Activities of Federal Law Enforcement Agencies Toward the Branch Davidians/Section 5

V. Military Involvement in the Government Operations at Waco
U.S. military involvement is one of the least explored and most misunderstood elements of the events that took place near Waco, TX 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.

a. the expansion of military assistance to law enforcement
Historically in America, there has been a general principle that the military should not be involved in civilian law enforcement. Congress codified this principle by enacting the Posse Comitatus Act in 1878. The subcommittees have found that subsequent congressional actions and legal cases have eroded the Posse Comitatus Act to an alarming degree and blurred its legal restrictions.

In determining whether the military assistance provided at Waco was illegal, the subcommittees reviewed the current status of the Posse Comitatus Act and other laws governing the use of the military in civilian law enforcement, why changes in the laws have occurred and what effects those changes have had on the use of the military in civilian law enforcement. Additionally, the subcommittees have addressed the common practice of Governors using National Guard (NG) personnel across State lines.

a. Overview of the law
The Posse Comitatus Act was enacted in the United Stated in 1878 in response to the improper use of military troops in the South during the post-Civil War Reconstruction period. The Posse Comitatus Act provides:


 * Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army or the Air Force as a posse comitatus or otherwise to execute the laws shall be fined not more than $10,000 or imprisoned not more than 2 years, or both.

However, as early as the Magna Carta, prohibitions against the use of the military in civilian affairs were being established. These prohibitions are based on the principle that the military should never be employed against the citizenry of the Nation it supports and is buttressed by the clear separation, in this country, between civilian authority and military support for that authority. The clear separation between civilian and military authority is embodied in the Declaration of Independence and the U.S. Constitution.

Nevertheless, no one has ever been prosecuted for violating the Posse Comitatus Act. Due in part to a creeping acceptance of military involvement in law enforcement actions, the Posse Comitatus Act has been invoked very rarely. Until the criminal cases arising from the 1973 Indian uprising at Wounded Knee, civilian law enforcement apparently relied upon military support without fear of recourse.

Specifically, at Wounded Knee, the Nebraska National Guard and U.S. Air Force personnel conducted aerial reconnaissance photography of the site, while the South Dakota National Guard maintained military vehicles in the area of the siege. Two regular Army colonels (Title 10 personnel) were present at Wounded Knee as Defense Department "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."

Four criminal cases resulted from the Wounded Knee incident. Each raised similar challenges to the military's involvement. 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. The courts in United States v. Banks and United States v. Jaramillo found certain military activities to be in violation of the Posse Comitatus Act, while the court in United States v. Red Feather found the military involvement at Wounded Knee permissible. The Red Feather court determined, that as long as military assistance was passive or indirect, such assistance did not violate the Posse Comitatus Act.

In order to resolve questions raised by the Wounded Knee cases, and at the urging of the Defense Department and Justice Department, Congress adopted the above distinctions set forth by the Red Feather court and, in 1981, enacted a number of general exceptions to the Posse Comitatus Act. 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 Defense Department personnel. However, direct participation in law enforcement activities like search, seizure and arrest was prohibited.

b. The war on drugs
By the mid-1980's, there was little question that the Nation was struggling with a major increase in illegal drug importation and use, and Congress summoned a massive increase of resources to confront this modern scourge. The fiscal year 1989 Department of Defense Authorization Act significantly expanded the role of the National Guard in support of law enforcement agencies. The following year, the role of the military was expanded further in the fiscal year 1990 Department of Defense Authorization Act which "directed the U.S. Armed Forces, to the maximum extent possible, to conduct military training in drug interdiction areas."

After Congress and the courts expanded permissible military assistance to civilian law enforcement and the Defense Department assumed the lead in the war on drugs, military assistance to law enforcement greatly increased. This increased use of military personnel is most noticeable with the National Guard because of fewer legal restrictions on its use.

c. The National Guard and the Posse Comitatus Act under current law
The National Guard, for reasons that are at least partially historical, is not subject to the same legal restrictions placed on active duty and reserve military personnel with regard to involvement in civilian law enforcement. Having evolved from the State militia concept, the National Guard holds the unique position as both a State and a national military force. Thus, a National Guard member can wear a U.S. Army or Air Force uniform, fly in a military aircraft, receive Federal military pay and allowances, be covered by the Federal Torts Claims Act and Federal military medical care. Yet, he or she can perform this military service not only as a member of the U.S. Armed Forces, but as a member of the State militia, having a Governor for a Commander-in- Chief rather than the President of the United States.

The ability of the National Guard to perform military service in this capacity exists because the National Guard has three different "statuses" under the law. The first two are a Title 32 status (also called "state active duty" status) and a "pure state" status. Under either a Title 32 or "pure state" status, National Guard troops are under the command and control of the Governor of their State and the Posse Comitatus Act does not apply. However under current law, while the National Guard is in a Title 32 status and under the command and control of the Governor, it is still funded with Federal funds. An example of the National Guard being in a Title 32 status is when National Guard personnel are conducting counterdrug operations.

The third National Guard status is called "Title 10" or "federal active duty" status. Title 10 status occurs when Congress or the President takes affirmative action to "federalize" a National Guard unit as in the case of a natural disaster or civilian disturbance. Only in a federalized status are National Guard troops under command and control of the President of the United States. Under this status, the Posse Comitatus Act applies.

Aside from the Title 10 status and Wounded Knee cases, the Posse Comitatus Act has been widely interpreted as not applying to the National Guard. Thus under current law, the leading interpretation of the Posse Comitatus Act is that unless otherwise prohibited by policy directive, regulation or State law, the National Guard can participate actively in civilian law enforcement. The National Guard, however, does implement similar proscriptions as the Posse Comitatus Act by regulation even while in a Title 32 status.

d. Active duty personnel & the Posse Comitatus Act under current law
Unlike the National Guard, active duty military personnel clearly fall within the proscriptions of the Posse Comitatus Act. Any assistance they provide to civilian law enforcement personnel must be either within a statutory exception or expressly authorized by the U.S. Constitution.

Many of the statutory exceptions to the Posse Comitatus Act have been enacted in the last 15 years and evolved from a desire to support counterdrug efforts. Title 10 U.S. Code, Section 371 et. seq. outlines the types of routine law enforcement assistance that active duty military personnel may provide. Such assistance, includes equipment, training and advice.

One of the most important issues for a civilian law enforcement agency in deciding whether to seek and accept military assistance, is whether the agency must reimburse the military for the assistance provided. Generally, a civilian law enforcement agency must reimburse the military for the cost of assistance, except under three circumstances. Reimbursement may be waived if the assistance: (1) is provided in the normal course of military training; (2) results in a benefit to the unit providing the support "that is substantially equivalent to that which would otherwise be obtained from military operations or training;" or (3) is for counterdrug operations.

The counterdrug statutory waiver has come to mean in practice that before a waiver of reimbursement can occur under the counterdrug operation exception, the civilian law enforcement agency must demonstrate the existence of a sufficient "drug nexus" in the investigation. Although there is no defined standard for what constitutes a "drug nexus," it is essentially a quantum of credible evidence that links an otherwise non-drug investigation with the existence, or well-founded belief of the existence, of significant illegal drug crimes.

This waiver for counterdrug operations developed when Congress created a specialized subset of military assistance for counterdrug operations in 1990. Military assistance for counterdrug operations provided under this statutory authority is on a non-reimbursable basis, which means civilian law enforcement agencies do not have to reimburse the military for the assistance. Instead, Congress provides a separate fund to the military for this type of assistance. However, these funds must be used solely for military assistance to civilian law enforcement agencies for counterdrug operations. Significant portions of military assistance provided to ATF and even the FBI were funded through these counterdrug funds.

A further formalization of the military's increased support to the war on drugs involved the creation of Joint Task Forces between civilian drug law enforcement agencies and the regular army. The Defense Department created these Joint Task Forces to increase the coordination between the military and civilian law enforcement agencies and to increase the civilian agencies' accessibility to regular army assets for counterdrug operations. For the Southwest border region where the ATF investigation of the Davidians took place, Joint Task Force-Six (JTF-6) was responsible for the operational support to ATF by active duty military personnel.

JTF-6's Operational Support Planning Guide, in explaining its support capabilities, states, "No list of military support capabilities is ever all-inclusive. Innovative approaches to providing new and more effective support to law enforcement agencies are constantly sought, and legal and policy barriers to the application of military capabilities are gradually being eliminated." This quote from the JTF-6 Operation Support Planning Guide clearly and succinctly describes the weakening of the Posse Comitatus Act proscriptions since the 1973 Wounded Knee cases. This observation foreshadowed the potential for military involvement that was realized eventually at the 1993 Waco events.

2. Interstate use of National Guard by Governors
There is a common practice among the States of using National Guard personnel across State lines. States enter into memoranda of agreement with one another which provide for the mutual use of National Guard forces across State lines. However, these agreements raise several legal concerns, particularly when the National Guard personnel are used to assist civilian law enforcement.

Although a thorough examination of memoranda of agreement is far beyond the scope of the subcommittees' Waco investigation, the most significant legal issues arising from the use of memoranda of agreement will be highlighted. While the National Guard has attempted to address these legal issues, the Defense Department and the States have failed to adequately address the potential legal problems which memoranda of agreement raise. Two major legal concerns are (1) whether these memoranda of agreement, or other similar agreements between states are either a treaty, an alliance, or confederation in violation of the U.S. Constitution, or at the very least a compact requiring congressional ratification; and (2) whether these memoranda of agreement or similar agreements attempt to supersede State constitutions and statutes without legal authority.

a. States' power to enter memoranda of agreement
Only the Congress and the President (to the extent presently delegated by law) have the power to use military force across State lines. Many argue that any agreement between States to concert their military forces for the use of force for any purpose constitutes a treaty or an alliance. However, the U.S. Constitution specifically prohibits States from entering into treaties in any instance, and into alliances or confederations without congressional consent. Applying such an argument would mean that the use of the National Guard for law enforcement purposes across State lines is strictly prohibited by the U.S. Constitution. The National Guard Bureau takes the position that such interstate use of force is prohibited, but the contrary opinion is advanced by the Defense Department General Counsel and the Army Staff Judge Advocate.

The National Guard Bureau further argues, also contrary to the Defense Department General Counsel and the Army Staff Judge Advocate, that even if such agreements among States are not treaties, they are at the very least compacts which require the consent of Congress. If an agreement among States results in a potential encroachment on Federal authority or a tendency to enhance State power, then it would constitute a compact requiring congressional consent. The National Guard Bureau argues that these National Guard memoranda of agreement enhance State power by allowing Governors to command militia employed for force across State lines, and therefore, encroach on the President's power to either deny or command and control such interstate use. Thus, the National Guard Bureau believes they require congressional ratification.

