Activities of Federal Law Enforcement Agencies Toward the Branch Davidians/Section 3

III. Planning and Approval of the Raid

The ATF had a variety of options in the manner in which it could have served the arrest and search warrants on Koresh. These options included luring Koresh off the Davidian residence, arresting Koresh while he was off the Davidian property, surrounding the Davidian residence and waiting for Koresh to surrender himself and consent to the search, and executing a "dynamic entry" style raid into the residence. The ATF chose the dynamic entry raid, the most hazardous of the options, despite its recognition that a violent confrontation was predictable. The decisions regarding the raid were made without the participation of either Secretary of the Treasury Lloyd Bentsen or the Deputy Secretary of the Treasury Roger Altman.

a. was show time even necessary?

The subcommittees received evidence of numerous opportunities to arrest Koresh away from the residence, thereby reducing the likelihood of violence. The failure to make use of these opportunities raises the question of the dynamic entry's necessity. ATF officials offered at least three different reasons for this critical decision.

ATF Special Agent Phillip Chojnacki, the overall commander of the raid, testified that Koresh could not be arrested outside the residence because the intelligence from the undercover house was that he rarely left the residence.^[1] ATF did not want the tactical problem of having agents on standby indefinitely while they waited for the rare occurrence of Koresh going into town.

Yet the testimony before the subcommittees revealed that Koresh left the Davidian residence at least once a week during January and February.^[2] David Thibodeau, who lived at the Branch Davidian residence but did not consider himself to be a member of the Branch Davidian religious community, testified that Koresh was a regular jogger.^[3] It was also revealed during the trial that Koresh had left the residence on January 29, 1993, to conduct business at a machine shop.^[4] Finally, the manager at the Chelsea Bar and Grill in Waco stated that they served Koresh about once a week through February.^[5]

ATF agents next explained that it did not make practical sense to arrest Koresh outside because he would immediately be released and would be back at the residence. The window was simply too narrow.^[6] This answer also lacked credibility since Federal law provides that the arrestee can be held for 3 days upon motion of the government.^[7]

Finally, ATF officials testified at the hearings that they abandoned the idea of trying to arrest Koresh outside the residence because their primary goal was to get inside to conduct a search. These officials maintained that it was preferable to attack the residence by surprise and get Koresh and the guns at the same time.^[8] However, the ATF had developed its own scheme to lure Koresh off the complex. The ruse was proposed to Joyce Sparks, the social worker who had conducted an earlier child protection investigation at the Branch Davidian residence. Sparks was to contact Koresh, who she had come to know relatively well, and make an appointment with him to be held in her office. While Sparks agreed to cooperate with the ATF, Sparks' supervisor refused to approve the ruse tactic.^[9]

b. was the violent outburst predictable?

The record of the subcommittees' investigation shows that persons who through contact and experience became familiar with the belief system and the authoritarian structure of the Branch Davidians could have predicted a violent resistance by the Davidians to a mass law enforcement action. The Branch Davidians predicted a violent apocalypse, a vision that followers believed be necessary to go to heaven.^[10]

The ATF investigative agents interviewed Sparks, who had kept lines of communication open between Koresh and herself even after the end of her Child Protective Services investigation. During their conversations, Koresh would often provide lengthy presentations of his religious beliefs. Sparks developed an understanding of how Koresh thought and how he was viewed within the Branch Davidian group at the residence. When ATF sought her opinion about the raid, she stated that the Branch Davidians believed that Koresh was the Lamb of God and that they would protect him to the death. "They will get their guns and kill you," Sparks recalls saying.^[11]

The ATF also received information from Marc Breault, a former Branch Davidian and resident at Mount Carmel, the Davidians' home.^[12] Contact between ATF and Breault was made during December 1992. During that time and up to the time of the raid, the former Branch Davidian provided information about the Davidians and Koresh in particular, including his past correspondence. In a paper prepared by Breault and provided to the ATF, a recent history of the Branch Davidians recounts the group's views that the world will end in a final violent battle.

c. the predisposition to dynamic entry

An examination of ATF's timeline in the Waco investigation and raid planning activities reveals that planning for a military style raid began more than 2 months before undercover and infiltration efforts even began.

