seek a nonviolent resolution of the standoff simply by virtue of their training.

The FBI has a policy in place that favors a negotiated settlement.370 Through a type of negotiation called active listening, negotiators attempt to find ways to explain to the barricaded subject why it is in his best interest to seek a nonviolent solution. This FBI policy and training of negotiators conflicts with the "action imperative.'

b. Major disagreements between the two teams

Each team adamantly argued to Jamar on behalf of its perspective and adamantly opposed the other's.371 Dr. Alan A. Stone 372 chronicled the progression in strategy that occurred among the FBI Commanders at Waco in his Report and Recommendations. At first, according to Stone, "the agents on the ground proceeded with a strategy of conciliatory negotiation, which had the approval and understanding of the entire chain of command. Pushed by the tactical leader, the commander on the ground began to allow tactical pressures to be placed on the residence in addition to negotiation." 373 Stone summarized the feelings of negotiators of this inevitable progression. Stone writes, "This changing strategy at the residence from (1) conciliatory negotiating to (2) negotiation and tactical pressure and then to (3) tactical pressure alone, evolved over the objections of the FBI's own experts and without clear understanding up the chain of command." 374

The disagreement was called a "fundamental strategy disagreement." 375 The negotiators suggested that tactical maneuvers worked against the negotiation process. The tactical team wanted to employ aggressive tactics. Regarding the conflict with tactical people, McClure says simply, "Tactical people think in tactical terms and negotiators think in negotiation terms." 376 Byron Sage, a Supervisory Special Agent and the lead day-to-day FBI negotiator at Waco, testified before the subcommittees, "[The conflict between tactical and negotiation teams] presented difficulties, for sure, but that is not unusual. These are not matters that we were not prepared to attempt to negotiate through." 377 In the end, however, the tactical team won the endorsement of Jamar.

Jamar decided to constrict the perimeter of the building by moving vehicles closer to the residence. On March 9, 1993, the FBI

370 Id.

371 U.S. Department of Justice, Report to the Deputy Attorney General on the Events at Waco, TX, 75 (1993) (hereinafter Justice Department Report]. "The guiding principle in negotiation and tactical employment is to minimize the risk to all persons involved-hostages, bystanders, subjects, and law enforcement officers." But the Justice Department report states that the negotiating components of the FBI strategies were "more often contradictory than complimentary." 372 Alan A. Stone, M.D., Touroff/Glueck Professor of Psychiatry and Law at Harvard University, originally was asked to participate in the Department of Justice Waco review team. For a variety of reasons, including time constraints, Dr. Stone submitted an individual report apart from the Justice Department Report. See infra note 373.

373 Alan A. Stone, Report: To Deputy Attorney General Philip Heymann, Report and Recommendations Concerning the Handling of Incidents Such as the Branch Davidian Standoff in Waco, TX, Panelist, Alan A. Stone, M.D., (November 8, 1993) [hereinafter Stone Report].

374 Id.

375 Hearings, Part 2 at 316. Gary Noesner testified before the subcommittees, "At Waco, there was a fundamental strategy disagreement on what was the best way to proceed. In Waco, the negotiation team wanted to have a lower-keyed approach and the tactical team's approach was more to apply pressure." Id.

376 Id. at 147.

began to use Bradley Fighting Vehicles to clear debris (including automobiles and boats) from the front of Mount Carmel. On March 14, 1993, the FBI focused bright lights on the residence in an effort to disrupt the sleep of those inside. Four days later, loudspeakers were set up to communicate messages from the FBI to the Davidians inside the residence. Soon thereafter, the FBI began playing recordings of Tibetan chants, rabbits being slaughtered, and other sound effects.378

While negotiators were trying to gain the trust of Koresh and the Davidians, the actions of the tactical team gave Davidians reason to distrust FBI's negotiators. At the hearings, Sage explained, “It is not uncommon to, as part of the negotiation process, to actually try to ingratiate yourself a little bit more with Koresh and his followers by saying, look, this is out of our hands, but that is why you need to give us something to work with." 379 It is difficult to imagine that use of tactical force could be a beneficial tool with those whom experts say should be treated with caution and conciliation. Notwithstanding Sage's description of the tactical maneuvers as helpful to negotiations, any consequences of aggressive movements on the part of FBI were not ones it intended. They were predicted, however. Gary Noesner remarked, "I do not awake from nightmares or have trouble sleeping at night... because everything that I predicted would happen, did happen." 380

c. Insufficient communication between the two teams and their commanders

In testimony before the subcommittees, Jamar described the strategic decisionmaking process. He said, "The supervisors of each component would get together and report and discuss matters. And we would have various meetings." 381 Noesner said the problem was not one of communication. Jamar's office was across from the negotiation room. Noesner communicated the desired approach of negotiators with regularity and often in heated exchanges. Jamar heard opinions from the negotiators and tactical agents given with equal force. He let each strategy go forward as if it was the primary one. 382

d. Decisions between the options presented by the two teams

In early 1993, FBI policy was to place the Special Agent in Charge of the FBI's regional office in charge of making operational decisions in a crisis like Waco. Noesner described the role of the SAC saying, "He has to take the information and couple that with the information he receives from other intelligence sources, from the tactical team and he has to weigh all those things, weigh them with his own experiences and his own perceptions and he has to come to a decision.” 383