Currently, none of the memoranda of agreement (or compacts) involving the use of National Guard personnel across State lines for law enforcement purposes have been ratified by Congress. Although the Southern Governors' Association recently amended its Southern Regional Emergency Management Assistance Compact at the advice of the National Guard Bureau, to preclude the use of force across State lines and seek congressional approval of the compact, most of the interstate National Guard assistance to law enforcement agencies is occurring under the guise of memoranda of agreement, not congressionally approved compacts. Moreover, this issue expands beyond direct involvement in law enforcement actions, such as Waco, to the use of the National Guard for interstate assistance in disaster and emergency relief. In fact, the issue has arisen with respect to the proposed use of non-Georgia National Guard units to assist the Georgia National Guard during the 1996 Summer Olympics, in Atlanta, GA.

b. Memoranda of agreement may attempt to supersede State law without legal authority
During the ATF investigation of the Branch Davidians, National Guard assistance to ATF came not only from the Texas National Guard, but from the Alabama National Guard. At the behest of the ATF, the Adjutant General of the Texas National Guard requested and received support from the Alabama National Guard to take aerial photographs. Those aerial photographs were taken on January 14, 1993. This assistance was authorized by a "memorandum of agreement" between the Adjutant Generals of the Texas and Alabama National Guards which simply provided for the use of the Alabama National Guard at the request of the Texas Adjutant General. However, a review of the State laws of both Texas and Alabama raises legal concerns with the legal authority for conducting this interstate National Guard operation.

Texas law requires that, "[a] military force from another state, territory, or district, except a force that is part of the United States armed forces, may not enter the state without the permission of the governor." Yet, National Guard personnel who were involved in post-raid National Guard investigations of the Waco incident have stated that Governors Richards did not approve the use of the Alabama National Guard. Military documents indicate that Governor Richards was unaware of the extent of even the Texas National Guard's involvement until after the failed raid occurred.

An examination of Alabama law indicates that the Alabama National Guard had no authority to conduct military operations outside Alabama because the Governor's authority over the Alabama National Guard appears only to extend to the State's boundaries. Thus, it appears that the Alabama National Guard entered and conducted military operations in Texas without the proper authority to do so.

If the Alabama Governor's command and control authority ended at the Alabama State line and Gov. Richards did not approve the Alabama National Guard's entrance into the State of Texas, then several questions are raised: Which governor had command and control of the Alabama National Guard unit? Who (Texas, Alabama or the Federal Government) would have been liable for claims of injury and property damage had any occurred? If the Alabama unit is considered to be operating outside its scope of employment, would its personnel lose Federal Torts Claims Act's protection against personal liability? And, would the National Guard personnel risk losing their military health care and other military benefits in the event of an accident?

Memoranda of agreement currently used fail to address the intricacies which State laws present and they do not appear to have legal authority to supersede State constitutions and statutes. Because State laws differ, these questions must be addressed on a case by case basis if States are going to engage in the interstate use of National Guard personnel.

b. the bureau of alcohol, tobacco and firearms' request for military assistance and the military assistance actually provided
The pre-raid military assistance in Waco was provided through active duty and National Guard counterdrug units based on an alleged drug nexus. Much of the post-raid military assistance to the FBI and ATF also came from counterdrug units and funds. Central to understanding how the military became involved in the Waco matter is an understanding of how ATF's initial request for military assistance, based on alleged drug involvement, progressed.

a. The process for requesting military assistance along the southwest border
Military support to counterdrug operations along the Southwest border of the United States is designed "to assist law enforcement agencies in their mission to detect, deter, disrupt, and dismantle illegal drug trafficking organizations." Thus, military support acts as a "force multiplier," allowing law enforcement agencies to focus on "interdiction seizure actions."

When a drug law enforcement agency requests counterdrug military assistance along the Southwest border, that request is received and reviewed by Operation Alliance, which acts as the clearinghouse. The request is then coordinated with support organizations such as JTF-6, the North American Aerospace Defense Command (NORAD), the Regional Logistics Support Office and the pertinent National Guard. Operational support is provided as a joint effort by JTF-6, NORAD and the National Guard. Non-operational support which would include, but is not limited to, equipment, institutional training, and use of facilities would be provided by the Regional Logistics Support Office.

To receive assistance through Operation Alliance and from these organizations, the civilian law enforcement investigation must involve criminal violations of U.S. drug laws, i.e., have a "drug nexus." Having initiated 232 Operation Alliance investigations through fiscal year 1989, ATF was no stranger to Operation Alliance's counterdrug mission and its drug nexus prerequisite. In fact, documents dated as far back as March 15, 1990, designated ATF Special Agent Sarabyn, and ATF Special Agent Pali, the ATF coordinator for Operation Alliance during the Branch Davidian investigation, as ATF coordinators for military assistance.

b. Chronology of ATF's request
The chronology of ATF's request for military assistance provides insight into how early ATF wanted military assistance, how the military and ATF became concerned with the drug nexus issue, and how the military's concerns changed the scope of military assistance provided.

As early as November 1992, ATF agents were discussing the need for military support with Lt. Col. Lon Walker, the Defense Department representative to ATF. In his "summary of events" November entry, Lt. Col. Walker specifically states that, at that time, he was not told of any drug connection.

By December 1992 (almost 3 months before the raid), ATF agents were requesting Close Quarters Combat/Close Quarters Battle (CQB) training by U.S. Army Special Forces soldiers for ATF agents. A basic CQB course takes a minimum of 2 months and advanced CQB training takes a minimum of 6 months. Moreover, CQB is the type of specialized training a terrorist or hostage rescue team such as the FBI Hostage Rescue Team would use. CQB is also a perishable skill requiring frequent/continuous training that ATF, as an agency, is not designed to maintain or utilize. Somewhat surprisingly, neither the documents from the Treasury investigation, nor the Treasury Report, itself, never refer to this request.

However, one military document furnished to the subcommittees as part of their document request specifically states that no written documentation is available on this extraordinary request by ATF for CQB training. This is the case despite ongoing discussions in 1992 and early 1993 within the senior ranks of the U.S. Army Special Operations Command regarding the prudence of making SOT /CQB training available to civilian law enforcement and foreign military personnel. These discussions are significant because they again foreshadow the potential use in civilian law enforcement of highly specialized military training, designed and intended for military operations.

On December 4, 1992, several ATF Special Agents, including the SAC's of the Dallas and Houston ATF offices, met at Houston's ATF field office for the first time to discuss the Waco investigation. In attendance were SAC Phillip J. Chojnacki; SAC Ted Royster; Assistant Special Agent in Charge James Cavanaugh; Resident Agent in Charge Earl K. Dunagan; Special Agents Aguilera, Lewis, Petrilli, Buford, K. Lattimer, Williams, Carter, and John Henry. Also present at that meeting was Lt. Col. Lon Walker, the Defense Department representative to ATF. Lt. Col. Walker's notes of the meeting reveal that he explained to those present "that the military probably could provide a great deal of support and [that he] suggested things like aerial overflight thermal photography." Lt. Col. Walker's notes also state that he explained "that without a drug connection the military support would be on a reimbursable basis." This reference to reimbursement is significant because it reveals that military aid was, as of that date, understood to require reimbursement by ATF unless a drug nexus could be identified and articulated with sufficient specification to warrant military aid on a non-reimbursable basis. Lt. Col. Walker's December 4th entry is followed by a handwritten note that states "Aguilera said there was no known drug nexus."

On December 11, 1992, Special Agent Jose G. Viegra, the Resident in Charge (RAC) of the Austin, TX ATF Office, met with representatives for the Texas Governor's Office about the role of the military in any potential ATF action involving the Davidians. Representatives of the Texas Governor's Office present at the meeting were William R. Enney, Texas State Interagency Coordinator and his assistant Lieutenant Susan M. Justice, Assistant Interagency Coordinator of the National Guard Counterdrug Support Program.

This meeting was requested by ATF to discuss specifically what types of military assistance were available to the ATF for its raid on the Branch Davidian residence in Waco, TX. During the meeting, Special Agent Viegra was told that military assistance through Operation Alliance would not be available unless there was a "drug nexus." That meeting constituted the second time in 8 days that ATF agents inquiring about military assistance were told of a drug nexus prerequisite. At the December 11, 1992, meeting, Enney asked the ATF agents to determine whether a drug nexus did in fact exist.

Three days after their meeting with ATF, the Texas counterdrug representatives received a facsimile of a letter dated December 14, 1992, on "Houston SAC letterhead" from the RAC of the Austin ATF office, Earl K. Dunagan, requesting military assistance from the Texas Counterdrug Program. The military assistance requested from the Texas National Guard was for aerial reconnaissance photography, interpretation and evaluation of the photos, and transportation of ATF agents aboard the aircraft during the reconnaissance. Although the request did not mention suspected drug violations (drug nexus), as would be required to secure non-reimbursable assistance or military assistance from a counterdrug unit, Lt. Col. Pettit, the Texas Counterdrug Task Force Commander, initialed his approval on the request.

Lt. Col. Pettit told National Guard investigators that he provided his approval because the request required another person's approval as well. However this decision, in itself, raises several unanswered questions. Did Lt. Col. Pettit assume a drug nexus existed or that one was not needed? Did he believe that the request should be approved despite the absence of legally required drug nexus? Or did he believe that ATF would reimburse the National Guard? These questions repeat themselves throughout the approval process, and are raised here to illustrate the difficulties encountered in disentangling a past approval of military aid involving a drug nexus.

Two days after Lt. Col. Pettit's approval, Special Agent Aguilera informed Lt. Col. Walker on December 16, 1992, that he received a facsimile from Mark Breault in Australia suggesting the existence of a methamphetamine lab at the Branch Davidian residence. Mr. Breault was a former Branch Davidian who left the group on bad terms, and exhibited strong personal animosity toward Koresh and several of the Davidians.

The following day, December 17, 1992, SAC Phillip Chojnacki held a meeting in his office with Special Agent Ivan Kallister, Special Agent Davey Aguilera, and Lt. Col. Walker regarding the Waco investigation. According to ATF, Lt. Col. Walker told SAC Chojnacki during the meeting that the Defense Department could provide non- reimbursable military support if there is a "suspicion of drug activity." Aguilera was subsequently instructed to "actively pursue information from his informants about a drug nexus." Additionally, ATF Intelligence Research Specialist Sandy Betterton searched criminal records to determine if Branch Davidians had "some" prior drug offenses. It later was determined that only one Branch Davidian had a prior narcotics conviction.

January 6, 1993 was the first National Guard overflight of the Branch Davidian residence and their auto body shop, called the "Mag Bag." This overflight was conducted by the Texas National Guard Counterdrug unit in a UC-26 counterdrug aircraft. Forward Looking Infrared (FLIR) videotape taken during the overflight indicated a "hot spot" inside the residence and three persons outside behind the residence whom ATF designated as "sentries." The Texas National Guard conducted five more reconnaissance/surveillance overflights over the Branch Davidian property from February 3, 1993, to February 25, 1993. These overflights were conducted to "search for armed guards and drug manufacturing facilities."