1. The source of the predisposition

a. The culture within the ATF

Management initiatives, promotional criteria, training, and a broad range of other cultural factors point to ATF's propensity to engage in aggressive law enforcement. Senior officials from other law enforcement agencies have commented on the ATF raid. Several have informed the subcommittees that their organizations would not have handled the execution of the Branch Davidian search warrants in the aggressive way chosen by ATF.^[13] For example, Jeffrey Jamar, the FBI Special Agent-in-Charge of the Waco standoff, was asked about the FBI's approach to such a circumstance. He stated that he "would not have gone near the place with 100 assault weapons." ^[14]

b. The Waco Tribune-Herald's "Sinful Messiah"

One factor affecting ATF's decision to employ a dynamic entry was the impending release of a newspaper story about Koresh and the Davidians which revealed the Federal law enforcement investigation then underway. The Waco Tribune-Herald had planned to release a series of articles on David Koresh in early 1993.^[15] Fearing publication of the article, ATF hastened its plans to serve the arrest and search warrant. It was unclear, however, how Koresh would react to the story. In fact, ATF Special Agent Robert Rodriguez suggested that the newspaper article did not upset Koresh.^[16]

2. Raid approval and lack of Treasury Department oversight of ATF

Testimony received during the hearings established that there was no process through which Treasury Department officials were able to review pending ATF matters prior to their reaching a crisis stage. In the investigation of Koresh, there was no oversight by Treasury over the ATF's planning and execution of the raid until approximately 48 hours before the raid occurred.^[17] Testimony revealed that, even though Bentsen had been Treasury Secretary for approximately 1 month at the time of the ATF raid, and Altman had been serving as Deputy Secretary for the same time period, ATF Director Steven Higgins had never met either of them, let alone briefed them regarding the investigation and planned raid. This point was established at the hearings during the questioning of Higgins by Representative Ed Bryant.

Mr. Bryant: When did you first meet with the Secretary to discuss anything about your agency, the ATF?

Mr. Higgins: I don't remember any briefings with the Secretary. I haven't gone back to look at my documents. Probably in that first month, month and a half, I don't remember any meetings with him. The only interaction we really had during the transition would have been with Mr. Simpson.

Mr. Bryant: Are you saying that you never had met with Secretary Bentsen prior to this point?

Mr. Higgins: I can't remember having gone to a staff meeting while he was there . . . I don't remember specifically today having been at one with him.

Mr. Bryant: Had you ever met with his deputy, Mr. Altman, before this raid?

Mr. Higgins: I don't believe I knew Mr. Altman until then. I knew who he was, obviously.

Mr. Bryant: Well, I am a little confused here. You are saying that you were the director of the ATF, which we all know is very significant, powerful element of the Department of Treasury, and you had not met with your ultimate boss, the Secretary, for 30 days or so?

Mr. Higgins: I don't believe so, other than maybe to shake hands, and I don't even remember doing that. It is interesting that those who think there is some giant conspiracy in the government don't realize how little we knew each other.^[18]

Under Congressman Bryant's further questioning, Higgins testified that there was no procedure in place for the director of the ATF to apprise the Secretary or Deputy Secretary of the ATF's plans.

Mr. Bryant: Was there any process or procedure available to you as the Director of the ATF to brief either the Deputy or the Secretary?

Mr. Higgins: I could have called them and said, yes, I would like to brief you on something. I think they were accessible, yes.

Mr. Bryant: But there was no routine process? This was no regularly done at that point?

Mr. Higgins: No routine process, although most secretaries at some point set up a system where there is a regular, either every week or every 2 weeks, meeting with bureau heads.^[19]

The testimony before the subcommittees consistently depicted a Treasury Department that treated ATF as its lowest priority. Department officials repeatedly demonstrated a lack of interest in even major ATF actions, such as that of February 28, 1993. The Department maintained a culture that perceived law enforcement as, at best, a peripheral part of its mission, according the ATF correspondingly little attention. This point was brought out during the hearings through questioning by Representative Bill McCollum, co-chairman of the subcommittees, of former Treasury Secretary Bentsen about his knowledge of the raid prior to February 28, 1993.

Mr. McCollum: When did you first learn of the raid or any plan for that raid?

Mr. Bentsen: I was in London at my first meeting with G-7 with the Ministers of Finance and was very much involved in that one. I came back, to the best I can recall, some time early Sunday morning on a night flight from London, and in turn I did not find out about the raid, to the best of my memory, until early Sunday evening and that is the first knowledge I had of it at all.

Mr. McCollum: In other words, there was no discussion with you, no information passed to you prior to the time of the raid that it was anticipated or that it might exist or any nature----

Mr. Bentsen: That is correct.

Mr. McCollum: Isn't it a little surprising one of the largest or one of the largest raids in the BATF's history was taking place, and the Secretary of the Treasury, the chief of all of the law enforcement of the ATF was not notified?

Mr. Bentsen: I can well understand when I was abroad attending an international meeting involving questions of monetary exchange rates and some very serious subjects at that point, that others within the Department were handling the situation.

Mr. McCollum: But didn't you keep in contact with your office during the time you were over there? Weren't there telephone calls?

Mr. Bentsen: Of course.

