Activities of Federal Law Enforcement Agencies Toward the Branch Davidians/Submission by Hon. Steven Schiff

THE SUBMISSION BY HON. STEVEN SCHIFF, OF THE SUBCOMMITTEE ON NATIONAL SECURITY, INTERNATIONAL AFFAIRS, AND CRIMINAL JUSTICE OF THE COMMITTEE ON GOVERNMENT REFORM AND OVERSIGHT, OF EXTRANEOUS MATERIAL PROVIDED TO HIM BY HON. BOB BARR, OF THE SUBCOMMITTEE ON CRIME OF THE COMMITTEE ON THE JUDICIARY

The hearings into the 1993 Waco tragedy, conducted jointly in June 1995 by the Crime Subcommittee of the House Committee on the Judiciary and the Subcommittee on National Security, International Affairs, and Criminal Justice, of the House Committee on Government Reform and Oversight, was a painful expose of perhaps the greatest law enforcement tragedy in American history. Yet, it was a necessary exercise, because it gave those of us on the subcommittees, and all Americans, the opportunity to examine why it happened and to at least begin to implement steps to avoid a recurrence of the tragedy. It would not be a significant overstatement to describe the Waco operation from the Government's standpoint, as one in which if something could go wrong, it did. The true tragedy is, virtually all of those mistakes could have been avoided.

After nearly 2 weeks of hearings, the subcommittees closed down the proceedings, and moved on to other business. Now, over a year later, we have a report. While the report contains many conclusions that I believe are accurate and appropriate, along with several important recommendations, it fails to address several extremely important matters that came to light during the hearings and which deserve far more scrutiny than accorded heretofore.

I would hope that in the next Congress, followup hearings are held, and legislative measures introduced and passed. Avoiding tragedies such as Waco ought to be a top priority for the Congress and the administration.

Rather than repeat all the conclusions and recommendations of the report, many of which I agree with (especially those concerning the ATF, the Treasury Department failure to monitor, and the decisionmaking at the FBI and the top levels of the Justice Department), I will note those with which I have serious disagreement, from my perspective as a Crime Subcommittee member, as a former U.S. attorney, and as a citizen deeply concerned with the militarization of domestic law enforcement and the lack of accountability by Federal law enforcement.

Militarization of Law Enforcement
Law enforcement officials have long been required to abide by the Bill of Rights, enshrined in our Constitution. These principles underlie virtually everything they do in their capacity as officers sworn to protect our citizens; and they limit what they can do in fulfilling their specific responsibilities.

However, with the phenomenal growth in the power of the Federal Government, touching virtually every facet of our lives--personal, business, educational, government, religious, recreational, etc.--there has developed a mentality on the part of law enforcement that they can do anything and not be held accountable for it. Along with this we have witnessed the development of a militaristic approach to domestic law enforcement, in everything from dress (black military uniforms and helmets), to equipment (armored vehicles and military surplus helicopters), to outlook, to execution.

Our armed forces, in carrying out their mission to protect and project our national interests abroad, are not bound by the constitutional restraints placed on domestic law enforcement. This reflects the significant differences between conducting domestic law enforcement operations, and conducting warfare overseas. In a war situation, our armed forces do not and should not have to give "`Miranda" warnings before shooting the enemy; they need not have "probable cause" before an attack. Domestically, our law enforcement officers must do these things.

Unfortunately, we saw in the Waco tragedy one logical result of the blurring of lines between domestic law enforcement and military operations: an operation carried out pursuant to a strategy designed to demolish an "enemy," utilizing tactics designed to cut off avenues of escape, drive an enemy out, and run roughshod over the "niceties" of caring for the rights of those involved. The protestations of the Attorney General to the contrary, that she authorized the injection of debilitating CS gas into closed interior quarters with no ventilation where dozens of women and children were concentrated, out of concern for the children do not match the Government's actions. While the report reflects this view to some extent, I believe very firm steps must be taken to "demilitarize" Federal domestic law enforcement, through substantive legislation and funding restrictions.

Posse Comitatus and Military Involvement
While the report touches on the issue of military involvement in this operation, focusing primarily on disingenuous steps taken by the civilian law enforcement agencies in order to obtain military assistance without paying for it, my concerns go deeper.