Noesner emphasized the fact that the real problem in Waco was one of leadership. The situation at Waco required someone to make the decision on what strategy to utilize to confront this "unconven

tional" group. He characterized Jamar as an action-oriented agent, one who fell prey to the "action imperative." 384

Stone describes the action imperative in terms of the FBI's "group psychology." The options available to the FBI, according to Stone, fell somewhere between "doing nothing (passivity) and a military assault (the action imperative)." 385 In light of the fact that "the appeal of any tactical initiative to an entrenched, stressed FBI must have been overwhelming," Stone reasons, "the desultory strategy of simultaneous negotiation and tactical pressure was enacted as a compromise." 386 Stone concluded that tactical maneuvers were initiated as a way to relieve agents' desire to act. It is left to the SAC to override the group psychology of the agents on the ground and make the decisions necessary to reach a peaceful conclusion. Stone writes, "The FBI should not be pushed by their group psychology into misguided ad hoc decision making the next time around." 387

e. The effect on negotiations of the decision to employ tactical ma

neuvers

The decision to employ tactical maneuvers had the exact result negotiators and experts predicted. The experts advised against antagonizing the Davidians.388 In a memorandum coauthored by Peter Smerick, an FBI Criminal Investigative Analyst, and Park Dietz, Clinical Professor of Psychiatry and Biobehavioral Sciences at the UCLA School of Medicine, the FBI was advised that "negotiations coupled with ever increasing tactical presence. . . could eventually be counterproductive and could result in loss of life." 389 When tactical maneuvers were utilized, negotiations were set back. The Davidians were unable to sleep with sounds of loud music and rabbits being slaughtered. The Davidians were angered by movements of the armored personnel carriers. They were angered by the clearing of debris from the grounds.390 As Richard DeGuerin, the lawyer representing Koresh, says, tactical maneuvers appeared to be "calculated to discourage anyone from coming out." 391

The effect that the tactical maneuvers had on negotiations was only one of the problems resulting from that decision. In fact, some believe that playing loud music bonded the Davidians closer together.392

f. Tactical maneuvers may have fed into the vision anticipated by Koresh

Koresh often warned Davidians that they would die in a fire brought on by "the Beast." 393 In Smerick's March 8 memo, he rec

388 Memorandum from Criminal Investigative Analyst Peter Smerick and Dr. Park Dietz, Clinical Professor of Psychiatry and Biobehavioral Sciences at the UCLA School of Medicine (March 5, 1993).

389 Id.

392 Id. at 195. Captain McClure thought the playing of chants and rabbit slaughters was unwise.

393 Thomas Robbins & Dick Anthony, Sects and Violence: Factors Enhancing the Volatility of Marginal Religious Movements, in Armegeddon in Waco: Critical Perspectives on the Branch

ommended that tactical pressure "should be the absolute last option we should consider, and that the FBI might unintentionally make Koresh's vision of a fiery end come true." 394 When the FBI began to play loud music and inch closer to the residence in armored vehicles, experts maintained that those were exactly the wrong tactics.395 More than simply bonding the Davidians together, experts concluded that these actions proved Koresh right in the minds of the Davidians. The Justice Department Report notes, "Some of the experts felt that the aggressive tactical moves played into Koresh's hands." 396 Even Jamar, who made the decision to use these tactics, said, "I did not like it." 397

B. NEGOTIATION OPPORTUNITIES LOST

1. WHY THE FBI CHANGED NEGOTIATORS

Soon after the raid, the FBI was called to take command of the situation at the Davidian residence. Edward Dennis writes that "ATF requested assistance from the FBI on February 28, 1993, after ATF agents had attempted to serve an arrest and search warrant on the Branch Davidian Compound." 398 Before the FBI took over, negotiations with the Davidians had begun. Lt. Larry Lynch, of the McClennan County Sheriff's Department, and Branch Davidian Wayne Martin talked over the Waco 911 Emergency line.399 Soon thereafter, ATF Assistant Special Agent in Charge James Cavanaugh and Davidians Steve Schneider and Koresh spoke by telephone in an attempt to resolve the initial firefight.400 Finally, Cavanaugh successfully negotiated an end to the shooting. Cavanaugh, with the help of the Texas Department of Public Safety, made measurable progress toward release of Davidians. Communication was extremely difficult between Davidians inside and ATF agents outside. Nonetheless, Cavanaugh manipulated the dialog from the hysterical screaming during the gun battle to productive conversation leading to a cease fire.

a. Cavanaugh's rapport with the Davidians

The most difficult task after the raid failed was to establish a reliable, common-sense method for communicating with those inside Mount Carmel. Communicating the agreed upon cease-fire was made difficult by the size of Mount Carmel and the fragmentation of ATF agents.401 Eventually, however, the shooting stopped and negotiations began.