On the same day as the first National Guard overflight, January 6, 1993, Richard Garner, Chief of Special Operations Division of ATF, drafted another request on ATF Headquarters letterhead directly to Colonel Judith Browning, Director of Plans and Support, of the Office of the Department of Defense Coordinator for Drug Enforcement Policy and Support. ATF requested the loan of various office equipment, a refrigerator, cots and sleeping bags to be made available on January 11, 1993. The letter states that the ATF was investigating violations of "firearms and drug laws" and requested the equipment as "part of Defense Department support for counterdrug effort." Col. Browning responded by letter on January 15 approving the support to be provided by the Regional Logistics Support Office in El Paso, TX. The same questions asked of Lt. Col. Pettit above must be asked here of Col. Browning. Here, as with Lt. Col. Pettit, key documentation justifying the deployment of non-reimbursable military aid on the basis of a proven or suspected drug nexus is missing. Yet, Col. Browning approved the request and directed further ATF requests to be made directly to the Regional Logistics Support Office in Texas.

Within a week after Col. Browning's response, Garner sent a further request to Major Victor Bucowsky, the Officer-in-Charge of the Regional Logistics Support Office requesting an MOUT site for Special Response Team training, driver training and maintenance support for Bradley fighting vehicles, seven Bradley fighting vehicles, and on-call support in the event a siege occurred. This was the largest request for assistance in Regional Logistics Support Office's history and eventually had to be supplied by Texas National Guard because the Regional Logistics Support Office was unable to handle a law enforcement request of such magnitude.

On February 2, 1993, Operation Alliance made a request to the Commanding General of JTF-6 for the use of Special Forces personnel assigned to his organization. Lt. Col. Philip W. Lindley, the U.S. Army Special Forces Command Staff Judge Advocate, was notified of this request and advised JTF-6,


 * . . . that Rapid Support Unit (RSU) assistance in actual planning and rehearsal of proposed "takedown" could violate posse comitatus law, expose RSU to liability. [A q]uestion also arises as to appropriateness of RSU giving non-METL, i.e., SOT/CQB training to ATF.

However, there again is no written documentation of ATF's request for this highly controversial training.

Within days, the training mission by Special Forces soldiers was revised to include only coordination on Army ranges and teaching ATF how to develop an operations order.

c. Pre-raid military assistance requested by ATF and assistance actually received
The military assistance provided to ATF can be separated into four areas: (1) surveillance overflights by counterdrug National Guard units in January and February 1993; (2) training by Special Forces soldiers assigned to JTF-6 for counterdrug missions in late February 1993; (3) direct support by Texas National Guard counterdrug personnel who conducted an aerial diversion the day of the raid on February 28, 1993; and (4) post-raid support to FBI and ATF.

Six surveillance overflights were conducted by counterdrug National Guard units. Aerial photography missions by the Texas National Guard began on January 6, 1993. The January 6 missions and subsequent missions on February 3, 18, and 25, 1993, were taken by a Texas National Guard Counterdrug UC-26 aircraft. On January 14, 1993, aerial photographs were taken by the Alabama National Guard. And, on February 6, 1993, the Texas National Guard provided infrared video (FLIR) and aerial photography in a Counterdrug UC-26 aircraft.

ATF's request for training of ATF agents by Special Forces soldiers went through several alterations before the actual training took place. Although ATF initially requested Bradley fighting vehicles, SOT/CQB training, on-site medical evacuation assistance and planning assistance, legal restrictions caused the ATF request to be scaled down. A Special Forces Rapid Support Unit, assigned to Operation Alliance, trained ATF on 25-27 February 1993, in company-level tactical C2, Medical Evacuation training, IV ABC's, and assistance with Range and MOUT sites. According to military documents and military witnesses who appeared before the subcommittees, no non-Mission Essential Task List (wartime tasks) training,

involvement in actual planning occurred.

For the February 28 raid, the Texas National Guard supplied three helicopters and 10 counterdrug personnel. When ATF requested National Guard assistance, their stated mission to the National Guard was to use the helicopters as a command and control platform during the raid, and to transport personnel and evidence after the area was secured. Only when the National Guard team arrived at Fort Hood for the pre-raid training, less than 24 hours before the raid, did ATF agents inform the National Guard personnel that the helicopters would be used as an aerial diversion during the raid itself. ATF had even assigned one of the National Guard counterdrug soldiers to hang from a monkey sling outside the helicopter to film the raid. The soldier was in that position when the helicopters took incoming fire. Although all of the three helicopters sustained damage from weapons fire, none of the National Guard crews or ATF personnel aboard were injured. Since such direct involvement is prohibited by National Guard Bureau regulations and placed National Guard personnel in imminent danger, it is unclear why the National Guard consented to ATF's "last-minute" changes.

The National Guard's focal group review of the incident did not shed much light on the issue. The summary of its report, dated April 28, 1993, and the report itself "reveal only one major issue. The issue deals with the pre-raid threat assessment of the Davidians provided by ATF to the Texas National Guard as a `docile' environment. A second issue, which is not included in the written report of the focal group but has been vocalized by Colonel Spence, deals with the suspected methamphetamine laboratory at the Branch Davidian residence. Colonel Spence contends that the drug issue is not included in the focal group report due to the potential media interest and any resulting Freedom of Information Act inquiries."

d. Without the alleged drug nexus, the ATF most likely would not have received the same military assistance as was provided
Treasury and Defense Department officials have repeatedly maintained that ATF would have received military assistance even without a drug nexus, but that ATF would had to have paid for it. However, this statement is misleading because it fails to answer whether ATF would have received the same training it requested from units other than counterdrug units and for purposes other than counterdrug operations.

What is clear is that the ATF would not have received military assistance from the highly trained Special Forces units in such a short time frame and through the streamlined approval process which it enjoyed. As stated above, the ATF originally requested Close Quarters Combat training, a type of training available only from specialized military units like Special Forces. ATF's request was also the largest law enforcement request for military assistance in many of the counterdrug organizations' histories, such as the Regional Logistics Support Office. ATF further requested that its military training be conducted less than 30 days after its request, while even the streamlined Operation Alliance process normally required 90 days. Requesting through Operation Alliance also allowed ATF to avoid an approval process with a greater potential of independent oversight.

The same conclusion can be reached for the National Guard support. Had there been no drug nexus, there again would have been a different approval process. Without a drug nexus (i.e., non-counterdrug purpose), ATF's request for National Guard assistance would only be permitted if both the Texas State Constitution authorized the National Guard's involvement in the type of assistance ATF requested and the Governor was willing to expend State funds for that purpose. National Guard personnel have indicated that the assistance would not have been provided under those circumstances. This is supported by the fact that the National Guard Bureau regulations prohibit the type of direct involvement ATF received from the National Guard counterdrug personnel, i.e., acting as a diversion during the ATF raid. Further, since the Texas National Guard depleted its fiscal year 1993 counterdrug funds during its assistance to ATF at Waco and had to request additional funding during it assistance, it is doubtful that Governor Richards would have approved State funding of so expensive an operation.

2. Concerns of military legal advisors
Assistant Secretary of Defense Allen Holmes and Maj. Gen. John M. Pickler both appeared before the subcommittees. They testified that the approval process worked as it was intended. Yet, documents show that this was so only because Special Forces Command legal advisors at the U.S. Special Forces Command Headquarters, who were outside the normal approval process, but who had learned of ATF's request for assistance from Special Forces soldiers at Operation Alliance, strongly voiced objections to the Special Forces training mission of ATF as proposed by JTF-6. As a result of these concerns reaching extremely senior levels of command within the Department of Defense, the training missions were scaled back significantly and potential violations of the law were avoided.

a. Involvement of Special Forces Command legal advisors
As referred to earlier, a Rapid Support Unit (RSU) from Third Company, Third Division, Special Forces Group was deployed on a regular rotation to JTF-6 for counterdrug missions. When the original ATF request was assigned to this RSU team, Maj. Ballard, the Special Operations Representative at JTF-6, telephoned Special Operation Command at Fort Bragg and expressed his concern with the ATF training mission to Mr. Crain, a civilian employee at Special Operations Command.

Upon hearing the details of the original request, Mr. Crain also became concerned and immediately notified Lt. Col. Lindley. Lt. Col. Lindley subsequently spoke with Maj. Petree, the Special Forces Rapid Support Unit Commander, who also expressed similar concerns about the scope of the mission.

Lt. Col. Lindley testified before the subcommittees that he was principally concerned with three areas of the support requested--the review and scrub of the ATF operation plan, medical support in close proximately to the scene, and assistance in developing and constructing the rehearsal sites. Lt. Col. Lindley's first concern was the review and scrub which is an analysis of a mission that has already been planned. The review and scrub of the operation plan and the review of the discriminating fire plan would have been done by the Special Forces unit assigned to JTF-6, which ultimately provided the military training to ATF. Lt. Col. Lindley was of the opinion that the actual planning and rehearsal of the take down was "active" and therefore illegal. He also believed that the Special Forces unit was not authorized to offer expert advice on deconstructing a drug lab.

Lt. Col. Lindley's second concern dealt with the use of military medical personnel. According to ATF's request, these military medical personnel would be on-site and directly involved in potential searches of individuals apprehended and in the collection of evidence, resulting in Posse Comitatus Act implications. This degree of direct involvement would also create liability issues associated with the treatment of the civilians. The medical personnel potentially would be treating gunshot wounds of children, and military medical personnel do not have the training or equipment to treat such trauma wounds (gunshots) in small children. For example, some medical equipment for children such as breathing tubes require special sizes with which these medical teams are not be equipped.

According to Lt. Col. Lindley, the JTF-6 informed him that the law enforcement action was a raid on a methamphetamine lab. Having been involved in law enforcement actions involving methamphetamine labs as a civilian, Lt. Col. Lindley was aware of concerns with the physical characteristics of methamphetamine production and the dangers in the chemicals, as well as ammunition considerations given the explosive nature of methamphetamine labs. Contamination of soldiers' clothing by chemicals used in the production of methamphetamines would involve those soldiers in the collection of physical evidence. Again, such direct involvement would violate the Posse Comitatus Act.

Upon completing his discussions with the Special Operations personnel, Lt. Col. Lindley directly contacted JTF-6 personnel to express his concerns about the mission. When Lt. Col. Lindley informed JTF-6 personnel that, from his initial analysis of the information presented, the request was impermissible as proposed, he received a hostile response from Lt. Col. Rayburn, the JTF-6 Legal Advisor. After his conversation with JTF-6 personnel, Lt. Col. Lindley began a memorandum for record detailing the chronology of events and conversations as they took place. JTF-6, not Lt. Col. Lindley, subsequently provided the legal review of the request.

After the requests for additional evidence of methamphetamine production, the military assistance allowed was drastically restricted.

3. Evidence indicating problems in the approval process
Contrary to assertions by Assistant Secretary Holmes, Brig. Gen. Huffman, and Maj. Gen. Pickler, the approval process did not work as it was supposed to. First, although concerns had been raised that JTF- 6 had been providing military assistance to non-counterdrug activities, little documentation of ATF's requests for military assistance exists. Second, while some senior military officers and DEA officials had opportunities to voice concerns about ATF's alleged drug nexus, they chose not to exercise those opportunities. Third, because a few military officers identified major legal problems with the training mission and alerted senior military commanders, despite threats by other senior military officers, the mission was altered to avoid violations of the law. Finally, after Waco hearings were scheduled, the Secretary of Defense acknowledged problems with the military assistance process and created a working group to review the process.

a. Concerns of cheating by JTF-6
Military documents indicate that a problem existed with JTF-6 providing military assistance to law enforcement agencies in the absence of a drug nexus. These concerns apparently had reached the highest levels of the Department of Defense.

