is called in to take control of complex barricade situations throughout the country and the world. According to the Treasury Department Report on the incident, ATF knew immediately after the raid began that it would need the help of the FBI. The apparent unanimity is expressed in the Treasury Department Report.410 Once the decision was made to turn the operation over to the FBI, the FBI was in charge of the scene in Waco within a matter of hours. 2. WHY THE FBI DIDN'T ALLOW OTHERS TO PARTICIPATE IN THE

NEGOTIATIONS

The FBI was disinclined to allow anyone, other than the FBI's own negotiators, to participate in negotiations with the Davidians. Many were offering their assistance, but few were allowed to participate. McLennan County Sheriff Jack Harwell and the Texas Rangers were suggested and offered their help. Attorneys for Davidians repeatedly asked to speak with the Davidians. It was with great hesitance that the FBI allowed Sheriff Harwell to speak with the Davidians, and with even greater reluctance that the FBI allowed the attorneys into the residence.411

a. Sheriff Jack Harwell

Early in the negotiations, Koresh and the Davidians told the negotiators they had a cordial relationship with Sheriff Jack Harwell. On March 13, Jamar allowed Sheriff Harwell to participate in negotiations. According to the Justice Department Report, to allow an untrained negotiator to participate in such operations was a “departure from conventional negotiation doctrine." 412 In preparation for these negotiations, Noesner and the FBI negotiations put Harwell through quick and intense training in professional negotiations. Harwell was put in this position only because he was a person whom both sides trusted. And although the negotiators were

tactical operations on land and at sea. The HRT was created in the 1980's to confront a growing number of unusually dangerous and complicated criminal situations.

410 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 at 113-114 (1993) [hereinafter Treasury Department Report].

Shortly after the shoot-out, Chojnacki spoke with Hartnett, who was in Washington, DC, and recommended that the FBI Hostage Rescue Team be brought to Waco to handle what had become a siege situation. At roughly the same time, FBI Director William Sessions learned of the shoot-out, contacted ATF Director Stephen Higgins and offered his condolences and his agency's assistance. After Hartnett arrived at the National Command Center and was fully briefed, he determined that the FBI HRT should be sent to Waco.

Soon after the cease-fire Hartnett contacted Douglas Gow, FBI Associate Deputy of Investigations, and formally requested FBI assistance. Gow, in turn, contacted FBI SAC Jeffrey Jamar (San Antonio) and briefed him on the situation. FBI Special Agent James Fossum (Waco) was informed of the crisis by both AUSA Phinizy and another local FBI agent. Shortly after [Fossum] arrived, Chojnacki told him the ATF would welcome whatever assistance the FBI could provide.

Clarke informed [Noble] that a request for the HRT had already been made by ATF and that the HRT was on its way to the residence to evaluate the situation.

Jeffrey Jamar (San Antonio), as the SAC of the affected district, was given command of the FBI operation. He arrived in Waco at about 5:30 p.m. and together with Fossum and several other local FBI agents, immediately began to establish a command post and assess the situation. The balance of the HRT members began arriving on March 1. After further discussions with FBI, ATF and Treasury officials, Noble spoke with ATF Director Higgins and ADLE Hartnett early March 1. Noble advised them that if the FBI determined that the HRT was needed for a long term, the FBI should have operational command to resolve the standoff. Id. 411 Justice Department Report at 133.

worried about Harwell making the situation worse, negotiators' worries were soon quelled when they discovered, according to Noesner, "Harwell was a natural." 413

Two days after he began participating in negotiations, Harwell participated in a face-to-face meeting with Sage and Davidians Martin and Schneider. The meeting produced no substantial change in the situation. Harwell and Sage attest to the fact that a "rapport was established, particularly with Schneider." 414 Unfortunately, whatever success may have been brought about by Harwell's participation was hindered by what Sage called a "distinct change in negotiation strategy."415 From that point on, Harwell's participation in the negotiations consisted of having his previous conversations broadcast into the residence via loudspeaker.

b. The Texas Rangers

Another group for which Davidians expressed their trust was the Texas Rangers. A longstanding and well respected law enforcement entity, the Texas Rangers were charged with conducting the final investigation into the raid on the Davidians. The Rangers were never allowed to participate in negotiations with the Davidians. They often had concerns about the conduct of the siege and attempted to express these concerns to Jamar. The Rangers were frustrated by a lack of communication with Jamar. As Captain Byrnes testified before subcommittees, "[I]f I went over there, the door was already closed to where Mr. Jamar was. Several times I waited a half hour, 45 minutes to see him and never saw him, and I finally quit going over there. We couldn't even get a phone call through. It was total lack of communication." 416

c. The attorneys for the Davidians

Another concern of the Rangers was the FBI's decision to allow face-to-face meetings between the Davidians and their attorneys. While it is common for a client under investigation or prosecution to meet with his attorney, it is rare for an attorney to meet with his client while his client is the subject of a "hostage barricade situation." "417 The negotiators and the tactical agents had different opinions on the wisdom of letting the attorneys into the residence.418