Davidian Conflict 236, 240 (Stuart Wright ed., 1996). "Koresh clearly anticipated a government assault, and the actual military-style raid that the BATF perpetrated against the Waco Davidian settlement in late February 1993 'seemed to those inside to validate at least part of Koresh's prophecy."" Id.

394 Memorandum from Criminal Investigative Analyst Peter Smerick (March 8, 1994).

395 Justice Department Report at 185.

396 Justice Department Report at 185.

397 Hearings, Part 2 at 317.

398 Edward S.G. Dennis, Jr., Evaluation of the Handling of the Branch Davidian Standoff in Waco, TX, 5 (1993) [hereinafter Dennis Report].

399 McLennan County Sheriff's Department, 911 Transcripts (February 28, 1993). 400 Id.

401 Justice Department Report at 105. [E]ven after Schneider and Cavanaugh had agreed to call a cease-fire, it took several minutes to achieve one. Schneider for his part had to walk throughout the residence to tell people inside to stop shooting. Cavanaugh, who had no direct radio link to each agent, had to advise the team leaders of the cease-fire and the team leaders

In his statement to the Department of Justice, Agent Cavanaugh gave a compelling description of the first moments after the raid.402 The atmosphere was frenetic and hostile. Cavanaugh's tone was friendly as he sought to gain the trust of those in the residence.

Cavanaugh gained the Davidians' trust by acknowledging the Davidians' point of view.403 He granted many of their requests.404 He talked with them as though they were "equals" trying to achieve the same goals. Cavanaugh assuaged their concerns by promising that they would be addressed. Most importantly, Cavanaugh established a routine that produced the release of some Davidians. 405

Cavanaugh established a rapport with rapport with Koresh and other Davidians. When Cavanaugh left the negotiations, Koresh mentioned that he missed Cavanaugh. He noted that Cavanaugh promised to be there until the end.406 But on March 4, 1995 Cavanaugh left Waco, only to return briefly in April. After Cavanaugh's departure, the negotiations were an FBI operation.

b. Why the FBI was brought in

The ATF asked for the aid of the FBI and agreed that it would be best for the FBI to assume operational control of the entire siege.407 All of the official reports note that the FBI was asked to take over the siege.408

According to the Justice Department Report, the FBI Hostage Rescue Team was the law enforcement organization best equipped to handle the standoff.409 It is because of its expertise that the FBI

in turn had to communicate with their agents. The cease-fire was negotiated for a period of time before the shooting finally stopped. Id.

402 2 Department of the Treasury Document, statement of James Cavanaugh:

"I called the compound directly on the phone from the undercover house. I reached a man named Steve, later identified as Steve Schneider. I told him I was an ATF agent and I wanted to talk to him about this situation. As should be expected, the activity inside the compound was very frantic, people were screaming and yelling, and there was still shooting going on both sides. Steve was very excited and very hostile.

"I wanted to negotiate a cease fire, and he [Schneider] was agreeable. I am not going to be good on the time of how long it took, but it took a little while to negotiate that. He had to go throughout the compound, which is very large, telling everyone not to shoot. While he was doing this, there was still shooting going on both sides. I had to get on the command net frequency and tell the commanders on the ground there not to shoot, and they had to relay that to all 100 agents, who were around there, so it took a little time to arrange it.

"Once I returned to the rear command post I called back in on the telephone to the residence about 2:00 p.m. and I spoke with Steve and David Koresh about what was going on. We had long conversations about the warrant and we also had a lot of conversations about Biblical passages and Mr. Koresh's belief that he was the Lamb of God, who would open the Seven Seals. As you might assume, he was very hostile, very angry, and very upset."

403 Hearings, Part 2 at 187. ATF agent James Cavanaugh, the initial negotiator during the standoff, testified before the subcommittees, "[The FBI] established trust with Koresh. Id. Cavanaugh appears to have been accomplished at active listening. The FBI, however, did not choose to retain Cavanaugh.

404 A summary of the Davidians' requests can be found in the Justice Department Report in the Appendix.

405 Hearings, Part 2 at 74. Representative Peter Blute, when questioning a witnesses, stated, "We also know that, after the raid, when the siege started, the initial negotiator was getting through to Koresh and they had a kind of relationship intellectually that allowed numerous people to be released during that period. . ." Id.

406 Transcripts of the Negotiations Between the FBI and the Davidians (March 4, 1993) [hereinafter Negotiation Transcripts].

407 Justice Department Report at 22.

408 Treasury Department Report at 114. Justice Department Report at 1.

409 Justice Department Report at 144. At the time, the FBI's HRT consisted of a 50-person force. It was trained to deal with highly dangerous missions. The team boasts "sophisticated armament including infra-red aiming devices, daytime and nighttime sniper capabilities, explosive and mechanical breaching abilities, and certain non-lethal weapons." The agents are trained for