When JTF-6 provides military assistance in non-counterdrug related law enforcement actions, it is referred to as "cheating" because it allows the law enforcement agency to obtain military assistance without reimbursing the military. Moreover, military assistance provided under these circumstances is funded with money specifically appropriated for counterdrug activities. Furthermore, cheating allows JTF-6 to provide military assistance to non-counterdrug activities, outside the scope of its authorized purpose. Interviews with Defense Department counterdrug personnel revealed that self preservation in part fuels JTF- 6 efforts to secure healthy budget allocations. Documents provided by the Treasury Department show that in the months following the tragic end of the Branch Davidian siege, JTF-6 and Operation Alliance were actively promoting their services to ATF. This was occurring even as senior military officials expressed concern that ATF misrepresented the required drug nexus in order to obtain military assistance.

Assistant Secretary Holmes stated that JTF-6 does not verify whether a "drug nexus" exists before providing military assistance because it would potentially place the military in a capacity of conducting surveillance and investigations of American citizens, which is a violation of U.S. law. Secretary Holmes' purported concern is not responsive to the issue. Contrary to Mr. Holmes' assertion, the verification of a drug nexus would not require military personnel to conduct surveillance of or otherwise investigate American citizens. Rather, verification could be accomplished simply by establishing a standard which requires sufficient documentation by the law enforcement agency of the existence of drug offenses, as opposed to mere speculation or suspicion. In addition, JTF-6's own planning guide states that it "reviews and validates all requests for support" in conjunction with Operation Alliance, the National Guard, and the Regional Logistics Office.

b. Special Forces paper and ATF's response
Further evidence suggesting a serious problem in the military's approval of assistance to ATF in this case involves ATF agents' reactions to the Bureau's own claim that a methamphetamine lab existed in the Branch Davidian residence.

The alleged presence of a methamphetamine lab was the basis for which the Special Forces assistance provided to ATF. After Special Forces legal advisors concerns' with the proposed training and ATF's alleged drug nexus, Maj. Petree, the Commander of Special Forces Rapid Support Unit which was assigned to provide ATF support, ordered two of his Special Forces medics to research and write a paper on methamphetamine labs for ATF. These Special Forces medics, who are highly skilled military personnel with far more advanced training than a typical civilian paramedic, spent 3 to 4 days researching and writing a memorandum on methamphetamine labs for ATF.

There is no doubt that a central purpose of the memorandum on methamphetamine labs was to inform the ATF of the potential dangers and special precautions required when dealing with an active methamphetamine lab. Yet, when Maj. Petree presented the paper to ATF agents during the February 4-5, 1993, Houston meeting, these agents openly chose to ignore this information in front of the soldiers who prepared the document. In fact, the ATF agents' dismissal of such vital information was so obvious that these agents' reactions alone made to clear that the ATF believed that a methamphetamine lab did not exist.

Maj. Petree indicated that the purpose of the Special Forces paper was for the informational use of Special Forces units who might be involved in future counterdrug activities involving methamphetamine labs. Yet, when the subcommittees requested a copy of the Special Forces paper during a visit by subcommittees' staff to the U.S. Special Operations Command in Fort Bragg, NC, they were informed that it could not be located. Sgt. Fitts had not seen the Special Forces paper since the meeting in Houston and had no idea what became of the Special Forces paper after the meeting. If the Special Forces paper was written as an information resource, the Special Operations Command would be expected to have a copy of this paper on file.

c. Two DEA agents were members of the Operation Alliance board
Military officers were not alone in their inaction. Documents show that two senior DEA agents were assigned to Operation Alliance at the time of ATF's request for military assistance at Waco. Yet, none of the documents indicate that either of these DEA agents expressed concerns about the evidence ATF offered in support of its claim of an active methamphetamine lab or how ATF was planning to take down the alleged methamphetamine lab.

These two senior DEA agents were members of the Operation Alliance Board which provides the final approval of military assistance missions to drug law enforcement agencies. It is reasonable to assume that these DEA agents were aware of the safety and health risks a methamphetamine lab would present.

Treasury and Defense Department documents provided to the subcommittees indicate that Operation Alliance at least twice requested additional information on ATF's drug nexus, that a very contentious discussion between legal advisors and senior military officials of Special Operations Command and Operation Alliance had taken place, and that this was the largest raid in law enforcement history. Yet, no evidence was presented to show that these DEA agents expressed any concerns that ATF was not addressing these risks in their operational planning.

d. Approval process did not work
Contrary to the testimony of Assistant Secretary Holmes and Maj. General Pickler, the training mission did not violate laws because the approval process worked, but in spite of it. Only because certain soldiers recognized a legal problem and had the courage to raise the issue in light of opposition from their chain of command at JTF-6, was a "major incident avoided, lives were saved, and the law was not violated."

JTF-6 and Operation Alliance have the approval authority for law enforcement requests for military assistance along the Southwest border, which means their legal advisors conduct the legal review of the proposed assistance, not Special Operations Command legal advisors at Fort Bragg.

Soldiers are taught that they should always go through their chain of command to address a problem. Only under significant circumstances are soldiers encouraged to go outside their chain of command for assistance. The Special Forces soldiers assigned to assist ATF, apparently had been properly trained to go outside their chain of command, which at the time was at JTF-6, by contacting their legal advisor at Special Operations Command, (USAFC) if they had concerns about a mission.

The Special Forces soldiers assigned the ATF mission did just that. Maj. Ballard, the Special Operations Representative at Operation Alliance, contacted Mr. Crain at Special Operations Command. Crain then informed Lt. Col. Lindley of their concerns.

It was Lt. Col. Lindley, the legal advisor of the Special Operation Command, who raised the legal concerns with JTF-6. Lt. Col. Lindley received a hostile response from Lt. Col. Rayburn, the JTF-6 legal advisor who accused him of attempting to "undermine" and "undercut" JTF-6's mission. Lt. Col. Lindley was also told that he could consider Lt. Col. Rayburn's words a personal attack. Subsequent to Lt. Col. Lindley's telephone conversation with Lt. Col. Rayburn, these concerns were raised with the Commanding Generals of both Special Operations Command and JTF-6 and eventually reached the Office of the Secretary of Defense. When the legal concerns were reviewed at that level, the Special Forces training mission was modified to comply with the law.

e. The working group established by the Secretary of Defense
The final piece of evidence that serious problems exist in the process by which the military provides support to civilian law enforcement agencies is the Secretary of Defense's creation of a working group to review the process in the wake of the subcommittees' announcement of Waco hearings which would also explore the military's role in the incident.

On May 17, 1995, Secretary of Defense William J. Perry directed the Under Secretary of Defense for Policy to establish a working group "to conduct a comprehensive review of the current system by which Defense Department evaluates and responds to requests for assistance initiated by outside agencies." Perry acknowledged in his memorandum that, "`several recent events suggest that the process by which Defense Department evaluates and approves outside requests for assistance may be less than adequate" and that "there are indications that Defense Department's ability to respond smoothly is encumbered by conflicting directives, multiple entry points and diverse funding authorities."

c. the alleged drug nexus
As explained earlier, in order to receive military assistance at Waco from the military counterdrug units, ATF was required to have a drug nexus. The existence of a drug nexus also would have allowed ATF to receive that military assistance without being required to reimburse the military for the cost of the training. ATF's allegation that a drug nexus existed at the Davidians' residence raised two concerns: (1) whether ATF used this alleged drug nexus as a subterfuge in order to obtain free military assistance from specially trained Special Forces counterdrug units; and (2) assuming ATF actually believed a drug nexus existed, whether ATF ensured that its agents were aware of the extreme health and safety hazards that a methamphetamine lab presents, and were properly trained and equipped to address those hazards.

1. Methamphetamine laboratories
ATF alleged to the military that it had evidence of an "active methamphetamine lab" on the premises of the Davidians' residence. Unlike general narcotics seizures, clandestine labs, by their very nature, "present a unique series of hazards and risks to law enforcement personnel." Therefore, an allegation of an active methamphetamine lab should alarm any law enforcement official, because of the extreme safety and health dangers involved.

a. Dangers associated with methamphetamine labs
Hazards which law enforcement agents may expect to encounter in clandestine lab operations include exposure to toxic chemicals, explosive and reactive chemicals, flammable agents, irritant and corrosive agents, booby traps, and physical injury from close quarter contact with illegal lab operators.

Illegal methamphetamine labs use highly volatile chemicals during the production process. Notwithstanding the booby traps law enforcement agents frequently encounter at methamphetamine labs, the firing of a single bullet, sparks from turning off and/or on light switches, flashlights, or even a flash from a typical photography flashbulb can easily trigger an instantaneous explosion. Toxic vapors produced during chemical reactions can permeate a building's structure and buildings with poor ventilation and temperature controls (like the Davidians' residence) "add to the potential for fire, explosion, and human exposure." One chemical used in clandestine drug labs is so deadly that an amount small enough to fit on the head of a pin, could kill a room full of people.

Other health concerns are no less serious. In the absence of proper safety precautions and cleanup procedures, law enforcement agents may "experience both acute and chronic adverse health effects as a result of exposure to solvents, reagents, precursors, by-products, and drug products improperly used or generated during the manufacture of illegal drugs." Toxic materials produced at these labs can injure the lungs or the skin, damage the liver, kidneys, even the central nervous system. Some toxins have been linked to malformation of embryos, other genetic damage, cancers, and reproductive failure.

In determining appropriate safety and health precautions, the subcommittees relied on standards set forth by the Drug Enforcement Administration (DEA). DEA has primary jurisdiction over investigations of clandestine drug labs. As the lead Federal agency, it has established procedures that DEA agents must follow during the investigation and seizure of drug labs. Moreover, this approach by DEA has been a model for State and local agencies in developing their own clandestine drug lab programs.

b. Certification/training requirements for deconstruction of methamphetamine labs
Law enforcement personnel engaged in the investigation and seizures of clandestine drug labs should have specialized training in the investigation of such labs, in appropriate health and safety procedures, and in the use of the protective equipment.

The DEA requires all of its personnel to complete a course on clandestine methamphetamine labs and be certified prior to ever participating in a methamphetamine lab raid. Simply stated, no DEA agent may participate in "take downs" of methamphetamine labs without proper certification. Annual recertification also is required. In addition, DEA provides seminars on clandestine methamphetamine labs throughout the Nation to other local, State, and Federal law enforcement personnel.

DEA agents are also required to receive a "baseline medical screening, including an occupational/medical history, a complete physical examination, a blood chemistry screen, pulmonary function and spirometry testing, and a stress-treadmill test prior to assignment." Agents have regular follow-up medical evaluations and, because of the risks associated with long-term exposure, regularly are rotated out of the Clandestine Lab Program.