Mr. McCollum: Nobody in the law enforcement division thought you ought to be disturbed about this incident and asked about it. I understand.^[20]

Bentsen's responses reveal that throughout the planning of the raid, including the critical days just prior to its initiation, the Treasury Secretary knew nothing about it. Neither he nor his deputy knew anything about an imminent law enforcement raid--one of the largest ever conducted in U.S. history--being managed by his Department, which would endanger the lives of dozens of law enforcement agents, women, and children.

Other testimony from the hearings further demonstrated insufficient oversight by Treasury Department officials of ATF planning. At the hearings before the subcommittees, Representative McCollum questioned Christopher Cuyler, who in February 1993 was the ATF's liaison to the Treasury Department. Cuyler testified that no Treasury officials had knowledge about the potential for the raid until February 26--2 days before the raid was initiated.^[21]

The inadequate oversight of the ATF by Treasury Department officials was further evidenced in the final communications between Treasury and ATF in the day before the raid. The Department maintains that it conditioned the raid on ensuring the element of surprise was preserved. As stated in the Treasury Department Report, Department officials assured that those directing the raid were under express orders "to cancel the operation if they learned that its secrecy had been compromised. . . ." ^[22] Yet, ATF officials, including Higgins, Cuyler, and the agents in charge of the raid testified that it was not at all clear to them that Treasury wanted the raid canceled if the element of surprise was lost.^[23]

d. failure to comply with sensitive-significant procedures

As noted in the Treasury Department Report, the Koresh investigation was classified as "sensitive" and "significant" within a week of its formal initiation on June 9, 1992.^[24] Such a classification is designed to ensure a higher degree of involvement and oversight from both the ATF Special Agent in charge and ATF headquarters, yet this designation was ignored in practice. In view of this designation, the lack of knowledge on the part of the Special Agent in Charge and ATF Headquarters throughout the investigation, including the undercover operation, is striking. The "sensitive/ significant" designation makes ATF's failure to have implemented a process for continually reviewing intelligence and modifying plans accordingly a glaring omission.

e. findings concerning the planning and approval of the raid

1. The subcommittees conclude that the ATF was predisposed to using aggressive, military tactics in an attempt to serve the arrest and search warrant. The ATF deliberately choose not to arrest Koresh outside the Davidian residence and instead determined to use a dynamic entry approach. The bias toward the use of force may in large part be explained by a culture within ATF.
2. The ATF did not attempt to fully understand the subjects of the raid. The experience of Joyce Sparks, Marc Breault, and ATF undercover agent Robert Rodriguez demonstrate that persons who spent a reasonable amount of time with Koresh, even without professional training specific to persons such as Koresh, understood with some predictability the range of behaviors that might result from a military style assault on the Branch Davidians.
3. Treasury Secretary Lloyd Bentsen and Deputy Secretary Roger Altman acted highly irresponsibly and were derelict in their duties in failing to even meet with the Director of the ATF in the month or so they were in office prior to the February 28 raid on the Davidians residence, in failing to request any briefing on ATF operations during this time, and in wholly failing to involve themselves with the activities of the ATF.
4. Senior Treasury Department officials routinely failed in their duty to monitor the actions of ATF officials, and as a result were uninvolved in the planning of the February 28 raid. This failure eliminated a layer of scrutiny of the plan during which flaws might have been uncovered and corrected.

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1. Hearings Part 1 at 416.
2. Id. at 123.
3. Id.
4. Id. at 124.
5. Id.
6. Id. at 309-312.
7. 18 U.S.C. Sec. 3142(f).
8. Hearings Part 1 at 221-222.
9. Id. at 595.
10. James D. Tabor & Eugene V. Gallagher, Why Waco? 7-10 (1995).
11. Hearings Part 1.
12. U.S. Dept. of the Treasury, Report of the Department of the Treasury on the Bureau of Alcohol, Tobacco, and Firearms Investigation of Vernon Wayne Howell also known as David Koresh 29 (1993) [hereinafter Treasury Department Report].
13. Investigation Into the Activities of Federal Law Enforcement Agencies Toward the Branch Davidians (Part 3): Hearings Before the Subcommittee on Crime of the House Committee on the Judiciary and the Subcommittee on National Security, International Affairs, and Criminal Justice of the House Committee on Government Reform and Oversight, 104th Cong., 1st Sess. 300 (1995) [hereinafter Hearings Part 3].
14. Id.
15. Treasury Department Report at 67-68.
16. Hearings Part 1 at 757, 805.
17. Id. at 519-520.
18. Id. at 566.
19. Id. at 566-567.
20. Id. at 515-516.
21. Id. at 516.
22. Treasury Department Report at 179.
23. Hearings Part 1 at 562, 563.
24. Treasury Department Report at 24.