal fire at the Branch 
Davidian compound. But there is an irony in the majority's 
criticism. The majority writes:

        Had Scruggs and his colleagues thoroughly reviewed all 
        the documents available to them, they would have found 
        references to ``military'' rounds. Scruggs and his 
        colleagues failed to do so. The failure of the Scruggs 
        team to come to an understanding that pyrotechnic 
        rounds were used was, as discovered in 1999, a 
        significant shortcoming.\81\
---------------------------------------------------------------------------
    \81\ Majority report at 60.

    As was discussed in part II above, the majority had access 
to these very same documents for 5 years. Thus, the 
``significant shortcoming'' attributed to the Justice 
Department's investigation also applies to the majority's own 
investigation. The fact is, like almost everyone else involved 
in Waco-related investigations, lawsuits, and criminal 
proceedings, the majority failed to notice the significance of 
the documents referring to the use of ``military'' rounds. 
Indeed, as noted above, the majority did not even know that 
their own files contained the documents referring to these 
rounds until Representative Waxman pointed this out in a 
September 13, 1999, letter.\82\
---------------------------------------------------------------------------
    \82\ The majority attempts to explain its failure to recognize the 
significance of these documents by suggesting the Justice Department 
intentionally delayed giving the committee the key documents 3 days 
before the start of hearings in 1995. The majority has pointed to no 
evidence, however, that supports its assertion that the Justice 
Department deliberately delayed production of documents to this 
committee. For example, as is discussed in part II above, the Justice 
Department provided the committee an FBI lab report mentioning the use 
of military tear gas rounds 13 days before the start of joint committee 
hearings in 1995, 26 days before the conclusions of those hearings, and 
392 days before the committees issued their joint report.
---------------------------------------------------------------------------
    The majority also makes the assertion that ``[p]ressure 
from senior Justice Department officials, including then-Deputy 
Attorney General Phil Heymann, caused the Scruggs team to rush 
to conclude their investigation and to publish their report, 
thus failing to uncover and disclose facts.'' \83\ According to 
the majority, ``the Scruggs investigation . . . was improperly 
rushed to its conclusion solely for political purposes.'' \84\
---------------------------------------------------------------------------
    \83\ Majority report at 6.
    \84\ Id. at 5.
---------------------------------------------------------------------------
    The record of this investigation, however, contains no 
support for these assertions of political pressure. Committee 
staff interviewed Mr. Heymann on July 19, 2000. Mr. Heymann 
said that he wanted the review completed within 6 months to 
prevent the review from becoming a never-ending investigation, 
a familiar phenomenon in law enforcement. He said that no one 
complained to him that the investigation was incomplete or 
inadequate.\85\ Not a single witness interviewed by the 
committee suggested that the Justice Department's investigation 
was cut short for political purposes. Senator Danforth, who was 
critical of aspects of the Department's investigation in his 
interim report, did not find any evidence of pressure to 
complete the investigation.
---------------------------------------------------------------------------
    \85\ Interview of Philip Heymann, professor of law, Harvard 
University Law School (July 19, 2000).
---------------------------------------------------------------------------
3. Unsubstantiated Allegations Against Marie Hagen
    The majority accuses Marie Hagen, a Justice Department 
trial attorney, of reckless conduct and concludes that if she 
had ``followed up'' on a certain request for information to an 
FBI attorney, ``the time consuming investigations started in 
1999 would not have been necessary.'' \86\ But these 
conclusions are unsupported by any documentary evidence, 
including the documents cited by the majority, and they 
directly conflict with the findings of Senator Danforth. The 
evidence gathered by this committee and Senator Danforth shows 
that Ms. Hagen took diligent steps to determine the truth and 
is in no way responsible for this committee's Waco 
investigation.
---------------------------------------------------------------------------
    \86\ Majority report at 56-57.
---------------------------------------------------------------------------
    Ms. Hagen was a trial attorney working on Andrade v. United 
States, a consolidated lawsuit brought by seven groups of 
Branch Davidians and relatives of deceased Branch Davidians. 
The plaintiffs in that case alleged that government agents used 
excessive force, failed to provide adequate emergency services, 
and intentionally or negligently committed other acts that 
harmed the Branch Davidians in 1993.\87\ In 1996, the 
plaintiffs in that lawsuit filed the declaration of their fire 
expert, Richard Sherrow (Sherrow declaration). The Sherrow 
declaration alluded to documents the plaintiffs had obtained 
from the FBI prior to January 1996, which indicated that the 
FBI had fired at least one military pyrotechnic munition into 
the Branch Davidian complex.\88\
---------------------------------------------------------------------------
    \87\ See Danforth report at 142.
    \88\ Declaration of Richard L. Sherrow at 6, Andrade v. Chojnacki, 
No. H-94-0923 (S.D. Tex.) (Jan. 17, 1996) (majority exhibit 47).
---------------------------------------------------------------------------
    According to the Office of Special Counsel, Ms. Hagen took 
several affirmative steps to determine the basis for Mr. 
Sherrow's mention of military pyrotechnic munitions. In January 
1996, Ms. Hagen asked an FBI attorney, Jacqueline Brown, for 
help in responding to the Sherrow declaration.\89\ She also 
forwarded a relevant pleading to Ms. Brown for review before 
filing it with the court.\90\ She took these steps even though 
numerous Justice Department and FBI officials had, by that 
time, concluded that the FBI had used no pyrotechnic munitions 
at Waco.\91\
---------------------------------------------------------------------------
    \89\ Danforth report at 56.
    \90\ Id. at 57.
    \91\ Senator Danforth recites a list of statements by various 
Justice Department and FBI officials indicating that no pyrotechnic 
munitions were used at Waco. These include statements by FBI Special 
Agent in Charge Robert Ricks, Attorney General Janet Reno, FBI Director 
William Sessions, and the Scruggs report. Danforth report at 46-47. Ms. 
Hagen had no reason to know at the time that these reports had 
overlooked evidence indicating the use of military rounds on Apr. 19, 
1993.
---------------------------------------------------------------------------
    According to the Office of Special Counsel, Ms. Brown faxed 
the Sherrow declaration to an FBI chemical agent specialist. 
Someone (possibly Ms. Brown) also faxed the document to 
Supervisory Special Agent Robert Hickey, a member of the 
Hostage Rescue Team. On February 15, 1996, Mr. Hickey drafted 
an internal FBI memorandum (Hickey memorandum) that responded 
in detail to the Sherrow declaration. Mr. Hickey clearly 
acknowledged the harmless use of military rounds on April 19, 
1993, and wrote, in pertinent part:

        Shortly after the operation commenced on 4/19/93, the 
        HRT (Charlie Team) determined, after two (2) or three 
        (3) ferret rounds, that they were unable to penetrate 
        the underground shelter roof which was their first 
        target. Charlie Team then requested to use 40mm 
        military CS rounds in an effort to penetrate the roof. 
        Charlie Team was granted authority to fire the military 
        CS rounds. A total of two (2) or three (3) rounds were 
        fired at the underground shelter roof. These rounds hit 
        the roof, bounced off and landed in the open field well 
        behind the main structure. This occurred shortly after 
        6:00 am. These were the only military rounds 
        utilized.\92\
---------------------------------------------------------------------------
    \92\ Memorandum from Robert Hickey, Supervisory Special Agent, 
Federal Bureau of Investigation, to Jacqueline F. Brown, Office of 
General Counsel (Feb. 15, 1996).

    According to the Office of Special Counsel, Mr. Hickey 
faxed his memorandum to Ms. Brown on February 16, 1996, and 
discussed it with her the same day. Ms. Brown made notations on 
the section of the memorandum relating to the use of military 
rounds.\93\
---------------------------------------------------------------------------
    \93\ Danforth report at 57.
---------------------------------------------------------------------------
    The majority's charges against Ms. Hagen hinge on whether 
Ms. Brown informed Ms. Hagen about the Hickey memorandum. The 
majority asserts that Ms. Hagen was informed by Ms. Brown about 
the use of the military rounds. The Office of Special Counsel, 
however, specifically concluded that she was not informed.\94\
---------------------------------------------------------------------------
    \94\ Id. at 57-58.
---------------------------------------------------------------------------
    The evidence supporting the majority's view is scant. Ms. 
Brown maintains that she provided information on the FBI's use 
of military rounds to her supervisor and Ms. Hagen.\95\ But 
apart from Ms. Brown's assertion that she provided the Hickey 
memorandum to Ms. Hagen, the committee has no documentary or 
other evidence that Ms. Brown provided the Hickey memorandum to 
Ms. Hagen.
---------------------------------------------------------------------------
    \95\ Id. at 57.
---------------------------------------------------------------------------
    The majority asserts in its report:

        Documents made available to Committee staff indicate 
        that Brown did in fact share the Hickey memorandum with 
        her supervisor, Virginia Buckles, and Hagen. For 
        example, Brown, who maintained a daily checklist of 
        action items, recorded on February 19, 1996, the fact 
        that she spoke with Hagen and other Justice Department 
        officials regarding the Hickey memorandum and showed 
        them the document: ``meet w/DOJ re dec[laration] memo 
        to M[arie] H[agen].'' \96\
---------------------------------------------------------------------------
    \96\ Majority report at 55.