The initial entry team also must have and be trained in the use of "appropriate monitoring instrumentation, such as air-sampling pumps, explosimeters, oxygen meters, organic-vapor analyzers . . . that are used to determine the lower explosive limit and the concentration of organic vapors in the laboratory atmosphere." All of the monitoring devices must be "designed to suppress sparks" that may ignite and cause fires or explosions.

c. The special precautions required when law enforcement actions involve a methamphetamine lab
After an investigation has gathered sufficient probable cause to establish that a drug lab is operating on a premises, DEA agents obtain a search warrant. Agents may request in the warrant the authority to destroy any hazardous bulk chemicals and equipment. A forensic chemist is consulted prior to and during the seizure. Once the warrant is obtained, the case agents begin a six step process for conducting the seizure: planning, entry, assessments, processing, exit, and follow-up. Because ATF entered the Branch Davidian residence, only the first two steps will be discussed in detail.

In the planning stage, the case agents must first assess of the hazards likely to be encountered and determine who needs to be notified before the raid (i.e. police, fire department, hospitals, hazardous waste contractors.) This includes a determination of what chemicals the agents might encounter. Once the assessment is complete, certified teams, including a forensic chemist and site safety agent trained and equipped with the requisite safety equipment, are assigned.

The second stage is the initial entry to apprehend and remove the operators and to secure the lab. Typically in methamphetamine lab operations, law enforcement agents will attempt to arrest the suspects away from the premises to avoid many of the aforementioned dangers. This is usually accomplished through surveillance and investigative techniques which provide law enforcement agents with sufficient information to determine the lab's exact location, what chemicals are being used, the stage of the production process and when the suspects will leave the premises.

If the lab operators cannot be apprehended away from the premises, then the initial entry takes place. "DEA protocol calls for the initial entry team to employ ballistic protection equipment and fire retardant clothing." Other safety procedures include avoiding the use of shotguns or diversionary devices such as flash bangs, smoke, or tear gas canisters which can ignite fumes. Additionally, agents should avoid turning light electrical switches on or off, use only explosion-proof flashlights, and use electronic strobes, not flashbulbs. Once the premises are secure and everyone is evacuated, the assessment step begins.

d. Did ATF address the extreme safety and health concerns a methamphetamine lab presents in its raid on the Branch Davidian residence?
In 1990, Stephen E. Higgins, the Director of the Bureau of Alcohol, Tobacco and Firearms, testified before the Subcommittee on the Treasury, Postal Service, and General Government Appropriations of the Committee on Appropriations. In written responses to questions from subcommittee members, Higgins acknowledged:


 * [W]e [at the ATF] are aware of the considerable hazards presented by the careless storage of chemicals and the sensitivity of the explosive mixtures at these [clandestine methamphetamine] laboratories. In an effort to ensure a safe and thorough investigation, ATF has proposed specific, specialized training for select ATF personnel to readily identify narcotics laboratories and to recognize certain hazardous materials associated with the laboratories.

Given that Higgins was still the ATF Director during the period when David Koresh was being investigated, when the Waco raid took place and during the post-raid investigation, it is reasonable to conclude ATF was aware of the safety and health hazards presented by methamphetamine labs. Furthermore, since the case had the "highest interest of BATF Washington and had been approved at that level," ATF headquarters was aware of the alleged presence of a methamphetamine lab.

Even so, in response to the subcommittees' inquiries, ATF has acknowledged that no "ATF agent who was present on February 28, 1993, . . . had received specific, specialized training in investigating methamphetamine laboratories." In reviewing videotapes of the Fort Hood training, subcommittee investigators also found no discussion of the potential safety and health hazards that the suspected active methamphetamine lab would present. In other words, ATF agents participating in the raid had little or no notice of the dangers they might have forced in the active methamphetamine labs.

From numerous briefings and a review of videotape shot on the day of the raid, it appears that ATF agents did possess ballistic protection equipment and fire retardant clothing. ATF agents also possessed regular flashlights and regular cameras (i.e. flash photography), shotguns and flash bangs, each of which could trigger instantaneous explosions if used in the vicinity of a methamphetamine lab. Nor is there any evidence that any ATF agents possessed appropriate monitoring equipment to determine the lower explosive limit and the concentration of vapors in the atmosphere, or explosion proof flashlights.

Clearly, ATF disregarded the safety of its agents and innocent civilians. Agencies involved in clandestine lab operations fall under OSHA regulations requiring the following actions by employers:
 * "Communication to employees of clear, unambiguous warnings, as well as provision of educational programs on the hazards of chemical substances."
 * "Training of all employees who may be exposed to hazardous substances in how to recognize and handle safety and health hazards at laboratory sites, in the use of protective equipment, and in safe work practices." Training must meet OSHA standards.
 * Examining and monitoring the health of all employees exposed to hazardous substances including documentation of any exposure.
 * Provide information to employees regarding any hazardous conditions in their work environments.

When agencies fail to adhere to these requirements, "supervisors can be held strictly and severally liable for situations involving employee exposure to hazardous substances and the resulting adverse health effects."

a. Mark Breault's statement
Coincidentally, after repeatedly being informed by military officials of the drug nexus requirements, Aguilera received a facsimile on December 16, 1992, from Mark Breault in Australia, which according to ATF "suggest[ed] the existence of an illicit methamphetamine laboratory at the Branch Davidian compound." Mr. Breault's facsimile relays that upon taking over the Mount Carmel (Residence of the Branch Davidians) property from George Roden, the former Branch Davidian leader, Koresh found methamphetamine lab equipment and "recipes" and called the Sheriff's Department to turn over the materials. It had been long rumored that an individual who used to rent from Mr. Roden was into drugs but he had later gone to prison. This individual was no longer on the property when Koresh took over.

Mr. Breault's facsimile to Special Agent Aguilera also indicated that although Koresh did call the Sheriff's Department and Sheriff's Department personnel did come out to the property, one individual present at the residence when the Sheriff's Department visited said she did not personally observe Koresh turn the lab equipment over to the Sheriff's Department. Mr. Breault also stated in his facsimile that one night in 1989, Koresh "was talking about trafficking drugs as a way of raising money. He [Koresh] seemed very interested in getting money through this means." However, Mr. Breault also admits in his facsimile that he was the only ex-member who was present for this statement. Mr. Breault goes on to say in the same document that the building in which he implies the drug lab equipment was located burned down in Spring 1990. Lt. Col. Gen. Pickler testified before the subcommittees that this information from Mr. Breault regarding a methamphetamine lab also was told to the military by ATF. However, military documents indicate that ATF was conveying to the military the presence of an active methamphetamine lab.

There were at least six significant problems with its credibility as evidence that the Branch Davidians were operating a methamphetamine lab prior to ATF's raid. First, the allegations were very stale by legal standards. ATF received the information more than 5 years after the methamphetamine lab equipment was found and the Sheriff's Department visited the premises to investigate the claim. Second, it is undisputed that Koresh found the methamphetamine lab equipment and Koresh himself called the Sheriff to pick up the equipment. Third, the person rumored to have been involved in drugs was an occupant of the premises prior to Koresh taking over, and subsequently was sent to prison. Fourth, the former leader, Mr. Roden, not Koresh, was suspected of having been involved in illegal drugs. Fifth, the alleged statement by Koresh about drugs could not be verified independently. Sixth, the building Mr. Breault implies housed the methamphetamine materials burned down in 1990, 3 years before the raid.

Perhaps the most disturbing fact about this information, however, is that all of this drug nexus information originated with Mr. Breault, a disgruntled former member who left the group in 1989. The fact that Mr. Breault maintained an extensive biographical database on present and former members and was working with a self-proclaimed cult-buster Rick Ross in and of itself should have raised questions about Mr. Breault's intentions and credibility to the ATF agents.

Lt. Robert A. Sobozienski, a New York City Police officer who acted as an expert consultant to the Treasury Department's Waco Review Team, summarized the problem with the information Breault provided when he wrote in his Waco Raid Assessment, "Former cult members were interviewed and, apparently much, if not all of their statements are reported to be facts. No thought is given to the idea that these ex-cult members had been away from the residence for some time, or to the individual biases, or if they had an ax to grind with present cult members."

ATF agents did check with the McLennan County Sheriff's Department personnel who acknowledged Koresh's request but "found no record" of the removal of methamphetamine lab equipment. However, Joyce Sparks states in written testimony, that during her child protective services investigation in 1992 she checked with the Sheriff's Department and was told that Department personnel did receive drug evidence from David Koresh. During her interviews with him, Koresh told her that he had given the Sheriff's Department information, pictures, and drug evidence but nothing had ever come of it. Koresh complained in his interviews with Sparks that the Sheriff's Department was aware of the illegal methamphetamine lab.

The disposal of methamphetamine lab equipment and chemicals presents great risk and significant problems. As a matter of routine, DEA hires certified State and local chemical disposal companies to remove the lab equipment and chemicals for proper disposal under EPA guidelines. Because the cleanup costs can easily total $20,000, or significantly more, depending on the size and condition of the lab site, local law enforcement officials sometimes choose not to remove the lab equipment and chemicals or not to follow the proper environmental guidelines for removal in an effort to avoid the legal liabilities and costs associated with such labs.

b. The National Crime Center check
As mentioned earlier, after a December 17, 1992, meeting of SAC Chojnacki, Aguilera and Lt. Col. Walker in which Lt. Col. Walker informed the ATF agents that ATF could receive non-reimbursable military support if a drug nexus existed, ATF Intelligence Research Specialist Sandy Betterton was instructed to search criminal records of Davidians to identify prior drug offenses. However, when ATF Special Agent Pali was interviewed by Treasury Agents during the Post-Waco review, he admitted that only one Branch Davidian had a prior drug conviction.

c. FLIR hot spot
Treasury Department documents provided to the subcommittees indicate that at the request of ATF, Forward Looking Infrared Radar (FLIR) imaging was taken on January 6, 1993, by the Texas National Guard Counterdrug unit in a National Guard counterdrug aircraft. Eugene Trevino, a Texas National Guard airman aboard the aircraft, offered an unofficial interpretation of the FLIR photos to the Austin ATF agents in which he stated that the "hot spot" inside the residence "could be indicative of 'a methamphetamine lab.' " It is unclear whether ATF agents solicited Trevino's personal interpretation or if he offered it on his own volition.

Regardless of the impetus for the interpretation, Lt. Col. Pettit and Lieutenant Justice "maintained that only information about grid coordinates was officially provided to ATF" and that "no official interpretation was ever provided to ATF regarding the `hot spot.' " Even though ATF never sought an official interpretation, ATF agents later offered the "hot spot" as direct evidence of a methamphetamine lab to the military when JTF-6 requested additional proof of the drug nexus at a February 4, 1993 meeting.