The negotiators were concerned that any third party intermediary was ill equipped to be thrust into the fragile negotiations that consume barricade situations. Negotiators were willing to use the attorneys in ways that would jumpstart the negotiations.419 The tactical team, along with the Texas Rangers, were

417 Id. at 23. DeGuerin says it's a frequent practice of attorneys to meet with their clients before they are arrested. Id. Texas Ranger Captain Byrnes testified before the subcommittees, "We went to see Mr. Jamar and offered a Ranger to help with the negotiations, if that would be helpful-not one of the captains but one of the Rangers that had been trained, most of them, by the FBI. He thanked us for that offer, and we never heard anything else about it." Id. at 297. 418 Id. at 23.

419 FBI Commander Jeffrey Jamar testified before the subcommittees, "I was hopeful they could appeal to his self-interest. Everything Mr. Koresh did was to his self-interest." Id. at 312–

concerned about the opportunity that DeGuerin and Jack Zimmermann, the attorney for Steve Schneider, would have to destroy evidence. But even Texas Ranger Senior Captain Maurice Cook agreed with the wisdom of letting the attorneys into the residence by saying, "[Y]ou got to do what works." 420 Jamar made the decision because he was "focused on resolving the standoff peacefully." 421 DeGuerin and Zimmermann entered the residence on several occasions. The attorneys spent a total of 32 hours with Koresh.422

(i) Progress was made from the visits.-Negotiators and Jamar had the sense that the meetings were "positive." 423 On April 1, when the attorneys requested extensions of the preapproved time limits, they described their progress as "terrific." In that meeting, David Koresh promised to come out "after Passover." 424 The actual date of Passover, however, was a matter of controversy.

On April 14, a telephone conversation between DeGuerin and Koresh produced what DeGuerin called a promise to come out.425 The FBI called this promise "a new precondition for his coming out." 426 The precondition was the completion of David Koresh's written interpretation of the "Seven Seals," discussed in the Bible's Book of Revelation.

A letter attesting to the surrender offer followed the verbal promise. But the FBI remained skeptical.427

(ii) Negotiator and lawyers consultation after the first visit.— After each visit and on occasion when there was no visit, the FBI and the lawyers had discussions about strategy and about arranging more visits with Davidians. The agents worked closely with the attorneys before each visit and attorneys cooperated with the FBI. Before the trips into the Davidian residence, the agents and attorneys arranged time limits and topics for discussion while the attorneys were inside.428 On only one occasion did the attorneys ask to remain in the residence longer than the arranged time.

420 Texas Ranger Captain Cook testified before the subcommittees that when all else fails in negotiations, "you got to do what works. I think you can get too formalized." Although formal training opposes this. McClure says it can be used as a last resort. Id. at 145.

421 Justice Department Report at 91. "The proposed face-to-face meeting between Koresh and DeGuerin caused significant controversy within law enforcement. SAC Jamar made the decision to permit the meeting, clearing it with U.S. Attorney Ederer. The AUSA's [Assistant U.S. Attorney] and the Texas Rangers, who would be responsible for the eventual prosecutions, strongly opposed the meeting. Jamar was focused on resolving the standoff safely, while the prosecutors and the Texas Rangers were focused on the integrity of future court proceedings. The prosecutors and Texas Rangers were afraid that the defense attorney would give advice to Koresh which could result in the destruction of evidence and cause a more difficult prosecution." The attorneys met inside the residence approximately seven times.

422 Hearings, Part 2 at 79.

Mrs. THURMAN: How many total hours did you spend with [Koresh], do you think, in the period of time that you represented him.

Mr. DEGUERIN: About 32 hours.

423 Id. at 304-306.

424 Id. at 47.

425 Negotiation Transcripts (April 14, 1993).

426 Hearings, Part 2 at 304–306.

427 Jamar testified before the subcommittees, "They would build their [DeGuerin and Zimmermann] spirits up. I can remember one instance when DeGuerin came out and, believe me, he put his best effort in and I give him all the credit in the world for the effort he made. He would build him up and then cut his legs out from under him. I remember one instance where he said he was making a point with him and Koresh feigned illness. It happened to us all the time." Id. at 297-298.

C. LACK OF APPRECIATION OF OUTSIDE INFORMATION

1. WHY THE FBI DID NOT RELY MORE ON RELIGIOUS ADVISORS TO

UNDERSTAND KORESH

Many argue that the reason negotiations failed was that the FBI failed to grasp the nature and strength of Branch Davidian beliefs. There exists a conflict among those who believe negotiators should never become sympathetic with the "hostage taker" and others who believe the only way to negotiate is to understand the subject of the negotiations.429 The FBI became frustrated with endless dissertations of Branch Davidian beliefs and ignored assertions of religious experts that Koresh could be negotiated with on a theological level.430 The FBI grew skeptical that Koresh could be convinced that ending the siege was in his best interest.

a. The FBI standard in negotiations

Mainstream negotiation tactics call for the negotiator to remain aloof from the subject of the negotiations, to pursue crisis management team goals, and never become embroiled in the message of the hostage taker.431 The focus of negotiation training is “active listening." The negotiator is supposed to find out what the subject wants or demands.