This is simply incorrect. Ms. Brown's daily to-do list does not 
read, ``meet w/DOJ re dec[laration] memo to M[arie] H[agen],'' 
as the majority contends. It actually contains three relevant 
entries, which, if anything, suggest that Ms. Brown did not 
provide the Hickey memorandum to Ms. Hagen. One entry reads, 
``Waco-gas memo.'' Another reads ``Meet w/ DOJ re dec (ask to 
review final copy of reply).'' And another reads ``Sherrow Dec 
memo to MH.'' Of those three entries, the only one checked off 
and presumably completed is the second: ``Meet w/ DOJ re dec 
(ask to review final copy of reply).'' \97\ The Sherrow 
declaration was 22 pages long and raised a number of possible 
fact issues relating to the cause of the fire.
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    \97\ Calendar of Jacqueline Brown, Assistant General Counsel, 
Federal Bureau of Investigation (Feb. 19, 1996).
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    Senator Danforth and his staff read precisely the opposite 
meaning from this document as does the majority. And they 
arrive at the opposite conclusion about Ms. Hagen. The Danforth 
report states:

        [T]he documentary evidence also indicates that Brown 
        did not give the information to Hagen. As stated above, 
        neither Brown nor the Office of Special Counsel was 
        able to locate a fax cover sheet indicating that she 
        had faxed the Hickey memo to Hagen. Hagen's files 
        contain no copy of the Hickey memo. In addition, 
        Brown's ``To Do'' list in her calendar for February 19, 
        1996, contains the notation, ``Sherrow Declaration Memo 
        to M[arie] H[agen].'' Unlike some diary entries, this 
        ``To Do'' item is not checked off. Moreover, Brown 
        placed a number on the Hickey memorandum which would 
        result in its being placed in an FBI litigation file 
        that would not be disclosed to the Department of 
        Justice.\98\
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    \98\ Danforth report at 59. In addition to this journal entry, the 
majority distorts the meaning of two other documents in an effort to 
show that Ms. Brown provided information on the Hickey memorandum to 
Ms. Hagen. Referring to Virginia Buckles, Ms. Brown's supervisor, the 
majority writes in its report: ``Buckles' own memoranda to then-FBI 
General Counsel Howard Shapiro detailing the status of then-ongoing FBI 
civil litigation referenced Buckles' and Brown's involvement in 
assisting Hagen and the Justice Department to clarify the Sherrow 
Declaration.'' Although these memoranda mention the Sherrow 
declaration, they address elements of the declaration that have nothing 
to do with its reference to military tear gas rounds. One memorandum 
relates to a claim that a combat engineering vehicle caused the fire 
after it tipped over a lantern and a claim that the FBI violated its 
own internal regulations. The second memorandum relates to Mr. 
Sherrow's analysis of ``hot spots'' on the FLIR video. While these 
documents tend to show that Ms. Brown assisted in the preparation of 
the Justice Department's reply brief, they give no insight into whether 
Ms. Brown provided information on the Hickey memorandum to Ms. Hagen.
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4. Allegations Regarding the Posse Comitatus Act
    The majority alleges that White House officials and senior 
law enforcement officials sought advice from senior military 
officers that, if given, would have violated the Posse 
Comitatus Act.\99\ Although the majority recites the history of 
the act and the enactment of related statutes, it provides no 
support for its conclusion. To the contrary, the relevant 
statute and its legislative history suggest the opposite 
conclusion.
---------------------------------------------------------------------------
    \99\ Majority report at 61 n. 225, 61; 18 U.S.C. Sec. 1385.
---------------------------------------------------------------------------
    The Posse Comitatus Act prohibits the use of Army and Air 
Force personnel to execute the civil laws of the United States, 
except under circumstances prescribed by Congress.\100\ The act 
has generally been interpreted to permit military support of 
law enforcement short of actual search, seizure, arrest or 
similar confrontation with civilians.\101\
---------------------------------------------------------------------------
    \100\ 18 U.S.C. Sec. 1385; see generally U.S. Army Judge Advocate 
General School, ``Operational Law Handbook,'' 22-1 (1996) (hereinafter 
``operational law handbook'').
    \101\ Operational law handbook at 22-1.
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    In 1981, Congress enacted chapter 18 of title 10 of the 
United States Code to clarify the law on permissible forms of 
military assistance to civilian law enforcement agencies.\102\ 
Among other things, this statute expressly authorizes the 
Secretary of Defense to make military personnel available to 
provide ``law enforcement officials with expert advice relevant 
to the purposes of this chapter,'' subject to the limitation 
that the Secretary of Defense prevent ``direct participation by 
a member of the Army, Navy, Air Force, or Marine Corps in a 
search, seizure, arrest, or other similar activity.'' \103\
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    \102\ See generally 1 Op. Off. Legal Counsel 36, 1991 WL 49985 
(Feb. 19, 1991) (concluding that Congress intended only to prevent 
searches likely to result in a direct confrontation between military 
personnel and civilians).
    \103\ 10 U.S.C. Sec. Sec. 373, 375.
---------------------------------------------------------------------------
    The majority apparently takes the view that the advice 
sought by Justice Department and FBI officials is outside the 
scope of permissible expert advice and constitutes prohibited 
direct participation in an arrest. The majority, however, 
offers no legal support for this conclusion, which runs 
contrary to the legislative history of the applicable law. J. 
Michael Luttig, an Assistant Attorney General during the Bush 
administration, explained:

        It is evident from the legislative history of these 
        amendments that Congress intended to codify the 
        distinction--articulated by the district court in 
        United States v. Red Feather--between ``indirect 
        passive'' assistance and ``direct active'' involvement 
        in law enforcement activity. . . . Significantly, 
        Congress understood Red Feather to prohibit only 
        activity that entailed direct, physical confrontation 
        between military personnel and civilians.\104\
---------------------------------------------------------------------------
    \104\ 15 Op. Off. Legal Counsel at 42.

    The input sought from the military personnel at the April 
14, 1993, meeting related to their area of professional 
expertise. The law expressly authorizes such provision of 
military expert advice to civilian law enforcement. In 
addition, Justice Department and FBI officials sought this 
expert advice during the formative stages of a law enforcement 
plan. This would not constitute the direct, active use of the 
military to execute the law. It thus would not have violated 
the Posse Comitatus Act or any other applicable statute.
    Senator Danforth thoroughly investigated the role of the 
military at Waco. He found that there was no violation of the 
Posse Comitatus Act and no other illegal or improper use of the 
armed forces. Senator Danforth wrote that the two senior Army 
officers present at the April 14, 1993 meeting:

        discussed the effects of CS gas on people, whether the 
        delivery of tear gas could start of fire, whether the 
        HRT personnel were fatigued or in need of retraining, 
        and they described how the military would conduct the 
        operation. They emphasized the differences between 
        military and civilian law enforcement operations. This 
        advice was within the areas of their expertise and did 
        not constitute direct participation in law enforcement 
        activity.\105\
---------------------------------------------------------------------------
    \105\ Danforth report at 37.
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                             IV. Conclusion

    The committee's 13-month investigation of Waco was 
unnecessary, expensive, and fruitless. Although the majority 
report spans 100 pages and includes nearly 1,400 pages of 
documentary exhibits, it contributes virtually nothing to the 
public's understanding of Waco. Many of the report's findings 
duplicate those of the Special Counsel, former Senator John C. 
Danforth. In his report, Senator Danforth determined, among 
other things, that government agents did not cause or 
contribute to the fire that consumed the Branch Davidian 
compound on April 19, 1993, did not direct gunfire at the 
Branch Davidians on April 19, and did not unlawfully employ 
U.S. armed forces at any time during the standoff. To the 
extent the majority report deviates from Senator Danforth's 
findings, it consists largely of unsupported allegations of 
wrongdoing by the Attorney General and Justice Department 
officials.

                                   Hon. Henry A. Waxman.
                                   Hon. Tom Lantos.
                                   Hon. Major R. Owens.
                                   Hon. Edolphus Towns.
                                   Hon. Paul E. Kanjorski.
                                   Hon. Carolyn B. Maloney.
                                   Hon. Eleanor Holmes Norton.
                                   Hon. Chaka Fattah.
                                   Hon. Elijah E. Cummings.
                                   Hon. Dennis J. Kucinich.
                                   Hon. Rod R. Blagojevich.
                                   Hon. Danny K. Davis.
                                   Hon. John F. Tierney.
                                   Hon. Jim Turner.
                                   Hon. Harold E. Ford, Jr.

    [The exhibits referred to follow:]
    
    
                                  