Major General Pickler testified that at the February 4 meeting there was some pictorial evidence (i.e., FLIR evidence) that an active methamphetamine lab was on the site of the residence and ATF expected the lab to be there. Interviews with DEA agents have revealed that FLIR imaging is not a technique used to identify clandestine drug labs because using "hot spots" as signatures for methamphetamine labs is too unreliable. DEA agents have informed subcommittee staff that the use of FLIR imaging to identify an active methamphetamine lab would be a last resort and only as "icing on the cake" under that circumstance.

d. The DEA lab team
Only when General Pickler of JTF-6 continued to request additional evidence of a methamphetamine lab, did ATF indicate it intended to include a lab team from the DEA in the operation. Treasury documents indicate that two DEA officials were at the Command Post at the Texas State Technical Institute on the day of the raid; but ATF declined the DEA offer of direct assistance from a DEA Clandestine Certified Laboratory Team. Such a lab team is specially trained and certified to "take down" active methamphetamine labs. These teams also have the specialized equipment and tactical training required for methamphetamine lab operations.

e. The precursor chemicals used to produce methamphetamine
There are numerous methods to produce methamphetamine. However, certain chemicals required in the synthetic process are themselves incorporated into the molecule of the target drug (in this case methamphetamine). These chemicals are referred to as precursor chemicals anSOT/CQB, or direct involvement in actual planning occurred being produced. While ATF agents repeatedly proffered evidence of deliveries of precursor chemicals to the Branch Davidian residence as proof of an active methamphetamine lab, the Treasury Department has since been unable to locate or produce the documents offered to support its precursor contentions.

Treasury documents outlining the series of meetings between military, Texas National Guard, and ATF officials, describe a February 4, 1993, meeting held at the SAC/Houston office regarding military support. In attendance were Special Agent Lewis; Special Agent Sarabyn; Lt. Col. Bertholf; Special Agent Pali, ATF coordinator to Operation Alliance; William Enney, Texas State Interagency Coordinator; and Maj. Lenn Lannaham, JTF-6 Liaison. During the meeting, Sarabyn offered ATF documents including a list of methamphetamine precursor chemicals, in support of the drug nexus. As a result of the meeting, military support of the Branch Davidian investigation continued.

According to General Pickler's testimony before the subcommittees, Lt. Col. Berthal was told at the February 4, 1993 meeting in Houston that precursor chemicals were discussed as one of the elements of proof proffered by ATF that an active methamphetamine lab existed and those chemicals may have been on site at the Branch Davidian residence. General Pickler testified that the ATF representative, while giving a background briefing as to why ATF had targeted the Davidians, indicated that UPS or shipping documents ATF was tracking included a great deal of precursor chemicals consistent with the production of illegal drugs. However, General Pickler also testified that precursor chemicals were discussed in the context of the possibility of a delivery of those kinds of chemicals much earlier than 1993, but he is not exactly certain which precursor chemicals were there.

General Pickler's testimony raises several questions: First, what did ATF actually tell the military about precursor chemicals? Second, General Pickler's testimony implies it was that information about deliveries of precursor chemicals that ATF offered when the military requested additional evidence. If General Pickler was uncertain when precursor chemicals were present at the Branch Davidian residence, why did he approve the ATF training by an elite Special Forces military unit assigned to do counterdrug missions? Third, did General Pickler simply rely on the absence of a defined drug nexus standard in approving the training mission? Fourth, after he requested additional information before approving the military training, why did General Pickler and other military officials say it is not the position of the military to question the veracity of a drug law enforcement declaration that a drug nexus exists? Especially, since JTF-6's own planning guide States that in conjunction with Operation Alliance, the National Guard and Regional Logistics Office "reviews and validates all requests for support."

a. ATF failed to address the issue of an active methamphetamine laboratory into raid planning
Undermining ATF's claim that a methamphetamine lab existed at the Branch Davidian residence, is the fact that briefing papers which went up to ATF Headquarters, status reports and other requests failed to mention the existence of a methamphetamine lab at the planned raid site or suspected illegal narcotics production.

A review of the January 5, 1993, briefing paper sent to ATF's Washington, DC. Headquarters reveals that no mention of the subject of drugs or military involvement even though senior ATF officials at headquarters were signing off on requests for military assistance under the guise of a counter-narcotics operation. Treasury documents indicate that this briefing paper was forwarded to the Assistant Secretary of the Treasury for Enforcement after review by the ATF Director and his staff. The forwarding of this type of briefing paper was the normal procedure the ATF Director used to notify Treasury of major on-going cases.

In addition to the January 5 briefing paper, monthly status reports were prepared by Aguilera, reviewed by Dunagan, the Assistant Resident Agent in Charge of the Austin, TX office and approved by Chojnacki, the Special Agent in Charge of the Austin, TX office who then forwarded the reports to the Special Agent in Charge of the Houston Office. Although these reports being provided over a 9 month period and almost daily during the weeks leading up to the raid, they never mention the case as a counter-narcotics investigation or any military involvement.

As late as February 5, 1993, Chojnacki requested the use of flash bangs and failed to mention the possible existence of an "active methamphetamine lab," even though ATF policy states that drug laboratories or other explosive environments may be so hazardous as to preclude the use of flash bangs. In fact, the only consistent mention of any drug activity by Branch Davidians in any of the ATF Waco documents on Waco is in requests for military assistance which required drug activity to justify military intervention and assistance.

b. ATF agents were not properly trained and certified
The second piece of evidence refuting ATF's claim that a drug nexus actually existed is the fact that ATF agents involved in the raid on the Branch Davidian residence were not trained and/or certified in methamphetamine operations. Furthermore, the lack of necessary safety precautions taken in the planning, training and operation indicate that these agents were ill-equipped and unprepared for the "suspected" presence of an active methamphetamine lab. These failures are in direct conflict with ATF's own guidelines on clandestine lab operations.

c. The DEA's offer of assistance
ATF's claim that a drug nexus actually existed is called into question by ATF's response to DEA's offers of assistance. The Drug Enforcement Agency is the lead Federal agency in enforcing narcotics and controlled substance laws and regulation. While Operation Alliance was assisting ATF with its investigation of the Davidians, DEA had a Senior Special Agent, Mr. William Roshon, acting as a Coordinator for DEA at Operation Alliance. On January 22, 1993, Deputy Tactical Coordinator William Roshon offered DEA assistance in the form of on-sight laboratory technicians to ATF Special Agent Pali. Pali placed DEA Agent Roshon in touch with the SAC/Houston Office.

Post-raid interviews of Pali by the ATF Waco Review Team revealed that ATF refused twice DEA's offer of on-sight lab technicians, but did have two DEA officials from the Austin DEA office present at the Command Post the day of the raid. Two DEA agents from the Waco office were on stand-by for the raid.

On February 2, 1993 ATF Agent Lewis provided a briefing to Operation Alliance members on the "suspected methamphetamine lab" at the Branch Davidian residence which, according to the ATF summary of events, was known at that date "to have received deliveries of chemical precursors for the manufacture of methamphetamine." After the briefing by Lewis, Gen. Pickler, Commander of JTF-6, stated "that it is not the position of the military to question the veracity of a law enforcement request regarding a drug nexus." DEA Agent Rochon told Waco Review Team interviewers, after the February 2, 1993, briefing, that he had offered the assistance of a DEA Clandestine Certified Laboratory Team and Pali declined the request. However, Agent Rochon did provide Lewis the phone number of the Austin DEA Resident in Charge. Agent Roshon " 'opined' that precursor chemicals for methamphetamine could also be used in the manufacture of explosives." However, senior DEA chemists told subcommittee investigators when interviewed regarding the use of methamphetamine chemicals to make explosives, "that they had never heard that one before" and they were unaware of any chemicals used to produce methamphetamine which could be used to make explosives. Although some methamphetamine chemicals are very volatile in nature, using them to make explosives is another matter entirely. Given that ATF has jurisdictions over explosives and DEA has jurisdiction over illegal narcotics, it seems odd that ATF agents and DEA agent Rochon would attempt to blur this distinction.

Although DEA was never informed officially of the Waco investigation by ATF, two senior DEA officials were well aware of the facts surrounding the ATF investigation of the Davidians. Two senior DEA officials were members of the Operation Alliance board which reviewed law enforcement agency requests. Documents indicate that at least one of these DEA agents did offer DEA methamphetamine lab assistance and ATF declined that offer. However, no documents received by the subcommittees indicate that these DEA agents expressed any concern with ATF's apparent plan to raid an active methamphetamine laboratory.

In addition, when the subcommittees requested copies of the UPS receipts as proof of the delivery of chemicals that are required for the production of methamphetamine or any other evidence of the delivery of these chemicals, the subcommittees were informed that none could be found.

d. The Special Forces paper and the ATF response to it
The fourth piece of evidence undermining ATF's claim that a drug lab existed is ATF's own reaction to the Special Forces paper on the methamphetamine lab. Sergeant Fitts testified that he and another Special Forces medic where directed by Major Petree, their Commander, to research and draft a paper on methamphetamine labs. Interviews with Sgt. Fitts revealed that the paper addressed the dangers of methamphetamine labs from both tactical and exposure perspectives. Sgt. Fitts and the other medic took 3 or 4 days to complete the project.

During the February 4-5 Houston meeting, Maj. Petree presented the paper to ATF agents who showed no interest in its contents. Sgt. Fitts testified that ATF agents never expressed any concern about the dangers that would be presented by a methamphetamine lab and that it was his impression that the subject of a methamphetamine lab "dropped off the face of the earth after the paper was presented." Hearings Part 1 at 372; subcommittees' interview of Staff Sgt. Steve Fitts, in Washington, DC (July 11, 1995). In his opinion, it was obvious from the reaction of the ATF agents that no methamphetamine lab existed.

d. post-raid military assistance to the federal bureau of investigation

 * (february 28-april 19)

The standoff between the government and the Branch Davidians began on February 28, 1993, as the cease-fire went into effect following the ATF's failed raid on the Branch Davidian residence. During that time personnel and equipment of the U.S. Armed Forces were present at or near the Branch Davidian residence.

a. Active duty personnel and equipment
During the standoff, a limited number of active duty military personnel were present at the Branch Davidian residence providing services to the FBI in support of the FBI's activities during the standoff. Most of these troops were dressed in uniforms which indicated their, rank, service, and function. A small number of troops present at the site were assigned to Army Special Forces units. Because the military occupational specialties of these troops are classified, they dressed in civilian clothes while at or near the Branch Davidian residence and did not identify themselves as military personnel. Additionally, one of the two senior Army officers present at the April 14 meeting with the Attorney General also visited the Branch Davidian residence in order to personally view the tactical situation. This officer was present at the Branch Davidian residence for part of 1 day.