I seriously question the role of military officers being involved in strategy sessions, on sight "observers" and the presence of foreign military personnel, and the use of military equipment such as armored vehicles. Contrary to the conclusion of the report, I am not convinced that the separation between military operations and domestic law enforcement, codified in the U.S. Code's "Posse Comitatus" provisions, was not violated in the Waco operation.

Hostage Rescue Teams
During the questioning of Attorney General Reno on the last day of the hearings, I asked her what specific steps had been taken by the Government to ensure that another Waco would not recur. The only specific step the Attorney General cited to me in response to my question, was that the "Hostage Rescue Teams" (HRT's) had been expanded. The report agrees that HRT's should be expanded. I disagree.

In my view, based on the Waco incident (and others), part of the problem is the HRT's themselves; they are relied on too heavily, and are used in circumstances in which no hostages are present, or which do not lend themselves to HRT tactics. Rather than expanding the size and use of HRT's, I believe they ought to be more carefully circumscribed, controlled and scaled back.

FLIR Tapes and What They Show
Forward Looking Infrared Radar (FLIR) was used by the Government, in cameras aboard helicopters and planes flying over the Branch Davidian compound on the day of the final assault. Portions of the FLIR tapes were shown at the hearings; these were under the control of the Government. Of course, the Government used the tapes to buttress its arguments that no shots were fired on April 19 (the day of the assault on the compound) from outside the compound into the compound, and that the fire that destroyed the compound was not started from the outside or by the Government vehicles.

Given the severe limitations on questioning by subcommittee members, and the inability to truly review and analyze the Government's evidence, I do not agree with the conclusions in the report that the evidence clearly establishes the Government's position on these issues.

On further examination of FLIR tapes, after the hearings, and in discussions with private parties who have reviewed the tapes, I believe sufficient questions have been raised to warrant further study of these two issues: were there shots fired from outside the compound into the compound on April 19th, and were the fires started--intentionally or unintentionally--by the armored military vehicles or personnel therein?

Unlike the report, I do not dismiss out of hand the civilian analyses of these tapes and other evidence. (On a related issue, I also believe further study ought to be made, and additional evidence examined, concerning the cause of the explosion that occurred during the fire on April 19.)

Use of CS Gas
The Government's use of CS gas in the manner it did, that is, clearly designed to incapacitate men, women and children in a confined, unventilated space, after avenues of escape had been deliberately cut off, was unconscionable; as was the cursory manner in which the Government, and especially Attorney General Reno "bought into" the conclusory and simplistic analyses that the use of CS gas posed an "acceptable" level of risk.

The fact is, while experts may--and did--differ over the precise effects of CS gas on children, or how and in what ways the use of CS gas might act as a catalyst for a fire, no rational person can conclude that the use of CS gas under any circumstances against children, would do anything other than cause extreme physical problems and possibly death.

For the Government of this country to consciously use CS gas in the way it did on April 19, 1993 in Waco is utterly indefensible and should never be allowed to be repeated. I believe the deaths of dozens of men, women and children can be directly and indirectly attributable to the use of this gas in the way it was injected by the FBI.

I would go further than the report, and call for a prohibition on the use of CS gas in situations in which children or the elderly are present or are the targets.

The Fire
While the report concludes that the evidence clearly establishes that the fire that eventually consumed the Branch Davidian structure was started inside by the Davidians, I think that the most that can be said is that the fire may have been started inside, and even if it did, the evidence that it was deliberately set is inconclusive. I believe there is also the possibility that the fire, or at least some of the fires, may have been caused as a result of the demolishing efforts of the armored military vehicles. While there is no direct evidence that the fire was started from the outside, further study (of the FLIR tapes, for example) ought to be conducted.

Escape
The report concludes that there was opportunity for the Davidians to escape. While obviously this is true--a handful did escape the maelstrom--I conclude there was no opportunity for the vast majority of the Davidians to have any hope of escape, because of the Government's tactics the morning of the 19th of April.