Negotiation training gives preference to those with a social science background. The FBI negotiation curriculum includes abnormal psychology and the social sciences. Time after time, David Koresh, and Davidians Wayne Martin and Steve Schneider, sought to speak with someone who could understand the Branch Davidian interpretation of the Seven Seals. The FBI resisted the desire to engage Koresh in such a discussion, saying that it was sure to be fruitless.432 McClure testified at the hearings that he had been involved in a similar situation when religious discussions of a barricaded group had proved fruitless. He said, "In 1987, I was involved in a situation in Atlanta where 1,400 Cubans were holding 121 hostages. Their religious belief was very important to them during that period of time. Those hostages were held for 12 days. Every time that we gave a negotiations and responded to their religious questions and got in their head or tried to get into their head and they tried to get into our about religion, no progress was made. When we talked about secular issues, we got people out." 433 This experience appears to have led the FBI to avoid religious discussions with the Davidians.

429 Noesner Briefing. Noesner maintains that a negotiator should never become embroiled in a discussion of the beliefs of the subject of the negotiations; never give the barricaded person the benefit of believing he has control of the conversation. Dr. Phillip Arnold, of the Reunion Institute in Houston, TX, and Dr. James Tabor, Associate Professor of Religious Studies at the University of North Carolina at Charlotte, suggest that Koresh could have been dealt with through a discussion of his biblical interpretations. According to the Harvard Negotiation Project, "negotiating [with people acting out of religious conviction] does not require compromising your principles. More often success is achieved by finding a solution that is arguably consistent with each side's principles." Roger Fisher et al., Getting to Yes (1991).

430 Justice Department Report at 26-28. The Department of Justice report recounts Koresh's attempt to tell his side of the situation.

431 Noesner Briefing.

432 Hearings, Part 2 at 181.

b. Experts consulted

When the FBI first arrived in Waco, it had little information about David Koresh and the Davidians. Negotiators sought as much information as possible about the group. It was left to the experts hired by the FBI to create a profile of David Koresh and develop a plan to negotiate with the Davidians.

Dr. Eugene Gallagher, professor of Religion at Connecticut College, calls Glenn Hillburn, Dean of the Baylor University Department of Religion, "the one expert with a firm grasp of the history of the Davidians within the framework of the Seventh-day Adventists." 434 According to the Justice Department report, Glenn Hillburn, Dean of the Baylor University Department of Religion, "provided information on the Book of Revelations, the Seven Seals, and other Biblical matters." 435 The report makes no mention of special insight Hillburn provided into the peculiar habits of the Davidians or David Koresh. Other than Dr. Hillburn, Dr. Gallagher concludes, the FBI consulted few religious experts with knowledge of Branch Davidians and what they believed. Indeed, Stone says in his Report and Recommendations, "One of my fellow panelists believes and I am convinced that the FBI never actually consulted with a religious expert familiar with the unconventional beliefs of the Davidians." 436

c. The failure to consult outside experts

The FBI relied on experts with whom it was familiar. But, there were individuals who embraced the peaceful resolution of the situation in Waco as their personal crusade. Among those who made serious efforts to help were Phillip Arnold, Associate Professor of Religious Studies at the University of North Carolina at Charlotte, and Gene Tabor of the Reunion Institute in Houston, TX. It was difficult for Arnold and Tabor to intercede. The Justice Department Report mentions that "[t]he FBI refused to permit a live telephone conversation" between Arnold and Schneider although Schneider requested Arnold by name.437

d. What communications did they have with Koresh?

Tabor and Arnold saw a video sent out by Koresh and thought effective negotiation was possible if the FBI dealt with Koresh within a framework of the Bible, particularly the Seven Seals.438 Koresh had heard Arnold giving his interpretation of the Seven Seals and offering assistance on the KJBS radio. 439

Neither Arnold nor Tabor ever spoke with Koresh. Koresh and Schneider repeatedly asked to speak with Phillip Arnold. Arnold and Tabor were allowed to send in tapes of their interpretations at

434 Interview of Dr. Eugene Gallagher by Robert J. Shea, Special Assistant to the Subcommittee on National Security, International Affairs, and Criminal Justice, in New London, CT (October 23, 1995).

435 Justice Department Report at 189.

436 Stone Report at 43, 44.

437 Justice Department Report at 186. "On March 17, Schneider told the FBI that he and some of the other residence members had heard of Dr. Arnold as someone with expertise about the Book of Revelations and the Seven Seals, and that they wanted to speak with him. The FBI refused to permit a live telephone conversation, but offered an exchange of audiotapes instead. On March 19, the FBI sent an audiotape that Dr. Arnold had made into the compound.” Id. 438 Hearings, Part 2 at 46-47.