The type of support provided by the active duty troops consisted primarily of performing repairs and maintenance on sophisticated observation and electronics equipment provided by the Defense Department to the FBI. Active duty, enlisted military personnel set-up the equipment and performed necessary maintenance on it. There is no evidence that military personnel actually operated the equipment. Instead, it appears that FBI agents operated this equipment. In one instance, however, civilian employees of the Department of Defense operated one piece of sophisticated electronics equipment. In addition, active duty, enlisted military personnel performed repair and maintenance work on the electronics equipment belonging to the FBI. The accounts given by all personnel familiar with this aspect of the operation and who were interviewed by the subcommittees confirm that, with this one exception, only FBI personnel operated the equipment during the standoff.

b. National Guard personnel and equipment
During the standoff, the Texas National Guard provided a number of military vehicles to the FBI. Principal among these were 10 Bradley Fighting Vehicles (Bradleys), 4 M728 Combat Engineering Vehicles (CEV's), 2 M1A1 Abrams tanks, and 1 M88 tank retriever. The weapons systems in those of these vehicles which are normally armed were removed before they were transported to the Branch Davidian residence.

During the standoff the Bradleys were used primarily as armored personnel carriers to transport FBI officials to meetings with the Davidians, to transport FBI agents to their observation posts around the Branch Davidian residence, and by FBI agents to guard the perimeter of the operation. During the insertion of the CS agent on April 19, the Bradleys were used by FBI agents to maneuver close enough to the Branch Davidian residence so that the agents could fire Ferret round projectiles containing CS agent into the windows of the residence.

The CEV's were not used until April 19. Attached to each CEV was a long triangular boom-like arm. Attached to the booms of two of the CEV's were mounted devices that sprayed CS agent mixed with carbon dioxide. On April 19, these CEV's were used to ram holes into the Davidians residence. The operators in each CEV then inserted CS agent into the building using the devices affixed to the boom. Insertions of CS agent occurred in four distinct phases throughout the morning of the 19th. At one point, one of the CEV's became damaged and could no longer spray CS agent. As the day progressed, the FBI began to use the CEV's to "deconstruct" the Branch Davidian residence, using them to ram into the corners and sides of the building, creating large openings in the building. At one point, part of the rear roof collapsed after one CEV made multiple entries into the side of the building.

In addition to these vehicles, a number of support vehicles (e.g., Humvees, used to transport personnel, and flatbed trucks, used to haul the Bradleys and CEV's to Waco) were located at or near the Branch Davidian residence. Additionally, Defense Department provided support equipment (e.g., tents, generators, concertina wire) to the FBI.

An unknown number of Texas National Guard personnel were present during the standoff. Most of these personnel performed maintenance on the military vehicles loaned to the FBI or to provide support services for these troops (i.e., National Guard cooks were present to prepare meals for the mechanics). Other National Guard troops provided remedial training to the FBI's HRT members who were to operate the Bradleys and CEV's. Additionally, on April 19, some National Guard troops assisted FBI agents in refilling the CEV's with the CS riot control agent.

c. Reimbursement
The Economy Act requires the Justice Department to reimburse the Department of Defense for the cost of the equipment and personnel support provided to it. The subcommittees have been informed that this reimbursement has been made.

a. Request by Texas Governor
When Texas Governor Ann Richards learned of the failed ATF raid on February 28, she requested to consult with a knowledgeable military officer about the incident. In response to her request, the commander of the U.S. Army's III Corps at Fort Hood, TX, asked the assistant division commander of the First Cavalry Division of the III Corps, also at Fort Hood, to meet with Governor Richards. That officer met with the Governor on the evening of February 28. During the meeting, the officer answered the Governor's questions concerning the types of military equipment the ATF had used during the raid and the types of military equipment which Federal law enforcement officials might use in the future. The Governor also requested that the officer meet with the Texas Adjutant General (the commander of the Texas National Guard), who only recently had been appointed to his position.

b. Visit to the Branch Davidian residence with FBI officials
Two senior Army officers participated in a meeting of Justice Department and FBI officials with the Attorney General on April 14. During the meeting, the participants discussed the FBI's plan to end the standoff. The subcommittees' investigation revealed that one of the Army officers visited the Branch Davidian residence on April 13, accompanied by HRT commander Rogers.

During a briefing of the subcommittees these officers indicated that Rogers had arranged for the officers to be included in the April 14 meeting and had invited one of them to view the Branch Davidian residence to better understand the tactical situation. Rogers met the officer at the Branch Davidian residence and arranged for a helicopter tour of the perimeter of the area. The officer informed the subcommittees that he only observed the FBI's activities there and did not take part in the ongoing operation. The officer and Rogers then left Waco to travel to Washington for the meeting with Attorney General Reno.

The officer further informed the subcommittees that his visit to the Branch Davidian residence was his first visit and that he did not return to the Branch Davidian residence after April 14. The other officer present at the April 14 meeting stated that he did not visit the Branch Davidian residence at any time. The subcommittees' interviews with both FBI and other military personnel present at Waco during the standoff confirmed the statements of the Army officers.

c. April 14, 1993 meeting with Attorney General Reno
On April 14, 1993, a meeting was held in the office of the Director of the FBI with Attorney General Reno and several Justice Department and FBI officials. According to the Justice Department Report, "several military representatives" were also present. The subcommittees' investigation identified the two senior military officers present at the meeting. These two officers briefed the members of the subcommittees in a classified briefing in July of 1995 in conjunction with the subcommittees' public hearings. Additionally, a Defense Department representative testified before the subcommittees in open session generally as to the discussions between the officers and Attorney General Reno on April 14, 1993.

The officers present at the April 14 meeting at the invitation of FBI officials were to answer any questions Attorney General Reno might pose about the FBI's plan to end the standoff. The officers understood they had been selected to attend the meeting because of their special tactical training and experience. Additionally, HRT commander Rogers knew one of the officers personally and had facilitated the request from the Justice Department to Defense Department that the officers attend the meeting.

The officers informed Attorney General Reno that they could not comment on specific FBI plans to end the standoff. One of the officers did inform Attorney General Reno that if the HRT had been a military force under his command, he would recommend pulling it away from the Branch Davidian residence for rest and retraining. They also explained to Attorney General Reno that if the military had been called in to end a barricade situation as part of a military operation in a foreign country, it would focus its efforts on "taking out" the leader of the operation.

The officers believed Attorney General Reno understood their comments as an illustration of the tactical principal that a group heavily dependent on a charismatic leader for direction, such as the Davidians, can best be controlled if the leader is removed from control. The officers believe Attorney General Reno understood that their comments were appropriate to a military operation abroad but were not directly applicable to the domestic law enforcement situation facing Attorney General Reno.

3. Foreign military personnel
Foreign military personnel were present at the Branch Davidian residence during the standoff sometime in March. The two persons present were members of the 22nd Regiment of the British Army's Special Air Service (SAS). This branch possesses special tactical military skills and has a role similar to U.S. Army Special Forces troops. American military personnel present during the standoff informed the subcommittees that the SAS personnel observed the activities of the FBI and took no part in the actions of the military or the FBI. The two SAS representatives were not present on April 19, the date the standoff ended.

Accordingly to the Justice Department's written response to questions submitted by the subcommittees, the SAS personnel were present at Fort Bragg, NC in early 1993 on other business and requested to observe the FBI's HRT command post and forward tactical positions at Waco. FBI officials have informed the subcommittees that the HRT maintains liaison with the military and law enforcement counter- terrorist units of friendly foreign countries, including the United Kingdom, Germany, Italy, Spain, Australia, and Denmark. HRT commanders occasionally invite representatives of these units, a well as the U.S. Army Special Forces, to observe operations in which the HRT is engaged, as each of the organizations has similar skills and performs similar functions. This professional courtesy apparently is extended to FBI officials as well by the U.S. Special Forces and the counter-terrorist units of the countries listed above. The FBI explained the presence of the SAS personnel at the Branch Davidian residence as an example of this type of information-sharing.

The subcommittees' investigation finds no support for the assertions made by some that SAS personnel, or any other foreign persons, took part in the activities of U.S. Government agencies at the Branch Davidian residence. Accordingly, the subcommittees conclude that the two SAS personnel were the only foreign persons present at the Branch Davidian residence and that they took no part in the government's activities there.

e. findings concerning military involvement in the government operations at waco
'1. The Posse Comitatus Act was not violated.' a. No violations of the Posse Comitatus Act occurred up to February  28, 1993. The subcommittees conclude that no actual violation of the Posse Comitatus Act occurred as a result of the military support provided to the ATF through February 29, 1993. The subcommittees review of this question was divided into two parts: the support provided by active duty military personnel prior to February 28 and the support provided by Texas National Guard troops up to and on February 28, 1993.

The subcommittees find no violation of the Posse Comitatus Act as a result of the support provided by the active duty military personnel who facilitated the training of ATF agents at Fort Hood, TX in late February 1993. The ATF's initial request to Operation Alliance included a request that military medical personnel actually participate in the raid on the Branch Davidian residence. The ATF also requested that military personnel participate in the formulation of the ATF's overall raid plan against the Davidians' residence. These requests raised the concern of military lawyers due to their Posse Comitatus implications. The subcommittees conclude that these officers were correct to raise these concerns and that their actions helped prevent a violation of the Posse Comitatus Act.

As a result of the concern by these officers as to ATF's request, less support was provided than initially requested. That support was limited to providing and staffing a training area for the ATF at Fort Hood, teaching basic first aid, and providing general advice on communications questions. Because these activities do not rise to the level of direct participation in a law enforcement action, they did not violate the Posse Comitatus Act.

The subcommittees also find no violation of the Posse Comitatus Act as a result of the support provided by the Texas National Guard which participated in the training that the ATF conducted for its agents at Fort Hood, TX in late February 1993 and which flew the helicopters on February 28 that were part of the ATF's raid on the Branch Davidian residence. The Texas National Guard troops who participated in these activities were acting in their "state national guard" status under the command and control of the Governor of Texas, even though the costs of the operation were paid by the Federal Government pursuant to title 32 of the U.S. Code.

The Posse Comitatus Act does not govern the actions of the National Guard when it is acting in a non-Federal (i.e., State) status. Because the Texas National Guard troops participating in the ATF's training and the raid itself were acting in this status, the Posse Comitatus Act did not apply to them. Accordingly, no violation was possible and none, therefore, occurred.

b. No violations of the Posse Comitatus Act occurred after February  28, 1993. The subcommittees conclude that no actual violation of the Posse Comitatus Act occurred as a result of the military support provided to the FBI after February 28, 1993. The subcommittees review of this question involved two issues: the support provided by active duty military personnel prior to February 28 and the support provided by Texas National Guard troops through April 19, 1993.

The subcommittees find no violation of the Posse Comitatus Act as a result of the support provided by the active duty military personnel who were present at the Branch Davidian residence from February 28, 1993 to April 19, 1993. The subcommittees' investigation indicates, and the testimony of the witnesses who testified at the hearings confirmed that no active duty military personnel actively participated in any actions that can be characterized as the exercise of the law. The actions of the enlisted personnel appear to have been limited to setting up equipment and performing maintenance on it, or providing support to other military personnel (e.g., transportation, food service). All of the military personnel interviewed by the subcommittees confirmed that only FBI employees operated the military equipment during the law enforcement activities conducted at the Branch Davidian residence. The subcommittees found no evidence to the contrary.