Essentially, the use of the armored vehicles, methodically smashing down portions of the building, cutting off avenues of escape (for example, smashing the walls down to cover the "escape" hatch to the tunnel out of the main building), intimidated the inhabitants into seeking "safety" in the one secure part of the structure (the concrete "bunker" in the center). With massive quantities of CS gas pumped into this area, it virtually guaranteed that most inhabitants would be incapacitated; which they were, and they died in the ensuing fire because of the incapacitating effects of the CS gas and the cutting off of escape routes.

Breach of Ethics and Possible Obstruction
One area of inquiry which I pursued during the hearings involved what clearly are breaches of ethics, and possible obstruction of justice by Government attorneys and investigators. This aspect of the hearings is completely overlooked by the report. Government documents clearly show deliberate efforts by Government attorneys to stop the collection of evidence and possibly cover up evidence the Government did not want to be available later on. While the Department of Justice went so far as to issue a news release during the hearings, to refute my conclusions, I consider it extremely serious; especially when considered with evidence that two of the ATF agents first disciplined and fired and then later reinstated and records sealed, to raise very troubling questions of ethical violations at best and obstruction at worst. Attorneys who testified at the hearings also raised serious concerns about the attitude and policies reflected in these documents.

Documents explicitly showed that "DOJ [Department of Justice] does not want Treasury to conduct any interviews . . . [that might] generate . . . material or oral statements which could be used for impeachment" of Government witnesses, and that hopefully if such material is not gathered, "the passage of time will dim memories." (Memorandum from Treasury Assistant General Counsel for Enforcement, dated April 14, 1993.)

Earlier, on March 1, 1993, in interview notes, the ATF's initial "shooting review" of the February 28, 1993 initial assault at which time ATF agents fired their weapons, the ATF is advised to "stop the ATF shooting review because ATF was creating Brady material." (Note: "Brady" material is evidence that would tend to establish innocence or which could be used in mitigation of guilt.)

In handwritten notes, taken at some point during the siege, Government attorney Ray Jahn directs that interviews are to stop because exculpatory statements may be generated.

This pattern of activity to deliberately avoid collection of relevant evidence, because it might tend to establish a person's innocence, or, as is apparent from other documents, might embarrass the ATF, raises very troubling questions to say the least, about the interests of the Government in establishing the truth and in seeing that justice is done. Neither goal would be met under the circumstances evidenced by these documents. That the Department of Justice casually dismisses these concerns should be of concern to the Congress and to the people of this country.

Committee Rules and Restrictions
The procedures under which these hearings were conducted did not lend themselves to adequate inquiry. Important evidence was not available because of tactics by the Government and minority members of the subcommittees to keep evidence out of our hands; such as the weapons taken by the Government from the burned Davidian compound. We were never able to test the weapons to establish whether they were in fact unlawful weapons as the Government charged (which provided a primary justification for the Government's initial action against Koresh and the Branch Davidians).

The method of questioning employed--in 5-minute increments, alternating back and forth between majority and minority--with no comity from the minority to provide both sides with longer periods within which to question, lent itself to a scenario whereby savvy witness (most Government witnesses are very familiar with how to answer questions and stall so as to use up large segments of the questioner's time) were able, time and again, to minimize or completely neutralize the member's ability to obtain answers to questions.

Starting out at the mercy of the minority to control and minimize the majority's ability to effectively question and elicit timely, forthcoming and nondilatory responses, set the stage for hearings much less productive than these could have been. Some exploration of instituting other methods of conducting investigative hearings ought to be explored. Moreover, many witnesses who simply did not answer members' questions, were allowed to escape with dilatory or nonresponsive tactics; which again limited the productivity of the hearings.

Conclusions
Despite the severe limitations in procedure, and the other matters noted above, these hearings were extremely valuable; perhaps historic. They resulted in very important evidence which, if properly followed-up, can help establish, through laws, regulations, and procedures, more effective and more accountable Federal law enforcement. However, that follow up has not yet occurred, and many troubling questions, some going to the very integrity of the Government's actions and personnel, remain. These hearings in June 1995 should be viewed not as the conclusion of the efforts by the Congress to get to the bottom of the Waco tragedy, but the beginning of that process.


 * Hon. Steven Schiff.