As discussed above, the Posse Comitatus Act does not govern the actions of the National Guard when it is acting in a non-Federal (i.e., State) status. Accordingly, none of the actions taken by the National Guard during the standoff violated the Posse Comitatus Act. The subcommittees note, however, that it appears that the National Guard's role during the standoff was very limited. The National Guard role generally involved troops transporting to the Branch Davidian residence all of the military vehicles used by the FBI during the standoff and performing routine maintenance on them.

On April 19, National Guard troops assisted the FBI in refilling the CEV's with the CS agent used in the unsuccessful effort to induce the Davidians to leave the residence. Because the National Guard troops are not subject to the Prohibitions of the Posse Comitatus Act when acting in their State status, no violation occurred. The subcommittees note, however, that had the National Guard troops instead been active duty personnel, or acting in a Federal status, their participation in the execution of the CS gas plan would have violated the Posse Comitatus Act.

2. The ATF misled the Defense Department as to the existence of a  drug nexus in order to obtain non-reimbursable support from the Defense  Department. The subcommittees conclude that the ATF intentionally misled Defense Department and military personnel as to whether the Davidians were operating an illegal drug manufacturing operation at the Davidian residence. It appears that the ATF agents involved in planning the raid knew that they could obtain support from the military at no cost in preparation for their raid. It also appears that the ATF knew that this support would be provided promptly if the presence of a drug manufacturing operation was alleged. 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 ATF's misrepresentations improperly enabled it to obtain military assistance from forces which otherwise would not have provided it, more quickly than might have been possible, and without having to reimburse the Defense Department as otherwise would have been required under Federal law.

The subcommittees also conclude that the commander of the military personnel providing the training knew or should have known that the ATF's allegations as to the existence of a drug manufacturing operation at the Davidian residence were, at best, overstated and were probably untrue. His failure to raise this issue with his superiors is troubling. The subcommittees believe this failure should be reviewed by Defense Department authorities.

3. No foreign military personnel or other foreign persons took part in any way in any of the government's actions toward the Branch Davidians. While some foreign military personnel were present in Waco during the government's operations toward the Davidians, there is no evidence that any of these persons took part in the government's operations in any way.

4. Civilian law enforcement's increasing use of militaristic tactics is unacceptable. The FBI's and ATF's reliance on military type tactics greatly concerns the subcommittees. The Waco and Ruby Ridge incidents epitomize civilian law enforcement's growing acceptance and use of military type tactics. The subcommittees find this trend unacceptable.

When ATF faced the option of conducting a regulatory inspection or tactical operation, it chose the tactical operation. When ATF had to decide between arresting Koresh away from the Branch Davidian residence or a direct confrontation, it chose direct confrontation. ATF also decided to conduct a dynamic entry as opposed to a siege.

The subcommittees are not recommending that the use of militaristic tactics should always be precluded. The subcommittees acknowledge that there are certain circumstances in which military type tactics may be necessary. The subcommittees urge all Federal law enforcement agencies to review their policies on military training and tactics and develop appropriate guidelines for when such tactics are acceptable. Military training, especially specialized training in combat tactics, should be highly restricted and the use of military tactics, such as a dynamic entry should be approved at the highest agency levels.

f. recommendations
1. Congress should consider applying the Posse Comitatus Act to the National Guard with respect to situations where a Federal law enforcement entity serves as the lead agency. The subcommittees acknowledge that the Posse Comitatus Act has been and continues to be a significant protection for the rights of the people. The events in Waco, however, suggest that these protections may not be as strong as most citizens assume.

As discussed above, the Posse Comitatus Act does not apply to the National Guard when it is acting in its State status. As the events at Waco illustrate, actions taken by National Guard troops can never violate this law, even when those same acts would violate the law were they undertaken by active duty military personnel. The subcommittees question whether this distinction is acceptable to the American people.

The purpose of the Posse Comitatus Act is to prevent the government from using the military against its own citizens. Yet the National Guard and the Reserve exists in part, to augment the active duty military in times of need. National Guard troops receive military training. National Guard units are equipped with military equipment, in some cases the most sophisticated and lethal military equipment in the Defense Department's arsenal, including tanks, fighter and bomber aircraft, and armored personnel carriers. These units, by design, possess many of the same capabilities as active military units. In fact, almost one-half of the U.S. Armed Forces is composed of National Guard and Reserve forces. When activated by the President, the National Guard becomes part of the active duty military.

While Federal law distinguishes between the National Guard in its various "statuses," this distinction is unclear to the vast majority of the public. Many citizens no doubt would be surprised and concerned to learn that components of the same forces the United States used in Operation Desert Storm, Somalia, and Bosnia also can be used against them in the United States as long as the "status" of the troops used fits within the proper category. Given that many National Guard units have force capabilities similar to that of active duty units, it makes little common sense that one unit's activities may be constrained by the Posse Comitatus Act while another's are not. In short, if it is important to prevent military force from being used to enforce the civil laws, it should matter little the "status" of the force used against the citizenry.

The question of applying the Posse Comitatus Act to the National Guard has not been examined recently by the Congress. Accordingly, the subcommittees recommend that Congress hold hearings on this matter to determine whether the Posse Comitatus Act should be broadened to apply to the National Guard and what exceptions to the act's prohibitions, if any, are appropriate to the National Guard in light of its role and mission.

2. The Department of Defense should streamline the approval process for military support so that both Posse Comitatus Act conflicts and drug nexus controversies are avoided in the future. The subcommittees' investigation revealed that Department of Defense procedures for receiving, evaluating, and deciding upon requests for assistance from domestic law enforcement agencies was unclear in early 1993. Generally, requests for military assistance to domestic law enforcement agencies were channeled through the Director of Military Support (DOMS), an Army two-star general headquartered at the Pentagon who heads a staff that is on-call 24 hours a day. In some cases, commanders of local military bases are authorized to provide support without approval of the DOMS if the requests are limited in scope.

As of 1993, requests for military support relating to counterdrug operations were not required to be submitted to the DOMS for approval but instead were channeled through Operation Alliance, a group representing agencies such as the ATF, the Border Patrol, and other Federal law enforcement agencies together with military representatives. Operation Alliance serves merely as a clearinghouse for requests, tasking actual military organizations to provide the support. In this case, Operation Alliance tasked Joint Task Force-6 and the Texas National Guard, two of the military organizations at its disposal.

Requests for support involving the use of lethal equipment, such as Bradley Fighting Vehicles and tanks, were to be made through the Office of the Secretary of Defense in the Pentagon. Apparently, however, that requirement was not complied with in this case.

The subcommittees believe that authority for approving military support for domestic law enforcement operations should be located within one office within the Office of the Secretary of Defense. Centrally locating this responsibility will help ensure that uniform standards are applied in evaluating all requests for military support and that no agencies can successfully "end-run" the approval process. It also will reduce confusion among law enforcement agencies which, under the process as it existed in 1993, first had to determine without Defense Department guidance the purpose for the support (i.e., counterdrug or not counterdrug) and the type of military assets that might be involved (i.e. lethal assets or strictly non-lethal assets). The subcommittees believe that it is best left to the military, in the first instance, to determine the nature and type of support it is able to provide, in keeping with the Posse Comitatus Act and it own need to fulfill its primary defense mission.

The process for civilian law enforcement agencies receiving military assistance must require that all requests and approvals be in writing, specifying in detail the requested and approved military assistance. Additionally, the Department of Defense needs to establish a clear and concise standard for what constitutes a sufficient drug nexus. Congress should specifically establish criminal and pecuniary penalties for willful violations of the drug nexus standard.

The subcommittees acknowledge that in May 1995, the Secretary of Defense directed the Under Secretary of Defense for Policy to establish a working group "to conduct a comprehensive review of the current system by which Defense Department evaluates and responds to request for assistance initiated by outside agencies." As a result of the working group's recommendations, the Secretary recently directed that requests for military support are to be channeled through the Office of the Assistant Secretary of Defense for Special Operations and Low Intensity Conflict. The subcommittees commend this decision to centralize the approval process for providing this type of support. This policy should be frequently monitored so as to ensure that law enforcement agencies, and field commanders, are complying with it.

3. Congress should review the legal status of memoranda of agreement for the interstate use of National Guard personnel for civilian law enforcement purposes. The subcommittees' investigation revealed that the use of National Guard personnel across State lines for law enforcement purposes is a common practice. This practice is conducted through simple, pro forma memoranda of agreement which rarely take into account State laws governing the use of the National Guard. The subcommittees believe that, in practice, many of these agreements supersede State constitutions and statutes without legal authority. The subcommittees are concerned that these agreements do not comply with Federal laws and may violate the U.S. Constitution.

The subcommittees recommend that Congress, the Department of Defense, and its National Guard Bureau come to an agreement on the proper legal status of these National Guard Memoranda of Agreement. If it is determined these agreements require congressional ratification, procedures to obtain such approval should be established by the National Guard Bureau.

Regardless of whether these memoranda of agreement require congressional ratification, however, the National Guard Bureau should establish a centralized review process for all Memoranda of Agreement involving the interstate use of the National Guard personnel. This review process must include a per case legal determination that pertinent State law is not violated by the agreement.

4. The General Accounting Office should audit the military assistance provided to the ATF and to the FBI in connection with their law enforcement activities toward the Branch Davidians. Given that the subcommittees have been unable to obtain detailed information concerning the value of the military support provided to the ATF and the FBI, the subcommittees recommend that the General Accounting Office conduct an audit of these agencies to ascertain the value of the military support provided to them and to ensure that complete reimbursement has been made by both agencies. If violations of the Anti-Deficiency Act or other Federal laws are found, the appropriate legal action should occur, including criminal prosecution if permitted under existing law.

5. The General Accounting Office should investigate the activities of Operation Alliance in light of the Waco incident. The subcommittees concluded that Operation Alliance personnel knew or should have known that ATF did not have a sufficient drug nexus to warrant the military support provided to it on a non-reimbursable basis. Senior DEA agents were members of the Operation Alliance board which approved requests for military assistance, yet they voiced no concerns regarding ATF's plan to directly assault an alleged active methamphetamine laboratory. Military officers were present when ATF was presented a paper detailing the potential dangers and special precautions required when dealing with an active methamphetamine laboratory. The purpose of the meeting was to determine whether a drug nexus existed. Even though there was evidence that no drug existed, those military officers present took no action. UPS receipts which allegedly detailed deliveries of precursor chemicals to the Branch Davidian residence and were used to substantiate the drug nexus were nowhere to be found when the subcommittees requested copies.

Additionally, the subcommittees' review of military documents provided at their request and the results of interviews with persons involved in this matter clearly demonstrate that there was a continuing concern from senior military officers that JTF-6 was providing support to non-counterdrug activities, and that the Special Operations Command was attempting to reinforce resistance to this recurring misuse of military counterdrug assets and funds, referred to as "cheating." Given that the military assistance to ATF for Waco under dubious circumstances appears to not have been an anomaly, and the fact that Operation Alliance's jurisdiction has significantly expanded since Waco, the subcommittees recommend that the General Accounting Office investigate the activities of Operation Alliance.